In a late evening direction on Tuesday, the Andhra Pradesh High Court ordered a stay on the investigation into a land deal in the state legislative capital Amaravati.

The court did not stop there. Accepting a plea by a former advocate general, against whom the first information report was registered, the High Court also gagged the media from reporting on the details of the case or its context.

“ way of interim relief, it is directed that no coercive steps shall be taken in furtherance to FIR.., which has been registered after filing of this writ petition against any of the accused.  The enquiry, investigation is also stayed.  It is further directed that the news in regard to registration of FIR or in the context of the said FIR shall not be made public in any electronic, print or social media, to foist the office of a former Advocate General and also with respect to the other alleged accused persons.”

In adherence with the High Court gag order, which in itself raises important questions of freedom of speech and media, will not report on the details of the case.

This article, however, will go into the legal aspects of Tuesday’s interim order to see whether it is in line with Supreme Court precedents.

Staying investigation

Whenever the police receive information about a cognisable crime – meaning one in which police do not require a warrant to make an arrest – the law mandates that a first information report be registered immediately.

On the question of a case registered in Patna relating to the death of Bollywood actor Sushant Singh Rajput being transferred to the Central Bureau of Investigation, the Supreme Court in August reiterated the legal position that when a cognisable crime is committed, a case has to be registered immediately without resorting to a preliminary enquiry.

This duty of the police to investigate is sustained even when there are questions over the jurisdiction of a particular police station. A police official cannot cite jurisdiction and decline to investigate the case.

However, can the High Court halt an investigation after a first information report has been filed?

The High Courts are also constitutional courts. The Constitution under Article 226 provides the High Courts extraordinary powers to pass any order to achieve the ends of justice. This apart, the Code of Criminal Procedure under Section 482 and Section 151 of the Civil Procedure Code gives the High Court powers to prevent the abuse of the process of any court under its jurisdiction,

The interlocutory applications by the former advocate general were moved under Section 151 of the Civil Procedure Code.

As a consequence, High Courts do have the powers to halt an investigation or a trial. But when can this power be exercised?

According to the Supreme Court, the High Court can invoke its extraordinary powers under Article 226 to stay an investigation if it feels this is necessary to protect the delivery of justice.

In Imtiyaz Ahmad vs State Of UP and others in 2012, the Supreme Court was aghast at the number of cases in the High Courts in which an investigation had been stayed but the cases stayed pending for a long time.

Explaining the importance of the power to halt and investigation, the Supreme Court said:

 “The authority of the High Court to order stay of investigation pursuant to lodging of FIR, or trial in deserving cases is unquestionable. But this Court is of the view that the exercise of this authority carries with it the responsibility to expeditiously dispose of the case. The power to grant stay of investigation and trial is a very extraordinary power given to High Courts and the same power is to be exercised sparingly only to prevent an abuse of the process and to promote the ends of justice.”   

There is no set standard for the term “abuse of process”. In the past, courts have stayed investigations for a variety of reasons, including a total mismatch between an alleged crime and sections of the penal code invoked in the FIR, malicious prosecution or complete lack of prima facie evidence.

For example, in June, the Delhi High Court stayed the investigation in a criminal case against journalist Vinod Dua after he alleged he was the victim of a political vendetta. The complaint had claimed that Dua spread fake news through misreporting the February communal violence in New Delhi.

The Supreme Court then put in place three important guidelines on how cases in which an investigation is stayed should proceed:

  • “(i) such an extraordinary power has to be exercised with due caution and circumspection;
  • (ii) Once such a power is exercised, High Court should not lose sight of the case where it has exercised its extraordinary power of staying investigation and trial; and
  • (iii) High Court should make it a point of finally disposing of such proceedings as early as possible but preferably within six months from the date the stay order is issued.”

In Tuesday’s order, the Andhra Pradesh High Court issued notices to the state government agencies and adjourned the matter by four weeks.

When the proceedings resume, it is likely that the state government would argue against sustaining the stay over the investigation and dispute any claim of the case being exceptional just because it has been registered against a former senior government law officer.

Further, while the petitioner chose to move the High Court with a writ petition under Article 226 for quick relief, other remedies such as quashing an FIR or discharge from a case are usually available only in later stages in a criminal proceeding.

Gag order

Apart from the extraordinary decision to stay the investigation into the case, the High Court also gagged the media, including social media, from reporting the FIR or the context of the FIR.

As explained in this piece in on Wednesday, the Supreme Court has repeatedly held that prior-restraint orders – in which a court takes action against material even before it is published or broadcast – can only be issued in exceptional cases where the danger to the delivery of justice is real and imminent. Such orders cannot be sustained in a casual manner as they affect the precious right to freedom of expression, which includes the freedom of press.

In the Andhra Pradesh case, not only had many media publications already reported the contents of the FIR by the time the High Court gagged them, the court did not even consider it necessary to elaborate on why it felt such a gag order was necessary and how media reporting would affect the case.