Sunday, 19 January 2020

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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