# M/S NEEHARIKA INFRASTRUCTURE PVT. LTD v. STATE OF MAHARASHTRA AND OTHERS

- **Citation:** [2021] 4 S.C.R. 1044
- **Court:** Supreme Court of India
- **Decided:** 2021-04-13
- **Case number:** Criminal Appeal No. 330 of 2021
- **Bench:** Dr. Dhananjaya Y. Chandrachud, M. R. Shah, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-neeharika-infrastructure-pvt-ltd-v-state-of-maharashtra-and-others-35053
- **Pages:** 56

## Headnote

Code of Criminal Procedure, 1973 - s.482 - Constitution of
India - Article 226 - Quashing of FIR - Blanket interim orders of
stay of investigation and/or "no coercive steps to be adopted" during
pendency of quashing proceedings and/or u/Art.226 -
Impermissibility of - Held: Police has the statutory right and duty
to investigate into a cognizable offence - Save in exceptional cases,
the Court should not interfere at the stage of investigation of offences
- When the investigation is in progress and the facts are hazy, the
High Court should restrain itself from passing the interim order of
not to arrest or "no coercive steps to be adopted" - FIR is not an
encyclopaedia disclosing all facts and details of the offence -
Therefore, when the investigation is in progress, the court should
not go into the merits of the allegations in the FIR - Police must be
permitted to complete the investigation - Extraordinary and inherent
powers of the Court do not confer an arbitrary jurisdiction on the
Court to act according to its whims or caprice - Power of quashing
should be exercised sparingly with circumspection in the 'rarest of
rare cases' (not to be confused with the formation in the context of
death penalty) - Even in a case where the High Court is prima facie
of the opinion that an exceptional case is made out for grant of
interim stay of further investigation, it has to give brief reasons
why such an order is warranted - In the present case, impugned
interim order passed by the High Court directing "no coercive
measures to be adopted" against the respondent nos. 2 to 4-accused,
set aside - Penal Code, 1860 - ss.406, 420, 465, 468, 471, 120B.
Code of Criminal Procedure, 1973 - s.482 - Constitution of
India - Article 226 - Quashing petitions u/s.482 or Article 226
dismissed - Orders passed by High Courts of not to arrest during
the pendency of the investigation - Held: Despite the law laid down
[2021] 4 S.C.R. 1044
1044
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by Supreme Court deprecating such orders, many High Courts are
passing such orders - Law declared by Supreme Court is binding
on all the High Courts - High Courts cautioned against passing
such orders.
Code of Criminal Procedure, 1973 - s.340 r/w s.195 (1)(B) -
Petition under, filed by respondent nos.2 to 4-accused alleging that
the appellant suppressed vital agreements, facts and obtained interim
order by Supreme Court which stayed the impugned order passed
by High Court - Held: Interim order staying the impugned order
was passed by giving reasons - Further, even if the documents/
agreements alleged to have been suppressed would have been there,
it would not have any bearing on the interim order passed.
Allowing the appeal, the Court
HELD: 1.1 Before passing an interim order of staying
further investigation pending the quashing petition under Section
482 Cr.P.C. and/or Article 226 of the Constitution of India, the
High Court has to apply the very parameters which are required
to be considered while quashing the proceedings in exercise of
powers under Section 482 Cr.P.C. in exercise of its inherent
jurisdiction. In a given case, there may be allegations of abuse of
process of law by converting a civil dispute into a criminal dispute,
only with a view to pressurise the accused. Similarly, in a given
case the complaint itself on the face of it can be said to be barred
by law. The allegations in the FIR/complaint may not at all disclose
the commission of a cognizable offence. In such cases and in
exceptional cases with circumspection, the High Court may stay
the further investigation. However, at the same time, there may
be genuine complaints/FIRs and the police/investigating agency
has a statutory obligation/right/duty to enquire into the cognizable
offences. Therefore, a balance has to be struck between the rights
of the genuine complainants and the FIRs disclosing commission
of a cognizable offence and the statutory obligation/duty of the
investigating agency to investigate into the cognizable offenc

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SUPREME COURT REPORTS
[2021] 4 S.C.R.
M/S NEEHARIKA INFRASTRUCTURE PVT. LTD.
v.
