Bharat Parikh Vs.
C.B.I. and ANR [2008] INSC 1109 (14 July 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. of 2008 (Arising
out of SLP (Crl) No.295 of 2007) Bharat Parikh ...Appellant C.B.I. & Anr.
...Respondents
ALTAMAS KABIR,J.
1.
Leave
granted.
2.
Two
legal propositions fall for consideration in this appeal. The first proposition
deals with the question as to whether having framed charges against an accused,
a Magistrate has the jurisdiction in law to recall such order on the ground
that the prosecution had failed to 2 comply with the provisions of Section 207
of the Code of Criminal Procedure. An ancillary question will also arise as to
whether such failure would render the framing of charge void.
3.
The
second proposition raises a question as to whether in exercise of its inherent
powers, the High Court could quash the charges framed and acquit the accused on
account of such non- compliance with the provisions of Sections 207 and 238 of
the aforesaid Code.
4.
The
appellant herein is the original accused No.5 in a special case pending before
the learned Special Judge, Mumbai in which charge was framed against him and
the other accused persons on 13th December, 1996 under Sections 120-B read with
Sections 420, 468, 471, 477-A of the Indian Penal Code and Section 13(2) read
with Section 13(1)(d)of the Prevention of Corruption Act, 1988. Though such
charge had been framed against the appellant on 13th December, 1996, after
about five years an 3 application was made on behalf of the appellant in 2001,
before the Special Court seeking directions for production of certain documents
in the custody of the prosecution. By order dated 27th August, 2001, the said
application was allowed and the prosecution was directed to produce all the
documents referred to in the statement of one Mr. P.K.R.K. Menon made on 24th
February, 1993. The said documents were ultimately produced in 2002.
Thereafter, the appellant filed an application for re-opening the proceedings
and for discharge, which was rejected by the learned Special Judge by his order
dated 1st April, 2006.
5.
In
rejecting the said application, the learned Special Judge relied primarily on
the decision of this Court in the case of Ratilal Bhanji Mithani vs. State of Maharashtra
[AIR 1979 SC 94] in which this Court had held that once a charge is framed, the
Magistrate has no power under Section 227 or any other provision of the Code of
Criminal Procedure to cancel such 4 charge and to discharge the accused. It
was also observed that once charge has been framed and the accused pleads not
guilty, the Magistrate is required to proceed with the trial to its logical
end. In other words, once a charge is framed in a warrant case instituted
either on complaint or a police report, the Magistrate has no power under the
Code to discharge the accused. He can, thereafter, either acquit or convict the
accused.
6.
The
learned Special Judge also relied another decision of this Court in State of
Andhra Pradesh vs. Golconda Linga Swamy and ANR. [AIR 2004 SC 3967], where
similar views have been expressed.
7.
Aggrieved
by the said order of the learned Special Judge, the appellant filed an
application under Section 482 of the aforesaid Code before the Bombay High
Court for quashing the proceedings of the Special case pending before the
learned Special Judge, Mumbai and also for quashing the order dated 1st April,
5 2006, whereby the learned Special Judge had rejected the appellant's
application for discharge.
8.
Taking
a view, which was similar to that expressed by the learned Special Judge, the
Bombay High Court dismissed the revisional application upon holding that there
had been sufficient compliance by the prosecution with the requirement of law
and that failure to produce the documents referred to in the order dated 27th
August, 2001 would not nullify the proceedings from the stage of framing of
charge. On a reference to the decision in Ratilal Bhanji Mithani's case
(supra), the High Court took the view that since charge had been framed, the case
would have to go for trial as no case had been made out for exercising
jurisdiction under Section 482 of the Code at the said stage.
9.
In
this appeal, the appellant has assailed the orders passed by the learned
Special Judge, as also the High Court.
10.
On
behalf of the appellant it was submitted by learned senior counsel, Mr. Amit
Desai, that the High Court had misapplied the decision in Ratilal Bhanji
Mithani's case (supra) as it was the case of the appellant that non-compliance
of the provisions of Section 207 of the Code of Criminal Procedure had vitiated
the entire proceedings, including framing of charge. He submitted that such
non-compliance was antithetical to the concept of a fair and speedy trial as
contemplated in Article 21 of the Constitution as was held in the case of
Satish Mehra vs. Delhi Administration (1996) 9 SCC 766. It was submitted that
the entire proceedings were vitiated on such score as well. It was urged that
the High Court had erred in not exercising its inherent power under Section 482
of the Code to quash the entire proceedings, including framing of charge.
11.
