This article is written by Shubham Tiwari, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.

“There is no greater tyranny than that which is perpetrated under the shield of the law in the name of justice” – Montesquieu

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Introduction

Teju and Kinjal are two friends from childhood. At the age of 24, both had the same goal of inventing the mobile application to help the senile for getting medicines and other essentials at their doorstep. Kinjal cheated on Teju by breaking her trust and owning the product which was created by both of them and patented as her own invention. Teju filed a Civil complaint about Breach of Trust and filed the same Complaint in a police station which amounts to Criminal trial. Later after a few years passed, Teju won the Civil Suit filed against Kinjal. Does that mean the Criminal proceedings against Kinjal should be quashed? I will be discussing this aspect in the course of my article. Read on to find out!  

You find what you seek 

As young practising lawyers, our seniors also told us that, provided the same collection of evidence, we might find judgments to support either view. The problem lies here. The misuse of the machinery of criminal law to seek redress in conflicts of a civil nature through the use of legal precedents and false charges is rampant today. This practice results in litigation that is vexatious and oppressive. 

In a civil conflict, an individual pursuing restitution needs to get the money in his wallet in the shortest possible time. The advice he gets (not necessarily from a lawyer) is-‘go criminal ‘: try to include the spouse or relatives of the person from whom money is to be recovered and, if a corporation is involved, include all the directors. If the person or his / her relatives or directors are either foreigners or based overseas, the chances of this advice increase. It is often advised that in such situations pressure from the police alone will bring justice.

The filing of misconceived court charges is thus used as a bargaining chip to compel the victim to enter into a settlement and harass them. In these cases include civil responsibility, criminal contours are provided for the purpose of expediting the process of civil restitution or putting leverage on the victim or out of enmity to the victim or to the accused.

Subject the suspects to harassment. These instances add to the complexities of doing business in India, especially when the accused is a foreigner.

Criminal proceedings as abuse of process

It is not that there is not enough legal precedent to guard against this abuse of process. A few instances of using criminal proceedings as abuse of powers are herein listed below:

• A purely civil dispute arising out of a contractual relationship between the parties cannot be converted into a criminal offence in order to get favorable results. In the case of Hriday Ranjan Prasad Verma & Ors. v. State of Bihar & Anr. the Court drew a distinction between the mere offence of breach of contract and that of cheating.

The court also states that in assessing the issue, it must be taken into consideration that the difference between a simple violation of contract and an offence of cheating is a fine one. It relies on the motive of the accused at the moment to persuade him, and can be determined by his subsequent actions, but it is not the only test for his subsequent actions. Mere breach of contract cannot give rise to criminal liability for fraud until there is proof of illegal or unethical intent right at the outset of the deal, that is, the moment when the crime is claimed to have been committed. It is also the motive that is the substance of the offence. It is important to prove that, in order to hold a person guilty of fraud, he had a false or unethical motive at the time of making a contract. From his mere inability to keep his commitment afterwards, such a guilty motive could not be believed even at the outset, that is, when he made the promise.

• Rule of law requires those people with a valid reason or allegation to have redress available under criminal law. However, a complainant who initiates a lawsuit with the knowledge that criminal prosecutions are unjustified and that the solution is in civil law should be found liable, in compliance with the law, for the lawsuit of misconceptions of criminal proceedings. In the case of G. Sagar Suri v. State of U.P, the Supreme Court stated as follows:

It remains to be seen if a question which is basically of a civil nature has been protected by a criminal offence. Judicial charges are not a shortcut in the amount of other remedies provided in statute. A trial court must exercise a great deal of caution before continuing. That is a critical matter for the convicted. The Court has laid down such criteria on the basis on which the High Court is to exercise its authority under Section 482 of the Code. Jurisdiction under this Provision must be practised in order to avoid misuse of jurisdiction by either a judge or otherwise to ensure that justice is brought to an end.

• Unscrupulous litigants also engage in forum shopping to make favorable judgments. Consequently, cases which are solely of a legal nature are regarded as a criminal offence, often after the use of civil remedies. The existence of an ill-gotten motive to recover sums that a party is unable to recover by civil means is a violation of the judicial process. Accordingly, in the case of State of Haryana v. Bhajan Lal, the Supreme Court held that, when a criminal trial is manifestly attended, a criminal proceeding was instituted.

Quashing of FIR

The High Court may exercise its inherent power to reverse criminal proceedings in respect of conflicts which are fundamentally of a private nature between two contracting parties. On the other hand, however, there are a number of cases which indicate that no quashing should be performed at the FIR level. The law notes that contact with the FIR at the threshold is to be undertaken only under extremely unusual circumstances. The Courts ruled unequivocally that the FIR was to be quashed only quite sparingly and circumspectly and only in the rarest of the rare instances. A few cases have been cited below:

Three-Judge Bench of the Supreme Court in the case of U.P. O.P. v. Sharma claimed that the High Court should be hesitant to intervene at the threshold to prohibit the prosecution from exercising its inherent powers under Section 482 or Articles 226 and 227 of the Constitution of India, as the case may be and should allow the law to follow its own path. The inherent powers should be exercised sparingly and cautiously only if the court is of the opinion that it would otherwise lead to a gross miscarriage of justice.

