Most people unfamiliar with law do not believe that the bulk of criminal litigation facing most High Courts is not complex appeals but various petitions filed under Section 482 of the Criminal Procedure Code, 1973 [Cr.P.C.] — which was earlier Section 561-A of the 1898 Code, and is now Section 528 of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS]. This clause, bearing a marginal heading 'Saving of Inherent Powers of High Courts', recognises that nothing in the statute can abridge the inherent powers of High Courts to pass orders for preventing the abuse of process of any court or for securing the ends of justice.
The breadth of the heading is an indicator of the vast variety of reliefs that are sought by litigants through this clause. They range from petitions challenging police action challenging registration of cases, issuance of notices, seizure of property etc., to petitions challenging judicial orders of all hues. A sense of this dizzying breadth of inherent powers jurisdiction can be gained by turning to any standard commentary on the criminal procedure code.
This post is not a mini commentary on Section 482 Cr.P.C. / Section 528 BNSS. It is just some notes on this most interesting of clauses.
Genesis of the Clause and its Initial Days
Recently, a petition was filed before the Delhi High Court challenging an order discharging all the accused persons in the highly publicised case involving a former Chief Minister of Delhi, amongst others. Besides this challenge to the finding on discharge, a separate petition was filed which asked for expunging remarks that were made by the court against an investigating agency.
Today, nobody doubts that such a petition can be filed, and that a High Court can direct expunction of the remarks. But it was a controversy over precisely this issue which led to the inherent powers clause being added to the 1898 Cr.P.C. The issue arose because the Allahabad High Court held in 1922 that there was no clause within the procedure code which conferred any power to expunge remarks when an aggrieved Station Master from Benaras had filed a revision petition against an order carrying unflattering remarks about how the Station Master had discharged his duties. As it so happened, the Colonial Government was in the midst of considering revisions to the Cr.P.C. at the time. This experience prompted adding another clause to the proposed amendments, which became Section 561-A of the 1898 Code in 1923 [see pg. 1199 here].
Looking at the legal commentaries from 1925 till around India's independence [pg. 1199-1200 here, pg. 1301 here, pg. 202-203 here, pg. 415-416 here]. The commentary is barely more than a couple of pages across these books spanning the first 20 years. It seems that the initial significant development was to recognise that this clause conferred no new powers upon the High Court but those which had always existed. The contours of what were these powers got determined on a case to case basis, as litigants tried their luck. Thus, a petition seeking directions to block access to a bank account got rejected as there were parallel civil remedies for this, but a petition seeking quashing of judicial proceedings at an interlocutory stage was accepted. The plea to quash proceedings at an interlocutory stage by inviting the High Court to decide whether there were any merits in the allegation was seen as an exercise of its powers to secure ends of justice. To permit continuation of proceedings where no case existed was seen as running a "mock trial" which defeated the ends of justice.
What about a stage anterior to legal proceedings instituted in a court; could a petition be filed to quash a case still being investigated by police? This led to perhaps the most famous, and important, decision on Section 561-A prior to independence; the 1944 opinion of the Privy Council in Nazir Ahmed (for more about the litigation itself, see here). While the Privy Council reiterated that the clause gives no new powers and held that the order quashing an ongoing investigation was improper in the facts of that case, it simultaneously implied that quashing of cases where no offence is disclosed would be proper.
The Story after Independence
One can say that the trial-and-error approaching has continued post independence, and that after a specific point in time the novelty of petitions grew thin. The categories in commentaries such as the AIR Manual flesh out and then have remained more-or-less similar over time. Our interest shifts to considering how did courts exercised this power while dealing with the categories of cases. Also, the changes to legal practice surrounding inherent powers brought about by a new Criminal Procedure Code coming in 1973.