In
support of his aforesaid submission, Mr. Desai referred to the decision of a
seven-Judge 7 Bench of this Court in P. Ramachandra Rao vs. State of
Karnataka, (2002) 4 SCC 578, wherein the question of speedy trial had been
considered and having regard to the views expressed in Abdul Rehman Antulay's
case, (1992) 1 SCC 225, it was held that if the delay in concluding a trial was
oppressive or unwarranted, it would violate Article 21 of the Constitution and
such trial or such proceedings would be liable to be terminated.
12.
Reference
was also made to a decision of a three-Judge Bench in State of Orissa vs.
Debendra Nath Padhi, (2005) 1 SCC 568, wherein while called upon to answer the
wider question as to whether at the time of framing charge the trial court can
consider material filed by the accused, reference was disapprovingly made to an
earlier two-Judges Bench decision in the case of Satish Mehra vs. Delhi Administration
In fact, the matter was heard on a reference as there was a conflict of views
between two 8 Benches of co-ordinate jurisdiction. In Satish Mehra's case
(supra) it was held that at the time of framing of charge the trial court was
competent to consider material produced on behalf of the accused in the light
of Section 227 of the Code which provides for an opportunity of being heard to
the accused so that he was not unnecessarily made to undergo the entire gamut
of a trial which could be concluded at the time of framing of charge itself, if
the trial court was satisfied upon the material produced both by the
prosecution and the accused that there was no need to proceed to conduct the
trial. The said view taken in Satish Mehra's case was, however, overruled in
Debendra Nath Padhi’s case.
13.
Reference
was lastly made to a decision of a single Judge of the Rajasthan High Court in
Dhananjay Kumar Singh vs. State of Rajasthan, 2006 Crl.L.J. 3873, where the
principles of natural justice were held to be an integral part of a fair trial
in the context of Article 9 21 of the Constitution and the Universal
Declaration of Human Rights adopted by the United Nations on 10th December,
1948.
14.
Appearing
for the Central Bureau of Investigation (hereinafter referred to as `CBI'),
learned Additional Solicitor General, Mr. Mohan Parasaran, submitted that a
similar application (Criminal Application No.1129 of 1997) made by the
appellant had been dismissed on 2nd November, 1998, as none of the parties were
represented at the time of hearing of the application. He also submitted that
having regard to the decision in Debendra Nath Pathi's case(supra) and also in
Ratilal Bhanji Mithani's case (supra), the earlier ambiguity had been removed
and it had been clearly laid down that not only could the trial court not
recall its order framing charge, which would result in re-opening of the
proceedings, but it could not also consider the material 10 produced on behalf
of the accused at the time of framing charge.
15.
Of
the two propositions raised in this appeal, the first proposition has been
completely answered in Debendra Nath Padhi's case (supra) regarding the trial
court's power to recall its order framing charge against an accused.
Having
regard to the language of Sections 207 and 227 of the Code of Criminal
Procedure, while framing charges the trial court can only look into the
materials produced by the prosecution while giving an opportunity to the
accused to show that the said materials were insufficient for the purpose of
framing charge. The decision in Satish Mehra's case (supra) having been
overruled in Debendra Nath Padhi's case (supra) the contention of Mr. Desai
that the Magistrate should have re-opened the matter on the basis of the
documents produced by the prosecution at the instance of the accused, is no
longer res-integra. The question of 11 discharge by the learned Magistrate
after framing of charge does not, therefore, arise, notwithstanding the
submissions advanced with regard to denial of natural justice and a fair and
speedy trial as contemplated under Article 21 of the Constitution, which have
no application whatsoever to the facts of this case.
16.
With
regard to the second proposition regarding the High Court's powers to look into
materials produced on behalf of or at the instance of the accused for the
purpose of invoking its powers under Section 482 of the Code for quashing the
charges framed, it has to be kept in mind that after the stage of framing
charge evidence has to be led on behalf of the prosecution to prove the charge
if an accused pleads not guilty to the charge and/or charges and claims to be
tried. It is only in the exceptional circumstances enumerated in State of
Haryana vs. Bhajan Lal 1992 Suppl.(1) SCC 335, that a criminal proceeding may
be quashed to secure 12 the ends of justice, but such a stage will come only
after evidence is led, particularly when the prosecution had produced
sufficient material for charges to be framed. As observed in Debendra Nath
Padhi's case (supra) at the stage of framing charge roving and fishing inquiry
is impermissible and a mini trial cannot be conducted at such stage. At the
stage of framing of charge the submissions on behalf of the accused has to be
confined to the material produced by the investigating agency. The accused will
get an opportunity to prove the documents subsequently produced by the
prosecution on the order of the Court, but the same cannot be relied upon to
re-open the proceedings once charge has been framed or for invocation of the
High Court's powers under Section 482 of the Code of Criminal Procedure.
17.
Accordingly,
no interference is warranted with the orders passed by the learned special
Judge or the High Court, and the appeal is, therefore, dismissed.
..................J.
(Altamas Kabir)
..................J.
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