REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 330 OF 2021
M/s Neeharika Infrastructure Pvt. Ltd. …Appellant
Versus
State of Maharashtra and others …Respondents
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned interim order
dated 28.09.2020 passed by the Division Bench of the High Court of
Judicature at Bombay in Writ Petition (ST) No. 2306 of 2020, by which,
in an application filed by private respondent nos. 2 to 4 herein
(hereinafter referred to as the ‘original accused’) under Article 226 of the
Constitution of India r/w Section 482 Cr.P.C. with a prayer to quash the
criminal proceedings being FIR No. 367/2019 dated 19.09.2019, the
High Court has directed that “no coercive measures shall be adopted”
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against the original accused in respect of the said FIR, the original
complainant has preferred the present appeal.
2. That the appellant herein has lodged an FIR against respondent
nos. 2 to 4 herein – original accused at Worli Police Station, Mumbai for
the offences under Sections 406, 420, 465, 468, 471 and 120B of the
Indian Penal Code. That the allegations against the original accused
pertain to forgery and fabrication of Board Resolution and the fraudulent
sale of a valuable property Naziribagh Palace ad-measuring 111,882 sq.
ft. belonging to the appellant company to one M/s Irish Hospitality Pvt.
Ltd.
2.1 Apprehending their arrest in connection with the aforesaid FIR, the
original accused filed anticipatory bail application before the learned trial
Court under Section 438 Cr.P.C. That the learned Sessions Court,
Mumbai granted interim protection from arrest to the alleged accused.
That the interim protection, which was granted by the learned Sessions
Court, was further extended from time to time and continued nearly for a
year thereafter. That during the pendency of the anticipatory bail
application pending before the learned Sessions Court, Mumbai, original
accused – respondent nos. 2 to 4 herein preferred a petition before the
High Court of Judicature at Bombay under Article 226 of the Constitution
of India r/w Section 482 Cr.P.C. for quashing the FIR, on 17.09.2020.
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That the said writ petition was listed for hearing before the Division
Bench of the High Court on 22.09.2020, wherein an order was passed
directing the matter to be listed on 24.09.2020 before another Bench.
That on 28.09.2020, the writ petition was listed for hearing before
another Division Bench. Learned counsel appearing on behalf of the
appellant herein (respondent no.2 before the High Court) prayed for two
weeks’ time to file an affidavit in reply with an additional compilation of
documents. That the Division Bench granted two weeks’ time to the
appellant herein to file an affidavit in reply with an additional compilation
of documents in the Registry on or before 12.10.2020 with copy to the
other side. Liberty was granted to the original accused (writ petitioners
before the High Court) to file rejoinder, if any, on or before 19.10.2020.
The matter was directed to be listed on board on 28.10.2020. While
adjourning the matter to 28.10.2020, the High Court has passed the
impugned interim order directing that “no coercive measures shall be
adopted against the petitioners (original accused – respondent nos. 2 to
4 herein) in respect of the said FIR”. When the aforesaid order was
being passed, learned counsel appearing on behalf of the appellant
submitted that anticipatory bail application filed by the original writ
petitioners before the learned Sessions Court is pending for hearing and
the learned Sessions Court may get influenced by the said order and
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therefore the Division Bench clarified that the learned Sessions Court
shall decide the anticipatory bail application on its own merits.
2.2 Feeling aggrieved and dissatisfied with the impugned interim order
passed by the Division Bench of the High Court directing that “no
coercive measures shall be adopted” against the original accused (writ
petitioners before the High Court) in respect of the said FIR, the original
complainant has preferred the present appeal.
3. Shri K.V. Vishwanathan, learned Senior Advocate has appeared on
behalf of the appellant – original respondent no.2 – complainant, Shri
Diljeet Ahluwalia with Shri Malak Manish Bhatt, learned Advocates have
appeared on behalf of the original accused – writ petitioners –
respondent nos. 2 to 4 herein and Shri Sachin Patil and Shri Rahul
Chitnis, learned Advocates have appeared on behalf of the State of
Maharashtra.
3.1 Shri K.V. Vishwanathan, learned Senior Advocate appearing on
behalf of the appellant – original complainant has vehemently submitted
that such a blanket direction of the High Court restraining the
investigating officer from taking coercive measures, in the facts and
circumstances of the case, was not warranted at all.
3.2 It is submitted that, as such, the original accused – respondent
nos. 2 to 4 herein were already having the interim protection from the
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learned Sessions Court, Mumbai in the anticipatory bail application
which was continued from time to time since last one year. It is
submitted that, as such, the original accused were not co-operating with
the investigation after having obtained the interim protection of arrest
and, in fact, the investigating officer addressed a communication to the
learned Sessions Court stating that the accused were not co-operating
with the investigation. It is submitted that therefore thereafter and that
too while enjoying the interim protection from arrest, to file an application
for quashing after a period of almost one year and obtain such an order
is nothing but an abuse of process.
3.3 It is submitted that, as such, no reasons whatsoever have been
assigned by the High Court while passing such an interim order of “no
coercive measures to be adopted/taken” against the original accused.
3.4 It is submitted that the High Court ought to have appreciated that
the original accused – respondent nos. 2 to 4 herein are facing very
serious charges for the offences under Sections 406, 420, 465, 468, 471
and 120B of the Indian Penal Code and, in fact, the FIR was transferred
to the Economic Offences Wing and the investigation was being
conducted by the Economic Offences Wing. It is submitted that, as
such, the original accused were not co-operating with the investigation
after having obtained the interim protection from arrest.
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3.5 It is further submitted by Shri Vishwanathan, learned Senior
Advocate appearing on behalf of the appellant that, as such, by issuing
such a blanket direction restraining the investigating officer from taking
coercive measures against the original accused, the valuable right of the
investigating officer to investigate the offences has been hampered
and/or taken away.
3.6 Relying upon the decision of this Court in the case of State of
Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779, it is submitted
by Shri Vishwanathan that as observed and held by this Court the
powers under Section 482 Cr. P.C or under Article 226 of the
Constitution of India to quash the first information report is to be
exercised in a very sparing manner and is not to be used to choke or
smother the prosecution that is legitimate. It is submitted that it is
observed by this Court in the aforesaid decision that inherent powers do
not confer an arbitrary jurisdiction on the High Court to act according to
whim or caprice. That such power has to be exercised sparingly, with
circumspection and in the rarest of rare cases. It is submitted that it
cannot be disputed that accused cannot approach the High Court under
Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
However, as held by this Court in catena of decisions, inherent power in
a matter of quashing of FIR has to be exercised sparingly and with
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caution and when and only when such exercise is justified by the test
specifically laid down in the provision itself. It is submitted that in the
aforesaid decision it is observed and held that power under Section 482
Cr.P.C. is very wide but conferment of wide power requires the Court to
be more cautious. It casts an onerous and more diligent duty on the
Court.
3.7 It is submitted that in a given case, the Court, having found that the
case falls within the parameters of exercise of powers under Section 482
Cr.P.C. to quash the FIR, may pass appropriate interim orders as
thought apposite in law, but even such an interim order shall be passed
regard being had to the parameters of quashing and the self-restraint
imposed by law. It is submitted that even in such a case the High Court
has to consider the allegations made in the FIR or what has come out in
the investigation.
3.8 It is submitted that in a case the accused against whom the FIR is
lodged is apprehending arrest, a remedy is available to him to file the
anticipatory bail application under Section 438 Cr.P.C. It is submitted
that even when the anticipatory bail application under Section 438 is
filed, the same can be granted within the parameters of Section 438
Cr.P.C. and the conditions of the said provision are satisfied. It is
submitted that, however, such a blanket order of no coercive steps
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without imposing any condition whatsoever and without satisfaction of
the conditions of Section 438 Cr.P.C. is not permissible at all.
3.9 It is further submitted that, as such, by passing such a blanket
order of “no coercive steps to be taken”, even the valuable right of the
investigating agency/police to investigate the FIR will be affected.
3.10 It is submitted that assuming that the High Court has jurisdiction to
pass an interim order in a given case, regard being had to the
parameters of quashing, in that case also, such interim orders cannot be
passed mechanically and/or without assigning any reasons. It is
submitted that while granting such a protection, even the High Court has
to give some brief reasons why stay of investigation and/or such an
order of “no coercive steps” is warranted. It is submitted that there must
be a reflection of application of mind to the facts of the case; allegations
in the FIR and what has come out in the investigation. It is submitted
that, as such, when the investigation is in progress at the threshold, it is
not appropriate to stay the investigation of the case. It is submitted that
only in an exceptional case and rarest of rare case, the powers to quash
the FIR are required to be exercised sparingly and with circumspection.
It is submitted that the same parameters which shall be applicable while
exercising the powers under Section 482 Cr.P.C. and/or under Article
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226 of the Constitution of India to quash the FIR/investigation shall be
applicable while passing an appropriate interim order.
3.11 Shri Vishwanathan, learned Senior Advocate appearing on behalf
of the appellant has relied upon the following decisions on when a High
Court can grant a stay of investigation or “no coercive measures order”
in exercise of its powers under Section 482 Cr.P.C./under Article 226 of
the Constitution of India and in support of his submissions that (1)
inherent powers do not confer an arbitrary jurisdiction on the High Court
to act according to whim or caprice and the statutory power has to be
exercised sparingly, with circumspection and in the rarest of rare cases;
(2) power of the police to investigate into a cognizable offence is
ordinarily not to be interfered with by the judiciary; (3) save in
exceptional case where non-interference would result in miscarriage of
Justice, the Court and the judicial process should not interfere at the
stage of investigation of offences; (4) in case a police officer
transgresses the circumscribed limits and improperly and illegally
exercises his powers in relation to the process of investigation, then the
Court has the necessary powers to consider the nature and extent of the
breach and pass appropriate orders; (5) the High Court being the highest
Court of a State should normally refrain from giving a prima facie
decision in a case where the entire facts are incomplete and hazy, more
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so when the evidence has not been collected and produced before the
Court; (6) the High Court has no inherent powers to interfere with the
investigation, unless it is found that the allegations do not disclose the
commission of a cognizable offence or the power of investigation is
being exercised by the police malafidely; (7) the High Court should be
extremely cautious and slow to interfere with the investigation and/or trial
of criminal cases and should not stall the investigation and/or
prosecution except when it is convinced beyond any manner of doubt
that the FIR does not disclose commission of an offence or that the
allegations contained in the FIR do not constitute any cognizable
offence or that the prosecution is barred by law or the High Court is
convinced that it is necessary to interfere to prevent abuse of the
process of the Court. In support of his above submissions, learned
Senior Advocate has relied upon the following decisions, namely, KingEmperor v. Khwaja Nazir Ahmad AIR 1945 PC 18; R.P. Kapur v. State
of Punjab AIR 1960 SC 866; Kurukshetra University v. State of Haryana
(1977) 4 SCC 451; State of A.P. v. Golconda Linga Swamy (2004) 6
SCC 522; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque
(2005) 1 SCC 122; Sanapareday Maheedhar Seshagiri v. State of
Andhra Pradesh (2007) 13 SCC 165; State of Andhra Pradesh v.
