Muthiah Vs. State  Insc 361 (4 July 2006)
Sinha & P.P. Naolekar
APPEAL No. 108 OF 2003 S.B. SINHA, J.
inherent jurisdiction of the High Court is available while dealing with a
Criminal Appeal filed by an accused is the principal question involved in this
appeal which arises out of a judgment and order dated 18.4.2002 passed by a
Division Bench of the High Court of Judicature at Madras in Criminal Appeal No. 696 of 1997.
appellants before us were not parties to the said Criminal Appeal.
prosecution case relates to an incidence which took place on 13.3.1992
resulting in death of one Chandran. On 13.3.1992, the brother of Nallakannu @
Muthu was said to have fatally been attacked in Maruthur Village. A case was registered against PW3,
the brother of PW1, Arasappan, father of PW1, Vanumamali, brother-in-law of
PW3, Raja, son of PW3, Raj son of PW1's sister Ganambal and George (deceased)
son of the PW1's sister Ganambal. They were arrested and released on bail subject
to certain conditions. PW1 and her relatives after the said incident allegedly
shifted to another village Palayamkottai. The father-in-law of PW1 was a
homoeopathic doctor. He was having a medical shop. He was also having a hotel
commonly known as 'Hare Krishna" hotel. The medical shop and the hotel
were situate opposite to each other near Palaymkottai bus stand and were at a
distance of 6 furlongs from the house of PW1.
11.7.1992 at about 3.00
P.M., PW3 brother of
PW1, Arasappan father of PW1, Vanumamali brother-in-law of PW3, Raj son of
PW1's sister Ganambal and George (deceased) son of PW1's sister Ganambal came
to the house of PW1. As PW1 was not feeling well, she came to the medical shop
of her father-in-law to purchase medicines. Nallakannu @ Muthu, Murugan and
Popular Muthiah came behind him in a Rajdoot motorcycle.
stopped them near the Palayamkottai bus stand. The appellant Popular Muthiah
allegedly shouted to kill George son of PW1's sister Ganambal and left the
scene on the motorcycle leaving behind Nallakannu and Murugan. Nallakannu took
a sickle which is said to have been hidden in his shirt and assaulted George on
the left side of his neck. The deceased who received bleeding injury left his
chappals there and started to run from the said place. Nallakannu and Murugan
allegedly chased him. The deceased ran inside 'Hare Krishna' hotel which, as
noticed hereinbefore, owned by the father-in-law of PW1. At that time, PW3 brother
of PW1 and PW4 Ashokan, brother-in-law of PW1 were inside the hotel. Upon
noticing that the deceased was being chased, PW3 and Ashokan came out of the
the hotel, Murugan is said to have assaulted the deceased on his chest.
@ Muthu also assaulted him on the left side of his chest. The deceased also
received injuries at their hands on his shoulder and on the left ear. The
deceased thereafter fell down whereupon Nallakannu again is said to have
assaulted the deceased on the left side of his chest with the sickle.
Thereafter, Nallakannu came out of the hotel and went towards west.
deceased was taken to the Government Hospital, Palaymkottai in an auto-rickshaw
by PW3 along with PW2, PW3 and PW4 where he was declared dead by the doctor. A
First Information Report in respect of the said incident was lodged by PW-1.
no chargesheet was filed against the appellant herein. A copy of the said
chargesheet, however, admittedly was not sent to the first informant. The
learned Magistrate, before whose Court the said chargesheet was filed also did
not inform the first informant which was mandatory.
@ Muthu alone was committed to the Court of Sessions. Before the learned
Sessions Judge, all the eye-witnesses allegedly took the names of the
appellants as having played active roles in the entire episode. The learned
Sessions Judge was neither called upon to exercise nor suo motu exercised his
jurisdiction in terms of Section 319 of the Code of Criminal Procedure.
