Whether court should pass orders in miscellaneous applications in disposed off appeal?

We find that the Hon’ble Single Bench has committed grave

illegality in retaining the file after grant of bail to the accused on

18th February, 2019. The jurisdiction of the High Court came to an

end when an application for grant of bail under Section 439 of the

Code was finally decided.

6. In State of Punjab v. Davinder Pal Singh Bhullar & Ors. (2011) 14 SCC 770, the High Court of Punjab & Haryana after deciding a criminal appeal

continued to pass order in respect of offenders in other cases not

connected with the matter which was dealt with by the High Court.

This Court deprecated the invocation of jurisdiction in a matter not

connected 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 was not competent to entertain the said

applications and even if the same had been filed in the

disposed of appeal, the court could have directed to

place the said applications before the Bench dealing

with similar petitions.

xx xx xx

91. There could be no justification for the Bench

concerned to entertain the applications filed under

Section 482 CrPC as miscellaneous applications in a

disposed of appeal. The law requires that the Bench

could have passed an appropriate order to place those

applications before the Bench hearing Section 482 CrPC

petitions or place the matters before the Chief Justice

for appropriate orders.”

7. This Court in Davinder Pal Singh Bhullar referred to a case

reported as Simrikhia v. Dolley Mukherjee and Chhabi

Mukherjee & Anr. (1990) 2 SCC 437 wherein the Court observed that inherent

powers under Section 482 of the Code cannot be exercised to do

something which is expressly barred under the Code. It was held

that inherent powers cannot be exercised assuming that the

statute conferred an unfettered and arbitrary jurisdiction, nor can

the High Court act at its whim or caprice. The Code does not

confer unlimited/unfettered jurisdiction on the High Court as the

“ends of justice” and “abuse of the process of the court” have to be

dealt with in accordance with law and not otherwise. The High

Court has not been given nor does it possess any inherent power to

make any order, which in the opinion of the court, could be in the

interest of justice as the statutory provision is not intended to bypass

the procedure prescribed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 45 OF 2020

STATE REP. BY THE INSPECTOR OF POLICE  Vs M. MURUGESAN 

Dated: JANUARY 15, 2020.

HEMANT GUPTA, J.

1. The State is aggrieved against an order passed by the High Court

of Judicature at Madras on 24th April, 2019 constituting a

Heterogeneous Committee of named persons to give its

recommendations on the reforms that can be brought into practice

for reformation, rehabilitation and re-integration of the

convict/accused person to society and best practices for improving

the quality of investigation. The Committee was mandated to

submit report within eight weeks and that the State was directed to

furnish data for each District. The Committee was to scrutinize the

same and submit the final data separately along with the report.

The State was directed to provide office room for the Committee to

conduct its meetings and to keep the documents and other

materials in safe custody.

2. Such directions came to be passed in a matter pertaining to grant

of bail under Section 439 of the Code of Criminal Procedure, 19731.

The High Court had admitted the accused to bail on 18th February,

2019 subject to certain conditions but passed an order to call for

the details of the cases registered by the Police, final report filed,

trial conducted and the result of such cases. The details were to

bring to light the manner in which the entire criminal justice

system is operating in the State. In pursuance of the directions so

issued and the data provided, the impugned order was passed by

the learned Single Bench.

3. The High Court after collecting the data in respect of the criminal

cases registered, convictions and acquittals in each District

proceeded to write a thesis on how the criminal justice system

should function in the State. It was observed that the central aim

of the criminal law is to reform the offender and to rehabilitate him

in a bid to render him useful to society. The Court held as under:

“16. The situation calls for a thorough revamping of the

Criminal Justice system in this State. It looks like the

police are caught into this Vicious cycle. That shows on

the poor record of convictions in serious crimes.

Instead of finding a complete cure for the disease,

police seem to be looking for temporary solutions

without curing 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 present system prevailing in this state. We have

forgotten the fundamental purpose of Criminal Justice

1 for short, ‘Code’

system which is reformation, rehabilitation and reintegration

of the convict into society. If an accused is

pushed to the extremes by this system where he finds

that even if he wants to turn a new leaf in his life, this

system will not allow him, he will rather surrender to his

fate and turn out to be a hardened criminal. A welfare

state can never stoop down to such a level.

xx xx xx

20. It goes without saying that the quality of

investigation has come down drastically and the data

provided by the police, referred supra, makes it evident.

The alacrity shown by the police in registering FIR and

effecting arrest, is not seen in investigating the case,

laying final report and taking the case to its logical end.

The recent circular dated March 20 issued by DGP

states that all the police stations will henceforth have

exclusive investigation wing. As per the directions, the

investigation wing will be responsible for investigation

and prosecution of all cases registered in the station,

including cases identified by the law and order wing.