Bajjoori Kanthaiah (2009)1 SCC 114; State of Maharashtra v. Arun
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Gulab Gawali (2010) 9 SCC 701; and State of Orissa v. Ujjal Kumar
Burdhan (2012) 4 SCC 547.
3.12 Shri Vishwanathan, learned Senior Advocate has heavily relied
upon the decision of this Court in the case of State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335, on when the High Court would be justified
in quashing the FIR/investigation. He has relied upon paras 60, 61, 102
and 103 respectively of the aforesaid decision.
3.13 Relying upon the decision of this Court in the case of Imtiyaz
Ahmad v. State of Uttar Pradesh, (2012) 2 SCC 688, it is submitted that
the power to grant stay of investigation and trial is very extraordinary
power given to the High Courts and such power is to be exercised
sparingly only to prevent abuse of process and to promote the ends of
justice.
3.14 Shri Vishwanathan, learned Senior Advocate also relied upon the
recent decision of this Court in the case of Ravuri Krishna Murthy v. The
State of Telangana and others (Criminal Appeal Nos. 274-275 of 2021,
decided on 05.03.2021), by which a somewhat similar order of protection
of not to arrest passed while not entertaining the quashing petition under
Section 482, has been set aside by this Court considering the decision
of this Court in the case of Habib Abdullah Jeelani (supra).
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3.15 Shri Vishwanathan, learned Senior Advocate appearing on behalf
of the appellant has further submitted that in the case of Asian
Resurfacing of Road Agency Private Limited v. Central Bureau of
Investigation, (2018) 16 SCC 299, this Court has observed and held that
even in a case of challenge to the framing of the charge, wherever the
stay is granted by the High Court in exercise of its revisional jurisdiction
or otherwise, a speaking order must be passed showing that the case
was of an exceptional nature.
3.16 It is further submitted that in many of the cases it is seen that the
High Court while not entertaining the quashing petitions under Section
482 Cr.P.C. and/or under Article 226 of the Constitution of India and
while dismissing such petitions, still grants interim protection/protection
of not to arrest for a particular period or even till the report is filed under
Section 173 Cr.P.C. It is submitted that the aforesaid is absolutely
impermissible and such an order of not to arrest for a particular period
can be said to be beyond the scope and ambit of Section 482 Cr.P.C.
Once the quashing petition is dismissed, the accused may avail the
remedy of approaching the trial Court and/or the concerned Court for
anticipatory bail under Section 438 Cr.P.C and the same can be
considered while imposing the conditions and/or having been satisfied
that the conditions of grant of anticipatory bail are satisfied. It is
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submitted that in a given case the immediate custodial investigation is
warranted and in view of such a blanket order of not to arrest, will take
away the right of the investigating agency/police to investigate into the
allegations in the FIR. It is submitted that as held by this Court in catena
of decisions and even as per the provisions of the Cr.P.C., the
police/investigating officer has the statutory obligation to investigate into
the allegations in the FIR and to find out the truth. It is submitted that
therefore such a protection while dismissing the petition under Section
482 Cr.P.C and/or under Article 226 of the Constitution of India is not
sustainable and is wholly impermissible. It is submitted that despite
such orders have been criticized by this Court in the case of Habib
Abdullah Jeelani (supra), still the High Courts are passing such orders,
disregarding the law laid down by this Court.
4. Shri Diljeet Ahluwalia and Shri Malak Manish Bhatt, learned
Advocates appearing on behalf of the original accused – respondent
nos. 2 to 4 herein have vehemently submitted that, as such, in the facts
and circumstances of the case and looking to the nature of the
allegations made in the FIR and the dispute which, as such, can be said
to be a civil dispute, no error has been committed by the High Court in
passing such an order of “no coercive steps” against respondent nos. 2
to 4 herein – original accused – original writ petitioners.
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4.1 Number of submissions have been made by the learned
Advocates appearing on behalf of respondent nos. 2 to 4 herein –
original accused – original writ petitioners on merits and in support of
their submissions that the impugned FIR is nothing but an abuse of
process of law and that a civil dispute is tried to be converted into a
criminal dispute, only with a view to harass respondent nos. 2 to 4
herein. However, we do not propose to deal with the case on merits and
consider whether the impugned FIR is an abuse of process of law or not,
as Section 482 petition is yet required to be dealt with by the High Court
on merits in the pending proceedings.
4.2 Learned Advocates appearing on behalf of respondent nos. 2 to 4
herein – original accused – original writ petitioners have submitted that
as held by this Court in catena of decisions, the powers possessed by
the High Court under Section 482 Cr.P.C. and/or under Article 226 of the
Constitution of India are very wide. It is submitted that as held by this
Court, the High Court may exercise its powers under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution of India relating to
cognizable offences to prevent abuse of process of any court or
otherwise to secure the ends of justice. It is submitted therefore in
exercise of its wholesome powers, the High Court would be justified and
entitled to quash the proceedings. It is submitted that similarly the High
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Court would be justified and entitled to stay the further investigation and
even grant an interim order of stay of arrest and/or “no coercive
measures to be taken”.
4.3 It is submitted that in the case of State of Karnataka v. L.
Muniswamy, (1977) 2 SCC 699, it is observed by this Court that the High
Court in its inherent powers is designed to achieve a salutary public
purpose which is that a court proceeding ought not to be permitted to
degenerate into a weapon of harassment or persecution.
4.4 It is submitted that if the Court is of the prima facie view that further
investigation or proceedings pursuant to the FIR is likely to cause
unwarranted and unjustified harassment to the petitioner, the Court may
grant an order of “no coercive measures” in favour of the accused.
4.5 It is further submitted by the learned Advocates appearing on
behalf of respondent nos. 2 to 4 herein – original accused – original writ
petitioners that powers to grant interim stay/interim relief in a quashing
petition under Section 482 Cr.P.C and/or under Article 226 of the
Constitution of India are akin to the powers of the civil court under Order
XXXIX Rule 1 CPC, namely, prima facie case; balance of convenience
and irreparable loss. It is submitted that therefore an interim injunction
restraining the police from investigation consequent to the FIR can be
15
justified on the touchstone of balance of convenience, irreparable loss
and a prima facie case.
4.6 Relying upon the decision of this Court in the case of Imtiyaz
Ahmad (supra), it is submitted that the authority of the High Court to
order stay of investigation pursuant to lodging of the FIR or trial in
deserving cases is unquestionable. However, the learned Advocates
have fairly conceded that wherever stay is granted, a speaking order
must be passed showing that the case is of an exceptional nature.
4.7 It is vehemently submitted by the learned Advocates that when a
criminal proceeding initiated pursuant to the FIR/complaint is nothing but
an abuse of process of law and/or the same is wholly without jurisdiction
or where it manifestly appears that there is a legal bar against the
institution or continuance of the criminal proceeding in respect of the
offence alleged or where the allegations in the FIR/complaint even if they
are taken at the face value and accepted in their entirety, do not
constitute the offence alleged and exceptional case being made out on
the grounds mentioned by this Court in the cases of Bhajan Lal (supra);
R.P. Kapur (supra); and Zandu Pharmaceutical Works Ltd. (supra), by
giving brief reasons, the High Court would be justified in even staying the
further investigation, by way of an interim order. It is submitted that
misuse of criminal proceedings is not unknown and the criminal law
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cannot be set into motion as a matter of course and therefore to take
away the inherent powers of the High Court would not be in the larger
public interest also.
4.8 Relying upon the decision of this Court in the case of Rajiv Thapar
V. Madan Lal Kapoor, (2013) 3 SCC 330, it is submitted that while
exercising the powers under Section 482 Cr.P.C., the High Court is
required to undertake step-wise enquiry as mentioned in para 30 of the
said decision and if the answer to all the steps is in the affirmative, the
High Court would be justified in quashing the criminal proceedings. It is
submitted that the grounds on which the criminal proceedings can be
quashed in exercise of powers under Section 482 Cr.P.C., the very
grounds can be made applicable while granting stay of further
investigation, pending the quashing petition under Section 482 Cr.P.C.
4.9 In support of his submissions, learned Advocates have relied upon
the following decisions of this Court and various High Courts, namely,
State of U.P. v. Mohammad Naim AIR 1964 SC 703; L. Muniswamy
(supra); State of Andhra Pradesh v. Gourishetty Mahesh (2010) 11 SCC
226; Vijeta Gajra v. State (NCT of Delhi), (2010) 11 SCC 618; Rajiv
Thapar (supra); State of Maharashtra v. Sanjay Dalmia, (2015) 17 SCC
539; Amish Devgan v. Union of India, (2021) 1 SCC 1; the decision of
the Delhi High Court in Ganga Ram Hospital v. State dated 22.06.2020
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in CRL.M.A. No. 7661/2020 in W.P. (CRL.) No. 921/2020; the decision of
the Rajasthan High Court in Noor Taki Alias Mammu v. State of
Rajasthan dated 26.02.1986 AIR 1987 RAJ 52; and decision of the
Bombay High Court in Madhukar Purshottam Mondkar v. Talab Haji
Hussain dated 14.01.1958 AIR 1958 BOM 406.
5. We have heard the learned counsel appearing for the respective
parties at length.
