The article analyses the recent suo motu action taken by Hon'ble Patna High in the matter of Pramod Saini v State of Bihar & others.[1] which was being considered as a crucial and positive step with respect to the recovery of money invested by the Investors. The action developed a ray of hope for Lakhs of innocent investors who invested their life's hard earned money in Sahara Group but couldn't get back their returns even after the expiry of its maturity period but the decision of Hon'ble Supreme court in Subrata Roy Sahara v. Pramod Kumar Saini And Ors.[2] by granting the stay on proceeding in the aforesaid matter had somewhere pushed the matter into abeyance.

Further, Apex Court also stated that act of initiating a suo moto Public Interest Litigation by the High Court Single Judge Bench would fall under the domain of Chief Justice of High Court.
The article tends to analyse the aforesaid case where such act of staying the proceedings is nothing but putting the interest of lakhs of innocent investors at stake in the name of exceeding jurisdiction of High Court. There are also some regulatory measures discussed that could have been taken care of to serve the ends of the justice. Further article discusses how the institution is empowered to pass any order if necessary to prevent the abuse of the process of court and to render complete justice.

In criminal Jurisprudence, the object of law is to protect society against criminal activities and wrongdoers. The purpose of criminal law is achieved by categorising wrongful activities as crimes and giving the offenders the prescribed punishment. In India, the criminal justice system is guided by the substantive law (Indian Penal Code, 1980) as well as the procedural law (code of Criminal procedure1973) and there is enough possibility of abuse of process while attaining these objectives even after application of law being provided by these codes. To address this concern section 482 was embodied into Cr.P.C to grant the high courts the Inherent powers with the motive of providing complete Justice to the citizens.

The justice is not only to be done for the accused but also for the victim and the society too. A judge does not preside over a criminal trial merely to see that no innocent man is punished, but also to see that the guilty man does not escape[3]. Both are the public duties which the Judge has to perform[4]. The Indian Judiciary with time has adopted various legal procedures to serve the institution of justice.

The Hon'ble courts have gone to the extent where they have taken suo motu cognizance of legal issues and had given speedy justice. The concept of suo motu has its genesis in epistolary jurisdiction which has emerged through judicial activism. The rationality behind the suo motu actions of the court is to deliver justice to everyone, even to the people who might not be able to afford it.

There is a proper need that Judges should adopt a proactive role in the administration of justice. The judges should also be sensitive enough to use their discretion in a manner that could serve the ends of justice. Keeping in view the pious purpose of Judiciary recently the Patna High Court took judicial notice of a news report published in TOI-Kolkata, that posed a caution against Nidhi firms operating in West Bengal but registered in Bihar and Jharkhand that were misappropriating public funds in the name of the bank. As a result, this Hon'ble Court intervened in all such cases, where it was alleged that these Nidhi businesses had vacuumed up about 5000 crore from the market despite not having a license to do so. The court had asked responses from the RBI and the ROC about these Nidhi firms' illegal activities.

Further, in this case the large number of complaints were made before the authorities under the Bihar Protection of Interest of Depositors (in Financial Establishments) Act, 2002 for non-payment of maturity amount by different entities of Sahara Group registered as NBFCs, Multi Purpose Cooperative Society etc. received by the authorities but the Sahara Group with the malafide intention evaded payment of maturity amount of the investors. Therefore, this Hon'ble court noticed Sahara Group and SEBI to refund the amount invested by the general public in different Sahara Group entities.

It was alleged by the complainants that even if they approach the local offices of Sahara Group for payment of the maturity amount on their investments in different schemes then, they are somehow or other forced to transfer their investment in a new scheme. The court on the several occasions directed the parties to refund the amount but even after repeated directions of the court, parties did not come up with intention to return the money of the investors.

It is pertinent to note that approx. Twenty-two hundred interlocutory applications were filed. Many poor persons having investment of Rs.10,000/-, 20,000/- etc. are the real aggrieved, who are not being paid the maturity amount.

Taking the seriousness of the matter into consideration and to ensure the ends of Justice the Hon'ble Patna High Court directed personal appearance of the chief of Sahara Group Subrata Roy to come with a plan for return of the investment of the investors. However, even after giving the several opportunities the accused did not chose to appear which resulted in the abuse of the process of the court and hence the court was left with no other option but to direct the authorities to produce him before the court.

