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The Constitutional Courts Cannot And Should Not Quash An "FIR" During The Investigation Stage

Justice V Ramkumar
1 Oct 2022 3:44 AM GMT
The Constitutional Courts Cannot And Should Not Quash An FIR During The Investigation Stage
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C O N T E N T S Parts I N N E R T I T L E S Para No: Page No: A Introduction List of verdicts which hold that FIR can be quashed - given 1 3 1 4 B Legal status of an FIR and who can give it. 4 5 C ...


C O N T E N T S

Parts

I N N E R T I T L E S

Para

No:

Page No:

A

Introduction

List of verdicts which hold that FIR can be quashed - given

1

3

1

4

B

Legal status of an FIR and who can give it.

4

5

C

The purpose of FIR

6

7

D

Sec. 482 Cr.P.C. can be invoked only in respect of a case pending before an inferior criminal court.

21

17

E

When can it be said that a case is pending before a criminal court ?

23

20

F

Accused has no right to be heard during the stage of investigation or further investigation.

24

21

G

Remedy of the accused if he apprehends arrest consequent on the registration of an FIR.

25

21

H

Accused has no locus standi to participate in the proceedings before the criminal court at the pre-process stage.

26

23

I

Even with regard to matters pending before a criminal court, the power u/s 482 Cr.P.C. should be exercised only in the "rarest of the rare" cases.

28

25

J

Is it the policy of the law-maker to quash non-compoundable offences by recourse to S.482 Cr.P.C. ?

30

29

K

15 FIRs quashed by a High Court at one stretch even without notice to the First Informant.

Quashment of FIR behind the back of the First Informant

34

35

33

33

L

Feasibility of challenge of an FIR under Article 226 of the Constitution of India.

36

34

M

Can the investigation of a case be stalled by the High Court?

37

38

N

The few cases in which the FIR could be quashed.

38

39

O

My conclusion.

39

40

A. I N T R O D U C T I O N

My original article was published in "Live Law" on 23-04-2014. Thereafter, it has been revised a couple of times. This article which may perhaps embarrass the higher judiciary of the country and which may antagonize a section of the robed brethren at the Bar, is penned out of the disillusionment of the author at the way in which truth and real life miseries are forensically placed on the adjudicatory altar for being judicially guillotined. Those who are familiar with the curial mechanics know, how easy it is to get an FIR quashed and how, until then, the investigation of the case is got stalled through an interim order.

2. Let me at the outset, recollect the usual action pattern (tactics) adopted by the 'culprits' as soon as an FIR is lodged against them. They will first approach the High Court for quashing the F.I.R on the ground that it does not, on the face of it, disclose the ingredients of the cognizable offence alleged (in cases where a cognizable offence is specifically alleged). They would argue that the law presumes them to be innocent until found guilty after trial and that if such an FIR is allowed to be sustained, the police will mercilessly deprive them of their precious liberty by arresting them and would subject them to third degree methods and get them remanded to judicial custody in flagrant violation of their fundamental rights and that it would be poor solace to be told in the long run, after the ordeal of a trauma during trial, that they were really innocent. The right to personal liberty is so valuable and so sacrosanct, they would argue, that it should not be allowed to be invaded merely because an incomplete and inchoate FIR came to be registered against them. At times, their reputation in the society or in the particular field of activity is also highlighted to contend that the FIR should be quashed. Very often, the "inherent power" jurisdiction of the High Court under Sec. 482 of the Code of Criminal Procedure, 1973 ("the Cr.P.C." for short) is invoked for the desired pre-emptive exercise of the crime case. Instances of recourse to Article 226 of the Constitution are also not rare. Binding verdicts to buttress their stand are also legion. There is profusion of precedential authority to say that if the FIR, on the face of it, does not make out any offence or if the components of the offence are absent in the FIR, the Constitutional Courts have not only the power but also the duty to quash the FIR or else it would be an abuse of the process of the Court to allow further action on such FIR. The observation, originally made by a 3 Judge Bench of the Supreme Court of India way back in the year 1960 in R.P. Kapur v. State of Punjab AIR 1960 SC 866 – P. B. Gajendragadkar, K. N. Wanchoo & K. C. Das Gupta - JJ, is very often relied on by the petitioners. The said observation reads as follows:-

"Cases may also arise where the allegation in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged".

The above observation has been followed by several subsequent judicial pronouncements. To quote one is State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540 – Arijit Pasayat - J. Even though the above observation, so far as it relates to a "complaint" (which is one of the mediums of institution of a case) is fully justified, with due respect, the above observation so far as it relates to an FIR, does not appear to be correct. What seems to have missed is the fact that an FIR is not a medium of institution of a case. There are various decisions of the Apex Court taking the view that an FIR can be quashed for the reason that it does not reveal the ingredients of the alleged offence. It is here that, this humble self, with utmost respect, begs to differ, if not disagree.