In the case of State of Andhra Pradesh v. Golconda Linga Swamy and Ors, the Supreme Court noted that the mere charge of unfaithfulness against the informant was of no significance and that this alone could not serve as a basis for quashing the proceedings. The High Court was not allowed to perform a detailed review of the prosecution before the trial in order to decide if the prosecution would result in conviction or acquittement. Interference at the threshold with the FIR is made only if the complaint does not disclose any offence or is frivolous, vexatious or oppressive.

FIR in civil dispute

The concern that emerges is how the current legal machinery can prohibit the FIR from being registered in a civil matter. It is a trite proposition that, according to Section 154 of the Cr. P.C., identification of the FIR is necessary if the record discloses the commission of an identifiable crime. However, the Supreme Court has ordered that if the information obtained does not reveal a conspicuous offence but suggests the need for an investigation, a preliminary investigation can be undertaken only to decide whether or not a notable offence is disclosed. As per the decision of Lalita Kumari v. Government. Of U.P, the illustrative type of cases in which a preliminary investigation can be performed is as follows:

1. Commercial offences
2. Medical negligence cases 
3. Corruption cases 
4. Matrimonial Disputes/ Family Disputes
5. Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

Need for guidelines in relation to alleged offences which are or could be, only civil disputes

It could be time for a criteria to be framed to search for any misuse in the procedure. Subjectivity must be excluded so as not to lend criminal colour to a case of violation of contract until a false or unethical motive is revealed right at the outset of the agreement.

A mere closure of the complaint/ quashing of the same is not enough because by that time the accused has usually suffered immense mental harassment and monetary losses. Damage has already been done by subjecting the accused to the rigours of the criminal law without there being any justifiable reason to proceed against them.

There is an immediate need to stress the checking of the evidence by means of a preliminary/ initial inquiry and not to hurry into the arrest process. Indeed, it is likely that, whilst the preliminary process is pending, there should be no possibility for detention and, upon completion of the preliminary investigation, the accused should be informed of the results of the investigation and be given a fair amount of time to make use of his legal remedies.

This will require a predetermined period during which no arrest is sought. In cases where civil proceedings are still pending, early bail should usually be given and the imposition of passports in respect of individuals ordinarily living outside India should not be a precondition for the granting of bail. Imposing a passport can only be used under rare situations when the crime causes tangible physical harm or death.

Following guidelines should be kept in mind while conducting preliminary enquiries in matters which touch upon a civil dispute and/or involve agreements:

• Preliminary enquiries should be performed prudently and rapidly, taking into account the deadlines set down by the Hon’ble Supreme Court in the case of Lalita Kumari.

1. If the information has, prima facie, a civil connotation, the Station House Officer (SHO) should make a submission for guidance in writing from the supervisory officer concerned. The Supervisory Officer shall forward his / her judgement to the SHO as soon as possible, with specific orders as to the manner in which the preliminary enquiry is performed.
2. A preliminary enquiry registration report should be made in a separate Preliminary Enquiry Registration Report Form and not in the form prescribed for recording FIR under Section 154 of Cr.P.C.
3. Close monitoring by managers is required, or there is a strong risk of an experiment in futility in the preliminary enquiry.
4. A preliminary enquiry should be made on a time-limited basis which, in any event, should not extend 15 days which, in special circumstances, should not extend six weeks by way of fair grounds. The reality of such a delay and the reasons for it must be expressed in the entry of the General Report.
5. Following the filing of the preliminary enquiry, a General Journal entry should be made and a course of action should be drawn up by the Enquiry Officer in consultation with the Supervisory Officer. For any of the action points included in the action plan, a time frame can be determined.
6. The required documents/records should be collected under proper receipt memos. The statements of witnesses during the preliminary enquiries should be recorded in the same manner as recorded during the investigation of criminal cases. However, issuance of notices under Section 91 and 160 of Cr.P.C. should not be resorted to during this stage.
7. Preliminary enquiries should result either in the registration of criminal proceedings or in the suggestion of departmental action or be closed for lack of proof of wrongdoing. The rapid disposal of the preliminary enquiry is therefore highly necessary.

Things we need to change 

The over-reliance and wrongful invocation of criminal machinery to meet civil ends does nothing but acts as a barrier to the country’s economy. Criminal law should be used only as a last resort (ultima ratio) and should be invoked only in situations when there has been proof of guilt from the beginning of transactions or if they attract provisions of the criminal statutes. Judicial penalties are the most severe of the State’s administrative resources and can only be seen as the final resort of liberal democracy. The method of trying to resolve legal cases and lawsuits, by putting pressure by criminal proceedings, has the potential to have a cataclysmic impact on the economic environment and is likely to negatively influence the business and growth climate. At a time when the Government of India is seeking to improve investor trust and increase investment flows into and out of the region, it is required that appropriate protection is provided to foreign investors and the Directors of the multi-national corporations from such false and frivolous litigation.

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