This article is written by Ekata Deb, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).

Introduction to Section 482 CrPC

In the purview of the inherent powers of the High court, it is found that Section 482 CrPC is somewhat of peculiar nature in criminal jurisprudence. It seemingly comes out to be the most powerful tool conferred by the procedural codes for the High Court in the Indian Constitution. It means that this prescribed section can be used only by the High Courts of a particular state and such inherent powers are never subjected to be taken away from high courts by the Superior powers.

The Code of Criminal Procedure, 1973 in Section 482 CrPC, states that – 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. 

However, such powers can be used only by the courts in the interests to do complete and satisfactory justice between the parties before it and also stopping the abuse of the process of the court.  This is applied with such an inherent power under section 482 CrPC of the new code, to do justice and to undo the wrong, so as to in the course of meeting the end of justice, and stop abusing the process of Court proceedings. It is pertinent to mention herewith that, such use of inherent powers of the high court must be used sparingly. This section was added by the Code of Criminal Procedure (Amendment) Act of 1923, and the main intent of the amendment was that it was found that the high courts were unable to deliver complete justice, when it is found that, the given case shows ex-facie or sometimes prima facie illegality which were many times palpable and apparent. However, it is canvassed here that, this section has envisaged three circumstances wherein such inherent jurisdictional powers may be exercised, mentioning: 

  1. To prevent abuse of the process of the court.
  2. To secure the ends of justice.
  3. To give effect to an order under CrPC.

To understand in coherence to the objectives of 482 CrPC, it may be concluded that from the below mentioned points as in;

  • Under section 482 of the Code of Criminal Procedure, the inherent power of the High Court is the most powerful weapon and it definitely operates in a peculiar way in criminal jurisprudence. Such a procedure is mainly used to clean the province of criminal procedures out from all kinds of vitiating and malicious influences. 
  • Such conferred state of powers are however not available at the subordinate courts. And this is obvious for decreasing the pandemonium that may likely arise in the Criminal Justice System. Such inherent powers are conferred to the High Courts of the respective states.

In this article, we shall be referring to case D. Devaraja v. Owais Sabeer Hussain 458 Crl Appl 2020. The instant case deals with the application of 482 CrPC for quashing criminal proceedings which seems to be ex- facie as for the want of the sanction. 

Brief facts

This is a case in which the complainant had filed a complaint against some police officers alleging police excess when he was kept in custody and was put under investigation in connection with a crime he was accused of. The Metropolitan Magistrate had taken cognizance of the private complaint, and such an order was challenged before the High Court for quashing the criminal proceedings by filing a petition under section 482 CrPC. The stated petition by the alleged police officers was filed on the grounds that the complainant did not take any sanction from the Government to prosecute the accused police officers. However, the High Court refused to quash the criminal proceedings and remitted the complaint back to the Metropolitan Magistrate instead with a liberty to the accused of filing an application for discharge. This impugned order of the High Court was set for an Appeal in the Apex Court and hence this instant case arose. The bench hearing and preceding on the matter composed of Justices R. Banumathi and Indira Banerjee observed that apparently, the complaint pertains to an act under the colour of duty. They choose to opine that, as prima facie, the matter falls under the colour of duty, and hence sanction happens to be a legal requirement for empowering the court to take cognizance. The High Court in this instant matter has erred in not exercising its inherent powers under Section 482 CrPC to quash the complaint instead of remitting the appellant to file a discharge application under Section 245 of CrPC in front of the Metropolitan Magistrate. 

The Supreme Court in this matter observed

“While this Court has, in D.T. Virupakshappa (supra) held that the High Court had erred in not setting aside an order of the Trial Court taking cognizance of a complaint, in the exercise of the power under Section 482 of Criminal Procedure Code, in Matajog Dobey (supra) this Court held it is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under colour of duty. However, the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings… It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings that are ex facie bad for want of sanction, frivolous or in abuse of process of the court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by malafides and instituted with an ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of the court. 

In addition to the above, the Bench chose to reiterate a few more settlements. The bench also reiterated the following settled principles regarding sanction under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. 

