The quashing of FIR has been a contentious issue for decades and the Hon’ble Apex Court from time to time has evolved and clarified the broader parameters for the Quashing of FIR. At the first blush, a judgment of the Hon’ble Supreme Court in M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, 2021 SCC online SC 315, seems to have been restricting the passing of the interim orders while exercising the inherent powers of the High Courts for Quashing of FIR.

Although a close reading of the judgment dispels all such doubts. The three-member bench of the Supreme Court held that before issuing an interim order staying further inquiry until the outcome of a quashing petition, the High Court must apply the same criteria it will apply to quash the proceedings in its inherent jurisdiction and give reasons of the interim orders.

Brief Facts of the Case:

The appellant registered FIR against respondent no. 2-4 under Sections 406, 420, 465, 468, 471, and 120B of the Indian Penal Code. The original accused filed an anticipatory bail plea before the learned trial court under Section 438 CrPC, anticipating their arrest in connection with the FIR. The suspected culprit was granted interim protection from arrest by the learned Sessions Court in Mumbai. That the interim protection given by the learned Sessions Court was extended several times and lasted over a year.

During pendency, the respondents no. 2-4 filed 2 writ petitions in the High Court of Judicature in Bombay under Article 226 of the Constitution of India r/w Section 482 CrPC for the quashing of the FIR. The Hon’ble High Court passed the impugned interim order while adjourning the case, instructing that “no coercive measures” shall be taken against the petitioners (respondent nos. 2 to 4 herein) in respect of the said FIR.

Question Before The Apex Court:

The main question arose before the Supreme Court was when and where the High Court would be justified in passing an interim order either staying further investigation in the FIR/complaint or issuing an interim order in the nature of “no coercive steps” and/or not arresting the accused either pending investigation by the police/investigating agency or while the quashing petition under Section 482 CrPC is pending and/or pending before the High Court under Article 226 of the Indian Constitution?

Analysis of the Supreme Court:

The bench acknowledged that a balance must be struck between the rights of genuine complainants and FIRs disclosing the commission of a cognizable offence, and the statutory obligation/duty of the investigating agencies to investigate cognizable offences, on the one hand, and the rights of innocent persons against whom criminal proceedings are initiated, which may be an abuse of the law and process in a given case.

However, if the facts are vague, and the inquiry has only just begun, the High Court must allow the investigating agency to carry out its statutory obligation and continue the investigation. The power to grant a stay comes with responsibility, and the High Court must assign brief reasons why further investigation is required at that time, which will reflect the Court’s application of mind to the relevant facts, as speedy investigation is a requirement in criminal administration of justice. The High Courts should be cautious in interfering in criminal proceedings at the outset, where a quashing petition is filed immediately after the FIR/complaint is lodged and the police have not been given sufficient time to investigate the allegations of the FIR/complaint, as is their statutory right/duty under the Code of Criminal Procedure.

The bench held that there is no denying that the power conferred by Section 482 of the Code of Criminal Procedure is broad, but as the Hon’ble Apex Court has repeatedly stated in a series of decisions, broad power requires the Court to exercise greater caution and imposes an onerous and diligent obligation on the Court. The pursuit of justice should take precedence and even if the quashing petition is eventually dismissed after a long stay, the future investigation may not be very fruitful due to the fact that the evidence may no longer be available with the agencies.

The Supreme Court went on to criticize the practice of High Courts issuing directions not to arrest the accused during the investigation or till the charge sheet is submitted while dismissing quashing petitions. The court found that there may be a requirement of custodial inquiry for which the accused must remain in police custody and that giving such blanket orders without assigning reasons would not be acceptable.

It is mandatory for the High Court to ensure that such power under Article 226 is not exercised liberally in order to convert it into an anticipatory bail proceeding; if the High Court determines that in a given case, denying the protection against pre-arrest would amount to a gross miscarriage of justice and no case for arrest pending trial is made at all, the High Court is free to grant the relief in the nature of anticipatory bail in exercise. A blanket interim order of “no arrest” or “no coercive steps” cannot, however, be issued mechanically and on a regular basis. While dismissing a quashing petition on the grounds that no case is made out to quash the FIR/complaint, the Supreme Court held it improper to issue a direction of not to arrest and/or “no coercive steps” until a charge sheet is submitted.

