Inherent powers of the High Court - Sec. 482 Cr.P.C.

Inherent powers of the High Court  -  Sec. 482 Cr.P.C.

Courts subordinate to the High Court have no inherent power  under Sec. 482  Cr.P.C. or otherwise  (See  AIR 1977 SC 2432 -  Mithabhai  Pashabhai  Patel  v. State of Gujarat  - (2009) 6 SCC 332).

A Magistrate  has no inherent power   to restore a complaint  dismissed for default.  As soon as the complaint is dismissed the Magistrate becomes  functous officio and  has no longer any power to rehear the  complaint.  A power to   restore a complaint   dismissed for default by the Magistrate   is available only to the High Court.  (Bindeshwari   Prasad  Singh  v. Kali Singh  - AIR 1977 SC 2432    &    Major General  A.S.  Gauraya  v. S.N. Thakur - AIR 1986 SC 1440).                                             

All Courts,   whether civil or criminal,  possess, in the absence of any express provision,  as inherent in their  constitution, all such powers   as are necessary  to do  the right  and to undo a wrong  in the course of administration of justice  on the principle  “quando lex aliquid  alicue concedit, concedere videtur id sine quo  res ipsa esse non  potest “   (when the law gives a person  anything, it gives him  that  without which  it cannot exist).    [Vide  Minu Kumari  v. State of Bihar - (2006) 4 SCC  359].

Section 482 of the Code of Criminal Procedure, 1973  (the “Cr.P.C.” for short) reads as follows:-.

“Saving of inherent power of High Court :- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Section 482  Cr.P.C.  is a  verbatim  reproduction of Section 561- A  of the Code of  Criminal  Procedure, 1898 (the “Old Code “for short).  Section 561- A in the Old Code  was added by the Code of Criminal Procedure  (Amendment) Act of 1923  as it was felt that  the High Courts  were unable to render  complete justice  even if, in a given case, the illegality was  palpable  and apparent.  The inherent powers of the High Court  preserved by Section 561 - A   of the Old Code  are vested in  the High Court   by law  within the meaning of Article 21  of the Constitution of India.  The procedure for invoking  the inherent powers is regulated by  rules framed by the High Court and the power to make such rules  is conferred on the High  Court by the Constitution.  (See Ratilal  Bhanji v. Assistant  Customs Collector, Bombay - AIR 1967 SC 1639).

Section 482 Cr.P.C. is a reminder  to the High Courts  that they are  not merely   courts of law  but also  courts of justice  and possess  inherent powers  to remove injustice  (IRe State of Uttar Pradesh  - AIR 1959 Allahabad 69).

All that this Section does is to preserve the inherent powers of the High Court  without conferring  any additional powers – The State of Uttar Pradesh v.  Mohammed  Naim - AIR 1964 SC 703.

Section 482 Cr.P.C.  envisages   three circumstance  under which  the inherent jurisdiction may be exercised, namely:-



  1. i) to give effect to an order under  the Cr.P.C.
  2. ii) to prevent abuse of the process of court , and


iii) to otherwise  secure  the ends of justice .

It is not possible or desirable  or even expedient  to lay down  any inflexible rule which would govern the exercise   of the  High Court's inherent jurisdiction.  (See State of Karnataka v. Muniswami- AIR 1977 SC 1489).      Eventhough the inherent jurisdiction  of the High Court under Section 482  is very wide, it has to be exercised sparingly, carefully and with caution  and only when  such exercise is justified  by the   tests specifically laid down in the section itself.  It is to be exercised  ex debito justitiae  to do  real and substantial justice for the administration of which alone  courts exist.   (See R.P. Kapur  v. State of Punjab  - AIR 1960 SC 866;  Kunhammed v.  Abdul Khader - 1977 KLT 840; Mathew v. State of Kerala - 2000 (1) KLT 294,  State of Punjab v. Kasturi Lal and Others -  AIR 2005 SC 4135;   AIR 2006 SC 2872;   Monica Kumar v. State of Uttar Pradesh - (2008) 8  SCC  781 = AIR 2008 SC 1614).

The inherent power has to be exercised sparingly with circumspection  and in the rarest of rare cases.  (R.K. Lakshmanan v. A.K. Srinivasan and Another - AIR 1975 SC 1741;   Kurukshetra University  and Another v. State of Haryana and Another - AIR 1977 SC 2229  (State of  Haryana v. Bhajan Lal  - AIR 1992 SC 604;   AIR 1996 SC 2983; 2000 Crl.L.J. 824 (SC);  State of Orissa v.  Ganesh Chandra Jew  - AIR 2004 SC 2179 ;  Mohanan v. Prabha G. Nair  - (2004) 3 SCC 391;    Didigam Bikshapathi & Anr. v. State of A.P. - AIR 2008 SC 527;  Sanapareddy Maheedhar Seshagiri  & Anr. v. State of Andhra Pradesh & Anr. - AIR 2008 SC 787;    Som Mittal v. Govt. of Karnataka - AIR 2008 SC 1126; Som Mittal v. Govt. of Karnataka    - AIR 2008 SC 1528).

