Recently, in Neeharika Infrastructure Private Limited v. State of Maharashtra[1] (“Neeharika Infrastructure”) a three-judge bench of the Supreme Court (“SC”) pronounced a detailed judgment on the powers of the High Court (“HC”), while adjudicating a petition for quashing of the FIR – filed under Section 482 of the Criminal Procedure Code, 1973 (“Section 482 CrPC”) and Article 226 of the Constitution of India.
This provision confers the HC with an inherent power to quash an FIR or a complaint, upon satisfaction of well-established parameters that have been laid down in decisions such as State of Haryana v. Bhajan Lal[2] (“Bhajan Lal”) and R.P. Kapur v. State of Punjab[3] (“R.P. Kapur”). The parameters laid down in Bhajan Lal and R.P. Kapur includes the following:
If the allegations made in the FIR/complaint, even if taken at face value, do not prima facie constitute any offence or make out any case against the accused.
If the allegations made in the FIR do not disclose any cognisable offence, which justifies a police investigation under Section 156(1) of the CrPC.
If the allegations made in the FIR/complaint and the evidence collected in support of the same do not disclose the commission of any offence, and do not build any case against the accused.
If a criminal proceeding is based on mala fides, or the proceeding is maliciously instituted with an ulterior motive.
In Neeharika Infrastructure, the Appellants challenged an interim order issued by the Bombay HC, in a quashing petition filed under Section 482 CrPC and Article 226 of the Constitution. The Bombay HC issued an interim order directing that “no coercive measures shall be adopted against the petitioners in respect of the said FIR”. While examining the correctness of this interim order, the SC addressed two aspects relating to the HC’s quashing power under Section 482 CrPC, read with Article 226 of the Constitution:
In another recent decision in Arnab Goswami v. State of Maharashtra[5] (“Arnab Goswami”), the SC held that while adjudicating a quashing petition, the HC is duty-bound to undertake a prima facie evaluation of whether the ingredients of the alleged offence have been established in the FIR. Interestingly, the SC did not make any reference to this decision.
The SC also did not examine as to whether a dilution of the standards for review of the contents of the FIR would be contrary to the parameters laid down in Bhajan Lal. As the decision in Neeharika Infrastructure was delivered by a 3-Judge Bench, and the earlier decisions in Bhajan Lal and Arnab Goswami were delivered by Division Benches, it may be argued that the decision in Neeharika Infrastructure has unsettled the well-established parameters for quashing of FIR under Section 482 CrPC.
The SC also highlighted two illustrative cases where a stay of investigation shall be justified – (a) if there is an abuse of process of law, by converting a purely civil dispute into a criminal dispute, with the objective of pressurizing the accused; and (b) The complaint is prima facie barred by law, and the allegations in the FIR do not disclose any cognisable offence.[7]
While the conclusions of the SC were with the objective of ensuring that a consistent approach is followed by the HCs, the SC could have further clarified that a stay of investigation shall also be warranted if it has been initiated with a mala fide objective or an ulterior motive.
Protection from arrest
The SC referred to two earlier decisions in State of Telangana v. Hamid Abdullah Jeelani[8], and Ravuri Krishna Murthy v. State of Telangana[9], which held that the HC cannot grant interim protection from arrest under Section 482 CrPC, after dismissing a quashing petition. The SC held that granting interim protection from arrest while dismissing a quashing petition would indirectly amount to an order for anticipatory bail, which can be passed only if the conditions prescribed under Section 438 of the CrPC are satisfied. Hence, according to the SC, if a quashing petition is dismissed, the accused should be relegated to filing an application for anticipatory bail under Section 438.[10]
While the SC’s reasoning is in accordance with earlier judicial precedents, one aspect that was left unaddressed is in relation to the stringent bail conditions present in some special penal statutes – such as Section 212(6) of the Companies Act, 2013 (“2013 Act”), and Section 45(1) of the Prevention of Money Laundering Act, 2002 (“PMLA”).
Concluding Thoughts
In a recent decision in Sandeep Khaitan v. JSVM Plywood[12], the SC held that the power conferred by Section 482 CrPC cannot be exercised in a manner that would undermine the provisions of other statutes — such as Sections 14 (declaration of moratorium) and 17 (vesting of management of the company with the interim resolution professional) of the Insolvency and Bankruptcy Code, 2016.
Dr. Jinesh Soni
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