STATE REP. BY THE INSPECTOR OF POLICE versus M. MURUGESAN & ANR. on 15 January 2020

1. The State is aggrieved against an order passed by the HighCourt of Judicature at Madras on 24[th] April, 2019 constituting aHeterogeneous Committee of named persons to give its recommendationson the reforms that can be brought into practice for reformation, H

rehabilitation and re-integration of the convict/accused person to societyand best practices for improving the quality of investigation. TheCommittee was mandated to submit report within eight weeks and thatthe State was directed to furnish data for each District. The Committeewas to scrutinize the same and submit the final data separately alongwith the report. The State was directed to provide office room for theCommittee to conduct its meetings and to keep the documents and othermaterials in safe custody.

2. Such directions came to be passed in a matter pertaining togrant of bail under Section 439 of the Code of Criminal Procedure, 1973[1].The High Court had admitted the accused to bail on 18[th] February, 2019subject to certain conditions but passed an order to call for the details ofthe cases registered by the Police, final report filed, trial conducted andthe result of such cases. The details were to bring to light the manner inwhich the entire criminal justice system is operating in the State. Inpursuance of the directions so issued and the data provided, the impugnedorder was passed by the learned Single Bench.

3. The High Court after collecting the data in respect of the criminalcases registered, convictions and acquittals in each District proceededto write a thesis on how the criminal justice system should function inthe State. It was observed that the central aim of the criminal law is toreform the offender and to rehabilitate him in a bid to render him usefulto society. The Court held as under:

“16. The situation calls for a thorough revamping of the CriminalJustice system in this State. It looks like the police are caught intothis Vicious cycle. That shows on the poor record of convictionsin serious crimes. Instead of finding a complete cure for thedisease, police seem to be looking for temporary solutions withoutcuring the disease. Unless we agree that there is a serious problem,there is no scope for change/improvement.

17. “Once a Criminal Always a Criminal” is the result of the presentsystem prevailing in this state. We have forgotten the fundamentalpurpose of Criminal Justice system which is reformation,rehabilitation and re-integration of the convict into society. If anaccused is pushed to the extremes by this system where he findsthat even if he wants to turn a new leaf in his life, this system willnot allow him, he will rather surrender to his fate and turn out to 1 for short, ‘Code’

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be a hardened criminal. A welfare state can never stoop down tosuch a level.

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20. It goes without saying that the quality of investigation hascome down drastically and the data provided by the police, referredsupra, makes it evident. The alacrity shown by the police inregistering FIR and effecting arrest, is not seen in investigatingthe case, laying final report and taking the case to its logical end.The recent circular dated March 20 issued by DGP states that allthe police stations will henceforth have exclusive investigationwing. As per the directions, the investigation wing will beresponsible for investigation and prosecution of all cases registeredin the station, including cases identified by the law and order wing.Further, the police officers attached to the investigation wing shallnot be diverted to any bandobust work except with the priorapproval of the zonal IG or commissioner of police. This is a stepon the right direction. A conscious effort should be made by theinvestigating wing in every police station with the activecoordination of the directorate of prosecution to take every criminalcase to its logical end. The police should not be under theimpression that their work gets over with registering FIR andeffecting arrest. One of the main challenges for the prosecutionin Serious crimes is the witness turning hostile due to variousreasons. Witness protection scheme, 2018, which has now becomethe law of the land in view of the judgement of the Hon’bleSupreme Court in Mahender Chawla case (2019 (1) MWNCrl 340 (SC)), must be implemented effectively. The investigationofficers must be updated on a regular basis on the March of law.Cyber crimes have reached monumental proportions and criminalscommitting these offences are clearly having an upper hand sincethese criminals are intelligent crooks and police officers requireregular training and exposure to tackle these crimes. A completeoverhaul is required to enhance the quality of investigation.”

4. The matter before the High Court was as to whether theaccused are entitled to be admitted to bail, that is the jurisdiction conferredon the Court in terms of Section 439 of the Code. Before granting bail,the High Court is enjoined upon an obligation to issue notice of an application for bail to the Public Prosecutor if a person is accused of anoffence which is triable exclusively by the Court of Session or which,though not so triable, for punishment of imprisonment for life.

5. We find that the Hon’ble Single Bench has committed graveillegality in retaining the file after grant of bail to the accused on 18[th]February, 2019. The jurisdiction of the High Court came to an end whenan application for grant of bail under Section 439 of the Code was finallydecided.

