HC’s Power To Grant Interim Relief, Stay On Coercive Steps Must Be Well-preserved Subject To Guiding principle: SC

HC's Power To Grant Interim Relief, Stay On Coercive Steps Must Be Well-preserved Subject To Guiding principle: SC

In the case of Arnab Goswami, ‘s the Hon’ble Bombay HC refused to grant interim bail pending consideration of the petition for quashing of criminal proceedings, thereafter the Hon’ble court mentioned that the case cannot be shut down completely. Even though the power must be exercised carefully, but judicial discretion has to be there, observed Hon’ble Justice D. Y. Chandrachud on 17th March 2021. 

The Hon’ble bench measured the outlines of the power of quashing under section 482, Criminal Procedure Code, 1973 (hereinafter referred to as “CrPC, 1973) 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. While measuring the outlines of power the Hon’ble court stated that “Judicial discretion has to be exercised with care, in a manner to not stultify the prosecution” in addition to it the Hon’ble court also held that “We know that the door cannot be closed completely. But to what extent it is to be opened is the question” 

Hereafter the Hon’ble court illustrated a situation to the petitioner and requested him to give his opinion “Suppose, a person believes that no offense 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 does not result in conflicting judgments then? If the High Court has the power to grant interim bail or interim anticipatory bail, why it should not be exercised?” 

Further, the petitioner cited that “In the case of Arnab Goswami, it was noted by the Hon’ble court that the bar is there on enlarging one on bail even under Articles 226 of the Indian Constitution if the Hon’ble court is not interfering on the petition for quashing. The petitioner also stated that If the  Hon’ble court feels that it is a matter which authorizes interference, the bail can be granted”. 

About the same, the Hon’ble court further added that “How should the court decide if it wishes to entertain it or dismiss it at the outset?”, it was then pointed out by the Hon’ble court “the moment an FIR is filed, it is immediately followed by a petition under section 482 of CrPC, 1973. No time is given to the police authorities to investigate the contentions cited in the FIR There are situations and situations like this”. 

The Hon’ble court also reflected that “In cases of physical violence, there is no problem. But the real problem arises in economic offenses. There are civil offenses which are made economic offenses.”  Besides, the same, the petitioner mentioned that “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…?”.

The Hon’ble later questioned the petitioner based on the statement passed by the petitioner that “What should be the parameters? There is some doubt”. To which the petitioner responded to the Hon’ble court that There is sufficient play in the joints. There is Bhajan Lal, Habeeb Jeelani, Arnab Goswami, and Ravuri. The petitioner further stated that the  Hon’ble court has the power under section 482 of CrPC, 1973 which is to be exercised in the ‘rarest of the rare’ cases. The Petitioner also mentions that the phrase ‘rarest of the rare’ is used in connection with the award of the death penalty. This ‘rarest of rare’ phraseology was familiarized because it is something that is to be knocked off at the threshold. 

The Hon’ble court added to what the petitioner has stated and believes that “Jeelani has been misunderstood. The Hon’ble Court looked at it very, very closely in Arnab Goswami”.

The Hon’ble Court while hearing the present petition also pondered the Arnab Goswami decision, penned by Hon’ble Justice Chandrachud, the Hon’ble apex court had noted that the Bombay HC reliance on Jeelani was misplaced as the ruling in Jeelani arose in a situation where the Hon’ble HC had declined to entertain a petition for quashing an FIR under Section 482 CrPC, 1973 but focused the investigating agency not to arrest the accused during the pendency of the investigation. “This was held to be impermissible by the Hon’ble Court. On the other hand, the Hon’ble Court clarified that the Hon’ble HC 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. Therefore, the Hon’ble HC 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”.

Furthermore, Hon’ble Court explained, “What was found wrong was that the Hon’ble HC 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, the petitioner submitted, “Authorizing the investigation will not result in the miscarriage of justice. It is because the police authorities started misusing the registration of FIR with an arrest that FIR has become a humiliation and that is why people started rushing to the court” 

The Petitioner also added that “Just like the courts must not interfere too readily, a hands-off approach also will not work. The power is there, and in a case warranting interference, it may be exercised. But where Your Lordships are not interfering at all, where you are not granting a stay, to grant bail might not seem correct. The power of interim relief is a part of the power to quash”. To which the Hon’ble court held that “the Hon’ble court has to balance between the rights of the accused and the investigation”. 