3. The following are some of the cases in which it has been held that the FIR can be quashed as above:-

  1. R.P. Kapur v. State of Punjab - AIR 1960 SC 866 P. B. Gajendragadkar.
  2. State of West Bengal and Others v. Swapan Kumar Guha and Others - AIR 1982 SC 949 – 3 Judges – Y. V. Chandrachud – CJI.
  3. State of U. P. v. R. K. Srivastava (1989) 4 SCC 59 = AIR 1989 SC 2222 – 3 Judges – M. M. Dutt – J – A case under the P. C. Act, 1947.
  4. State of Haryana and Others v. Ch. Bhajan Lal and Others = 1992 Supp. (1) SCC 335 = AIR 1992 SC 604 - S. Ratnavel Pandian - J.
  5. S.M. Datta v. State of Gujrat and Another = AIR 2001 SC 3253 – Umesh C. Banerjee - J.
  6. M. Krishnan v. Vijay Singh = AIR 2001 SC 3014 – R. P. Sethi - J.
  7. State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540Arijit Pasayat – J.
  8. Jagdish Chanana and Others v. State of Haryana and Another = (2008) 15 SCC 704 = AIR 2008 SC 1968 – Tarun Chatterjee, Harjith Singh Bedi - JJ.
  9. Reshma Bano v. State of U.P. (2008) 5 SCC 791 = 2008 KHC 4346 (SC) – 3 Judges – Dr. Arijit Pasayat - J.
  10. State of Kerala v. Orison J. Francis (2009) 2 SCC 160 = AIR 2009 SC 500 – 3 Judges – Dr. Arijit Pasayat – J.
  11. Asmathunnisa v. State of A. P. (2011) 11 SCC 259 = AIR 2011 SC 1905 – Dalveer Bhandari – J.
  12. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur v. State of Gujarat (2017) 9 SCC 641 = AIR 2017 SC 4843 – 3 Judges – Dr. D. Y. Chandrachud - J.

B. LEGAL STATUS OF AN "FIR" AND WHO CAN GIVE IT

4. Supposing, on seeing a dead body with bleeding stab injuries on the abdomen and chest, lying on the road side, a pedestrian informs the same to an SHO either in person or through telephone, prima facie, it is sufficient "information" obliging the SHO to register an FIR, even though the ingredients of the exact offence committed against the dead person may be lacking in the information. It may either be a clear case of murder or can even be a lawful exercise of the right of private defense in order to resist a murderous aggression by the dead person. Still, on the "information" received, the SHO will have to register an FIR.

5. The purpose of an FIR is only to set the criminal law in motion. A first information statement given under Sec. 154 Cr.P.C. alleging the commission of cognizable offence need not necessarily be given by a victim or even by an eye-witness. He need not have any personal knowledge about the occurrence. (Vide Hallu v. State of MP (1974) 4 SCC 300 = AIR 1974 SC 1936 – Y. V. Chandrachud-J - Personal knowledge of the incident is not necessary for lodging an FIR);

Para 21 of Hem Raj v. State of Punjab (2003) 12 SCC 241 = AIR 2003 SC 4259 – B. P. Singh–J;

NOTE BY VRK:- It is not necessary that the person lodging the FIR had witnessed the occurrence. It is also not necessary that apart from disclosing the commission of a cognizable offence, all the details such as the manner of occurrence, the participants in the crime, the time and place of occurrence etc. shall be mentioned in the FIR. (Vide para 21).

Para 20 of CBI v. Tapan Kumar Singh (2003) 6 SCC 175 = AIR 2003 SC 4140 B. P. Singh – J;

NOTE BY VRK:- It is not necessary that the FIR should contain all the ingredients of the offence. FIR is not an "encyclopedia" disclosing all the facts and details relating to the offence. (See also State of A.P. v. Golconda Linga Swamy (2004) 6 SCC 522). A First Informant need not necessarily be an eye-witness and need not know the name of the victim or the assailant. HE may not know how the occurrence took place. At that stage it is not necessary also. If the "information" given provides the police officer empowered under Section 156 Cr.P.C "a reason to suspect" the commission of a cognizable offence, he has no option except to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. (Vide paras 19 and 20).

Sheonandan Paswan v. State of Bihar AIR 1987 SC 877 – 5 Judges (P.N. Bhagwati – CJI, E.S. Venkataramiah, V.Khalid, G.L. Oza, S. Natarajan – JJ )

NOTE BY VRK:- Locus standi of the First Informant/ complainant is foreign to criminal jurisprudence. Any citizen can lodge an FIR. If he can be the initiator of criminal prosecution, he should equally be entitled to oppose the withdrawal of criminal prosecution which had already been initiated at his instance. (Vide para 14).

C. THE PURPOSE OF FIR

6. The principal object of FIR, from the point of view of the informant, is to set the criminal law in motion, and from the point of view of the investigating authorities, is to obtain early information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty. (Vide para 5 of Sheik Hasib v. State of Bihar AIR 1972 SC 283 – 3 Judges (I.D. Dua – J ).

The fundamental object of the FIR is to act as a safeguard against "embellishment", "exaggeration" and "forgetfulness". (Vide para 19 of State of Maharashtra v. Ahmed Shaikh Babajan (2009) 14 SCC 267 (D.K. Jain – J).