6. In State of Punjab v. Davinder Pal Singh Bhullar & Ors.[2],the High Court of Punjab & Haryana after deciding a criminal appealcontinued to pass order in respect of offenders in other cases notconnected with the matter which was dealt with by the High Court.This Court deprecated the invocation of jurisdiction in a matter notconnected with the appeal and that too after passing of the final order.The Court held as under:

“86. In view of the law referred to hereinabove, the Bench wasnot competent to entertain the said applications and even if thesame had been filed in the disposed of appeal, the court couldhave directed to place the said applications before the Benchdealing with similar petitions.

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91. There could be no justification for the Bench concerned toentertain the applications filed under Section 482 CrPC asmiscellaneous applications in a disposed of appeal. The law requiresthat the Bench could have passed an appropriate order to placethose applications before the Bench hearing Section 482 CrPCpetitions or place the matters before the Chief Justice forappropriate orders.”

7. This Court in Davinder Pal Singh Bhullar referred to a casereported as Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee& Anr.[3] wherein the Court observed that inherent powers under Section482 of the Code cannot be exercised to do something which is expresslybarred under the Code. It was held that inherent powers cannot beexercised assuming that the statute conferred an unfettered and arbitrary 2 (2011) 14 SCC 770

3 (1990) 2 SCC 437

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Ajurisdiction, nor can the High Court act at its whim or caprice. TheCode does not confer unlimited/unfettered jurisdiction on the High Courtas the “ends of justice” and “abuse of the process of the court” have tobe dealt with in accordance with law and not otherwise. The High Courthas not been given nor does it possess any inherent power to make anyBorder, which in the opinion of the court, could be in the interest of justiceas the statutory provision is not intended to by-pass the procedureprescribed. It was also held that the High Court can always issueappropriate direction in exercise of its power under Article 226 of theConstitution of India at the behest of an aggrieved person, if the court isconvinced that the power of investigation has been exercised by anCinvestigating officer mala fide or the matter is not investigated at all, buteven in such a case, the High Court cannot direct the police as to howthe investigation is to be conducted but can insist only for the observanceof due process as provided in the Code. The Court held as under:

“51. The inherent power of the court under Section 482 CrPC isDsaved only where an order has been passed by the criminal courtwhich is required to be set aside to secure the ends of justice orwhere the proceeding pending before a court, amounts to abuseof the process of court. Therefore, such powers can be exercisedby the High Court in relation to a matter pending before a criminalEcourt or where a power is exercised by the court under CrPC.Inherent powers cannot be exercised assuming that the statuteconferred an unfettered and arbitrary jurisdiction, nor can the HighCourt act at its whim or caprice. The statutory power has to beexercised sparingly with circumspection and in the rarest of rarecases. (Vide Kurukshetra Universityv. State ofFHaryana [(1977) 4 SCC 451 : 1977 SCC (Cri) 613 : AIR 1977SC 2229] and State of W.B. v. Sujit Kumar Rana [(2004) 4 SCC129 : 2004 SCC (Cri) 984] .)

52. The power under Section 482 CrPC cannot be resorted to ifthere is a specific provision in CrPC for the redressal of theGgrievance of the aggrieved party or where alternative remedy isavailable. Such powers cannot be exercised as against the expressbar of the law and engrafted in any other provision of CrPC.Such powers can be exercised to secure the ends of justice andto prevent the abuse of the process of court. However, such H

expressions do not confer unlimited/unfettered jurisdiction on theHigh Court as the “ends of justice” and “abuse of the process ofthe court” have to be dealt with in accordance with law includingthe procedural law and not otherwise. Such powers can beexercised ex debito justitiae to do real and substantial justice asthe courts have been conferred such inherent jurisdiction, inabsence of any express provision, as inherent in their constitution,or such powers as are necessary to do the right and to undo awrong in the course of administration of justice as provided in thelegal maxim quando lex aliquid alicui concedit, concederevidetur id sine quo res ipsa esse non potest. However, theHigh Court has not been given nor does it possess any inherentpower to make any order, which in the opinion of the court, couldbe in the interest of justice as the statutory provision is not intendedto by-pass the procedure prescribed. (Vide Lalit MohanMondal v. Benoyendra Nath Chatterjee [(1982) 3 SCC 219 :1982 SCC (Cri) 697] , Rameshchandra Nandlal Parikh v. Stateof Gujarat [(2006) 1 SCC 732 : (2006) 1 SCC (Cri)481] , CBI v. Ravi Shankar Srivastava [(2006) 7 SCC 188 :(2006) 3 SCC (Cri) 233] , Inder Mohan Goswami v. State ofUttaranchal [(2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259]and Pankaj Kumar v. State of Maharashtra [(2008) 16 SCC117 : (2010) 4 SCC (Cri) 217] .)

