Quashing and Directiion Matters Advocate Chandigarh

Quashing and Direction Matters

Our Criminal Lawyers have discussed below the law relating to section 482 of CrPC (which includes Quashing of FIR and Direction matters) as it is applied by Punjab and Haryana High Court at Chandigarh.

Section 482 in The Code Of Criminal Procedure, 1973: Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

This section foresees three circumstances during which the inherent jurisdiction might be exercised, i.e., (i) to enforce an order under the Code, (ii) to prevent abuse of the Court procedure, and (ii) to otherwise ensure justice. Though inherent jurisdiction under the section is wide yet it has to be exercised with caution, sparingly and carefully and it is necessary that such exercise is justified by the tests particularly laid down in the section itself. It is supposed to be exercised ex debito justitiae to do what Courts essentially exist for, administration of substantial justice. Provisions of S.18 of S.C. and S.T. (Prevention of Atrocities) Act place specific embargo on powers of Court to grant anticipatory bail owing to which S. 438 is not available to persons committing offences under this Act, but if Court comes to conclusion that due process of law is being misused or the petition on whose basis FIR is recorded, is completely malafide and vexatious, then Court can exercise its inherent powers under S. 482 and also powers vested under Art. 226 of the Constitution of India. A petition under S. 482 which challenges order passed by Chief Judicial Magistrate under S. 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is not maintainable due to statutory bar contained in s. 14(3) of Act. Inherent power can be invoked only for one of the three purposes mentioned specifically in the section. It cannot be exercised with respect to any matter which comes under purview of the specific provision of the code. It cannot also be exercised if that would be inconsistent with any particular provision of the Code.

Under S. 482 a party doesn’t get any inherent or vested right to seek interference. The court itself steps in while exercising that jurisdiction only to meet the contingencies catalogued therein. Even when the inferior courts have committed any error of fact or law that by itself does not provide any reason for interference under S. 482. The Court does not function as a Court of appeal or revision while exercising powers under the section. Though inherent jurisdiction under the section is wide yet it has to be exercised with caution, sparingly and carefully and it is necessary that such exercise is justified by the tests particularly laid down in the section itself. It is supposed to be exercised ex debito justitiae to do what Courts essentially exist for, administration of substantial justice. The inherent power ought not to be invoked to stifle a legitimate prosecution. This section preserves the inherent powers of the Court while conferring no any additional powers. Though it is incorporated in it, S. 482 is not a part of the Code of Criminal Procedure. Hence this section isn’t rendered inapplicable by the fact that the code does not apply to the Panchayat Raj Act.

Since the question is one of discretion and not jurisdiction, the powers under S. 482 are distinct from revisional or appellate jurisdiction. The statutory powers which S. 482 of the Criminal P.C. confers on High court are not the same as constitutional power of Supreme Court under Art. 136 of the Constitution. Cases in which inherent powers can be exercised include: Typographical error – Can be rectified by Chandigarh High Court while exercising its inherent powers. Court has an inherent power to reconstruct a judicial record in case of its loss or destruction. In spite of the dismissal of revision petition by Sessions Court, inherent powers can still be exercised. Since powers under S. 482 can be exercised despite dismissal of revision petition, petition under S. 482 challenging dismissal of revision petition against order of summoning the accused is maintainable. Order directing release of seized bus on executing supardnama can be recalled to prevent abuse of Court procedure. It is not material on whose information Court exercises power. Petition u/S. 482 can be invoked for extension of period to furnish probation bond and deposit compensation. Chandigarh High Court is vested with inherent power to transfer the cases and appeals and withdrawal of cases. In case application u/S/ 482 for enhancement of maintenance was filed and is pending for six years, wife cannot file an application for enhancement of maintenance amount due to held pendency of application u/S. 482. Application for bail cancellation which invokes inherent power of Chandigarh High Court is maintainable. In case the offence is mentioned to fall under wrong sections of the Indian Penal Code, Chandigarh High Court may apply correct section using its inherent powers, despite error by oversight in application. Though petition under S. 482 against dismissal of revision petition is not maintainable yet Chandigarh High Court can entertain it to prevent abuse of Court procedure. Chandigarh High Court in exercise of its inherent powers u/S. 482, in order to serve ends of justice can set aside the conviction and sentence of even those individuals, who had not filed any appeal against the conviction and sentence, but it is found they are innocent on reappraisal of the evidence in appeal filed by some of their co-convicts. It is allowed to get order framing charge quashed.