Exercise of power under Section 482  Cr.P.C.  is not the rule  but an exception.    (Som  Mittal  v. Government of Karnataka - (2008) 3 SCC 753).

Inherent power should not be exercised to stifle a legitimate prosecution. Janata Dal v. H.S. Chowdhary & Others -  (1992) 4 SCC 305;   State of Madhya Pradesh v. Awadh Kishore Gupta and Others - AIR 2004 SC 517; Manjula Sinha   v. State of U.P. & Others -  2007 AIR SCW 4555. 



  • High Court not to  usurp the jurisdiction of the trial Court


Invoking  the inherent power prior to the commencement of trial and letting in  of evidence, is not desirable.  The power should be exercised only in exceptional cases.  ( State of  Bihar and another v. K.J.D. Singh  - 1993  AIR SCW 2861=1993 Crl.L.J. 3537 SC). 

The High Court, while exercising inherent jurisdiction should not usurp the jurisdiction of the trial Court.  (State of Bihar  v. Murad Ali Khan and Others - AIR 1989 SC 1;      Radhey Shyam Khemka and another v. State of Bihar - 1993 Crl.L.J.  2888 SC;  Ganesh Narayan Hegde v. Bangarappa and Others - 1995 Crl.L.J. 2935 SC). 

While exercising jurisdiction under Sec. 482 Cr.P.C. the High Court will not   embark upon  an enquiry  as to whether   the evidence  on record  is reliable or not  to sustain   the accusation against the accused.  [Jehan Singh v. Delhi Administration -  (1974)  1 SCWR  691 ;  Hazari Lal Gupta   v. Rameshwar  Prasad  - (1972)  1 SCWR 71;     Hareram  Satpathy   v. Tikaram  Agarwala - AIR 1978 SC 1568;   Superintendent and Remembrancer of West Bengal  v. Aushutosh  Ghosh  - (1979) 4 SCC 381 ]. 



  • Inherent power not to be exercised ignoring express provisions in the Cr.P.C.


Inherent power of the High Court cannot be invoked   in regard to matters which are directly covered by  specific provisions  in the Cr.P.C.  (Khushi Ram  v.  Hashim  - AIR 1959 SC  542;   R.P. Kapoor v. State of Punjab  - AIR 1960 SC  866;      Eapen K. Thomas v. State  - 1963 KLT 1157; Madhu Limaye v. State of Maharashtra - AIR 1978 SC 47; Palaniappa Gounder v. State of Tamil Nadu - AIR 1977 SC 1323).  Inherent  powers cannot be exercised to do something which is expressly barred  under the Cr.P.C. - State  of Punjab v. Davinder Pal Singh Bhullar and Others - AIR 2012 SC 364.



  • Whether the bar of second revision  under    Sec. 397 (3) Cr.P.C. applies to a petition under Section 482 Cr.P.C.  ?


                The inherent power under Sec. 482 Cr.P.C. is different from    the power of revision under Sec. 397 Cr.P.C.   Therefore, in spite of the bar  under Sec. 397 (3) Cr.P.C.   for a second revision, a petition under Sec. 482 would be maintainable.   ( Krishnan v. Krishna Veni  (1997) 4 SCC 241 = AIR 1997 SC 987;  Madhu Limaye  v. State of Maharashtra  -   (1977) 4 SCC 551 = AIR 1978 SC  47)  .    But  in Dharmapal v. Ramshri  - AIR 1993 SC 1361  it was held that  the inherent power cannot be exercised  for allowing a second revision  when the same is barred under Sec. 397 (3) Cr.P.C.



  • Whether the bar under Sec. 397 (2) Cr.P.C. in relation to  interlocutory order, is applicable to Section 482 Cr.P.C. ?


Generally speaking  the bar put on revision of an interlocutory order under Sec. 397 (2)  Cr.P.C. cannot be circumvented by invoking the inherent powers under Section 482.   (Vijayapal Reddy  v. State - 1978 Crl.L.J. 1702 = AIR 1978 SC 1590).   But nothing in the Code, not even Section 397  can affect the amplitude of the inherent power preserved in Section 482.   Where the impugned interlocutory order  clearly brings about  a situation  which is an abuse of the  process of the court then for the purpose of securing the ends of justice  interference by the High Court  is absolutely necessary  and nothing contained in  Section 397 (2) can limit or affect the exercise of   the inherent power of the High Court. (Madhu Limaye  v. State of Maharashtra - [(1977) 4 SCC  551 = 1978 SCC (Crl) 10; Raj Kapoor v. State  -  (1980) 1 SCC 43].



