Subbaiah & Ors Vs. State of Karnataka & Ors  INSC 234 (28 August
G.L. (J) OZA, G.L. (J) MUKHARJI, SABYASACHI (J)
1987 SCR (3)1128 1987 SCC (4) 557 JT 1987 (3) 435 1987 SCALE (2)451
Procedure Code, 1973: ss. 397 & 401--High Court-Revisional
jurisdiction--Scope of--Challenge to issue of process----High Court to see
whether prima facie case made out--Persons not parties before trial
court--Whether could be impleaded in revision.
trial court took cognizance of a complaint by the State Government under s. 500
I.P.C. filed on the basis of a sanction granted by the State Government under
s. 199(2) Cr. P.C., as one of the persons defamed was the Director General of
Police, and issued process against the appellants. In the revision petition
preferred by the appellants under ss. 397 and 401 Cr. P.C. against that order,
in addition to respondent 1, the appellants also joined respondent 2, the
Director General of Police, and respondent 3, the Chief Minister of the State,
as parties. The High Court admitted the petition and ordered issue of notice to
the respondents, but directed deletion of the names of respondents 2 and 3
holding that they were not necessary parties to the proceedings.
the appeal by special leave assailing the order of the High Court it was
contended for the appellants that since the prosecution were instituted by
sanction from the State Government, and the news item and the allegation which
formed the basis of the complaint pertained to the two respondents they were
necessary parties before the High Court. The High Court, therefore in exercise
of its jurisdiction under s. 401(2) Cr. P.C. was not right in deleting the
names of these two respondents. For the respondents, it was contended that the
High Court was right in deleting the names of respondents 2 and 3 as they were
not parties in the criminal case pending before the trial court, nor were they
necessary parties to the proceedings before the High Court, that under ss. 397
and 401 Cr. P.C. what the High Court was expected to see in revision against
the issue of process was as to whether the complaint and the papers filed
alongwith it were sufficient to justify the order passed by the trial court and
whether it was a proceeding which deserves to continue or it could be quashed.
Dismissing the appeal by special leave,
1. The High Court was right in deleting the names of the two respondents.
When the issue of process is challenged in revision petition before the High
Court and the record is called for under s. 397 Cr. P.C., what it is expected
to see only is as to whether the complaint and the papers accompanying it prima
facie indicate that an offence is made out. If the complaint and the papers in
the opinion of the High Court are such which do not prima facie disclose an
offence then it will be open to the High Court to entertain the revision and
quash the proceedings. Except this the High Court is not expected to go into
the matter at all. [1137C-D]
Section 401(2) Cr. P.C. contemplates a situation where a person may not be an
accused person before the court below but one who might have been discharged
and therefore if the revisional court after exercising jurisdiction under s.
401 wants to pass an order to the prejudice of such a person, it is necessary
that that person should be given an opportunity of hearing but it does not
contemplate any contingency of hearing of any person who is neither party in
the proceedings in the court below nor is expected at any stage even after the
revision to be joined as party. [1136B-D] In the instant case the prosecution
was launched by the State Government and before the trial court the only
parties were the petitioners, who were accused persons, and the State Government,
which stood in the place of a complainant.
were prosecution witnesses and there might even be defence witnesses. But the
witnesses are not parties to the proceedings. The two respondents were not
parties before the court below. They could not, therefore, be joined as parties
before the High Court. [1135B-C]
The question about anyone else being instrumental in getting the prosecution
launched or questions which are foreign are not to be considered in a revision
where the issue of process is being challenged and therefore the further
question in the instant case as to whether the party against whom an allegation
is made is or is not a necessary party in the proceedings also is not relevant.
[1137E-F] Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors.,
 1 SCR 884 referred to.
Thakur Ram v. The State of Bihar,  2 SCR 740, distinguished.
APPELLATE JURISDICTION: Criminal Appeal No. 401 of 1987.
the Judgment and Order dated 8.9. 1986 of the Karnataka High Court in Crl,
Revision Petition No. 482 of 1986.
Singh for the Appellants.
Veerappa and A.K. Panda for the Respondents.
Judgment of the Court was delivered by OZA, J. Leave granted.
appeal has been preferred by the appellants who are the accused persons in a
complaint filed by the State Government before the Principal Sessions Court,
Bangalore. It is alleged that this complaint is filed by the State Govt.
Sec. 500 of the Indian Penal Code. This complaint was filed by the State Govt. on
the basis of a sanction granted by the State Govt. under Sec. 199, clause (2)
of the . Code of Criminal Procedure, as one of the persons defamed is the
Director General of Police, State of Karnataka.