STATE OF MAHARASHTRA AND OTHERS
(Criminal Appeal No. 330 of 2021)
APRIL 13, 2021
[DR. DHANANJAYA Y. CHANDRACHUD,
M. R. SHAH AND SANJIV KHANNA, JJ.]
Code of Criminal Procedure, 1973 - s.482 - Constitution of
India - Article 226 - Quashing of FIR - Blanket interim orders of
stay of investigation and/or "no coercive steps to be adopted" during
pendency of quashing proceedings and/or u/Art.226 -
Impermissibility of - Held: Police has the statutory right and duty
to investigate into a cognizable offence - Save in exceptional cases,
the Court should not interfere at the stage of investigation of offences
- When the investigation is in progress and the facts are hazy, the
High Court should restrain itself from passing the interim order of
not to arrest or "no coercive steps to be adopted" - FIR is not an
encyclopaedia disclosing all facts and details of the offence -
Therefore, when the investigation is in progress, the court should
not go into the merits of the allegations in the FIR - Police must be
permitted to complete the investigation - Extraordinary and inherent
powers of the Court do not confer an arbitrary jurisdiction on the
Court to act according to its whims or caprice - Power of quashing
should be exercised sparingly with circumspection in the 'rarest of
rare cases' (not to be confused with the formation in the context of
death penalty) - Even in a case where the High Court is prima facie
of the opinion that an exceptional case is made out for grant of
interim stay of further investigation, it has to give brief reasons
why such an order is warranted - In the present case, impugned
interim order passed by the High Court directing "no coercive
measures to be adopted" against the respondent nos. 2 to 4-accused,
set aside - Penal Code, 1860 - ss.406, 420, 465, 468, 471, 120B.
Code of Criminal Procedure, 1973 - s.482 - Constitution of
India - Article 226 - Quashing petitions u/s.482 or Article 226
dismissed - Orders passed by High Courts of not to arrest during
the pendency of the investigation - Held: Despite the law laid down
[2021] 4 S.C.R. 1044
1044
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by Supreme Court deprecating such orders, many High Courts are
passing such orders - Law declared by Supreme Court is binding
on all the High Courts - High Courts cautioned against passing
such orders.
Code of Criminal Procedure, 1973 - s.340 r/w s.195 (1)(B) -
Petition under, filed by respondent nos.2 to 4-accused alleging that
the appellant suppressed vital agreements, facts and obtained interim
order by Supreme Court which stayed the impugned order passed
by High Court - Held: Interim order staying the impugned order
was passed by giving reasons - Further, even if the documents/
agreements alleged to have been suppressed would have been there,
it would not have any bearing on the interim order passed.
Allowing the appeal, the Court
HELD: 1.1 Before passing an interim order of staying
further investigation pending the quashing petition under Section
482 Cr.P.C. and/or Article 226 of the Constitution of India, the
High Court has to apply the very parameters which are required
to be considered while quashing the proceedings in exercise of
powers under Section 482 Cr.P.C. in exercise of its inherent
jurisdiction. In a given case, there may be allegations of abuse of
process of law by converting a civil dispute into a criminal dispute,
only with a view to pressurise the accused. Similarly, in a given
case the complaint itself on the face of it can be said to be barred
by law. The allegations in the FIR/complaint may not at all disclose
the commission of a cognizable offence. In such cases and in
exceptional cases with circumspection, the High Court may stay
the further investigation. However, at the same time, there may
be genuine complaints/FIRs and the police/investigating agency
has a statutory obligation/right/duty to enquire into the cognizable
offences. Therefore, a balance has to be struck between the rights
of the genuine complainants and the FIRs disclosing commission
of a cognizable offence and the statutory obligation/duty of the
investigating agency to investigate into the cognizable offences
on the one hand and those innocent persons against whom the
criminal proceedings are initiated which may be in a given case
abuse of process of law and the process. The High Court must
appreciate that speedy investigation is the requirement in the
criminal administration of justice. [Paras 11, 12][1085-C-H; 1086A]
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
1.2 The High Court should be slow in interfering the criminal
proceedings at the initial stage, i.e., quashing petition filed
immediately after lodging the FIR/complaint and no sufficient time
is given to the police to investigate into the allegations of the
FIR/complaint. It is the statutory right and even the duty of the
police to investigate into the cognizable offence and collect the
evidence during the course of investigation. There may be
requirement of a custodial investigation for which the accused is
required to be in police custody (popularly known as remand).
Therefore, passing such type of blanket interim orders without
assigning reasons, of not to arrest and/or "no coercive steps"
would hamper the investigation and may affect the statutory right/
duty of the police to investigate the cognizable offence conferred
under the provisions of the Cr.P.C. Therefore, such a blanket
order is not justified at all. The order of the High Court must
disclose reasons why it has passed an ad-interim direction during
the pendency of the proceedings under Section 482 Cr.P.C. Such
reasons, however brief must disclose an application of mind.
Granting of such blanket order would not only adversely affect
the investigation but would have far reaching implications for
maintaining the Rule of Law. Where the investigation is stayed
for a long time, even if the stay is ultimately vacated, the
subsequent investigation may not be very fruitful for the simple
reason that the evidence may no longer be available. Therefore,
in case, the accused named in the FIR/complaint apprehends his
arrest, he has a remedy to apply for anticipatory bail under Section
438 Cr.P.C. and on the conditions of grant of anticipatory bail
under Section 438 Cr.P.C being satisfied, he may be released on
anticipatory bail by the competent court. Therefore, it cannot be
said that the accused is remediless. It cannot be disputed that
the anticipatory bail under Section 438 Cr.P.C. can be granted on
the conditions prescribed under Section 438 Cr.P.C. are satisfied.
