Thursday, March 18, 2021

Supreme Court - 'No Coercive Steps' Is Like 'Status Quo' Order In Civil Matters, Which Is Worst Order To Pass (Interim Relief U/S 482 CrPC)

 "'No coercive steps' is like the status quo order in civil matters. Status quo is the worst order to pass! The courts may instead say that protection from arrest is granted for 2 weeks", commented Justice D. Y. Chandrachud on 18 March 2021.

This was in the context of a submission that a blanket ban on any coercive steps, granted by High Courts under section 482, CrPC by way of interim relief, operates to restrain the investigating agency from recording any evidence and even proceeding with the investigation, in addition to arresting the accused.

The bench of Justices Chandrachud, M. R. Shah and Sanjiv Khanna was considering the contours of the power of quashing under section 482, CrPC and the power to grant interim relief by way of bail/anticipatory bail, stay on coercive steps i.e. a stay on arrest and investigation.

"When the High Court says that there shall be no coercive steps, this would also mean that you cannot be interrogated. This hampers investigation!... The right to investigate is with the IO, not with the court. The discretion of arrest lies with the IO and not with the court. The court can exercise this power in anticipatory bail and bail pleas. But let's not say that the court will decide how the investigation is done or that the court can pre-injunct the rights of the IO... It is in your (the accused) interest also that the investigation is done",

"Upon the registration of the FIR, the accused is mainly worried about the arrest. So 438 is the remedy. If the FIR is investigated and no case is made out, then the police give A, B, C summary report, and it will be considered. It is in the interest of the accused also that the investigation is carried out. Nowadays, within one day of the lodging of FIR, quashing is sought. There is no time given to the IO", weighed in Justice Shah.

"Is the High Court justified in passing an order when there is an alternative remedy under section 438 of the CrPC which has been invoked? That way, you will be in 2 courts!", remarked Justice Khanna.

"If the counsel prays for pre-arrest bail, then he may be asked to specify if he has moved a 438 application before the sessions court. In that case, he must be asked to go there or withdraw the same. One cannot be given multiple chances. Normally, when counsel find that the court is not inclined under 482, they withdraw it and go under 438. The client may also engage another counsel to go under 438 and conceal that fact...As judicial officers, we tend to put sections and jurisdiction in parts. It leads to complications at times", expressed Justice Khanna.
'Courts must inculcate the fear of the law, of the consequences, whether it is civil or criminal jurisdiction'

 the bench had expressed regret that because of the inadequacy of civil justice administration, every matter is increasingly being given a criminal colour.

"Just now we were hearing the matter for alienation of property in public trust. We told the petitioner that if he didn't deposit 'X' amount of money, we won't dismiss the petition but we will impose an exemplary cost. It is important that the courts start insisting on this. Otherwise, there is no fear of the law, of the consequences, whether it is civil or criminal jurisdiction", explained Justice Chandrachud.
In the instant case, the petitioner had impugned an order of the Bombay High Court allowing another bidder to complete the formalities and procedure for the sale of the property of the public trust, on the repeated failure of the petitioner to deposit the requisite sum with the registry of the court and finally, on his cheque being dishonoured.

"I will tell you my mistake. About a year ago, I deleted an order of cost. The respondent came back and said 'We are not aggrieved by the SLP dismissal. You can ask the cost to be paid to the Supreme Court Bar Association or anywhere else but please don't delete it'. We had been led astray in deleting the order of cost...because there is so much work and ultimately, we are also dependent on the lawyers only", illustrated the judge.
The bench had on Wednesday expressed concern regarding the rising trend among High Courts across the country to routinely grant interim relief by way of a stay on any coercive action pending a writ petition or a plea under section 482, CrPC for quashing of criminal proceedings. Accordingly, the bench undertook to lay down guidelines in this behalf.

The bench was hearing an SLP arising out of a September 2020 order of the Bombay High Court on a writ petition. While granting time for the filing of a reply affidavit with additional documents, the High Court had in the interim directed that no coercive measures be adopted against the present respondents (director of a real estate development company and his business partners) in respect of the FIR registered by the present petitioner (Neeharika Infrastructure Pvt Ltd) with the Economic Offences Wing for alleged offences under Sections 406, 420, 465, 468, 471 and 120B of the IPC. On October 12 last year, a bench headed by Justice Chandrachud had issued a notice on the SLP and granted an ad-interim stay on the aforesaid direction of the HC. The bench had recorded that three orders were passed by the Additional Sessions Judge, City Sessions Court, Mumbai on 15 October 2019 under Section 438 of the CrPC granting interim protection from arrest to the respondents. Moreover, the protection which was granted by the Sessions Court was extended from time to time and nearly a year thereafter, a writ petition was moved before the Bombay High Court in which a blanket order has been passed on 28 September 2020.

No comments:

Post a Comment