Supreme Court on Grant of Interim Protection in S.482 Cases

 

INTRODUCTION

 

On today’s show, we will discuss another judicial pronouncement by the Hon’ble Supreme Court of India, namely, Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others, 2021 SCC OnLine SC 315, wherein certain important questions relating to a Petition under Section 482 of the Code of Criminal Procedure (in short, “CrPC”) for quashing of FIR or Criminal Proceedings, were discussed.

 

Section 482 of CrPC provides for the inherent powers of the High Courts and states that the High Courts have the power to make such orders “as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

 

FACTUAL BACKGROUND

 

In the present case, an Interim Order was passed in a Section 482 Petition by the Bombay High Court directing that “no coercive measures shall be adopted” against the accused in respect of the concerned FIR. Such Interim Order was challenged before the Supreme Court in the present case and the Supreme Court deprecated the practice of granting blanket Interim Orders in S. 482 proceedings thwarting the undergoing criminal investigation. Thus, it passed certain guidelines and directions that are to be followed in all the cases wherein the High Courts exercise jurisdiction under Section 482 of CrPC or Article 226 of the Constitution of India (Writ Jurisdiction).

 

ISSUES INVOLVED

 

Let us discuss the core issues involved in the present case. The facts of the case are not important and hence, we are not discussing them. The core issues are

 

Whether the High Court would be justified in passing an interim order of stay of investigation or “no coercive steps to be adopted”, during the pendency of a quashing petition under Section 482 Cr.P.C or under Article 226 of the Constitution of India and in what circumstances?

 

And the second core issue was: -

 

Whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings, in exercise of powers under Section 482 Cr.P.C. or under Article 226 of the Constitution of India?

 

DIRECTIONS AND GUIDELINES BY THE COURT

 

Now, let us discuss the directions of the Supreme Court in the present case. They are

 

Firstly, it was observed that the Police has the statutory right and duty under the Code of Criminal Procedure to investigate into a cognizable offence.

 

Secondly, the Court mandated that an investigation into cognizable offences must not be thwarted in Section 482 Petitions and only where no cognizable offence is disclosed in the FIR that the Court can quash the FIR or criminal proceedings.

 

Thirdly, it was opined that “the power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases.”

 

Fourthly, it was directed that “while examining an FIR or a 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” and the criminal proceedings must not be quashed at the initial stage.

 

Fifthly, the Supreme Court observed that the Courts should not usurp the jurisdiction of the Police and rather they should complement, not overlap, the functions of the police.

 

Sixthly, it was laid down that the Judicial Process may interfere at the stage of investigation of offences where the same would result in marriage of justice and such power must not be exercised whimsically.

 

Seventhly, it was directed that when a Court exercises the power under Section 482 Cr.P.C., it 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.”

 

Eighthly, the Supreme Court noted that an interim order of stay of investigation during the pendency of the quashing petition should not be passed routinely, casually or mechanically. Without having sufficient material available on record, in 482 Petitions or Article 226 Petitions, the High Courts shall restrain themselves 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.

 

Ninthly, it was further laid down that in cases where the High Court does form an opinion that an exceptional case is made out for grant of interim stay of further investigation, it shall provide brief reasons in the said Interim Order demonstrating application of mind and in case, the Interim Order is of the nature “no coercive steps to be adopted”, then the High Court shall clarify the contours and the meaning of “no coercive steps to be adopted” since such term is broad and vague susceptible to misinterpretation.

 

And lastly, the Court observed that an FIR is not an encyclopaedia that must disclose all facts and details about the offence and often, it is premature to conclude based on such hazy facts that the FIR/Complaint does not deserve to be investigated. In any case, when the investigation concludes, there are other remedies available with the accused to get exonerated.

 

Therefore, in the present case, the Interim Order that directed that “no coercive measures to be adopted” in the 482 Petition, was set aside by the Supreme Court. This was all about what was held in this case.

 

CONCLUDING REMARKS

 

So, what are my concluding remarks?

 

Every few months or so, a case comes up before the Hon’ble Supreme Court wherein it is constrained to observe that the powers under Section 482 of CrPC must not be exercised lavishly and without application of mind. The legislature has enacted Section 482 to provide powers to the High Court to prevent abuse of process or do justice. But as the Court rightly pointed out that this does not mean that the High Courts would take up the role of an investigator and started appreciating the evidence in a selective manner. By this judgment, the Supreme Court has not curtailed the powers of the High Courts rather the same have been aligned keeping in mind the principles of natural justice and the role of the police in investigation. I hope that these directions serve as a beacon of light to the High Courts all over the country and Section 482 is invoked only in appropriate cases.

 

Thus, I hope you enjoyed listening to this show. Thank you for listening!

 

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See you next time, till then stay tuned.