Can the Supreme Court under Article 32 of the Constitution club FIRs against an accused?

During the course of arguments in the Arnab Goswami case, a suggestion also came that the Court may allow clubbing/consolidation of FIRs lodged in different jurisdictions.
Supreme Court ordered Clubbing of FIR in Arnab Goswami's petition
Supreme Court ordered Clubbing of FIR in Arnab Goswami's petition

Republic TV's Editor-in-Chief Arnab Goswami recently anchored a show on the unfortunate killings of two Hindu monks, which happened in the presence of the state police in Maharashtra.

While doing so, he questioned the chief of a national political party on her silence. On his tone and tenor, the supporters of the political party came forward. At least 16 FIRs/complaints of defamation and incitement of violence came to be lodged against Goswami in various jurisdictions across the country for the same.

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Yesterday, Goswami approached the Supreme Court under Article 32 of the Constitution vide a criminal writ petition seeking, among other reliefs, quashing of the FIRs.

After a detailed hearing, the Supreme Court Bench led by Justice DY Chandrachud today issued notice to the states and granted Goswami three weeks' interim relief from arrest/coercive steps, so that he may approach the high court/trial court for bail in anticipation of arrest.

Except for one FIR filed in Nagpur, the Bench also stayed further proceedings in all other FIRs.

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Interestingly, during the course of arguments in the case, a suggestion also came that the Court may allow clubbing/consolidation of FIRs lodged in different jurisdictions.

The Court thus granted leave to amend the petition with an alternate prayer for consolidation of all FIRs/criminal complaints for being investigated at the same place.

Let us parachute to the moot question: Can the Supreme Court, under Article 32 of the Constitution, club FIRs against an accused lodged in different jurisdictions?

We must, at this junctur,e note that it is trite law of criminal jurisprudence that investigation cannot run at the behest of the accused [Romila Thapar v Union of India, in which Justice Chandrachud had dissented]. An accused cannot be permitted to take control of the investigation by choosing from where should he be investigated.

In fact in Narender G Goel v. State of Maharashtra, the Supreme Court went upto the extent of holding that it is well settled that the accused has no right to be heard at the stage of investigation. Transfer of investigation from other jurisdictions to one jurisdiction at the behest of the accused will overturn the entire criminal jurisprudence and will open up a Pandora’s box.

Apart from statutory provisions contained in the Code of Criminal Procedure (CrPC), we find our answer in three judgments – VK Sharma v. Union of India, Narinderjit Singh Sahni and Anr v. Union Of India, and State of Punjab v. Rajesh Syal.

In VK Sharma, a two-judge bench of the Supreme Court, while hearing a writ petition under Article 32 of the Constitution and rejecting the request to consolidate all pending cases across the country into one, granted liberty to the petitioner to approach respective High Courts to bring in all pending cases within its territorial jurisdiction to one court.

In Narinderjit, the Supreme Court held that each individual transaction which has been brought about by the allurement of the financial companies, must be treated as a separate transaction. This, for the reason that the investors/depositors are different; the amount of deposit is different, and; the period when which the deposit was effected is also different.

In Rajesh Syal, proceedings were initiated in different courts, but the High Court in its jurisdiction u/s 482 CrPC, while relying on the decision in VKSharma, transferred all pending cases in the state of Punjab to a Special Judicial Magistrate.

Against this order, the State of Punjab approached the Supreme Court. A 3-judge bench of the Supreme Court observed that the High Court had mechanically followed the decision in VK Sharma and observed that the said order is not in accordance with law and should not be treated as a precedent.

It further observed that although the Supreme Court has ample powers under Article 142(1) of the Constitution, the same cannot be exercised contrary to law. It concluded that the decision in VK Sharma, not being under Article 142, the order to direct the applicant to file applications for consolidation of cases pending in different courts to be tried in a single court was not in accordance with law. VK Sharma was thus expressly overruled.

Therefore, apart from a direct order against consolidation/clubbing of FIRs by the Supreme Court under Article 32 of the Constitution, there is a 3-judge bench decision which holds that a direction in the form of liberty to the accused to approach respective High Courts for consolidation of FIRs to be tried in one single court within such states in its jurisdiction is also not in accordance with law.

If at all the Supreme Court wishes to do so, the issue has to be referred to a larger bench, as a two-judge bench is bound by the decision in Rajesh Syal. The Supreme Court has to tread cautiously on this, as there are many cases pending across the country involving cheating to multiple investors nationwide. If at all the law is to be interpreted differently, the factors including strain on witnesses, investigating agencies etc have to be weighed in.

Interestingly, there are precedents where the Supreme Court, in its transfer jurisdiction u/s 406 CrPC, has consolidated and clubbed FIRs to be tried at one single place. It is debatable that if the same can be done under a provision of the CrPC, why can't it be constitutionally exercised?

Quashing of FIR by directly approaching the Supreme Court under Article 32, however, stands permissible by virtue of the two-judge bench decision in Amitbhai Anilchandra Shah.

Nevertheless, this is an extremely sensitive issue where civil liberties of a citizen collide with the powers of the state as an interrogator. The Supreme Court must tread cautiously.

The author is an Advocate on Record at the Supreme Court. He acknowledges research support given by Arushi Dhawan, final year student at School of law, Jindal Global University.

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