  • WHETHER THE INHERENT POWER CAN BE EXERCISED BY  THE HIGH COURT  OVER  A COURT  WHICH IS NOT SUBORDINATE TO SUCH  HIGH COURT ?


(TERRITORIAL JURISDICTION OF THE HIGH COURT)

The jurisdiction of the High Court is confined only to  the Courts  subordinate to it in the State   for which such High Court  has been constituted   (Chellappan Pillai v. Chandulal - 1980 KLT 411).    A matter pending in a Court under the jurisdiction of another High Court cannot be quashed by the Kerala  High Court  in exercise of its inherent power under Section 482 Cr.P.C. Inherent power under Section 482 Cr.P.C. can be invoked only   when there is no other remedy open to the aggrieved party.   [Krishna Kumar Menon v.  Neoteric  Informatique  (P) Ltd.,  -  2001 (3) KLT 689 =  2000 (Crl) LJ 706 (DB)].   Hence,  a criminal complaint pending before a Court outside the  territorial jurisdiction of the High Court cannot be quashed by the High Court by invoking its inherent powers.  (Vinod Kumar v. State - 1981 Crl.L.J.  927 (Delhi).    The High Court cannot   exercise  its inherent jurisdiction under Sec. 482 Cr.P.C.  to interfere with a matter pending  in a court outside its territorial jurisdiction - (K.L. Suri v. Union of India (1988) 2 Crimes 30 (Punjab and Haryana).



  • Whether Sec. 482 Cr.P.C. can be exercised to review an earlier order ?


                The inherent power  of the High Court cannot be exercised to review an  earlier order passed by  the High Court  since   the power of review  is expressly barred   under Sec. 362 Cr.P.C. (Moti Lal v. State of Madhya Pradesh - AIR 1994 SC 1544;   State of Kerala v. M.M. Manikandan Nair  - (2001) 4 SCC  752 = AIR 2001 SC 2145; Nazar  v. Varghese and Another  - 2003 (2) KLT 1002 =  2003 Crl.L.J.  3622;    State  v. K.V. Rajendran - 2008 (3) SCC (Cri) 600.

But See    State v. Navjyot Sandhu  -(2003)  6 SCC  641 (Parliament attack case - Para 29 ) -    where  the Supreme Court  observed that  the power under Sec. 482 Cr.P.C. could be exercised notwithstanding the power under Sec. 397  or any other provision of the Cr.P.C.  though not against the   power under other laws. 

See also  A.C. Anwar and Others v. State of Kerala - 2007 (2) KLD  646.

It may be noted that Section 482 Cr.P.C.   begins with the words  “nothing in this Code shall be deemed  to limit or affect  the inherent jurisdiction of the High Court”.  These words indicate that  Sec. 482  will have  primacy  over  any other provision  in the Cr.P.C.  and  can, therefore,  override  even Section 362 Cr.P.C.  Of course, in a given case  whether  the  High Court should  review  its own earlier order  by  resort to Section 482  Cr.P.C.  should be left  to the  discretion of the High  Court  depending on the facts and circumstances of the case.  In Ramdeo  Chauhan @ Rajnath Chauhan v.  Bani Kant Das & Ors. -    AIR 2011 SC 615 it has  been held by the  Supreme Court that review of criminal judgments and orders is permissible on grounds of error apparent on the face of record.



  •  Whether a second application under Sec. 482 Cr.P.C. is maintainable ?


In  Superintendent and Remembrancer of Legal Affairs, West Bengal v.  Mohan Singh  - AIR 1975 SC 1002  the Supreme Court held that the High Court was entitled to entertain a subsequent application having regard to the change  of situation  which was prevailing when the earlier application was  dismissed.   See also (2008) 8 SCC 673.    But,   in Simrikhia  v.  Dolley Mukherjee  - AIR 1990 SC 1605  it was held that  when once the High Court on certain facts  has refused to exercise jurisdiction under Sec. 482 Cr.P.C. a second application on the same ground cannot be entertained.