Nallakannu @ Muthu alone in the aforementioned situation was tried and
convicted for commission of the said offence under Section 302 of the IPC and
was sentenced to undergo rigorous imprisonment for life.
preferred an appeal against the said judgment of conviction and sentence in the
High Court which was registered as Criminal Appeal No. 696 of 1997. The said
appeal came up for hearing before a Division Bench of the High Court. The
Division Bench examined the materials brought on records by the prosecution in
great details. It was opined that no case has been made out to interfere with
the judgment of conviction and sentence passed against the Nallakannu Muthu. He
has not approached this Court questioning the correctness of the said judgment.
High Court opined:
the evidence of
PWs 1 and 2 unimpeachably show the involvement of Popular Muthiah (abetting),
Murugan and the accused in inflicting the fatal injuries to the deceased;
the evidence of
PWs 3 and 4 show the role played by Murugan and the accused; and
in Ex. I, all
the evidence were 'found fully reflective'.
to the High Court, the action on the part of the investigating officers, viz.,
PW-17 and PW-18 leaving out the names of Popular Muthiah and Murugan from the
array of accused was not a bona fide error. It was observed:- "As we feel
that Murugan and Popular Muthiah had been left out willfully by the
Investigating Agency, we direct the Director General of Police to seriously
probe into it and take follow-up action in accordance with law. The fact that
the occurrence took place in 1992 and we are in 2002 should not be taken as a
reason for taking a lenient view by all those concerned including the Court. If
the instances of this nature are allowed to happen, certainly the people will
lose faith in Police force and in turn in the State Administration as well as
in the administration of justice by Courts." The High Court furthermore
noticed that the mandatory provisions of Section 173 (2)(i) had not been
complied with insofar as the first informant was not intimated by the
Investigating Officer that Murugan and Popular Muthiah were not to be
chargesheeted. Referring to sub-Section (8) of Section 173 of the Code of
Criminal Procedure, the High Court lamented that the learned Magistrate failed
to follow the decision of this Court in Bhagwan Singh v. Commissioner of Police
[1985 SCC (Crl.) 267] and other judgments of this Court. The High Court also
felt that the District Judge ought to have conducted himself fairly in the
matter of exercising his jurisdiction under Section 319 of the Code of Criminal
High Court, therefore, made certain adverse comments against the Investigating
Officers, the public prosecutors as also the learned trial Judge for conducting
themselves in the manner in which they had discharged their duties.
are of the view that this is a fit case where we have to direct the prosecution
of Murugan as well as Popular Muthiah; and the learned State Public Prosecutor
shall advise the State as to under what section they have to be charged and
tried. We may be able to relax a bit only after directing the CB, CID to take
up the matter. We direct the CB, CID to take over the matter and re-investigate
and prosecute the said Murugan and Popular Muthiah." It was furthermore
"In view of
our conclusion that since there is evidence at every stage implicating Murugan
and Popular Muthiah in the crime relating to the murder of George, justice
requires that the Investigating Agency must have a fresh look on the materials
already available on record and the materials to be collected pursuant to this
order in the re-investigation connecting Popular Muthiah and Murugan also with
the crime. Therefore, we order fresh investigation by the Investigating Agency
so far as Popular Muthiah and Murugan are concerned. Consequently, the Director
General of Police is directed to entrust the investigation in this case
relating to the involvement of Popular Muthiah and Murugan to CB, CID. The
Director General of Police is also directed to nominate an officer, not below the
rank of Superintendent of Police, to monitor the investigation to be done by
General of Police is also directed to deeply probe into the lapses on the part
of PW17 Rajaram and PW18 Thondiraj in the Investigation conducted with reference
to the murder of George, so also in the prosecution and take follow-up action
in accordance with law." The appellants are, thus, before us.
M.N. Rao, the learned senior counsel appearing on behalf of the appellants
raised the following contentions in support of this appeal:-
The High Court
while hearing the appeal preferred by Nallakannan @ Muthu wrongly exercised its
power in terms of Section 482 of the Code of Criminal Procedure.
the said jurisdiction, the High Court, thus, could neither exercise any
revisional jurisdiction under Section 397 nor its inherent jurisdiction under
Section 482 of the Code of Criminal Procedure.
exercise of power by the High Court under Section 482 is unknown in law.