6. The principal issue which arises is when and where the High Court
would be justified in passing an interim order either staying the further
investigation in the FIR/complaint or interim order in the nature of “no
coercive steps” and/or not to arrest the accused either pending
investigation by the police/investigating agency or during the pendency
of the quashing petition under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India pending before the High Court?
7. While considering the aforesaid issue, law on the exercise of
powers by the High Court under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India to quash the FIR/complaint and the
parameters for exercise of such powers and scope and ambit of the
power by the High Court under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India are required to be referred to as the very
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parameters which are required to be applied while quashing the FIR will
also be applicable while granting interim stay/protection.
7.1 The first case on the point which is required to be noticed is the
decision of this Court in the case of R.P. Kapur (supra). While dealing
with the inherent powers of the High Court under Section 561-A of the
earlier Code (which is pari materia with Section 482 of the Code), it is
observed and held that the inherent powers of the High Court under
Section 561 of the earlier Code cannot be exercised in regard to the
matters specifically covered by the other provisions of the Code; the
inherent jurisdiction of the High Court can be exercised to quash
proceedings in a proper case either to prevent the abuse of the process
of any court or otherwise to secure the ends of justice; ordinarily criminal
proceedings instituted against an accused person must be tried under
the provisions of the Code, and the High Court would be reluctant to
interfere with the said proceedings at an interlocutory stage. After
observing this, thereafter this Court then carved out some exceptions to
the above-stated rule, which are as under:
“(i) Where it manifestly appears that there is a legal bar against
the institution or continuance of the criminal proceeding in respect of
the offence alleged. Absence of the requisite sanction may, for
instance, furnish cases under this category.
(ii) Where the allegations in the first information report or the
complaint, even if they are taken at their face value and accepted in
their entirety, do not constitute the offence alleged; in such cases no
question of appreciating evidence arises; it is a matter merely of
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looking at the complaint or the first information report to decide
whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused person do
constitute an offence alleged but there is either no legal evidence
adduced in support of the case or the evidence adduced clearly or
manifestly fails to prove the charge. In dealing with this class of cases it
is important to bear in mind the distinction between a case where there
is no legal evidence or where there is evidence which is manifestly and
clearly inconsistent with the accusation made and cases where there is
legal evidence which on its appreciation may or may not support the
accusation in question. In exercising its jurisdiction under Section 561-
A the High Court would not embark upon an enquiry as to whether the
evidence in question is reliable or not. That is the function of the trial
Magistrate, and ordinarily it would not be open to any party to invoke
the High Court's inherent jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation made against the accused
would not be sustained.”
7.2 In the case of Kurukshetra University (supra), this Court observed
and held that inherent powers under Section 482 Cr.P.C. do not confer
an arbitrary jurisdiction on the High Court to act according to whim or
caprice; that statutory power has to be exercised sparingly with
circumspection and in the rarest of rare cases. In the case before this
Court, the High Court quashed the first information report filed by the
Kurukshetra University through Warden and that too without issuing
notice to the University, in exercise of inherent powers under Section
482 Cr.P.C. This Court noticed and observed that the High Court was
not justified in quashing the FIR when the police had not even
commenced investigation into the complaint filed by the Warden of the
University and no proceedings were at all pending before any Court in
pursuance of the FIR.
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7.3 Then comes the celebrated decision of this Court in the case of
Bhajan Lal (supra). In the said decision, this Court considered in detail
the scope of the High Court powers under Section 482 Cr.P.C. and/or
Article 226 of the Constitution of India to quash the FIR and referred to
several judicial precedents and held that the High Court should not
embark upon an inquiry into the merits and demerits of the allegations
and quash the proceedings without allowing the investigating agency to
complete its task. At the same time, this Court identified the following
cases in which FIR/complaint can be quashed:
“102.(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any offence or
make out a case against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do not
disclose the commission of any offence and make out a case against
the accused.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no prudent
person can ever reach a just conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the Act concerned (under which a criminal
proceeding is instituted) to the institution and continuance of the
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proceedings and/or where there is a specific provision in the Code or
the Act concerned, providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.”
7.4 In the case of Golconda Lingaswamy (supra), after considering the
decisions of this Court in the cases of R.P. Kapur (supra) and Bhajan Lal
(supra) and other decisions on the exercise of inherent powers by the
High Court under Section 482 Cr.P.C., in paragraphs 5, 7 and 8, it is
observed and held as under:
“5. Exercise of power under Section 482 of the Code in a case
of this nature is the exception and not the rule. The section does not
confer any new powers on the High Court. It only saves the inherent
power which the Court possessed before the enactment of the Code. It
envisages three circumstances under which the inherent jurisdiction
may be exercised, namely: (i) to give effect to an order under the Code,
(ii) to prevent abuse of the process of court, and (iii) to otherwise
secure the ends of justice. It is neither possible nor desirable to lay
down any inflexible rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with procedure can
provide for all cases that may possibly arise. Courts, therefore, have
inherent powers apart from express provisions of law which are
necessary for proper discharge of functions and duties imposed upon
them by law. That is the doctrine which finds expression in the section
which merely recognises and preserves inherent powers of the High
Courts. All courts, whether civil or criminal, possess in the absence of
any express provision, as inherent in their constitution, all such powers
as are necessary to do the right and to undo a wrong in course of
administration of justice on the principle quando lex aliquid alique
concedit, conceditur et id sine quo res ipsa esse non potest (when the
law gives a person anything, it gives him that without which it cannot
exist). While exercising powers under the section, the Court does not
function as a court of appeal or revision. Inherent jurisdiction under the
section though wide has to be exercised sparingly, carefully and with
22
caution and only when such exercise is justified by the tests specifically
laid down in the section itself. It is to be exercised ex debito justitiae to
do real and substantial justice for the administration of which alone
courts exist. Authority of the court exists for advancement of justice and
if any attempt is made to abuse that authority so as to produce
injustice, the court has power to prevent such abuse. It would be an
abuse of the process of the court to allow any action which would result
in injustice and prevent promotion of justice. In exercise of the powers
court would be justified to quash any proceeding if it finds that initiation
or continuance of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is sought to be
quashed, it is permissible to look into the materials to assess what the
complainant has alleged and whether any offence is made out even if
the allegations are accepted in toto.
7. In dealing with the last category, it is important to bear in mind
the distinction between a case where there is no legal evidence or
where there is evidence which is clearly inconsistent with the
accusations made, and a case where there is legal evidence which, on
appreciation, may or may not support the accusations. When
exercising jurisdiction under Section 482 of the Code, the High Court
would not ordinarily embark upon an enquiry whether the evidence in
question is reliable or not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function of the trial
Judge. Judicial process, no doubt should not be an instrument of
oppression, or, needless harassment. Court should be circumspect and
judicious in exercising discretion and should take all relevant facts and
circumstances into consideration before issuing process, lest it would
be an instrument in the hands of a private complainant to unleash
vendetta to harass any person needlessly. At the same time the section
is not an instrument handed over to an accused to short-circuit a
prosecution and bring about its sudden death…..
8. As noted above, the powers possessed by the High Court
under Section 482 of the Code are very wide and the very plenitude of
the power requires great caution in its exercise. Court must be careful
to see that its decision in exercise of this power is based on sound
principles. The inherent power should not be exercised to stifle a
legitimate prosecution. High Court being the highest court of a State
should normally refrain from giving a prima facie decision in a case
where the entire facts are incomplete and hazy, more so when the
evidence has not been collected and produced before the Court and
the issues involved, whether factual or legal, are of magnitude and
23
cannot be seen in their true perspective without sufficient material. Of
course, no hard-and-fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. [See Janata Dal v. H.S.
Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892]
and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1
Cri LJ 1] .] It would not be proper for the High Court to analyse the case
of the complainant in the light of all probabilities in order to determine
whether a conviction would be sustainable and on such premises,
arrive at a conclusion that the proceedings are to be quashed. It would
be erroneous to assess the material before it and conclude that the
complaint cannot be proceeded with. In a proceeding instituted on
complaint, exercise of the inherent powers to quash the proceedings is
called for only in a case where the complaint does not disclose any
offence or is frivolous, vexatious or oppressive. If the allegations set
out in the complaint do not constitute the offence of which cognisance
has been taken by the Magistrate, it is open to the High Court to quash
the same in exercise of the inherent powers under Section 482 of the
Code. It is not, however, necessary that there should be meticulous
analysis of the case before the trial to find out whether the case would
end in conviction or acquittal. The complaint/FIR has to be read as a
whole. If it appears that on consideration of the allegations in the light
of the statement made on oath of the complainant or disclosed in the
FIR that the ingredients of the offence or offences are disclosed and
there is no material to show that the complaint/FIR is mala fide,
frivolous or vexatious, in that event there would be no justification for
interference by the High Court. When an information is lodged at the
police station and an offence is registered, then the mala fides of the
informant would be of secondary importance. It is the material collected
during the investigation and evidence led in court which decides the
fate of the accused person. The allegations of mala fides against the
informant are of no consequence and cannot by themselves be the
basis for quashing the proceeding.”
7.5 In the case of Zandu Pharmaceutical Works Ltd. (supra), in
paragraph 11, this Court has observed and held as under:
“11. … the powers possessed by the High Court under Section 482 of
the Code are very wide and the very plenitude of the power requires
great caution in its exercise. Court must be careful to see that its
decision in exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a legitimate
prosecution. The High Court being the highest court of a State should
24
normally refrain from giving a prima facie decision in a case where the
entire facts are incomplete and hazy, more so when the evidence has
not been collected and produced before the court and the issues
involved, whether factual or legal, are of magnitude and cannot be
seen in their true perspective without sufficient material. of course, no
hard-and-fast rule can be laid down in regard to cases in which the
High Court will exercise its extraordinary jurisdiction of quashing the
proceeding at any stage. It would not be proper for the High Court to
analyse the case of the complainant in the light of all probabilities in
order to determine whether a conviction would be sustainable and on
such premise arrive at a conclusion that the proceedings are to be
quashed. It would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with. In a
proceeding instituted on complaint, exercise of the inherent powers to
quash the proceedings is called for only in a case where the complaint
does not disclose any offence or is frivolous, vexatious or oppressive.
