Functions of judiciary, police are complimentary: SC

In a significant judgement, the Supreme Court on Tuesday declared that an interim order — directing no coercive steps against the accused in a criminal case — should not be passed routinely, casually or mechanically.

Maintaining that functions of the judiciary and the police are complementary, not overlapping, it said the court and the judicial process should not interfere at the stage of investigation of offences, save in exceptional cases where non-interference would result in miscarriage of justice.

"Normally, when the investigation is in progress and the facts are hazy and the entire evidence or material is not before the High Court, it should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail before the competent court," a three-judge bench presided over by Justice D Y Chandrachud said.

The top court said the High Court should not and as such is not justified in passing the order of not to arrest the accused either during the investigation or till the investigation is completed, while dealing with a petition under Section 482 of the Criminal Procedure Code or under Article 226 of the Constitution to quash the criminal case.

"Extraordinary and inherent powers of the court do not confer an arbitrary jurisdiction upon it to act according to its whims or caprice," the bench said.

Justice M R Shah, writing the judgement on behalf of the bench, also comprising Justice Sanjiv Khanna, laid down detailed guidelines for the High Court in dealing with the petition under Section 482 of the CrPC.

The court passed its judgement, allowing a petition filed by M/s Neeharika Infrastructure Pvt Ltd against an interim order by the Bombay High Court, which protected the accused against any coercive step, including the arrest, in an FIR related to forgery and fabrication of board resolution of the company to indulge in sale of valuable property measuring 111,882 sq feet in Mumbai.

The court said an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection by the High Court after giving brief reasons, demonstrating the application of mind.

"The power under Section 482 CrPC is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court," the bench said.

The top court pointed out police has the statutory right and duty under the law to investigate into a cognisable offence and the courts would not thwart any investigation into such cases.

"Criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint or FIR should be an exception rather than an ordinary rule," the bench added.

The court said the power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases.

"While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint," it said.