53. The High Court can always issue appropriate direction inexercise of its power under Article 226 of the Constitution at thebehest of an aggrieved person, if the court is convinced that thepower of investigation has been exercised by an investigatingofficer mala fide or the matter is not investigated at all. Even insuch a case, the High Court cannot direct the police as to how theinvestigation is to be conducted but can insist only for theobservance of process as provided for in CrPC. Another remedyavailable to such an aggrieved person may be to file a complaintunder Section 200 CrPC and the court concerned will proceed asprovided in Chapter XV CrPC. (See Gangadhar JanardanMhatre v. State of Maharashtra [(2004) 7 SCC 768 : 2005 SCC(Cri) 404] and Divine Retreat Centre v. State of Kerala [(2008)3 SCC 542 : (2008) 2 SCC (Cri) 9] .)

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A64. An inherent power is not an omnibus for opening a Pandora’sbox, that too for issues that are foreign to the main context. Theinvoking of the power has to be for a purpose that is connected toa proceeding and not for sprouting an altogether new issue. Apower cannot exceed its own authority beyond its own creation.It is not that a person is remediless. On the contrary, theBconstitutional remedy of writs is available. Here, the High Courtenjoys wide powers of prerogative writs as compared to that underSection 482 CrPC. To secure the corpus of an individual, remedyby way of habeas corpus is available. For that the High Courtshould not resort to inherent powers under Section 482 CrPC asCthe legislature has conferred separate powers for the same.Needless to mention that Section 97 CrPC empowers theMagistrates to order the search of a person wrongfully confined.It is something different that the same court exercising authoritycan, in relation to the same subject-matter, invoke its writ jurisdictionas well. Nevertheless, the inherent powers are not to provideDuniversal remedies. The power cannot be and should not be usedto belittle its own existence. One cannot concede anarchy to aninherent power for that was never the wisdom of the legislature.To confer unbridled inherent power would itself be trenching uponthe authority of the legislature.”

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8. This Court in a judgment reported as Sangitaben ShaileshbhaiDatanta v. State of Gujarat[4] was examining a question where a courtafter grant of bail to an accused ordered the accused and their relativesto undergo scientific test viz. lie detector, brain mapping and Narco-Analysis. This Court held that direction of the court to carry out suchFtests is not only in contravention to the first principles of criminal lawjurisprudence but also violates statutory requirements. The Court heldas under:

“7. Having heard the counsels for the parties, it is surprising tonote the present approach adopted by the High Court whileGconsidering the bail application. The High Court ordering theabovementioned tests is not only in contravention to the firstprinciples of criminal law jurisprudence but also violates statutoryrequirements. While adjudicating a bail application, Section 439of the Code of Criminal Procedure, 1973 is the guiding principle H4 2018 SCC OnLine SC 2300

wherein Court takes into consideration, inter alia, the gravity ofthe crime, the character of the evidence, position and status ofthe accused with reference to the victim and witnesses, thelikelihood of the accused fleeing from justice and repeating theoffence, the possibility of his tampering with the witnesses andobstructing the course of justice and such other grounds. Eachcriminal case presents its own peculiar factual matrix, andtherefore, certain grounds peculiar to a particular case may haveto be taken into account by the court. However, the court has toonly opine as to whether there is prima facie case against theaccused. The court must not undertake meticulous examinationof the evidence collected by the police, or rather order specifictests as done in the present case.

8. In the instant case, by ordering the abovementioned tests andventuring into the reports of the same with meticulous details, theHigh Court has converted the adjudication of a bail matter to thatof a mini-trial indeed. This assumption of function of a trial courtby the High Court is deprecated.”

