Introduction

Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Sanhita or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is an obvious proposition that when a court has authority to make any order, it must also have power to carry that order into effect. If an order can lawfully be made, it must be carried out otherwise it would be useless to make it. The authority of the court exists for the advancement of the justice and if any attempt is made to abuse that authority so as to produce injustice, the court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the court exists, namely to promote justice and to prevent injustice.

Extend of the inherent powers of High Court

Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives no new powers but merely safeguards to existing powers possessed by the High Court. Section 528 comes into play only when the order impugned is passed by a court judicially, if the order has been passed by the Magistrate in his executive capacity, this section has no application. The High Court can pass orders under this section acting as a court. It can pass judicial order, an administrative direction is foreign to the purview and scope of the Section 528. The inherent powers of the High Court are preserved by Section 528 of the Sanhita are vested in it by “law” within the meaning of Article 21 of the Constitution of India. The procedure for invoking the powers is regulated by the rules framed by the High Court. The power to make such rules is conferred on the High Court by the Constitution of India. Section 528 does not prevail over general provision of law or of natural justice. When the order sought to be quashed is revisable, application under Section 528 does not lie. The High Court under Section 528 can go into the question whether where there is any kind of legal evidence.

Inherent Jurisdiction of the High Court

There are number of cases in which the inherent jurisdiction of the High Court could be exercised to quash the proceedings:

1.   where there is a legal bar against the institution or continuance of the proceedings.

2.   where the allegations in the first information or complaint do not constitute  the offence alleged and

3.   where either there is no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge.

The Supreme Court in Chilakamarthi Venkateswarlu & Another v. State of Andhra Pradesh & Another has reiterated that the plenary inherent jurisdiction of the High Court under Section 528 of BNSS may be exercised to give effect to an order under the Sanhita to prevent abuse of the process of the court and to otherwise secure the ends of justice.

The High Court may intervene under Section 528 of BNSS in cases where manifest error has been committed by the trial court in issuing process despite the fact that alleged acts did not constitute an offence. However, it must be stated that while exercising powers under Section 528 of BNSS, 2023, the High Court does not function as a court of appeal or revision. It was held in Zandu Pharmaceutical Works Ltd. v. Md. Sharaful Haque that Section 528 of BNSS, 2023 does not confer any new power on the High Court. It only saves the inherent powers while the court possessed before the enactment of the Code of 1973 (Code of Criminal Procedure)

In another case State of Punjab v. Kasturi Lal which is related to interference with the order framing charge. It was held that the scope of the inherent power of High Court under Section 528 regarding interference with the order framing is only limited and can be exercised only by way of exception, only to real and substantial justice.

Separate and independent power of the High Court

Section 528 of BNSS, 2023 confers a separate and independent power on the High Court in cases where grave and substantial injustice has been done or where the process of the court has been seriously abused. It is not merely a revisional power meant to be exercised against the order passed by the subordinate courts. The injustice must be grave and not trivial, clear and not even doubtful. Section 528 has a different parameter and is a provision independent of Section 438(2) of BNSS, 2023.

Section 438(2) of BNSS, 2023 applies to the exercise of revisional powers of the High Court. The scope, ambit and range of Section 528 is quite different from the powers under Section 438 of BNSS, 2023. The inherent powers under Section 528 can be exercised only when no other remedy is available and not where a specific remedy is provided by the statute. The power being an extra ordinary power has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency between these two provisions that is Section 528 and Section 438(2) of BNSS, 2023.

Law of Limitation

The powers under Section 528 of BNSS, 2023 are not subject to law of limitation. Delay cannot be allowed to stand in the way of exercise of inherent jurisdiction under Section 528. But where the party has been sleeping over his rights and has not filed appeal, inherent jurisdiction under Section 528 cannot be allowed to be invoked. The inherent powers under Section 528 are meant to be exercised for securing the ends of justice and not for interfering with the mere technicalities of law. The inherent powers under Section 528 cannot be exercised to perpetuate any injustice that is cannot be exercised to defeat the normal procedure or to exercise powers which have been taken away by the legislature in doubtful or trivial matters. In exercise of inherent powers under Section 528, the court cannot assume any new jurisdiction not vested by the statute. Article 131 of the Limitation Act, 1963 does not govern an application under Section 528. A plea not raised in the petition under Section 528 was allowed to be raised at the time of arguments.

