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Quashing of a Complaint/FIR should be an exception rather than an ordinary rule: SC reiterates

There is no denial of the fact that power under Section 482 Cr.P.C is very wide, but as observed by this Court in catena of decisions, referred to hereinabove, conferment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts (Para.15).

M/S NEEHARIKA INFRASTRUCTURE PVT. LTD. VS STATE OF MAHARASHTRA AND OTHERS

CRIMINAL APPEAL NO. 330 OF 2021

Decided on 13th April 2021


Counsel for Appelant: Shri K.V. Vishwanathan

Counsel for Accused: Shri Diljeet Ahluwalia and Shri Malak Manish Bhatt


This case was decided by a division bench of the Supreme Court comprising of Justice D.Y. Chandrachud and Justice M.R. Shah. The Original accused was charged under Sections 406, 420, 465, 468, 471 and 120B of the IPC. The original accused is accused of forgery and fabrication of Board Resolutions, as well as the dishonest selling of a prestigious property owned by the appellant firm, Naziribagh Palace, measuring 111,882 square feet, to one M/s Irish Hospitality Pvt. Ltd.


The accused was given temporary immunity from detention by the Mumbai Session Court. The temporary defense provided by the learned Sessions Court was expanded many times and lasted nearly a year. On 17.09.2020, a petition for quashing the FIR was filed in the High Court in Bombay under Article 226 of the Constitution of India r/w Section 482 Cr.P.C. The said writ petition was scheduled for hearing before the Division Bench of the High Court on September 22, 2020, and an order was issued ordering the case to be scheduled before another Bench on September 24, 2020. The appellant was given two weeks to file an affidavit in reply with an additional compilation by the Division Bench. Being aggrieved and unhappy with the High Court's Division Bench's impugned interim order ordering that "no punitive steps shall be implemented," against the original accused, the original plaintiff has filed this appeal.


The Court crystallized the issues before it: The principal issue which arises is 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 Article226 of the Constitution of India pending before the High Court? (Para 6)

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 is a further core question to be considered. (Para 11)


On behalf of the Appellant, learned senior counsel Shri K.V. Vishwanathan submitted that such a blanket High Court order prohibiting the investigation officer from taking punitive action was not justified at all. He submitted that the accused were not cooperating with the investigation after receiving interim protection of arrest, and the investigating officer wrote to the learned Sessions Court stating that the accused were not cooperating with the investigation by issuing such a blanket order excluding the investigating officer from taking coercive measures against them and as such the police officer's precious right to prosecute the offenses has been hindered. He argued that, even though the High Court has authority to issue an interim order in a given situation, such interim orders cannot be issued mechanically and/or without assigning any reasons. Conclusively, it was stated that staying the prosecution of the case when it is in progress at the threshold is inappropriate.


The Learned Counsel on behalf of the Original Accused submitted that in light of the facts and circumstances of the event, and in light of the seriousness of the charges made in the FIR, as well as the nature of the conflict, which can be classified as a civil dispute, the High Court made no mistake in issuing the order of "no coercive steps" against respondent nos. 2 to 4.It was submitted that the impugned FIR was only an abuse of process of law and that a civil dispute is converted into a criminal dispute to harass the respondents.


The Court heard both the sides of the dispute.

The Court considered the parameters required to be applied while quashing the FIR and the rights of the police to investigate cognizable offences. The Court referred to many cases to condense certain principles of law pertinent to the issue involved and stated:

When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR. (Para 10)


The Court observed:

There is no denial of the fact that power under Section 482 Cr.P.C. is very wide, but as observed by this Court in catena of decisions, referred to hereinabove, conferment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts (Para.15).


The Court held:

As observed hereinabove, 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). Therefore, 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. (Para 16)


The Court cautioned the High Courts against passing such orders of not to arrest or “no coercive steps to be taken” till the investigation is completed and the final report is filed.

The Court held that the impugned order of the High Court is unsustainable and allowed the appeal.



Yashwardhan Bansal

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