HC's Power To Grant Interim Relief, Stay On Coercive Steps To Protect Personal Liberty Must Be Preserved Subject To Guidelines: Supreme Court

"When the Bombay High Court (in Arnab Goswami's case) closed the door (in refusing to grant interim bail pending consideration of the plea for quashing of criminal proceedings), we opened it and we said that it cannot be shut completely. Although the power must be exercised sparingly, but the judicial discretion has to be there", observed Justice D. Y. Chandrachud on Wednesday.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."But this judicial discretion has to be exercised with care, in a manner so as to not stultify the prosecution", added Justice Chandrachud."We know that the door cannot be closed completely. But to what extent it is to be opened is the question", noted Justice Khanna on Wednesday."Suppose, a person believes that no offence is made out? When a matter is before a court, the court has to examine it. It has to issue notice. Suppose, the court says that there will be no interim stay, then the person will move an anticipatory bail plea. Will it not result in conflicting judgements then? If the High Court has the power to grant interim bail or interim anticipatory bail, why it should not be exercised?", asked Justice Khanna to Senior Advocate K.V. Vishwanath, for the petitioner-company."In Arnab Goswami, it was noted that the bar is there on enlarging one on bail even under 226, if the court is not interfering on the plea for quashing. If the court feels that it is a matter which warrants interference, the bail can be granted", advanced Mr. Vishwanath."How should the court decide if it wishes to entertain it or dismiss it at the outset?", asked Justice Khanna."The moment an FIR is filed, it is immediately followed by a 482 petition. No time is given to the police to investigate the allegations in the FIR! There are situations and situations like this!", pointed out Justice Shah."In cases of physical violence, there is no problem. But the real problem arises in economic offences. There are civil offences which are made economic offences!", reflected Justice Khanna."Tomorrow, a closure report may come to be filed, stating that it is a civil case. Then, the de facto complainant has other remedies. But to say that no investigation at all can take place…?", advanced Mr Vishwanath."What should be the parameters? There is some doubt...", asked Justice Khanna."There is sufficient play in the joints. There is Bhajan Lal, Habeeb Jeelani, Arnab Goswami and Ravuri (judgment of Justices Chandrachud and Shah of March 9). Your Lordships have said that the power under 482 is to be exercised in the 'rarest of the rare' cases. This is a phrase which is used in connection with the award of the death penalty! This 'rarest of rare' phraseology was introduced because it is something which is to be knocked off at the threshold! Now, Your Lordships may say that this list of cases is not exhaustive", replied Mr. Vishwanath."Jeelani has been misunderstood. We looked at it very, very closely in Arnab Goswami", commented Justice Chandrachud.In the Arnab Goswami decision, penned by Justice Chandrachud, the top court had noted that the Bombay High Court's reliance on Jeelani was misplaced as the ruling in Jeelani arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482 but nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. "This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for quashing and the self- restraint imposed by law, has the jurisdiction to quash the investigation ―and may pass appropriate interim orders as thought apposite in law. Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out", it was held in the Arnab Goswami case.As regards Ravuri, Justice Chandrachud explained, "What we found wrong was that the High Court said that there would be no arrest at all till the final report under section 173, CrPC is filed, even though the petition for quashing was dismissed"Continuing his submissions, Mr Vishwanath advanced, "Permitting the investigation will not result in miscarriage of justice. It is because the police started misusing the registration of FIR with arrest that FIR has become a stigma and that is why people started rushing to the court. Otherwise, Lalitha Kumari says that FIR registration is to protect the accused as much as it is to set the law in motion. A number of rights enure to the accused also on the...

HC's Power To Grant Interim Relief, Stay On Coercive Steps To Protect Personal Liberty Must Be Preserved Subject To Guidelines: Supreme Court

Mehal Jain

Tags