In any event, as
the High Court in its impugned judgment did not state that it was exercising
its jurisdiction under Section 482 or 209 of the Code of Criminal Procedure, it
is unsustainable in law.
In any event,
the High Court could not have issued the impugned directions without giving an
opportunity of hearing to the appellants herein whose fundamental rights have
been affected by reason thereof.
The direction of
the High Court to prosecute the appellants is illegal and without jurisdiction
as such directions could not have been issued in exercise of its inherent
The High Court
even could not direct the appellants to stand trial, inasmuch as the provisions
of Section 319 of the Code of Criminal Procedure were not attracted in the
In any view of
the matter, the Investigating Officers having found lacunae in the prosecution
case, particularly in view of the fact that one of the appellants was found to
have suffered fracture in an accident four days prior to the date of
occurrence, it was wholly improper on the part of the High Court to direct
reopening of the investigation.
Rajiv Dhawan, the learned senior counsel on behalf of the respondent-State of Madras, on the other hand, submitted:-
of the Code of Criminal Procedure contained a series of interlocked provisions
so as to correct the errors in regard to improper investigation on the part of
the investigating officer.
which is bad in law or insufficient investigation is subject to corrective
orders by the High Court;
Having regard to
the changes made in the Code of Criminal procedure, 1973, what is brought
before the Court is a case and not the accused.
The High Court
has been conferred a special power, namely, the inherent power which can be
exercised at any stage of the proceeding including the appellate proceeding.
In view of the
fact that the High Court had directed fresh investigation, the principles of
natural justice have no application.
In view of the
finding of the High Court in regard to non- compliance of the mandatory
provisions of Section 173 of the Code of Criminal Procedure as also the gross
errors committed by both the learned Magistrate as also the learned Trial
Judge, the High Court had justifiably exercised its inherent jurisdiction in
order to secure justice in terms of Section 482 of the Code of Criminal
As the High
Court exercises its inherent power to secure the ends of justice, the same by
necessary intendment could bring within its purview justice required to be done
to the victim also.
were not prejudiced in any manner whatsoever by reason of the impugned order as
at different stages they would be entitled to raise their contentions.
of the Code of Criminal Procedure does not postulate any power on the part of
the Courts to direct re- investigation as the statutory power to make
investigation always remain with the Investigating agency.
view of the rival contentions noticed hereinbefore, the questions involved in
this case are:
Whether the High
Court while exercising its appellate jurisdiction under Section 374(2) read
with Section 386 of the Code of Criminal Procedure could direct further
investigation of the case against the persons whom the High Court felt should
have been included in the challan on the basis of the materials on record
available before the appellate court?
because of the fact that the appellate power of the High Court in terms of
Sections 374(2), 386 and 391 does not contain any specific power to direct
further investigation, the High Court lacked jurisdiction from seeking recourse
to its inherent and supervisory powers under Sections 482 and 483 of the Code
of Criminal Procedure in a case of this nature? Whether the
impugned judgment is wholly unsustainable as prior to issuing the impugned
direction, the principles of natural justice had not been complied with.
however, we advert to the said questions, it may be appropriate to notice that
the High Court in passing the impugned judgment proceeded on the basis that
PW-1 to PW-5 namely, Muthulakshmi, Shanthy, Murugaiah Pndian, Ashokan and
Ganeshan were independent witnesses who had categorically testified about the
involvement of the Appellants herein as also Murugan and Muthu in hacking
George to death firstly in the street and then in the hotel and the prosecution
case was proved on the basis thereof.
High Court indisputably could have arrived at such a finding.
High Court thereafter directed entrustment of the investigation to CB-CID
having regard to the fact that there were two other eye-witnesses to the
High Court furthermore:
prosecution of Murugan and Popular Muthiah;
ordered a fresh
investigation under the CB-CID under an officer nominated by the Director
General of Police;
Director General of Police to probe into the lapses of the investigating
officers and take up follow up action in accordance with law.
