This Article is submitted by –
H.S.Randhawa, Advocate practicing at the Punjab and Haryana High Court.
Rationale and Origin
For any lawyer practicing on the criminal side in the High Court Section 482 of The Code of Criminal Procedure,1973(Cr.P.C) comes as the most lethal weapon in his armoury. Now what makes it as the most lethal weapon has been best described by the Allahabad High Court, wherein in one of its Judgment’s while dealing with the canvass of the said section it has gone on to add that ‘The section is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice’. Further what makes the said section as the most efficacious remedy to remove injustice is the vital fact that the powers enshrined under the said section are immune from the Law of Limitation.
Coming to the origin, since at the inception the High Courts were unable to render complete justice even in a given case where the illegality was palpable and apparent, thus to overcome this lacuna lead to the incorporation of Section 561-A of the Old Code of 1898. The present Section 482 stems out of the said section as being the reproduction of the same.
Explanation of Section:
Before embarking upon a further journey it would be important to go through the Section 482 as it stands out today:
“Nothing in this code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice”
The Hon’ble Supreme Court in State of Karnataka vs Muniswami AIR 1977 SC 1489, while dealing with the definition of Section 482 has held that ‘Section envisages 3 circumstances in which the inherent jurisdiction may be exercised those are, to give effect to an order under Cr.P.C., to prevent abuse of the process of the court and to secure the ends of justice’.
Kelsen’s Grundnorm in respect to Section 48: State of Haryana vs. Bhajan Lal (1992 Supp. (1)SCC 335)
The Supreme Court of India in the above said Judgment has evolved the basic norm on the touchstone of which provisions of Section 482 could be adhered to quash criminal proceedings or FIR:
• 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.
• Where the allegations in the first information report and other materials, if any, accompanying the FIR 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 purview of Section 155(2) of the Code.
• Where the allegations made in the FIR 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.
• Where the allegations in the FIR do not constitute a cognizable offence but constitute only 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.
• Where the allegations made in the FIR 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.
• Where there is an express legal bar engrafted in any provision 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 the grievance of the aggrieved party.
• 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.
Further argumentation on the canvass of Section 482
• Section 482 uplifts the bar of Section 397(2)- In case of Madhu Limaye vs State of Maharashtra,1977(4) SCC 551 it has been held that where the impugned order spells about an abuse of the process of court or where to secure ends of justice interference of High Court is necessary the bar imposed by Section 397(2) ie there shall be no power of revision in relation to an interlocutory order, shall be lifted by the virtue of powers under Section 482.
• Summoning in a criminal complaint a serious matter and the same not be resorted to in a casual manner- This was held in the case of Pepsi Food Ltd. and Anr. vs Special Judicial Magistrate and Ors 1998(5) SCC 749 , wherein the Supreme Court had further gone onto add that powers enshrined under Section 482 have no limits.
• Available of alternative remedy no bar to the invocation of Section 482. In Prabhu Chawla vs State of Rajasthan 2016 SCC OnLine SC 905, clearing the dichotomy as stood between the Judgments of Dhariwal Tobacco Products Ltd. and Ors. Vs State of Maharastra and anr. (2009)2 SCC 370 and Mohit vs State Of Uttar Pradesh (2013)7 SCC 789 it was duly held that in view of the non obstante clause there can be no total ban on the exercise of the wholesome jurisdiction as provided by Section 482.
• Section 320 does not limit or affect the powers under Section 482 and further Section 482 and Article 226 of The Constitution are alike in nature. In B.S.Joshi & Ors. Vs State of Haryana & Anr. (2003)4 SCC 675 it was held that Section 320 which lays down compoundable offences would not limit the power of Section 482 and the same can be invoked to quash even offences which are non compoundable in nature. The said was done while entertaining a petition under Section 482 read with Article 226 and 227 of The Constitution thus recognizing the fact that the said sections are ancillary in nature.
• Section 482 can be resorted to achieve even something duly barred by law provided the same is essential to secure ends of justice: The leading example on this aspect is invocation of Section 482 read with 438 Cr.P.C. in cases of seeking pre arrest bail under the Scheduled Caste and Scheduled Tribe(Prevention of Atrocities) Act,1989, though the same being barred under the said law by virtue of Section 18-A but by invocation of 482 enables the court to lift the veil and to ascertain the truth and accordingly grant the relief.
Certain fetters on the invocation of section 482
Though as can be perused from the above Judgments the High Court under Section 482 has been given illimitable powers but on account of the same accused in their endeavour to thwart even legitimate investigations/trials flooded the High Courts, thus to prevent such abuse of the process of law and prevent any miscarriage of justice necessitated the need to lay bound these powers with certain fetters. Some of which are:
• Section 482 ordinarily not to be resorted to quash a FIR pending investigation: Right from Jehan Singh vs Delhi Administration 1974 AIR (SC) 1146 till date the consistent view of The Hon’ble Supreme Court has been to the above effect, the main reasoning behind that lies that if the bare reading of the FIR discloses a cognizable offence than the investigation must proceed because if eventually no case would be made out the investigating agency is at liberty to present a cancellation report but not even allowing the investigation to proceed would be to kill the child in the womb itself.
• While exercising powers under Section 482 High Court cannot interfere with the manner of investigation of a case or direct the investigating agency to investigate from a particular angle or to arrest the accused: The same was observed by the Apex Court in M.C. Abraham and Another vs State of Maharashtra and Others (2003) 2 SCC 649, wherein it has further gone to the extent of saying that investigating agency is the master of investigation and is at liberty to proceed in its desired direction being free from any interference.
• Section 482 cannot be resorted to with a prayer to police to register a FIR: In Sakiri Vasu vs State of Uttar Pradesh and others (2008) 2 SCC 409 it was categorically held that for a prayer to register a FIR the aggrieved person has to first resort to Section 154(3) Cr.P.C, even if still his issue is not addressed he has a further remedy of 156(3) Cr.P.C before the magistrate but the remedy of Section 482 would not be available to him.
• Section 482 is not available to seek quashing in cases where the offences are against the state: In State of Madhya Pradesh VS Laxmi Narayan, 2019 SCC Online SC320 it has been duly held that the powers of Section 482 cannot be invoked to seek quashing in the cases involving heinous and serious offences of mental depravity or offences like murder, rape, dacoity, or under special statutes like the Prevention of Corruption Act etc as the same are acts not of private nature but being offences against the State.
• Power under Section 482 cannot be used to hold a mini trial or a roving and a fishing inquiry : As held in Amit Kapoor vs Ramesh Chander (2012)9 SCC 460, the High Court under 482 is barred from a meticulous examination of the evidence or hold a mini trial, conduct a fishing inquiry as the same is the domain of the trial court and by doing so the High Court cannot be allowed to circumvent a legitimate prosecution.
Thus a sequel to the above it can well be crystallized that when an aggrieved person approaches the court in a petition under Section 482 then the court is possessed with enormous powers to do justice or remove injustice. The Court’s vast powers are meant to prevent any abuse of the process or to secure the ends of justice. These powers must be exercised for the advancement of justice. Ends of justice are always higher than the ends of mere law and for accomplishing that noble goal the courts have rightly been invested with adequate powers. While saying so at the same time it has to be kept in mind that though the powers possessed by the High Court are extremely wide but the very plentitude of the power requires the court to function with greater caution and circumspection in the exercise of those powers. In other words, the power under Section 482 is to be exercised, ex debito justitiae, ie to do real and substantial justice.
“The views of the authors are personal“