HC ORDER TO STOP IO TO ARREST-WRONG 482 & 438 CRPC
Case Note:
Criminal - No quashing of investigation - Restraining investigating agency - Not to arrest - Section 482 of Code of Criminal Procedure, 1973 and Sections 147, 148, 149 and 307 of Indian Penal Code, 1860 - FIR was registered for various offences punishable under Code, 1860 - Accused/Respondent Nos. 1, 2 and 3 invoked inherent jurisdiction of High Court for quashing of FIR and consequential investigation - Single Judge expressed his disinclination to interfere on ground that it was not appropriate to stay investigation of case - However, direction was made for not arresting Accused during pendency of investigation - Hence, present appeal - Whether High Court while refusing to exercise inherent powers under Section 482 of Code, 1973 to interfere in application for quashment of investigation, can restrain investigating agency not to arrest Accused persons during course of investigation
Facts:
On the basis of a report by the informant, FIR was registered for the offences punishable under Sections 147, 148, 149 and 307 of the Indian Penal Code, 1860. Challenging the initiation of criminal action, the three Accused persons/Respondent Nos. 1, 2 and 3 invoked inherent jurisdiction of the High Court in Criminal Petition for quashing of the FIR and consequential investigation. As the impugned order would show, the Single Judge referred to the FIR and took note of the Accused therein that all the allegations that had been raised in the FIR were false and they had been falsely implicated and thereafter expressed his disinclination to interfere on the ground that it was not appropriate to stay the investigation of the case. However, as a submission had been raised that the Accused persons were innocent and there had been allegation of false implication, it would be appropriate to direct the police not to arrest the Petitioners during the pendency of the investigation and, accordingly, it was so directed. Hence, the present appeal.
Held, while allowing the appeal:
(i) There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power Under Section 482 Code, 1973 is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court. [12]
(ii) The High Court had not referred to allegations made in the FIR or what had come out in the investigation. It has noted and correctly that the investigation is in progress and it is not appropriate to stay the investigation of the case. It disposed of the application under Section 482 of Code, 1973 and while doing that it directed that the investigating agency shall not arrest the accused persons. This direction “amounts” to an order under Section 438 of Code, 1973, albeit without satisfaction of the conditions of the said provision. This was legally unacceptable. [15]
(iii) The States where Section 438 of Code, 1973 has not been deleted and kept on the statute book, the High Court should be well advised that while entertaining petitions under Article 226 of the Constitution or Section 482 of Code, 1973, exercise judicial restraint. The Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law, but it is absolutely inconceivable and unthinkable to pass an order of the present nature while declining to interfere or expressing opinion that it is not appropriate to stay the investigation. This kind of order is really inappropriate and unseemly. It has no sanction in law. The Courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the court to keep such unprincipled and unethical litigants at bay. [23]
(iv) The types of orders like the present one, were totally unsustainable, for it is contrary to the settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mind that the culture of adjudication is stabilized when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind. The impugned order was set aside. [25] and[26]
The State of Telangana vs. Habib Abdullah Jeelani and Ors. (06.01.2026 - SC) : MANU/SC/0020/2017