Section 482 is not to be used lightly

“We will go to the High Court”!
 
It is wise to think twice before embarking on that journey. It can spoil your case. What exactly Section 482 of The Code of Criminal Procedure, 1973, is, should be spelt out first. ‘Section 482’, being such a big number, seems to carry a lot of weight. It can, but rarely does. Ask Arvind Kejriwal.
 
Section 482 is very well-intentioned. In today’s highly vitiated atmosphere, especially the saas-bahu conundrum, it provides a safe passage, a way out for the innocent. But, there is a BIG ‘but’. The courts are chary in using it, let alone discriminately. Due process, the ends of justice, the truth, all come into play. Section 482 is usually not confirmed. When, then, is it applicable?
 
You be the judge.
 
Mr K says, or writes, something which Mr J does not like. Mr J thinks it is something that spoils his name in society, harms his business, etc. He files both civil and criminal actions. In the criminal case, Mr K becomes the accused; in the other suit, he is the defendant. Criminal cases require the accused to be present in court, a demeaning experience, where a separate bench, guarded, is provided. Ignominy, even if eventually acquitted. So Mr K asks the High Court, a court superior than the one he is tried in, to quash the proceedings and set him free. Failing which, he moves the Supreme Court. Should he now get relief?
 
In the Kejriwal case, even the Supreme Court refused. The argument usually is that relief must be first argued in the trial court. Why, then, does Section 482 exist? 
 
Gross abuse of the legal process is not unknown; In fact, it is quite common. But, in a democracy, judicial access is available to all. If the accused can prove, beyond reasonable doubt, that he is innocent,  Section 482 comes to his rescue. If the accused can prove that he was not present at the place of the crime, or that he is incapable of such an act, or that it was a clear case of mistaken identity, he will see the action dismissed.
 
Another way to get the quashing is to argue points of law in the superior courts. Most often, it is a rehash of facts; a method that looks defeat in the face and capitulates. 
 
Readers will recall two columns written in the recent past. One dealt with the ethics question, where we had argued that the same matter cannot be heard in a lower court after being rejected in a superior forum. The other was of the staying of criminal cases while the civil suit was heard. Similarity exists, to a very great extent, between the Kejriwal appeals and the articles. We are glad that both our stands have been vindicated. 
 
The moral of the story is this: Do not rush to higher courts without due thought. It can be very counterproductive. ‘To Hell and Back’ is best left to Hollywood.
 
A Delhi High Court judgement, in a Section 482 matter, illustrates how courts think.
 
“Later in State of Haryana vs Bhajan Lal 1992 Supp (1) SCC 335, the Supreme Court reiterated the settled position and gave illustrative examples of when the power under Section 482 could be exercised. It however struck a note of caution… (SCC, p.379). We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made… extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” (Devender Singh vs State and Anr. 23 May 2008)

Courtesy: Moneylife

 

BAPOO M. MALCOLM 
on 25 February 2017
Published in Constitutional Law
Views : 378
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