High Court in its impugned judgment:
conviction of Muthu;
successive investigating officers PWs-17 and 18 had not discharged their
functions as investigating officer properly;
held that the
Magistrate had failed to exercise his powers as also to make the details of the
charge sheet available to the complainant as was mandatorily required in law;
found that the
District Judge had not exercised his power under Section 319 of the Code of
Criminal Procedure; and
power in issuing the directions in the interest of justice.
Code of Criminal Procedure provides is an exhaustive Code providing a complete
machinery to investigate and try cases, appeals against the judgments. It has
provisions at each stage to correct errors, failures of justice and abuse of
process under the supervision and superintendence of the High Court as would be
evident from the following:
The Court has
the power to direct investigation in cognizable cases under Section 156(3) read
with Section 190 of the Code of Criminal Procedure.
A Magistrate can
postpone the issue of process and inquire into the case himself under Section
202 (1) of the Code of Criminal Procedure.
When a charge
sheet is failed, the court can refuse to accept the same and proceed to take
cognizance of the offence on the basis of the materials on record. The Court
can direct further investigation into the matter
may treat a protest petition as a complaint and proceed to deal therewith in
terms of Chapter XV of the Code of Criminal Procedure.
Once the case is
committed, the Sessions Judge may refer the matter to the High Court.
In the event,
without taking any further evidence, it is found that while passing the order
of commitment, the Magistrate has committed an error in not referring the case
of an accused or left out an accused after evidences are adduced, the court may
proceed against a person who was not an accused provided it appears from the
evidences that he should be tried with the accused.
court during pendency of the trial may exercise its revisional jurisdiction
under Section 397 in which case, it may direct further inquiry in terms of
Section 398 of the Code of Criminal Procedure.
powers of the High Court and the Sessions Court are pointed out in the Code
separately; from a perusal whereof it would appear that the High Court
exercises larger power.
In the event of
any conviction by a court of Sessions, an appeal thereagainst would lie to the
High Court. The appellate court exercises the power laid down under Section 386
of the Code of Criminal Procedure in which event it may also take further
direct evidences in terms of Section 391 thereof.
The High Court
has inherent power under Section 482 of the Code of Criminal Procedure to
correct errors of the courts below and pass such orders as may be necessary to
do justice to the parties and/ or to prevent the abuse of process of court.
Code of Criminal Procedure, thus, provides for a corrective mechanism at each
Code of Criminal Procedure, 1973 in contrast to the old Code provides for
cognizance of an offence and committal of a case as contradistinguished from
cognizance of an offender or committal of an accused to the court of Sessions.
also significant to note that whereas inherent power of a court or a tribunal
is generally reocgnised, such power has been recognized under the Code of
Criminal Procedure only in the High Court and not in any other court. The High
Court apart from exercising its revisional or inherent power indisputably may
also exercise its supervisory jurisdiction in terms of Article 227 of the
Constitution of India and in some matters in terms of Section 483 thereof. The
High Court, therefore, has a prominent place in the Code of Criminal Procedure
vis-`-vis the court of Sessions which is also possessed of a revisional power.
Law Commission of India in its 41st Report on the Code of Criminal Procedure,
1898 stated as under:
sometimes, though not very often, that a Magistrate hearing a case against
certain accused finds from the evidence that some person, other than the accused
before him, is also concerned in that very offence or in a connected offence. It
is only proper that the Magistrate should have the power to call and join him in
the proceedings. Section 351 provides for such a situation, but only if that
persons happens to be attending the Court. He can then be detained and proceeded
against. There is no express provision in Section 351 for summoning such a
person if he is not present in Court. Such a provision would make section 351
fairly comprehensive, and we think it proper to expressly provide for that
should, therefore, be amended to read as follows:-
the course of an inquiry into or trial of an offence, it appears from the
evidence that any person not being the accused has committed any offence for
which such person could be tried together with the accused, the Court may
proceed against such person for the offence which he appears to have committed.
person is attending the Court, although not under arrest or upon a summons, he
may be detained by such Court for the purpose of the inquiry into or trial of
the offence which he appears to have committed.
person is not attending the Court, he may be arrested or summoned, as the
circumstances of the case may require, for the purpose aforesaid.