It seems that it has become a recent trend where such Kingpins choose to make mockery of Judicial System by wilfully disobeying the orders of the courts and the same happened in the present case. Therefore, in such instances, to give effect to any of the orders that fall under Cr.P.C. the high court is empowered and fully justified in passing orders under section 482 to prevent such abuse of the process of court and serve justice to the aggrieved persons.

The High court ordered for the arrest of Subrata roy on May 13th in the morning and on the same day the Hon'ble Supreme Court entertained the Roy's special leave petition and stayed the proceedings against the Roy before the high court and later the Court held that the high court has clearly exceeded its jurisdiction in that regard. Accordingly, all observations made in the present case by the high court was stand effaced from record.

It was argued on behalf of the Respondent that citing an incorrect provision should not alter the High Court's decision whereby Justice Khanwilkar clarified that - "It is not wrong provision, it is wrong jurisdiction." He went on to state that a suo moto Public Interest Litigation, which is in the jurisdiction of the Chief Justice of the High Court, could not be commenced by the Single Judge of the High Court. As a result, the jurisdiction was exceeded in every way.

If we analyse the aforesaid order of the Hon'ble High Court vis a vis the scope of section 482, it is evident that there is no categorization in any legislationstating when the courts can take Suo motu cognizance because the scope of Suo motu action has not been defined by any legislation or act. However, if allocation of PIL are concerned there is no doubt that the Chief Justice of High Court plays a crucial role.

In the matter of Asok Pandey v. Supreme Court of India[5], regarding allocation of cases in the High Courts, the Court explained:
"The High Courts periodically publish a roster of work under the authority of the Chief Justice. The roster indicates the constitution of Benches, Division and Single. The roster will indicate the subject matter of the cases assigned to each bench. Different High Courts have their own traditions in regard to the period for which the published roster will continue, until a fresh roster is notified. Individual judges have their own strengths in terms of specialisation. The Chief Justice of the High Court has to bear in mind the area of specialisation of each judge, while deciding upon the allocation of work. However, specialisation is one of several aspects which weigh with the Chief Justice."

In State Of Karnataka And Others vs B. Krishna Bhat And Others[6] The Karnataka High Court opined that if any order is passed in a writ petition by a Single Judge of a High Court, who has competence to hear and dispose of a writ petition, but who was not allocated the subject portfolio by the Chief Justice, then the order is one without jurisdiction, but not one without inherent jurisdiction.

Such an order not being a void order, can only be challenged in appeal. If they are interim orders, they can also be challenged at the final hearing of the main petition. But a writ petition (PIL or otherwise) for a declaration that all such orders passed by a Single Judge in violation of allocation of judicial work, are illegal and unenforceable, is misconceived and not maintainable. In Naresh Shridhar Mirajkar v State of Maharashtra[7], the Supreme Court has held that the appropriate remedy against a judicial order is by way of appeal and not by a writ petition.

It is also pertinent to note that Judicial activism has advanced the idea of considering the objective of the Lord Hewartlaid the dictum that:
"Justice must not only be done, but must also be seen to be done". The above principle tends to be followed by Patna High Court where the Court went to an extent to secure the interest of public at large.

The High Court intervened by taking suo moto cognizance which aimed to secure the ends of justice. The Hon'ble Supreme Court in the case of Madhu Limaye v. State of Maharashtra[8] had laid down the following principles that would govern the exercise of the inherent jurisdiction of a High Court given by section 482:

1. The power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
2. It should be exercised very sparingly to prevent abuse of the process of any court or otherwise to secure the ends of justice;
3. It should not be exercised as against the express bar of the law engrafted in any other provision of the Code.