7. Since the object of giving a first information to the Officer-in-charge of a police station (Station House Officer- "SHO" for short) is to set the criminal law in motion, an FIR need not give all the ingredients of an offence which will be fully disclosed only after the conclusion of investigation. In paragraph 22 of CBI v. Tapan Kumar Singh (2003) 6 SCC 175 = AIR 2003 SC 4140 – B. P. Singh – J, the Supreme Court of India observed as follows:-

"The law does not require the mentioning of all the ingredients of the offence in the FIR. It is only after completion of the investigation that it may be possible to say whether any offence is made out on the basis of the evidence collected by the investigating agency".

In the above decision at paragraph 20 the Apex Court further observed that an FIR is not an encyclopedia which must disclose all the facts and details relating to the offence reported. If one were to search for all the ingredients of an offence in the FIR, which is only a mere report about the commission of a cognizable offence, the chances are that very often all those ingredients may be absent. But from that alone, no Court can quash the FIR since the details of offence alleged therein are still to be unravelled during the subsequent investigation to be undertaken by the police.

8. In Rajesh Bajaj v. State of NCT of Delhi (1999) 3 SCC 259 = AIR 1999 SC 1216 - K. T. Thomas - J, the following observations are very apposite:-

"9. It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence. In State of Haryana v. Bhajan Lal (supra) this Court laid down the premise on which the FIR can be quashed in rare cases. The following observations made in the aforesaid decisions are a sound reminder:

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

9. In Union of India v. B.R. Bajaj (1994) 2 SCC 277 = AIR 1994 SC 1256 – K. Jayachandra Reddy – J, the Supreme Court observed that at the stage of FIR the High Court cannot go into the question as to whether the offences alleged in the FIR were made out or not.

10. Again in a 3 Judge Bench of the Supreme Court in Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1 = AIR 2008 SC 251 – 3 Judges – Dalveer Bhandari – J, it was observed in para 27 that the inherent power under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution and the High Court should normally refrain from taking a prima facie decision in a case where the facts are incomplete and hazy.

11. In State of Punjab v. Dharam Singh 1987 Supp. SCC 89 = 1987 SCC (Cri.) 621 – B. Balakrishna Eradi & S. Natarajan – JJ, it was held that the High Court had erred in quashing the FIR by going beyond the averments in the FIR to consider the merits of the case even before collection of the evidence by the investigating agency thereby restraining the Police from performing their duties.

12. A Three Judges Bench of the Supreme Court in Kurukshetra University v. State of Haryana (1977) 4 SCC 451 = AIR 1977 SC 2229 – 3 Judges – Y. V. Chandrachud - J , observed as follows:-

"It surprises in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 Criminal Procedure Code it could quash an FIR. The Police had not even commenced investigation into the complaint filed by the warden of the University and no proceeding at all was pending in any Court in pursuance of the FIR. It ought to be realized that inherent powers do not confer any arbitrary jurisdiction on the High Court to act according to its whim or caprice."

13. In Union of India v. B. R. Bajaj (1994) 2 SCC 277 = AIR 1994 SC 1256 – K. Jayachandra Reddy – J – the Supreme Court observed that at the stage of FIR the High Court cannot go into the question as to whether the offences alleged in the FIR were made out or not.

14. In Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1 = AIR 2008 251 – 3 Judges – Dalveer Bhandari - J, it was observed in para 27 that the inherent power shall not be exercised to stifle a legitimate prosecution and the High Court should normally refrain from taking a prima facie decision in a case where the facts are incomplete and hazy.

15. In S. M. Datta v. State of Gujarat (2001) 7 SCC 659 = AIR 2001 SC 3253 – Umesh C. Banerjee - J, the Apex Court observed as follows :-

"5. The approach of this Court and the law as laid down by the Judicial Committee in Nazir Ahmed cannot but be termed to be in accordance with the principles of justice. While liberty of an individual are "sacred and sacrosanct" and it is a bounden obligation of the Court to protect them but in the event of commission of a cognizable offence and an offence stand disclosed in the First Information Report, interest of justice requires further investigation by the investigating Agency. Needless to record that investigation of an offence is within the exclusive domain of the police department and not the law Courts. In the event of disclosure of an offence, it is a duty incumbent to investigate into offence and bring the offender to book in order to serve the cause of justice and it is only thereafter the Investigating Officer submits the report to the Court with a prayer to take cognizance of the offence under S.190 of the Criminal Procedure Code and it is on submission of the report that the duty of the police ends, subject however to the provisions as contained in S.173(8) of the Code. There is thus a clear and well defined area of operation and demarcated function in the field of investigation of crimes and its subsequent adjudication. In this context reference may be made to the decision of this Court in State of Bihar and Another v. JAC Saldanha and Others AIR 1980 SC 326 : 1980 (1) SCC 554".

