Sustaining a balance between (a) rights of genuine complainants, First Information Reports (FIR) disclosing a cognizable offence and statutory right/duty of the investigation agency to investigate and (b) innocent persons against whom criminal proceedings have been initiated which may be abuse of process, has always been the key determinant while deciding a quashing petition under Section 482 of Criminal Procedure Code, 1973 (CrPC). The core issue which emerged in the criminal appeal1 before the Supreme Court was to examine the circumstances when a High Court would be justified in passing interim orders either staying the further investigation or interim orders in the nature of "no coercive steps" and/ or not to arrest the accused either pending investigation by the police or during the pendency of a quashing petition or while dismissing/not quashing the criminal proceedings/ FIRs/ complaints under Section 482 CrPC.
The facts of the criminal appeal compelled the Supreme Court to consider it necessary to rehash the leading precedents on this issue, demystify and lay down elaborate guidelines and caution the High Courts against passing such interim orders.
- Put shortly, the criminal appeal arises out of a challenge to an order of the Bombay High Court, wherein, in a petition for quashing of FIR under Section 482 CrPC, the High Court had directed that 'no coercive measures shall be adopted' against the accused. The appellant/original complainant had lodged an FIR against the respondents for offences under Sections 406, 420, 465, 468, 471 and 120B of the Indian Penal Code, 1860 (IPC). Notably, the accused, apprehending arrest, prior to approaching the High Court, had file an application for anticipatory bail and was granted interim protection from arrest by the Sessions Court which was further extended from time to time.
II. Arguments Challenging the High Court Order
- A blanket direction restraining the investigating officer from taking coercive measures was not warranted. The accused was already granted interim protection from arrest in an anticipatory bail application. The High Court failed to assign any reasons while passing an interim order of "no coercive measures to be adopted/taken" against the original accused.
- The High Court ought to have appreciated that the original accused are facing very serious charges under the IPC and by issuing such a blanket direction, the very valuable right of the investigating officer to investigate the offences has been taken away.
- Inherent power in a matter of quashing of FIR has to be exercised sparingly and with caution and only when such exercise is justified by the test specifically laid down in the provision itself.
- When an accused is apprehending arrest, a remedy is available to him to file an anticipatory bail application under Section 438 CrPC (Direction to grant of bail apprehending arrest). The same can be granted if the conditions of the said provision are satisfied. Such a blanket order of no coercive steps without imposing any condition whatsoever and without satisfaction of the conditions of Section 438 CrPC is not permissible.
- Interim orders cannot be passed mechanically and/or without assigning any reasons. While granting such a protection, even the High Court has to give some brief reasons as to why stay of investigation and/or such an order of "no coercive steps" is warranted. There must be a reflection of application of mind in doing so.
- In many cases, High Court while not entertaining the quashing petitions under Section 482 CrPC 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 final report is filed under Section 173 CrPC. Such is absolutely impermissible and such an order of not to arrest for a particular period is beyond the scope and ambit of Section 482 CrPC.
III. Arguments In Favour Of The High Court Order
- In facts and circumstances of the case, the dispute can be said to be a civil dispute and hence, no error has been committed by the High Court in passing such an order of "no coercive steps".
- The High Court may exercise its inherent powers under Section 482 CrPC 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. If there is a prima facie view that further investigation or proceedings pursuant to the FIR is likely to cause unwarranted and unjustified harassment, the Court may grant an order of "no coercive measures" in favour of the accused.
- Powers to grant interim stay/interim relief in a quashing petition 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. An interim injunction restraining the police from investigation consequent to the FIR can be justified on the touchstone of balance of convenience, irreparable loss and a prima facie case.
- The authority of the High Court to order stay of investigation pursuant to lodging of the FIR or trial in deserving cases is unquestionable. However, as a matter of fact, notably, it was conceded that wherever stay is granted, a speaking order must be passed showing that the case is of an exceptional nature.
- Relying on Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330, it was argued that while exercising the powers under Section 482 CrPC, the High Court is required to undertake step-wise enquiry and if the answer to all the steps is in the affirmative, the High Court would be justified in quashing the criminal proceedings. The grounds on which the criminal proceedings can be quashed in exercise of powers under Section 482 CrPC can be made applicable while granting stay of further investigation, pending the quashing petition under Section 482 CrPC.
IV. Observations And Analysis
- While considering the core issue whether an interim protection can be granted in a quashing petition, the Supreme Court, at great length, referred to an array of leading precedents on the parameters of exercise of inherent powers under Section 482 CrPC. The precedents referred in the decision are being assembled herein together for the ease of convenience. These are King Emperor 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; Sanapareday Maheedhar Seshagiri v. State of Andhra Pradesh (2007) 13 SCC 165; State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335; State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554; Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195; State of Orissa v. Ujjal Kumar Burdhan (2012) 4 SCC 547; Supdt. of Police, CBI v. Tapan Kumar Singh, (2003)6 SCC 175; State of U.P. v. Naresh, (2011) 4 SCC 324; Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195; Skoda Auto Volkswagen India Private Limited v. State of Uttar Pradesh, 2020 SCC OnLine SC 958.
