Can a High Court Permanently Restrain Arrests or FIR Registration?

A Study of Judicial Limits and Constitutional Balance

The High Court’s power to intervene in criminal proceedings is both extraordinary and constitutionally entrenched, deriving from Article 226 of the Constitution of India and Section 482 of the Criminal Procedure Code (CrPC) — now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). These provisions, rooted in the guarantee of personal liberty under Article 21, empower the judiciary to act against arbitrary or abusive police action. While the BNSS replaces the CrPC as part of India’s 2023 criminal law overhaul, it retains core procedural safeguards while modernizing structure and terminology. Against this backdrop, the High Court serves as a vital constitutional check — but its powers are not without limits.

While these provisions empower the High Court to act as a vital check against the misuse of state authority—especially in cases of politically motivated or malicious prosecution—they do not extend to granting blanket or permanent immunity from investigation or arrest. Such an order would violate the foundational principle of Indian criminal jurisprudence and amount to judicial overreach, encroaching upon the police’s statutory duty to investigate cognizable offences.

Legal Foundation and the Quashing Exception – Article 226 and Section 528 BNSS:

High Courts primarily exercise their power to restrain police action under two headings:

Extraordinary Jurisdiction (Article 226) and Inherent Powers (Section 482 CrPC, now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 – BNSS):

The High Court can issue directions “to secure the ends of justice” or “to prevent the abuse of any process of the court.” The most far-reaching protective measure available is the quashing of the First Information Report (FIR) itself.

Bhajan Lal Parameters:

The parameters for quashing were definitively set in State of Haryana v. Bhajan Lal (1992). This landmark ruling established that FIRs can be quashed only in exceptional circumstances, such as when the allegations, even if taken at face value, do not constitute a cognizable offense, or where the proceeding is manifestly malicious and instituted with an ulterior motive.

Key Distinction: When an FIR is quashed, the entire criminal proceeding is terminated. This constitutes a de facto permanent restraint on both investigation and arrest because the legal basis for police action ceases to exist. This is the only permissible way for a court order to result in permanent immunity.

The Prohibition on Blanket Immunity:

The Supreme Court has strictly delineated the boundaries of interim judicial intervention, reinforcing the illegality of permanent restraint orders:

The Anti-Interference Mandate (M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, 2021):

This pivotal judgment clarified that a High Court cannot pass a general or blanket order restraining the arrest or a direction of ‘no coercive steps’ that interferes with the police’s statutory duty to investigate. In this case, the Supreme Court unequivocally held that High Courts should refrain from issuing blanket orders restraining investigation or arrest, as such interference amounts to judicial overreach.

Conditional Liberty vs. Permanent Immunity (Sushila Aggarwal v. State (NCT of Delhi), 2020):

Even the statutory relief of Anticipatory Bail under Section 438 CrPC, now Section 482 of BNSS, which offers protection from arrest, is not permanent immunity. The Sushila Aggarwal ruling held that the protection granted need not be limited to a fixed period and can extend until the conclusion of the trial. However, this liberty is conditional: the bail order can be modified, limited, or cancelled by the court upon a change in circumstances or breach of conditions. It remains a form of enduring interim relief, not an absolute, permanent legal shield.

Case Study: The Suvendu Adhikari Orders:

The following sequence of judicial orders exemplifies how courts navigate between safeguarding liberty and preserving the investigative process:

This case demonstrates that while a High Court can issue an exceptional, conditional interim order restraining fresh FIRs to prevent political vendetta (as Justice Mantha did), that order is inherently unstable and cannot be permanent. It must ultimately be vacated or confirmed by the final judgment on the quashing petition.

Judicial Restraint vs Judicial Activism – A Constitutional Balancing Act:

The debate between judicial restraint and judicial activism lies at the heart of constitutional adjudication. In criminal matters, restraint emphasizes deference to the legislature and executive, especially in investigative functions. Activism, on the other hand, empowers courts to intervene when state action threatens fundamental rights.

In the context of FIR registration and arrest, judicial restraint cautions against interfering with the statutory mandate of the police under Section 154 CrPC (now Section 173 BNSS), while judicial activism justifies intervention where the process itself is weaponized — as in cases of political vendetta or malicious prosecution. The Supreme Court’s evolving jurisprudence reflects a calibrated activism: protective, but not paralyzing.

This balance is constitutionally anchored in Article 21 (right to life and personal liberty) and Article 226 (writ jurisdiction), which empower courts to act as guardians of liberty without usurping executive functions.

Comparative Norms – UK and US Approaches to Police Investigation and Judicial Oversight:

A comparative glance reveals that India’s judicial oversight of police action is more interventionist than in many common law jurisdictions:

• United Kingdom: Courts generally avoid interfering with police investigations unless there is a clear breach of statutory duty or human rights. The Police and Criminal Evidence Act 1984 (PACE) governs police powers, and judicial review is available only in cases of procedural impropriety or irrationality.
• United States: The Fourth Amendment protects against unreasonable searches and seizures, but courts rarely restrain investigations preemptively. Judicial intervention typically occurs post-arrest, through motions to suppress evidence or habeas corpus petitions. The doctrine of qualified immunity also shields law enforcement from civil liability unless constitutional violations are clearly established.

India’s High Courts, by contrast, wield proactive writ jurisdiction under Article 226, allowing them to quash FIRs or restrain coercive steps even before trial — a reflection of the Indian judiciary’s rights-centric ethos and its role as a counterweight to executive excess.

Conclusion:

While the High Court wields extraordinary powers under Article 226 and Section 528 BNSS to safeguard personal liberty and prevent abuse of process, it cannot grant blanket or permanent immunity from investigation or arrest except through the narrow route of quashing an FIR under the Bhajan Lal principles. Judicial intervention must remain situational and proportionate, ensuring that liberty is protected without disabling lawful investigation. As seen in the Suvendu Adhikari case, interim restraints may be justified to prevent political misuse of state machinery, but they are inherently temporary and subject to review. Ultimately, the judiciary must act as a constitutional shield against executive overreach—guarding rights without paralyzing justice.