Arrest is not a must whenever an FIR of a cognizable offence is
lodged. Still in case a person is apprehending his arrest in
connection with an FIR disclosing cognizable offence has a remedy
to apply for anticipatory bail. So far as the order of not to arrest
and/or "no coercive steps" till the final report/chargesheet is
filed and/or during the course of investigation or not to arrest till
the investigation is completed, passed while dismissing the
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quashing petitions under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India and having opined that no case is
made out to quash the FIR/complaint is concerned, the same is
wholly impermissible. [Paras 15-17][1087-E-G; 1088-B-G; 1089D]
Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC
453 : [2014] 1 SCR 465 - relied on.
1.3 Despite the law laid down by this Court deprecating
such orders passed by the High Courts of not to arrest during
the pendency of the investigation, even when the quashing
petitions under Section 482 Cr.P.C. or Article 226 of the
Constitution of India are dismissed, even thereafter also, many
High Courts are passing such orders. The law declared/laid down
by this Court is binding on all the High Courts and not following
the law laid down by this Court would have very serious
implications in the administration of justice. Therefore, the law
laid down by this Court in the case of Habib Abdullah Jeelani is
again reiterated and all the High Courts are directed to
scrupulously follow the law laid down and the law laid down by
this Court in the present case, which otherwise the High Courts
are bound to follow. The High Courts are cautioned again against
passing such orders of not to arrest or "no coercive steps to be
taken" till the investigation is completed and the final report is
filed, while not entertaining quashing petitions under Section 482
Cr.P.C. and/or Article 226 of the Constitution of India. [Paras 19,
20][1090-F-G; 1091-D-E]
State of Telangana v. Habib Abdullah Jeelani, (2017) 2
SCC 779 : [2017] 1 SCR 141; Ravuri Krishna Murthy
v. The State of Telangana and Others (Decision of
Supreme Court dtd. 05.03.2021 in Criminal Appeal
Nos. 274-275 of 2021) - relied on.
1.4 The impugned interim order passed by the High Court
directing the investigating agency/police "not to adopt any
coercive steps" against the accused is unsustainable. It is a cryptic
order. No reasons whatsoever have been assigned by the High
Court, while passing such a blanket order of "no coercive steps
to be adopted" by the police. It is not clear what the High Court
M/S NEEHARIKA INFRASTRUCTURE PVT. LTD. v. STATE OF
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SUPREME COURT REPORTS
[2021] 4 S.C.R.
meant by passing the order of "not to adopt any coercive steps",
as it is clear from the impugned interim order that it was brought
to the notice of the High Court that so far as the accused are
concerned, they are already protected by the interim protection
granted by the Sessions Court, and therefore there was no further
reason and/or justification for the High Court to pass such an
interim order of "no coercive steps to be adopted". If the High
Court meant by passing such an interim order of "no coercive
steps" directing the investigating agency/police not to further
investigate, in that case, such a blanket order without assigning
any reasons whatsoever and without even permitting the
investigating agency to further investigate into the allegations of
the cognizable offence is otherwise unsustainable. It has affected
the right of the investigating agency to investigate into the
cognizable offences. [Para 21][1091-F-H; 1092-A-D]
1.5 Even while passing such an interim order, in exceptional
cases with caution and circumspection, the High Court has to
give brief reasons why it is necessary to pass such an interim
order, more particularly when the High Court is exercising the
extraordinary and inherent powers under Section 482 Cr.P.C. and/
or under Article 226 of the Constitution of India. Therefore, in
the facts and circumstances of the case, the High Court committed
grave error of law and also of facts in passing such an interim
order of "no coercive steps to be adopted" and the same deserves
to be quashed and set aside. [Para 21.4][1094-G-H; 1095-A-B]
Kranti Associates (P) Ltd. v. Masood Ahmed, (2010) 9
SCC 496 : [2010] 10 SCR 1070 - relied on.
1.6 This Court has passed an interim order dated 12.10.2020
staying order dated 28.09.2020 passed by the High Court, by
giving brief reasons and even if the documents/agreements which
are alleged to have been suppressed would have been there, it
would not have any bearing on the interim order passed by this
Court. What is weighed while passing interim order dated
12.10.2020 is very clear from the interim order dated 12.10.2020.