  • It is always imperative to protect the police officers in relation to their discharge of duties from facing harassing, retaliatory, revengeful as well as frivolous proceedings. Such a legal requirement of the want of sanction is of utmost importance to be taken from the government in order to make sure the police officer remains confident to perform his duty without having any fear of vindictive retaliation by the initiation of any criminal proceedings and is thus protected under Section 197 CrPC of the new code and in relation to this case read with Section 170 of the Karnataka Police Act. When found that such a police officer is committing any wrong or an offence himself he must be held liable and thus can be prosecuted with the sanction from the appropriate government. 
  • If the alleged act in a complaint purports to be filed against a police officer and if found to be reasonably connected to discharge of his duties under his code of colour, no Magistrate can take any cognizance of the matter unless requisite sanction is taken from the appropriate government under Section 197 of the new code and in this instant case read with section 170 of the Karnataka Police Act.  
  • To decide whether such a sanction is at all necessary, the test needs to find whether such an act is totally unconnected in the discharge of his official duty. When it is found that there is no cause of action arising of such a discharge of act as in lieu of his official duty, no question of sanction arises. But on the other way, when there is an ex-facie reasonable connection of such an act while the discharge of the official duty by the police officer, a sanction thus becomes a legal requirement if, in any way, the police officers are found to be acting illegally as well, as there is a reason to believe multiple delinquencies or a prima-facie colourable exercise of power by the said police officers. 
  • Also, it is pertinent to mention that, while performing an official duty, if a police officer has acted in excess of duty, and there is a reasonable connection between the act and the performance of such a duty, it can never be enough ground to deprive the police officer of his right of protection of government sanction for initiation of criminal action against him and thus arises the want of sanction. 
  • As in this instant matter at Karnataka, it is verily propounded that, Section 197 CrPC read with 170 of the Karnataka Police Act has its own limitation and thus every offence committed by a police officer doesn’t attract such sections. Such protection is available when there is a reasonable connection of the alleged act with the discharge of the official duties of the police officer and where any of his official duty does not stand as merely a cloak for an objectionable act by him. 
  • Also, from the code language and the said tenor of Section 197 CrPC read with Section 170 of the Karnataka Police Act, it is no res integra to believe that such a sanction is only required when any alleged act is done which discharge him of his official duty as well as any act purported to be done while the discharge of his official duty and/or any act committed under colour of duty, or even in excess of such a duty or authority. 
  • Also, it was canvassed through this order by the bench that, when some offence is committed by a police officer outside the ambit of his discharge of official duties, there arises no legal requirement for any sanction. An example of this was supported in the order, as in, for example, if a police officer is accused of domestic violence to his domestic help, there is no legal requirement of sanction to initiate criminal proceedings against him. However, if there is an actionable per se of any police officer, of any offence while in the discharge of his official duty of investigation of a recorded criminal case, such an act certainly comes under the colour of the duty, no matter how much illegal an act it stands out in the eyes of law and hence there is a want of sanction. 

Conclusion

While this article is mainly focused upon the positive use of quashing of criminal proceedings using the inherent powers of the High Court under section 482 CrPC for the same if found to be ex-facie bad for the want of sanction, frivolous or in abuse of process of court, it is worth mentioning the negative side while concluding this article. Many times in recent days, it is found that many quashed criminal cases from the High Court are set for a Special Leave petition at the Apex Court and the same is allowed by setting aside the impugned order sheet. It is often pointed out that while deciding matters under section 482 of the CrPC, the High Court chooses to conduct mini-trials. In the landmark judgment by Hon’ble Justice Dr. Dhananjaya Chandrachud and Hon’ble Justice M. R. Shah in the case of Kaptan Singh vs. State of Uttar Pradesh and Ors. [CRIMINAL APPEAL NO. 787 OF 2021] on the 13th of august, 2021, it was observed that there should never be permission of any appreciation of evidence at the very stage of proceedings in exercise of powers under section 482 of CrPC.  Hence, it is necessary to sparingly use such an inherent power given to the High Court by the Indian Constitution and the said power should only be exercised in the interests of meeting the fair ends of Justice, as well as to put a halt to the abuse of the process of the Court. 

Bibliography

  1. https://primelegal.in/2021/08/14/powers-under-section-482-cr-p-c-to-quash-the-proceedings-is-an-exception-and-not-a-rule-supreme-court-of-india/
  2. https://www.livelaw.in/top-stories/section-482-crpc-sanction-quash-proceedings-158719
  3. https://indiankanoon.org/doc/127137628/
  4. https://indiankanoon.org/doc/10151882/

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