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Neeharika Infrastructure Pvt. Ltd.
Versus
State
of Maharashtra and others
CRIMINAL
APPEAL NO. 330 OF 2021 decided on April 13, 2021
Bench:
Dr.
Dhananjaya Y. Chandrachud & M.R. Shah, JJ
Issue
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?
Held
The
Supreme Court examining the legality of the impugned interim order passed by the
High Court directing the investigating agency/police “not to adopt any coercive
steps” against the accused is concerned, for the reasons stated hereinbelow and
the same is unsustainable because
i)
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.;
ii)
that the interim order is a cryptic order;
iii)
that 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)
that 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. While passing such a blanket order, the High Court has not
indicated any reasons.
In
exceptional situations where such orders are necessary to be passed, the
Supreme Court held that while passing such an interim order, in exceptional cases
with caution and circumspection, the High Court has to give brief reasons why
it is necessary to pass such an interim order, more particularly when the High
Court is exercising the extraordinary and inherent powers under Section 482
Cr.P.C. and/or under Article 226 of the Constitution of India.
The
Supreme Court coming up to the final conclusion gave following guidelines in
such cases:
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.