This article has been authored by Shantanu Gupta.
The Supreme Court has yet again entered into the realm of inherent power of High Courts while dealing with quashing petitions under Section 482 Code of Criminal Procedure, 1973 (Cr.P.C.). The 3-judge bench headed by Justice M. R. Shah has categorically deprecated with recent practices of various High Courts passing interim stay orders while dismissing the quashing petitions under section 482 Cr.P.C.
An FIR was registered against the accused under Section 406, 420, 465, 468, 471, and 120B of the Indian Penal Code, 1860. On anticipatory bail application filed by the accused, the learned Sessions Court granted interim protection from the arrest. Thereafter, during the pendency of anticipatory bail application, the accused invoked writ jurisdiction of the High Court under Article 226 read with section 482 Cr.P.C. and filed a petition to quash the FIR. The High Court passed an interim order that “no coercive measures shall be adopted against the petitioners (original accused) in respect of the said FIR.” Feeling aggrieved by the impugned interim order passed by the Division Bench of the High Court, the original complainant preferred the appeal.
The counsels appearing on behalf of appellant in the present case contended that a blanket direction of the High Court restraining the investigating officer/agency from taking coercive measures, in the facts and circumstances of the case, was not warranted at all and that such interim orders cannot be passed mechanically and/or without assigning any reasons by the High Court. Whereas the counsels appearing on behalf of the respondents/accused had put forward averments if further investigation or proceedings pursuant to the given FIR would likely cause unjustified and unwarranted harassment to the accused, the Court may grant an order of “no coercive measures” or “no arrest”. Also, that the powers to grant interim stay/interim relief in a quashing petition under Section 482 Cr.P.C are parallel to the powers of the civil Court under Order XXXIX Rule 1, Code of Civil Procedure, 1908 (CPC). Thus, an interim injunction restraining the police from investigation consequent to the FIR can be justified on the touchstone of balance of convenience, irreparable loss and a prima facie case.
The central issues formed by the Apex Court revolves around the extraordinary and inherent powers of the High Courts in passing interim orders of “stay on investigation/FIR” or “no further coercive steps against accused” during the pendency/dismissal of quashing petitions under Section 482 Cr.P.C. are as follows:
The Apex Court had deliberated upon Article 226 of Constitution of India as well as Section 482 Cr.P.C. to analyze extraordinary and inherent jurisdiction of the High Courts dealing with quashing of FIR. The 3-Judge Bench relied upon view taken by this Hon’ble Supreme Court in landmark judgments of State of Telangana vs. Habib Abdullah Jeelani, State of Haryana vs. Bhajan Lal etc. The Court also deprecated recent practices where High Courts dismiss quashing petitions under Section 482 Cr.P.C and pass interim orders for stay on investigation or arrest. Such interim orders have been held prima facie illegal and unwarranted as they encroach upon the domain of under Section 438Cr.P.C.
The Court noted that the power under Section 482 is to secure the ends of justice or prevent any abuse of law and it does not confer arbitrary powers on the Courts. The Court also gave principles with respect to exercise of inherent and extraordinary jurisdiction of High Court in the rarest of rare cases with sharp circumspection. These principles include that Courts must not restrict an investigation into the cognizable offences in routine manner at the initial stages of trial, because it is a statutory duty of the police under relevant chapters & provisions of Cr.P.C. to investigate such offences. Further principles include:
i. The Court cannot enquire into the reliability or genuineness of the allegations made in the FIR/complaint while examining it;
ii. Quashing of a complaint/FIR should is an exception and a rarity than an ordinary rule;
iii. The functions of the judiciary and the police are complementary, not overlapping;
iv. Interference by the Courts is only allowed if non-interference would result in miscarriage of justice;
v. During the investigation procedure, the Courts must refrain themselves to go into the merits of the allegations in the FIR;
vi. The power under Section 482 Cr.P.C. are required to be exercised with utmost cautions;
vii. When an application for quashing of FIR is filed, the Court only has to consider that whether the allegations made in FIR constitute prima facie cognizable offence or not.
The Supreme Court while setting aside the impugned illegal and unwarranted interim order passed by the High Court held that High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” in pre trial stages of the case and the accused should be relegated to take remedy of anticipatory bail under Section 438 Cr.P.C. before the competent Court. The Apex Court ruled that passing such blanket interim orders is not justified while dismissing 482 quashing petitions and such orders are wholly illegal and unwarranted. Moreover the Courts must not only record its reasons when passing such interim orders but should also not use vague phrases like “no coercive steps” or else it demonstrates non-application of mind.
It is not res integra that extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. High Courts must exercise this power in the rarest of rare cases. It is against the law laid down in landmark judgment of Habib Abdullah Jeelani when High Courts are indulged into passing such orders of stay on investigation or “no coercive steps to be taken” in pre trial stages, while not entertaining quashing petitions under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India.
An interim order imposing stay of investigation or restricting actions by investigating officers during the pendency of the quashing petition can be passed with circumspection. But the same should not require to be passed in routine or mechanical manner. Thus, in light of the principles established by Hon’ble Supreme Court in plethora of judgments, the High Courts may grant such interim stay/interim relief pending the proceedings under Section 482 Cr.P.C in exceptional cases with caution and circumspection. Further, it is a mandate that the High Court shall record its reason to pass such an interim order, more particularly when the High Court is exercising the extraordinary and inherent powers under Section 482 Cr.P.C. and Article 226 of the Constitution of India.