State Rep. by D.S.P.,
S.B.C.I.D.,Chennai Vs. K.V. Rajendran & Ors. [2008] INSC 1489 (2 September
2008)
Judgment
REPORTAB LE IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1389
OF 2008 (Arising out of SLP (Crl) No. 5238 of 2004) State Rep. By D.S.P.,
S.B.C.I.D., Chenai ...
Appellants VERSUS
K.V. Rajendran & Ors ...
Respondents
TARUN CHATTERJEE, J.
1.
Leave
granted.
2.
The
only question that needs to be decided in this appeal is whether in the
exercise of the inherent powers under Section 482 of the Code of Criminal
Procedure (in short, " the Code"), an order disposing of a criminal
1 2 petition, refusing to grant any relief, could be modified and, thereafter,
an investigation, which was with the State Police authorities could be
transferred to the Central Bureau of Investigation (in short, "the
CBI").
3.
A
criminal petition under Section 482 of the Code was filed by the respondents
for transfer of the investigation which had been initiated for an offence under
Sections 177, 186 and 506(ii) of the Indian Penal Code to the CBI. In the year
1998, the said criminal petition was disposed of by the High Court refusing to
transfer the investigation to CBI. By the said order the High Court, while
disposing of the said criminal petition, held that it was not necessary to hand
over the investigation to CBI in the facts and circumstances of the case and
the SBCID was directed to continue with the investigation.
After more than 3 =
years of the final order refusing to transfer the investigation to CBI, an
Interlocutory Application was filed in the disposed of criminal petition by the
complainant/respondents but this time, 2 3 the learned Single Judge of the
Madras High Court transferred the investigation to the CBI and directed the
State Police to hand over the records to CBI forthwith.
It is this order, by
which the investigation was transferred to CBI, is in appeal before us, which,
on grant of leave, was heard in the presence of learned counsel for the
parties.
4.
In
our view, the High Court fell in error in reopening the issue which was finally
decided and refused earlier in the exercise of power under Section 482 of the
Code on a petition which was filed in a disposed of petition at the instance of
the DSP [SB CID]. Before we take up this question for our decision, it would be
appropriate to narrate the facts of this case leading to the filing of this
appeal in a nutshell :-
5.
On
26th of August, 1998 the Revenue Divisional Officer (in short `the RDO')
Mayiladuthurai received a phone call regarding smuggling of sandalwood and teak
wood logs. The RDO immediately made enquiries and 3 4 discovered that the call
was a false alarm. During the enquiry it also came to light that the caller was
one K.V Rajendran son of Vardarajan (the Respondent herein). He had
impersonated as a reporter of the Indian Express and made a hoax call to the
officer. On 27th of August, 1998 at 01.00 hrs, the RDO appeared before the
Superintendent of Police Nagapattinam and made a complaint against the Respondent.
He produced a statement given by the Respondent wherein he had admitted the
allegations made against him. The Respondent was identified as a Lecturer in
Government Presidency College, Madras. On the personal complaint of the RDO, a
case was registered in Porayiar police Station against the Respondent under
Sections 177, 186 and 506(ii) of the Indian Penal Code. The Respondent was
arrested and in the morning of 27th of August 1998, he was produced before the
Judicial Magistrate No. 2 Mayiladuthurai and remanded to judicial custody. On
the next day, the respondent was granted bail and was released from custody. On
2nd of September, 1998, 4 5 the respondent herein alleged to have given a
complaint against the RDO and other officers for having tortured him and for
having committed other illegal acts between 26th of August 1998 and 28th
August, 1998.
6.
On
06th of September, 1998, the respondent filed a petition before the State Human
Rights Commission, Tamil Nadu. On this complaint, the District Collector, Nagapattinam,
ordered an elaborate enquiry and on the basis of such an order, a report was
submitted to him. On 05th of October, 1998, the District Revenue Officer (DRO)
and the Additional District Magistrate submitted the report of their enquiry to
the District Collector. According to this report, the allegations leveled
against the RDO and the other personnel by the respondent appeared to be an
afterthought and totally false. On 08th of October, 1998, the aforesaid report
was forwarded to the State Human Rights Commission, Tamil Nadu. The Commission
accepted the report and informed the respondent that the Commission was
satisfied that no further enquiry should be conducted at 5 6 the level of the
Commission. The Commission did not proceed with the matter and following the
view taken by them, a departmental enquiry that was initiated, was also
dropped.
7.
In
October 1998, the respondent filed the aforesaid criminal petition under
Section 482 of the Code in the Madras High Court seeking the following reliefs:
(a) Direction to
immediately register an FIR based on the complaint filed on 02nd of September,
1998;
(b) Transfer further
investigation to the Central Bureau of Investigation;
(c) Order payment of
compensation of Rs One lakh.
8.
As
noted herein earlier, by a final order dated 1st of March, 2001, a learned
Single Judge of the High Court disposed of the said criminal petition under
Section 482 of the Code refusing to transfer the investigation to CBI and also
directed that the question of granting compensation would arise at a later
stage. The said order was passed on 6 7 the basis of the findings arrived at
by the learned Judge, which are as follows :- "The third Respondent has
already conducted confidential inquiry and submitted that report to Superintendent
of Police, SB CID stating that there are enough prima facie materials to take
action on the complaint given by the Appellant against the sixth Respondent and
others.
