In criminal law jurisprudence, an accused, if named in an FIR, can directly approach the jurisdictional High Court, seeking quashing of the FIR, by either invoking the inherent powers under Section 482 of the Criminal Procedure Code 1973 and/or under extra-ordinary writ jurisdiction under Article 226 of the Constitution of India. In the most celebrated judgment of the Hon’ble Supreme Court of India in State of Haryana & Ors. versus Bhajan Lal & Ors. [1992 Supp (1) SCC 225], the Apex Court, had the opportunity to deal with such proposition of law, and laid down the following guidelines to be followed by the High Court(s) for quashing of FIR(s):
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 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 the purview of Section 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 a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a 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.
(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 in 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 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.”
Whether Section 482 of CRPC and Article 226 of the Constitution of India have concurrent jurisdiction?
In many parts of the country, there has been an unwritten rule, which the Courts, as well as Lawyers, follow, that if FIR has been filed, the remedy for quashing is available only under Article 226 of the Constitution of India and pursuant to chargesheet been filed and Magistrate taking cognizance, the remedy for quashing lies within Section 482 of the Criminal Procedure Code 1973.
With all humility at the author’s command, the author begs to differ with the abovementioned ‘unwritten’ proposition of law. Although the Hon’ble Supreme Court in Bhajan Lal (supra), did not explicitly hold, but going by the entire judgment and particularly the Para 102 of the judgment, it can safely be said, that as far as quashing of FIR is concerned, High Court(s) have concurrent jurisdiction under Section 482 of the Criminal Procedure Code 1973 and Article 226 of the Constitution of India. In fact, the powers under Article 226 of the Constitution of India are much wider than Section 482, as inherent powers under Section 482 can only be exercised for doing justice with respect to the act(s) amenable to CrPC, whereas under Article 226, there is no such implied restrictions.
The registration of an FIR is an act taken by the Police, i.e., State in exercise of Powers conferred under Section 154 of CrPC. Since, the above-mentioned is an act of the Executive and does come under the ambit of Article 12 of the Constitution of India, the registration of FIR is amenable to the writ jurisdiction of Article 226 of the Constitution. Furthermore, since, the act of registration of FIR is an act done under Section 154 of CrPC, the same can also be challenged by invoking the inherent jurisdiction of a High Court under Section 482 of the CrPC. Therefore, if a litigant/accused is exploring the remedies for quashing of an FIR, the litigant/accused has both the option, either to file a Writ Petition under Article 226 of the Constitution of India, or to file a Petition under Section 482 of the CrPC, seeking quashing of the FIR.
What will happen to the Petition seeking quashing of FIR, if the State has filed the Chargesheet/Final Report during the pendency of such Petition?
It is no more res integra, particularly after the judgment of the Hon’ble Supreme Court in Anand Kumar Mohatta and another Vs. State (Govt. of NCT of Delhi) Department of Home and another; reported in (2019) 11 SCC 706, taking note of Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 wherein the Apex Court held that mere filing of chargesheet during the pendency of a petition seeking quashing of FIR, would not render the petition infructuous. The relevant extract of the Anand Kumar Mohatta, is reproduced herein below for ready reference-
“14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge-sheet is filed, petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23] . In Joseph Salvaraj A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59 : (2011) 3 SCC (Cri) 23] , this Court while deciding the question whether the High Court could entertain the Section 482 petition for quashing of FIR, when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed : (SCC p. 63, para 16)
“16. Thus, from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge-sheet had been filed, the learned Single Judge [Joesph Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj 365] could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not.”
15. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 CrPC and that this Court is hearing an appeal from an order under Section 482 CrPC. Section 482 CrPC reads as follows:
“482. Saving of inherent powers of the 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.”
16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7: 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237] . Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.”
(Emphasis by the Author)
The Hon’ble Supreme Court in another judgment of P.N. Poddar v. State of Maharashtra, (2007) 15 SCC 705, in a similar situation, wherein the Hon’ble Bombay High Court had declined to interfere in a Petition seeking Quashing of FIR, only because chargesheet was filed, has held the following:
“4. …..