Constitutional Aspect

When the High Court exercises powers under Section 528 of BNSS, 2023 to quash F.I.R. it is after the stage of framing of charge. When the High Court exercises powers under Article 226 of the Constitution, it is the stage prior to the framing of the charge. Under Article 226 of the Constitution, the High Court exercises its power with great circumspection in the rarest of the rarest case only where if on the basis of all the allegations made in the F.I.R. even if it be accepted to be true, no offence is made out against the accused. It is only in cases where the High Court finds that there is abuse of the process of any court or that is expedient in order to secure the ends of justice that resort can be had to Section 528. It is not what label is attached to the petition that matters. Whether it is a label of revision application under Section 438 or 440 of BNSS, 2023 or whether it is a label of Section 528 of the BNSS, 2023 or Article 227 of the Constitution of India, it is the power which the High Court exercises that has to be determined.

For Example – Where the F.I.R. does not disclose the commission of an offence, prosecution has stemmed from malice, the prosecution case suffers from absurdities, the High Court can interfere with investigation under Article 226 of the Constitution of India.

Application under Section 528 of BNSS, 2023 may be heard as a revision or appeal

If an application under Section 528 is found not maintainable on technical grounds, it may be heard and decided under the revisional jurisdiction to avoid multiplicity of proceedings and consequent delay in justice or may be heard as an appeal. There is no justification for converting the revision application into one under Section 528 for the ends of justice do not require so. But to secure the ends of justice, the High Court can convert a  revision application into one under Section 528 of BNSS, 2023.

Registration of F.I.R.

Court direct for registration of F.I.R. and investigation of the case. It was held that this order could not interfered with in a petition filed under Section 528 on behalf of prospective accused as he could not be given a right of hearing at that stage. Police refused to register F.I.R. in heinous crimes like murder, rape, dowry death etc. it will be proper to invoke jurisdiction under Section 528 despite alternative remedy available under Section 173(4) & Section 175(3) of the BNSS, 2023. However, where the Magistrate did not take cognizance of case, High Court under its inherent jurisdiction cannot direct Magistrate to take cognizance as complainant can file fresh complaint.

One of the judgment Father Thomas v. State of UP where Allahabad High Court Full Bench establishing that an order directing the police to register an F.I.R. and investigation under Section 175(3) BNSS, 2023 is an interlocutory order. Consequently, such orders are not revisable and the prospective accused has no right to be heard at this stage.

Quashing of F.I.R.

The F.I.R. would be quashed where it was lodged with the sole intention of harassing the respondent and enmeshing them in long arduous criminal proceedings. Where the commission of the offence is made out prima facie, the High Court cannot exercise its jurisdiction under Section 528 of BNSS, 2023 or under Article 226 of the Constitution of India to quash the complaint. The quashing of F.I.R. at the instance of third parties is unknown to law. The order of the High Court passed under Section 528 would be deleted in which the court direct the authority not to take adverse action against the petitioner.

In HDFC Securities Ltd. V. State of Maharashtra which is a landmark Supreme Court of India ruling confirming that High Court should not typically entertain petitions to quash F.I.R. (under Article 227 of Constitution of India or Section 528 BNSS, 2023) where the Magistrate has only ordered a police investigation under Section 175(3) of BNSS, 2023, finding such challenges premature before investigation concludes.

Complaint maintainability

Where applicant has remedy to file an appeal against an impugned order petition filed under Section 528 BNSS for setting aside the order of dismissal of complaint or its restoration would not be maintainable.

Quashment of Complaint

The complaint lodged against the accused would be quashed no specific, clear precise or pointed allegation was made against the accused and no case of rash or negligence on the part of accused could be made out.

Quashment of Proceedings

The proceedings would be quashed where the issue was of civil nature. In the case of G.N Verma v. State of Jharkhand, the Supreme Court of India held that the proceedings must be quashed against the appellant as there is no formal allegation in the criminal complaint as to the role of appellant as CGM. In this case the court held that quashment of proceedings on the basis of settlements of dispute between the parties of non-compoundable offence is permissible If the offence is entirely private in nature and does not affect public peace and such compromise would secure ends of justice.