If the allegations set out in the complaint do not constitute the offence
of which cognizance has been taken by the Magistrate, it is open to
the High Court to quash the same in exercise of the inherent powers
under Section 482 of the Code. It is not, however, necessary that there
should be meticulous analysis of the case before the trial to find out
whether the case would end in conviction or acquittal. The complaint
has to be read as a whole. If it appears that on consideration of the
allegations in the light of the statement made on oath of the
complainant that the ingredients of the offence or offences are
disclosed and there is no material to show that the complaint is mala
fide, frivolous or vexatious, in that event there would be no justification
for interference by the High Court. When an information is lodged at
the police station and an offence is registered, then the mala fides of
the informant would be of secondary importance. It is the material
collected during the investigation and evidence led in court which
decides the fate of the accused person. The allegations of mala fides
against the informant are of no consequence and cannot by
themselves be the basis for quashing the proceedings.”
7.6 In the case of Sanapareddy Maheedhar Seshagiri (supra), in
paragraph 31, it is observed and held as under:
“31. A careful reading of the abovenoted judgments makes it
clear that the High Court should be extremely cautious and slow to
interfere with the investigation and/or trial of criminal cases and should
not stall the investigation and/or prosecution except when it is
convinced beyond any manner of doubt that FIR does not disclose
commission of any offence or that the allegations contained in FIR do
not constitute any cognizable offence or that the prosecution is barred
by law or the High Court is convinced that it is necessary to interfere to
prevent abuse of the process of the Court. In dealing with such cases,
25
the High Court has to bear in mind that judicial intervention at the
threshold of the legal process initiated against a person accused of
committing offence is highly detrimental to the larger public and
societal interest. The people and the society have a legitimate
expectation that those committing offences either against an individual
or the society are expeditiously brought to trial and, if found guilty,
adequately punished. Therefore, while deciding a petition filed for
quashing FIR or complaint or restraining the competent authority from
investigating the allegations contained in FIR or complaint or for stalling
the trial of the case, the High Court should be extremely careful and
circumspect. If the allegations contained in FIR or complaint disclose
commission of some crime, then the High Court must keep its hands
off and allow the investigating agency to complete the investigation
without any fetter and also refrain from passing order which may
impede the trial. The High Court should not go into the merits and
demerits of the allegations simply because the petitioner alleges malus
animus against the author of FIR or the complainant. The High Court
must also refrain from making imaginary journey in the realm of
possible harassment which may be caused to the petitioner on account
of investigation of FIR or complaint. Such a course will result in
miscarriage of justice and would encourage those accused of
committing crimes to repeat the same. However, if the High Court is
satisfied that the complaint does not disclose commission of any
offence or prosecution is barred by limitation or that the proceedings of
criminal case would result in failure of justice, then it may exercise
inherent power under Section 482 CrPC.”
7.7 In the case of Arun Gulab Gawali (supra), this Court set aside the
order passed by the High Court quashing the criminal complaint/FIR
which was even filed by the complainant. In the case before this Court,
prayer for quashing the FIR before the High Court was by the
complainant himself and the High Court quashed the FIR/complaint in
exercise of the powers under Section 482 Cr.P.C. Quashing and setting
aside the judgment and order passed by the High Court quashing the
FIR, this Court in paragraphs 13 and 27 to 29 has observed as under:
“13. The power of quashing criminal proceedings has to be
exercised very sparingly and with circumspection and that too in the
26
rarest of rare cases and the Court cannot be justified in embarking
upon an enquiry as to the reliability or genuineness or otherwise of
allegations made in the FIR/complaint, unless the allegations are so
patently absurd and inherently improbable so that no prudent person
can ever reach such a conclusion. The extraordinary and inherent
powers of the Court do not confer an arbitrary jurisdiction on the Court
to act according to its whims or caprice. However, the Court, under its
inherent powers, can neither intervene at an uncalled for stage nor
can it “soft-pedal the course of justice” at a crucial stage of
investigation/proceedings. The provisions of Articles 226, 227 of the
Constitution of India and Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter called as “CrPC”) are a device to
advance justice and not to frustrate it. The power of judicial review is
discretionary, however, it must be exercised to prevent the miscarriage
of justice and for correcting some grave errors and to ensure that
stream of administration of justice remains clean and pure. However,
there are no limits of power of the Court, but the more the power, the
more due care and caution is to be exercised in invoking these
powers. (Vide State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC
561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949] , Pepsi Foods
Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri)
1400] , G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC
(Cri) 513 : AIR 2000 SC 754] and Ajay Mitra v. State of M.P. [(2003) 3
SCC 11 : 2003 SCC (Cri) 703] )
xxx xxx xxx
27. The High Court proceeded on the perception that as the
complainant himself was not supporting the complaint, he would not
support the case of the prosecution and there would be no chance of
conviction, thus the trial itself would be a futile exercise. Quashing of
FIR/complaint on such a ground cannot be held to be justified in law.
Ordinarily, the Court of Session is empowered to discharge an
accused under Section 227 CrPC even before initiating the trial. The
accused can, therefore, move the trial court itself for such a relief and
the trial court would be in a better position to analyse and pass an
order as it is possessed of all the powers and the material to do so. It
is, therefore, not necessary to invoke the jurisdiction under Section
482 CrPC for the quashing of a prosecution in such a case. The
reliance on affidavits by the High Court would be a weak, hazy and
unreliable source for adjudication on the fate of a trial. The
presumption that an accused would never be convicted on the
material available is too risky a proposition to be accepted readily,
particularly in heinous offences like extortion.
27
28. A claim founded on a denial by the complainant even before
the trial commences coupled with an allegation that the police had
compelled the lodging of a false FIR, is a matter which requires further
investigation as the charge is levelled against the police. If the
prosecution is quashed, then neither the trial court nor the
investigating agency has any opportunity to go into this question,
which may require consideration. The State is the prosecutor and all
prosecution is the social and legal responsibility of the State. An
offence committed is a crime against society and not against the victim
alone. The victim under undue pressure or influence of the accused or
under any threat or compulsion may resile back but that would not
absolve the State from bringing the accused to book, who has
committed an offence and has violated the law of the land.
29. Thus, while exercising such power the Court has to act
cautiously before proceeding to quash a prosecution in respect of an
offence which hits and affects the society at large. It should be a case
where no other view is possible nor any investigation or inquiry is
further required. There cannot be a general proposition of law, so as to
fit in as a straitjacket formula for the exercise of such power. Each
case will have to be judged on its own merit and the facts warranting
exercise of such power. More so, it was not a case of civil nature
where there could be a possibility of compromise or involving an
offence which may be compoundable under Section 320 CrPC, where
the Court could apply the ratio of Madhavrao Jiwajirao Scindia [(1988)
1 SCC 692 : 1988 SCC (Cri) 234 : AIR 1988 SC 709] .”
7.8 Thereafter in catena of decisions, this Court has reiterated the
parameters for exercise of inherent powers under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution of India in the matter of
quashing the FIR/complaint.
8. While considering the issue involved, the rights and duties of the
police to investigate into cognizable offences are also required to be
considered.
8.1 The powers of investigation into cognizable offences are contained
in Chapter XIV of the Code of Criminal Procedure. Section 154 deals
28
with information in cognizable offence and Section 156 with investigation
into such offence and under these sections the police have the statutory
right to investigate into the circumstances of any alleged cognizable
offence.
8.2 The Privy Council in the case of Khwaja Nazir Ahmad (supra)
observed that in India, there is a statutory right on the part of the police
to investigate the circumstances of an alleged cognizable crime without
requiring any authority from the judicial authorities. It is further observed
that it would be an unfortunate result if it should be held possible to
interfere with those statutory rights by an exercise of the inherent
jurisdiction of the court. It is further observed that the functions of the
judiciary and the police are complementary, not overlapping, and the
combination of individual liberty with a due observance of law and order
is only to be obtained by leaving each to exercise its own function.
9. When the High Court would be justified in interfering with the
investigation by the police, while exercising the inherent powers under
Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, few
decisions of this Court are required to be noticed and referred to, which
are as under.
9.1 In the case of State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC
554, this Court, after referring to the precedents including the decision of
29
the Privy Council in the case of Khawaja Nazir Ahmad (supra), has
observed in paragraphs 25 and 26 as under:
“25. There is a clear-cut and well demarcated sphere of activity
in the field of crime detection and crime punishment. Investigation of an
offence is the field exclusively reserved for the executive through the
police department the superintendence over which vests in the State
Government. The executive which is charged with a duty to keep
vigilance over law and order situation is obliged to prevent crime and if
an offence is alleged to have been committed it is its bounded duty to
investigate into the offence and bring the offender to book. Once it
investigates and finds an offence having been committed it is its duty to
collect evidence for the purpose of proving the offence. Once that is
completed and the investigating officer submits report to the court
requesting the court to take cognizance of the offence under Section
190 of the Code its duty comes to an end. On a cognizance of the
offence being taken by the court the police function of investigation
comes to an end subject to the provision contained in Section 173(8),
there commences the adjudicatory function of the judiciary to
determine whether an offence has been committed and if so, whether
by the person or persons charged with the crime by the police in its
report to the court, and to award adequate punishment according to
law for the offence proved to the satisfaction of the court. There is thus
a well defined and well demarcated function in the field of crime
detection and its subsequent adjudication between the police and the
Magistrate. This had been recognised way back in King
Emperor v. Khwaja Nazir Ahmad [AIR 1944 PC 18 : 1944 LR 71 IA 203,
213] where the Privy Council observed as under:
“In India, as has been shown, there is a statutory right on
the part of the police to investigate the circumstances of an
alleged cognizable crime without requiring any authority from the
judicial authorities and it would, as Their Lordships think, be an
unfortunate result if it should be held possible to interfere with
those statutory rights by an exercise of the inherent jurisdiction
of the court. The functions of the judiciary and the police are
complementary, not overlapping, and the combination of
individual liberty with a due observance of law and order is only
to be obtained by leaving each to exercise its own function,
always, of course, subject to the right of the court to intervene in
an appropriate case when moved under Section 491 of the
Criminal Procedure Code to give directions in the nature of
habeas corpus. In such a case as the present, however, the
Court's functions begin when a charge is preferred before it, and
not until then.”