Therefore, the criminal miscellaneous petition No. 4961/2021 is
closed. [Para 22][1095-E-F]
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1.7 Conclusions:
i)Police has the statutory right and duty under the relevant
provisions of the Code of Criminal Procedure contained in
Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the
cognizable offences;
iii) It is only in cases where no cognizable offence or offence
of any kind is disclosed in the first information report that the
Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly
with circumspection in the 'rarest of rare cases (not to be confused
with the formation in the context of death penalty).
v) 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;
vi) Criminal proceedings ought not to be scuttled at the
initial stage;
vii) Quashing of a complaint/FIR should be an exception
rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State operate
in two specific spheres of activities and one ought not to tread
over the other sphere;
ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) Save in exceptional cases where non-interference would
result in miscarriage of justice, the Court and the judicial process
should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act according to
its whims or caprice;
xii) The first information report is not an encyclopaedia
which must disclose all facts and details relating to the offence
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SUPREME COURT REPORTS
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reported. Therefore, when the investigation by the police is in
progress, the court should not go into the merits of the allegations
in the FIR. Police must be permitted to complete the
investigation. It would be premature to pronounce the conclusion
based on hazy facts that the complaint/FIR does not deserve to
be investigated or that it amounts to abuse of process of law.
After investigation, if the investigating officer finds that there is
no substance in the application made by the complainant, the
investigating officer may file an appropriate report/summary before
the learned Magistrate which may be considered by the learned
Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. 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;
xiv) However, at the same time, the court, if it thinks fit,
regard being had to the parameters of quashing and the selfrestraint imposed by law, more particularly the parameters laid
down by this Court in the cases of R.P. Kapur and Bhajan Lal,
has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the
alleged accused and the court when it exercises the power under
Section 482 Cr.P.C., only has to consider whether the allegations
in the FIR disclose commission of a cognizable offence or not.
The court is not required to consider on merits whether or not
the merits of the allegations make out a cognizable offence and
the court has to permit the investigating agency/police to
investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or
the aforesaid aspects are required to be considered by the High
Court while passing an interim order in a quashing petition in
exercise of powers under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India. However, an interim order of
stay of investigation during the pendency of the quashing petition
can be passed with circumspection. Such an interim order should
not require to be passed routinely, casually and/or mechanically.
Normally, when the investigation is in progress and the facts are
hazy and the entire evidence/material is not before the High
Court, the High Court should restrain itself from passing the
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interim order of not to arrest or "no coercive steps to be adopted"
and the accused should be relegated to apply for anticipatory bail
under Section 438 Cr.P.C. before the competent court. The High
Court shall not and as such is not justified in passing the order of
not to arrest and/or "no coercive steps" either during the
investigation or till the investigation is completed and/or till the
final report/chargesheet is filed under Section 173 Cr.P.C., while
dismissing/disposing of the quashing petition under Section 482
Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of
the opinion that an exceptional case is made out for grant of interim
stay of further investigation, after considering the broad
parameters while exercising the powers under Section 482
Cr.P.C. and/or under Article 226 of the Constitution of India
referred to herein, the High Court has to give brief reasons why
such an interim order is warranted and/or is required to be passed
so that it can demonstrate the application of mind by the Court
and the higher forum can consider what was weighed with the
High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High
Court of "no coercive steps to be adopted" within the aforesaid
parameters, the High Court must clarify what does it mean by
"no coercive steps to be adopted" as the term "no coercive steps
to be adopted" can be said to be too vague and/or broad which
can be misunderstood and/or misapplied. [Para 23][1096-B-H;
1097-A-H; 1098-A-H; 1099-A]
R.P. Kapur v. State of Punjab AIR 1960 SC 866; State
of Haryana v. Bhajan Lal (1992) 1 Suppl. SCC 335 -
relied on.
1.8 The impugned interim order/direction contained in
clause (d) of the impugned interim order by which the High Court
has directed that "no coercive measures to be adopted" against
the petitioners (respondent nos. 2 to 4 herein) in respect of FIR
No.367/2019 dated 19.09.2019, registered at Worli Police Station,
Mumbai, Maharashtra (subsequently transferred to Economic
Offence Wing, Unit IX, Mumbai, renumbered as C.R. No. 82/
2019) is quashed and set aside. [Para 24][1099-B-C]
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[2021] 4 S.C.R.
Kurukshetra University v. State of Haryana (1977) 4
SCC 451; State of A.P. v. Golconda Linga Swamy
(2004) 6 SCC 522 : [2004] 3 Suppl. SCR 147; Zandu
Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque
(2005) 1 SCC 122 : [2004] 5 Suppl. SCR 790;
Sanapareday Maheedhar Seshagiri v. State of Andhra
Pradesh (2007) 13 SCC 165 : [2007] 13 SCR 478;
State of Maharashtra v. Arun Gulab Gawali (2010) 9
SCC 701 : [2010] 10 SCR 683; State of Orissa v. Ujjal
Kumar Burdhan (2012) 4 SCC 547 : [2012] 4 SCC
547; Imtiyaz Ahmad v. State of Uttar Pradesh, (2012) 2
SCC 688 : [2012] 1 SCR 779; Asian Resurfacing of
Road Agency Private Limited v. Central Bureau of
Investigation, (2018) 16 SCC 299 : [2018] 2 SCR 1045;
State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554 :
[1980] 2 SCR 16; S.M. Sharma v. Bipen Kumar Tiwari,
(1970) 1 SCC 653 : [1970] 3 SCR 946 ; Union of India
v. Prakash P. Hinduja, (2003) 6 SCC 195 : [2003] 1
Suppl. SCR 307; Satvinder Kaur v. State (Govt. of NCT
of Delhi),(1999) 8 SCC 728 : [1999] 3 Suppl. SCR
348; Supdt. of Police, CBI v. Tapan Kumar Singh,
(2003) 6 SCC 175 : [2003] 3 SCR 485; State of U.P. v.
