Recent Judgments on Section 438 CrPC

(Delhi High Court and Supreme Court)

In the case of Neeharika Infrastructure Private Limited v. State of Maharashtra 2021 SCC
OnLine SC 315 the Supreme held that the power of quashing should be exercised in
exceptional cases to prevent a miscarriage of justice, the Supreme Court also noted that the
power conferred by Section 482 CrPC should be exercised in accordance with the parameters
laid down in Bhajan Lal and R.P. Kapur.

However, the SC concluded that while exercising the power under Section 482 CrPC, the HC
only has to consider whether the allegations in the FIR disclose the commission of a
cognisable offence. The SC also concluded that the HC is not required to consider on merits
whether the allegations make out a cognisable offence, and the police/investigating agency
should be permitted to investigate the allegations in the FIR.

In the case of Arnab Goswami v State of Maharashtra AIR 2021 SC 1, the Supreme Court
held that while adjudicating a quashing petition the High Court is duty bound to undertake a
prima facie evaluation of whether the ingredients of the alleged offence have been established
in the FIR.

In the case of State of Telangana v Hamid Abdullah Jeelani (2017) 2 SCC 779 and Ravuri
Krishna Murthy v State of Telangana (2021) it was held that the High Court cannot grant
interim protection from arrest under section 482 CrPc after dismissing a quashing petition.
Hence, according to the Supreme Court, if a quashing petition is dismissed, the accused
should be relegated to filling an application for anticipatory bail under Section 438.

In the recent decision of Sandeep Khaitan v JSVM Plywood 2021 SCC OnLine SC 338, the
Supreme held that the power conferred by Section 482 Crpc cannot be exercised in a manner
that would undermine the provision of other statutes- such as Sections 14 and Section 17
(vesting of management of the company with the interim resolution professional) of the
Insolvency and Bankruptcy Code, 2016)
Supreme Court in the case of Vijay Kumar Ghai v State of West Bengal [2022 SCC OnLine
SC 344] held that the High Court exercised the powers under Section 482 as well as Section
401 of CrPC to dismiss the prayer for quashing of the proceedings and held that continuance
of criminal proceedings against the present appellant/accused would not be an abuse of the
process of the court. This particular case dealt with the power of section 438 CrPC and
Forum Shopping. The hon’ble court in the same case also cited G. Sagar Suri v State of
Uttar Pradesh that it is the duty and obligation of the criminal court to exercise a great deal
of caution in issuing the process, particularly when matters are essentially of civil nature.

Delhi High Court in the case of Rajeev Ranjan Sinha v Sushil Kumar Saxena [2022 SCC
OnLine Del 1577] while refusing to allow a petition filed under Section 482 CrPC seeking
quashing of summoning order passed by the Metropolitan Magistrate, Patiala House Courts
held that the impugned order noted that it was a well-reasoned one and in respect of the
contention that there was no averment in the complaint against the petitioner. The hon’ble
court held that there was no error or perversity in the impugned order, no interference was
called for by the court in exercise of its inherent powers under section 438 CrPC.

Delhi High Court in the case of Awadh Constructions v Amarpreet Shuttering [2022 SCC
OnLine Del 1034] the hon’ble expressed that the court in the exercise of its jurisdiction under
Section Section 482 CrPC cannot go into the truth or otherwise of the allegations made in the
complaint or delve into the disputed question of facts. The Bench held that in the present
matter did not find any material which could be stated of sterling and impeccable quality
warranting the invocation of the jurisdiction of this Court under Section 482 CrPC.

In the present Swantantara Kumar Jaysawal v State [2022 SCC OnLine Del 30] held that
the criminal proceedings from FIR registered with allegations of rape cannot be quashed in
exercise of powers vested in this Court under Section 482 CrPC on the basis of settlement
and subsequent marriage as it would not waive off the offence alleged by the complainant.

In the case of Charu Soneja v State (NCT of Delhi) the hon’ble Delhi High Court an
application was filed under Section 438 CrPC seeking a grant of anticipatory bail. The court
held that “the power conferred under Section 439(2) CrPC has to be exercised in a discreet
fashion, without dwelling on the merits of whether bail should have been granted or not and
only upon viewing the subsequent conduct of an accused. The power is coupled with the
reserve and caution, akin to the usage of the High Court’s inherent powers given under
Section 482 CrPC”. The Court dismissed the petition noting that Court has not made any
observation on the nature/manner of investigation, and if an application challenging the
nature/manner of investigation is filed by the complainant, the Trial Court is requested to
consider the same.

In the case of Mahendra KC v. State of Karnataka [2021 SCC OnLine SC 1021] The Court
noticed that the High Court has evidently travelled far beyond the limits of its inherent power
under Section 482 CrPC since instead of determining whether on a perusal of the complaint, a
prima facie case is made out, it has analysed the sufficiency of the evidence with reference to
the suicide note.

“While adjudicating on an application under Section 482 CrPC, the High Court in the present
case travelled far away from the parameters for the exercise of the jurisdiction. Essentially,
the task before the High Court was to determine whether 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 did or did not prima facie constitute an offence or make out a case against the
accused”.

In case of Mukhtiyaar Ali v. State (NCT of Delhi) [2021 SCC OnLine Del 4428] the High
Court stated that Court under Section 482 CrPC can be exercised keeping in mind the injuries
sustained, whether such injury is inflicted, nature of weapons used etc. The hon’ble declined
to quashthe FIR solely on the ground that the parties entered into a compromise.