QUASHING:

Quashing in a simple language would mean ceasing of the legal proceedings, which are taking place for a case. This stage can be held before the charge sheet is filed and right after the FIR is filed. However, proceedings can be quashed after filing of chargesheet but the Supreme Court frowns it upon.

Anticipatory Bail or Quashing First?
Anticipatory Bail or Quashing First?

The provision of quashing has been provided under section 482 of CrPC, which states that: 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.

Recently the Supreme Court has come up with some guidelines, which dictate the essentials while quashing of legal proceedings:

  1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognizes and preserves powers which inhere in the High Court;
  2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
  • In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
  1. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
  2. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
  3. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoit cannot appropriately be quashed though the victim or the family of the victim has settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
  • As distinguished from serious offences, there may be criminal cases, which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
  • Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavor may in appropriate situations fall for quashing where parties have settled the dispute
  1. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a 17 conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
  2. There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well being of the state have implications, which lie, beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanor. The consequences of the act complained of upon the financial or economic system will weigh in the balance.

 

ANTICIPATORY BAIL

Anticipatory bail has not been defined clearly in CrPC, however the provision still stands; the meaning of anticipatory bail is that if any citizen has a lucid belief that he can get arrested for something that he is not liable for then he can apply to sessions court for grant of anticipatory bail under section 438 of CrPC.

Anticipatory bail can be granted once the court has followed with the following factors:

  1. Gravity of offence
  2. Previous criminal record
  3. The possibility of accused fleeing

The purpose of any bail is on he assurance that the accused will show up for any of the court hearing in order to attain justice.

In case the FIR has been filed then the investigating officer will send a notice of arrest and the person receiving the notice should file for the anticipatory bail as soon as he gets the notice.

 

In case the FIR has not been filed the public prosecutor shall contact the officer in charge and the criminal lawyer can apply for a plea of the arrest notice to arrive at least before 7 days of arrest date.

The court can cancel the anticipatory bail due to its inherent powers especially if they have the strong belief that the justice might be interfered with.

In my view, one must apply for anticipatory bail unless on the face of it FIR seems to be abuse of process of law. But in practicality, Quashing takes time so don’t risk your arrest and apply for Anticipatory bail first. Even in Anticipatory Bail if FIR is not made out then you will also get bail very easily. Rest, you must take the free legal advice of top/best/expert Criminal Lawyer practicing in District Courts of Chandigarh Panchkula Mohali Derabassi Kharar and Punjab and Haryana High Court especially. 

This post is written by Jagriti Mahajan of Kurukshetra University (KU, 2021) Batch. Dial 99888-17966 for more info.

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