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  • Writer's pictureVidhya Shet

“Speaking order is a must by Court before granting any relief"


Apex Court of India
Supreme Court landmark Judgment

Supreme Court of India in M/S Neeharika, Infrastructure ... V/s The State Of Maharashtra on 13 April, 2021


FACTS OF THE CASE: The Appellant had lodged an FIR against the Respondent Nos. 2 to 4 therein original accused at Worli police station, Mumbai for offences under Section 406, 420, 465, 468, 471 & 120 B of IPC. The allegations against the original accused pertain to forgery and fabrication of Board Resolution and the fraudulent sale of a valuable property Naziribagh Palace admeasuring 111,882 sq. ft. belonging to the Appellant company to one M/s. Irish Hospitality Pvt., Ltd.,

It was during the pendency of the anticipatory bail application preferred by the original accused before the learned trial court u/s. 438 of Cr Pc, the accused preferred a petition under Article 226 of Constitution r/w. Section 482 of Cr Pc for quashing of FIR.

It is in this petition that High Court had passed the impugned interim order directing that “no coercive measures shall be adopted against the Petitioners in respect of the said FIR”

It was contended that as the anticipatory bail application filed by the original writ petitioners before 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.

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.

It was submitted that as such the original 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. It was also contended that in fact investigating officer addressed a communication to the Learned Sessions Court stating that the accuseds were no 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 almost one year and obtain such an order is nothing but an abuse of process.


CORE ISSUE BEFORE HON’BLE APEX COURT:

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?

CONCLUSIONS DRAWN BY SUPREME COURT:

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.


Decision: The Hon’ble Apex Court allowed the above appeal. 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) was quashed and set aside. However, the Hon’ble Court made it clear that they 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.

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