Quashing of Criminal proceedings

No case against the accused was made out where the accused was not named by the decreased in her report as a person who insulted due to which the decreased committed before the police. The criminal proceedings against appellant would be quashed where the suit regarding ownership of land in question is yet to be finalized and no case made out against appellants for initiating any criminal proceedings. In a criminal case, the exoneration in departmental proceedings ipso facto would not lead to exoneration or acquittal and criminal proceedings cannot be quashed on this ground.

The Supreme Court of India in State of Haryana v. Bhajan Lal laid down the guidelines to be followed while exercising the inherent jurisdiction, to quash criminal proceedings by the High Court:

1.   Where the allegations made in F.I.R. or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie, constitute any offence or make out a case against the accused person.

2.   Where F.I.R. and other materials do not disclose a cognizable offence justifying any investigation by police or magistrate.

3.   Where the allegation in F.I.R./complaint do not constitute a cognizable offence but only a non-cognizable offence, no investigation is permitted by the police officer without an order of the magistrate under Section 174(2) of BNSS, 2023.

4.   Where the allegations in F.I.R./complaint are absurd and inherently improbable having no substantial ground for proceeding against the accused.

5.   Where there is an express legal bar engrafted in any provision of BNSS to institute and continue proceedings or where there is a specific provision in the Sanhita, providing efficacious redress for grievance of the aggrieved party.

6.   Where criminal proceedings mainly appear to attended with malafide and/or where proceedings are maliciously instituted with ulterior motive or to wreak vengeance on the accused with a personal grudge.

7.   Where the High Court feels that allowing the proceedings to continue would be an abuse of the process of the court or frustrate the ends of justice.

The court noted that ends of justice are higher than ends of mere law though justice has got to be administered according to laws made by the legislature. In furtherance of the aforesaid guidelines, the Supreme Court of India in State of M.P. v. Laxmi Narayan summarized the law on quashment of criminal proceedings under Section 528 of BNSS, 2023.

Quashment of Prosecution

In exercising the inherent power under Section 528 BNSS, the High Court may quash the prosecution even in offences which are non-compoundable. Even in cases where the offences with which the accused stand charged are non-compoundable, the High Court may quash the proceedings.

Quashment of Order

Order would be quashed where no part of the alleged acts were committed by the accused within the territorial jurisdiction of the court which had taken cognizance of the offences and passed the order. The order of taking cognizance would be quashed because only preparation of document under one’s own signature and writings by making false averments therein would not fall within the definition of forgery. Order of cognizance on the ground of non application of mind by the sanctioning authority cannot be assailed at initial stage of a criminal case that too while exercising its inherent jurisdiction under Section 528 of Sanhita where no offence was made out against the accused the cognizance of offence taken by the magistrate would be quashed. An order framing charge accused would be set aside where there was no prima facie case of the complainant against him.

Specific provisions cover such matters where inherent power not to be invoked

The inherent power of High Court under this section cannot be invoked in regard to matters which are directly covered by specific provisions of the Sanhita. The inherent power under Section 528 BNSS is not to be restored if there is a specific provision for redress of the grievance of the aggrieved party nor it should be exercised as against the express bar of the law engrafted in any provision of the Sanhita. If there is a legal bar against the institution and continuance of criminal proceedings in respect of an offence and the prosecution and the cognizance were in violation of that bar, it evidently involves an abuse of process justifying the exercise of the inherent power for quashment of the proceedings.

Inherent power to cancel bail interfere with orders relating to bail, custody etc.

The High Court has inherent power under Section 528 BNSS to cancel bail. Such power is to be exercised only when the ends of justice are put in jeopardy by the conduct of the accused.

Power to review its judgment under Section 528 (BNSS, 2023)

A Session Judge has no inherent powers to order review a judgment which has been pronounced and become final. A magistrate or any other subordinate criminal courts have no inherent power to recall an order made by him.

Once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no such provision in the Sanhita. But where the judgment or order passed is without jurisdiction or is delivered in violation of the principles of natural justice.

For Example - Without hearing the party, or it is obtained by an abuse of the process of the court, the High Court under its inherent powers can rehear the case and review its order.