NEEHARIKA INFRASTRUCTURE PVT. LTD. versus STATE OF MAHARASHTRA AND OTHERS
[2021] 4 S.C.R. 1044, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
M/S NEEHARIKA INFRASTRUCTURE PVT. LTD.
v.
STATE OF MAHARASHTRA AND OTHERS
(Criminal Appeal No. 330 of 2021)
APRIL 13, 2021
[DR. DHANANJAYA Y. CHANDRACHUD,
M. R. SHAH AND SANJIV KHANNA, JJ.]
Code of Criminal Procedure, 1973 – s.482 – Constitution of
India – Article 226 – Quashing of FIR – Blanket interim orders of
stay of investigation and/or “no coercive steps to be adopted” during
pendency of quashing proceedings and/or u/Art.226 –
Impermissibility of – Held: Police has the statutory right and duty
to investigate into a cognizable offence – Save in exceptional cases,
the Court should not interfere at the stage of investigation of offences
– When the investigation is in progress and the facts are hazy, the
High Court should restrain itself from passing the interim order of
not to arrest or “no coercive steps to be adopted” – FIR is not an
encyclopaedia disclosing all facts and details of the offence –
Therefore, when the investigation 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 – Extraordinary and inherent
powers of the Court do not confer an arbitrary jurisdiction on the
Court to act according to its whims or caprice – Power of quashing
should be exercised sparingly with circumspection in the ‘rarest of
rare cases’ (not to be confused with the formation in the context of
death penalty) – 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, it has to give brief reasons
why such an order is warranted – In the present case, impugned
interim order passed by the High Court directing “no coercive
measures to be adopted” against the respondent nos. 2 to 4-accused,
set aside – Penal Code, 1860 – ss.406, 420, 465, 468, 471, 120B.
Code of Criminal Procedure, 1973 – s.482 – Constitution of
India – Article 226 – Quashing petitions u/s.482 or Article 226
dismissed – Orders passed by High Courts of not to arrest during
the pendency of the investigation – Held: Despite the law laid down
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by Supreme Court deprecating such orders, many High Courts are
passing such orders – Law declared by Supreme Court is binding
on all the High Courts – High Courts cautioned against passing
such orders.
Code of Criminal Procedure, 1973 – s.340 r/w s.195 (1)(B) –
Petition under, filed by respondent nos.2 to 4-accused alleging that
the appellant suppressed vital agreements, facts and obtained interim
order by Supreme Court which stayed the impugned order passed
by High Court – Held: Interim order staying the impugned order
was passed by giving reasons – Further, even if the documents/
agreements alleged to have been suppressed would have been there,
it would not have any bearing on the interim order passed.
Allowing the appeal, the Court
HELD: 1.1 Before passing an interim order of staying
further investigation pending the quashing petition under Section
482 Cr.P.C. and/or Article 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. 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. The High Court must
appreciate that speedy investigation is the requirement in the
criminal administration of justice. [Paras 11, 12][1085-C-H; 1086-
A]
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SUPREME COURT REPORTS
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1.2 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. 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.
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.
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 has a remedy
to apply for anticipatory bail. 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
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quashing petitions under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India and having opined that no case is
made out to quash the FIR/complaint is concerned, the same is
wholly impermissible. [Paras 15-17][1087-E-G; 1088-B-G; 1089-
D]
Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC
453 : [2014] 1 SCR 465 – relied on.
1.3 Despite the law laid down by this Court 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 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 very serious
implications in the administration of justice. Therefore, the law
laid down by this Court in the case of Habib Abdullah Jeelani is
again reiterated and all the High Courts are directed to
scrupulously follow the law laid down and the law laid down by
this Court in the present case, which otherwise the High Courts
are bound to follow. The High Courts are cautioned 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. [Paras 19,
20][1090-F-G; 1091-D-E]
State of Telangana v. Habib Abdullah Jeelani, (2017) 2
SCC 779 : [2017] 1 SCR 141; Ravuri Krishna Murthy
v. The State of Telangana and Others (Decision of
Supreme Court dtd. 05.03.2021 in Criminal Appeal
Nos. 274-275 of 2021) – relied on.
