Normally, when counsel finds that the court is not inclined under 482, they withdraw it and go under Section 438. The client may also engage another counsel to go under 438 and conceal the fact.

 

 

WHILE considering the contours of the power of quashing under Section 482 Cr.P.C., and the power to grant interim relief by way of bail/ anticipatory bail, stay on coercive steps that is, stay on arrest and investigation, a 3-judge bench of the Supreme Court, consisting of Justices Dr D.Y. Chandrachud, M.R. Shah and Sanjiv Khanna, has voiced a comment on March 18, 2021, that “No coercive steps” is like the status quo order in civil matters. The status quo is the worst order to pass! The courts may instead say that “protection from arrest is granted for 2 weeks.” This comment came from Justice Chandrachud, in the context of a submission that a blanket ban on any coercive steps, granted by High Courts under Section 482 CrPC by way of interim relief, operates to restrain the investigating agency from recording any evidence and even proceeding with the investigation, in addition to arresting the accused. Justice Khanna stated further, “When the High Court says that there shall be no coercive steps, this would also mean that you cannot be interrogated.

 

This hampers the investigation. The right to investigate is with the I.O., not with the court. The discretion to arrest lies with the I.O. and not with the court. The court can exercise this power in anticipatory bail and bail pleas. But let’s not say that the court will decide how the investigation is done or that the court can pre-injunct the rights of the IO. It is in your (the accused) interest also that the investigation is done.” Justice Shah’s view-point has been that “Upon the registration of the FIR, the accused is mainly worried about the arrest. So (Section) 438 is the remedy. If the FIR is investigated and no case is made out, then the police gives B, C summary report and it will be considered. It is in the interest of the accused also that the investigation is carried out. Nowadays, within one day of the lodging of FIR, the quashing is sought. There is no time given to the IO.”

 

By way of a query, Justice Khanna took the comments a step further, “Is the High Court justified in passing an order when there is an alternative remedy under Section 438 of the CrPC which has been invoked? That way you will be in two courts.” Justice Khanna continued, if the counsel prays for pre-arrest bail, then he may be asked to specify if he has moved a 438 application before the Sessions Court, in that case, he must be asked to go there or withdraw the same. One cannot be given multiple chances. Normally, when counsel finds that the court is not inclined under 482, they withdraw it and go under Section 438. The client may also engage another counsel to go under 438 and conceal the fact.

 

As judicial officers, we tend to put sections and jurisdiction in parts. It leads to complications at times”. The Bench has also expressed regret that because of the inadequacy of civil justice administration, every matter is increasingly being given a criminal colour. Elaborating on this aspect, Justice Chandrachud explained that in a case relating to alienation of property in a public trust, the court told the petitioner that if he did not deposit ‘X’ amount of money, it would not dismiss the petition, but will impose exemplary cost. It is important that the courts start insisting on this. Otherwise, there is no fear of the law, of the consequences, whether it is civil or criminal jurisdiction. In the case, before the court, the petitioner had impugned an order of the Bombay HC allowing another bidder to complete the formalities and procedure for the sale of the property of the public trust, on the repeated failure of the petitioner to deposit the requisite sum with the registry of the court and finally, on his cheque being dishonoured. “HCs must give brief reasons for stay.” The SC’s suggestion is “At the ad interim stage, the High Courts must include one small paragraph on what weighed with them in granting the relief.

 

We are not saying at all that the High Courts are bereft of this power! But because it is a wide power, it is expected that it is exercised responsibly.” Justice Chandrachud has explained that the standard of ‘rarest of the rare,’ prescribed by the SC in the cases of Bhajan Lal and Kurukshetra University vs State of Haryana for the exercise of power under Section 482 is not as stringent as in the case of awarding a death sentence. “In 302, it is far more stringent than just circumspection and caution. But in 482, the standard is of the court employing sufficient circumspection and caution.” “Of course, there may be genuine cases, where the criminal law has been misused in such cases, the petitioner would say that ‘Don’t just stay silent but protect me also.’ The accused must also be protected from harassment,” said Justice Chandrachud. “Only last week, there was a case when the HC had granted bail in a 302 case- double murder, triple murder! The HC just said that the submissions have been considered and in the facts and circumstances of the case, the person is being released! There is nothing at all on merits. So as to not prejudice the trial, the HCs do not appreciate the merits at all.

 

 

The other end of the spectrum was where for a petty offence, the person languished in jail for three years,” commented the Judge. “Qua the Supreme Court, I give reasons even at the stage of issuing notice. It helps us when the matter comes back to us, we know what the submissions were. It also helps. Court must adopt this practice. You must clarify what weighed with you in issuing notice. Sometimes, I even dismiss the matter on hearing the other side. And this is not because I was wrong but because of the representation which was made,” the Judge stated. In agreement, Justice Shah responded that “the reasoning is important not just for the lawyers but also for the higher court. We are not asking for a detailed reasoned order, but something based on which we can say with certainty that there has been an application of mind, that it is a special case or extraordinary case that warrants the order, you have to give us a flavour of that. Also, in granting such a relief, the rights of the investigating agency are also interfered with. So you must give some reasons.

 

“When HCs mechanically issue notice, then the burden of 482 petitions becomes so large. When you apply your mind, the time taken is quantum multiplied. The backlog becomes so large,” observed Justice Chandrachud. Suggestion has come from the apex court that instead, spending 3 to 5 minutes at the outset itself, court may make it clear that there is nothing in some petitions to warrant any intervention.