1. CIVIL & CRIMINAL REMEDY

In Pratiba   Rani  v. Sooraj  Kumar - (1985) 1 Crimes 614  = 1985 Crl.L.J.  817  (SC)  it was observed as follows:-

“There are a large number of cases where criminal law and civil law  can run side by side .  The two remedies are  not mutually exclusive but clearly co-extensive and essentially differ   in their context and consequence.  The object of criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases  even his life.  This does not, however, affect  the civil remedies at all for suing the wrong-doer .  In cases like  arson, accidents  etc.  it  is an anathema  to suppose that when a  civil remedy is available, a criminal prosecution is completely barred ''.

 I (a)     CIVIL DISPUTE 



  1. Substance of the complaint has to be looked into. Where the case involved only a breach of contract  and not a criminal case of cheating, process issued by the Magistrate quashed.  (Anil Maliajan v. Bhor Industries Ltd. (2005) 10  SCC 228). 
  2. Complaint does not disclose any offence either under  Sec. 420 or Sec. 120 B I.P.C.  The case is purely a civil dispute.  Allowing the police investigation would amount to an abuse of the process of Court.  (
    Uma Shankar Gopalika  v. State of Bihar (2005) 10 SCC 336
    ).
     



  1. Civil suit having been compromised earlier, it would be an abuse of the process of Court to continue the criminal proceedings and hence quashed.  (Nalini  Shankaran v. Neelkanth Mahadeo  Kamble  - (2007) 12 SCC 90.
     
  2. Proceedings can be quashed where the dispute is purely of a civil nature (Trilok Singh v. Satya Deo Tripathi - (1979) 4 SCC 396 = 1980 Crl.L.J. 822 (SC);George Zacharia v. T.K. Varghese - (1995) Supp. 1 SCC 267; Bal Krishnan Das v. P.C. Nayar - (1991) Supp. 2  SCC 412. 
  3. In Sagar Suri v. State of U.P. - AIR 2000 SC 754 =  2000 Crl.L.J. 824, the Apex Court observed-


“A frustrated landlord after having met his warterloo in the hierarchy of  civil  Courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima  facie  appear to be an abuse  of the process of law. ..................chagrined and frustrated litigants should not be permitted to  give vent to their frustration by cheaply invoking the jurisdiction of the criminal court........................................  The conclusion is inescapable  that invoking the jurisdiction of the criminal court in this background  is  an abuse of the process of law and the High Court rather glossed over  this important fact while declining exercise of its powers under Sec. 482 Cr.P.C”.



  1. Delayed trial - Whether a ground for quashing   proceedings ?


Delay by itself cannot be a ground to quash proceedings particularly when the delay is attributable to the conduct of the accused himself.  ( Jagdish Ram v.  State of Rajasthan and another - AIR 2004 SC 1734).

In 1995 AIR SCW 2364 = 1995 Crl.L.J. 2935 (SC) the Supreme Court refused to quash the charge in a complaint case where there was a delay of 12 years in the trial when the complainant was not responsible for the delay.  (See also Pratibha v. Rameshwari Devi & Others - 2007 AIR SCW 5933 = 2008 Crl.LJ 329 (SC).

Where the prosecution was pending for almost 14 years which  caused not only mental agony to the accused but also had adversely affected his service career, the prosecution was   quashed by exercising inherent powers (S.G. Nain v. Union of  India - AIR 1992 SC 603).

Delay in conclusion of trial without any fault of the accused person violates his right to speedy trial guaranteed by the Constitution and therefore continuance of the proceedings would amount to an abuse of the process of Court.  ( Vakil Prasad Singh v. State of Bihar - 2009 AIR SCW 1418 = 2009 (2) SCALE 22).

Criminal proceedings cannot be quashed merely on ground of delay.  Court has a duty to see whether the prolongation of the  trial was on account of    any delaying tactics adopted by the accused.   Other relevant factors are  the number of witnesses examined , volume of documentary  evidence produced, nature and complexity of the offence etc.  Each case has to be judged in its own background and special features, if any .  ( State  v. Dr. Narayan Waman Nerukar  - AIR 2002 SC 2977). 

Delay in obtaining prosecution sanction and the  consequential delay in filing the charge sheet cannot be attributed to the Investigating Officer.  Charge sheet is not liable to be quashed.  (AIR 2001 SC 1246 =  Seeta Hemchandra Shashittal v. State of Maharashtra - 2001 Crl.L.J. 1242 SC).  

The fact that  20 years have elapsed since the date of the seizure of gold under the Customs Act, 1962 and Gold  (Control) Act, 1958 would be no ground for not proceeding further with the matter in as much as the offence in question was a serious economic offence which undermines the economy of the nation.  (V.K. Agarwal v. Vasantraj Bhagwanji  Bhatia and Others - AIR 1988 SC 1106 = 1988 Crl.L.J. 1106).

