TOPIC:
I nh er ent pow powe er s of H igh co cour ur t u/s u /s 48 482 2 Cr Cr.P .P.C. .C.,, 1973 1973
Introduction The great principle underlying the inherent powers of the High Court under section 482 Cr.P.C. is subjected to a lot of uses and abuses. The result is controversies in the administration of justice. So this requires conceptual clarity, sharpening, structuring or channelizing. There are many issues and problems in this area. Its historical, theoretical and juristic bases constitute this project paper. A person accused of an offence is to defend himself against the allegations of the prosecution or the complainant. Sometimes proceedings are initiated on malicious and vexatious grounds. Therefore, the power is to be preserved with the court of justice to avoid vexatious and motivated proceedings like quashing of FIR in certain cases altogether. Hence, inherent powers of the court are recognized in the criminal jurisprudence. The power is not vested in the court through statutes. On the other hand, the inherent powers are preserved and saved, over and above the provisions of the Code of Criminal Procedure. Taking historical, territorial and juristic factors into consideration, High Court is the right choice to become the repository of inherent powers under section 482 of the Code of Criminal Procedure. That signifies the importance of the study of inherent powers of the High Court. The essential object of criminal law is to protect society against criminals and law-breakers. For this purpose, the law holds out threats of punishments to prospective lawbreakers as well as attempts attempts to make the actual offenders suffer the prescribed the punishment for their crimes. Therefore, criminal law, in its wider sense, consists of both the substantive criminal law as well as the procedural criminal law. Substantive criminal law defines offences and prescribes punishments for the same, while the procedural law is to administer the substantive law. Our legal system‟s law of crime is mainly contained in the Code of Criminal 1
Procedure, 1973 which has come into force from April 1, 1974. It provides the machinery for the detection of crime, apprehension of suspected criminals, collection of evidence, determination of the guilt or
1
Prakash, Dr. R. ‘O.P. Srivastav’s Principles Of Criminal Law’ , , EBC Pvt. Ltd. Lucknow, 2010, pg. 16
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innocence of the suspected person and the imposition of suitable punishment on the guilty person.
The Code also controls and regulates the working of the machinery set up for the investigation and trial of offences. On the one hand it has to give adequately wide powers to make the investigation and adjudicatory processes strong, effective and efficient, and on the other hand, it has to take precautions against errors of judgment and human failures and to provide safeguards against probable abuse of powers by the police or judicial officers. This often involves a “nice balancing of conflicting considerations, a delicate weighing of opposing claims clamouring for recognition and the extremely difficult task of deciding which of them should- predominate”. The Code has obviously tried to make itself exhaustive and complete in every respect and it has generally succeeded in this attempt. However, if the Court finds that the Code has not made specific provision to meet the exigencies of any situation, the court of law has inherent power to mould the procedure to enable it to pass such orders as the ends of justice may require. It has however been declared by the Supreme Court that the subordinate courts do not have any inherent powers. The High Court has inherent powers and they have 3
been given partial statutory recognition by enacting Section 482 of this Code of criminal procedure.
Section 482 CrPC, 1973: Conceptual M eani ng Main objective behind this sec is the power to quash an FIR (First Information Report) is among the inherent powers of the High Courts of India. Courts possessed this power even before the Criminal Procedure Code was enacted. Added as Section 482 by an amendment in 1923, it is a reproduction of the 4
section 561(A) of the 1898 code. Since High courts could not render justice even in cases in which the illegal was apparent, the section was created as a reminder to the courts that they exist to prevent injustice done by a subordinate court. Nothing in this code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice” Exercise of power under Section 482 Cr.P.C. is the exception and not rule. Inherent jurisdiction of high Court under section 482 CrPC may be exercised : 1. To give effect to an order under the code. 2
Dr KN Chandrasekharan Pillai, „R.V. Kelkar‟s Criminal Procedure‟, 5 edn. EBC, Lucknow, 2012, pg 678.
3
Ratanlal & Dirajlal, ‟Code of Criminal Procedure‟, LexisNexis, 20 ed., 2011, p 1506 th Ratanlal & Dirajlal, ‟Code of Criminal Procedure‟, LexisNexis, 20 ed., 2011, p 1506
4
th
th
2. To prevent abuse of the process of the court. 3. To otherwise secure the ends of justice. 5
S482 deals with Inherent powers of the Court. It is under the 37th Chapter of the Code titled Miscellaneous.