16. In para 11 of State of Karnataka v. Pastor P. Raju (2006) 6 SCC 728 = AIR 2006 SC 2825 – G. P. Mathur – J.

"11. There is another aspect of the matter which deserves notice. The FIR in the case was lodged on 15/01/2005 and the petition under S.482 CrPC was filed within 12 days on 27/01/2005 when the investigation had just commenced. The petition was allowed by the High Court on 23/02/2005 when the investigation was still under progress. No report as contemplated by S.173 CrPC had been submitted by the incharge of the police station concerned to the Magistrate empowered to take cognizance of the offence. S.482 CrPC saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in Union of India v. Prakash P. Hinduja and Another, 2003 (6) SCC 195 where after referring to King Emperor v. Khwaja Nazir Ahmad ( AIR 1945 PC 18 ), H. N. Rishbud and Inder Singh v. The State of Delhi ( AIR 1955 SC 196 ), State of West Bengal v. S.N Basak ( AIR 1963 SC 447 ), Abhinandan Jha and Others v. Dinesh Mishra ( AIR 1968 SC 117 ) and State of Bihar and Another v. JAC Saldanha and Others ( 1980 (1) SCC 554 ), it was observed as under in para. 20 of the reports :

"20. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under S.173(2) CrPC, this field being exclusively reserved for the investigating agency."

This being the settled legal position, the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by S.482 Cr.P.C when the matter was still at the investigation stage."

17. In Neeharika Infrastructure P. Ltd. v. State of Maharashtra AIR 2021 SC 1918 = 2021 Cri.L.J. 2419 – 3 Judges - Dr. Dhananjaya Y. Chandrachud; M.R. Shah – JJ, while reiterating the Judicially settled principles, the Apex Court highlighted the following principle:-

"xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;"

18. Those who seek to quash an FIR very often forget that an FIR cannot be placed on the same pedestal as that of the "charge-sheet" (Police Report) or a "complaint" (loosely called "private complaint") since the FIR is not a document of institution unlike the "police report" or a "complaint" which are undoubtedly, documents for instituting a case.

In Ganesha v. Sharanappa (2014) 1 SCC 87 = AIR 2014 SC 1198 - C. K. Prasad – J, the Supreme Court hastened to clarify that it is wrong to call the persons who gives "information" to the SHO under Section 154 (1) Cr.P.C. as a "complainant", that he is to be called the "informant" and that "complainant" is a person who makes a complaint as defined under Section 2(d) read with Sections 190 (1) and 200 Cr.P.C.

19. When an FIR is forwarded to the Magistrate under Section 157 (1) Cr.P.C, the Magistrate is not entitled to take cognizance of the offences, if any, alleged therein unlike in the case of a "private complaint" or a "police report". FIR is not one of the sources for taking cognizance of an offence under Section 190 (1) Cr.P.C. The FIR, after completion of investigation, should ripen into a "police report" and it is only on such "police report" that a Court can take cognizance of an offence. It is impermissible for the Magistrate to take cognizance of an offence on the basis of an FIR forwarded to the Magistrate along with a remand application during the investigation stage. (Vide State of Karnataka v. Pastor P. Rajan (2006) 6 SCC 728 = AIR 2006 SC 2825 - G. P. Mathur – J.)

20. Since the Magistrate knows that it will be premature, at that stage, to reasonably suspect the commission of a cognizable offence, he will only receive the FIR and await the final report (police report) to be filed under Sec. 173 (2) Cr.P.C. Even though Section 190 Cr.P.C. envisages 4 sources for taking cognizance of an offence, the usual sources that we come across in our Courts are "police report" and "private complaint". That is why for the purpose of trial of cases, Chapter XIX Cr.P.C. mentions about cases instituted on a "police report" and instituted otherwise than on a "police report". An FIR is, therefore, not a document meant for the purpose of institution of a case. The object of sending the FIR (actually it is only a report incorporating the reasonable suspicion of the SHO regarding the commission of a cognizable offence) under Section 157 (1) Cr.P.C. to the appropriate Magistrate and the object of transmitting the entries in the police diary to the Magistrate under Sec. 167 (1) Cr.P.C. are only to ensure that the action of the SHO is liable to be overseen and/or monitored by the Magistrate. It is on such materials so transmitted to the nearest Magistrate under Section 167 (1) Cr.P.C that such Magistrate will have to decide whether the accused has to be remanded to custody or not.

D. SECTION 482 Cr.P.C. CAN BE INVOKED ONLY IN RESPECT OF A CASE PENDING BEFORE AN INFERIOR CRIMINAL COURT

21. The power under Section 482 Cr.P.C. can be exercised by the High Court –

i. to make such orders as may be necessary to give effect to any order under this Code, or

ii. to prevent abuse of the process of any Court, or

iii. otherwise to secure the ends of justice.

The position that the inherent power of the High Court can be exercised under Section 482 Cr.P.C. only in respect of a proceeding pending before an inferior criminal Court is well settled --

(Vide 1. Kurukshetra University and Another v. State of Haryana and Another – (1977) 4 SCC 451 = AIR 1977 SC 2229 – 3 Judges - Y.V. Chandrachud - J;