In a case involving misappropriation of  huge amounts the charge sheet was filed after prolonged investigation.  Delay of over 8 years was not in any way attributable to the accused.  Lackadaisical manner of investigation spread over a period of  4 years.  It was held that the valuable constitutional right of the accused  to speedy investigation and trial  was infringed and accordingly the criminal proceedings were quashed.  ( Pankaj Kumar v. State  of Maharashtra - 2008 AIR SCW 5165 = 2008 (9) SCALE 760).

Inordinate delay on the part of the investigating agency in completing the investigation cannot always be  a ground for quashing the F.I.R. (State of Andhra Pradesh v. P.V. Pavithran - AIR 1990 SC 1266 = 1990 Crl.L.J. 1306).

Facts showing that  the accused  himself was responsible  for the  long delay in concluding the trial.  The accused had repeatedly approached the High Court for quashing the proceedings and got the trial stayed every time.  Held that a direction to quash the proceedings would  amount to granting a premium to the wrongdoer.  (  State of West Bengal  v. Amiya Kumar Biswas - 2004) 13 SCC 671.

Where the accused public servant was alleged to have possessed disproportionate assets to the tune of Rs. 2,00,000/- and  during the prosecution which was pending for 14 years not a single witness was examined and the delay was not attributable to the accused, the proceedings were quashed.  (Santosh De v. Archna Guha  and Others - AIR 1994 SC 1229 = 1994 Crl.L.J. 1975).

In a prosecution  against the directors of a company for an offence punishable under Section 15 read with   Section 16 of the Environment Protection Act, 1986 the proceedings were pending for about 17 years for which the  Pollution Control Board was in no way responsible for the delay.  Held that the complaint  cannot be quashed against the directors only on the ground of delay .  (U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. and Others - AIR 2000 SC 1456).



  • Whether the proceedings can be quashed under Sec. 482 Cr.P.C. upon settlement  of the dispute between the parties in cases involving non-compoundable offences ?


1. Matrimonial Disputes

i) Where the marital partners have subsequently settled their disputes and differences.

a) S. Joshi v. State of Haryana - (2003) 4 SCC 675,  2003 Crl.L.J. 2028 SC    = AIR 2003 SC 1386  

b) Arvind Barsaul v. State of M.P.  (2008) 5 SCC 794

c) Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and Another  - (2013) 4 SCC 58 = 2013 (2) KLT  47 (SC)  

2. OTHER DISPUTES

  1. i) Where the dispute is purely of a personal nature  between the complainant and the accused and no public policy  is involved in the transactions entered into,   even if the offences  being non-compoundable  cannot be compounded, the proceedings  can be   quashed  under Sec. 482 Cr.P.C.  upon a compromise entered into between the parities.


a) State of Karnataka Muniswamy - (1977) 2 SCC 609 

b) Banhisikha Roy v. Somnath Roy - AIR 2006 SC 685

c) Madan Mohan Abbot v. State of Punjab - (2008)  4 SCC 582 = 2008 (3) KLT 19  (SC)

 d) Nikhil Merchant Central Bureau of Investigation   -    (2008) 9 SCC  677 =  2008 (3) KLT 769 -

 e) Manoj Sharma v. State   -   (2008) 16 SCC 1 = 2008 (4) KLT 417 -

 f) Shiji @ Pappu v. Radhika - 2011 (4) KLT 682 (SC)  =  2011 (4) KHC 616 (SC)

 g) Jayrajsingh Digvijaysingh Rana v. State of Gujrat and Another - 2012 (6) SCALE 525 = 2012 KHC 4382

 h) Gian Singh v. State of Punjab  - 2012  AIR SCW 5333  = 2012 (9) SCALE 257 = 2012 (4) KLT 108.

Jagdish Chanana v. State of Haryana - AIR 2008 SC 1968;    Md. Abdul Sufan Laskar v. State of Assam - (2008) 9 SCC 333  --  Every crime  is considered to be an offence against the society as a whole and not merely against an individual.



  1. WHETHER AN F.I.R CAN BE QUASHED ? 


In Kurukshetra University v. State of  Haryana - AIR 1977 SC 2229 = 1977  Crl.L.J. 1900 (SC)  the Apex Court observed as follows:-

“It surprises in the extreme that the High Court though that in the exercise of its inherent powers under Sec. 482  Criminal Procedure Code   it could quash an F.I.R.  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 F.I.R. It ought to be realised that inherent  powers do not confer any aribitrary jurisdiction  on the High Court to  act according to whim or caprice”. 