It comes into action 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 arrive 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 consequently any order of HC in violation of any right 6
under Art 21 is not ultra vires. Eg. Cancelling of bail bond by HC thereby depriving a person‟s personal liberty.
Constitu tion and I nher ent Powers It is quite clear that great prominence has been given to the ideas of inherent powers of the High Court after the inception of the Indian Constitution. The Constitution had its impact on the administration of justice. The provisions of fundamental rights, and establishment of the Supreme Court with vast powers, under the Constitution, developed a healthy climate for inherent jurisdiction to evolve. The Supreme Court has got its own arsenal of inherent powers recognized by the Constitution. The High Courts with their ascertained place in the constitutional scheme, with powers of judicial review influence the mechanics of inherent powers. The period after the inauguration of Indian Constitution India witnessed several issues relating to the administration of justice being discussed in the light of the provisions of the Constitution of India. The interpretation of the provisions of the Constitution regarding equality, right to life, and personal liberty, underlined the need of inherent powers of the court. Instances are not scarce, where High Courts and the Supreme Court have been called upon to apply inherent power in cases the trials of which have been protracted and investigation not completed. Now, a watershed area has been reached where inherent powers under Criminal Procedure Code, and plenary powers under the 7
Constitution, meet and mingle to form a 'jurisprudence of realism underlined by pragmatism'. The line 8
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of thinking which commenced with Madhu Limaye case has been taken to the hilt in Pepsi Foods , decision where the court has held that the High Court has got inherent powers to treat a petition filed 5
ibid M P Jain, „Indian Constitutional Law‟ 6th Edition, Lexis-Nexis India, 2012, pg. 1456
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7
8
M P Jain, „Indian Constitutional Law‟ 6th Edition, Lexis-Nexis India, 2012
AIR 1978 SC 47 ibid
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under Article 227 of the Constitution as one filed under section 482 of the Code of Criminal Procedure. Similarly, several provisions of statutory offences have been tested against the provision of the Constitution while examining their legality. This has helped the court in developing an area of activity for application of inherent powers. So, it can very well be said that the Indian Constitution has positively influenced the inherent jurisdiction of the High Court in criminal justice system. Indian constitution is ascertained to be a very living thing. Inherent powers of the Supreme Court and the High Court have added vigor to the life of the constitution by prolific interpretations. law tradition of the English, in plasticity and flexibility Indian constitution has even overreached the British constitution. In Britain there is criticism about too much strain on the constitution. Lord Hailsham's criticism of the over centralized and over worked constitutional edifice says that the very political structure of the 10
country is in peril. The jurist observe that "There is plenty of life .... if we can avoid being stampeded 11
in to chaos in compatible with its essential nature and genisis" In contrast the Indian Constitution has accommodated great human and liberal values in its interpretations. This has trickled down to the administration of criminal justice. The Supreme Court has of late held that in a petitions under section 12
482 Cr.P .C. exemplary costs can be ordered. This trend comes from new dimensions of interpretations of the constitutional provisions where the courts initially started to grand exemplary cost and 13
compensation cost as a palliative in writ proceedings. ’
Secti on 482 Cr .P.C. vis-à-vi s Courts Approach This section makes it clear that the provisions of the Code are as intended to limit or affect the inherent powers of the High Courts. Obviously, the inherent power can be exercised only for either of the three purposes specifically mentioned in the section. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provision of the Code that Section 482 can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said 14
section. In prescribing rules of procedure legislature undoubtedly attempts to provide for all the cases that 10
Lord Hailsham, On the Constitution, (1992), Harper Collins Publications, p. 1 Ibid 12 Mary Angel and others v. State of Tami! Nadu, 1999 (3) SCALE 663. 13 C. Kuttikrishnan, "Right to Life and Personal Liberty as a Limit on State Power: The Growth of Human Rights Jurisprudence in India", 1988 Ac.L.R. 1. 11
are likely to arise but it is not possible that any legislative enactment dealing with the procedure, however carefully it may be drafted, would succeed in providing for all the cases that may possibly arise in the future.
