“No coercive measures to be taken”| Can High Courts pass such blanket orders while refusing to quash investigation? Here’s the law laid down by the Supreme Court

Supreme Court: Dealing with a case where Bombay High Court had granted interim protection from arrest to an accused facing serious charges for the offences under Sections 406, 420, 465, 468, 471 and 120B of the Penal Code and had ordered “no coercive measures to be adopted/taken”, the 3-judge bench of Dr. DY Chandrachud, MR Shah* and Sanjiv Khanna, JJ deprecated the order of the High Court and held 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.

“We are at pains to note that despite the law laid down by this Court in the case of Habib Abdullah Jeelani[1] (…), 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.”

Background

The accused were charged for forgery and fabrication of Board Resolution and the fraudulent sale of a valuable property belonging to the appellant company to one M/s Irish Hospitality Pvt. Ltd.

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.

Sessions Court, Mumbai granted interim protection from arrest to the alleged accused. This interim protection was further extended from time to time and continued nearly for a year thereafter.

The High Court passed the impugned interim order directing that “no coercive measures shall be adopted against the petitioners in respect of the said FIR.

The said order was challenged before the Supreme Court on the ground that no reasons whatsoever were assigned by the High Court while passing such an interim order of “no coercive measures to be adopted/taken” against the original accused.

“…the High Court ought to have appreciated that the original accused – 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, the original accused were not co-operating with the investigation after having obtained the interim protection from arrest.”

It was argued before the Court that 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.

Analysis

Practice and procedure in case of cognizable offences – Summary of catena of Supreme Court decicions

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;

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, has the jurisdiction to quash the FIR/complaint; and

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.

What must be kept in mind before passing an interim order of staying further investigation pending the quashing petition?

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.”

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. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice.

What happens in a case 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.”

Hence, 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.

Why passing blanket order as passed in the present case is not the way forward?

“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.”

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.

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.

However,

“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.”

Conclusion

i) 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) The interim order is a cryptic order;

iii) 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;

iv) 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.”

[Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra, 2021 SCC OnLine SC 315, decided on 13.04.2021]

[1] State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779

High Court cannot issue a blanket order restraining arrest while refusing to quash the investigation

Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appearances before the Court

Senior Advocate K.V. Vishwanathan, Advocates Diljeet Ahluwalia, Malak Manish Bhatt, Sachin Patil and Rahul Chitnis