The need for inherent powers of the High Court under Section 482 was minutely explained in the case of State of Karnataka v. Muniswami:

1. To give effect to an order under CrPC
2. To prevent abuse of the process of the court
3. To secure the ends of justice

Further, where the High court finds that the non-interference shall result in abuse of process of court or failure of Justice, the High court would exercise its extraordinary jurisdiction under section 482 as it was held in case of Mathews Peter v. Asstt. Police Inspector[10]

Jurisdictional Issue:
While questioning the Jurisdiction of Patna High court in Pramod Saini v State of Bihar &others.[11] The Hon'ble Supreme Court stated that the court is not expressing the opinion that the High Court cannot pass such orders in exercise of power under other/relevant provisions of the law, but the same, definitely, cannot be done while exercising power under Section 438 Cr.P. C. in an application for anticipatory bail.

It is in case of Hajialisher v. State of Rajasthan[12] the court held that whether an application properly falls under section 438 Crpc or not is a matter to be decided in each case and no hard and fast rule can be laid down in the connection.

In Narinderjit Singh Sahni v. Union of India[13] Court has observed that it is difficult to conceive that an accused who is involved in thousands of cases in different parts of the country by cheating millions of country men can be given the benefit of the privilege of the anticipatory bail as a matter of routine. The supreme court further observed that the court itself was conscious of a peculiar situation and therefore had noticed that it was exercising its discretion in the peculiar nature and facts of the case.

Section 482 empowers the high court to entertain applications which are not contemplated by this code. In case of State Of Bombay V. Nilkanth Shripad Bhave[14] If the high court feels that ends of Justice require that order should be made in an application, although the application is not contemplated by the code, the high court will entertain the application, and make necessary orders to secure the ends of justice.
Under this jurisdiction, the court shall have the freedom to use its Judicial Discretion. Such discretionary power acts as claws to laws.

In case of Kamla Bai Gopalrao Jamdar V. CJM Gwalior[15] it was observed that A judge has to devise his own procedure, and mechanism, sometimes laying down his own guidelines to act and sometimes to take decisions where to nail the board, of course, within its four corners and as demanded by exigencies of situation. Exercise of discretionary powers vested in a court is not open to interference at the hands of a superior court so long as it is exercised reasonably, in good faith and on correct grounds.
In another judgment passed by the Hon'ble Supreme Court in the case of Popular Muthiah v. State[16], the jurisdiction of the High Court has been reiterated.

"In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammelled by procedural restrictions in that:

1. Power can be exercised suomotu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
2. Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed thereof.
3. It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can, inter alia, be exercised where:
   • The Code is silent,
   • The power of the court is not treated as exhaustive,
   • There is a specific provision in the Code, or
   • The statute does not fall within the purview of the Code because it involves the application of a special law.
   It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists.

To Prevent the Abuse of Process of Any Court
Judiciary is said to be a temple of justice that tends to ensure the trust and faith of citizens in our holy constitution. The principal role of the Judiciary is to safeguard the rights of the individual, and settle disputes in accordance with law. In the Present case Lakhs of common citizens who invested their hard earned money in Sahara group had a ray of hope from Hon'ble Patna High court in getting their invested money back and in pursuant of which the Single Judge Bench of the court took suo motu action by directing the parties to come up with the full proof plan to refund the innocent investor's money but after the stay on the proceeding by Hon'ble Supreme Court such investors somewhere had lost hope to receive their money back even in near future.

It seems that the Hon'ble court had overlooked its own decision in case of Subrata Roy Sahara v. Union of India[17], wherein it had stated:
"…One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his…"

In another case l. V. jadhav v. shankarrao abasaheb pawar & others[18] the supreme court had observed the inherent power of the High Court must be exercised sparingly and with circumspection when there is reason to believe that the process of law is being misused to harass a citizen.

Invoking section 482 Cr.P.C to ensure complete Justice:
An action taken by Hon'ble Patna High Court reminds us of a famous quote given by Justice J.S. Verma wherein he beautifully stated that "It must always be remembered that a step taken in a new direction is fraught with the danger of being a likely step in a wrong direction. In order to be a path-breaking trend it must be a sure step in the right direction. Any step satisfying these requirements and setting a new trend to achieve justice can alone be a New Dimension of Justice and a true contribution to the growth and development of law meant to achieve the ideal of justice".[19]

Even In case of State of Bombay v. Nilkanth Shripad Bhave[20], it was laid down that the High Court has the widest jurisdiction to pass orders to secure the ends of justice under Section 561A (as per the 1898 code) and that it can entertain applications thereunder (not though contemplated by the Criminal Procedure Code) and make the necessary orders to secure the ends of justice.

