Stay of Investigation: Palatable Interim Reliefs and the Law

A B Kadam

It is a settled law that while passing of interim/ad-interim orders, it is unnecessary for the court to elaborate on the merits of the matter as if the same were to be finally heard and disposed of. However, as a matter of propriety, it is proper and desirable for the high courts to indicate the reasons which have weighed with it while granting protective and/or injunctive reliefs in the nature of interim/ad-interim protection. The necessity of citing such reasons is not limited to orders that may grant interim relief, but would also apply to orders which refuse the grant of such reliefs despite presentation of a prima facie case. In the absence of such reasons, it is virtually impossible for such higher authority or forum to determine what persuaded the grant or refusal of relief.

Recently, the Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. vs State of Maharashtra & Ors, [Criminal Appeal No. 330 of 2021], cautioned against the scuttling of criminal investigation, as a matter of ordinary course, especially while passing orders in a quashing petition in the nature of interim relief. It appears that the Registry of the Supreme Court was directed to circulate a copy of the said judgment amongst all the high courts in India. The immediate effect of this has resulted into haze over the very permissibility of the High Court to grant interim relief in terms of ‘stay on investigation’ and/or ‘no coercive steps’.

Writ jurisdiction conferred upon the Honourable High Courts in India has been utilised for purposes of quashing of the First Information Reports (“FIR”) and/or chargesheets therewith. The said endeavour is undertaken by the High Courts in exercise of its powers under Article 226 of the Constitution of India, 1950 read with Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”). The purpose with which the said powers are utilised is to favour the liberty of the citizens and other individuals, particularly to secure the ends of justice and to prevent the abuse of the process of law. These are powers of exceptional nature which go to the extent of enabling the accused to sidestep the process of trial before the appropriate criminal forum and be absolved of all accusations whatsoever. Given the fact that the said reliefs can be granted only by way of a prerogative writ, jurisprudence has taken a new turn insofar as the exercise of such discretion is concerned. It is common knowledge that while hearing the matter for admission and/or issuance of notice, the court would not ordinarily hear the petition in its finality. It is in these scenarios that the petitioner is called upon to present a strong prima facie case on merits so as to enable the court to consider granting reliefs in the interregnum which would inter-alia prevent the petition from turning infructuous by the next hearing date or by the date for final disposal of the matter by reason of it being sub-judiced.

The Process of Investigation and Interference Therewith

The provisions regarding the investigation of cognizable offences are contained in Chapter XIV of the CrPC. It is pertinent to note that Section 154 deals with information of cognizable offence and Section 156 with the investigation of such offences. Under these provisions, the prosecution agency i.e. police, have the statutory right to investigate into the circumstances of any alleged cognizable offence. The investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating authority whose powers are unfettered so long as the investigating officer exercises his powers well within the provisions of the law and legal bounds. In exercise of its inherent power under Section 482 CrPC, the Court can interfere and issue appropriate direction only when the Court is convinced that the power of the investigating officer is exercised with a malafide intention or where there is abuse of power and non-compliance of the provisions of CrPc. However, as observed by the Apex Court in the case of P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, that this power of invoking inherent jurisdiction to issue direction and interfering with the investigation is exercised only in rare cases where there is abuse of process or non-compliance with the provisions of the CrPC. Further, The Privy Council in the matter of King Emperor vs Khwaja Nazir Ahmad, [AIR 1945 PC 18] held that there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any permission from the judicial authorities. It is further observed that it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. It is further observed that the functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by letting each authority to exercise its own functions. On consideration of the above authorities, the Supreme Court in the case of Neeharika (supra) inter alia concluded at paragraph 23, clauses [ii] & [iii] as follows:

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

On a valid perusal of the afore-cited findings, it is apparent that on one hand, the court has been eloquent in observing that investigation is a highly onerous task for the prosecution, and the same if interfered with at its nascent stage; would cause a disastrous impact upon a fair investigation. However, on the other hand the Supreme Court should not be misunderstood to have prevented or restrained the high courts from exercising their powers to grant stay on the investigation in deserving cases. These are the powers which are inherent with the High Court and the said court is not denuded thereof with any observations made in Neeharika. It is in fact the said powers of the High Court that come to be well-defined and crystallised by way of the said judgement.

Stay Permissible Despite Accusations of a Cognizable Offence

On a bare perusal of the view taken in Neeharika (supra), one may even incorrectly interpret the said view to mean that if the FIR discloses a cognizable offence, then in no case the court should stay the investigation. This is exactly something which the court never meant to lay down. All that the court purposively observed was the constituents of the FIR disclose allegations pertaining to a cognizable offence, and the court finds prima facie substance in the said allegations, and also would be slow in having such investigation stayed.