Where the Court
proceeds against any person under sub-section (1), then –
in respect of such person shall be commenced afresh, and the witnesses
subject to the
provisions of clause (a), the case may proceed as if such person had been an
accused person when the Court took cognizance of the offence upon which the
inquiry or trial was commenced." Section 386 of the Code of Criminal
Procedure provides for the power of the appellate court. Indisputably, stricto
sensu in terms thereof the appellate court cannot direct a person to stand
trial. Its jurisdiction is specified thereunder.
exercising its appellate power, the jurisdiction of the High Court although is
limited but, in our opinion, there exists a distinction but a significant one
being that the High Court can exercise its revisional jurisdiction and/ or
inherent jurisdiction not only when an application therefor is filed but also
suo motu. It is not in dispute that suo motu power can be exercised by the High
Court while exercising its revisional jurisdiction. There may not, therefore,
be an embargo for the High Court to exercise its extraordinary inherent
jurisdiction while exercising other jurisdictions in the matter. Keeping in
view the intention of the Parliament, while making the new law the emphasis of
the Parliament being 'a case before the court' in contradistinction from 'a
person who is arrayed as an accused before it' when the High Court is seized
with the entire case although would exercise a limited jurisdiction in terms of
Section 386 of the Code of Criminal Procedure, the same, in our considered
view, cannot be held to limit its other powers and in particular that of Section
482 of the Code of Criminal Procedure in relation to the matter which is not
certain situations, the court exercises a wider jurisdiction, e.g., it may pass
adverse remarks against an investigator or a prosecutor or a judicial officer,
although they are not before it. Expunction of such remarks may also be
directed by the High Court at a later stage even suo motu or at the instance of
the person aggrieved.
High Court while, thus, exercising its revisional or appellate power, may exercise
its inherent powers. Inherent power of the High Court can be exercised, it is
trite, both in relation to substantive as also procedural matters.
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 trammeled by procedural restrictions in that
power can be
exercised suo motu in the interest of justice. If such a power is not conceded,
it may even lead to injustice to an accused.
Such a power can
be exercised concurrently with the appellate or revisional jurisdiction and no
formal application is required to be filed therefor.
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 where the power of the court is not treated as exhaustive, or there is a
specific provision in the Code; or the statute does not fall within the purview
of the Code because it involves application of a special law. It acts ex debito
justitiae. It can, thus, do real and substantial justice for which alone it
Court in Dinesh Dutt Joshi v. State of Rajasthan and Another, [(2001) 8 SCC 570] while dealing with the inherent powers of
the High Court held:
principle embodied in the section is based upon the maxim: quando lex aliquid
alicui concedit, concedere videtur et id sine quo res ipsae esse non potest
i.e. when the law gives anything to anyone, it gives also all those things
without which the thing itself would be unavailable. The section does not
confer any new power, but only declares that the High Court possesses inherent
powers for the purposes specified in the section. As lacunae are sometimes
found in procedural law, the section has been embodied to cover such lacunae
wherever they are discovered. The use of extraordinary powers conferred upon
the High Court under this section are however required to be reserved, as far
as possible, for extraordinary cases." The decisions of this Court
emphasised the fact that there exists a distinction between two classes of
application of Section 482 is specifically excluded and
where there is
no specific provision but limitation of the power which is sought to be
exercised has specifically been stated.
R.P. Kapur v. State of Punjab [AIR 1960 SC 866], this Court
summarized some of the categories of cases where inherent power should be
exercised to quash a criminal proceeding against the accused stating:
manifestly appears that there is a legal bar against the institution or
continuance e.g. want of sanction;
allegations in the first information report or complaint taken at its face
value and accepted in their entirety do not constitute the offence alleged;
allegations constitute an offence, but there is no legal evidence adduced or
the evidence adduced clearly or manifestly fails to prove the charge." The
said decision has been noticed subsequently by this Court in State of Karnataka v. M. Devendrappa and Another
[(2002) 3 SCC 89].
