B.V.Acharya

Senior Advocate and former Advocate General for Karnataka. 

Every High Court in India has the Inherent power to pass orders to meet the ends of justice which is the ultimate goal. This power is not conferred by anyone – not even by the Constitution. It is inherent in the court. So far as criminal law is concerned, even statute has recognized this right as provided in section 482 of the code of criminal procedure which reads “ 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”- see (Judgement of Justice Rohinton Nariman in the case of Asian Resurfacing Road Agency Vs CBI (2018) 16 SCC 299). Hence, none, not even the Supreme Court has the right to curtail/restrict / or withdraw such inherent power vested in the High Courts which are courts of record. The only pre-condition for exercising this power is that it must be exercised either (1) to prevent abuse of the process of law or (2) to meet ends of justice. It is not permissible to add more conditions or stipulations which have the effect of restricting this power. 

Some of the recent rulings of the Supreme Court, of course- reiterating earlier views in some cases - have the effect of curtailing this power by requiring the same to be exercised only “in rarest of rare cases” (equating it to cases of death sentence) or to be exercised only in exceptional cases, that it is an extraordinary power to be sparingly used. 

These rulings have resulted in curtailing/restricting the powers of the High Courts without justification. These rulings are rendered on account of a total lack of knowledge of ground realities regarding happenings in police stations and Magistrate Courts. The judges of Superior courts dealing with criminal matters must have practiced before Magistrate Courts at least for 2 to 3 years which enables them to gain practical experience and knowledge of activities in police stations and Magistrate courts. Otherwise, if a judge who has no practical knowledge in criminal matters ventures to lay down guidelines sitting as a Supreme Court judge or High Court Judge purely based on his knowledge acquired from textbooks or papers presented by eminent academicians who also totally lack practical experience, the consequence will be disastrous.  

Supreme Court judges write eloquent judgments incorporating lofty ideals emphasizing the importance of personal liberty as enshrined in Article 21 of the Constitution, and the evil and dangerous consequences of its deprivation. Such judgments are rendered mostly in cases of few celebrities who are lucky enough to have their cases heard by the Supreme Court directly by invoking Article 32 of the Constitution. But an ordinary citizen is always shunted straight away to the High Court to get relief under Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure, and when he approaches the High Court, he is confronted with the judgments of the Supreme Court drastically curtailing the powers of the High Courts by using expressions such as “rarest of rare cases” or “extraordinary” or “exceptional circumstances”. 

If the police entertaining frivolous complaints and registering FIRs are rare events, cautioning the HCs to invoke their power only in rare cases may be justified. But, as a fact, a common experience is, a substantial number of complaints filed resulting in FIRs are frivolous and vexatious and in many cases based on prior understanding between the complainant and the police, mostly in disputes arising out of contracts, family disputes, etc. In many cases object is only to harass the accused and force him to come to terms with the complainant or face further harassment at the hands of the police who have vast powers which they can easily misuse under a protective umbrella. 

Power to arrest is so frequently misused, notwithstanding the noble object of amended Section 41 of the Code of Criminal procedure and also the guidelines issued by the Supreme Court in the case of Arnesh Kumar Vs State of Bihar reported in (2014) 8 SCC 273 as also in the case of D.K.Basu Vs State of WB reported in (1997) 1 SCC 416. In fact, these guidelines are rarely observed and their breach has become the order of the day. In many cases, the purpose of the complainant is achieved, if the accused is arrested and detained in custody for few hours (they have the power to detain for 24 hours which power is generally utilized to the fullest extent either to satisfy the complainant or otherwise) Such cases of misuse are certainly not uncommon or rare. 

           In the recent case of M/s Neeharika Infrastructure Vs State of Maharastra D.D.13.04.2021, the Supreme Court has ruled that while dismissing the petition under section 482 of the code of Criminal procedure or article 226 of the Constitution, the High Court has no power to pass such orders as directing police “not to arrest” or “not to take coercive action” in a given case. It is settled law that police need not arrest an accused merely because they have the power to arrest. The power to arrest must be exercised only if the same is necessary for the purpose of investigation. I have come across few cases when charge sheets have been filed without arresting the accused, mentioning that the accused have not been arrested in the case. If in a given case, the High Court on examining the material finds that arrest in the case is wholly unnecessary and arrest if effected will be totally unjustified, why should not the court pass such an order to meet the ends of justice even though at that stage it may not be inclined to quash the proceedings. The Supreme Court now debars the High Courts from passing of such orders based on a purely theoretical proposition that it amounts to interference with the power of the police to investigate, which includes the power to arrest. If in a given case police intend to misuse the power to arrest in violation of the fundamental right of the citizen, who else other than High Court can protect the citizen?. (His approaching Supreme Court under Article 32 of the Constitution can only be a dream for practical reasons) Supreme Court has also injuncted the High Courts from issuing such orders as “not to take coercive action” or “not to precipitate”. 

