2008 (2) TMI 866 - SC - Indian Laws

Whether the power under section 482 Cr.P.C. should be exercised sparingly or sparingly with circumspection and in the rarest of rare cases ? Whether the recommendations and directions relating to anticipatory bail and enforcement of the directions relating to arrest laid down in Joginder Kumar were warranted in this case?

Issues Involved:
1. Scope of power under section 482 Cr.P.C.
2. Recommendations and directions relating to anticipatory bail and enforcement of arrest procedures.

Issue-wise Detailed Analysis:

1. Scope of Power under Section 482 Cr.P.C.:

The primary issue was whether the power under section 482 of the Code of Criminal Procedure (Cr.P.C.) should be exercised 'sparingly' or 'sparingly with circumspection and in the rarest of rare cases'. The appellant sought to quash a complaint under section 482 Cr.P.C. The High Court rejected the prayer but altered the offence. The Supreme Court Bench, consisting of H.K. Sema and Markandey Katju, JJ., dismissed the appeal without expressing any opinion on the merits of the case, directing the Magistrate to decide the maintainability of the complaint uninfluenced by any observations made by the courts.

Sema, J. emphasized that "the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases," reiterating the position held in several precedents, including Kurukshetra University v. State of Haryana and State of Haryana v. Bhajan Lal. Katju, J., while concurring with the dismissal, disagreed with the use of 'rarest of rare cases' in this context, arguing that the phrase is typically associated with the death penalty under section 302 IPC. However, the Court clarified that the term 'rarest of rare cases' in this context emphasizes the careful and cautious use of power under section 482 Cr.P.C., not to be used mechanically or routinely but only when a clear case for quashing is made out to prevent miscarriage of justice.

The Court listed categories where section 482 could be exercised:
1. Allegations do not constitute an offence.
2. Allegations do not disclose a cognizable offence.
3. Uncontroverted allegations do not disclose the commission of any offence.
4. Allegations constitute only a non-cognizable offence.
5. Allegations are absurd and improbable.
6. Legal bar to the institution or continuation of proceedings.
7. Proceedings are manifestly attended with mala fide.

The Court stressed that these guidelines are not exhaustive and the power should be used sparingly and with circumspection.

2. Recommendations and Directions Relating to Anticipatory Bail and Enforcement of Arrest Procedures:

The second issue involved the recommendations made by Katju, J. regarding anticipatory bail and the enforcement of arrest procedures. In his concurring judgment, Katju, J. expressed concern over the omission of section 438 Cr.P.C. (anticipatory bail) in Uttar Pradesh and recommended its restoration to alleviate public hardship. He directed the Registry to send copies of his judgment to various officials and associations, emphasizing the need for compliance with arrest procedures as laid down in Joginder Kumar v. State of U.P.

However, the Supreme Court clarified that these recommendations and directions were not related to the subject matter of the criminal appeal, which was about the applicability of section 25 of the Karnataka Shops & Commercial Establishments Act, 1961. The Court emphasized that judgments should only deal with the subject matter of the case and avoid issuing directions affecting executive or legislative policy unrelated to the case. The observations and recommendations made by Katju, J. were deemed as expressions of expectation or hope, not binding directions, as they were not agreed upon by the other Judge on the Bench.

The Court reiterated that while rendering judgments, courts should ensure that their orders and decisions do not create confusion or conflict with existing laws and should avoid commenting on issues not raised by the parties unless necessary and after notifying the concerned parties.

Conclusion:

The Supreme Court dismissed the appeal, affirming that the power under section 482 Cr.P.C. should be used sparingly and with circumspection. The recommendations and directions regarding anticipatory bail and arrest procedures were not binding as they were not related to the subject matter of the appeal and were not agreed upon by both Judges. The case was placed before a three-Judge Bench due to the difference in opinion on the legal issues.

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