Lacunae are sometimes discovered in procedural law and it is for the purpose of covering such lacunae and dealing with such cases where such lacunae are discovered that procedural law invariably recognizes the existence of inherent powers in courts. Here it is extremely important to be noticed that it is only the High Court whose inherent power has been recognized by Section 482, and even in regard to the High Court‟s inherent power definite statutory safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured that the High Court can and must exercise its inherent powers under Section 482 of this Code.
15 Ki shan L al v. Dhar mendra Bafn a
Here the Parties related to each other being members of the same family. Dispute was relating to a farm house. Both parties lodged FIR. In case filed against appellant his mother and sister, he was convicted. Final reports were prepared twice for the case filed by appellant against his mother and sister. Deputy Superintendent of police on the second report sought to obtain legal opinion of public prosecutor who was asked to complete the investigation and submit an appropriate report to the court. A petition was filed under Sec 482 of CrPC against order of further investigation, which was dismissed by the HC. The issue was whether i.
HC was justified in observing that valid grounds ex isted for granting bail to petitioners and
ii.
HC was right in issuing directions for grant
iii.
of exemptions from personal appearance
The SC held both in negative and remitted the matter to the HC. Where court uses its power blatantly and in a arbitrary manner
State of Pun jab v. Pritam Chand & Ors.16
Powers possessed by the HC under 482 CrPC are very wide requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. Inherent power
15
[ 2009 (9) SCC 768 ] [ 2009 (2) SCC 457 ]
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should not be exercised to stifle a legitimate prosecution. In the instant case Complainant was married to Appellant 1. Appellant left for U.S.A in 1999. A case under Sec 498 I.P.C and S 4 of Dowry Prohibition Act was filed. Complaint was treated as FIR and investigation was undertaken. On completion of investigation charge sheet was filed. A divorce petition was filed by Appellant in 2001, which was granted ex parte. According to appellants, complainant remarried subsequently. Appellant filed petition under sec 482 before the HC for quashing of complaint. HC dismissed the petition, and this was subsequently challenged in SC. It was held that HC was not justified in dismissing the petition filed by the appellants.
17 State of K erala v. Jabbar
The respondents lodged FIR, against appellant alleging commission of offences under sec 406 and 420, I.P.C and same was registered. Thereafter investigation commenced. Even while investigation was in progress respondent moved the HC under Sec 482 CrPC, seeking directions to the police to seize an amount of Rs 2,28,00,000/- from appellants claiming that he was entitled for Rs 1,28,00,000/- for facilitating registration of land under the MOU, which amount is alleged to have been withheld by appellants along with a sum of 1 crore, stated to have been paid by him to the appellant. In the said petition there was no allegation of any collusion and deliberate delay on part of investigation agency. HC within a period of one month from the date of filing of petition, finally disposed the same observing that it is obligatory on part of respondent police to conduct investigation in accordance with law, including recording of statements from witness, arrest, seizure of property, filing of charge sheet etc. HC further directed that if account is available with accused person or any amount is in their possession, it is obligatory on part of respondent police to take all necessary steps to safeguard the interest of the respondent. HC accordingly directed the police to expedite and complete investigation within 6 months. The issues were i) Whether it is open to HC in exercise of its jurisdiction under Sec 482, to interfere with statutory power of investigation by police into cognizable offence. ii) Whether such direction could have been issued by the HC in exercise of its jurisdiction under Sec 482. Court held both in the negative. Inherent power of the court is saved to interfere with the proceedings pending before a Criminal Court if such interference is required to secure the ends of justice or where the continuance of proceedings before a court amounts to abuse of the process of Court. Such a power is always available to HC in relation to matter pending before a criminal court. 17
[2009 (6) SCC 659]
Gui deli nes for use of i nh erent power 18 In the landmark case State of H aryana v. Bh ajan L al , a two-judge bench of the Supreme Court of India
considered in detail the provisions of section 482 and the power of the high court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position b y laying the following guidelines to 19
be followed by high courts in exercise of their inherent powers to quash a criminal complaint.
