Scope of interference under Aet 226 for FIR quashing

SCOPE OF INTERFERENCE UNDER ARTICLE 226 OF THE CONSTITUTION:
The power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R. or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can ''soft-pedal the course of justice' at a crucial stage of investigation/ proceedings. (Vide State of West Bengal & Ors. Vs. Swapan Kumar Guha & Ors., AIR 1982 SC 949; Madhavrao Jiwaji Rao Scindia & Anr. Vs. Sambhajirao Chandrojirao Angre & Ors., AIR 1988 SC 709; The Janata Dal Vs. H.S. Chowdhary & ors. , AIR 1993 SC 892; Mrs. Rupan Deol Bajaj & Anr. Vs. Kanwar Pal Singh Gill & Anr., AIR 1996 SC 309; G. Sagar Suri & Anr. Vs. State of U.P. & Ors., AIR 2000 SC 754; and Ajay Mitra Vs. State of M.P., AIR 2003 SC 1069).
In M/s. Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., AIR 1998 SC 128, a similar issue was considered and the Hon'ble Apex Court held that the criminal law cannot be set into motion as a matter of course. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors that might be committed by the Subordinate Courts as it is the duty of the High Court to prevent the abuse of process of law by the inferior Courts and to see that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court but more the power more due care and caution is to be exercised invoking these powers. The Apex Court held that nomenclature under which the petition is filed is totally irrelevant and does not prevent the Courts from exercising its jurisdiction which otherwise it possesses unless there is a special procedure prescribed which procedure is mandatory.

 
          In State of U.P. Vs. O.P. Sharma, (1996) 7 SCC 705, the Hon'ble Supreme Court has indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 of the Code or under article 226 or 227 of the Constitution of India, as the case may be, and allow the law to take its own course. Similar view had been taken in Pratibha Rani Vs. Suraj kumar & Anr., AIR 1985 SC 628.
In L.V. Jadhav Vs. Shankarrao Abasaheb Pawar & Ors., AIR 1983 SC 1219, the Apex Court held that Court's power is limited only to examine that the process of law should not be misused to harass a citizen and for that purpose, the high Court has no authority or jurisdiction to go into the matter or examine the correctness of allegations unless the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion and that there is sufficient ground for proceeding against the accused but the Court, at that stage, cannot go into the truth or falsity of the allegations.
In Trisuns Chemical Industry Vs. Rajesh Agarwal & Ors., ( 1999) 8 SCC 686, the Supreme Court placed reliance upon its earlier judgment in Rajesh Bajaj Vs. State N.C.T. of Delhi & Ors., AIR 1999 SC 1216 and observed that the inherent power of the High Court should be limited to very extreme exceptions. The said judgment was approved and followed by the Apex Court in Ram Biraji Devi Vs. Umesh Kumar Singh & Ors., 2006 AIR SCW 2543, wherein the Apex Court reiterated that the power can be used only in extreme exceptions where it is necessary to do so in t he interest of justice.
In State of Haryana & ors. Vs. Ch. Bhajan Lal , the Hon'ble Supreme Court laid down the guide-lines for exercising the inherent power as under:-

 
1.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.

2. Where the allegations in the first Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.

3.Where the uncontroverted 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 as case against the accused.

4.Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by as police officer without an order of a Magistrate ass contemplated under S. 155(2) of the Code.

5.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.

6.Where there is an express legal bar engrafted in any of the provisions 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 the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with malafide 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.
        