2. State of West Bengal and Others v. Surjit Kumar Rana (2004) 4 SCC 129 = AIR 2004 SC 1851 - S. B. Sinha - J;

3. D.Venkatasubramaniam v. M.K. Mohan Krishnamachari (2009) 10 SCC 488 = 2009 KHC 1072 (SC) – B. Sudershan Reddy - JJ;

4. State of Punjab v. Davinder Pal Singh Bhullar and Others (2011) 14 SCC 770 = AIR 2012 SC 364 Dr. B. S. Chauhan - J.

5. Sasikumar K. K. v. State of Kerala 2021 (2) KHC 146 (Kerala)R. Naryana Pisharadi – J.),

22. Out of the 3 grounds in Section 482 Cr.P.C., the last ground which reads "or otherwise to secure the ends of justice", if considered in isolation, it could, at first blush, be argued that the power under Section 482 Cr.P.C. can be exercised independent of any proceeding pending before an inferior criminal court. But then, it should be read ejusdem generis with the previous grounds in which event only it could be said that the invocation of the power is to prevent abuse of the process of any Court. It is puerile to assume that in all the aforesaid four separate verdicts mentioned earlier, the Apex Court was blissfully ignorant about the last clause of Section 482 Cr.P.C. In fact, a Division Bench of the Madras High Court in K. Rajamanickam v. State of Tamil Nadu (2015) 3 MWN (Cri) 379 (DB) - Mishra – J, has taken the view that the third clause in Section 482 Cr.P.C. should be read as ejusdem generis along with the two previous clauses. Anyway, when in all the above 4 verdicts, the Apex Court has held that the power under Section 482 Cr.P.C. can be exercised only in respect of any matter pending before an inferior criminal court, that should be the last word.

E. WHEN CAN IT BE SAID THAT A CASE IS PENDING BEFORE A CRIMINAL COURT ?

23. Merely because the copy of an FIR is sent to the Magistrate in compliance of Section 157 (1) Cr.P.C, it cannot be said that a case is pending before the Magistrate. A case can be said to be "pending" before the Magistrate or the Court only if the Magistrate or the Court, after taking cognizance of the offence on a "police report" (which is the final product after the conclusion of investigation) issues process to the accused. Then only the accused can be said to have been proceeded against. A case can be said to be "pending" only when the Magistrate takes cognizance of the offence on the Police Report and issues process to the accused. (Vide paras 23 to 25 of Muhammed v. Union of India 2018 (4) KHC 945 (Kerala) - Dama Seshadri Naidu – J; Paras 22 and 23 of Venkatesh Kandasamy v. Govt: of India, Ministry of External Affairs, Chennai AIR 2015 Mad. 3 – V. Ramasubramanium – J.)

F. ACCUSED HAS NO RIGHT TO BE HEARD DURING THE STAGE OF INVESTIGATION OR FURTHER INVESTIGATION.

24. In Union of India v. W. N. Chadha – AIR 1993 SC 1082 – S. Ratnavel Pandian - J; Narender G. Goel v. State of Maharashtra – (2009) 6 SCC 65 – Dr. Arijit Pasayat - J; Simon and Others v. State of Karnataka – (2004) 2 SCC 694 – Y. K. Sabharwal – J; Md. Kalam v. State of Rajasthan – (2008) 11 SCC 352 = AIR 2007 SC 1813Arijit Pasayat – J, etc., it has been held that the accused has no right to be heard or interfere with the investigation by the police. Again in Sri. Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of A.P. (1999) 5 SCC 740 = AIR 1999 SC 2332 – K.T.Thomas - J, it has been held that the accused has no right to question further investigation conducted under Section 173 (8) Cr.P.C.

G. REMEDY OF THE ACCUSED IF HE APPREHENDS ARREST CONSEQUENT ON THE REGISTRATION OF AN FIR.

25. As for the consequence of arrest and the harassment which are the main grounds usually put forward in support of the petitions for quashing the FIR, courts have held that the power to arrest a person should be resorted to only if it is necessary as is cautioned by Section 157 (1) Cr.P.C. itself. The impermissibility of arrest in every case and the safeguards to be scrupulously followed in every arrest etc. have been delineated in D. K. Basu v. State of W.B. (1997) 1 SCC 416 = AIR 1997 SC 610 (Dr. A.S Anand – J); Joginder Kumar v. State of U.P. (1994) 4 SCC 260 = AIR 1994 SC 1349 – 3 Judges (M.N. Venkatachaliah, CJI, S. Mohan, A.S. Anand – JJ); M.C. Abraham v. State of Maharashtra (2003) 2 SCC 649 = 2003 KHC 871 (SC) (B.P. Singh – J); Som Mittal v. Govt. of Karnataka (2008) 3 SCC 753 = AIR 2008 SC 1126 (H.K. Sema, Markendey Katju – JJ); Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 = AIR 2014 SC 2756 (C.K. Prasad – J). Moreover, Chapter XXXIII Cr.P.C. pertaining to bail can take care of the situation in cases of arrest. A contention similar to the aforesaid one voicing an apprehension that the mandatory registration of an FIR will lead to arbitrary arrest, which in turn, will result in contravention of the fundamental right under Article 21 of the Constitution of India, was repelled by the Constitution Bench of the Supreme Court of India in Lalita Kumari v. Government of U.P. and Others - (2014) 2 SCC 1 = AIR 2014 SC 187- 5 Judges (P. Sathasivam – CJI, Dr. B.S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S.A. Bobde – JJ ). (Vide paras 106 and 107 of SCC and paras 97 and 98 of AIR).