Court furthermore laid down that the inherent power of the High Court can be
invoked in respect of the matters covered by the provisions of the Code unless
there is specific provision to redress the grievance of the aggrieved party.
[See Madhu Limaye v. State of Maharashtra,
(1977) 4 SCC 551 and Raj Kapoor v. State, (1980) 1 SCC 43] It is also not in
dispute that the said power overrides other provisions of the Code but
evidently cannot be exercised in violation / contravention of a statutory power
created under any other enactment.
State Through Special Cell, New Delhi v.
Navjot Sandhu Alias Afshan Guru and Others [(2003) 6 SCC 641], it was stated:
482 of the Criminal Procedure Code starts with the words "Nothing in this
Code". Thus the inherent jurisdiction of the High Court under Section 482
of the Criminal Procedure Code can be exercised even when there is a bar under
Section 397 or some other provisions of the Criminal Procedure Code. However as
is set out in Satya Narayan Sharma case this power cannot be exercised if there
is a statutory bar in some other enactment. If the order assailed is purely of
an interlocutory character, which could be corrected in exercise of revisional
powers or appellate powers the High Court must refuse to exercise its inherent
power. The inherent power is to be used only in cases where there is an abuse
of the process of the court or where interference is absolutely necessary for
securing the ends of justice. The inherent power must be exercised very
sparingly as cases which require interference would be few and far between. The
most common case where inherent jurisdiction is generally exercised is where
criminal proceedings are required to be quashed because they are initiated
illegally, vexatiously or without jurisdiction. Most of the cases set out
hereinabove fall in this category. It must be remembered that the inherent
power is not to be resorted to if there is a specific provision in the Code or
any other enactment for redress of the grievance of the aggrieved party. This
power should not be exercised against an express bar of law engrafted in any
other provision of the Criminal Procedure Code. This power cannot be exercised
as against an express bar in some other enactment." In State of W.B. and
Others v. Sujit Kumar Rana [(2004) 4 SCC 129], to which our attention has been
drawn by Mr. Rao, this Court was dealing with a matter arising out of an order
of confiscation passed under the provisions of the Forest Act, 1927.
that case, the law was stated in the following terms:
said authority before passing a final order in terms of Section 59-A(3) of the
Act is required to issue notice and give opportunity of hearing to the parties
concerned. Unless such a notice is issued, the confiscation proceeding cannot
be said to have started. Once, however, a confiscation proceeding is initiated;
in terms of Section 59-G of the Act, the jurisdiction of the criminal court in
this behalf stands excluded. The criminal court although indisputably has the
jurisdiction to deal with the property which is the subject-matter of offence
in terms of the provisions of the Code of Criminal Procedure but once a
confiscation proceeding is initiated, the said power cannot be exercised by the
Magistrate." To what extent, if any, Section 386 limits the exercise of
jurisdiction of the High Court under Section 482 may now be considered.
State of Andhra Pradesh v. Thadi Narayan [(1962) 2 SCR 904], this Court opined
that while exercising the appellate power, the High Court should not assume
itself that the whole case is before it. Evidently, it was dealing with a case
before coming into force of the 1973 Act.
power to direct enquiry may not, thus, be held to be confined only to the
original but also of appellate jurisdiction. Such a power can be exercised also
as against the persons who were not the accused at the stage of trial.
Ranjit Singh v. State of Punjab [(1998) 7 SCC 149], this Court held:
such situations may arise only in extremely rare cases, the Sessions Court is
not altogether powerless to deal with such situations to prevent a miscarriage
of justice. It is then open to the Sessions Court to send a report to the High
Court detailing the situation so that the High Court can in its inherent powers
or revisional powers direct the committing Magistrate to rectify the committal
order by issuing process to such left-out accused. But we hasten to add that
the said procedure need be resorted to only for rectifying or correcting such
grave mistakes." [See also Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others,
(1983) 1 SCC 1] Such a power evidently can be exercised even after the trial is
Kishori Singh v. State of Bihar [(2004)
13 SCC 11], referring to Raj Kishore Prasad v. State of Bihar, [(1996) 4 SCC 495] and Ranjit
Singh (supra), this Court held:
going through the provisions of the Code of Criminal Procedure and the
aforesaid two judgments and on examining the order dated 10-6- 1997 passed by
the Magistrate, we have no hesitation to come to the conclusion that the
Magistrate could not have issued process against those persons who may have
been named in the FIR as accused persons, but not charge-sheeted in the
charge-sheet that was filed by the police under Section 173 CrPC.