30
26. This view of the Judicial Committee clearly demarcates the
functions of the executive and the judiciary in the field of detection of
crime and its subsequent trial and it would appear that the power of the
police to investigate into a cognizable offence is ordinarily not to be
interfered with by the judiciary.”
In the said decision, this Court also took note of the following
observations made by this Court in the case of S.M. Sharma v. Bipen
Kumar Tiwari, (1970) 1 SCC 653:
“It appears to us that, though the Code of Criminal
Procedure gives to the police unfettered power to investigate
all cases where they suspect that a cognizable offence has
been committed, in appropriate cases an aggrieved person
can always seek a remedy by invoking the power of the High
Court under Article 226 of the Constitution under which, if the
High Court could be convinced that the power of
investigation has been exercised by a police officer mala
fide, the High Court can always issue a writ of mandamus
restraining the police officer from misusing his legal powers.”
9.2 In the case of Union of India v. Prakash P. Hinduja, (2003) 6 SCC
195, in paragraph 20, it is observed and held as under:
“20. Thus the legal position is absolutely clear and also settled
by judicial authorities that the court would not interfere with the
investigation or during the course of investigation which would mean
from the time of the lodging of the first information report till the
submission of the report by the officer in charge of the police station in
court under Section 173(2) CrPC, this field being exclusively reserved
for the investigating agency.”
9.3 In the case of Bhajan Lal (supra), it is observed and held by this
Court that save in exceptional cases where non interference would result
in miscarriage of justice, the court and the judicial process should not
interfere at the stage of the investigation of offence. It is further
31
observed that in a routine case where information of an offence or
offences has been lodged, investigation commenced, search and
seizure followed and suspects arrested, the resort to the unusual
procedure of oral applications and oral appeals and interim stay order
thereon would have the effect of interfering and staying the investigation
of offences by the investigating officer performing statutory duty under
Cr.P.C.
9.4 In the case of Ujjal Kumar Burdhan (supra), it is observed and held
by this Court that unless case of gross abuse of power is made out
against those in charge of investigation, the High Court should be loath
to interfere at early/premature stage of investigation.
9.5 In the case of Satvinder Kaur v. State (Govt. of NCT of Delhi),
(1999) 8 SCC 728, in paragraphs 14 to 16, it is observed and held as
under:
“14. Further, the legal position is well settled that if an offence is
disclosed the court will not normally interfere with an investigation into
the case and will permit investigation into the offence alleged to be
completed. If the FIR, prima facie, discloses the commission of an
offence, the court does not normally stop the investigation, for, to do so
would be to trench upon the lawful power of the police to investigate
into cognizable offences. [State of W.B. v. Swapan Kumar Guha,
(1982) 1 SCC 561 : 1982 SCC (Cri) 283] It is also settled by a long
course of decisions of this Court that for the purpose of exercising its
power under Section 482 CrPC to quash an FIR or a complaint, the
High Court would have to proceed entirely on the basis of the
allegations made in the complaint or the documents accompanying the
same per se; it has no jurisdiction to examine the correctness or
32
otherwise of the allegations. [Pratibha Rani v. Suraj Kumar, (1985) 2
SCC 370, 395 : 1985 SCC (Cri) 180]
15. Hence, in the present case, the High Court committed a
grave error in accepting the contention of the respondent that the
investigating officer had no jurisdiction to investigate the matters on the
alleged ground that no part of the offence was committed within the
territorial jurisdiction of the police station at Delhi. The appreciation of
the evidence is the function of the courts when seized of the matter. At
the stage of investigation, the material collected by an investigating
officer cannot be judicially scrutinized for arriving at a conclusion that
the police station officer of a particular police station would not have
territorial jurisdiction. In any case, it has to be stated that in view of
Section 178(c) of the Criminal Procedure Code, when it is uncertain in
which of the several local areas an offence was committed, or where it
consists of several acts done in different local areas, the said offence
can be enquired into or tried by a court having jurisdiction over any of
such local areas. Therefore, to say at the stage of investigation that the
SHO, Police Station Paschim Vihar, New Delhi was not having
territorial jurisdiction, is on the face of it, illegal and erroneous. That
apart, Section 156(2) contains an embargo that no proceeding of a
police officer shall be challenged on the ground that he has no
territorial power to investigate. The High Court has completely
overlooked the said embargo when it entertained the petition of
Respondent 2 on the ground of want of territorial jurisdiction.
16. Lastly, it is required to be reiterated that while exercising the
jurisdiction under Section 482 of the Criminal Procedure Code of
quashing an investigation, the court should bear in mind what has been
observed in the State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 :
1999 SCC (Cri) 304 : JT (1999) 1 SC 486] to the following effect: (SCC
pp. 654-55, para 6)
“Having said so, the Court gave a note of caution to the
effect that the power of quashing the criminal proceedings
should be exercised very sparingly with circumspection and that
too in the rarest of rare cases; that the court will not be justified
in embarking upon an enquiry as to the reliability or genuineness
or otherwise of the allegations made in the FIR or the complaint
and that the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its whim or
caprice. It is too well settled that the first information report is
only an initiation to move the machinery and to investigate into a
cognizable offence and, therefore, while exercising the power
and deciding whether the investigation itself should be quashed,
utmost care should be taken by the court and at that stage, it is
33
not possible for the court to sift the materials or to weigh the
materials and then come to the conclusion one way or the other.
In the case of State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 :
1996 SCC (Cri) 497 : JT (1996) 2 SC 488] a three-Judge Bench
of this Court indicated that the High Court should be loath to
interfere at the threshold to thwart the prosecution exercising its
inherent power under Section 482 or under Articles 226 and 227
of the Constitution of India, as the case may be, and allow the
law to take its own course. The same view was reiterated by yet
another three-Judge Bench of this Court in the case of Rashmi
Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC
(Cri) 415 : JT (1996) 11 SC 175] where this Court sounded a
word of caution and stated that such power should be sparingly
and cautiously exercised only when the court is of the opinion
that otherwise there will be gross miscarriage of justice. The
Court had also observed that social stability and order is
required to be regulated by proceeding against the offender as it
is an offence against society as a whole.”
9.6 In the case of Supdt. of Police, CBI v. Tapan Kumar Singh, (2003)
6 SCC 175 and in the case of State of U.P. v. Naresh, (2011) 4 SCC
324, it is observed and held by this Court that FIR is not an
encyclopaedia, which must disclose all facts and details relating to the
offence reported. In paragraph 20 in the case of Tapan Kumar Singh
(supra), it is observed and held as under:
20. It is well settled that a first information report is not an
encyclopaedia, which must disclose all facts and details relating to the
offence reported. An informant may lodge a report about the
commission of an offence though he may not know the name of the
victim or his assailant. He may not even know how the occurrence took
place. A first informant need not necessarily be an eyewitness so as to
be able to disclose in great detail all aspects of the offence committed.
What is of significance is that the information given must disclose the
commission of a cognizable offence and the information so lodged
must provide a basis for the police officer to suspect the commission of
a cognizable offence. At this stage it is enough if the police officer on
the basis of the information given suspects the commission of a
34
cognizable offence, and not that he must be convinced or satisfied that
a cognizable offence has been committed. If he has reasons to
suspect, on the basis of information received, that a cognizable offence
may have been committed, he is bound to record the information and
conduct an investigation. At this stage it is also not necessary for him to
satisfy himself about the truthfulness of the information. It is only after a
complete investigation that he may be able to report on the truthfulness
or otherwise of the information. Similarly, even if the information does
not furnish all the details he must find out those details in the course of
investigation and collect all the necessary evidence. The information
given disclosing the commission of a cognizable offence only sets in
motion the investigative machinery, with a view to collect all necessary
evidence, and thereafter to take action in accordance with law. The true
test is whether the information furnished provides a reason to suspect
the commission of an offence, which the police officer concerned is
empowered under Section 156 of the Code to investigate. If it does, he
has no option but to record the information and proceed to investigate
the case either himself or depute any other competent officer to
conduct the investigation. The question as to whether the report is true,
whether it discloses full details regarding the manner of occurrence,
whether the accused is named, and whether there is sufficient
evidence to support the allegations are all matters which are alien to
the consideration of the question whether the report discloses the
commission of a cognizable offence. Even if the information does not
give full details regarding these matters, the investigating officer is not
absolved of his duty to investigate the case and discover the true facts,
if he can.”
9.7 In the case of Prakash P. Hinduja (supra), it is observed and held
by this Court that the court would not interfere with the investigation or
during the course of investigation which would mean from the time of
lodging of the first information report till the submission of the report by
the officer in charge of the police station in court under Section 173(2)
Cr.P.C., this field being exclusively reserved for the investigating agency.
9.8 In the case of P. Chidambaram v. Directorate of Enforcement,
(2019) 9 SCC 24, this Court while considering the powers of the
35
investigating agency to investigate the cognizable offence, has observed
in paragraphs 61, 64 to 67 as under:
“61. The investigation of a cognizable offence and the various
stages thereon including the interrogation of the accused is exclusively
reserved for the investigating agency whose powers are unfettered so
long as the investigating officer exercises his investigating powers well
within the provisions of the law and the legal bounds. In exercise of its
inherent power under Section 482 CrPC, the Court can interfere and
issue appropriate direction only when the Court is convinced that the
power of the investigating officer is exercised mala fide or where there
is abuse of power and non-compliance of the provisions of the Code of
Criminal Procedure. However, this power of invoking inherent
jurisdiction to issue direction and interfering with the investigation is
exercised only in rare cases where there is abuse of process or noncompliance of the provisions of the Criminal Procedure Code.
xxx xxx xxx
64. Investigation into crimes is the prerogative of the police and
excepting in rare cases, the judiciary should keep out all the areas of
investigation. In State of Bihar v. P.P. Sharma [State of Bihar v. P.P.
Sharma, 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192] , it was held
that : (SCC p. 258, para 47)
“47. … The investigating officer is an arm of the law and
plays a pivotal role in the dispensation of criminal justice and
maintenance of law and order. … Enough power is therefore
given to the police officer in the area of investigating process
and granting them the court latitude to exercise its discretionary
power to make a successful investigation….”