Naresh, (2011) 4 SCC 324 : [2011] 4 SCR 1176;
P. Chidambaram v. Directorate of Enforcement, (2019)
9 SCC 24 : [2019] 12 SCR 172; Skoda Auto
Volkswagen India Private Limited v. State of Uttar
Pradesh, (2020) SCC OnLine SC 958; Special Director
v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 : [2004]
1 SCR 399; Nitco Tiles Ltd. v. Gujarat Ceramic Floor
Tiles Mfg. Association, (2005) 12 SCC 454; Hindustan
Times Limited v. Union of India, (1998) 2 SCC 242 :
[1998] 1 SCR 4 - relied on.
State of Andhra Pradesh v. Bajjoori Kanthaiah (2009)
1 SCC 114 : [2008] 14 SCR 841; State of Karnataka
v. L. Muniswamy, (1977) 2 SCC 699 : [1977] 3 SCR
113; Rajiv Thapar V. Madan Lal Kapoor, (2013) 3 SCC
330 : [2013] 3 SCR 52; State of U.P. v. Mohammad
Naim AIR 1964 SC 703; State of Andhra Pradesh v.
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Gourishetty Mahesh (2010) 11 SCC 226 : [2010] 8
SCR 423; Vijeta Gajra v. State (NCT of Delhi), (2010)
11 SCC 618 : [2010] 7 SCR 1150; State of
Maharashtra v. Sanjay Dalmia, (2015) 17 SCC 539;
Amish Devgan v. Union of India, (2021) 1 SCC 1;
Decision of the Delhi High Court dtd.22.06.2020 in
Ganga Ram Hospital v. State [CRL.M.A. No. 7661/
2020 in W.P. (CRL.) No. 921/2020]; Noor Taki Alias
Mammu v. State of Rajasthan AIR 1987 RAJ 52;
Madhukar Purshottam Mondkar v. Talab Haji Hussain
AIR 1958 BOM 406 - referred to.
King-Emperor v. Khwaja Nazir Ahmad AIR 1945 PC
18 - referred to.
Case Law Reference
[2017] 1 SCR 141
relied on
Para 3.6
[2004] 3 Suppl. SCR 147
relied on
Para 3.11
[2004] 5 Suppl. SCR 790
relied on
Para 3.11
[2007] 13 SCR 478
relied on
Para 3.11
[2008] 14 SCR 841
referred to
Para 3.11
[2010] 10 SCR 683
relied on
Para 3.11
[2012] 4 SCC 547
relied on
Para 3.11
[2012] 1 SCR 779
relied on
Para 3.13
[2018] 2 SCR 1045
relied on
Para 3.15
[1977] 3 SCR 113
referred to
Para 4.3
[2013] 3 SCR 52
referred to
Para 4.8
[2010] 8 SCR 423
referred to
Para 4.9
[2010] 7 SCR 1150
referred to
Para 4.9
[1980] 2 SCR 16
relied on
Para 9.1
[1970] 3 SCR 946
relied on
Para 9.1
[2003] 1 Suppl. SCR 307
relied on
Para 9.2
[1999] 3 Suppl. SCR 348
relied on
Para 9.5
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[2003] 3 SCR 485
relied on
Para 9.6
[2011] 4 SCR 1176
relied on
Para 9.6
[2019] 12 SCR 172
relied on
Para 9.8
2014] 1 SCR 465
relied on
Para 16
[2004] 1 SCR 399
relied on
Para 21.1
[1998] 1 SCR 4
relied on
Para 21.3
[2010] 10 SCR 1070
relied on
Para 21.4
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
330 of 2021.
From the Judgment and Order dated 28.09.2020 of the High Court
of Judicature at Bombay in Writ Petition (ST) No. 2306 of 2020.
K.V. Vishwanathan, Sr. Adv., Arunabh Chowdhury, Vaibhav
Tomar, Abhay Jadeja, Ms. Barnalli Chowdhury, Varun Satiya, Dechan
W. Lachungpa, Mrs. Pragya Baghel, Advs. for the Appellant.
Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph, Diljeet
Ahluwalia, Malak Manish Bhatt, Ms. Neeha Nagpal, Advs. for the
Respondents.
