HC can’t direct Police not to Arrest the Accused

The High Court (HC) cannot direct the investigation agency not to arrest the accused during the course of investigation or to ask the Trial Magistrate to admit the accused on bail while dismissing the application of the accused for quashing the Fist Information Report (FIR) under Section 482 Criminal Procedure Code, 1973 (CrPC).

At the stage of registering the FIR the only consideration for the police officer is to see whether the information that was given to the police discloses the commission of a cognizable offence of not. If there is such a disclosure of offence in the information ( First Information Statement), it is mandatory for the police officer to register the FIR.

If FIR is registered the person can approach the HC under Section 482 CrPC or Article 226 of the Constitution to quash the FIR, either to prevent the abuse of the process of any court or to secure the ends of justice.

The HC can sparingly exercise such inherent powers, as stated by the Supreme Court(SC) in State of Haryana and Ors v Bhajan Lal and Ors, in situations similar to the following ones:

  1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
  2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
  3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
  4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
  5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
  7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The SC has clarified that the parameters or guidelines are not exhaustive but only illustrative. Nevertheless, they throw light on the circumstances and situations where court’s inherent power can be exercised.

Such exercise of powers by the HC shall be done only with caution and only when it is perfectly justified, even though the inherent powers under Section 482 is very wide.

When HC issues a direction not to arrest the accused it amounts to a bail order under 438 CrPC without ensuring the conditions of the said provision. When HC directs trial court to admit the accused on bail it curtails the power of the trial court dealing with the bail application. The HC is then doing indirectly what it cannot do directly.

Further reading

  1. The State of Telangana v Habib Abdullah Jeelani & Ors