Trial Court after the filing of the complaint took cognizance of the matter and
issued process against the petitioners who were the accused persons before the
court below. Against this issue of process, these petitioners filed a criminal
revision before the High Court of Karnataka seeking the relief of quashing of
the order directing issue of process and also the quashing of proceedings
pending in the court below. The revision which was filed in the High Court was
filed under Sections 397 and 401. In addition to the State Government, the
petitioners joined respondent No.
the Director General of Police, State of Karnataka and also respondent No. 3,
the Chief Minister of Karnataka, Shri Ramakrishna Hegde.
is alleged that when the revision petition was filed in the High Court, it was
heard for admission and was admitted and orders were passed for issue of
notices to the respondents. But by the impugned order the High Court directed
deletion of the names of respondents 1131 Nos. 2 and 3 holding that they are
not necessary parties to the proceedings and it is against this order that the
special leave was filed and hence this appeal.
order of the High Court indicates that the matter was taken up on being
mentioned by either of the counsel in the matter as it reads:
CRP coming on for being spoken to the Court made the following order:
2 and 3 in this petition, who are not parties to the complaint, are not
necessary parties to the proceedings. Hence, Respondents 2 and 3 in this
petition are deleted.
d/Judge" An attempt was made by the learned counsel for the appellant, to
contend that once the process was issued in the revision by the High Court
after admission it is curious that this matter was taken up. Although it is not
clearly alleged that this order was passed without affording an opportunity of
hearing to the petitioner, admittedly they were heard. The main grievance
appears to be that it was suddenly taken up for hearing on being mentioned.
This is not unusual and there is no grievance that the petitioners had no
hearing. Under these circumstances no grievance could be made to this part of
is not disputed that in the revision petition itself the relief claimed by the
the petitioners pray that this Hon'ble court be pleased to call for the records
and a return from the respondents and-(i) Quash the proceedings of the first
respondent dated 30.6.1986 bearing Order No.
1610 PCC 86, Annexure-'E'. (ii) Quash the entire proceedings initiated against
the petitioners as per the summons Annexure 'F' in C.C. No. 62/86 on the file
of the Principal Civil and Sessions Judge, Bangalore City.
Grant such other reliefs as this Hon'ble Court deems 1132 fit in the
circumstances of the case including an order as to costs." A perusal of
these prayers made in the revision petition clearly indicates that what was
challenged before the High Court was the order dated 30.6.86 by which the
process was issued against the petitioners and further the quashing of the proceedings
instituted before the court below i.e. Principal Civil & Sessions Judge,
Bangalore City which was Criminal Complaint No. 62 of 1986. It is therefore
clear that the only challenge before the High Court was to the proceedings on
the basis of the complaint and the relief sought was quashing of these
is clear that High Court exercises jurisdiction under Sec. 401 when it
exercises revisional jurisdiction. It is contended by the learned counsel that
it is Sec. 397 of the Code of Criminal Procedure which empowers the High Court
to call for the record and examine the record about the propriety of the order.
But the High Court exercises revisional jurisdiction under Sec. 401. Learned
counsel laid much emphasis on sub-clause 2 of Sec. 40 1 to contend that as in
the revision petition the contention advanced by the petitioners is that this
prosecution was instituted by sanction from the State Govt. because the two
respondents and the petitioner in this revision petition made allegations
against the two respondents who have been deleted that it was necessary for
them to join them as parties under clause 2 of Sec. 40 1. It was further
contended that in fact the news item and the allegation which form the basis of
the complaint pertain to these two persons. In fact not about the Chief
Minister himself but about his wife and in this aspect of the matter it was
contended that these two were a necessary party before the High Court and it
was for this reason that the petitioners joined them in the High Court.
counsel for the appellants placed reliance on a decision of this Court in
Thakur Ram v. The State of Bihar,  2 SCR 740 and it was contended that
the Court below was not right in deleting these two respondents.