But, there are decisions galore to the effect that where the allegations made in the F.I.R.   even if taken at their  face value and accepted in their entirety, do not prima facie disclose the commission of an offence the inherent power to quash the proceedings at the initial stage can  be exercised.   See   R.P. Kapur v. State of Punjab - AIR 1960 SC 866;  State of West Bengal and others v. Swapan Kumar Guha and Others - AIR 1982 SC 949, State of Haryana  and others v. Ch. Bhajan Lal and Others - AIR 1992 SC 604, S.M. Datta v. State Gujrat and Another - AIR 2001 SC 3253, M. Krishnan v. Vijay Singh  - 2002 SCC (Cri) 19;   Jagdish Chanana & Others v. State of Haryana & Anr. AIR 2008 SC 1968 etc.

Certain legal positions are well settled.    The purpose of lodging an F.I. statement is only to set the criminal law in motion and such F.I.  statement need not necessarily   be given by a victim or an eye-witness.   The  F.I.R. need not be an encyclopedia of all the relevant facts and more incriminating material  will be  unfolded only during the investigation.   An  F.I.R. cannot be placed on the same pedestal as the charge sheet  (Police Report)  or a complaint which alone are ordinarily the  documents of institution of a  criminal case before a Court.   It  is only if information regarding  the commission of a cognizable offence is made to the officer in charge of a  Police Station can such officer register an F.I.R.  In fact, if such an information is made to the S.H.O., he has no option except  to register the F.I.R. and commence investigation.  (See  State of Uttar Pradesh v. Bhagwant Kishore Joshi - AIR 1964 SC 221; State of Haryana   v.   Bhajanlal  and Others  - AIR 1992 SC 604 ; Madhuresh v.  C.B.I.  and Others -  1997 Crl. L.J. 2820 ;    Velayudhan v. State of Kerala - 1998 (1) KLT 364.  Now, after the Constitution Bench decision of the Supreme court in Lalita Kumari v. Government of U.P.  (2014) 2 SCC 1 = AIR 2014  SC 187  -  a preliminary enquiry before registration of a crime is permitted only in matrimonial/family  disputes, commercial offences, medical negligence cases, corruption cases and abnormally delayed prosecutions.  In all other   cases, the S.H.O. is bound to register an FIR.   It is such an F.I.R. which is  very often quashed, either as against the applicant   alone or as against all the accused persons.  Thus, a case alleging the  commission of  cognizable offences is  nipped in the bud  even before the entire facts are unravelled.  The  caution  made by the Apex Court and other High Courts that the power under Sec. 482 Cr.P.C. is to be exercised very sparingly and with circumspection is very often forgotten by Judges passing such orders.   Instances are not rare,   when pending the petitions for quashing the FIR, an  interim stay of all further proceedings is asked for and liberally granted.  What is really stayed is the investigation by the police overlooking the fact that investigation  is a matter within the exclusive dominion of the Police.  Even  if the  petition is eventually dismissed,  incalculable harm might have been caused in the matter by depriving the police of their right to collect  evidence before it  is too late.  Even in cases where the F.I.R. alleges offences  such as cheating or criminal breach of trust etc. where it could be argued in certain given cases that the subject matter of the claim is really one within the cognizance of a civil  court,  the police can be apprised of the same during investigation and if in spite of that  the police were to charge-sheet the accused persons, they can challenge the final report in appropriate proceedings.  But  why  quash the F.I.R. at  a nascent stage of investigation ?

(See also the article of the author titled   “Can the Constitutional Courts  quash an FIR ?”).

It is not permissible for the High Court to quash an F.I.R.  after taking into account the documents produced     by the petitioner (Union  of India and Others v. B.R. Bajaj and Others - AIR 1994 SC 1256 =  (1994) 2 SCC 277;  Chand Dhawan v. Jawahar Lal and Others - AIR 1992 SC 1379).



  1. Whether proceedings against an absconding accused are liable to be quashed without a trial for the sole reason that the co-accused have been acquitted after trial ? 


Until  a Full Bench  of the Kerala High Cout in Moosa v. S.I.  of Police  - 2006 (1) KLT 552  held  that the acquittal of a co-accused is no reason to bar a trial in the case of an absconding accused and that the judgment of acquittal which is not inter partes would be irrelevant  to bar a second trial, such absconding accused were lavishly invoking  the  High Court's jurisdiction under Sec. 482 which itself is intended to prevent  abuse of the process of Court.



  1. Expunging adverse remarks


The High Court can,  in  the exercise of its inherent  jurisdiction, expunge remarks made by it or by a lower court if it be  necessary to prevent abuse  of the process of Court or otherwise to secure the ends of justice even if the matter has not been brought before it in regular appeal or revision.  But this power is of an extraordinary nature and has to be exercised with great care and caution.    Dr. Raghubir Saran v. State of Bihar and another - AIR 1964 SC 1;   The State of Uttar Pradesh v. Mohammed Naim - AIR 1964 SC 703.