On the contrary, if it is to be mechanically held that only in “cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on”, no relief in terms of stay could ever be granted by any of the concerned high court that which would defeat the very purpose of Section 482 of the CrPC. The Court has rather been very clear in declaring such powers to stay the investigation, which unquestionably lies with the High Court and the same can be granted in deserving cases by way of interim relief. However, at the same time it cannot be forgotten that the said power is extraordinary in nature, which can be exercised only in exceptionally appropriate cases. It was held in the case of Imtiyaz Ahmed vs State of Uttar Pradesh & Ors., [(2012) 2 SCC 688] that “The High Court should make it a point of finally disposing of such proceedings, in which a stay on investigation or trial proceedings is granted, as early as possible but preferably within 6 months from the date the stay order is issued”.

It is thus unthinkable of declaring the High Court being deprived of their power to stay the investigation merely because a cognizable offence is invoked in the FIR. A conjoint reading of the case State of Haryana v. Bhajan Lal, [1992 Supp (1) SCC 335] and R.P. Kapur v. State of Punjab, [AIR 1960 SC 866] would reveal that mere presence of cognizable offences cannot pass muster, as the same should be accompanied with grounds justifying an investigation by police officers under Section 156(1) of the CrPC except under an order of a Magistrate within the purview of Section 155(2) of the CrPC. Moreover, in the event where the uncontroverted allegations made in the FIR or complaint and the basic evidence collected in support of the same does not disclose the commission of any offence and make out a case against the accused, it would be the duty of the High Court to stay such an investigation.

Therefore, as suggested by the Supreme Court, it is appropriate to dispose of quashing petitions, within a period of 6 months wherein a stay order would operates. An endeavour towards the same can be positively considered as the stay should not afford an incentive to delay the final disposal.

Reasons to Be Recorded

The reason behind the decision was a cardinal principle and the High Court should record its reasons while disposing of the matter. The Supreme Court in Neeharika (supra) has cited “presence of reasons” to be the strict necessity while passing off interim orders, either in terms that no coercive steps be taken or that investigation be stayed. In fact, Order 14 Rule 2 read with Order 20 Rule 1 of the Code of Civil Procedure requires that the Court should record findings on each issue and such findings which obviously should be reasoned would form part of the judgment, which in turn would be the basis for authoring a decree of the Court.

Even in respect of administrative orders, Lord Denning, M.R, in Breen v. Amalgamated Engg. Union, (1971) 2 QB 175, observed:(QB p.191 C) that “the giving of reasons is one of the fundamentals of good administration.” Further, in the case of Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed that “failure to give reasons amounts to denial of justice.” “Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.”

When a criminal proceeding is initiated pursuant to the FIR/complaint, it is nothing but an abuse of due process of law and/or the same is wholly without jurisdiction or where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged or where the allegations in the FIR/complaint (even if they are taken at the face value and accepted in their entirety), do not constitute the offence alleged and exceptional case being made out on the grounds mentioned by this Court in the cases of Bhajan Lal (supra) and R.P. Kapur (supra); by giving brief reasons, the High Court would be justified in even staying the further investigation, by way of an interim order.

The Court cannot lose sight of the fact that a losing litigant has a cause to plead and a right to challenge the order if it is adverse to him. Opinion of the Court alone can explain the cause which led to passing off the final order. Whether or not an argument was rejected validly, reasoning of the order alone can depict the same. To evaluate the submissions is the obligation of the Court and to know the reasons for rejection of its contention is a legitimate expectation on the part of the litigant. When reasons are announced and can be weighed, the public can have assurance that the process is working. Announcing reasons can also provide public understanding of how the numerous decisions of the system are integrated. With having a burdened litigation system, the reasons are an essential demonstration that the Court did in fact fix its mind on the case at hand. An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles.


Whenever a quashing petition is heard for admission and notice to the State with an original complaint being issued, the interim order is very often prayed for and granted in terms of stay of investigation which is the prerogative of the prosecution agency. The investigating officer is an arm of the law and plays a pivotal role in the dispensation of criminal justice and maintenance of law and order. Therefore, enough power is given to the police officer in the area of the investigating process and granting them the court latitude to exercise its discretionary power to make a successful investigation by finding out the truth. By an order of stay on investigation, the police authorities can be apparently disabled from collecting vital evidence which in the natural course of time or with the intervention of other factors, disappears. If at the final stage, the petition is dismissed, the investigating agency, whose hands were tied for weeks or months or years; may not be in a position to un-earth any vital material after such long period of time, and incalculable loss may be caused to the prosecution agency as also the first informant.

Although it is a settled law that the courts are to have their hands off qua the process and the manner in which the investigation functions, however interference by way of stay becomes a duty when the Court is prima facie convinced that the power of the investigating officer is exercised mala fide or where there is abuse of power and non-compliance of the provisions of the Code of Criminal Procedure or the investigation proceeds notwithstanding the express bar provided under special law or the investigation proceeds on an FIR which is registered without prior sanction of an authority without which no FIR could have been registered. It is in the eventuality of such arguable points coming up before the High Court for consideration in a quashing petition, the High Court would be justified in passing reliefs in terms of stay on investigation until the adjourned date/s or until final disposal within a period as prescribed by the Supreme Court.

A B Kadam is an Associate at Nargolkar & Associates, Mumbai.

Photo by Biplov Bhuyan

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