Apart from legal niceties involved in such orders, in a large number of cases, such orders have prevented the police from abusing their power and harassing poor and innocent citizens who have rushed to the High Court seeking justice. Generally, High Courts pass such orders giving brief reasons. Now the Supreme Court by its unwarranted general directions (no doubt made with good intentions but without realizing its disastrous consequences on poor and innocent litigants who cannot approach the Supreme Court) has placed an embargo on the natural inherent right of the High Courts to pass such orders. On the whole, it appears, the Supreme Court has reposed greater confidence in the police, whose so-called right to investigate, it wants to protect, ignoring the plight of a common man who is the victim of police excesses and atrocities, indirectly expressing lack of faith in High Court judges who pass such orders only to protect the liberty of citizens. It is a case of trust deficit on the part of the Supreme Court in relation to the exercise of power by the High Courts. The Supreme Court is oblivious to the need for police reforms and the recommendations and directions in the Prakash Singh case which are never implemented even after so many years. The result is, police excesses go on unabated as seen from press reports. It is felt that the Supreme Court in its anxiety to protect the so-called right and power of Police to investigate appears to be in the dark on the dangerous consequence of its orders on innocent citizens, whose precious right of personal liberty is violated with impunity by the police who will now be more emboldened to continue the same with the wrong notion of implied encouragement of the Supreme Court. 

While the Supreme Court has the power, nay a duty to come down heavily on orders which are illegal, arbitrary, or unjust, it is not desirable that it should making general observations restricting the power of the High Courts and other courts to pass just orders and instill in them a sort of fear and thereby deny the benefit of just orders in favour of thousands of citizens in deserving cases. The High Courts in the country pass hundreds of orders exercising power under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution of India and there may be some erroneous orders and a few may be arbitrary, unjust, or even capricious. That does not justify general orders barring the courts from passing particular type of orders which they consider just and proper to meet the ends of justice.  

Every such order must be tested on the touchstone of Section 482 of the Code of Criminal Procedure viz., whether the order passed by the High Court was to prevent abuse of process or to meet the ends of justice. If a given order satisfied one of the two criteria referred to above, the order deserves to be sustained, even if the case is not a “rarest of rare case” or “exceptional one”, not giving rise to an “extraordinary situation”. Unwarranted addition of these requirements, not contemplated by law only leads to miscarriage of justice in a large number of cases, apart from adding to the problem of docket explosion, which the judiciary is not in a position to check. 

The Supreme Court in the recent decision in Krishnalal & others Vs. State of U.P.(D.D.08.03.2021) has made the following observation: 

“The justice dispensation machinery in India is plagued with backlogs, with 70% of the pendency before the subordinate courts being on the criminal side. A significant factor in this backlog is the vast mass of frivolous litigation instituted year after year by litigants with an intent to use the courts of justice for their own mischievous ends. 

Curtailing such vexatious litigation is, thus a crucial step towards a more effective justice system – a step that cannot be taken without the active involvement of the lower judiciary, especially in criminal proceedings”. It further observed, “that the trial judge has a duty under the constitution and under Code of Criminal Procedure to identify and dispose of frivolous litigation at an early stage by exercising substantially and to the fullest extend powers conferred on him”. 

Other day, to be, exact on 01.06.2021, a Bench of the Supreme Court (comprising Dr.D.Y.Chandrachud and M.R.Shah JJ) lamented how nearly 95% of the cases listed before them on that day were frivolous cases and further observed “system becoming dysfunctional due to frivolous 

cases, unable to hear matters of national importance”. 

This is the situation in the Supreme Court as the judges themselves say. The position in subordinate criminal courts throughout the country is no different. 

Institution of a large number of frivolous cases has resulted in the courts being unable to give attention to the genuine criminal cases.          

Having regard to heavy pendency, attempts should always be, to cut short, frivolous cases and not prolong them. While the Supreme Court was very enthusiastic in safeguarding the statutory power of the police to investigate (including the power to arrest which is often misused) it has not shown similar concern to protect the inherent powers of the High courts so as to prevent abuse of process of law and to meet the ends of justice.

The expression “inherent power” is not capable of precise definition and its ambit and width also cannot be explained easily. Hence, Section 482 of the code of criminal procedure, while recognizing such power, has only specified the object of the exercise of such power. Any exercise of such power, should be to prevent abuse of the process of law or to meet the ends of justice. Inherent power is vested in such high Authority as the High Courts, and not the subordinate criminal courts, and the former can be trusted to exercise the same judicially and only in appropriate cases. The power may have to be exercised, under varying situations and different facts and circumstances and hence may necessitate the passing of a variety of types of orders, to achieve the object. Therefore, the High Courts must have the freedom, to pass such orders as may be necessary or desirable to meet the ends of justice, in a given situation. The interest of justice requires that the Supreme court, should not curtail this (freedom) choice of the High courts, in any manner either with regard to the nature of the orders to be passed or the situations and circumstances in which they may be passed, as it is not possible to foresee or contemplate all eventualities. Exercise of such power can be effective and meaningful to protect the liberty of a common man/ordinary litigant and save him from police excesses or other illegal actions, only if the High Courts have such freedom without restrictions. The interest of justice demands, that this position should be clarified by the Supreme court in a strongly worded judgment at the earliest.

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