Observations which were not necessary for the disposal of the case and made in a sweeping manner against the State and the  police department without indicating the basis for such observation, expunged.  (State of Rajasthan v. Netrapal & Others - 2007 AIR SCW 1370;   Anjani K. Verma v. State of Bihar and Another - (2004) 11 SCC 188).

Courts should avoid unsavoury remarks against judicial personage of lower hierarchy .  [K.P. Tiwari v. State of Madhya Pradesh - AIR 1994 SC 1031;  Pammi @ Brijendra  Singh v. Government of Madhya Pradesh - AIR 1998 SC 1185;  State of Gujrat  v. K.V. Joseph - (2001) 2 SCC 156 = 2000 (8) SCALE 409;  In the matter of 'K' a Judicial Officer - AIR 2001 SC  972;  In the matter of :  “RV”  a Judicial Officer -  AIR 2005 SC 1441].

A remark made against a person having no opportunity of being heard must be expunged  especially when such a person was neither a party to the proceedings nor a witness.

[Dr. Raghubir Saran v. State of Bihar and another -  AIR 1964 SC 1;  AIR 1964 SC 703;   Kishan Singh v. State of Punjab - AIR 2008 SC 233; Manish Dixit v. State of Rajasthan - AIR 2001 SC 93]

 Stigmatising remarks made by trial Judge against the investigating officer that the accused were falsely implicated by him at the instance of  some Ministers  based  on the testimony of hostile witnesses, expunged.   State of Kerala v. Sudhakaran - 2001 (2) KLT 700 = 2001 Crl.L.J. 3658 (Kerala).

Where the person disparaged  is a public servant acting in  his own independent sphere, it is absolutely necessary that the Judges' suspicion about his conduct be communicated to him and an opportunity  given to him to show cause against the view that the Judge is  inclined to take of his conduct. [S.K. Viswambharan  v. Koyakunju and Others - AIR 1987 SC 1436;  K.P. Radhakrishna Menon v. State of Kerala - 1980 Crl.L.J. 1073 (Kerala);  Dr. I.B. Gupta v. State of U.P. -  (1994) 2 SCC (suppl) 37].



  •  CONCURRENCY IN SENTENCE


Sec. 427 read with Sec. 482  of  Cr.P.C.

Shibu v. State of Kerala – 2010 (2) KLD 510     = 2010 (4) KHC 62

 



























Different  Trials
Former sentenceSubsequent sentenceConsequence
1Imprisonment other than life falling under Sec. 427 (1) Imprisonment  for life or imprisonment for fixed term  Unless concurrence  is  ordered by Court, the subsequent sentence will run consecutively.  Concurrency cannot be  subsequently ordered   by  the High Court under Sec. 482
2Imprisonment for lifeImprisonment  for life or imprisonment for fixed term Subsequent sentence shall run concurrently.  No order of Court is necessary.  But  where the  second Court wrongly  directs consecutive sentence  ignoring or disregarding the statutory mandate  under Sec. 427 (2) Cr.P.C.  the illegality can be  rectified  either under Sec. 397 Cr.P.C.  or under Sec. 482 Cr.P.C.  Even the power under  Art. 226 of the Constitution  can be invoked to remedy the injustice.




















SAME TRIAL
Former sentenceSentence  subsequent in point of time Consequence
1Sentence   of imprisonment  for fixed termSentences of  imprisonment for fixed term  Unless the Court (whether trial court or appellate court) directs  concurrency  in the sentences, such sentences shall run consecutively .  But the  Court will have to  direct  under Sec. 31 (1) Cr.P.C. the order in which  each sentence shall commence  after the expiration of   each of the other sentences .

 2Imprisonment for  a term Imprisonment for life The principles underlying Sec. 427 (2) Cr.P.C.  will apply  and the sentences shall run concurrently  unless  directed otherwise   in which case  the direction   for consecutive sentence  shall also say  that  the imprisonment for life  shall start  running  after the expiration of the  sentence of imprisonment for   the fixed term.

 3Imprisonment for life Imprisonment  for life or imprisonment  for a  fixed term The principles underlying Sec. 427 (2) Cr.P.C.  will apply  and the sentences shall run concurrently  unless  directed otherwise  in the  case of a sentence of  imprisonment for a fixed term  in which case  the direction   for consecutive sentence  shall also say  that  the imprisonment for life  shall start  running  after the expiration of the  sentence of imprisonment for   the fixed   term   and not vice versa . 