Further, the police officers attached to the investigation

wing shall not be diverted to any bandobust work

except with the prior approval of the zonal IG or

commissioner of police. This is a step on the right

direction. A conscious effort should be made by the

investigating wing in every police station with the

active coordination of the directorate of prosecution to

take every criminal case to its logical end. The police

should not be under the impression that their work gets

over with registering FIR and effecting arrest. One of

the main challenges for the prosecution in Serious

crimes is the witness turning hostile due to various

reasons. Witness protection scheme, 2018, which has

now become the law of the land in view of the

judgement of the Hon’ble Supreme Court in Mahender

Chawla case (2019 (1) MWN Crl 340 (SC)) , must be

implemented effectively. The investigation officers

must be updated on a regular basis on the March of law.

Cyber crimes have reached monumental proportions

and criminals committing these offences are clearly

having an upper hand since these criminals are

intelligent crooks and police officers require regular

training and exposure to tackle these crimes. A

complete overhaul is required to enhance the quality of

investigation.”

4. The matter before the High Court was as to whether the accused

are entitled to be admitted to bail, that is the jurisdiction conferred

on 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 an offence 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 grave

illegality in retaining the file after grant of bail to the accused on

18th February, 2019. The jurisdiction of the High Court came to an

end when an application for grant of bail under Section 439 of the

Code was finally decided.

6. In State of Punjab v. Davinder Pal Singh Bhullar & Ors. (2011) 14 SCC 770, the High Court of Punjab & Haryana after deciding a criminal appeal

continued to pass order in respect of offenders in other cases not

connected with the matter which was dealt with by the High Court.

This Court deprecated the invocation of jurisdiction in a matter not

connected 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 was not competent to entertain the said

applications and even if the same had been filed in the

disposed of appeal, the court could have directed to

place the said applications before the Bench dealing

with similar petitions.

xx xx xx

91. There could be no justification for the Bench

concerned to entertain the applications filed under

Section 482 CrPC as miscellaneous applications in a

disposed of appeal. The law requires that the Bench

could have passed an appropriate order to place those

applications before the Bench hearing Section 482 CrPC

petitions or place the matters before the Chief Justice

for appropriate orders.”

7. This Court in Davinder Pal Singh Bhullar referred to a case

reported as Simrikhia v. Dolley Mukherjee and Chhabi

Mukherjee & Anr. (1990) 2 SCC 437 wherein the Court observed that inherent

powers under Section 482 of the Code cannot be exercised to do

something which is expressly barred under the Code. It was held

that inherent powers cannot be exercised assuming that the

statute conferred an unfettered and arbitrary jurisdiction, nor can

the High Court act at its whim or caprice. The Code does not

confer unlimited/unfettered jurisdiction on the High Court as the

“ends of justice” and “abuse of the process of the court” have to be

dealt with in accordance with law and not otherwise. The High

Court has not been given nor does it possess any inherent power to

make any order, which in the opinion of the court, could be in the

interest of justice as the statutory provision is not intended to bypass

the procedure prescribed. It was also held that the High Court

can always issue appropriate direction in exercise of its power

under Article 226 of the Constitution of India at the behest of an

aggrieved person, if the court is convinced that the power of

investigation has been exercised by an investigating officer mala

fide or the matter is not investigated at all, but even in such a case,

the High Court cannot direct the police as to how the investigation

is to be conducted but can insist only for the observance of due

process as provided in the Code. The Court held as under:

“51. The inherent power of the court under Section 482

CrPC is saved only where an order has been passed by

the criminal court which is required to be set aside to

secure the ends of justice or where the proceeding

pending before a court, amounts to abuse of the

process of court. Therefore, such powers can be

exercised by the High Court in relation to a matter

pending before a criminal court or where a power is

exercised by the court under CrPC. Inherent powers

cannot be exercised assuming that the statute

conferred an unfettered and arbitrary jurisdiction, nor

can the High Court act at its whim or caprice. The

statutory power has to be exercised sparingly with

circumspection and in the rarest of rare cases.

(Vide Kurukshetra University v. State of Haryana [(1977)

4 SCC 451 : 1977 SCC (Cri) 613 : AIR 1977 SC 2229]

and State of W.B. v. Sujit Kumar Rana [(2004) 4 SCC 129

: 2004 SCC (Cri) 984] .)

52. The power under Section 482 CrPC cannot be

resorted to if there is a specific provision in CrPC for the

redressal of the grievance of the aggrieved party or

where alternative remedy is available. Such powers

cannot be exercised as against the express bar of the

law and engrafted in any other provision of CrPC. Such

powers can be exercised to secure the ends of justice

and to prevent the abuse of the process of court.