On the exercise of this jurisdiction, the post-independence judiciary largely struck the same notes, and it held that the inherent powers clause did not confer new powers and it should be resorted to sparingly. One might argue that there has been some dilution of the limitation in respect of entertaining petitions for which other remedies may be available as well as using powers seemingly contrary to other provisions of the Code. For instance, the Supreme Court in 2016 has affirmed that an alternate remedy of revision does not prohibit institution of petitions invoking the inherent powers clause. It has also held that identification of only some offences as compoundable within the criminal procedure code does not prevent the closure of cases on settlement basis invoking the inherent powers clause.
In the specific context of quashing investigations, the Supreme Court developed upon the principles that had been indicated in Nazir Ahmed. A good example of this was the 1960 decision in R.P. Kapur where the Supreme Court illustratively identified cases in which it would be justified to quash investigations, and we see that litigants relied upon the judgment across High Courts (as also the Supreme Court) thereafter with varying degrees of success. The further crystallisation of law in 1990 with Bhajan Lal (and expansion of the quashing of FIR power) which is liberally cited today can be traced back to the first steps taken by the Court in R.P. Kapur.
Despite the greater affirmation of powers to close cases at an interlocutory stage, and recognition of some new kinds of inherent powers, one gets a sense that the total volume of petitions under Section 561-A was still manageable during the life of the 1898 Code. Especially, compared to numbers we get on databases after the 1980s. One thing that changed was the scope of revisional powers being whittled down in the new Cr.P.C. which was introduced in 1973. Earlier, a revision petition could be filed against any order. It is for this reason that older cases find a reference to both the inherent powers clause as well as the revisional powers clause in the same petition. The 1973 Cr.P.C. limited the scope of revisional powers and excluded any interlocutory order from the scope of revisional jurisdiction. Limiting the scope of revision mean that the litigant now only had one remedy against those orders — inherent powers.
The above explanation only gives a partial answer to the increase in litigation seen invoking the inherent powers clause after the 1973 Code. I wonder whether there are other reasons as well, such as new kinds of offences which were brought on to the statute book after 1973 and also situational factors such as delays in final adjudication of cases. Perhaps it is of no coincidence that the spike in quashing cases tallies with the introduction of Section 498A on the Indian Penal Code, and the Supreme Court's recognition of criminal liability for retaining stridhan. All of which occurred together with steady increase in judicial delays that have marked the decades since the introduction of the 1973 Cr.P.C. [discussed elsewhere].
Is the 'Inherent Powers' Clause a Problem?
Section 561-A was added to address a specific problem — recognising that the Cr.P.C. was not exhaustive, and preventing situations resulting in injustice because courts had refrained from exercising powers which even the government thought that they had. One wonders, though, whether the clause which was initially seen as a stopgap measure has itself become a problem over time.
Litigants resort to the inherent powers clause to either challenge police action or judicial action. With the express recognition of writs under the Constitution in 1950, courts now had clear and established powers against executive action. In fact, there were decisions after 1950 recognising writ power to seek quashing of an FIR as well. In some cases against police actions like registration of an FIR, there was an invocation of Article 226 as well as Section 561-A / Section 482 of the Code. In respect of judicial action too, there came Article 227 of the Constitution which gave powers to a High Court concerning administration of justice in subordinate courts. Which then begets the question — why continue with the inherent powers clause when there was now an apparently clear remedy in law for the same action?
I also want to flag a different point. Since 1923, we have now had two full revisions (includes one revision and renaming) of the code of criminal procedure. There were also the significant revisions in 1955. During this time, the flow of litigation invoking the inherent powers clause solidified into some distinct areas. It shows to any reasonable person that some areas were unaddressed by existing provisions of the criminal procedure code, prompting invocation of the inherent powers clause. If it is so clear, why not add specific provisions to the criminal procedure code if you are going about amending it? Not only would it benefit litigants, it might even reduce the mountain of miscellaneous work brought upon High Courts because of the inherent powers clause.
Perhaps, if the next round of revisions to the criminal procedure law has a meaningful consultation process — defined as consultations not conducted only through submission of online forms the outcome of which is not determined by secret reports not been published even two years after the law was passed — some of these issues could be discussed and considered as well to improve the administration of justice and reduce the abuse of process of law.
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