Advocate General appearing for the State of Karnataka frankly stated that so
far as the two respondents' continuance or discontinuance from the criminal
revision is concerned the State of Karnataka is not interested and he has
nothing more to add but he contended that joining of such parties which are not
necessary in a revision arising out of criminal proceedings is a matter of
far-reaching consequences. He contended that if such parties are permitted to
be joined then any accused person who is facing a trial in a criminal
prosecution may file a revision challenging either the issue of process or the
framing of charge and may join unnecessarily parties and it may 1133 become
difficult even to serve such parties and because of this the criminal
proceedings may remain stayed for long time. This ultimately may result in
defeating the criminal justice. And in this view of the matter the learned
Advocate General contended that the High Court was right in deleting these two
names as they were not parties in the criminal case pending before the trial
court nor were necessary parties to these proceedings.
counsel appearing for the two respondents contended that in fact in view of
Sec. 397 and 401 of the Cr. P.C. what the court i.e. the High Court is expected
to see in a revision of this nature against the issue of process is as to
whether the complaint and the papers filed alongwith the complaint are
sufficient to justify the order passed by the learned trial court by issuing
process against the petitioners-accused persons. It was contended by the
learned counsel that the Court is not expected to see anything further nor
there is any material to come to a conclusion as to whether the prosecution has
been launched fairly or at the instigation or under the influence of some other
person. It was contended that in fact these questions may be before the court
below when evidence is recorded what the Court primarily is concerned to see is
that the facts alleged in the complaint whether prima facie constitute an
offence calling for a trial and if the Court is so satisfied it issues process.
The High Court in revision under Sec. 401 read with 397 only is concerned to
see those papers which were before the court below. Admittedly these two
respondents Nos. 2 and 3 were not parties before the court below and the High
Court was right in deleting their names from the proceedings. Learned counsel
placed reliance on a decision of this Court in Municipal Corporation of Delhi
v. Ram Kishan Rohtagi and Ors.,  1 SCR 884 and contended that the scope
of Sections 401 and 397 has been considered by series of decisions of this
Court, the above noted case being one and contended that in the light of law
laid down, no grievance could be made against the order of the High Court.
was also contended that even if the petitioners have chosen to make allegations
against respondents 2 and 3 as any one is free to make allegations, it does not
call for any enquiry before the High Court as the High Court is not expected to
enquire into the allegations and counter-allegations while it is only examining
in revision the order issued by the trial court which is nothing more but issue
of process and that order the trial court has passed on the basis of complaint
and papers filed along with the complaint and the High Court only is expected
to see as to whether on these papers and complaint the Court below was fight in
issuing process and it is a proceeding which deserves 1134 to continue or it
could be quashed; except this while exercising revisional jurisdiction,
according to the learned counsel, High Court is not expected to go into the
matter at all. And therefore the High Court was right in deleting the names of
respondents 2 and 3.
Calling for records to exercise powers of revision.--(1) The High Court or any
Sessions Judge may call for and examine the record of any proceeding before any
inferior Criminal Court situate within its or his local jurisdiction for the
purpose of satisfying itself or himself as to the correctness, legality or
propriety of any finding, sentence or order, recorded or passed, and as to the
regularity of any proceedings of such inferior Court, and may, when calling for
such record, direct that the execution of any sentence or order be suspended,
and if the accused is in confinement, that he be released on bail or on his own
bond pending the examination of the record." This section provides that
the High Court or the Court of Sessions may send for the record of any inferior
criminal court for satisfying itself about the "correctness, legality and
propriety of any findings, sentence or order recorded or passed and as to the
regularity of any proceedings of such inferior court." Therefore it
clearly indicates that the court when calls for the record in exercising powers
under Sec. 397 Cr. P.C. it is expected to examine the records for the purpose
of satisfying itself about legality, propriety and correctness of the order
passed and also about the regularity of the proceedings. It is not disputed
that the complaint filed by the respondent State Govt. was the matter before
the trial court on the basis of which and accompanying papers the Court after
considering issued process and it is this order of issue of process
correctness, legality or propriety of which is under challenge before the High
perusal of the revision petition which has been filed here with the SLP clearly
shows that there is nothing except a challenge to the propriety and correctness
of the order passed by the trial court while issuing process. There is nothing
about irregularity or illegality. The grievance is also made about the sanction
granted by the State Govt. but that apparently is not a matter which could be
gone into at this stage. Admittedly, therefore the only thing which is before
the High Court is to satisfy itself about the correctness or propriety of the
order. Admittedly no question of legality is raised. Therefore the High Court
is expected to look into those papers and record which were before the trial
It is not in dispute that these two respondents Nos. 2 and 3 were not parties
before the court below. Learned counsel for the appellants contended that the
proceedings have been launched by the State Govt. on behalf of respondent No. 2
and therefore indirectly respondent No. 2 being the complainant is a party to
the proceedings. That is too tall a proposition. The prosecution is launched by
the State Government and before the court below i.e. the trial court the only
parties are the petitioners who are accused persons and the State Govt. which
stands in the place of a complainant. There are prosecution witnesses and there
may even be defence witnesses. But the witnesses are not parties to the
proceedings and admittedly these two respondents who have been deleted by the
impugned order of the High Court were not parties before the court below.
counsel laid much emphasis on the provisions contained in sub-clause 2 of Sec.