In law, the High Court is not correct in opining that the writ jurisdiction cannot be exercised for quashing the FIR though the quashing of FIR is to be resorted to rarely as pointed out by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . After lapse of nine years, having regard to the facts and circumstances of the case, we feel that it would not be fair not to examine the grievance of the writ petitioners on the ground that they can seek discharge if the chargesheet is filed.”
There are catena of judgments by the High Court(s) of this Country, wherein it has been regularly held, that a Petition seeking quashing of the FIR does not become infructuous merely on filing of chargesheet, however, despite being this a settled preposition in law, may High Court(s) in different part of countries are consistently dismissing the Petition seeking quashing as infructuous merely on the filing of chargesheet. The author could fetch out the following judgments of the High Court(s), wherein the abovementioned question of law has been settled, and the High Court(s) have held the Petition seeking quashing of FIR to be maintainable even after the Chargesheet has been filed –
High Court(s) | Judgments with citation |
Allahabad High Court | Mohd. Kaleem v. State of U.P., 2019 SCC OnLine All 4441 |
Delhi High Court | Sarbesh Bhattacharjee v. State (NCT of Delhi), 2022 SCC OnLine Del 3365 |
Madras High Court | Marimuthu v. State, 2020 SCC OnLine Mad 10987 |
Madras High Court | R. Selvam v. State, 2020 SCC OnLine Mad 23786 |
Madras High Court | Dhas v. State, 2019 SCC OnLine Mad 14981 |
Bombay High Court | Mahadeorao Uttamrao Rajurkar v. State of Maharashtra, 2020 SCC OnLine Bom 3648 |
Bombay High Court | Satyanarayan v. State of Maharashtra, 2019 SCC OnLine Bom 2027 |
Bombay High Court | Nicholas John Fernandes v. State, 2021 SCC OnLine Bom 2980 |
Bombay High Court | Harshad Anil Kale v. State of Maharashtra, 2019 SCC OnLine Bom 1880 |
High Court of Jharkhand | Mukesh Kumar v. State of Jharkhand, 2022 SCC OnLine Jhar 353 |
High Court of Jharkhand | Shiv Prasad Sahu v. State of Jharkhand, 2022 SCC OnLine Jhar 526 |
Patna High Court | Mahindra and Mahindra Financial Services Ltd. v. State of Bihar, 2019 SCC OnLine Pat 2223 |
Patna High Court | Purnendu Ojha v. State of Bihar, 2019 SCC OnLine Pat 1712 |
High Court of Himachal Pradesh | Harmanpreet Singh v. State of H.P., 2021 SCC OnLine HP 4725 |
High Court of Calcutta | Satya Jyoti Bandyopadhyay v. State of W.B., 2023 SCC OnLine Cal 88
|
High Court of Jammu & Kashmir | Nowshad Ahmad Rather v. State, 2021 SCC OnLine J&K 232 |
Punjab & Haryana High Court | Naurati Lal v. State of Haryana, 2023 SCC OnLine P&H 194 |
High Court of Uttarakhand | Kailash Singh Kunwar v. State of Uttarakhand, 2020 SCC OnLine Utt 1216 |
High Court of Uttarakhand | Pankaj Chaudhary v. State of Uttarakhand, 2021 SCC OnLine Utt 1483 |
When a chargesheet is filed, during the pendency of the petition seeking quashing of FIR, the fate of the chargesheet is allied with the fate of the petition. The reasoning, that by merely filing of a chargesheet, the petition seeking quashing of FIR is infructuous, cannot be said as a good law, as in this scenario, a High Court is at the mercy of the State, and the State can anytime twist its Magic Stick by filing the Chargesheet and shall make the High Court handicapped. In an ideal republic, a Constitutional Court cannot be at the mercy of an Executive. Acceptance of such legal preposition, demeans the majesty as well as authority of High Courts, because, to say, that the petition shall become infructuous once the police has filed the chargesheet, means that the Court’s authority to decide, is at the hand of the State. If the State does not file its chargesheet, the High Court can exercise its power u/a 226 or u/s 482 and quash the FIR and if the State files the chargesheet, the High Court shall become handicapped. Certainly, this cannot be an ideal situation. The inherent power of High Court(s) under Section 482 and Writ Jurisdiction of the High Courts cannot be frustrated by any action of State, as it will lead to a judicial chaos.
