It is the prerogative of an accused to approach the High Court of appropriate jurisdiction with a prayer to quash the First Information Report ( FIR) that is registered against them. This plea can be adopted at any point of time be it before or after filing the charge sheet. Similarly whether or not the accused has obtained bail is not of relevance. However, one often comes across the prayer for "no coercive steps" or "stay of arrest" in a petition u/s 482 of the Code of Criminal Procedure(CrPC) before the High Court and this phrase has been ingeniously woven into the fabric of many arguments in an effort to provide a stop-gap breather to the Client. In this article, I endeavour to map the length and breadth of the discretion mapped by various High Courts and the Supreme Court through some prominent case laws.
Recently the Hon'ble Supreme Court, in the case of M/s Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra And Others MANU/SC/0272/2021 has held that High Courts should not be issuing blanket orders like no coercive steps to be taken against the accused pending filing of charge sheet and in their bid to balance the fundamental rights of the accused as well as the victim should ensure that the separation of powers between the executive and judiciary is preserved. Moreover, such orders are detrimental to the powers of investigation of the police and tend to jeopardise the investigation. Supreme Court verdict reaffirms and reiterates the judgment in the matter of State of Telangana versus Habib Abdullah Jeelani (2017) 2 SCC 779, wherein it was held that an Order under Section 482 CrPC cannot be in the nature of an Order under Section 438 of CrPC. Therefore, in a petition u/s 482 while taking note of the fact that investigation is pending and ongoing an order for stay of arrest would be detrimental to the investigation.
Inherent powers of the High Court are wide but the same are meant to be exercised under exceptional circumstances. In 1992 the Apex Court through the landmark judgment of State of Haryana versus Bhajan Lal and Others 1992 Supp (1) SCC 335 while cautioning and holding that such discretion should be exercised in the rarest of the rare cases, provided the following criteria in order to exercise discretion in favour of the accused u/s 482 CrPC:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the Accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge."
The Supreme Court has created a fine balance between what constitutes "abuse of the process of law" contrasted with the core objectives of Section 482 i.e. to exercise the discretion contained therein in favour of the accused when it is a matter of ensuring that justice prevails and a prima facie reading of the facts and circumstances of the given case does not tantamount to a cognisable offence against the accused. In the case State of Karnataka versus M. Devedrappa and Ors AIR 2002 SC 671, reversing the Judgment of the Hon'ble High Court of Karnataka whereby the charge sheet and FIR under Sections 465, 468,471 and 420 of the Indian Penal Code, 1860, had been quashed, it was held that while examining the prima facie material it acquittal or conviction are not to be weighed against each other when considering a petition under Section 482 CrPC. All that is required for the High Court is to discern and conclude whether or not the allegations in the FIR, be read in their entirety, would constitute a prima facie case against the accused. Applying the same principle in the case of Dhruvaram Murlidhar Sonar Versus The State of Maharashtra AIR 2019 SC 327, it was held that the allegations of rape and cheating along with offences under the Scheduled Caste and Scheduled Tribe Act were not established the High Court had erred by failing to exercise discretion in favour of the accused and the judgment was reversed in favour of the accused.
There has been a uniformity in the stance of the Hon'ble Supreme Court in over three decades when it comes to the view of their lordships on the exercise of discretion of the Hon'ble High Courts under Section 482 of the Code of Criminal Procedure. Though in the recent case of Neeharika Infrastructure it was held that FIR would not be quashed in the case of a cognisable offence, a finer nuanced approach has been observed wherein the Apex Court has had to decide whether or not a cognisable offence is palpable from a cursory and bare reading of the facts as observed in the case of Dhruvaram Murlidhar. As observed and reiterated the powers of the judiciary and police are not overlapping but complementary therefore the exercise of the powers u/s 482 cannot vitiate an investigation or trial at the inception itself. At the same time, Section 482it proves to be a valuable safeguard in cases where the rigours of a criminal trial could potentially destroy the life of an innocent individual whose innocence bespeaks itself on the very face of the FIR. What has not been pleaded and prayed for explicitly cannot be obtained through a clever play on words hence proceedings u/s 482 of CrPC cannot be used to push through pleas under section 438 CrPC or to seek wide ranging directions or injunctions directed at the investigation.
Ms Krishna Parkhani is a Senior Associate at Bonum Lex . Views are personal.