Author- Devdeep Ahirwal, Integrated Law Course, Faculty of Law, University of Delhi

KEYWORDS

Separation of Powers, Judicial Review, Writ Petition, Section 482 CrPC, Judicial Restraint, Section 173 CrPC, Production of Accused, Copies to Accused

CASE DETAILS

INTRODUCTION AND BACKGROUND OF JUDGEMENT

The doctrine of separation of powers, though not categorically mentioned in the Constitution of India, is recognised in spirit by the various Articles enshrined in it. It opines that the domain of functioning of the three branches of the government — the Judiciary, Executive & Legislature — are delineated and act as checks and balances against each other. The domain of functioning of one branch is not to be infringed into by the other branches and the demarcation is not to be violated. In this respect, the doctrine of judicial restraint also becomes pertinent, as the judiciary might, in its attempt to dispense justicequitablyer to the aggrieved, become overzealous in using its discretion to pass orders and directions that may trespass into legislative or executive functions, or be wholly outside the jurisdiction vested in the courts. The present case exemplifies such a situation.

FACTS OF THE CASE

In the present case, the respondent Anil Kumar Sharma had worked as a clerk with ESI Hospital in Agra and was subsequently transferred to KRB Hospital, Agra on 23.03.2012. A First Information Report was registered against him on December 21, 2012, at Police Station Hari Parvat, District Agra as Crime Case No. 1044 of 2012. Section 409 of the Indian Penal Code, which deals with criminal breach of trust by a public servant, or by a banker, merchant or agent, was invoked against him.

Subsequently, on January 3, 2013, Anil Kumar Sharma filed a writ petition (Crl.) No. 62 of 2013 before the High Court. It was pleaded that he had nothing to do with the purchase of medicines or working as a storekeeper, having been assigned to the Enquiry and Registration Counter at the hospital. Hence, he prayed for a writ, order or direction like certiorari as the FIR in question was liable to be quashed. The High Court granted an interim stay on the arrest of Anil Kumar Sharma.

Observations were made regarding the procedural issues in criminal trials by the High Court. Among the reasons observed, it pointed out the non-arrest of the accused by the police while submitting reports under Section 173(2) of the Code of Criminal Procedure, 1973. Subsequently, even though the FIR was still under investigation, the High Court started issuing directions related to procedural issues neither raised nor contemplated in the original petition filed by Anil Kumar Sharma.

It directed the police authorities to ensure the necessary infrastructure (photocopying machines) and manpower for photocopying is available in the police stations for preparing copies required to be made under Section 207 CrPC to be furnished to the accused. It also assigned to the Principal Secretaries (Home) the responsibility of ensuring that copies of papers mentioned u/s 207 CrPC are available with the Investigation Officer for handing over to the accused at the time of initial appearance through the magistrate. Further, it ordered the lower courts to not accept reports u/s 173(2) of the CrPC, unless the accused are produced in custody or appear before the Court at the time of submission of report.

Thereafter, the High Court passed the impugned order even though a final closure report had been filed in respect of the FIR in question, and started monitoring the process of expediting the criminal trials in the state, directing the Principal Secretary, Home, Finance, Law, DGP and Director (Prosecutions), UP to file personal affidavits showing the progress and compliance with the orders passed under the impugned judgement. It also sought feedback on its suggested amendments to Section 209 of the CrPC, including filing of charge sheet directly before the Sessions Courts in a Sessions case, doing away with the procedural requirement of filing by a magistrate, from the Central Government.

LEGAL ISSUES RAISED 

1. To what extent does the power of the High Court to issue directions relating to procedures adopted in criminal trials extend?
2. Whether the directions issued by the High Court conform with the provisions of the Code of Criminal Procedure and the Constitution of India?

PETITIONER / APPELLANT’S ARGUMENTS

It was pleaded by the Advocate General on behalf of the Appellants that the sweeping directions issued by the High Court about Section 173 CrPC, directing the Trial Courts to not accept reports under Section 173 CrPC unless the accused are produced, had resulted in thousands of cases being held up due to non-filing of reports.

Moreover, the High Court insisted on feedback on suggested amendments in the Code of Criminal Procedure, 1973, including amendments like enabling the police to file charge sheets directly before the Sessions Court in the Sessions case, dispensing with the procedure of committal by the Magistrate. It sought feedback on these amendments from the Central Government, even though it was not a party to the original writ petition.

Further, it was argued that on behalf of the State Government, the appellants had sought further time to consult with the Central Government about the directions, as the issues entailed wide implications. The High Court only allowed three days, including a Sunday, to comply with the direction. In all these actions and directions, the High Court had acted unscrupulously with disregard of relevant principles and statutory provisions.

RESPONDENT’S ARGUMENTS

Since the relevant appellant authorities had moved the Supreme Court against orders and directions of the High Court, and a final closure report had been filed in the Court about the original FIR registered against Anil Kumar Sharma leading to the original writ petition being infructuous, no respondent arguments were recorded in the present case.