To deter and prevent unscrupulous litigants from invoking the Court’s inherent jurisdiction at the drop of a hat by filing a petition for quashing of an FIR/complaint and then seeking relief by an interim order, the Hon’ble Apex Court reaffirmed and emphasized the Privy Council’s decision in the case of King Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 and laid down the guidelines.

Conclusions of the Supreme Court:

The conclusions arrived by the Supreme Court are explained below by the author:

  1. The police have a statutory right and duty to investigate a cognizable offence under the relevant provisions of the Code of Criminal Procedure;
  2. The courts will not prevent any investigation into cognizable offences;
  3. 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 allow an investigation to continue;
  4. The power of quashing should be employed only in the “rarest of rare circumstances,” as it has been observed (not to be confused with the formulation in the context of the death sentence);
  5. When evaluating a FIR/complaint for quashing, the court cannot inquire into the credibility, validity, or otherwise of the allegations included in the FIR/complaint;
  6. Criminal procedures should not be abandoned at the outset;
  7. The dismissal of a complaint or FIR should be the exception rather than the rule;
  8. Normally, courts are prohibited from usurping the police’ jurisdiction, because the two state organs function in separate domains of activity, and one should not step on the other;
  9. The judicial and the police have complementary rather than overlapping functions;
  10. Except in extraordinary circumstances where non-interference would result in a miscarriage of justice, the Court and judicial procedure should not intervene during the investigation stage of criminal proceedings;
  11. The Court’s inherent powers do not grant it the authority to act on its own whims;
  12. The first information report is not an encyclopaedia in which all facts and details about the reported offence must be included. As a result, the court should refrain from delving into the merits of the charges in the FIR while the police investigation is ongoing. The police must be allowed to finish their investigation. It would be premature to conclude that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of the legal process based on vague facts. If the investigating officer determines that the complainant’s application is without merit, the investigating officer may file an appropriate report/summary with the learned Magistrate, which the learned Magistrate may evaluate in line with the established procedure;
  13. Although Section 482 CrPC gives the court broad authority, it also requires the court to exercise caution. It makes the court’s job more difficult and time-consuming;
  14. At the same time, the court has the jurisdiction to quash the FIR/complaint if it sees fit, taking into account the quashing parameters and the self-restraint required by law;
  15. When the alleged accused files a petition to quash the FIR, the court merely has to assess whether the accusations in the FIR reveal the conduct of a cognizable offence or not when exercising its power under Section 482 CrPC. The court is not compelled to assess the merits of the claims in determining whether they constitute a cognizable offence, and instead must let the investigative agency/police to investigate the charges in the FIR;
  16. The aforementioned parameters would apply and/or the aforementioned factors would be necessary to be examined by the High Court in granting an interim ruling in a quashing petition in the exercise of powers under Section 482 CrPC and/or Article 226 of the Indian Constitution;
  17. Even if the High Court is prima facie of the opinion that an exceptional case exists for granting an interim stay of further investigation, the High Court must give brief reasons why such an interim order is warranted and/or required to be passed after considering the broad parameters while exercising the powers under Section 482 CrPC and/or Article 226 of the Constitution of India referred to above;
  18. Whenever the High Court issues an interim order stating “no coercive steps to be taken” within the aforementioned boundaries, the High Court must specify what it means by “no coercive steps to be taken”, as the words “no coercive steps to be taken” can be misinterpreted and/or misapplied.

Opinion of the Author:

It is clear that the Hon’ble Apex Court expressed displeasure with the High Courts for not following the judgment of the Supreme Court in Telangana vs. Habib Abdullah Jeelani, (2017) 2 SCC 779 in letter and spirit. No doubt that the matter reached before the Hon’ble Supreme Court was erroneously dealt by the High Court and while the respondent no. 2-4 were granted relief of anticipatory bail by the Sessions Court, the High Court had no valid ground to pass an order directing “no coercive measures shall be adopted”. This judgment correctly lays down the statement of Law.

One of the apprehensions of the Author is that the High Courts after this judgment will exercise abundant caution before passing any interim relief, even in the genuine & deserving cases. Resultantly, the petitioners can suffer unnecessary scrutiny at the level of the High Court that is not the objective of this judgment. This approach can severely impact the chances of genuine litigants in getting favorable interim orders on merits that can ultimately lead to injustice.

It is seminal for all the advocates and judges at the level of the High Court to understand the correct ratio decidendi of this judgment so as to distinguish it from the genuine and deserving cases that are worthy of getting interim relief.

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