401. Sec. 401 reads:
High Court's powers of revision. --(1) in the case of any proceeding the record
of which has been called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court
of Session by Section 307 and, when the Judges composing the Court of revision
are equally divided in opinion, the case shall be disposed of in, the manner
provided by Section 392.
No order under this section shall be made to the prejudice of the accused or
other person unless he has had an opportunity of being heard either personally
or by pleader in his own defence.
Nothing in this section shall be deemed to authorise a High Court to convert a
finding of acquittal into one of conviction.
Where under this Code an appeal lies and no appeal is brought, no proceeding by
way of revision shall be entertained at the instance of the party who could
Where under this Code an appeal lies but an application for revision has been
made to the High Court by any 1136 person and the High Court is satisfied that
such application was made under the erroneous belief that no appeal lies
thereto and that it is necessary in the interests of justice so to do, the High
Court may treat the application for revision as a petition of appeal and deal
with the same accordingly." Sub-clause 2 of this Sec. talks of a situation
where an order is being passed against any person and it was contended by the
learned counsel that the section not only talks of accused persons but also of "or
other person unless he has had an opportunity of being heard." Apparently
this sub clause contemplates a situation where a person may not be an accused
person before the court below but one who might have been discharged and
therefore if the revisional court after exercising jurisdiction under Sec. 401
wants to pass an order to the prejudice of such a person, it is necessary that
that person should be given an opportunity of hearing but it does not
contemplate any contingency of hearing of any person who is neither party in
the proceedings in the court below nor is expected at any stage even after the
revision to be joined as party. Learned counsel for the appellants was not in a
position to contend that even if any contention of the appellants is accepted
and the High Court accepts the revision petition as it is, there will be any
situation where an order may be passed against these two respondents or they
may be joined as parties to the proceedings. Reference to Section 401 clause 2
is of no consequence so far as these two respondents are concerned.
decision to which reference was made by the learned counsel for the appellants,
it appears has no bearing on the question. That was a case where the question
before this Court was as to whether when a person was charged under Section 392
and was facing trial before the Court of a Magistrate, it was proper to send
the case to the Sessions Court when such applications earlier to the Magistrate
have been rejected and it is in this context the scope of the revisional jurisdiction
was being examined. In our opinion, this case is of no consequence at all so
far as the present case is concerned. In the case of Municipal Corporation of
Delhi v. Ram Kishan Rohtagi & Ors., (supra) this Court considered the scope
of Section 482 Cr. P.C. and Sec. 397 in the context of challenge to the
criminal proceedings or issue of process and this Court observed that:
is, there fore, manifestly clear that proceedings against an accused in the
initial stages can be quashed only if on the face of the complaint or the
papers accompanying the 1137 same, no offence is constituted. In other words,
the test is that taking the allegations and the complaint as they are, without
adding or subtracting anything, if no offence is made out then the High Court
will be justified in quashing the proceedings in exercise of its powers under
S. 482 of the present Code." In this decision, the earlier decisions of
this Court on the question have also been considered.
is therefore clear that when the issue of process is challenged in the revision
petition before the High Court what the High Court is expected to see is as to
whether the complaint and the papers accompanying the complaint prima facie
indicate that an offence is made out. If so, the Court below was right in
issuing process against the accused persons and such proceedings can not be
quashed; if the complaint and the papers accompanying the complaint, in the
opinion of the High Court are such which do not prima facie disclose an offence
then it will be open to the High Court to entertain the revision and quash the
the light of the discussions above therefore it is clear that the question
about anyone else being instrumental in getting the prosecution launched or
questions which are foreign are not to be considered in a revision where the
issue of process is being challenged and therefore the further question as to
whether the party against whom an allegation is made is or is not a necessary
party in the proceedings also is of no avail. The scope of the revisional
jurisdiction of the High Court as we have discussed earlier clearly indicates
that the High Court is only expected to see the legality, correctness or the
propriety of the order, which is an order of issue of process, these things
could only be seen by looking into the complaint and the accompanying papers
and evidence if any which were before the court below. In our opinion, the High
Court was right in deleting the names of the two respondents.
see therefore no substance in this appeal. It is therefore dismissed and the
order passed by the High Court is maintained.