H. ACCUSED HAS NO LOCUS STANDI TO PARTICIPATE IN THE PROCEEDINGS BEFORE THE CRIMINAL COURT AT THE PRE-PROCESS STAGE.

26. Strictly speaking, it is only when the Court, after taking cognizance of the offence, issues process to the accused that he gets a right to challenge the proceedings before Court and possibly to ask for the relief of quashing the proceedings including, perhaps the "charge sheet", "FIR", "continuance of the proceedings before the Court" etc. under Section 482 Cr.P.C. on any of the grounds available to him. To allow the accused (who is yet to be summoned to the Court) to challenge the FIR will be to confer a right in the accused at the pre - process stage. In the case of a private complaint also the accused has no right to participate in the proceedings until he is summoned by the Court. In Nagawa v. V. S. Konjalgi (1976) 3 SCC 736 = AIR 1976 SC 1947(S. Murtuza Fazl ali – J); Sashi Jena and Others v. Khadal Swain and Another (2004) 4 SCC 236 = AIR 2004 SC 1492 (B.N. Agrawal – J); Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517 = 2013 Cri.L.J 144 - 3 Judges (R.M. Lodha – J), the consistent view taken by the Supreme Court is that at the enquiry stage under Sections 200 and 202 Cr.P.C which is after the stage of cognizance but before the appearance of the accused, the accused in a complaint case has no right to be heard or participate in the proceedings or cross-examine the witnesses and that even if the accused happens to be present in Court at that stage, he has no right to take part in the proceedings but can only watch the proceedings and be aware of the same. In sharp contrast, the position is different when the accused is present in Court after receipt of process. In a warrant case instituted on a "private complaint", the accused who is present in Court pursuant to the service of process, can cross-examine the witnesses not only after the framing of charge but also at the pre-charge stage. (Vide Ajoy Kumar Ghose v. State of Jharkhand (2009) 14 SCC 115 = AIR 2009 SC 2282; Harinarayan G. Bajaj v. State of Maharashtra (2010) 11 SCC 520 = 2010 KHC 169).

27. Thus, until the matter reaches the Court and a stage has arisen when it could be said that the case is "pending" before the Court, there cannot be any abuse of the process of Court or a right to challenge the FIR under Section 482 Cr.P.C. during the crime stage.

I. EVEN WITH REGARD TO A "PENDING" MATTER, THE POWER UNDER SECTION 482 Cr.P.C. SHOULD BE EXERCISED ONLY IN THE RAREST OF RARE CASES

28. Even where a matter is pending before an inferior criminal Court, the inherent power of the High Court under Sec. 482 Cr.P.C. should be exercised sparingly and with circumspection and only in the rarest of rare cases. In State of Haryana v. Bajan Lal AIR 1992 SC 604 (S. Ratnavel Pandian – J), the Apex Court sounded a word of caution as follows:-

"We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

The above observation was again noted with approval in Meherhomji P.S. v. T. Vijay Kumar (2015) 1 SCC 788 = 2015 KHC 1201 (SC) (M.Y. Eqbal – J). Likewise, there are other judicially clamped restrictions on the power of the High Court under Section 482 Cr.P.C. The bar of revision against an "interlocutory order" under Section 397 (2) Cr.P.C. cannot be circumvented by invoking the inherent powers under Section 482 Cr.P.C. (Vide P. Vijayapal Reddy v. State (Govt. of India) 1978 (4) SCC 63 = AIR 1978 SC 1590 (Jaswant Singh – J). When the power of review is expressly barred under Section 362 Cr.P.C., the High Court cannot exercise its inherent power to review an earlier order passed by it. (Vide Moti Lal v. State of M.P. 1994 Cri.L.J. 1633 = AIR 1994 SC 1544 (K. Jayachandra Reddy. G.N. Ray –JJ); State of Kerala v. M.M. Manikandan Nair (2001) 4 SCC 752 = AIR 2001 SC 2145 – 3 Judges (S.N. Phukan – J); State v. K.V. Rajendran (2008) 8 SCC 673 = AIR 2009 SC 46 (Tarun Chatterjee– J).

29. In Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur v. State of Gujarat (2017) 9 SCC 641 = AIR 2017 SC 4843 – 3 Judges (Dr. D.Y. Chandrachud – J), referred to earlier, the Supreme Court laid down the following broad principles to be followed while exercising jurisdiction under Section 482 Cr.P.C.:-

"(i) S.482 preserves the inherent powers of the High Court to prevent an abuse of the process of any Court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the Court is governed by the provisions of S.320 of the Code of Criminal Procedure, 1973. The power to quash under S.482 is attracted even if the offence is non - compoundable.

(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under S.482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any Court;

(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

(vi) In the exercise of the power under S.482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well - being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

J. IS IT THE POLICY OF THE LAW-MAKER TO QUASH NON-COMPOUNDABLE OFFENCES BY RECOURSE TO SECTION 482 Cr.P.C. ?

30. Pausing here for a moment, there is a millennium species of "Section 482 actions" where consequent on a settlement arrived at between the victim and the accused, the proceedings are quashed by the High Courts. These are not offences which are compoundable under Section 320 Cr.P.C. They are non-compoundable offences which are graver by their very nature and calling for more stringent punishment. Way back in the year 1988 the Supreme Court in a case Mahesh Chand v. State of Rajasthan AIR 1988 SC 2111 (B.C. Roy, Jagannatha Shetty – JJ) directed compounding of an offence punishable under Section 307 IPC which is a non-compoundable offence. Realizing the mistake, the Supreme Court confessed that they committed a grave error by directing the compounding of a non-compoundable offence and the 3 Judge Bench overruled Mahesh Chand. (Vide Surendra Nath Mohanty v. State of Orissa (1999) 5 SCC 238 = AIR 1999 SC 2181 – 3 Judges (M.B. Shah – J).