1.4 The impugned interim order passed by the High Court
directing the investigating agency/police “not to adopt any
coercive steps” against the accused is unsustainable. It 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” by the police. It is not clear what the High Court
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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 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 investigate into the
cognizable offences. [Para 21][1091-F-H; 1092-A-D]
1.5 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 committed
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. [Para 21.4][1094-G-H; 1095-A-B]
Kranti Associates (P) Ltd. v. Masood Ahmed, (2010) 9
SCC 496 : [2010] 10 SCR 1070 – relied on.
1.6 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.
Therefore, the criminal miscellaneous petition No. 4961/2021 is
closed. [Para 22][1095-E-F]
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1.7 Conclusions:
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 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
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
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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 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 and Bhajan Lal,
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 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
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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 herein, the High Court has to give brief reasons 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.
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. [Para 23][1096-B-H;
1097-A-H; 1098-A-H; 1099-A]
R.P. Kapur v. State of Punjab AIR 1960 SC 866; State
of Haryana v. Bhajan Lal (1992) 1 Suppl. SCC 335 –
relied on.
1.8 The impugned interim order/direction contained in
clause (d) of the impugned interim order 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 quashed and set aside. [Para 24][1099-B-C]
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Kurukshetra University v. State of Haryana (1977) 4
SCC 451; State of A.P. v. Golconda Linga Swamy
(2004) 6 SCC 522 : [2004] 3  Suppl. SCR 147; Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque
(2005) 1 SCC 122 : [2004] 5 Suppl. SCR 790;
Sanapareday Maheedhar Seshagiri v. State of Andhra
Pradesh (2007) 13 SCC 165 : [2007] 13 SCR 478;
State of Maharashtra v. Arun Gulab Gawali (2010) 9
SCC 701 : [2010] 10 SCR 683; State of Orissa v. Ujjal
Kumar Burdhan (2012) 4 SCC 547 : [2012] 4 SCC
547; Imtiyaz Ahmad v. State of Uttar Pradesh, (2012) 2
SCC 688 : [2012] 1 SCR 779; Asian Resurfacing of
Road Agency Private Limited v. Central Bureau of
Investigation, (2018) 16 SCC 299 : [2018] 2 SCR 1045;
State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554 :
[1980] 2 SCR 16; S.M. Sharma v. Bipen Kumar Tiwari,
(1970) 1 SCC 653 : [1970] 3 SCR 946 ; Union of India
v. Prakash P. Hinduja, (2003) 6 SCC 195 : [2003] 1
Suppl. SCR 307; Satvinder Kaur v. State (Govt. of NCT
of Delhi),(1999) 8 SCC 728 : [1999] 3 Suppl. SCR
348; Supdt. of Police, CBI v. Tapan Kumar Singh,
(2003) 6 SCC 175 : [2003] 3 SCR 485; State of U.P. v.
Naresh, (2011) 4 SCC 324 : [2011] 4 SCR 1176;
P. Chidambaram v. Directorate of Enforcement, (2019)
9 SCC 24 : [2019] 12 SCR 172; Skoda Auto
Volkswagen  India Private Limited v. State of Uttar
Pradesh, (2020) SCC OnLine SC 958; Special Director
v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 : [2004]
1 SCR 399; Nitco Tiles Ltd. v.
Gujarat Ceramic Floor
Tiles Mfg. Association, (2005) 12 SCC 454; Hindustan
Times Limited v. Union of India, (1998) 2 SCC 242 :
[1998] 1 SCR 4 – relied on.
State of Andhra Pradesh v. Bajjoori Kanthaiah (2009)
1 SCC 114 : [2008] 14 SCR 841; State of Karnataka
v. L. Muniswamy, (1977) 2 SCC 699 : [1977] 3 SCR
113; Rajiv Thapar V. Madan Lal Kapoor, (2013) 3 SCC
330 : [2013] 3 SCR 52; State of U.P. v. Mohammad
Naim AIR 1964 SC 703; State of Andhra Pradesh v.
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Gourishetty Mahesh (2010) 11 SCC 226 : [2010] 8
SCR 423; Vijeta Gajra v. State (NCT of Delhi), (2010)
11 SCC 618 : [2010] 7 SCR 1150; State of
Maharashtra v. Sanjay Dalmia, (2015) 17 SCC 539;
Amish Devgan v. Union of India, (2021) 1 SCC 1;
Decision of the Delhi High Court dtd.22.06.2020 in
Ganga Ram Hospital v. State [CRL.M.A. No. 7661/
2020 in W.P. (CRL.) No. 921/2020]; Noor Taki Alias
Mammu v. State of Rajasthan AIR 1987 RAJ 52;
Madhukar Purshottam Mondkar v. Talab Haji Hussain
AIR 1958 BOM 406 – referred to.