Under these
circumstances, it would be appropriate to direct the third Respondent to register
FIR for the various offences mentioned in the complaint given by the Appellant
dated 2.9.1998 against Karunakaran, RDO sixth Respondent and other officials
and conduct investigation. Since the confidential report show that the
preliminary confidential enquiry has been conducted in a proper way by the
third Respondent, it is unnecessary to hand over the investigation to the CBI.
Accordingly, the Deputy Superintendent of Police, SBCID, Nagapattinam District,
the third Respondent is directed to register an FIR, as noted above and take
suitable action against the persons concerned in accordance with the procedure
contemplated under law, continue the investigation and file a final report.
Regarding the claim
of interim compensation, the learned counsel for the Appellant cited judgments
in Bodhisatwa Gautam v. Subhra Chakraborty (1996 (1) SCC 49)) and D.K. Basu In
my view, the question of compensation can be considered at a later stage. The
more important is that the RDO has taken law into his own hands and caused
serious prejudice to the 7 8 personal liberty of the Appellant has to be
booked and investigation has to be conducted after registration of the FIR.
Therefore, the question regarding the entitlement of compensation and quantum
of the same can be considered by the appropriate forum and at the appropriate
stage.
With these
observations, the petition is allowed.
Consequently, no
separate order is necessary in Crl. M.P. No. 9037 of 1998."
9.
A
plain reading of the aforesaid order, refusing to hand over the investigation
to CBI, would show that the said order was a final order rejecting the prayer
of the appellant before the High Court. Subsequent to the disposing of the
application, that is to say, after 3 = years, the DSP (SB CID) Chennai had
filed an application in the aforesaid disposed of petition saying that on the
date of the aforesaid final order of the High Court dated 1st of March, 2001,
there was no post of DSP (SB CID) Nagapattinam, as the said post was abolished
by a Government order dated 17th of May, 2000. It was also brought to the
notice by the DSP (SB CID) Nagapattinam that in Rule 57 of the Manual 8 9 for
Instructions for State Special Branch, the Special Branch Officers were not
empowered to conduct investigation of cases. Accordingly, an application was
filed by him in the disposed of criminal petition for modification of the final
order dated 1st of March, 2001 and for a direction to the DSP (CB CID)
Nagapattinam instead of DSP (SB CID) Nagapattinam for investigation. This
application filed by DSP (SBCID) was registered as Crl. M.P. 3713/2001.
10.
During
the pendency of this application filed by the DSP [SB CID], an application was
filed by the respondent complaining that he and the witnesses were ill treated
and harassed by the Investigating Officer and the investigation was not
conducted in an unbiased manner and accordingly, investigation must be
transferred to CBI as prayed for by him earlier.
11.
The
aforesaid application filed by DSP (SB CID) Nagapattinam, and the application
filed by the complainant/respondent in the disposed of criminal petition 9 10
were heard by the same learned Judge and this time, by the impugned order, the
learned Judge directed that it would be better to transfer the investigation to
CBI and, accordingly, the Investigating Officer was directed to hand over the
case diary and other records forthwith to the Director, CBI, New Delhi, who
will hand over the same to a competent officer to make further investigation
and take appropriate action against the concerned and file the final report
within three months from the date of the receipt of the order. By the aforesaid
order, the original final order refusing to hand over the investigation to CBI
authorities dated 1st of March, 2001, was modified. It is this order now in
appeal before us.
12.
We
have heard the learned counsel for the parties and examined the impugned order
as well as the final order dated 1st of March, 2001 rejecting the prayer of the
respondents to hand over the investigation to the CBI authorities and other
materials on record.
13.
In
our view, the learned Judge of the Madras High Court had fallen in error in
passing the impugned order.
The following
questions need to be considered by us :
(I) Whether the High
Court had become functus officio with the disposal of the criminal petition by
the judgment and order dated 01st of March, 2001? (II) Whether the High Court,
in exercise of its inherent power under Section 482 of the Code can modify its
earlier judgment and order?
14.
Before
we take up the questions for our decision, we may look into the law on the
questions posed before us.
15.
In
the case of Hari Singh Mannn vs. Harbhajan Singh Bajwa & others (2001) 1
SCC 169, this Court held:
"There is no
provision in the Code Of Criminal Procedure authorizing the High Court to
review its judgment passed either in exercise of its appellate or revisional or
original criminal jurisdiction. Such a power cannot be exercised with the aid
or under the cloak of Section 482 of the Code. Section 362 CrPC has extended
the bar of review not only to judgment but also to the final orders other than
the judgment.
12 Section 362 is
based on an acknowledged principal of law that once a matter is finally
disposed of by a court, the said court in the absence of statutory provision
becomes functus officio and is disentitled to entertain a fresh prayer for the
same relief unless the former order is set aside by a court of competent
jurisdiction in a manner prescribed by law.