65. In Dukhishyam Benupani v. Arun Kumar
Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC
52 : 1998 SCC (Cri) 261] , this Court held that : (SCC p. 55, para 7)
36
“7. … It is not the function of the court to monitor
investigation processes so long as such investigation does not
transgress any provision of law. It must be left to the
investigating agency to decide the venue, the timings and the
questions and the manner of putting such questions to persons
involved in such offences. A blanket order fully insulating a
person from arrest would make his interrogation a mere
ritual….”
66. As held by the Supreme Court in a catena of judgments that
there is a well-defined and demarcated function in the field of
investigation and its subsequent adjudication. It is not the function of
the court to monitor the investigation process so long as the
investigation does not violate any provision of law. It must be left to the
discretion of the investigating agency to decide the course of
investigation. If the court is to interfere in each and every stage of the
investigation and the interrogation of the accused, it would affect the
normal course of investigation. It must be left to the investigating
agency to proceed in its own manner in interrogation of the accused,
nature of questions put to him and the manner of interrogation of the
accused.
67. It is one thing to say that if the power of investigation has
been exercised by an investigating officer mala fide or non-compliance
of the provisions of the Criminal Procedure Code in the conduct of the
investigation, it is open to the court to quash the proceedings where
there is a clear case of abuse of power. It is a different matter that the
High Court in exercise of its inherent power under Section 482 CrPC,
can always issue appropriate direction at the instance of an aggrieved
person if the High Court is convinced that the power of investigation
has been exercised by the investigating officer mala fide and not in
accordance with the provisions of the Criminal Procedure Code.
However, as pointed out earlier that power is to be exercised in rare
cases where there is a clear abuse of power and non-compliance of
the provisions falling under Chapter XII of the Code of Criminal
Procedure requiring the interference of the High Court. In the initial
stages of investigation where the Court is considering the question of
grant of regular bail or pre-arrest bail, it is not for the Court to enter into
37
the demarcated function of the investigation and collection of
evidence/materials for establishing the offence and interrogation of the
accused and the witnesses.”
9.9 In the recent decision of this Court in the case of Skoda Auto
Volkswagen India Private Limited v. State of Uttar Pradesh, 2020 SCC
OnLine SC 958, it is observed in paragraph 41 as under:
“41. It is needless to point out that ever since the decision of the Privy
Council in King Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18, the
law is well settled that Courts would not thwart any investigation. It is
only in cases where no cognizable offence or offence of any kind is
disclosed in the first information report that the Court will not permit an
investigation to go on. As cautioned by this Court in State of
Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, the power of quashing
should be exercised very sparingly and with circumspection and that
too in the rarest of rare cases. While examining a complaint, the
quashing of which is sought, the Court cannot embark upon an enquiry
as to the reliability or genuineness or otherwise of the allegations
made in the FIR or in the complaint. In S.M. Datta v. State of Gujarat
(2001) 7 SCC 659 this Court again cautioned that criminal
proceedings ought not to be scuttled at the initial stage. Quashing of a
complaint should rather be an exception and a rarity than an ordinary
rule. In S.M. Datta (supra), this Court held that if a perusal of the first
information report leads to disclosure of an offence even broadly, law
courts are barred from usurping the jurisdiction of the police, since the
two organs of the State operate in two specific spheres of activities
and one ought not to tread over the other sphere. “
10. From the aforesaid decisions of this Court, right from the decision
of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the
following principles of law emerge:
i) Police has the statutory right and duty under the relevant
provisions of the Code of Criminal Procedure contained in Chapter XIV
of the Code to investigate into cognizable offences;
38
ii) Courts would not thwart any investigation into the cognizable
offences;
iii) However, in cases where no cognizable offence or offence of any
kind is disclosed in the first information report the Court will not permit an
investigation to go on;
iv) The power of quashing should be exercised sparingly with
circumspection, in the ‘rarest of rare cases’. (The rarest of rare cases
standard in its application for quashing under Section 482 Cr.P.C. is not
to be confused with the norm which has been formulated in the context
of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought,
the court cannot embark upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity
than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of
the police, since the two organs of the State operate in two specific
spheres of activities. The inherent power of the court is, however,
39
recognised to secure the ends of justice or prevent the above of the
process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary,
not overlapping;
x) Save in exceptional cases where non-interference would result in
miscarriage of justice, the Court and the judicial process should not
interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an
arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must
disclose all facts and details relating to the offence reported. Therefore,
when the investigation by the police is in progress, the court should not
go into the merits of the allegations in the FIR. Police must be permitted
to complete the investigation. It would be premature to pronounce the
conclusion based on hazy facts that the complaint/FIR does not deserve
to be investigated or that it amounts to abuse of process of law. During
or after investigation, if the investigating officer finds that there is no
substance in the application made by the complainant, the investigating
officer may file an appropriate report/summary before the learned
Magistrate which may be considered by the learned Magistrate in
accordance with the known procedure;
40
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment
of wide power requires the court to be cautious. It casts an onerous and
more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being
had to the parameters of quashing and the self-restraint imposed by law,
more particularly the parameters laid down by this Court in the cases of
R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash
the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged
accused, the court when it exercises the power under Section 482
Cr.P.C., only has to consider whether or not the allegations in the FIR
disclose the commission of a cognizable offence and is not required to
consider on merits whether the allegations make out a cognizable
offence or not and the court has to permit the investigating agency/police
to investigate the allegations in the FIR.
11. Whether the High Court would be justified in granting stay of
further investigation pending the proceedings under Section 482 Cr.P.C.
before it and in what circumstances the High Court would be justified is a
further core question to be considered.
Before passing an interim order of staying further investigation
pending the quashing petition under Section 482 Cr.P.C. and/or Article
41
226 of the Constitution of India, the High Court has to apply the very
parameters which are required to be considered while quashing the
proceedings in exercise of powers under Section 482 Cr.P.C. in exercise
of its inherent jurisdiction, referred to hereinabove.
12. In a given case, there may be allegations of abuse of process of
law by converting a civil dispute into a criminal dispute, only with a view
to pressurise the accused. Similarly, in a given case the complaint itself
on the face of it can be said to be barred by law. The allegations in the
FIR/complaint may not at all disclose the commission of a cognizable
offence. In such cases and in exceptional cases with circumspection,
the High Court may stay the further investigation. However, at the same
time, there may be genuine complaints/FIRs and the police/investigating
agency has a statutory obligation/right/duty to enquire into the
cognizable offences. Therefore, a balance has to be struck between the
rights of the genuine complainants and the FIRs disclosing commission
of a cognizable offence and the statutory obligation/duty of the
investigating agency to investigate into the cognizable offences on the
one hand and those innocent persons against whom the criminal
proceedings are initiated which may be in a given case abuse of process
of law and the process. However, if the facts are hazy and the
investigation has just begun, the High Court would be circumspect in
42
exercising such powers and the High Court must permit the investigating
agency to proceed further with the investigation in exercise of its
statutory duty under the provisions of the Code. Even in such a case the
High Court has to give/assign brief reasons why at this stage the further
investigation is required to be stayed. The High Court must appreciate
that speedy investigation is the requirement in the criminal administration
of justice.
13. While deprecating the grant of stay of investigation or trial by the
High Courts, this Court in the case of Imtiyaz Ahmad (supra), in
paragraphs 25 to 27, held as under:
“25. Unduly long delay has the effect of bringing about blatant
violation of the rule of law and adverse impact on the common man's
access to justice. A person's access to justice is a guaranteed
fundamental right under the Constitution and particularly Article 21.
Denial of this right undermines public confidence in the justice delivery
system and incentivises people to look for short cuts and other fora
where they feel that justice will be done quicker. In the long run, this
also weakens the justice delivery system and poses a threat to the rule
of law.
26. It may not be out of place to highlight that access to justice
must not be understood in a purely quantitative dimension. Access to
justice in an egalitarian democracy must be understood to mean
qualitative access to justice as well. Access to justice is, therefore,
much more than improving an individual's access to courts, or
guaranteeing representation. It must be defined in terms of ensuring
that legal and judicial outcomes are just and equitable [see United
Nations Development Programme, Access to Justice — Practice Note
(2004)].
27. The present case discloses the need to reiterate that
“access to justice” is vital for the rule of law, which by implication
includes the right of access to an independent judiciary. It is submitted
43
that the stay of investigation or trial for significant periods of time runs
counter to the principle of rule of law, wherein the rights and aspirations
of citizens are intertwined with expeditious conclusion of matters. It is
further submitted that delay in conclusion of criminal matters signifies a
restriction on the right of access to justice itself, thus amounting to a
violation of the citizens' rights under the Constitution, in particular under
Article 21.”
14. A similar view has been expressed by this Court again in the case
of Asian Resurfacing of Road Agency Private Limited (supra). By
deprecating the interlocutory orders/stay of criminal proceedings by the
High Courts, it is observed by this Court that the stay should not be
considered as an incentive to cause delay in the proceedings. It is
further observed that order granting stay or extending it must be a
speaking order and stay not to operate long. It is further observed in the
said decision that delay in a criminal trial has deleterious effect on the
administration of justice in which the society has a vital interest; delay in
trials affects the faith in Rule of Law and efficacy of the legal system; it
affects social welfare and development; mere prima facie case is not
enough; party seeking stay must be put to terms and stay should not be
incentive to delay; the order granting stay must show application of mind;
the power to grant stay is coupled with accountability. It is further
observed that wherever stay is granted, a speaking order must be
passed showing that the case was of an exceptional nature.
44
15. As observed hereinabove, there may be some cases where the
initiation of criminal proceedings may be an abuse of process of law. In
such cases, and only in exceptional cases and where it is found that non
interference would result into miscarriage of justice, the High Court, in
exercise of its inherent powers under Section 482 Cr.P.C. and/or Article
226 of the Constitution of India, may quash the FIR/complaint/criminal
proceedings and even may stay the further investigation. However, the
High Court should be slow in interfering the criminal proceedings at the
initial stage, i.e., quashing petition filed immediately after lodging the
FIR/complaint and no sufficient time is given to the police to investigate
into the allegations of the FIR/complaint, which is the statutory right/duty
of the police under the provisions of the Code of Criminal Procedure.
