There isn't a lawyer in India prepared to say that if you run your life cleanly, you will never have a criminal case slapped on you. In "Shoot the Dissident" (Businessworld April 20th, 2007), we examined how the CEO of a major publishing house was dragged before a criminal court simply because a biographer expressed views on warrior king Shivaji different from those of a political party. Recently, in "Neo conservative Backlash" (Businessworld July 20th, 2007), we spoke not just of the manner in which renowned artist M.F.Hussain had been hounded for painting nudes but also how Richard Gere's antics with Shilpa Shetty at an AIDS awareness campaign had triggered a spate of criminal cases against them. At the heart of both these pieces was the same problem: anyone who can pay a lawyers fee can file a criminal case in India without worrying about the consequences and once a case is filed, our national demand that "the law must take its own course" is patently unjust. Does the law have a shortcut for a person false accused to avoid a prolonged and debilitating trial before he is let off the hook?

The answer is both yes and now. Allow me to explain. The framers of the Code of Criminal Procedure were aware that all cases are not bona fide and addressed the issue by inserting Section 482 in that law thus:

"Nothing in this code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this code, or to prevent the abuse of the process of any court or otherwise to secure the ends of justice".

Lawyers have long used this provision to directly approach a High Court to quash a false criminal case. The problem is that over the years, every accused of means has used this provision to stall criminal investigations. An FIR would be registered at the local police station and bang, it would be before the High Court in a 482 action. It was great stonewalling especially in cases of political persecution where the anti incumbency factor ensures that accused and prosecutors swap places every five years after every election!

Courts became weary of both the shenanigans and the workload and as the law developed, courts started to take the view that in examining any criminal prosecution, a High Court would not substitute its jurisdiction for that of a police officer investigating a crime or a trial court looking at a criminal complaint. If the High Court would not go behind the case and look at the facts, what would it look at? In a celebrated case of political vendetta between the two Haryana strong men Devi Lal and Bhajan Lal, reported as State of Haryana v Bhajan Lal [1992 Suple(1) SCC 335], the Supreme Court said that a High Court could quash a criminal prosecution "where the allegations made in the First information Report 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".

This is a harsh test. What does it take to fulfill every ingredient of a crime? If an FIR accusing someone of murder is filed, what is the evidence to back up the crime? Generally, the evidence at this stage would be little more than the statement of a witness to the murder perhaps or a dead body and an investigating officer's finding that three weeks previously, the accused and the deceased had fought and one had publicly threatened to kill the other. Criminal cases, in police stations or directly before a magistrate, can be launched on little more than a sworn testimony of a complainant or witness. Only a very dumb lawyer will file a case that doesn't even meet the bear essential ingredients of a crime. Net, net, what does the 482 jurisdiction then come down to?

The answer is obvious. In the last ten years or so, while every accused who can afford it, continues to try his luck with a 482 quash action against a false complaint, success rates are abysmal. Twenty years ago, if you told your lawyer that someone had filed a false criminal case, he would ask you to go to the High Court under 482. Not any more: today he will ask you to get anticipatory bail first.

Many lawyers have long believed that the Bhajan Lal case has been too strictly construed in many subsequent judgments because there were other observations of the Supreme Court that went against the grain thus:

"Where a criminal proceeding is manifestly attended with mala fide and/or where; the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

This is one part of the Bhajan Lal judgment that did not receive the attention it deserved. On the face of it, a FIR is not likely to record that the complainant had ulterior motives or mala fide intentions! How would a High Court ever quash a false compliant on this criterion without looking at extraneous facts?

Fortunately, early in July 2007, the Calcutta High Court took a refreshingly practical view of this specific test in the case of Lord Swraj Paul versus State of West Bengal (CRR 1224 of 2005). The case arose out of a situation where a 20% shareholder of an Indian Caparo group company - one Jindal - allotted shares to his group companies in his capacity as Chairman of the Board under a joint venture arrangement with the Caparo Group and then claimed several years later that this Jindal group company was not a part of the Jindal group at all. In response, since the Articles of the Company did not permit anyone but the Jindal and Caparo group to own shares in the joint venture company, the Indian Caparo group company cancelled this share allotment. Jindal responded by filing a criminal case accusing the owners and managers of the Indian joint venture company of fabricating documents, fraud, misappropriation and so forth. The accused took it to the Calcutta High Court. 

If the Bhajan Lal case was to be narrowly followed and all allegations made in Jindal's complaint assumed to be true, it is debatable what the accused would have achieved. But the court decided to look at the totality of the circumstances and this is what it saw.

"Jindal allots shares to a company he owned but this company later claims it was not a Jindal company in order to help Jindal in another case. Prima facie, the allotment of shares was contrary to Articles and illegal; "Jindal and his group company had fought on the same facts before the High Court and the Company Law Board and not breathed a word about the crime. This belated realization that they were victims of a crime was not credible; "Legally, the company's action of cancelling a share allotment contrary to Articles was defensible; it certainly wasn't a crime.

On this basis, the court held that the ingredients of an offense were not made out in the police complaint.

False cases are by their very nature attended by mala fides and ulterior motives. These intentions are impossible to ascertain without examining facts outside the compliant. What is important in this judgment is that the court accepted this obvious fact and proceeded on it. No doubt, the loser will give the Supreme Court an opportunity to review the High Court decision. Let us see what it has to say.

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The author is managing partner of the Gurgaon-based corporate law firm N South  and author of the pioneering business book, Winning Legal Wars. He can be contacted at rcd@nsouthlaw.com.