SC'S 10-point exposition of Section 482 CRPC for quashing first in information report

Introduction

On 04-10-2017, while disposing the case Parbatbhai Aahir & Ors. Vs. State of Gujarat & Anr. (Criminal Appeal No. 1723 of 2017), A three judge bench of the supreme court comprising of Hon'ble Mr. Chief Justice Dipak Misra, Hon'ble Mr. Justice AM Khanwilkar and Hon'ble Mr. Justice DY Chandrachud has laid down broad principles from various precedents in relation to Section 482 of the Code of Criminal Procedure (CrPC) for quashing of First Information Reports (FIRs) in the judgment passed in an appeal against a decision of the Gujarat High Court.

Inherent Power of High Court

Section 482 of Criminal procedure code reads as follows:

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

The section was added by the Code of Criminal Procedure (Amendment) Act of 1923 as the high courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely:

1. to give effect to an order under CrPC,

2. to prevent abuse of the process of the court,

3. to secure the ends of justice.

It comes into operation when the court acts judicially and passes an order. If order is passed by Executive officer of State in administrative capacity, it has no application. Therefore persons aggrieved by such order cannot come to HC to exercise its inherent power under this section. As the Inherent powers are vested in HC by “law” within meaning of Art 21 of Constitution, therefore, any order of HC in violation of any right under Art 21 is not ultravires. Eg. Cancelling of bail bond by HC thereby depriving a persons personal liberty.

Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be exercised in exceptional cases. 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. The inherent power of the high court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under section 482 is discretionary, therefore the high court may refuse to exercise the discretion if a party has not approached it with clean hands.

Under CrPC , inherent powers are vested only in the high courts and the courts subordinate to the high courts have no inherent powers. In Bindeshwari Prasad Singh v Kali Singh , the Supreme Court held that a magistrate has no inherent power to restore a complaint dismissed in default.

In a proceeding under section 482, the high court will not enter into any finding of facts, particularly when the matter has been concluded by concurrent finding of facts of two courts below.

Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However such inherent powers are to be exercised sparingly and with caution.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provision provided under the Code.- Kavita v. State (2000 Cr LJ 315) and B.S. Joshi v. State of Haryana (AIR 2003 SC 1386). If an effective alternative remedy is available, the high court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.

It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure should be exercised. But some attempts have been made in that behalf in some of the decisions of supreme court viz State of Haryana Vs. Bhajan Lal (1992 Supp (1) SCC 335), Janata Dal Vs. H.S. Chowdhary and Others (1992 (4) SCC 305), Rupan Deol Bajaj (Mrs.) and Another Vs. Kanwar Pal Singh Gill and Another (1995 (6) SCC 194), Indian Oil Corp. Vs. NEPC India Ltd. and Others (2006 (6) SCC 736).

Brief facts of the case Parbatbhai Aahir & Ors. Vs. State of Gujarat & Anr. (CDJ 2017 SC 1109 & 2017 (4) ILR(Ker) 169)

The Gujarat High Court vide its judgment dated November 25, 2016, had dismissed an application under Section 482 of CrPC filed by the Appellants seeking quashing of FIR registered against them on June 18, 2016 with the City 'C' Division Police Station, District Jamnagar, Gujarat for offences punishable under Sections 384, 467, 468, 471, 120-B and 506(2) of the Indian Penal Code.

Before, the High Court, the plea for quashing the FIR was advanced on the ground that the Appellants had amicably settled the dispute with the Complainant, who had also filed an Affidavit to that effect. On behalf of the prosecution, application for quashing was opposed on two grounds:

i) The Appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973.

ii) The Appellants had criminal antecedents.

The High Court observed that it had been given "a fair idea" about the modus operandi adopted by the Appellants for grabbing the land, in the course of which they had opened bogus bank accounts. The High Court held that the case involves extortion, forgery and conspiracy and all the Appellants have acted as a team. Hence, in the view of the High Court, it was not in the interest of society at large to accept the settlement and quash the FIR. The High Court held that the charges are of a serious nature and the activities of the appellants render them a potential threat to society. On this ground, the prayer to quash the First Information Report was rejected by the High Court.

The Hon'ble Supreme Court after discussing various precedents viz Gian Singh v State of Punjab (2012) 10 SCC 303), Narinder Singh v State of Punjab (2014) 6 SCC 466), State of Maharashtra v Vikram Anantrai Doshi (2014) 15 SCC 29), Central Bureau of Investigation v Maninder Singh (2016) 1 SCC 389), State of Tamil Nadu v R Vasanthi Stanley (2016)1 SCC 376),  on the subject summarized the following broad principles in relation to Section 482 for quashing FIRs.

i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court;

ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;

a. to secure the ends of justice or

b. to prevent an abuse of the process of any court;

v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;

vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;

viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavor may in appropriate situations fall for quashing where parties have settled the dispute;

ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanor. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

The Apex Court dismissed the appeal holding that the High Court was justified in declining to entertain the Application for quashing FIR in the exercise of its inherent jurisdiction.

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CONCLUSION

Section 482 CrPC has a very wide scope and it is really important for the High courts to use it properly and wisely. Many a time it has been observed that when there is an issue of money for eg. any money matter then the petitioner instead of filing a civil suit file an FIR against the other person just to harass him. In such cases, it becomes very important for the high courts to quash such complaints as it leads to the abuse of the process of the lower courts. Section 482 would enable the courts for providing proper justice and also should be exercised to stop the public from filing fictitious complaints just to fulfill their personal grudges.

In view of the above 10 expositions, it has been clearly held by the Apex Court that the High Court while exercising its power under Section 482 and dealing with a plea that the dispute has been settled, the Court must have due regard to the nature and gravity of the Offence. Further, it has been observed heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed through the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society.

 

VIJAYARAJ 
on 06 November 2017
Published in Criminal Law
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