The Hon’ble court furthermore stated while responding to what the petitioner mentioned “As you said, there is a difference between the registration of the FIR for investigation and arrest. The latter needs a stricter standard. Of course, Sections 438 and 439 CrPC, 1973 are there, but can it be said that in all cases, bail cannot be granted? In the Supreme Court, we may dismiss a plea but we grant liberty to take appropriate recourse. We also say that one day notice is given. It is our way of saying that a liberal approach is taken and that the application must be heard”.

“We also say that if you surrender before the competent court within two weeks, you can apply for regular bail. We add that it will be considered expeditiously. Sometimes, we say that the Court may consider the bail on the same day also. There are some cases of a family dispute, where some family members have been roped in unnecessarily, so though we don’t exercise the power, we tell the Court to decide the petition on the same day”. 

“Section 41(1)(a) (of the CrPC) says that the police officer ‘may’ arrest (a person believed to have committed a cognizable offense). The court has construed it to mean that the person need not necessarily be arrested. But whether there is to be an arrest or not, unless it is an anticipatory bail plea, it is not a power which the High Court will normally exercise”, continued the Hon’ble judge. 

To which the Hon’ble bench added, “the person is not remedy-less even after 482 for quashing is dismissed. There is still 438″, Then, in all cases of 482, there will also be a 438. Virtually, we will end up in the same position”.  

In the present case, there was a Section 438 CrPC, 1973 application before the Hon’ble sessions court. The Hon’ble sessions court grants the interim bail. Then, there was an adjournment after adjournment for one year. As this period of one year is to end, the petitioner has moved the application under section 482 CrPC. Then, there is a stay on any coercive steps. Needful to mention that “Coercive steps means arrest and investigation”. After analyzing the circumstances and discussing all the relevant points in the present case the Hon’ble court pronounced that “If you resort to these stratagems, it hurts the investigation, the Hon’ble bench also mentions that, the number of applications filed by the petitioner under section 482 of the CrPC, 1973 before the Hon’ble High Courts is very great. Besides, the application filed under section 482 of the CrPC may come up for hearing after months or even years, Meanwhile, the evidence may be destroyed”. 

“We don’t want to deprive the Hon’ble HC of the power. It is a valuable power for personal liberty. It must be preserved, subject to guidelines. The problem is the manner of misuse of criminal justice administration by the accused, or by the complainant, or even within the political realm”, continued by the Hon’ble Court. 

The Hon’ble bench had articulated concern regarding the rising trend among High Courts across the country to routinely grant interim relief by way of a stay on any intimidating action pending a writ petition or a petition under section 482, CrPC, 1973 for quashing of criminal proceedings.

The Hon’ble bench was hearing an SLP arising out of a September 2020 order of the Hon’ble Bombay High Court on a writ petition. While granting time for the filing of a reply affidavit with additional documents, the Hon’ble HC had in the interim directed that no intimidating measures be adopted in respect of the FIR registered by the present petitioner with the Economic Offences Wing for alleged offenses under Sections 406, 420, 465, 468, 471 and 120B of the Indian Penal Code 1860. 

Needful to mention that on 12th October 2020 the Hon’ble bench had issued the notice on the SLP, and granted an ad-interim stay on the aforesaid direction of the Hon’ble HC. The Hon’ble bench had also recorded that three orders were passed by the Hon’ble Additional Sessions Judge, City Sessions Court at Mumbai on 15th  October 2019 under Section 438 of the CrPC, 1973 granting interim protection from arrest to the respondents. 

Moreover, the protection which was granted by the Hon’ble Sessions Court was extended from time to time and nearly a year thereafter, a writ petition was moved before the Hon’ble Bombay High Court in which a blanket order has been passed on 28 September 2020.