RELATED LEGAL PROVISIONS

1. Code of Criminal Procedure, 1973 — Ss. 164, 173, 207, 209, 482

• Section 164:- Recording of confessions and statements. — (1) Any Metropolitan Magistrate or Judicial Magistrate may, Whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial.
• Section 173:- Report of PA police officer on completion of the investigation. — (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in subsection (5).
• Section 207 – Supply to the accused of copy of the lice report and other documents. — In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:— (i) the police report; (ii) the first information report; (iii) the statements recorded under sub-section (3) of section 161; (iv) the confessions and statements; (v) any other document or relevant extract thereof forwarded to the Magistrate.
• Section 209:- Commitment of case to Court of Session when another fence is triable exclusively by it. — When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall – ‘[(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;] (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
• Section 482: Saving of inherent powers of High Court. — Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
  1. Indian Penal Code, 1860 – s. 409
• Section 409:- Criminal breach of trust by a public servant, or by banker, merchant or agent. — Whoever, being in any manner entrusted with property, or with any dominion over the property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with ‘[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

JUDGEMENT

Ratio Decidendi

The Court appreciated the concern of the HC regarding the issue of delays that happen in criminal trials. However, it held that the directions issued by the HC did not align with the principles and provisions laid down in the Code of Criminal Procedure, 1973. Moreover, it held that how these sweeping directions were made by the HC could also not be endorsed by the Court.

In the State of Uttar Pradesh vs Mahindra and Mahindra Limited, the Supreme Court had held that it is deemed appropriate for each organ of the government to restrict its functioning within the domain accorded to them. The judiciary has been vested with the power to interpret legislation, with the legislature and executive exercising the delegated powers of legislating and rule-making power, respectively. The Court observed that it is inappropriate for the courts to issue a mandate to legislate an Act since it is not a power vested in the High Court.

Further, the Court referred to Pravasi Bhalai Sangathan vs Union of India to invoke the doctrine of separation of powers to acknowledge the limitations of the powers of the judiciary. In this case, the Supreme Court recognised that it has persistently recognised the Constitution as contemplating separation of powers, holding that the Court does not possess the power to legislate as it has not been conferred on it, and their domain of functioning is restricted to reflecting, and not legislating. Further, the judgement also barred the Courts from passing orders or directions which are not capable of implementation.

In State of U.P. v. U.P. Rajya Khanji Vikas Nigam Sangharsh Samiti, the Court subjected the impugned order of the High Court to a test, checking whether it was susceptible of implementation and enforcement, with impracticality rendering the order unenforceable. Moreover, the Court opined that the power of judicial review must not become unmanageable, and is subject to the principles of judicial restraint, further citing Braj Kishore Thakur vs Union of India, which observed that judicial restraint is a virtue which must be concomitant with every judicial disposition.

The Supreme Court, while recognising the difficulty of disregarding one’s own strongly held opinions of what is wise in the conduct of affairs, held that it is not the business of the court to make policy. It further added that the Constitution does neither permit the court to direct or advise the executive in matters of policy, nor to sermonise about any matter which lies within the sphere of legislature or executive.

It held that the High Court had erred in treating the writ petition filed for quashing the FIR by Anil Kumar Sharma, which itself had become infructuous, as a Public Interest Litigation, issuing sweeping directions without sufficient data and material basis to do so. It pointed out the sheer impracticality of the direction mandating the production of accused during filing of charge-sheet, especially in cases where there are several accused or where there are undertrial prisoners and the accused is absconding, which can lead to delay in trials rather than expediency; the Court noted that there is no requirement under Section 173 of CrPC to do so.

Additionally, the Court also noted that Section 207 CrPC does not mandate the preparation of copies of all papers before the charge sheet is filed and that the photocopying machines could have been directed to be provided in the courts rather than police stations. Further, the High Court exceeded its jurisdiction in asking State Authorities to file a compliance report and directing the Central Government to amend the CrPC, even though it was not a party to the original petition. Hence, the appeal was allowed and the impugned order passed in W.P. (Crl) No. 62 of 2013 of the High Court was set aside.

CONCLUSION & COMMENTS

This judgement highlights the importance of the observation of the doctrine of separation of power, as well as the exercise of judicial restraint in judicial actions. It has categorically stated that legislating is not within the domain of functioning of the courts and that the Constitution does not empower the judiciary to advise & sermonise the other branches of government in the exercise of their powers.

REFERENCES

Important Cases Referred

1. State of Uttar Pradesh vs Mahindra and Mahindra Limited, 2011 (13) SCC 77.
2. Pravasi Bhalai Sangathan vs Union of India, 2014 (11) SCC 477.
3. State of U.P. v. U.P. Rajya Khanji Vikas Nigam Sangharsh Samiti, 2008 AIR SCW 6086.
4. Braj Kishore Thakur vs Union of India, 1997 (4) SCC 65.

Important Statutes Referred

1. Code of Criminal Procedure, 1973 — Ss. 164, 173, 207, 209, 482.
2. Indian Penal Code, 1860 — S. 409.