The abovementioned reasoning, can also not be sustained if juxtaposed with the judgment in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., AIR 2021 SC 1918, recently reiterated in Siddharth Mukesh Bhandari versus The State of Gujarat and Anr. (Criminal Appeal No. 1044, 1045 & 1046 OF 2022) vide Judgment dated 02.08.2022, the judgment of Bhajan Lal (supra) and Section 167 of the Criminal Procedure Code 1973.
In Neeharika Infrastructure (supra), as well as in Siddharth Mukesh Bhandari (supra), the Hon’ble Supreme Court held that ‘grant of any stay of investigation and/or any interim relief while exercising powers under Section 482 Cr.P.C. would be only in the rarest of rare case’. Thus, the High Courts, while entertaining Quashing Petition under Article 226 or Section 482 CrPC 1973, cannot grant stay on investigation, as a rule and only as an exception. Therefore, the investigation shall go on, pending the Quashing Petition. Now, ideally, in terms of Section 167 of the CrPC, 1973, the State Police is obliged to complete its investigation and file its chargesheet within 60/90 days, as the case may be. Hence, going by the reasoning of the High Court that the Quashing Petition would be rendered infructuous if chargesheet is filed, is not tenable, more so, for the reason, that when the High Court cannot grant stay of investigation (in view of Neeharika Infra) and when the Police is obliged to file chargesheet within 60/90 days, the High Court would have to dispose of any Quashing Petition within 60 days, which seems very unlikely given the present workload of Judiciary.
Furthermore, the Hon’ble Supreme Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 also dealt with the aforementioned and opined that even if in the opinion of the HC, a particular relief cannot be granted under Article 226, the Petition can be converted into a Petition under Article 227 or Section 482 CrPC, as the nomenclature of a petition hardly makes any difference. The jurisdiction of the High Courts is much wider than any Court of law, and thus any procedural & technical things cannot be an obstacle to a High Court dispensing justice.
Can Article 226 of the Constitution of India be invoked seeking quashing of Criminal Proceedings if the Magistrate has taken cognizance?
As stated above, an accused/litigant can choose to file a Writ Petition under Article 226 of the Constitution of India, or to file a Petition under Section 482 of the CrPC, seeking quashing of the FIR, and the fate of the chargesheet and/or the Order of the Magistrate taking cognizance, shall be subject to the fate of the FIR. However, there may be a situation, where an accused/litigant did not challenge the FIR at the threshold, and now after filing of the chargesheet/final report seeks to challenge the same. The question, therefore arises, that whether he can file a Petition under Section 482 of the CrPC or a Writ Petition under Article 226 of the Constitution of India?
The answer is, Petition under Section 482 of the CrPC, as Order of the Magistrate taking cognizance is a Judicial Order and is not amendable to Writ Jurisdiction but can be certainly challenged through Section 482 of the CrPC. However, apart from the CrPC, the Hon’ble High Courts are also empowered to quash the FIR, Chargesheet and the Judicial Order of the Magistrate taking cognizance of Chargesheet, by way a Petition under Article 226 read with Article 227 of the Constitution of India, as has been held in Pepsi Foods (supra).
Conclusion
The author has detailed above, refereeing the decision rendered by the Hon’ble Supreme Court and various other High Courts, that the Hon’ble High Courts of this country, are possessed with immense power to quash any criminal proceedings, regardless with the stage of the said criminal proceedings. Whether chargesheet is filed or not, or whether trial has started or not, or whether witnesses are examined or not, the Hon’ble High Courts can quash the criminal proceedings at any stage, by exercising its powers under Article 226 r/w 227 of the Constitution of India or Section 482 of the Criminal Procedure Code 1973, provided that the case falls within the parameters of State of Haryana & Ors. versus Bhajan Lal & Ors. [1992 Supp (1) SCC 225]. It would be a travesty for a Constitutional Courts to declare a that it cannot grant relief, merely on an action of the Executive. The author optimistically hopes and believes, that the Hon’ble Supreme Court would settle this fiasco in a more elaborate manner, and would settle the conundrum soon.
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