  •  Whether new documents  can be produced  along with  the petition under Sec. 482 Cr.P.C. ?


Ordinarily, the High Court will not  allow  new documents  to be produced  along with  the petition  under Sec. 482 Cr.P.C.      The  Court should  not act on Annexures to the petitions under S. 482 of the Code, which cannot be termed as evidence without being tested and proved. (State of M.P. v. Awadh  Kishore  Gupta and Others - 2003 AIR SCW  6501 ).  While exercising jurisdiction under Section  482 , it is impermissible to look into the material produced, the acceptability  of which is essentially a matter for consideration at trial.     Sathy M. Pillai v. Sarma - 2005 (2) KLT 954).    But public documents or materials which are beyond suspicion  and relied on by the accused can be taken into consideration by the High Court while  exercising powers under Section 397 or 482 Cr.P.C.   (Harshendra Kumar D v. Rebatilata Koley etc. - AIR 2011 SC 1090).

While the materials produced by the defence at the stage of framing charge  by the trial Court, cannot be considered by the trial Court  for discharging the accused, in a proceeding taken therefrom under Section 482 Cr.P.C., the High Court is free to consider the material that may be produced on behalf of the accused to arrive at a decision  as to whether the charge as framed could be maintained or not.  (State of Orissa v. Debendra Nath Padhi  - (2005) 1 SCC 568 = AIR2005 SC 359- 3 Judges; Rukmini Narvekar v. Vijaya Satardekar -  (2008) 14 SCC 1; Rajiv Thapar and Others v. Madan Lal Kapoor - (2013) 3 SCC 330.  



  • Difference in the powers of the High Court under Article 226 of the Constitution and Section  482 Cr.P.C.


            Although the  power to issue writs in the nature of mandamus, certiorari, prohibition and quo warranto and the power to pass appropriate orders under Section 482 Cr.P.C. are conferred  upon the High court, those powers undoubtedly operate in different   fields.  The power to issue writs under Article 226  of the Constitution is neither echoed nor transplanted into Section 482 Cr.P.C.  (Para 56 of Divine  Retreat Centre  v. State of Kerala - (2008) 3 SCC 542 = AIR 2008 SC 1614).

            But nomenclature under which a petition is filed, is not  relevant.  A petition filed under Article 226 of the Constitution can be treated as one under Article 227 of the Constitution or one under Section 482 Cr.P.C.  The existence of the alternate remedy of appeal or revision or of discharge at the stage  of framing  charge  may not be a bar to invoke the jurisdiction of the High Court under Article 227 of the Constitution or Section 482 Cr.P.C.  The powers conferred on the High Court under Article  226 and 227 of the Constitution of India and under Section 482 Cr.P.C. have no limit, but more the power, more due care and caution should be  exercised while invoking these powers.  When the exercise of the powers is under Article 227 of the Constitution and Section 482 Cr.P.C. it may not  always be necessary to invoke the power under Article 226 of the Constitution of India.  (Pepsi Foods Ltd.  v. Special Judicial Magistrate (1998) 5 SCC 749 = AIR 1998 SC 128).



  •  Inherent powers can be exercised only in relation to a matter pending before  an inferior criminal Court.


            Application under Section 482 Cr.P.C. lies before the High Court only in a matter pending before an inferior  Criminal Court subordinate to such High Court. (Kurukshetra University v. State of Haryana - AIR 1977 SC 2229 = (1977) 4 SCC 451;  Paragraphs 33 and 46 of  State of West Bengal v. Sujit Kumar Rana - (2004) 4 SCC 129 = AIR 2004 SC 1851 ; D. Venkatasubramaniam v. M.K. Mohan Krishnamachari - (2009) 10 SCC 488; State of Punjab v. Davinder Pal Singh Bhullar and Others - AIR 2012 SC 364.



  • Which are the judicially recognized grounds for exercising the power under Sec. 482 Cr.P.C. ?



  1. Where the allegations made in the First Information  Report or the complaint, even if they are taken at their face value  and accepted in their entirety do not prima facie constitute any offence  or  make out a case  against the accused.
  2.  Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
  3. Where the uncontroverted allegations  made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission  of any offence and make out a case  against the accused.
  4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constituted only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.
  5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just  conclusion that there is sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for th grievance of the aggrieved party.
  7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with  a view to spite him due to private and personal grudge.


(State of Haryana and Others  v. Bhajan Lal - AIR 1992 SC 604 ; Yogeshwar Rao v. State  - 1992 (3) Crimes  831).

Justice V.Ramkumar is a Former Judge, High Court of Kerala and  Chairman, Advisory Board, Kerala Anti-social Activities Prevention  Act