Chandigarh High Court is vested with the power to dismiss appeal for default or non-prosecution and can also restore such proceeding. Further such powers of dismissal and of restoration can be exercised only by Chandigarh High Court and not by any subordinate court. Additional paras can be added and prayer amended under provisions of S. 482 to amend the petition. Chandigarh High Court while exercising its inherent powers in a given case can examine the legality of impugned orders passed by the revisional Court as well as the trial Court. Chandigarh High Court can order expunging of unjustified remarks made in inferior court’s order. Petition u/S. 482 can be filed afresh after disposal of original petition u/S. 482 by Chandigarh High Court if there is any subsequent development in the case. Chandigarh High Court in exercise of its inherent power is competent to implead legal representatives of deceased respondent and to afford them an opportunity of being heard in interest of justice. Chandigarh High Court is empowered to suspend the order for enabling the accused to prefer special leave petition while exercising its power under Section 482 of Code. In case FIR was registered under Ss. 457 and 380, Indian Penal Code, against petitioner but negative report submitted by police, Chandigarh High Court converted non-bailable warrant against petitioner to bailable warrant in exercise of powers under S. 482. Cases in which inherent powers cannot be exercised include: – An executive or administrative order cannot be quashed invoking inherent powers. Instances when the name of person is displayed in the list of rowdies on the notice board of a police station owing to an executive action, an application under S. 482, Cr.P.C. for removal of his name from the same list would not be maintainable. Vires of the notification of the Central Government which warrant prosecution, in case found to be without any legal justification for launching the prosecution can also be challenged in an application under this section. In respect of any proceedings under the Enemy Agency Ordinance, Chandigarh High Court cannot exercise any jurisdiction or power. It is beyond the jurisdiction of the Chandigarh High Court to release the prisoner on parole. Non-examination of complainant due to error of procedure cannot be interfered by invoking inherent powers under S. 482, unless accused is prejudiced thereby. Court cannot exercise its inherent powers so as to review its own judgment. Error committed by Magistrate in acting u/S. 205 would not suffice to warrant interference while exercising power u/S. 482 since discretion exercised by Court cannot be termed as abuse of procedure of law. Application u/S. 482 praying for restraint order against Sales Tax Authorities from search and seizure of goods is beyond scope of S. 482.

Concurrent findings of act cannot be set aside until evidence is adverted to or reasons recorded. Chandigarh High Court had no jurisdiction u/S. 482 to change its previous judgment with respect to sec. 362. It is beyond the powers of Chandigarh High Court to declare a person as vexatious litigant. Powers u/S. 482 cannot be exercised to get the public prosecution changed. Chandigarh High Court cannot order exercising its inherent powers for interim release of vehicle used to carry forest produce till confiscation proceedings are pending before designated authority – once confiscation proceeding is initiated, jurisdiction of Criminal Courts stands ousted. If a complaint under S. 138 of Negotiable Instruments Act pending in a Court outside territorial jurisdiction of Chandigarh High Court – it cannot be quashed by Chandigarh High Court while exercising its inherent power under S. 482. Cancellation of probation – It is improper to interfere with the judicial exercise of discretion vested in the inferior courts based on allegations of the accused. Grant of maintenance in exercise of discretionary power – It is beyond the scope of S. 482 for reconsideration of the question regarding grant of maintenance by the Chandigarh High Court. It is not legally permissible to recall a warrant. The Chandigarh High Court will refrain from exercising the inherent powers u/S.482, Cr.P.C when the case is listed for arguments in point of charge. The court cannot entertain petition for premature release of prisoner. In a case under Prevention of Corruption Act, Chandigarh High Court cannot give any direction to compel the competent authority to grant sanction for prosecution of accused in such case.