31. In paras 10 and 14 of Bankat v. State of Maharashtra (2005) 1 SCC 343 = AIR 2005 SC 368 (Arijit Pasayat – J), it was held that Mahesh Chand (Supra – AIR 1988 SC 2111) where Section 307 IPC was compounded and Y. Suresh Babu v. State of A.P (2005) 1 SCC 347 (A.P.Sen, B.C. Ray – JJ)and Ram Lal v. State of J & K (1999) 2 SCC 213 (K.T. Thomas, M.B. Shah – JJ) where Section 326 IPC was compounded, were decided per incurium. Then came the "millennium species" of actions quashing the proceedings consequent on a settlement of the so-called dispute between the victim and the accused. What the High Court could not do under Section 320 Cr.P.C with regard to a non-cognizable offence, could be indirectly achieved by exercising the inherent jurisdiction and quashing the proceedings. Thank God, offences such as murder, rape, dacoity etc. were judicially excluded from such actions. I had even come across a case in which it was alleged that the signature of the victim in a deed of settlement was obtained under duress and the case was got quashed at the High Court.

32. Every criminal offence committed against a member of the society is treated as an offence against the society. This justifies the State taking up the cause of the victim. That explains the fact that in every criminal prosecution, the State is the de jure complainant.

33. In the case of lighter offences, the law itself provides for a composition under Section 320 Cr.P.C, some without the permission of the Court and some with the permission of the Court. But in the case of non-compoundable offences, once cognizance is taken and charge has been framed, trial alone is the only course open to all concerned. No doubt, in cases where there has been an extra-judicial settlement, the consequent trial may be an exercise in futility thereby wasting the precious time of the Court. If such meaningless trial is the justification for quashing the proceedings by resort to Section 482 Cr.P.C., why exclude offences like murder, rape, dacoity etc.? In those cases also, there is every possibility of the trial becoming a farce, if there has been an extra-judicial settlement. In such cases also, consequent on the extra-curial settlement of the dispute, the important prosecution witnesses will naturally turn hostile to the prosecution rendering the trial a mockery. I am of the view that whether there has been any settlement or not, non-compoundable offences should undergo the process of trial. Probably, the only punishment for the offender may be to undergo the ordeal of a trial by engaging a lawyer and spending his time, energy and money for whatever it is worth.

This so-called extra-curial settlements and the Constitutional Courts cutting the "Gordian knot" with the judicial scalpel under Section 482 Cr.P.C, makes our system a mockery.

But unfortunately, the "millennium trend" has now come to stay.

K. 15 FIRS QUASHED BY A HIGH COURT AT ONE STRETCH EVEN WITHOUT NOTICE TO THE FIRST INFORMANT.

34. As per the common order dated 05-01-2016 in Shri. B.S. Yeddyurappa Vs. The State of Karnataka (Writ Petition No. 41228 of 2015 and connected cases), a learned Judge of the Karnataka High Court, has quashed fifteen F.I.Rs. registered against the accused (former Chief Minister of Karnataka ) inter alia, for offences under Sections 409 and 420 of the Indian Penal Code ( "IPC" for short) and Sections 13(1)(c) and 13(1) (d) of the Prevention of Corruption Act, 1988 ( 'P.C.Act for short) and Sections 3, 4 and 8 read with Section 9 of the Karnataka Land (Acquisition on Transfer) Act, 1991.

THE QUASHMENT OF THE F.I.R. BEHIND THE BACK OF THE FIRST INFORMANT

35. After the decisions of the Apex Court in Bhagwant Singh Vs. Commissioner of Police ( 1985) 2 SCC 537 = AIR 1985 SC 1285- 3 Judges (P.N. Bhagwati – J); Union Public Service Commission Va. Papaiah and Others – AIR 1997 SC 3876 (Dr. A.S. Anand – J); Gangadhar Janardan Mhatre Vs. State of Maharashtra (2004) 7 SCC 768 = AIR 2004 SC 4753 (Arijit Pasayat – J); Sanjay Bansal and Another Vs. Jawaharlal Vats and Others (2007) 13 SCC 71 = AIR 2008 SC 207 (Arijit Pasayat – J), it is no more open to any Court to prematurely terminate a criminal case behind the back of the complainant/whistle blower without giving him an opportunity of being heard. Far from giving Sri. Jayakumar Hiremath (the First Informant in that case) any such opportunity, he was not even made a party to the writ petitions. This also vitiates the common order of the Hon'ble High Court of Karnataka. I am not aware as to whether the matter was taken up further or not.