However, such expressions do not confer

unlimited/unfettered jurisdiction on the High Court as

the “ends of justice” and “abuse of the process of the

court” have to be dealt with in accordance with law

including the procedural law and not otherwise. Such

powers can be exercised ex debito justitiae to do real

and substantial justice as the courts have been

conferred such inherent jurisdiction, in absence of any

express provision, as inherent in their constitution, or

such powers as are necessary to do the right and to

undo a wrong in the course of administration of justice

6

as provided in the legal maxim quando lex aliquid alicui

concedit, concedere videtur id sine quo res ipsa esse

non potest. However, the High Court has not been given

nor does it possess any inherent power to make any

order, which in the opinion of the court, could be in the

interest of justice as the statutory provision is not

intended to by-pass the procedure prescribed.

(Vide Lalit Mohan Mondal v. Benoyendra Nath

Chatterjee [(1982) 3 SCC 219 : 1982 SCC (Cri)

697] , Rameshchandra Nandlal Parikh v. State of

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 of Uttaranchal [(2007) 12 SCC 1 :

(2008) 1 SCC (Cri) 259] and Pankaj Kumar v. State of

Maharashtra [(2008) 16 SCC 117 : (2010) 4 SCC (Cri)

217] .)

53. The High Court can always issue appropriate

direction in exercise of its power under Article 226 of

the Constitution at the behest of an aggrieved person, if

the court is convinced that the power of investigation

has been exercised by an investigating officer mala fide

or the matter is not investigated at all. Even in such a

case, the High Court cannot direct the police as to how

the investigation is to be conducted but can insist only

for the observance of process as provided for in CrPC.

Another remedy available to such an aggrieved person

may be to file a complaint under Section 200 CrPC and

the court concerned will proceed as provided in Chapter

XV CrPC. (See Gangadhar Janardan Mhatre 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] .)

xx xx xx

64. An inherent power is not an omnibus for opening a

Pandora's box, that too for issues that are foreign to the

main context. The invoking of the power has to be for a

purpose that is connected to a proceeding and not for

sprouting an altogether new issue. A power cannot

exceed its own authority beyond its own creation. It is

not that a person is remediless. On the contrary, the

constitutional remedy of writs is available. Here, the

High Court enjoys wide powers of prerogative writs as

compared to that under Section 482 CrPC. To secure the

corpus of an individual, remedy by way of habeas

7

corpus is available. For that the High Court should not

resort to inherent powers under Section 482 CrPC as

the legislature has conferred separate powers for the

same. Needless to mention that Section 97 CrPC

empowers the Magistrates to order the search of a

person wrongfully confined. It is something different

that the same court exercising authority can, in relation

to the same subject-matter, invoke its writ jurisdiction

as well. Nevertheless, the inherent powers are not to

provide universal remedies. The power cannot be and

should not be used to belittle its own existence. One

cannot concede anarchy to an inherent power for that

was never the wisdom of the legislature. To confer

unbridled inherent power would itself be trenching upon

the authority of the legislature.”

8. This Court in a judgment reported as Sangitaben Shaileshbhai

Datanta v. State of Gujarat4 was examining a question where a

court after grant of bail to an accused ordered the accused and

their relatives to undergo scientific test viz. lie detector, brain

mapping and Narco-Analysis. This Court held that direction of the

court to carry out such tests is not only in contravention to the first

principles of criminal law jurisprudence but also violates statutory

requirements. The Court held as under:

“7. Having heard the counsels for the parties, it is

surprising to note the present approach adopted by the

High Court while considering the bail application. The

High Court ordering the abovementioned tests is not

only in contravention to the first principles of criminal

law jurisprudence but also violates statutory

requirements. While adjudicating a bail application,

Section 439 of the Code of Criminal Procedure, 1973 is

the guiding principle wherein Court takes into

consideration, inter alia, the gravity of the crime, the

character of the evidence, position and status of the

accused with reference to the victim and witnesses, the

likelihood of the accused fleeing from justice and

repeating the offence, the possibility of his tampering

with the witnesses and obstructing the course of justice

4 2018 SCC OnLine SC 2300

8

and such other grounds. Each criminal case presents its

own peculiar factual matrix, and therefore, certain

grounds peculiar to a particular case may have to be

taken into account by the court. However, the court has

to only opine as to whether there is prima facie case

against the accused. The court must not undertake

meticulous examination of the evidence collected by

the police, or rather order specific tests as done in the

present case.