- The Supreme Court deduced the following principles which emerge from the above referred decisions:
- Police has the statutory right and duty under Chapter XIV of CrPC to investigate into cognizable offences;
- Courts would not thwart any investigation into cognizable offences. However, in cases where no cognizable offence or offence of any kind is disclosed in the FIR, the Court will not permit an investigation to go on;
- The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. The rarest of rare cases standard in a quashing petition is not to be confused with the norm which has been formulated in the context of the death penalty;
- 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;
- Criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
- 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, recognised to secure the ends of justice or prevent abuse of process;
- The functions of the judiciary and the police are complementary, not overlapping; 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;
- Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
- An FIR 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;
- The power under Section 482 CrPC is very wide, but conferment of wide power requires the court to be cautious;
- The Court, if it thinks fit, keeping in mind the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by the Supreme Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
- The court while exercising its power under Section 482 CrPC for quashing of an FIR, 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.
- Coming to the core question whether a stay of further investigation pending proceedings under Section 482 CrPC is justified, it was observed at the very onset that prior to passing any such interim order, the very parameters for quashing of proceedings under Section 482 CrPC has to be applied.
- In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute to pressurise the accused. Similarly, a complaint 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. Only in such exceptional cases with circumspection, the High Court may stay the further investigation. If the facts are hazy and the investigation has just begun, the High Court must permit the investigating agency to proceed further with the investigation. Even in such a case the High Court has to assign brief reasons as to why at this stage the further investigation is required to be stayed.
- Regarding interlocutory stay orders / stay of criminal proceedings, the decision in Asian Resurfacing of Road Agency Private Limited v. Central Bureau of Investigation, (2018) 16 SCC 299 was referred wherein such stay orders / stay of criminal proceedings were deprecated by the Supreme Court. The Supreme Court observed that the stay should not be considered as an incentive to cause delay in the proceedings. An order granting stay or extending it must be a speaking order and not to operate long and the same has to show the exceptional nature of the case.
V. Orders In The Nature Of Stay of Arrest / No Coercive Steps Passed By High Courts
- While discussing the lis, the Supreme Court took a notice that many orders are passed by the High Courts granting interim orders of stay of arrest and/or "no coercive steps to be taken against the accused". The Supreme Court has further taken note of orders passed by High Courts, while dismissing quashing petitions, of not to arrest the accused during the investigation or till the charge sheet/final report under Section 173 CrPC is filed. In this regard, the Court observed that passing such type of blanket interim orders without assigning reasons is unjustified as it would hamper the investigation and may affect the statutory right/duty of the police to investigate cognizable offences. The order of the High Court must disclose reasons for passing an ad-interim direction during the pendency of the proceedings and such reasons, however brief, must disclose an application of mind.
- Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. The Supreme Court was of the view that 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.
- An accused apprehending arrest is not remediless. He/she has a remedy to apply for anticipatory bail before the competent court. At the same time, arrest is not compulsory whenever an FIR of a cognizable offence is lodged. At this juncture, a very significant observation has been rendered by the Supreme Court that a power under Article 226 is not to be exercised liberally so as to convert it into a Section 438 CrPC proceeding.
- The Supreme Court observed that the High Court can grant relief in the nature of anticipatory bail under Article 226 in a case when the High Court finds that if the protection against pre-arrest is not granted, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial. However, such order has to be passed keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. The Court re-iterated such a blanket interim order of not to arrest or "no coercive steps" cannot be passed mechanically and in a routine manner.
- The Supreme Court strongly relied on State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779 wherein the Supreme Court has 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 CrPC. It was observed that such orders are really inappropriate and unseemly and it has no sanction in law.
- The Supreme Court noted that despite the law laid down in Habib Abdullah Jeelani (supra), many High Courts are passing such orders. The Court held that 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 very serious implications in the administration of justice. The Supreme Court directed all the High Courts to scrupulously follow the law laid in Habib Abdullah Jeelani (supra) and the law laid down in the case in hand. The Supreme Court cautioned the High Courts 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 CrPC and/or Article 226 of the Constitution of India.
- With respect to the case in hand, following reasons were provided by the Supreme Court as to why the interim orders cannot be sustainable:
- 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 under the relevant provisions of the CrPC;
- The interim order is a cryptic order;
- No reasons whatsoever have been assigned by the High Court, while passing such a blanket order of "no coercive steps to be adopted"; and
- It is not clear what the High Court meant by the order of "not to adopt any coercive steps", as the accused was already protected by interim protection granted in the anticipatory bail application.
Thus, the Supreme Court was of the view that 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.
- As in way of conclusion, besides reiterating the legal principles (as stated in paragraph 14 above), the Supreme Court observed that an interim order of stay of investigation during the pendency of the quashing petition can be passed with great circumspection. Such an interim order should not be passed routinely, casually and/or mechanically. However, the Supreme Court has observed that High Court shall not pass any such interim orders while dismissing the quashing petition under Section 482 CrPC.
- 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, brief reasons have to be provided as to why such an 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.
- Whenever an interim order is passed by the High Court of "no coercive steps to be adopted", it must be clarified as to what does it mean by "no coercive steps to be adopted" as the said term is vague and/or broad which can be misunderstood and/or misapplied.
It has always been the trite legal position that powers under Section 482 CrPC has to exercised sparingly and with great circumspection. Although, this decision does not effectively impose a complete prohibition against passing interim orders by High Courts during the pendency of a petition for quashing of criminal proceedings/ complaints/ FIRs, the same can however be passed with reasoned orders and with proper justification to do so. Suffice to add, this decision may now encourage expedited disposal of a petition for quashing an FIR / complaint / criminal proceeding, with or without granting any interim relief(s).
1. M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors – Criminal Appeal No. 330 of 2021, Judgment dated 13 April 2021
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