Article 32 of the Constitution of India gives power to the Hon'ble Supreme Court of India to issue certain writs in the process of protecting and upholding the fundamental rights of any person or citizen, as the case may be, enshrined under Part - III of the Constitution. In the celebrated case of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., 1992 AIR 604, Hon'ble Supreme Court has held that High Courts, in the exercise of the extra-ordinary powers under Article 226 of the Constitution or the inherent powers under Section 482 of the Code of Criminal Procedure, may quash the FIR and subsequent criminal proceedings emanated therefrom in certain cases either to prevent abuse of the process of any Court or otherwise to secure ends of justice. It is a settled position of law that Hon'ble High Courts can exercise such powers without any restriction and limitation but can Hon'ble Supreme Court also exercise such powers under Article 32 of the Constitution?
In a recent case of Arnab Ranjan Goswami Vs. Union of India & Ors., (2020) 14 SCC 12, Hon'ble Supreme Court quashed multiple FIRs, filed against the Petitioner, arising from the same television show and pending at places other than Mumbai but refused to exercise jurisdiction Under Article 32 of the Constitution for the purpose of quashing the basic FIR registered at Mumbai. In this case, Hon'ble Supreme Court has held that,
"39. A litany of our decisions - to refer to them individually would be a parade of the familiar - has firmly established that any reasonable restriction on fundamental rights must comport with the proportionality standard, of which one component is that the measure adopted must be at least restrictive measure to effectively achieve the legitimate State aim. Subjecting an individual to numerous proceedings arising in different jurisdictions on the basis of the same cause of action cannot be accepted as the least restrictive and effective method of achieving the legitimate State aim in prosecuting crime. The manner in which the petitioner has been subjected to numerous FIRs in several States, besides the Union Territories of Jammu and Kashmir on the basis of identical allegations arising out of the same television show would have no manner of doubt that the intervention of this Court is necessary to protect the rights of the petitioner as a citizen and as a journalist to fair treatment (guaranteed by Article 14) and the liberty to conduct an independent portrayal of views. In such a situation to require the petitioner to approach the respective High Courts having jurisdiction for quashing would result into a multiplicity of proceedings and unnecessary harassment to the petitioner, who is a journalist.
"57. We hold that it would be inappropriate for the Court to exercise its jurisdiction under Article 32 of the Constitution for the purpose of quashing FIR No. 164 of 2020 under investigation at N.M. Joshi Marg Police Station in Mumbai. In adopting this view, we are guided by the fact that the checks and balances to ensure the protection of the petitioner's liberty are governed by the CrPC. Despite the liberty being granted to the petitioner on 24-4-2020, it is an admitted position that the petitioner did not pursue available remedies in the law, but sought instead to invoke the jurisdiction of this Court. Whether the allegations contained in the FIR do or do not make out any offence as alleged will not be decided in pursuance of the jurisdiction of this Court under Article 32, to quash the FIR. The petitioner must be relegated to the pursuit of the remedies available under the CrPC, which we hereby do. The petitioner has an equally efficacious remedy available before the High Court. We should not be construed as holding that a petition under Article 32 is not maintainable. But when the High Court has the power Under Section 482, there is no reason to by-pass the procedure under the CrPC, we see no exceptional grounds or reasons to entertain this petition under Article 32. There is a clear distinction between the maintainability of a petition and whether it should be entertained. In a situation like this, and for the reasons stated hereinabove, this Court would not like to entertain the petition under Article 32 for the relief of quashing the FIR being investigated at N.M. Joshi Police Station in Mumbai which can be considered by the High Court. Therefore, we are of the opinion that the petitioner must be relegated to avail of the remedies which are available under the CrPC before the competent court including the High Court."
Law, relating to the quashing of FIR and criminal proceedings under Article 32 of the Constitution, laid down by the Hon'ble Supreme Court in the case Arnab Ranjan Goswami (supra) is not complete law, in order to understand the complete law on the aforesaid subject, a catena of judgments is required to be referred here.
