"At the ad interim stage, the High Courts must include one small paragraph on what weighed with them in granting the relief. We are not saying at all that the High Courts are bereft of this power! But because it is a wide power, it is expected that it is exercised responsibly", observed Supreme Court on Thursday.
The bench of Justices Chandrachud, M. R. Shah and Sanjiv Khanna was considering the contours of the power of quashing under section 482, CrPC and the power to grant interim relief by way of bail/anticipatory bail, stay on coercive steps i.e. a stay on arrest and investigation.
Justice Chandrachud explainedn that the standard of 'rarest of the rare', prescribed by the Supreme Court in the cases of Bhajan Lal and Kurukshetra University v. State of Haryana for the exercise of the power under section 482, is not as stringent as in the case of awarding a death sentence-
"In 302, it is far more stringent than just circumspection and caution. But in 482, the standard is of the court employing sufficient circumspection and caution."
"Of course, there may be genuine cases also where the criminal law has been misused. In such cases, the petitioner would say that 'Don't just stay silent but protect me also!' The accused must also be protected from harassment", said Justice Chandrachud.
"Only last week, there was a case when the High Court had granted bail in a 302 case- double murder, triple murder! The High Court just said that the submissions have been considered and in the facts and circumstances of the case, the person is being released!. There is nothing at all on merits! So as to not prejudice the trial, the High Courts do not appreciate the merits at all!...The other end of the spectrum was where in a petty offence, the person languished in jail for three years!", reflected Justice Chandrachud.
"Qua the Supreme Court, I give reasons even at the stage of issuing notice. It helps us when the matter comes back to us, we know what the submissions were. It also helps the lawyers, because a notice is practically a stay. All courts, including the Supreme Court, must adopt this practice. You must clarify what weighed with you in issuing notice...Sometimes, I even dismiss the matter on hearing the other side. And this is not because I was wrong but because of the representation which was made", continued the judge.
"The reasoning is important not just for the lawyers but also for the higher court. We are not asking for a detailed reasoned order, but something based on which we can say with certainty that there has been an application of mind; that it is a special case or extraordinary case that warrants the order, you have to give us a flavour of that!", agreed Justice Shah.
"Also, in granting such a relief, the rights of the investigating agency are also interfered with. So you must give some reasons", agreed Justice Shah.
"When High Courts mechanically issue notice, then the burden of 482 petitions becomes so large. When you apply your mind, the time taken is quantum multiplied. The backlog becomes so large", observed Justice Chandrachud.
It was suggested that instead, spending 3 to 5 minutes at the outset itself may make it clear that there is nothing in some petitions to warrant any intervention.
"And in most cases, there is also an automatic stay...During the pendency of the notice, if the Investigating Officer proceeds with the investigation, the High Court demands 'Why did you do so when we have issued notice?'. Then he may say that there was no stay", added Justice Shah.
As regards the proposal for a time-bound disposal of the section 482 petitions in view of these ramifications of the interim relief, Justice Chandrachud remarked;
"The High Court may say 'Rule returnable in four weeks'. But this four weeks may become four months or even four years. These timelines mean nothing. From our interaction with our colleagues across the country, we have understood that the pressure on the infrastructure is enormous and our High Courts are labouring under incredible volumes- be it the commercial courts of Delhi and Bombay or Bangalore, Calcutta, Hyderabad, Patna"
"This is the harsh reality. The board is very heavy. The High Courts are dealing with 300 to 400 482 matters every day. It is virtually impossible to say 'Dispose off within 10 days'", agreed Justice Shah.
As regards whether the power of grant of interim relief under section 482 can be confined to, inter alia, sections 406 and section 420 of the IPC, which tend to be invoked in cases which are in the nature of civil dispute, Justice Shah remarked, "Even if the case has the flavour of a civil dispute, it can also be of criminal nature".
"It may be a suit for specific performance but if the cheque is forged or fabricated, it becomes a criminal case. Similarly, in a civil contract, if a breach can be seen in a criminal context, then an FIR would lie. Suppose, you don't have the title to a property but you enter into an agreement for its conveyance. Because you induced the other party to enter into the transaction, criminal prosecution will lie. You cannot say that the only remedy is recovery of money", agreed Justice Chandrachud.