REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 45 OF 2020 (ARISING OUT OF SLP (CRIMINAL) NO. 4977 OF 2019)

STATE REP. BY THE INSPECTOR OF POLICE .....APPELLANT(S)

VERSUS

M. MURUGESAN & ANR. .....RESPONDENT(S)

J U D G M E N T

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

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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’

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system  which  is  reformation,  rehabilitation  and  re- integration 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.   

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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.”

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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.2, 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.

2  (2011) 14 SCC 770

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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.3 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 by-

pass 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

3  (1990) 2 SCC 437

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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

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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] .)

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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

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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

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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

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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

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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.

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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

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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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