In another recent judgment of Hon'ble Supreme Court in the case of Amish Devgan Vs. Union of India & Ors., (2021) 1 SCC 1, Hon'ble Court did not refuse to entertain the petition at the threshold but proceeded to consider the issues on merits and finally declined the prayer made by the petitioner for quashing of the FIRs. In this case, Hon'ble Supreme Court has held that,
"118. We respectfully agree with the aforesaid ratio. Oridinarily we would have relegated the petitioner and asked him to approach High Court for appropriate relief, albeit in present case detailed arguments have been addressed by both sides on maintainability and merits of the FIRs in question and, therefore, been dealt with by us and rejected at this stage. We do not, in vies of this peculiar circumstance, deem it appropriate to permit the petitioner to open another round of litigation; therefore, we have proceeded to answer the issues under consideration."
Hon'ble Supreme Court, in numerous cases, was pleased to quash the concerned FIRs while exercising jurisdiction under Article 32 of the Constitution of India.
In the case of Priya Prakash Varrier and Ors. Vs. State of Telangan & Anr., (2019) 12 SCC 432, Hon'ble Supreme was pleased to quash FIR exercising power under Article 32 of the Constitution. This decision was rendered by a Three Judge Bench of the Hon'ble Supreme Court was in the context of right claimed under Article 19(1)(a) of the Constitution, where the offence alleged was one under Section 295-A of the IPC. Apart from quashing the FIR, the Hon'ble Court directed that no FIR or complaint should be entertained against the petitioners because of the picturisation of the concerned song.
While quashing the FIR, Hon'ble Court relied upon the dictum of the Constitution Bench in Ramji Lal Modi Vs. State of U.P., AIR (1957) SC 620, in which constitutional validity of Section 295-A of IPC was assailed before the Hon'ble Supreme Court and it was held that,
"8. It is pointed out that Section 295-A has been included in Chapter XV, Penal Code which deals with offence relating to religion and not in Chapter VIII which deals with offences against the public tranquility and from this circumstance it is faintly sought to be urged, therefore, that offences relating to religion have no bearing on the maintenance of public order or tranquility and consequently a law creating an offence relating to religion and imposing restrictions on the right to freedom of speech and expression cannot claim the protection of clause (2) of Article 19. A reference to Articles 25 and 26 of the Constitution, which guarantee the right to freedom of religion, will show that the argument is utterly untenable. The right to freedom of religion assured by those articles is expressly made subject to public order, morality and health. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order on that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order. Those two articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order."
"9. The learned counsel then shifted his ground and formulated his objection in a slightly different way. Insults to the religion or the religious beliefs of a class of citizens of India, may, says the learned counsel, lead to public disorders in some cases, but in many cases they may not do so and, therefore, a law which imposes restrictions on the citizen's freedom of speech and expression by simply making insult to religion an offence will cover both varieties of insults i.e. those which may be said to have been enacted in the interest of public order within the meaning of clause (2) of Article 19, but insofar as it covers the remaining variety will not fall within that clause. The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void. We are unable, in view of the language used in the impugned section, to accede to this argument. In the first place clause (2) of Article 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression "in the interest of public order", which is much wider than "for maintenance of" public order. If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot be held to be law imposing reasonable restriction "in the interest of public order" although in some cases those activities may not actually lead to a breach of public order. In the next place Section 295-A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of clause (2) of Article 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Article 19(1)(a). Having regard to the ingredients of the offence created by the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution. In other words, the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Article 19(1)(a) and consequently the question of severability does not arise and the decisions relied upon the learned counsel for the petitioner have no application to this case."
"12. In Mahendra Singh Dhoni v. Yerraguntla Shyamsundar (2017) 7 SCC 760, the justification for the registration of an FIR under Section 295-A had come up for consideration before this Court. Appreciating the act done by the petitioner therein, the Court quashed the FIR for an offence under Section 295-A IPC.
