The Hon’ble Apex Court recently in M/s Neeharika Infrastructure Pvt. Ltd. Versus State of Maharashtra, Criminal Appeal No. 330 of 2021, has come down heavily on High Courts across the country and deprecated their practices in casually granting interim reliefs to the Accused in Petitions filed for quashing of an FIR under Section 482 of the Code of Criminal Procedure, 1973 and Article 226 of the Constitution of India. This Appeal preferred by the original Complainant arose from an interim order passed by the Hon’ble Bombay High Court in a Petition with a prayer to quash the criminal proceedings arising out of an FIR, wherein the High Court had directed that “no coercive measures shall be adopted” against the original accused in respect of the said FIR.

The three judge bench held that before passing an interim order of staying further investigation pending a quashing petition, the High Court has to apply the very parameters which are required to be considered while quashing the proceedings in exercise of its inherent jurisdiction.

The bench acknowledged that there needs to be a balance 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 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 must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty. The bench further observed that the power to grant stay is coupled with accountability and the High Court has to assign brief reasons why at that stage the further investigation is required to be stayed which will reflect the application of mind by the Court to the relevant facts as speedy investigation is the requirement in the criminal administration of justice.

It was emphasized and rightly so, that High Courts should be slow in interfering in the criminal proceedings at the initial stage, where a quashing petition is 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 the power under Section 482 of the Code of Criminal Procedure is wide, but as observed by the Hon’ble Apex Court time and again in a catena of decisions, conferment of wide power requires the Court to be more cautious and it casts an onerous and more diligent duty on the Court. Interest of justice should be top priority. 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.

The bench further went on to deprecate the practice of High Courts in passing orders while dismissing the quashing petitions of not to arrest the accused during the investigation or till the chargesheet is filed. Upholding the statutory right and the duty of the police to investigate into a cognizable offence and collect the evidence during the course of investigation, the court held that there may be a requirement of custodial investigation for which the accused is required to be in police custody and therefore, passing such type of blanket orders without assigning reasons is not justified at all.

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 an anticipatory bail proceeding, on the other, if 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. The Bench held it impermissible to pass an order of not to arrest and/or “no coercive steps” till chargesheet is filed, while dismissing a quashing petition on the ground that no case is made out to quash the FIR/complaint.

To oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court at the drop of a hat by filing a petition for quashing of an FIR/complaint and then seek relief by an interim order, the Hon’ble Apex Court reiterated and emphasized the decision of the Privy Council in the case of King- Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 and one once again laid down the following principles of law to be followed when quashing an FIR/Complaint and granting any relief during the pendency of such petitions:

1. 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;
2. Courts would not thwart any investigation into the cognizable offences;
3. 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;
4. 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).
5. 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;
6. Criminal proceedings ought not to be scuttled at the initial stage;
7. Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
8. 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;
9. The functions of the judiciary and the police are complementary, not overlapping;
10. 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;
11. Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
12. 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;
13. The power under Section 482 of the Code of Criminal Procedure 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;
14. 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;
15. When a prayer for quashing the FIR is made by the alleged accused and the Court when it exercises the power under Section 482 of the Code of Criminal Procedure, 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;
16. 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 of the Code of Criminal Procedure 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 of the Code of Criminal Procedure 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.
17. 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.
18. 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.

In order to emphasize the obligation of the Court to keep unprincipled and unethical litigants at bay and to protect the rights and duties of investigating officers while keeping a balance of quashing false and frivolous cases, the Hon’ble Apex Court directed the Registry to forward a copy of this judgment to all the Hon’ble Chief Justices to circulate to all the Judges of the High Courts.

By - Lakshmi Raman