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 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 allegationsin the FIR do not constitute a cognizable offence but constitute only a noncognizable 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 part y. 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. 20 In I ndian Oil Corporation v. NE PC I ndia L td. and Others a petition under section 482 was filed to quash
two criminal complaints. The High Court by common judgments allowed the petition and quashed the two 18
1992 Supp.(1) SCC 335 Id para 56 20 (2006) 6 SCC 736 19
complaints. The order was challenged in appeal to Supreme Court of India. While deciding the appeal, the Supreme Court of India laid down following principles:
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1) The high courts should not exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution. 2) The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence. 3) It was held that a given set of facts may make out
a) purely a civil wrong, or b) purely a criminal offence or c) a civil wrong as also a criminal offence
I nf ir miti es in applying I nherent Powers by the H igh Cour t
There is no inherent power for evaluating evidence. But, the High Courts are not consistent or uniform in their attitude to issues. On the one hand, the relevance of inherent powers of the High Court in the administration of Criminal Justice is conceded and on the other hand, the infirmities and imperfection in the application of this power are realized. The reasons are to be found from the history of inherent powers during the past several decades as well as other legal and 22
procedural bottlenecks in the exercise of inherent powers. The number of cases calling for the application of inherent powers is galore. Similarly, the subject matter for the exercise of inherent 23
powers is also extended. The jurisprudence of inherent powers has received a diversification because of the impact of the Indian Constitution. One reason for the High Court to find it is the overgrowth of the jurisdiction.
There are other infirmities, invoking inherent powers for quashing a complaint or proceedings 24
can be termed as a lateral, collateral, or even preliminary attack. When a proceeding is quashed, that is the end of it. Viewed from this angle, the power of the High Court quashes the proceedings on the threshold itself. The consequence is that the Prosecution or the complainant is
21
Ibid 37 Kylasatha Pillay, K.P., Inherent Powers of High Court Under s.482 CrPC, pg. 538. 23 Ibid, pg. 540 24 Jehan Singh v. delhi administration, AIR 1946 SC 1149 22
deprived of the opportunity to adduce evidence and prove their allegations beyond reasonable doubts. There is therefore no real adjudicatory process in the conventional sense of the term. The High Court on a prima-facie approach takes the decision. The only thing expected of the High Court is to consider whether on the materials supplied to the trial court, can it be possible for the prosecution to initiate action against the accused. On the same materials, the trial court proceeds on the belief that there is prima-facie case, the High Court applying a different parameter under a different jurisdiction considers the same materials to come to the conclusion whether aprimafacie case exists. Therefore, if the High Court decides that there is no prima-facie case, the proceedings are halted. Naturally, the question arises whether the use or abuse of the Court and whether ends of justice can be secured. The fear expressed in this context is that there is every possibility for arbitrariness and unbridled exercise of power. There is a possibility for miscarriage of justice. There is possibility for whims, fancies and caprices of the individual judges, having a sway over the decision making process. Th us, the question of evidence becomes a crucial factor in the inherent power/jurisdiction. The High Court decides without evidence and the High Court's decision prevents parties to adduce evidence. This is the most vulnerable area inthe application of inherent powers. The Supreme Court in a number of cases have found fault with the High Court for invoking the inherent powers on this count. Either the High Court would have elaborately considered the materials at hand as if, sifting the evidence from a mass of facts or the High Court would have embarked on an enquiry on the basis of conjectures to come to a conclusion. Evidence is the core of adjudication. In a situation where evidence is either not available or is not required to be considered, the decision taken by the court would be of a sensitive nature.
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Then, another infirmity of the High Court is the lack of proper and concrete norms or guidelines in the exercise of inherent powers. In this matter, the opinion of the Supreme Court is that, it is a near impossibility to lay down norms and rules because what the legislature cannot anticipate in advance the Supreme Court may not be able to do. The rationale for inherent powers, being saved and preserved in section 482 of the Code of Criminal Procedure, 1973, is grounded in the reality that it is impossible for any organ to lay down in advance, the situation for invoking inherent powers. Unforeseen and unimaginable situations may arise. Then the only solution Court and whether ends of justice can be secured. The fear expressed in this context is that there is every possibility for arbitrariness and unbridled exercise of power. There is a possibility for
25
Kylasatha Pillay, K.P., Inherent Powers of High Court Under s.482 CrPC, pg. 541
miscarriage of justice. There is possibility for whims, fancies and caprices of the individual judges, having a sway over the decision making process. Thus, the question of evidence becomes a crucial factor in the inherent power/jurisdiction. The High Court decides without evidence andthe High Court's decision prevents parties to adduce evidence. This is the most vulnerable area in the application of inherent powers. The Supreme Court in a number of cases have found fault with the High Court for invoking the inherent powers on this count. Evidence is the core of adjudication. In a situation where evidence is either not available or is not required to be considered, the decision taken by the court would be of a sensitive nature.