The Judgment of the Court was delivered by
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned interim
order dated 28.09.2020 passed by the Division Bench of the High Court
of Judicature at Bombay in Writ Petition (ST) No. 2306 of 2020, by
which, in an application filed by private respondent nos. 2 to 4 herein
(hereinafter referred to as the 'original accused') under Article 226 of
the Constitution of India r/w Section 482 Cr.P.C. with a prayer to quash
the criminal proceedings being FIR No. 367/2019 dated 19.09.2019, the
High Court has directed that "no coercive measures shall be adopted"
against the original accused in respect of the said FIR, the original
complainant has preferred the present appeal.
2. That the appellant herein has lodged an FIR against respondent
nos. 2 to 4 herein - original accused at Worli Police Station, Mumbai for
the offences under Sections 406, 420, 465, 468, 471 and 120B of the
Indian Penal Code. That the allegations against the original accused
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pertain to forgery and fabrication of Board Resolution and the fraudulent
sale of a valuable property Naziribagh Palace ad-measuring 111,882 sq.
ft. belonging to the appellant company to one M/s Irish Hospitality Pvt.
Ltd.
2.1 Apprehending their arrest in connection with the aforesaid
FIR, the original accused filed anticipatory bail application before the
learned trial Court under Section 438 Cr.P.C. That the learned Sessions
Court, Mumbai granted interim protection from arrest to the alleged
accused. That the interim protection, which was granted by the learned
Sessions Court, was further extended from time to time and continued
nearly for a year thereafter. That during the pendency of the anticipatory
bail application pending before the learned Sessions Court, Mumbai,
original accused - respondent nos. 2 to 4 herein preferred a petition
before the High Court of Judicature at Bombay under Article 226 of the
Constitution of India r/w Section 482 Cr.P.C. for quashing the FIR, on
17.09.2020. That the said writ petition was listed for hearing before the
Division Bench of the High Court on 22.09.2020, wherein an order was
passed directing the matter to be listed on 24.09.2020 before another
Bench. That on 28.09.2020, the writ petition was listed for hearing
before another Division Bench. Learned counsel appearing on behalf
of the appellant herein (respondent no.2 before the High Court) prayed
for two weeks' time to file an affidavit in reply with an additional
compilation of documents. That the Division Bench granted two weeks'
time to the appellant herein to file an affidavit in reply with an additional
compilation of documents in the Registry on or before 12.10.2020 with
copy to the other side. Liberty was granted to the original accused (writ
petitioners before the High Court) to file rejoinder, if any, on or before
19.10.2020. The matter was directed to be listed on board on 28.10.2020.
While adjourning the matter to 28.10.2020, the High Court has passed
the impugned interim order directing that "no coercive measures shall
be adopted against the petitioners (original accused - respondent nos. 2
to 4 herein) in respect of the said FIR". When the aforesaid order was
being passed, learned counsel appearing on behalf of the appellant
submitted that anticipatory bail application filed by the original writ
petitioners before the learned Sessions Court is pending for hearing and
the learned Sessions Court may get influenced by the said order and
therefore the Division Bench clarified that the learned Sessions Court
shall decide the anticipatory bail application on its own merits.
M/S NEEHARIKA INFRASTRUCTURE PVT. LTD. v. STATE OF
MAHARASHTRA AND OTHERS [M.R. SHAH, J.]
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2.2 Feeling aggrieved and dissatisfied with the impugned interim
order passed by the Division Bench of the High Court directing that "no
coercive measures shall be adopted" against the original accused (writ
petitioners before the High Court) in respect of the said FIR, the original
complainant has preferred the present appeal.
3. Shri K.V. Vishwanathan, learned Senior Advocate has appeared
on behalf of the appellant - original respondent no.2 - complainant, Shri
Diljeet Ahluwalia with Shri Malak Manish Bhatt, learned Advocates have
appeared on behalf of the original accused - writ petitioners - respondent
nos. 2 to 4 herein and Shri Sachin Patil and Shri Rahul Chitnis, learned
Advocates have appeared on behalf of the State of Maharashtra.
3.1 Shri K.V. Vishwanathan, learned Senior Advocate appearing
on behalf of the appellant - original complainant has vehemently submitted
that such a blanket direction of the High Court restraining the investigating
officer from taking coercive measures, in the facts and circumstances
of the case, was not warranted at all.
3.2 It is submitted that, as such, the original accused - respondent
nos. 2 to 4 herein were already having the interim protection from the
learned Sessions Court, Mumbai in the anticipatory bail application which
was continued from time to time since last one year. It is submitted that,
as such, the original accused were not co-operating with the investigation
after having obtained the interim protection of arrest and, in fact, the
investigating officer addressed a communication to the learned Sessions
Court stating that the accused were not co-operating with the
investigation. It is submitted that therefore thereafter and that too while
enjoying the interim protection from arrest, to file an application for
quashing after a period of almost one year and obtain such an order is
nothing but an abuse of process.