In Ganesh Narayan Hegde Vs. S. Bangarappa & Ors., (1995) 4 SCC 41, an earlier decision in Mrs. Dhanalakshmi Vs. R. Prasanna Kumar & Ors., AIR 1990 SC 494, has been cited with approval for the proposition that there should be no undue interference by the High Court as no meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at this stage. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of court or that the interests of justice otherwise call for quashing of the charges.
        In Zandu Pharmaceutical Works Ltd. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, the Hon'ble Apex Court held that criminal proceedings can be quashed but such power is to be exercised sparingly, carefully with caution and only when such exercise is justified by the tests specifically laid down in the statutory provisions itself. It is to be exercised ex debito justitiae to do real and substantial justice for administration of which alone Courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. A case where the FI.R. or the complaint does not disclose any offence or is frivolous, vexatious or oppressive, the proceedings can be quashed. It is, however, not necessary that at this stage there should be meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal. The allegations have to be read as a whole.
            In State of W.B. Vs. Narayan K. Patodia, AIR 2000 SC 1405, The Apex Court observed that lodging an FIR is only the first step of investigation by the police. Premature quashing of the FIR at the initial stage instead of serving the cause of justice, harmed it. The inherent powers of the High Court are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice".
Undoubtedly, the enjoyment of a good reputation is a personal right and, thus, dignity of a person is to be protected as guaranteed under Article 21 of the Constitution of India. Filing F.I.R. and visit by the police for arrest of a person on the basis of false and frivolous F.I.R./complaint, may, result in incalculable harm to his reputation and self-respect. Such a right has been recognised by the Hon'ble Apex Court in Joginder Kumar's case and Smt. Kiran Bedi & Anr. Vs. Committee of Enquiry & Anr., AIR 1989 SC 714 to be a personal right. However, the law of arrest is one of the balancing individual rights, liberties and privileges, on the one hand and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of doing which comes first - the criminals or society, the law violator or the law abider.
In D.K. Basu Vs. State of West Bengal, (1997) 1 SCC 416, the Hon'ble Apex Court held that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops. The Court further observed as under:-
"........if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality, the crime would go unpunished and in the ultimate analysis, the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime."
While deciding the said case, the Hon'ble Supreme Court laid down certain guidelines for the police, as how to act and proceed when arrest is necessary. The Court expected the legislature to bring legislation to give effect to the said guidelines.
          In order to give effect to the law laid down by the Hon'ble Supreme Court in this case, the provisions of the Code have been amended by Code of Criminal Procedure (Amendment) Act, 2005 by which Section 50-A has been inserted. It requires the Police to give information about the arrest of the person as well as the place where he is being held to anyone who may be nominated by him for sending such information. It further obliges the Magistrate concerned to satisfy himself about the fulfillment of the requirements of the said provision when arrested person is produced before him in order to ensure compliance of the said law. The aforesaid provisions are mandatory and any violation, thereof, can be a ground available to an apprehended person to question the correctness of the arrest by the aforesaid procedure. This is because the aforesaid Section is clearly designed to protect the fundamental right of a person guaranteed under Article 21 of the Constitution, subject to reasonable restriction as placed by the law enacted by the Legislature. In our opinion, the interpretation of the said provision therefore makes it imperative for the investigating agency not to apprehend a person and further for the Magistrate to satisfy himself that the investigating agency had proceeded with in accordance with law, which in our opinion would ensure the safety and liberty of a person from being abused and from preventing any unwarranted arrest.
In Ahmed Noormohmed Bhatti Vs. State of Gujarat, AIR 2005 SC 2115, the Hon'ble Supreme Court held that for violation of the guidelines contained in D.K. Basu and Joginder Kumar the appropriate remedy is departmental action or contempt. The Court observed as follows:-

"These requirements are in addition to the constitutional and statutory safeguards and do not detract from various directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. This Court has also cautioned that failure to comply with the requirements aforesaid, shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court." (Emphasis added).
The Hon'ble Apex Court in Smt. Nandini Satpathy Vs. P.L. Dani & Anr., AIR 1978 SC 1025, has observed that emphasis should shift depending on circumstances, in balancing these interests. The Hon'ble Apex Court in Joginder Kumar's case after considering the rights of the people guaranteed under Articles 21 and 22(1) of the Constitution of India, observed as under:-

 
"The incidents of personal liberty are guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental rights to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do."
Thus, the arrest is permissible only in a case where the circumstances of the said case so require and there is a justification for making the arrest otherwise not.
The Court has a duty to balance the freedom of a person and the right of the Executive to investigate the offence. Therefore, the Court has to examine as to whether the investigation is being made in accordance with law and if it comes to the conclusion that investigation is nothing but a means to harass the accused, the Court can always interfere with investigation.
Section 157 (1) of the Code of Criminal Procedure reads as under:-
"Procedure for investigation. - (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that -
(a)when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot;
(b)if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case." (Emphasis added).
It is evident from the statutory provisions itself that arrest is to be made only and only if it is found to be necessary and there is a justification for making the arrest for the purpose of further investigation. What to talk of arrest even case may not be investigated if there is no sufficient ground for the same. Therefore, it cannot be held that arrest is to be made in every case without discrimination rather the mandate issued by the Hon'ble Apex Court in Joginder Kumar's case is to be followed but as stated above, the said case deals with the power of the police to make arrest while the Full Bench in Satyapal's case deals with the power of the Court to interfere with investigation.
Investigation is the primary function of the Police. The arrest of the suspect in the next step in the investigation which can be carried out in certain cases without warrant of arrest. Arrest can also be made in view of the provision of Section 42 of the Code, if the accused does not disclose his identify, i.e. name, parentage and residence etc or information in this regard given by him is believed to be false. Tendency to implicate falsely in criminal cases and absence of statutory provision for seeking anticipatory bail in the State of Uttar Pradesh have flooded this Court with cases for quashing FIR/Complaint and in the meanwhile staying arrest. The Court is competent to interfere with investigation/arrest only in exceptional cases as explained above.