Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

In an order, the Bombay High Court has passed an interim order directing that "no coercive measures shall be adopted against the petitioners in respect of the said FIR"1.

The principal issue arising out of the order passed by the Bombay High Court was, whether a 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?

Further, the Court also dwelled on the possible impact of granting bail on the investigative procedure of the Police and if it should be allowed at such an early stage.

Before answering the aforementioned, the Supreme Court delved into the powers of the High Court to quash proceedings, stating that the purpose of doing so shall be to prevent the abuse of due process and that the High Court shall not interfere at the interlocutory stage. The Supreme Court went on to lay down 3 exceptions to said limitation of interference, being:

  1. Where there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged;
  2. Where the allegations in the FIR or the complaint, do not constitute the offence alleged (even if they are accepted in entirety);
  3. Where the allegations made 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.

The Supreme Court referred to its previous judgement in State of Haryana v. Bhajan Lal2 in which it said 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."

Similarly, in the Golconda Linga Swamy case3 the Court observed the following: "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."

Thus, in the view of the Supreme Court, there exists a statutory right of police to investigate an alleged cognizable crime without requiring any authority from the judicial authorities. Further, any interference by the Courts in the investigation (while exercise their inherent jurisdiction) would be circumspect; and that the functions of the judiciary and the police are complementary to each other "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."

From the outset, the Supreme Court was of the opinion that the order passed by the Bombay High Court can significantly damage the investigative powers of the police.

Referring to the recent judgement of the Volkswagen India Private Limited v. State of Uttar Pradesh4 in which it was 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."

Reading the aforementioned together gives rise to the following principles of law:

  1. Police has a statutory right to investigate cognizable offences;
  2. Courts would not thwart any investigation into the cognizable offences;
  3. If no such offence has been disclosed in a complaint or FIR, then the Court will not permit an investigation to go on;
  4. Quashing should be done so sparingly and in the 'rarest of rare' cases;
  5. While undertaking quashing proceedings, the Court cannot delve into the genuineness of the allegations made in the FIR/complaint;
  6. Criminal proceedings ought not to be scuttled at the initial stage;
  7. Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
  8. 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;
  9. The functions of the judiciary and the police are complementary to each other;
  10. The Court and the judicial process should not interfere at the stage of investigation of offences unless doing so will result in a miscarriage of justice;
  11. Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims;
  12. The Courts shall be cautious while exercising the power laid down under Section 482 Cr.P.C;
  13. 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.

The Court observed that 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 and that "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."

It is only in exceptional cases and where non-interference would result into miscarriage of justice where the High Court may quash an FIR/complaint/criminal proceedings or stay further investigations by exercising its inherent powers under Section 482 of the Code or Article 226 of the Constitution. However, the High Court should be slow in interfering the criminal proceedings at the initial stage, and shall be more cautious as it casts an onerous and more diligent duty on the court.

Also, while passing such an order, 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 must display an application of mind and shall not be whimsical or capricious and that it shall not be passed mechanically or in a routine manner.

"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."

Referring to the Habib Abdullah5 case, the Supreme Court reiterated that "...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."

Finally, the Court listed the following reasons as to the legality of the impugned order of Bombay High Court, stating that it is unsustainable holding:

  1. That such blanked order affects the statutory right of the investigative agency to investigate into alleged offences;
  2. That the interim order so passed is cryptic in nature;
  3. That the High Court did not assign any reasons while passing an order of "no coercive action to be taken; and 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."

The Supreme Court, summing up the case in its entirety, concluded saying "...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."

Footnotes

1. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, (2021) LL SC 211.

2. State of Haryana v. Bhajan Lal, (1992) Supp 1 SCC 335.

3. State of A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522.

4. Volkswagen India Private Limited v. State of Uttar Pradesh, (2020) SCC OnLine SC 958.

5. State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779.

By:

Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: vpdalmia@vaishlaw.com
Mobile No.: +91 9810081079
Linkedin: https://www.linkedin.com/in/vpdalmia/
Facebook: https://www.facebook.com/vpdalmia
Twitter: @vpdalmia

And

Sarthak Saxena

saxenasarthak@outlook.com

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