There is no denial of the fact that power under Section 482 Cr.P.C. is
very wide, but as observed by this Court in catena of decisions, referred
to hereinabove, conferment of wide power requires the court to be more
cautious and it casts an onerous and more diligent duty on the court.
Therefore, in exceptional cases, when the High Court deems it fit, regard
being had to the parameters of quashing and the self-restraint imposed
by law, may pass appropriate interim orders, as thought apposite in law,
however, the High Court has to give brief reasons which will reflect the
application of mind by the court to the relevant facts.
45
16. We have come across many orders passed by the High Courts
passing interim orders of stay of arrest and/or “no coercive steps to be
taken against the accused” in the quashing proceedings under Section
482 Cr.P.C. and/or Article 226 of the Constitution of India with assigning
any reasons. We have also come across number of orders passed by
the High Courts, while dismissing the quashing petitions, of not to arrest
the accused during the investigation or till the chargesheet/final report
under Section 173 Cr.P.C is filed. As observed hereinabove, it is the
statutory right and even the duty of the police to investigate into the
cognizable offence and collect the evidence during the course of
investigation. There may be requirement of a custodial investigation for
which the accused is required to be in police custody (popularly known
as remand). Therefore, passing such type of blanket interim orders
without assigning reasons, of not to arrest and/or “no coercive steps”
would hamper the investigation and may affect the statutory right/duty of
the police to investigate the cognizable offence conferred under the
provisions of the Cr.P.C. Therefore, such a blanket order is not justified
at all. The order of the High Court must disclose reasons why it has
passed an ad-interim direction during the pendency of the proceedings
under Section 482 Cr.P.C. Such reasons, however brief must disclose
an application of mind.
46
The aforesaid is required to be considered from another angle
also. Granting of such blanket order would not only adversely affect the
investigation but would have far reaching implications for maintaining the
Rule of Law. Where the investigation is stayed for a long time, even if
the stay is ultimately vacated, the subsequent investigation may not be
very fruitful for the simple reason that the evidence may no longer be
available. Therefore, in case, the accused named in the FIR/complaint
apprehends his arrest, he has a remedy to apply for anticipatory bail
under Section 438 Cr.P.C. and on the conditions of grant of anticipatory
bail under Section 438 Cr.P.C being satisfied, he may be released on
anticipatory bail by the competent court. Therefore, it cannot be said
that the accused is remediless. It cannot be disputed that the
anticipatory bail under Section 438 Cr.P.C. can be granted on the
conditions prescribed under Section 438 Cr.P.C. are satisfied. At the
same time, it is to be noted that arrest is not a must whenever an FIR of
a cognizable offence is lodged. Still in case a person is apprehending
his arrest in connection with an FIR disclosing cognizable offence, as
observed hereinabove, he has a remedy to apply for anticipatory bail
under Section 438 Cr.P.C. As observed by this Court in the case of
Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC 453, though the
High Courts have very wide powers under Article 226, the powers under
Article 226 of the Constitution of India are to be exercised to prevent
47
miscarriage of justice and to prevent abuse of process of law by the
authorities indiscriminately making pre-arrest of the accused persons. It
is further observed that in entertaining such a petition under Article 226,
the High Court is supposed to balance the two interests. On the one
hand, the Court is to ensure that such a power under Article 226 is not to
be exercised liberally so as to convert it into Section 438 Cr.P.C.
proceedings. It is further observed that on the other hand whenever the
High Court finds that in a given case if the protection against pre-arrest
is not given, it would amount to gross miscarriage of justice and no case,
at all, is made for arrest pending trial, the High Court would be free to
grant the relief in the nature of anticipatory bail in exercise of its powers
under Article 226 of the Constitution of India, keeping in mind that this
power has to be exercised sparingly in those cases where it is absolutely
warranted and justified. However, such a blanket interim order of not to
arrest or “no coercive steps” cannot be passed mechanically and in a
routine manner.
17. So far as the order of not to arrest and/or “no coercive steps” till
the final report/chargesheet is filed and/or during the course of
investigation or not to arrest till the investigation is completed, passed
while dismissing the quashing petitions under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India and having opined that no
48
case is made out to quash the FIR/complaint is concerned, the same is
wholly impermissible.
18. This Court in the case of Habib Abdullah Jeelani (supra), as such,
deprecated such practice/orders passed by the High Courts, directing
police not to arrest, even while declining to interfere with the quashing
petition in exercise of powers under Section 482 Cr.P.C. In the aforesaid
case before this Court, the High Court dismissed the petition filed under
Section 482 Cr.P.C. for quashing the FIR. However, while dismissing the
quashing petition, the High Court directed the police not to arrest the
petitioners during the pendency of the investigation. While setting aside
such order, it is observed by this Court that such direction amounts to an
order under Section 438 Cr.P.C., albeit without satisfaction of the
conditions of the said provision and the same is legally unacceptable. In
the aforesaid decision, it is specifically observed and held by this Court
that “it is absolutely inconceivable and unthinkable to pass an order
directing the police not to arrest till the investigation is completed while
declining to interfere or expressing opinion that it is not appropriate to
stay the investigation”. It is further observed that this kind of order is
really inappropriate and unseemly and it has no sanction in law. It is
further observed that the courts should oust and obstruct unscrupulous
litigants from invoking the inherent jurisdiction of the Court on the drop of
49
a hat to file an application for quashing of launching an FIR or
investigation and then seek relief by an interim order. It is further
observed that it is the obligation of the court to keep such unprincipled
and unethical litigants at bay.
In the aforesaid decision, this Court has further deprecated the
orders passed by the High Courts, while dismissing the applications
under Section 482 Cr.P.C. to the effect that if the petitioner-accused
surrenders before the trial Magistrate, he shall be admitted to bail on
such terms and conditions as deemed fit and appropriate to be imposed
by the Magistrate concerned. It is observed that such orders are de
hors the powers conferred under Section 438 Cr.P.C. That thereafter,
this Court in paragraph 25 has observed as under:
“25. Having reminded the same, presently we can only say that the
types of orders like the present one, are totally unsustainable, for it is
contrary to the aforesaid settled principles and judicial precedents. It is
intellectual truancy to avoid the precedents and issue directions which
are not in consonance with law. It is the duty of a Judge to sustain the
judicial balance and not to think of an order which can cause trauma to
the process of adjudication. It should be borne in mid that the culture of
adjudication is stabilised when intellectual discipline is maintained and
further when such discipline constantly keeps guard on the mind.”
19. We are at pains to note that despite the law laid down by this Court
in the case of Habib Abdullah Jeelani (supra), deprecating such orders
passed by the High Courts of not to arrest during the pendency of the
investigation, even when the quashing petitions under Section 482
50
Cr.P.C. or Article 226 of the Constitution of India are dismissed, even
thereafter also, many High Courts are passing such orders. The law
declared/laid down by this Court is binding on all the High Courts and not
following the law laid down by this Court would have a very serious
implications in the administration of justice.
20. In the recent decision of this Court in the case of Ravuri Krishna
Murthy (supra), this bench set aside the similar order passed by the
Andhra Pradesh High Court of granting a blanket order of protection
from arrest, even after coming to the conclusion that no case for
quashing was established. The High Court while disposing of the
quashing petition and while refusing to quash the criminal proceedings in
exercise of powers under Section 482 Cr.P.C. directed to complete the
investigation into the crime without arresting the second petitioner – A2
and file a final report, if any, in accordance with law. The High Court also
further passed an order that the second petitioner – A2 to appear before
the investigating agency as and when required and cooperate with the
investigating agency. After considering the decision of this Court in the
case of Habib Abdullah Jeelani (supra), this Court set aside the order
passed by the High Court restraining the investigating officer from
arresting the second accused.
51
Thus, it has been found that despite absolute proposition of law
laid down by this Court in the case of Habib Abdullah Jeelani (supra) that
such a blanket order of not to arrest till the investigation is completed
and the final report is filed, passed while declining to quash the criminal
proceedings in exercise of powers under Section 482 Cr.P.C, as
observed hereinabove, the High Courts have continued to pass such
orders. Therefore, we again reiterate the law laid down by this Court in
the case of Habib Abdullah Jeelani (supra) and we direct all the High
Courts to scrupulously follow the law laid down by this Court in the case
of Habib Abdullah Jeelani (supra) and the law laid down by this Court in
the present case, which otherwise the High Courts are bound to follow.
We caution the High Courts again against passing such orders of not to
arrest or “no coercive steps to be taken” till the investigation is
completed and the final report is filed, while not entertaining quashing
petitions under Section 482 Cr.P.C. and/or Article 226 of the Constitution
of India.
21. Now so far as the legality of the impugned interim order passed by
the High Court directing the investigating agency/police “not to adopt any
coercive steps” against the accused is concerned, for the reasons stated
hereinbelow, the same is unsustainable:
52
i) that such a blanket interim order passed by the High Court affects
the powers of the investigating agency to investigate into the cognizable
offences, which otherwise is a statutory right/duty of the police under the
relevant provisions of the Cr.P.C.;
ii) that the interim order is a cryptic order;
iii) that no reasons whatsoever have been assigned by the High
Court, while passing such a blanket order of “no coercive steps to be
adopted” by the police;
iv) that it is not clear what the High Court meant by passing the order
of “not to adopt any coercive steps”, as it is clear from the impugned
interim order that it was brought to the notice of the High Court that so
far as the accused are concerned, they are already protected by the
interim protection granted by the learned Sessions Court, and therefore
there was no further reason and/or justification for the High Court to pass
such an interim order of “no coercive steps to be adopted”. If the High
Court meant by passing such an interim order of “no coercive steps”
directing the investigating agency/police not to further investigate, in that
case, such a blanket order without assigning any reasons whatsoever
and without even permitting the investigating agency to further
investigate into the allegations of the cognizable offence is otherwise
unsustainable. It has affected the right of the investigating agency to
53
investigate into the cognizable offences. While passing such a blanket
order, the High Court has not indicated any reasons.
21.1 As observed and held by this Court in the case of Special Director
v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 that though, while passing
interim orders, it is not necessary to elaborately deal with the merits, it is
certainly desirable and proper for the High Court to indicate the reasons
which have weighed with it in granting such an extraordinary relief in the
form of an interim protection.