In the celebrated case of Romesh Thappar Vs. The State of Madras, 1950 SCR 594, a Constitution Bench of the Hon'ble Supreme Court dealt with the preliminary objection that instead of entertaining a petition under Article 32 of the Constitution, the petitioner be asked to approach the High Court under Article 226 of the Constitution, wherein it was held that,
"The Advocate-General of Madras appearing on behalf of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under Article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. He contended that, as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter. He cited criminal revision petitions under section 435 of the Criminal Procedure Code, applications for bail and applications for transfer under section 24 of the Civil Procedure Code as instances where, concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade, a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court. He referred to Emperor v. Bisheswar Prasad Sinha, where such a rule of practice was enforced in a criminal revision case, and called our attention also to certain American decisions Urquhart v. Brown and Hooney v. Kolohan, as showing that the Supreme Court of United States ordinarily required that whatever judicial remedies remained open to the applicant in Federal and State Courts should be exhausted before the remedy in the Supreme Court - be it habeas corpus or certiorari - would be allowed. We are of opinion that neither the instances mentioned by the learned Advocate-General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this Court, as article 226 does on the High Court, to issue certain writs for the enforcement of the rights conferred by Part III of for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction. Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of the fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights. No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point."
The aforesaid dictum was followed by another Constitution Bench of Hon'ble Supreme Court in Daryao and Ors. Vs. The State of U.P., (1962) 1 SCR 574, wherein it was held that,
"There can be no doubt that the fundamental right guaranteed by Art. 32(1) is a very important safeguard for the protection of the fundamental rights of the citizens, and as a result of the said guarantee this Court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country. The fundamental rights are intended not only to protect individual's rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself. It is because of this aspect of the matter that in Romesh Thappar v. The State of Madras, in the very first year after the Constitution came into force, this Court rejected a preliminary objection raised against the competence of a petition filed under Art. 32 on the ground that as a matter of orderly procedure the petitioner should first have resorted to the High Court under Art. 226, and observed that "this Court in this constituted the protector and guarantor of the fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights."
In Jagisha Arora Vs. State of Uttar Pradesh and Anr., (2019) 6 SCC 619, Hon'ble Supreme Court entertained a petition under Article 32 of the Constitution against an order of remand passed by the jurisdictional magistrate despite the objection that the order must be challenged in accordance with the provisions of the Code, wherein it was held that,
"5. As a matter of self-imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22-6-2019 which means that the petitioner's husband Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media."
"6. We are not inclined to sit back on technical grounds. In exercise of power under Article 142 of the Constitution of India this Court can mould the relief to do complete justice."
Thus, the practice of directing that the High Court be approached first even in cases of violation of fundamental rights, is more of a self-imposed discipline by the Hon'ble Supreme Court; but in glaring cases of deprivation of liberty, Hon'ble Court has entertained petitions under Article 32 of the Constitution. We may, at this stage, also notice the following observations made in Union of India Vs. Paul Manickam & Anr., (2003) 8 SCC 342,
"22. Another aspect which has been highlighted is that many unscrupulous petitioners are approaching this Court under Article 32 of the Constitution challenging the order of detention directly without first approaching the High Courts concerned. It is appropriate that the Hugh Court concerned under whose jurisdiction the order of detention has been passed by the State Government or Union Territory should be approached first. In order to be shown by the petitioner as to why the Hugh Court has not been approached, could not be approached or it is futile to approach the High Court. Unless satisfactory reasons are indicated in this regard, filing of petition in such matters directly under Article 32 of the Constitution is to be discouraged."
In a very recent judgment delivered by a Division Bench of Hon'ble Supreme Court in the case of Vinod Dua Vs. Union of India & Ors., Hon'ble Court quashed the FIR filed against a renowned journalist under Sections 124A, 268, 501 and 505, of the IPC, 1860 exercising power under Article 32 of the Constitution, wherein it was held that,
"25. We have therefore considered the instant case in the light of the principles emanating from all the aforementioned decisions.
Apart from the fact that right claimed by the petitioner is one under Article 19(1)(a) of the Constitution which was in the forefront in Romesh Thappar, Priya Prakash Varrier, Jagisha Arora and Amish Devgan in our view, the second prayer made by the petitioner can effectively be considered only in a writ petition. Going by the nature of the second prayer, relegating the petitioner to file a petition under Article 226 of the Constitution, may not be appropriate. Rather, the issue must ideally be settled by this Court. Consequently, we do not accept the preliminary objection raised by the respondents and we proceeded to deal with the merits and consider the matter with respect to both the prayers."
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