A case pending on file of Judicial Magistrate to competent Court cannot be transferred by the Chandigarh High Court. A question to ascertain if there was any violation of provisions of Drugs and Cosmetics Act is a mixed question of both law and fact and same cannot be decided or considered in proceedings u/S. 482. In case the Chandigarh High Court takes a view different from that of the lower court, it is no ground for passing structures against lower Court. S. 482 cannot be invoked on the failure of the counsel to discharge his obligations towards his client, which means failing to cross – examine in detail. The Chandigarh High Court cannot quash the First Information Report before the proceedings are launched in the Court, in exercise of powers under S. 482 of Cr.P.C. It is beyond the purview of S. 482 to remand accused to police custody. In case a person detained under R. 30 Defence of India Rules files a petition under this section by seeking a direction for his classification as a special class detenu, such petition is misconceived. In case the earlier revision petition filed was dismissed by Chandigarh High Court, subsequent order obtained from Chandigarh High Court under S. 482 without disclosing fact of dismissal of earlier revision petition will be illegal and liable to be set aside. In case order is passed by Co-ordinate Bench of Chandigarh High Court and there is a subsequent change in position of law in view of decision of Supreme Court during lis pendence, then if there is a fresh application by aggrieved party for relief on basis of changed position of law, another co-ordinate Bench of Chandigarh High Court can grant relief in such circumstances. A petition filed under this section ought to be disposed of on its own merits.

The dismissal of petition by accused merely due to dismissal of co-accused’s petition earlier is improper. Art. 226 of Constitution and S. 482 of Code have co-ordinate jurisdiction since writ or order to ensure justice can also be issued under writ jurisdiction and inherent jurisdiction. Jurisdiction vested in Chandigarh High Court u/S. 482 of Code is completely discretionary in nature and it is expected for the person who approaches Court with prayer to exercise such discretionary jurisdiction to come with clean hands. Inherent powers under S. 482, Cr.P.C, could be invoked for quashing the criminal proceedings pending before criminal courts, and not the powers under Art. 226 of Constitution of India. The power u/S. 482 Cr.P.C, is to be exercised solely by Chandigarh High Court. Therefore prayer before Supreme Court under Art. 32 of the Constitution for quashing of charge on grounds of paucity of material cannot be investigated by Supreme Court as it cannot convert itself into the court of a Magistrate or a special Judge to consider whether there is evidence or not to justify the framing of charges against accused. There is no provision in the Code to empower anyone else other than the Sessions Judge or the Chandigarh High Court to be vested with inherent powers while exercising jurisdiction. Petition which is based on substantial questions of law or goes to the very root of prosecution is maintainable under S. 482 or Art. 227 of Constitution A person against whom complaint petition is filed cannot have locus standi to file a proceeding under S. 482 unless an order of cognizance is passed and before a direction is given for issue of process, for quashing direction for investigation given by a magistrate. When a case is heard on revision by Sessions Court and the situation so warrants that Chandigarh High Court can interfere exercising inherent power, such case cannot be entertained under S. 401. Dismissal of revision against the orders passed by trial court amounts to inherent power of Chandigarh High Court having been exercised and exhausted. It cannot be challenged again in writ petition since the order of trial Court merges with order in revision and is passed under S. 482, Cr.P.C, Chandigarh High Court would not ordinarily embark upon an enquiry in exercising jurisdiction u/S. 482, to check if evidence is reliable or not or whether on reasonable appreciation of it, accusation would not be sustained.