21.2 In the case of Nitco Tiles Ltd. v. Gujarat Ceramic Floor Tiles Mfg.
Association, (2005) 12 SCC 454, it is observed and held by this Court
that when an interim order should, particularly when that order may be
impugned before the higher authority/Forum, contain reasons, however
brief, in support of the grant or refusal thereof. It is further observed that
in the absence of such reasons, it is virtually impossible for such higher
authority/Forum to determine what persuaded the grant or refusal of
relief.
21.3 In the case of Hindustan Times Limited v. Union of India, (1998) 2
SCC 242, while emphasising on giving reasons by the High Court, it is
observed that necessity to provide reasons, howsoever brief, in support
of the High Court’s conclusions is too obvious to be reiterated.
Obligation to give reasons introduces clarity and excludes or at any rate
54
minimises the changes of arbitrariness and the higher forum can test the
correctness of those reasons.
21.4 While considering the importance of the reasons to be given during
the decision-making process, in the case of Kranti Associates (P) Ltd. v.
Masood Ahmed, (2010) 9 SCC 496, in paragraph 47, this Court has
summarised as under:
“47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even
in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its
conclusions.
(c) Insistence on recording of reasons is meant to serve the wider
principle of justice that justice must not only be done it must also appear to
be done as well.
(d) Recording of reasons also operates as a valid restraint on any
possible arbitrary exercise of judicial and quasi-judicial or even
administrative power.
(e) Reasons reassure that discretion has been exercised by the
decision-maker on relevant grounds and by disregarding extraneous
considerations.
(f) Reasons have virtually become as indispensable a component of a
decision-making process as observing principles of natural justice by
judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law
and constitutional governance is in favour of reasoned decisions based on
relevant facts. This is virtually the lifeblood of judicial decision-making
justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as
different as the judges and authorities who deliver them. All these
decisions serve one common purpose which is to demonstrate by reason
that the relevant factors have been objectively considered. This is
important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability
and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about
his/her decision-making process then it is impossible to know whether the
55
person deciding is faithful to the doctrine of precedent or to principles of
incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct.
A pretence of reasons or “rubber-stamp reasons” is not to be equated with
a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of
restraint on abuse of judicial powers. Transparency in decision-making not
only makes the judges and decision-makers less prone to errors but also
makes them subject to broader scrutiny. (See David Shapiro in Defence of
Judicial Candor [(1987) 100 Harvard Law Review 731-37] .)
(n) Since the requirement to record reasons emanates from the broad
doctrine of fairness in decision-making, the said requirement is now
virtually a component of human rights and was considered part of
Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553]
EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ
405 (CA)] , wherein the Court referred to Article 6 of the European
Convention of Human Rights which requires,
“adequate and intelligent reasons must be given for judicial decisions”.
(o) In all common law jurisdictions judgments play a vital role in setting
up precedents for the future. Therefore, for development of law,
requirement of giving reasons for the decision is of the essence and is
virtually a part of “due process”.”
Therefore, even while passing such an interim order, in exceptional
cases with caution and circumspection, the High Court has to give brief
reasons why it is necessary 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/or under Article 226 of
the Constitution of India. Therefore, in the facts and circumstances of
the case, the High Court has committed a grave error of law and also of
facts in passing such an interim order of “no coercive steps to be
adopted” and the same deserves to be quashed and set aside.
Criminal Miscellaneous Petition No. 4961 of 2021
56
22. Criminal Miscellaneous Petition No. 4961 of 2021 has been
preferred by respondent nos. 2 to 4 herein – original accused under
Section 340 r/w Section 195 (1)(B), Cr.P.C. for initiating action against
the appellant. It is alleged that the appellant has suppressed the vital
documents/agreements and the facts and by suppressing the material
documents/agreements and the facts has obtained an interim order
dated 12.10.2020 from this Court, staying order dated 28.09.2020
passed by the High Court.
Number of submissions and counter submissions have been made
by the learned counsel for the respective parties. However, considering
the fact that the quashing petition is yet to be considered by the High
Court on merits, we do not propose to entertain the present application
and enter into the merits of the allegations in the present application.
However, it will sufficed to say that this Court has passed an interim
order dated 12.10.2020, staying order dated 28.09.2020 passed by the
High Court, by giving brief reasons and even if the
documents/agreements which are alleged to have been suppressed
would have been there, it would not have any bearing on the interim
order passed by this Court. What is weighed while passing interim order
dated 12.10.2020 is very clear from the interim order dated 12.10.2020.
57
Therefore, we close the criminal miscellaneous petition No. 4961/2021
and consequently the same stands disposed of.
Conclusions:
23. In view of the above and for the reasons stated above, our final
conclusions on the principal/core issue, whether the High Court would be
justified in passing an interim order of stay of investigation and/or “no
coercive steps to be adopted”, during the pendency of the quashing
petition under Section 482 Cr.P.C and/or under Article 226 of the
Constitution of India and in what circumstances and whether the High
Court would be justified in passing the order of not to arrest the accused
or “no coercive steps to be adopted” during the investigation or till the
final report/chargesheet is filed under Section 173 Cr.P.C., while
dismissing/disposing of/not entertaining/not quashing the criminal
proceedings/complaint/FIR in exercise of powers under Section 482
Cr.P.C. and/or under Article 226 of the Constitution of India, our final
conclusions are as under:
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i) Police has the statutory right and duty under the relevant
provisions of the Code of Criminal Procedure contained in Chapter
XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable
offences;
iii) It is only in cases where no cognizable offence or offence of
any kind is disclosed in the first information report that the Court
will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with
circumspection, as it has been observed, in the ‘rarest of rare
cases (not to be confused with the formation in the context of death
penalty).
v) While examining an FIR/complaint, quashing of which is
sought, the court cannot embark upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in
the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial
stage;
vii) Quashing of a complaint/FIR should be an exception rather
than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State operate
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in two specific spheres of activities and one ought not to tread over
the other sphere;
ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) Save in exceptional cases where non-interference would
result in miscarriage of justice, the Court and the judicial process
should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer
an arbitrary jurisdiction on the Court to act according to its whims
or caprice;
xii) The first information report is not an encyclopaedia which
must disclose all facts and details relating to the offence reported.
Therefore, when the investigation by the police is in progress, the
court should not go into the merits of the allegations in the FIR.
Police must be permitted to complete the investigation. It would be
premature to pronounce the conclusion based on hazy facts that
the complaint/FIR does not deserve to be investigated or that it
amounts to abuse of process of law. After investigation, if the
investigating officer finds that there is no substance in the
application made by the complainant, the investigating officer may
file an appropriate report/summary before the learned Magistrate
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which may be considered by the learned Magistrate in accordance
with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but
conferment of wide power requires the court to be more cautious. It
casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard
being had to the parameters of quashing and the self-restraint
imposed by law, more particularly the parameters laid down by this
Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has
the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged
accused and the court when it exercises the power under Section
482 Cr.P.C., only has to consider whether the allegations in the FIR
disclose commission of a cognizable offence or not. The court is
not required to consider on merits whether or not the merits of the
allegations make out a cognizable offence and the court has to
permit the investigating agency/police to investigate the allegations
in the FIR;
xvi) The aforesaid parameters would be applicable and/or the
aforesaid aspects are required to be considered by the High Court
while passing an interim order in a quashing petition in exercise of
powers under Section 482 Cr.P.C. and/or under Article 226 of the
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Constitution of India. However, an interim order of stay of
investigation during the pendency of the quashing petition can be
passed with circumspection. Such an interim order should not
require to be passed routinely, casually and/or mechanically.
Normally, when the investigation is in progress and the facts are
hazy and the entire evidence/material is not before the High Court,
the High Court should restrain itself from passing the interim order
of not to arrest or “no coercive steps to be adopted” and the
accused should be relegated to apply for anticipatory bail under
Section 438 Cr.P.C. before the competent court. The High Court
shall not and as such is not justified in passing the order of not to
arrest and/or “no coercive steps” either during the investigation or
till the investigation is completed and/or till the final
report/chargesheet is filed under Section 173 Cr.P.C., while
dismissing/disposing of the quashing petition under Section 482
Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the
opinion that an exceptional case is made out for grant of interim
stay of further investigation, after considering the broad
parameters while exercising the powers under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution of India referred to
hereinabove, the High Court has to give brief reasons why such an
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interim order is warranted and/or is required to be passed so that it
can demonstrate the application of mind by the Court and the
higher forum can consider what was weighed with the High Court
while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of “no
coercive steps to be adopted” within the aforesaid parameters, the
High Court must clarify what does it mean by “no coercive steps to
be adopted” as the term “no coercive steps to be adopted” can be
said to be too vague and/or broad which can be misunderstood
and/or misapplied.
24. In view of the above and for the reasons stated above, the present
appeal succeeds. The impugned interim order/direction contained in
clause (d) of the impugned interim order dated 28.09.2020 by which the
High Court has directed that “no coercive measures to be adopted”
against the petitioners (respondent nos. 2 to 4 herein) in respect of FIR
No. 367/2019 dated 19.09.2019, registered at Worli Police Station,
Mumbai, Maharashtra (subsequently transferred to Economic Offence
Wing, Unit IX, Mumbai, renumbered as C.R. No. 82/2019) is hereby
quashed and set aside. However, it is made clear that we have not
expressed anything on the merits of the case, more particularly the
allegations in the FIR and the High Court to consider the quashing
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petition in accordance with law and on its own merits and considering
the afore-stated observations made by this Court in the present
judgment.
25. Having regard to the fact that despite the law laid down by this
Court in the case of Habib Abdullah Jeelani (supra) and other decisions,
referred to hereinabove, some High Courts have continued to pass such
interim orders, we direct the Registry to forward a copy of this judgment
to all the High Courts to be placed before Hon’ble the Chief Justice to
circulate to all the Judges of the High Courts.
……………………………………..J.
[Dr. Dhananjaya Y. Chandrachud]
…………………………………….J.
[M.R. Shah]
New Delhi; …………………………………….J.
April 13, 2021. [Sanjiv Khanna]
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