3.3 It is submitted that, as such, no reasons whatsoever have
been assigned by the High Court while passing such an interim order of
"no coercive measures to be adopted/taken" against the original accused.
3.4 It is submitted that the High Court ought to have appreciated
that the original accused - respondent nos. 2 to 4 herein are facing very
serious charges for the offences under Sections 406, 420, 465, 468, 471
and 120B of the Indian Penal Code and, in fact, the FIR was transferred
to the Economic Offences Wing and the investigation was being
conducted by the Economic Offences Wing. It is submitted that, as such,
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the original accused were not co-operating with the investigation after
having obtained the interim protection from arrest.
3.5 It is further submitted by Shri Vishwanathan, learned Senior
Advocate appearing on behalf of the appellant that, as such, by issuing
such a blanket direction restraining the investigating officer from taking
coercive measures against the original accused, the valuable right of the
investigating officer to investigate the offences has been hampered and/
or taken away.
3.6 Relying upon the decision of this Court in the case of State of
Telangana v. Habib Abdullah Jeelani, (2017) 2 SCC 779, it is
submitted by Shri Vishwanathan that as observed and held by this Court
the powers under Section 482 Cr. P.C or under Article 226 of the
Constitution of India to quash the first information report is to be exercised
in a very sparing manner and is not to be used to choke or smother the
prosecution that is legitimate. It is submitted that it is observed by this
Court in the aforesaid decision that inherent powers do not confer an
arbitrary jurisdiction on the High Court to act according to whim or
caprice. That such power has to be exercised sparingly, with
circumspection and in the rarest of rare cases. It is submitted that it
cannot be disputed that accused cannot approach the High Court under
Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
However, as held by this Court in catena of decisions, inherent power in
a matter of quashing 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. It is submitted that in the
aforesaid decision it is observed and held that power under Section 482
Cr.P.C. 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.
3.7 It is submitted that in a given case, the Court, having found
that the case falls within the parameters of exercise of powers under
Section 482 Cr.P.C. to quash the FIR, may pass appropriate interim
orders as thought apposite in law, but even such an interim order shall be
passed regard being had to the parameters of quashing and the selfrestraint imposed by law. It is submitted that even in such a case the
High Court has to consider the allegations made in the FIR or what has
come out in the investigation.
M/S NEEHARIKA INFRASTRUCTURE PVT. LTD. v. STATE OF
MAHARASHTRA AND OTHERS [M.R. SHAH, J.]
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3.8 It is submitted that in a case the accused against whom the
FIR is lodged is apprehending arrest, a remedy is available to him to file
the anticipatory bail application under Section 438 Cr.P.C. It is submitted
that even when the anticipatory bail application under Section 438 is
filed, the same can be granted within the parameters of Section 438
Cr.P.C. and the conditions of the said provision are satisfied. It is submitted
that, however, such a blanket order of no coercive steps without imposing
any condition whatsoever and without satisfaction of the conditions of
Section 438 Cr.P.C. is not permissible at all.
3.9 It is further submitted that, as such, by passing such a blanket
order of "no coercive steps to be taken", even the valuable right of the
investigating agency/police to investigate the FIR will be affected.
3.10 It is submitted that assuming that the High Court has
jurisdiction to pass an interim order in a given case, regard being had to
the parameters of quashing, in that case also, such interim orders cannot
be passed mechanically and/or without assigning any reasons. It is
submitted that while granting such a protection, even the High Court has
to give some brief reasons why stay of investigation and/or such an
order of "no coercive steps" is warranted. It is submitted that there
must be a reflection of application of mind to the facts of the case;
allegations in the FIR and what has come out in the investigation. It is
submitted that, as such, when the investigation is in progress at the
threshold, it is not appropriate to stay the investigation of the case. It is
submitted that only in an exceptional case and rarest of rare case, the
powers to quash the FIR are required to be exercised sparingly and with
circumspection. It is submitted that the same parameters which shall be
applicable while exercising the powers under Section 482 Cr.P.C. and/
or under Article 226 of the Constitution of India to quash the FIR/
investigation shall be applicable while passing an appropriate interim order.