King-Emperor v. Khwaja Nazir Ahmad AIR 1945 PC
18 – referred to.
Case Law Reference
[2017] 1 SCR 141
relied on
Para 3.6
[2004] 3 Suppl. SCR 147
relied on
Para 3.11
[2004] 5 Suppl. SCR 790
relied on
Para 3.11
[2007] 13 SCR 478
relied on
Para 3.11
[2008] 14 SCR 841
referred to
Para 3.11
[2010] 10 SCR 683
relied on
Para 3.11
[2012] 4 SCC 547
relied on
Para 3.11
[2012] 1 SCR 779
relied on
Para 3.13
[2018] 2 SCR 1045
relied on
Para 3.15
[1977] 3 SCR 113
referred to
Para 4.3
[2013] 3 SCR 52
referred to
Para 4.8
[2010] 8 SCR 423
referred to
Para 4.9
[2010] 7 SCR 1150
referred to
Para 4.9
[1980] 2 SCR 16
relied on
Para 9.1
[1970] 3 SCR 946
relied on
Para 9.1
[2003] 1 Suppl. SCR 307
relied on
Para 9.2
[1999] 3 Suppl. SCR 348
relied on
Para 9.5
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[2003] 3 SCR 485
relied on
Para 9.6
[2011] 4 SCR 1176
relied on
Para 9.6
[2019] 12 SCR 172
relied on
Para 9.8
2014] 1 SCR 465
relied on
Para 16
[2004] 1 SCR 399
relied on
Para 21.1
[1998] 1 SCR 4
relied on
Para 21.3
[2010] 10 SCR 1070
relied on
Para 21.4
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
330 of 2021.
From the Judgment and Order dated 28.09.2020 of the High Court
of Judicature at Bombay in Writ Petition (ST) No. 2306 of 2020.
K.V. Vishwanathan, Sr. Adv., Arunabh Chowdhury, Vaibhav
Tomar, Abhay Jadeja, Ms. Barnalli Chowdhury, Varun Satiya, Dechan
W. Lachungpa, Mrs. Pragya Baghel, Advs. for the Appellant.
Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Diljeet
Ahluwalia, Malak Manish Bhatt, Ms. Neeha Nagpal, Advs. for the
Respondents.
The Judgment of the Court was delivered by
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”
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
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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.  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
therefore the Division Bench clarified that the learned Sessions Court
shall decide the anticipatory bail application on its own merits.
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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
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,
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the original accused were not co-operating with the investigation after
having obtained the interim protection from arrest.
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
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.
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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 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 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
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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 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,
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; 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 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.
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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).
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 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
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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.
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 Court would
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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 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);
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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
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 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
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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
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 looking at the complaint or the
first information report to decide whether the offence alleged
is disclosed or not.
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(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.
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:
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“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 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:
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“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 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
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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 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
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(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
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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 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:
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“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, 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/
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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 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.
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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.
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
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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 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 the Privy Council in the case of Khawaja Nazir Ahmad
(supra), has observed in paragraphs 25 and 26 as under:
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“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
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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.”
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
observed that in a routine case where information of an offence or
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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 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
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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 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
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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 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
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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 investigating agency to investigate the cognizable offence, has
observed in paragraphs 61, 64 to 67 as under:
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“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 non-
compliance 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)
“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….”
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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 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
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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;
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;
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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,
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;
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
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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
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 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.
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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 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
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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.
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.
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
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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.
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 miscarriage of justice
and to prevent abuse of process of law by the authorities indiscriminately
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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
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
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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 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
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
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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.
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:
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;
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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 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 minimises the changes of
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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
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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 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
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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
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. 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
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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:
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
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
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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 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;
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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 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 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
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“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 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.
Divya Pandey
Appeal allowed.
M/S NEEHARIKA INFRASTRUCTURE
PVT. LTD. v. STATE OF
MAHARASHTRA AND OTHERS [M.R. SHAH, J.]