9. In another judgment reported as Reserve Bank of India v.General Manager, Cooperative Bank Deposit A/C HR. Sha & Ors.[5],Reserve Bank of India challenged an order passed on an applicationunder Section 439 of the Code, wherein an argument was raised that thepoor depositors are not paid by the Bank out of the amount which hasbeen received by the Bank. The Court issued directions that the Bankshould start distributing the amount which is so far recovered by themfrom the accused. The Bank was directed to furnish details of themoney paid to the poor depositors. The accused as well as theInvestigating Officer and the Administrator of the Bank were directedto remain present in the Court. This Court found that such directionsare beyond the scope of an application for bail filed by the accusedunder Section 439 of the Code. The Court held as under:

“6. We are of the opinion that the far-reaching consequences ofthe directions of the High Court are in a way beyond the scope ofan application for bail filed by an accused under Section 439 ofthe Code of Criminal Procedure and the High Court, as much asanyone else, must stay confined to the issues relevant to the matter AB

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Abefore it. It was thus not open to the High Court to pass orderswhich could affect the working of banks all over the country.”

10. In Santosh Singh v. Union of India & Anr.[6] while dealingwith a public interest litigation petition filed by a petitioner who wasdeeply distressed with the rapidly degrading moral values in the societyBtouching every aspect of life where making money has become the solemotto of society, this Court held as under:

“18. While there can be no dispute about the need of providingvalue-based education, what form this should take and the mannerin which values should be inculcated ought not to be ordained bythe court. The court singularly lacks the expertise to do so. Thepetitioner has a grouse about what she describes as the pervadingculture of materialism in our society. The jurisdiction of this Courtunder Article 32 is not a panacea for all ills but a remedy for theviolation of fundamental rights. The remedies for such perceivedgrievances as the petitioner has about the dominant presence ofmaterialism must lie elsewhere and it is for those who have thecompetence and the constitutional duty to lay down and implementeducational policies to deal with such problems.

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19. There is a tendency on the part of public interest petitionersto assume that every good thing which society should aspire toachieve can be achieved through the instrumentality of the court.The judicial process provides remedies for constitutional or legalinfractions. Public interest litigation allows a relaxation of the strictrules of locus standi. However, the court must necessarily abideby the parameters which govern a nuanced exercise of judicialpower. Hence, where an effort is made to bring issues ofgovernance before the court, the basic touchstone on which theinvocation of jurisdiction must rest is whether the issue can beaddressed within the framework of law or the Constitution. Mattersof policy are entrusted to the executive arm of the State. Thecourt is concerned with the preservation of the rule of law.

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23. It is unrealistic for the court to assume that it can providesolutions to vexed issues which involve drawing balances between

conflicting dimensions that travel beyond the legal plane. Courtsare concerned with issues of constitutionality and legality. It isdifficult to perceive how matters to which solutions may traversethe fields of ideology, social theory, policy-making andexperimentation can be regulated by this Court such as by issuinga mandamus to enforce a scheme of instruction in a particularsubject in school education. Should a subject be taught at all?Should a set of values or a line of enquiry and knowledge beincorporated as a separate subject of discourse in an educationalsystem? Would a horizontal integration of a given set of valuesacross existing subjects better achieve a desirable result? Is it atall desirable to impose another subject of study upon the alreadyburdened school curriculum?

24. These are vexed issues to which more than one solution mayappear just. That is exactly the reason why a resolution of suchmatters must rest with those who have the responsibility to teachand govern over matters of education. Every good that is perceivedto be in the interest of society cannot be mandated by the court.Nor is the judicial process an answer to every social ill which apublic interest petitioner perceives. A matter such as the presentto which a solution does not rest in a legal or constitutionalframework is incapable of being dealt with in terms of judiciallymanageable standards.”

11. We find that learned Single Judge has collated data from theState and made it part of the order after the decision of the bail applicationas if the Court had the inherent jurisdiction to pass any order under theguise of improving the criminal justice system in the State. The jurisdictionof the Court under Section 439 of the Code is limited to grant or not togrant bail pending trial. Even though the object of the Hon’ble Judgewas laudable but the jurisdiction exercised was clearly erroneous. Theeffort made by the Hon’ble Judge may be academically proper to bepresented at an appropriate forum but such directions could not be issuedunder the colour of office of the Court.

12. In view of the above, we find that the order passed by theHigh Court on 24[th] April, 2019 is not sustainable in law and the same isset aside. Consequently, the appeal is allowed.

Appeal allowed.

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