The appellant in Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra lodged an FIR against the accused for offences under Sections 406, 420, 465. 468, 471 and 120B of the Indian Penal Code, 1860. These offences are regarding forgery and the fraudulent sale of property belonging to the appellant. The accused successfully filed for anticipatory bail under Section 438 under the Criminal Procedure Code and the Sessions Court in Mumbai granted them protection. This protection was periodically extended for almost a year.
While this application for anticipatory bail was pending, the accused moved the Bombay High Court under Article 226 of the Indian Constitution and applied for the FIR to be quashed under Section 482 of the Cr.P.C on 17 September 2020. The Division Bench of the High Court passed the interim order stating that “no coercive measures shall be adopted against the petitioners”. This order resulted in the present appeal to the Supreme Court.
Sanctity of an investigation unencumbered by the courts
In the judgement authored by Justice Shah, the core issue was whether the High Court may pass orders not to arrest or an order of “no coercive steps” to halt further investigation while a quashing petition is being heard.
The Court relied on its extensive judicial history regarding the inherent power of the High Court and drew parameters based upon which the High Court should exercise its power under Section 482. Justice Shah referred to the Supreme Court's observations in R.P. Kapur, Kurukshetra, Zandu Pharmaceuticals, Bhajan Lal and Arun Gulab Gawali in order to emphasise the parameters regarding quashing. The Court reiterated that this power was to be used very sparingly and in the rarest of rare cases. It is to be used in a case where, at first glance, the facts and circumstances in the FIR do not amount to the offences charged and no other investigation is further required. The Court also reiterated that in exercise of such a power, the High Court must pass a speaking order detailing the reasons regarding why this was an exceptional circumstance that required interference.
Following this the Court delved into the rights and duties of the police and their powers of investigation. Under Section 154, CrPC the police are required to record all the information possible regarding the cognizable offence. And under Section 156, CrPC they are empowered with the right to investigate into the circumstance of such an offence. The Court first relied on the findings in King Emperor v. Khwaja Nazir Ahmad which states that statutory rights of police cannot be interfered with by the Court exercising its inherent power. The judgement laid down that the judiciary and the police are complementary arms of the law.
In Bhajan Lal again, it was observed that in a routine case an interim stay order would amount to an interference with the investigation. This was held to be unacceptable, barring a situation where a non-interference would result in a miscarriage of justice, or the allegations do not contain a cognizable offence.
Referring to the Court’s decisions in Satvinder Kaur and Tapan Kumar Singh, Justice Shah upheld that while examining whether to quash an FIR the Court cannot start an exercise of determining the genuineness of the allegations. The FIR, it is stated, is not an encyclopaedia of all the facts and circumstances of the offence and the police must be permitted to complete their investigation. The Court should not “scuttle” criminal proceedings at the initial stage.
Sending a message to the High Courts
With this, the Supreme Court returned to the Maharashtra High Court Order and acknowledged that there have been a large number of orders passed by High Courts across jurisdictions directing the police (or with similar language) not to arrest.
In the present case, the Court ruled a blanket order of “no coercive steps” with no recorded reasons to substantiate such an order would adversely affect the statutory rights and duties of the police towards investigating the offence and allow for time-sensitive evidence to be lost. As for the rights of the accused, the Court referred back to the section that the accused had already invoked as a remedy. Section 438 of the Cr.P.C. presents a remedy against arrest in the form of anticipatory bail. Justice Shah cautioned against repeated invocation of Article 226 and Section 482 so as not to reduce it to being functionally the same as granting anticipatory bail under Section 438.
Justice Shah bemoaned that despite repeatedly deprecating the High Courts against the passing of such orders, this misleading exercise of power continues to take place and can have serious consequences in how justice is administered.
The Court upheld the rights and duties of police officers to investigate cognizable crimes by strongly emphasising principles previously laid down by the Supreme Court against judicial interference in the investigative process. The Court also built upon the foundational principle that the judiciary should not interfere in the investigative process in some key aspects.
Firstly, Justice Shah went into detail about exactly how staying investigations or otherwise interfering in them through the use of the Court's inherent power could adversely affect the investigative process, especially evidence gathering.
Secondly, a warning was relayed to the Courts that such use of their inherent power with “whim and caprice” could result in a dangerous precedent of Courts wielding these powers with impunity and without recording reasons.