New Delhi :The Supreme Court has said that judicial comity and judicial discipline demands that higher courts should follow the law, while setting aside Allahabad High Court's orders, which stayed the Enforcement Complaint Information Report (ECIR) and the FIRs lodged against Indiabulls Housing Finance Ltd and its top officers. The FIRs alleged that the financing company showed Shipra group as defaulters to misappropriate the properties owned by it through illegal means.
A bench comprising justices Bela M Trivedi and Prasanna B Varale said: “judicial comity and judicial discipline demands that higher courts should follow the law. The extraordinary and inherent powers of the court do not confer any arbitrary jurisdiction on the court to act according to its whims and caprice”.
“The impugned orders passed by the High Court being not in consonance with the settled legal position, the same deserve to be set aside and are hereby set aside”, it added, in a judgment delivered on February 13.
Justice Trivedi, who authored the judgment on behalf of the bench, said in our opinion, it’s a matter of serious concern that despite the legal position settled by this court in catena of decisions, the high court has passed the impugned orders staying the investigations of the FIRs and ECIR in question in utter disregard of the said settled legal position. “It hardly needs to be reiterated that the inherent powers under Section 482 of Cr.PC do not confer any arbitrary jurisdiction on the High Court to act according to whims or caprice”, said the bench.
The apex court said the high court had granted blanket orders restraining the arrest without the accused applying for the anticipatory bail under Section 438 of CrPC, in utter disregard to the settled position of law, and added, “the statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases”.
The bench noted that the high court, in a way, by passing such orders, stayed the investigations and restrained the agencies from taking any coercive measure against the accused pending the petitions under Section 482 CrPC.
The respondents’ counsel submitted that the allegations made in the FIRs are of civil nature, and have been given a colour of criminal nature. The counsel contended that a number of proceedings had ensued between the parties pursuant to the actions taken by the IHFL against the complainant-borrower for the recovery of its dues under the SARFAESI Act. The counsel added that the borrower M/s Shipra after having failed in the said proceedings had filed the complaints with ulterior motives.
However, the apex court said the orders passed by the high court are in utter disregard and in the teeth of the guidelines issued by the three-judge bench (Neeharika Infrastructure Pvt Ltd Vs State of Maharashtra and Others, 2021)".
"Without undermining the powers of the High Court under Section 482 of CrPC to quash the proceedings if the allegations made in the FIR or complaint prima facie do not constitute any offence against the accused, or if the criminal proceedings are found to be manifestly malafide or malicious, instituted with ulterior motive etc, we are of the opinion that the High Court could not have stayed the investigations and restrained the investigating agencies from investigating into the cognizable offences as alleged in the FIRs and the ECIR, particularly when the investigations were at a very nascent stage," the bench said.
The bench clarified that it has not expressed any opinion on the merits of the writ petitions which are pending before the high court, and that it would be open for the concerned respondents-accused to take all legal contentions or take recourse to the legal remedies as may be available to them in accordance with law.
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