L. FEASIBILITY OF A CHALLENGE UNDER ARTICLE 226 OF THE CONSTITUTION

36. Now the further question is whether the FIR can be quashed under Article 226 of the Constitution of India. As mentioned earlier, the purpose of an F.I. statement is only to set the criminal law in motion and the law does not insist that such a statement should be given only by a victim or eye-witness who has firsthand knowledge about the offence. If the F.I. statement is given by a person other than a victim or eye-witness, then it is bound to be vague or incomplete. Even when the FI. Statement is given by a victim or witness it need not necessarily be a complete document. Courts have held that an FIR need not be an encyclopedia of all the relevant facts. The hazy picture presented by the FIR will be rendered more and more clear only when all the incriminating circumstances are unfolded during investigation. Even the names and other details of the culprits will be fully revealed only after the investigation has progressed considerably. If before the real facts are unearthed by the investigation, the F.I.R vaguely alleging the commission of cognizable offences is nipped in the bud, there cannot be a greater injustice. The purpose of an FIR being what it is, it may be possible in almost every case, to contend that even if the allegations made in the FIR are accepted as true, the same will not make out the ingredients of the offence. This is so because the entire facts are yet to be unravelled through the process of collecting evidence during the investigation. It is not as if the Apex Court has not delineated the approach to be made in respect of the averments in the FIR. In Paragraph 9 of Rajesh Bajaj v. State, NCT of Delhi and Others - AIR 1999 SC 1216 (K.T. Thomas – J), the Court observed as follows:-

"It is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence".

No doubt, this decision of the Apex Court has followed Bhajan Lal's Case (supra) for pointing out the class of cases in which the FIR could be quashed. I have respectful reservations about that part of this decision which says that an FIR can be quashed during the stage of investigation. Again in paragraph 9 of S. M. Datta v. State of Gujrat - AIR 2001 SC 3253 (Umesh C. Banerjee – J), although endorsing the earlier view that in appropriate cases an FIR also could be quashed, the Apex Court observed as under:-

"Criminal proceedings in the normal course of events ought not to be scuttled at the initial stage, unless the same amounts to an abuse of the process of law. In the normal course of events thus, quashing of a complaint should rather be an exception and a rarity than an ordinary rule. The genuineness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as a whole so as to decipher the intent of the maker thereof. It is not a document which requires decision with exactitude neither it is a document which requires mathematical accuracy and nicety, but the same should be able to communicate or indicative of disclosure of an offence broadly and in the event the said test stands satisfied, the question relating to the quashing of a complaint would not arise. It is in this context, however, one feature ought to be noticed at this juncture that there cannot possibly be any guiding factor as to which investigation ought to be scuttled at the initial stages and investigations which ought not to be so scuttled. The First Information Report needs to be considered and if the answer is found on a perusal thereof which leads to disclosure of an offence even broadly, law Courts are barred from usurping the jurisdiction of the Police since two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere".

Here also there is a slight overstatement of the law because the ingredients of an offence alleged in the F.I.R. will be unravelled only when the investigation is complete and the investigating Officer has arrived at the requisite satisfaction that the alleged offence has been committed and the accused should be forwarded to the appropriate Court for trial.

M. CAN THE INVESTIGATION BE STALLED ?

37. Whenever a petition for quashing an FIR is entertained by a Constitutional Court and notice to the State and first informant (whose existence is invariably forgotten) is ordered, then the interim order very often prayed for and granted is the stay of investigation which is the exclusive province of the investigating agency. By such an order the Police can successfully be disabled from collecting vital evidence which may in the natural course of events or with the intervention of human agency, disappear or perish. Think of the calamity, if after a few weeks (months or years) the petition is dismissed by the Constitutional Court. Can the investigating agency whose hands were tied for weeks, months or years, unearth any useful material after such long lapse of time? Incalculable loss may be caused to the aggrieved person for no fault of his.

N. THE FEW CASES IN WHICH THE FIR COULD BE QUASHED.

38. It cannot be disputed that there could be a few category of cases in which the FIR could be quashed either under Section 482 Cr.P.C or under Article 226 of the Constitution of India, depending upon the stage of the case. Such cases may be –

  1. cases involving offences under Section 195 Cr.P.C etc. in which the police are debarred from registering an FIR and commencing investigation, even if some of the offences are cognizable offences.
  2. cases where a second FIR is registered with regard to the same offence and same accused and not covered by the judicially exempted categories.
  3. cases in which there has been a settlement of the permissible category of dispute between the accused and the victim.

Barring the above category of cases, it may not be permissible for the Constitutional Courts to quash an FIR even before the conclusion of investigation.

O. MY CONCLUSION

39. Considering all these aspects, my humble view is that, barring the few instances referred to earlier, the Constitutional Courts cannot and should not quash an FIR which is the earliest document that comes into existence at the nascent stage of a crime. The averments in the FIR will take a tangible shape only after the process of investigation and collection of evidence is complete. No doubt, when the FIR, after investigation, ripens into a charge-sheet on which the Court takes cognizance of the alleged offences, the charge-sheet together with the FIR becomes amenable to a challenge under Section 482 Cr.P.C. The FIR could also be quashed by resort to Article 226 of the Constitution of India in cases covered under the heading "N" above.

The author is a former Judge, High Court of Kerala.


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