In a recent judgement titled M/S Neeharika, Infrastructure Pvt. Ltd. vs The State Of Maharashtra on 13 April, 2021, the Hon’ble Supreme Court of India discussed 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 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?

It considered the powers, parameters and applicability by the High Court under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India to quash or while granting interim stay/protection in a FIR/complaint.

The bench of Hon’ble Justices Dr. Dhananjaya Y. Chandrachud, J. M.R. Shah and J. Sanjiv Khanna 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 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, concluded as under;

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, 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 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;

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 “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

Conditions for grant of interim stay:

While considering 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. The Hon’ble court observed that 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.

The Hon’ble Court went to hold that 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.

It was further held that in genuine complaints/FIRs, the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences. 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 Hon’ble court further observed that 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.

Rights and Duties of the Police to investigate into cognizable offences;

The hon’ble Court took note of “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 any reasons. While also taking note 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.

The hon’ble Court further observed that, 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). It was further held that, 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.

The Hon’ble Court held that such a blanket order is not justified at all. It went on to state that 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.

It was reasoned that 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.

Remedy under Section 438 Cr.P.C.: Anticipatory Bail

The judgement went on to state that when an accused named in a 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.

At the same time, the Hon’ble Court 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.

Case Laws Referred:

State of Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779, 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; State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335; Imtiyaz Ahmad v. State of Uttar Pradesh, (2012) 2 SCC 688; Ravuri Krishna Murthy v. The State of Telangana and others; Asian Resurfacing of Road Agency Private Limited v. Central Bureau of Investigation, (2018) 16 SCC 299; State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699; Rajiv Thapar V. Madan Lal Kapoor, (2013) 3 SCC 330; State of U.P. v. Mohammad Naim AIR 1964 SC 703;  State of Andhra Pradesh v. Gourishetty Mahesh (2010) 11 SCC 226; Vijeta Gajra v. State (NCT of Delhi), (2010) 11 SCC 618;  State of Maharashtra v. Sanjay Dalmia, (2015) 17 SCC 539; Amish Devgan v. Union of India, (2021) 1 SCC 1; Ganga Ram Hospital v. State;  Noor Taki Alias Mammu v. State of Rajasthan  AIR 1987 RAJ 52;  Madhukar Purshottam Mondkar v. Talab Haji Hussain AIR 1958 BOM 406; Section 154, Chapter XIV of the Code of Criminal Procedure, Section 156; KingEmperor v. Khwaja Nazir Ahmad AIR 1945 PC 18;  State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554; Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195; State of Orissa v. Ujjal Kumar Burdhan (2012) 4 SCC 547; Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728; P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24; Skoda Auto Volkswagen India Private Limited v. State of Uttar Pradesh, 2020 SCC OnLine SC 958; Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC 453; Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440; 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; Kranti Associates (P) Ltd. v. Masood Ahmed, (2010) 9 SCC 496