8. In the instant case, by ordering the abovementioned

tests and venturing into the reports of the same with

meticulous details, the High Court has converted the

adjudication of a bail matter to that of a mini-trial

indeed. This assumption of function of a trial court by

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

application under Section 439 of the Code, wherein an argument

was raised that the poor depositors are not paid by the Bank out of

the amount which has been received by the Bank. The Court

issued directions that the Bank should start distributing the amount

which is so far recovered by them from the accused. The Bank was

directed to furnish details of the money paid to the poor depositors.

The accused as well as the Investigating Officer and the

Administrator of the Bank were directed to remain present in the

Court. This Court found that such directions are beyond the scope

of an application for bail filed by the accused under Section 439 of

the Code. The Court held as under:

“6. We are of the opinion that the far-reaching

consequences of the directions of the High Court are in

5 (2010) 15 SCC 85

9

a way beyond the scope of an application for bail filed

by an accused under Section 439 of the Code of

Criminal Procedure and the High Court, as much as

anyone else, must stay confined to the issues relevant

to the matter before it. It was thus not open to the High

Court to pass orders which could affect the working of

banks all over the country.”

10. In Santosh Singh v. Union of India & Anr.6 while dealing with a

public interest litigation petition filed by a petitioner who was

deeply distressed with the rapidly degrading moral values in the

society touching every aspect of life where making money has

become the sole motto of society, this Court held as under:

“18. While there can be no dispute about the need of

providing value-based education, what form this should

take and the manner in which values should be

inculcated ought not to be ordained by the court. The

court singularly lacks the expertise to do so. The

petitioner has a grouse about what she describes as the

pervading culture of materialism in our society. The

jurisdiction of this Court under Article 32 is not a

panacea for all ills but a remedy for the violation of

fundamental rights. The remedies for such perceived

grievances as the petitioner has about the dominant

presence of materialism must lie elsewhere and it is for

those who have the competence and the constitutional

duty to lay down and implement educational policies to

deal with such problems.

19. There is a tendency on the part of public interest

petitioners to assume that every good thing which

society should aspire to achieve can be achieved

through the instrumentality of the court. The judicial

process provides remedies for constitutional or legal

infractions. Public interest litigation allows a relaxation

of the strict rules of locus standi. However, the court

must necessarily abide by the parameters which govern

a nuanced exercise of judicial power. Hence, where an

effort is made to bring issues of governance before the

court, the basic touchstone on which the invocation of

jurisdiction must rest is whether the issue can be

addressed within the framework of law or the

6 (2016) 8 SCC 253

10

Constitution. Matters of policy are entrusted to the

executive arm of the State. The court is concerned with

the preservation of the rule of law.

xx xx xx

23. It is unrealistic for the court to assume that it can

provide solutions to vexed issues which involve drawing

balances between conflicting dimensions that travel

beyond the legal plane. Courts are concerned with

issues of constitutionality and legality. It is difficult to

perceive how matters to which solutions may traverse

the fields of ideology, social theory, policy-making and

experimentation can be regulated by this Court such as

by issuing a mandamus to enforce a scheme of

instruction in a particular subject in school education.

Should a subject be taught at all? Should a set of values

or a line of enquiry and knowledge be incorporated as a

separate subject of discourse in an educational system?

Would a horizontal integration of a given set of values

across existing subjects better achieve a desirable

result? Is it at all desirable to impose another subject of

study upon the already burdened school curriculum?

24. These are vexed issues to which more than one

solution may appear just. That is exactly the reason

why a resolution of such matters must rest with those

who have the responsibility to teach and govern over

matters of education. Every good that is perceived to

be in the interest of society cannot be mandated by the

court. Nor is the judicial process an answer to every

social ill which a public interest petitioner perceives. A

matter such as the present to which a solution does not

rest in a legal or constitutional framework is incapable

of being dealt with in terms of judicially manageable

standards.”

11. We find that learned Single Judge has collated data from the State

and made it part of the order after the decision of the bail

application as if the Court had the inherent jurisdiction to pass any

order under the guise of improving the criminal justice system in

the State. The jurisdiction of the Court under Section 439 of the

Code is limited to grant or not to grant bail pending trial. Even

though the object of the Hon’ble Judge was laudable but the

jurisdiction exercised was clearly erroneous. The effort made by

the Hon’ble Judge may be academically proper to be presented at

an appropriate forum but such directions could not be issued under

the colour of office of the Court.

12. In view of the above, we find that the order passed by the High

Court on 24th April, 2019 is not sustainable in law and the same is

set aside. Consequently, the appeal is allowed.

.............................................J.

(L. NAGESWARA RAO)

.............................................J.

(HEMANT GUPTA)

NEW DELHI;

JANUARY 15, 2020.

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