as those persons against whom charge-sheet has not been filed, they can be
arrayed as "accused persons' in exercise of powers under Section 319 Cr PC
when some evidence or materials are brought on record in course of trial or
they could also be arrayed as "accused persons" only when a reference
is made either by the Magistrate while passing an order of commitment or by the
learned Sessions Judge to the High Court and the High Court, on examining the materials,
comes to the conclusion that sufficient materials exist against them even
though the police might not have filed charge-sheet, as has been explained in
the latter three-Judge Bench decision. Neither of the contingencies has arisen
in the case in hand." The correctness or otherwise of the decision of this
Court in Ranjit Singh (supra) was doubted and the matter was referred to a
larger Bench in Dharam Pal and Others v. State of Haryana and Another [(2004)
13 SCC 9], wherein one of us (Naolekar, J.) was a member, stating:
to the decision in Kishun Singh Case the Sessions Court has such a power under
Section 193 of the Code. As per Ranjit Singh case, from the stage of committal
till the Sessions Court reaches the stage indicated in Section 230 of the Code,
that court can deal with only the accused referred to in Section 209 of the
Code and there is no intermediary stage till then for the Sessions Court to add
any other person to the array of the accused. The effect of this conclusion is
that the accused named in column 2 and not put up for trial cannot be tried
while exercising power under Section 193 read with Section 228 of the Code.
means that even when the Sessions Court applies its mind at the time of framing
of charge and comes to the conclusion from the material available on record
that, in fact, offence is made out against even those who are shown in column
2, it has no power to proceed against them and has to wait till the stage under
Section 319 of the Code reaches, namely, commencement of the prosecution
evidence. The effect is that in less serious offences triable by a Magistrate,
he would have the power to proceed against those who are mentioned in column 2,
if on the basis of material on record he disagrees with the police conclusion,
but, as far as serious offences triable by the Court of Session are concerned,
that court will have to wait till the stage of Section 319 of the Code is
reached. It, however, appears that in a case triable by the Court of Session,
in law, a Magistrate would have no power to summon for trial an accused
mentioned in column 2 to be tried with other accused and, to that extent, the
impugned order of the High Court may have to be set aside but immediately the
question involved herein would arise when the matter would be placed before the
Sessions Court." The High Court, however, was not correct in issuing a
direction to the State to take advice of the State Public Prosecutor as to
under what section the Appellant has to be charged and tried or directing the
CB, CID to take up the matter and re-investigate and prosecute the Appellant
herein. Such a power does not come within the purview of Section 482 of the
Code of Criminal Procedure. Investigation of an offence is a statutory power of
the police. The State in its discretion may get the investigation done by any
agency unless there exists an extraordinary situation.
again, it is for the public prosecutor to discharge his duties in terms of the
provisions of the Code of Criminal Procedure. The High Court, thus, has no role
to play in such matters. Ordinarily, it is for the public prosecutor himself to
see to whom and how to render his advice or as to whether the State would like
to proceed against an accused or not.
High Court while passing the impugned judgment did not bear the said principles
in mind. It went beyond its jurisdiction in directing the prosecution of the
Appellant before us. In a case of this nature, where a superior court exercises
its inherent jurisdiction, it indisputably should remind itself about the
inherent danger in taking away right of an accused.
High Court should have been circumspect in exercising the said jurisdiction.