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Then, another infirmity of the High Court is the lack of proper norms or guidelines in the exercise of inherent powers. In this matter, the opinion of the Supreme Court is that, it is a near impossibility to lay down norms and rules because what the legislature cannot anticipate in advance the Supreme Court may not be able to do. The rationale for inherent powers, being saved and preserved in section 482 of the Code of Criminal Procedure, 1973, is grounded in the reality that it is impossible for any organ to lay down in advance, the situation for invoking inherent powers. Unforeseen and unimaginable situations may arise. Then the only solution 27
prudence, his commonsense, his positive sense, or his discretion.
Another area of difficulty posed before the High Court in invoking inherent powers is the conflict it has with other provisions in the Criminal Procedure Code as well as other legislations. For instance, it is even now an unsettled proposition whether inherent powers can be exercised after availing a revision under sections 397(1) of the Code. Then the question of review is there. Here the Supreme Court opines that the High Court cannot review its judgment or decisions. But in the interest of justice the Supreme Court itself reviews decisions. Therefore, in a future case, a situation can arise where the Supreme Court will have to concede, for the purpose of serving the 28
ends of justice that the jurisprudence, his commonsense, h is positive sense, or his discretion.
Conclusion
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Ibid 543 Ibid 28 Ibid 544 27
The thrust given to the concept of justice through application of inherent powers is an achievement of Indian jurisprudence. In the previous chapter, while summing up the concept and application, major areas covered by this research paper are enumerated. Aspects of inherent powers are expressed through questions which are declarations of various ingredients of the concept. The findings of this research programme are founded on the above ingredients. The nature of inherent powers convey the presence of a strong weapon in the hands of the judiciary. There is chance for abuse, misuse or disuse. But the enlightened opinion is in favour of giving inherent powers to the judge. The judge conducts research so that situations which do not fit in the 'strait jacket' of rule or order are overcome. Thus inherent power occupies a permanent slot in criminal justice system. The most striking character of inherent powers is the element of discretion it carries. The judge is supreme. But a judge cannot ride on inherent powers as if on an 'unruly horse'. There must be restraint, equipoise and magnanimity. A judge should not be so uncouth as to issue notice of contempt to the Chief of the same court. The judges shall not be emotive with the parties and bring in images of sentiments. No unnecessary word shall be uttered. At the same time giving power to the judges is indispensable because rules and laws are not always there when justice is in jeopardy. The function of the Supreme Court in the above context becomes onerous. It has to control, confine and limit the inherent powers of the High Court within the permissible limits. Section 482 CrPC has a very wide scope and its really important for the courts to use it properly and wisely. Many a times 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 files 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. This section would enable the courts for providing proper justice and also should be exercised to stop the public from filing fictitious complaints just to fulfill there personal grudges. The doctrine of inherent powers acquire significance becausethe principles of criminal justice administration are not exhaustively dealt with in the Code of Criminal Procedure. Rather it is impossible for a Code to be exhaustive. As According to R.V. Kelker, "In prescribing rules of procedure legislature undoubtedly attempts to provide for all cases that are likely to arise, but it is not possible that any legislative enactment dealing with the procedure however carefully it may be drafted would succeed in providing for all cases that may possibly arise in future. Lacunae are sometimes discovered in procedural law and it is to cover such lacunae and to deal with cases where such lacunae are discovered that procedural law invariably
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recognises the existence of inherent powers". The above jurist's view sounds the general understanding that the objective is to meet the exigencies of any situations, the court has inherent power to mould the procedure to enable it to pass such orders as the ends of justice may require.
29
th
Dr KN Chandrasekharan Pillai, „R.V. Kelkar‟s Criminal Procedure‟, 5 edn. EBC, Lucknow, 2012. Pg. 679