3.11 Shri Vishwanathan, learned Senior Advocate appearing on
behalf of the appellant has relied upon the following decisions on when a
High Court can grant a stay of investigation or "no coercive measures
order" in exercise of its powers under Section 482 Cr.P.C./under Article
226 of the Constitution of India and in support of his submissions that (1)
inherent powers do not confer an arbitrary jurisdiction on the High Court
to act according to whim or caprice and the statutory power has to be
exercised sparingly, with circumspection and in the rarest of rare cases;
(2) power of the police to investigate into a cognizable offence is ordinarily
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not to be interfered with by the judiciary; (3) save in exceptional case
where non-interference would result in miscarriage of Justice, the Court
and the judicial process should not interfere at the stage of investigation
of offences; (4) in case a police officer transgresses the circumscribed
limits and improperly and illegally exercises his powers in relation to the
process of investigation, then the Court has the necessary powers to
consider the nature and extent of the breach and pass appropriate orders;
(5) the High Court being the highest Court of a State should normally
refrain from giving a prima facie decision in a case where the entire
facts are incomplete and hazy, more so when the evidence has not been
collected and produced before the Court; (6) the High Court has no
inherent powers to interfere with the investigation, unless it is found that
the allegations do not disclose the commission of a cognizable offence
or the power of investigation is being exercised by the police malafidely;
(7) the High Court should be extremely cautious and slow to interfere
with the investigation and/or trial of criminal cases and should not stall
the investigation and/or prosecution except when it is convinced beyond
any manner of doubt that the FIR does not disclose commission of an
offence or that the allegations contained in the FIR do not constitute
any cognizable offence or that the prosecution is barred by law or the
High Court is convinced that it is necessary to interfere to prevent
abuse of the process of the Court. In support of his above submissions,
learned Senior Advocate has relied upon the following decisions, namely,
King-Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18; R.P. Kapur
v. State of Punjab AIR 1960 SC 866; Kurukshetra University v.
State of Haryana (1977) 4 SCC 451; State of A.P. v. Golconda
Linga Swamy (2004) 6 SCC 522; Zandu Pharmaceutical Works
Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122; Sanapareday
Maheedhar Seshagiri v. State of Andhra Pradesh (2007) 13 SCC
165; State of Andhra Pradesh v. Bajjoori Kanthaiah (2009)1 SCC
114; State of Maharashtra v. Arun Gulab Gawali (2010) 9 SCC
701; and State of Orissa v. Ujjal Kumar Burdhan (2012) 4 SCC
547.
3.12 Shri Vishwanathan, learned Senior Advocate has heavily relied
upon the decision of this Court in the case of State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335, on when the High Court would be justified
in quashing the FIR/investigation. He has relied upon paras 60, 61, 102
and 103 respectively of the aforesaid decision.
M/S NEEHARIKA INFRASTRUCTURE PVT. LTD. v. STATE OF
MAHARASHTRA AND OTHERS [M.R. SHAH, J.]
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3.13 Relying upon the decision of this Court in the case of Imtiyaz
Ahmad v. State of Uttar Pradesh, (2012) 2 SCC 688, it is submitted
that the power to grant stay of investigation and trial is very extraordinary
power given to the High Courts and such power is to be exercised sparingly
only to prevent abuse of process and to promote the ends of justice.
3.14 Shri Vishwanathan, learned Senior Advocate also relied upon
the recent decision of this Court in the case of Ravuri Krishna Murthy
v. The State of Telangana and others (Criminal Appeal Nos. 274275 of 2021, decided on 05.03.2021), by which a somewhat similar
order of protection of not to arrest passed while not entertaining the
quashing petition under Section 482, has been set aside by this Court
considering the decision of this Court in the case of Habib Abdullah
Jeelani (supra).
3.15 Shri Vishwanathan, learned Senior Advocate appearing on
behalf of the appellant has further submitted that in the case of Asian
Resurfacing of Road Agency Private Limited v. Central Bureau of
Investigation, (2018) 16 SCC 299, this Court has observed and held
that even in a case of challenge to the framing of the charge, wherever
the stay is granted by the High Court in exercise of its revisional
jurisdiction or otherwise, a speaking order must be passed showing that
the case was of an exceptional nature.
3.16 It is further submitted that in many of the cases it is seen that
the High Court while not entertaining the quashing petitions under Section
482 Cr.P.C. and/or under Article 226 of the Constitution of India and
while dismissing such petitions, still grants interim protection/protection
of not to arrest for a particular period or even till the report is filed under
Section 173 Cr.P.C. It is submitted that the aforesaid is absolutely
impermissible and such an order of not to arrest for a particular period
can be said to be beyond the scope and ambit of Section 482 Cr.P.C.
Once the quashing petition is dismissed, the accused may avail the remedy
of approaching the trial Court and/or the concerned Court for anticipatory
bail under Section 438 Cr.P.C and the same can be considered while
imposing the conditions and/or having been satisfied that the conditions
of grant of anticipatory bail are satisfied. It is submitted that in a given
case the immediate custodial investigation is warranted and in view of
such a blanket order of not to arrest, will take away the right of the
investigating agency/police to investigate into the allegations in the FIR.
It is submitted that as held by this Court in catena of decisions and even
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as per the provisions of the Cr.P.C., the police/investigating officer has
the statutory obligation to investigate into the allegations in the FIR and
to find out the truth. It is submitted that therefore such a protection while
dismissing the petition under Section 482 Cr.P.C and/or under Article
226 of the Constitution of India is not sustainable and is wholly
impermissible. It is submitted that despite such orders have been criticized
by this Court in the case of Habib Abdullah Jeelani (supra), still the
High Courts are passing such orders, disregarding the law laid down by
this Court.
4.