When a power under sub-section (8) of Section 173 of the Code of Criminal
Procedure is exercised, the court ordinarily should not interfere with the
statutory power of the investigating agency. It cannot issue directions to
investigate the case from a particular angle or by a particular agency. In the
instant case, not only the High Court had asked reinvestigation into the
matter, but also directed examination of the witnesses who had not been cited
as prosecution witnesses. It furthermore directed prosecution of the Appellant
which was unwarranted in law.
reliance has been placed on Zahira Habibulla H. Sheikh v. State of Gujarat [(2004) 4 SCC 158] by Dr. Dhawan
for the proposition that the High Court can exercise its inherent jurisdiction
in certain situation. Mr. Rao, on the other hand, has relied upon a decision of
this Court in Satyajit Banerjee and Others v. State of W.B. and Others [(2005)
1 SCC 115] wherein Dharmadhikari, J. speaking for the Bench opined that the
case of Best Bakery was of exceptional nature.
not go into the said respective contentions as we are of the opinion that,
having regard to the order proposed to be passed by us, it is not necessary so
case of this nature, therefore, in our opinion, it would have been in the
fitness of things, the Appellant should have been heard by the High Court.
may, however, hasten to add that our direction is not intended to lay down the
law that while the Magistrate directs a further investigation or a Sessions
Judge while exercises its jurisdiction under Section 319 of the Code of
Criminal Procedure, an accused is entitled to be heard; he is not as he has no
right therefor and, thus, the question of hearing him at that stage would not
herein, the High Court was dealing with an extraordinary situation because :
wrongly the Magistrate had accepted the final form and did not direct any
investigating officer or the court did not intimate the first informant about
filing of the final form in respect of the Appellant, it cannot be said that
the first informant was not aware thereof.
informant neither filed any protest petition nor filed any complaint petition.
Even during the
trial, no application was filed before the learned Sessions Judge for summoning
the Appellant on behalf of the State or the complainant.
Sessions Judge did not exercise his power suo motu.
The High Court
was hearing an appeal preferred by a convicted person and exercised its
extraordinary jurisdiction after 10 years.
Even it could
direct further investigation, it was required to apply its mind as regard
existence of a very strong prima facie case therefor and particularly in view
of the fact that a period of 10 years had lapsed in the meanwhile.
opportunity of hearing been given, the State also could have shown that for
valid reasons the investigating officer did not think it fit to proceed against
the Appellant and that there was otherwise justifiable reasons to file the
have noticed hereinbefore that the jurisdiction of the learned Magistrate in
the matter of issuance of process or taking of cognizance depends upon
existence of conditions precedent therefor. The Magistrate has jurisdiction in
the event a final form is filed
to accept the
in the event a
protest petition is filed to treat the same as a complaint petition and if a
prima facie case is made out, to issue processes;
cognizance of the offences against a person, although a final form has been
filed by the police, in the event he comes to the opinion that sufficient materials
exist in the case diary itself therefor; and to direct re-
investigation into the matter. [See Abhinandan Jha and Others v. Dinesh Mishra
, AIR 1968 SC 117, see also Minu Kumari and Anr. v. The State of Bihar and
Ors., 2006 (4) SCALE 329] Similarly, the power of the Sessions Judge to summon
a person to stand trial with the other accused in exercise of its jurisdiction
under Section 319 of the Code of Criminal Procedure is also limited inasmuch as
from the evidences of the witnesses, it must clearly be found that the
proceedee had a role to play in the commission of an offence.
as inherent power of the High Court is concerned, indisputably the same is
required to be exercised sparingly. The High Court may or may not in a given
situation, particularly having regard to lapse of time, exercise its
discretionary jurisdiction. For the said purpose, it was not only required to
apply its mind to the materials on records but was also required to consider as
to whether any purpose would be served thereby.
regard to the peculiar facts and circumstances of this case, we are of the
opinion that before issuing the impugned directions, the High Court should have
given an opportunity of hearing to the Appellants herein.
the reasons aforementioned, the impugned judgment is set aside and the matter
is remitted to the High Court for consideration of the matter afresh. The High
Court shall issue notice to the Appellants herein as also the State and pass
appropriate orders as it may deem fit and proper and in accordance with law.
The appeals are allowed with the aforementioned observations and directions.