Way Forward and Regulatory Measures:
In the present case the apex court added that the role of the High Court was to decide on the anticipatory bail and not delve into the issue of returning the investments of the investors. It is disappointing to see that the Hon'ble Supreme court was much concerned about the Roy's grant of Anticipatory Bail rather than the concern of thousands of Investors who were awaiting for their returns.

Even if the Supreme court is Justified in passing such judgment and granting stay on the proceeding it would have been more appropriate if the court would have given certain directions to continue with proceeding and have aided the common investors to get their money back. However, the court didn't bother to provide insights as to what should be done for the recovery of money of Investors as the case has already been initiated by High Courts and important finding and observations had already been made. The supreme court rather giving direction to appropriate court and jurisdiction to proceed with the case chose to efface the observations made in the present case by the high court from the record.

It is pertinent to note that various regulatory measures could have been followed by the apex court while granting stay in the case Subrata Roy Sahara v. Pramod Kumar Saini And Ors[21] in order to grant the redressal to the aggrieved parties.

• The instant case where the cognizance has already been taken by the High Court, then setting aside the case would result in delay in delivery of justice and, at times, lead to miscarriage of the legal process.
• The stay on the High Court proceedings would have been fair enough when there had been an appointment of a panel/bench of judges that could have dealt with the case of economic offences done by the Sahara Group.
• The act of totally setting the case aside when the larger group interest is involved would weaken the belief of people in the judiciary and create doubt on judicial accountability and transparency.
• The proper mechanism must have been followed in order to get justice to the aggrieved people and settle their claims against the investment done in the Sahara Group. There must be proper interest added on the claims of the aggrieved people who had suffered a lot due to the delay in disposal of the case.

There is no iota of doubt that the Hon'ble Supreme Court has the final say on all matters relating to the administration of justice. The provisions of the Constitution provide the judiciary with the essential drive to determine the reason behind the judicial process. The extant legal literature demonstrates that a jurisprudence of inherent powers is established with the contribution of the Supreme Court and the High Courts.

However, the inherent authority of both these courts creates a kind of paradox. In many instances the Supreme Court displays dualism in respect of use of Inherent powers. It is evident that while interpreting the inherent powers of the High Courts the Supreme Court has always sounded cautioned and reserved about the use of inherent powers by high courts whereas the Supreme Court has always been dynamic while asserting its own inherent powers.

The inherent powers of the High court under section 482 of Cr.P.C is grounded on the concept of justice, equity and a good conscience which act as the bulwark on which the administration of justice is based. The section empowers the courts to do complete justice by invoking its inherent power. The High Court being the Constitutional Court has all the powers 'to do complete justice' as held by the Apex Court in the case of B.C. Chaturvedi Vs. Union of India[22].

Oliver Wendell Holmes Jr. once said: "This is a court of law, young man, not a court of justice." The underlying sarcasm behind the lines fuels the impulse of Judiciary to become courts of justice in true sense.

References:

1. CR. MISC. No. 8063 of 2021
2. SLP (Crl) No. 4877-78 of 2022
3. Justice Palok Basu, Law relating to protection of Human Rights under the Indian Constitution and allied laws, Allahabad: Modern Law Publication, 2011.
4. Supra note 2.
5. (2018) 5 SCC 341
6. ILR 2001 KAR 2030
7. 1966 SCR (3) 744
8. AIR 1978 SC 47
9. AIR 1977 SC 1489
10. (2002) 93 Cut LT 651
11. Supra note 1
12. 1976 Cri LJ 1658
13. AIR 2001 SC 3810
14. AIR 1954 Bom 65
15. 1990 Cr LJ 2550
16. (2006) 7 SCC 296
17. (2014) 8 SCC 470
18. 1983 AIR SC 1219
19. J.S. Varma, J, "New Dimensions of Justice", (1997) 3 SCC (Jour) 3
20. AIR 1954 Bombay 65 (FB)
21. Supra note 2.
22. AIR 11996 (SC) 484