The court becomes
functus officio the moment the official order disposing of a case is signed.
Such an order cannot
be altered except to the extent of correcting a clerical or an arithmetical
error."
16.
Yet,
in the case of Simrikha vs. Dolley Mukherjee and Chhabi Mukherjee & Anr,
(1990) 2 SCC 437, this court held:
"The inherent
power under Section 482 is intended to prevent the abuse of the process of the
Court and to secure ends of justice. Such power cannot be exercised to do
something, which is expressly barred under the Code. If any consideration of
the facts by way of review is not permissible under the Code and is expressly
barred, it is not for the Court to exercise its inherent power to reconsider
the matter and record a conflicting decision. If there had been change in the
circumstances of the case, it would be in order for the High Court to exercise
its inherent powers in the prevailing circumstances and pass appropriate orders
to secure the ends of justice or to prevent the abuse of the process of the
Court.
12 13 Where there is
no such changed circumstances and the decision has to be arrived at on the
facts that existed as on the date of the earlier order, the exercise of the
power to reconsider the same materials to arrive at different conclusion is in
effect a review, which is expressly barred under Section 362."
17.
Keeping
the principles, as laid down by the aforesaid decisions of this Court in mind,
let us now look to Section 362 of the Code, which expressly provides that no
Court which has signed its judgment and final order disposing of a case, shall
alter or review the same except to correct clerical or arithmetical error saved
as otherwise provided by the Court. At this stage, the exercise of power under
Section 482 of the Code may be looked into.
18.
Section
482 enables the High Court to make such order as may be necessary to give
effect to any order under the Code or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice. The inherent powers, however,
as much are controlled by principle and precedent as are its express powers by
statutes. If a matter 13 14 is covered by an express letter of law, the court
cannot give a go-by to the statutory provisions and instead evolve a new
provision in the garb of inherent jurisdiction.
19.
In
the case of Smt Sooraj Devi vs. Pyare Lal & Anr, AIR 1981 SC 736, this
Court held "that the inherent power of the Court cannot be exercised for
doing that which is specifically prohibited by the Code."
20.
Similar
view was expressed in the case of Sankatha Singh vs. State of U.P. [1962] Supp
2 SCR 817, in which it was held:
"It is true that
the prohibition in Section 362 against the Court altering or reviewing its
judgment is subject to what is "otherwise provided by this Code or by any
other law for the time being in force". Those words, however, refer to
those provisions only where the Court has been expressly authorised by the Code
or other law to alter or review its judgment. The inherent power of the Court
is not contemplated by the saving provision contained in Section 362 and,
therefore, the attempt to invoke that power can be of no avail."
21.
As
noted herein earlier, Section 362 of the Code prohibits reopening of a final
order except in the cases of clerical or arithmetical errors. Such being the
position and in view of the expressed prohibition in the Code itself in the
form of Section 362, exercise of power under Section 482 of the Code cannot be
exercised to reopen or alter an order disposing of a petition decided on
merits.
22.
In
the present case, we find that the High Court, in the original final order,
disposing of the petition under Section 482 of the Code has specifically given
reasons for rejecting the prayer for handing over the investigation to the CBI
authorities.
23.
That
apart, after the final order was passed rejecting the prayer of the respondent
to hand over the investigation to the CBI authorities, by which, the criminal
petition filed under Section 482 was practically rejected, it was not open to
the High Court to pass a fresh order in the disposed of petition or even in the
pending petition of the DSP (SB 15 16 CID) Nagapattinam, directing investigation
to be made by the CBI authorities.
24.
As
noted herein earlier, Section 362 of the Code prohibits a Court from making
alternation in a judgment after the final order or Judgment was signed by the
Court disposing of the case finally except to correct clerical or arithmetical
errors. In our view, therefore, Section 362 of the Code cannot apply in the
facts and circumstances of the present case. There was no clerical or
arithmetical error in the order.
25.
That
apart, the respondents did not file any independent application for
transferring the investigation from the State Police authorities to the CBI
authorities on certain events which had occurred after the final order was
passed by the High Court disposing of the earlier criminal petition under
Section 482 of the Code. A prayer could be made by the respondents before the
High Court for transferring the investigation from the State Police authorities
to the CBI by filing a fresh petition under 16 17 Section 482 of the Code in
view of subsequent events that had taken place after the final order disposing
of the earlier criminal petition was passed. Again, as noted herein earlier,
the respondents had never applied for transferring the investigation from State
Police authorities to the CBI by making an independent application.
Accordingly, we do not think that the High Court was justified in handing over
the investigation of the case from the State Police authorities to the CBI
authorities. It is needless to mention that it would be open for the respondent
to make independent application under Section 482 of the Code if they find that
subsequent events having been taken place, the investigation must be
transferred from State Police authorities to CBI. Accordingly, we are unable to
sustain the impugned order of the High Court in view of our discussions made
hereinabove. Therefore, the impugned order is set aside. The appeal is thus
allowed.
26.
We
make it clear once again that if a fresh criminal petition under Section 482 of
the Code is filed by the 17 18 respondents for transferring the investigation
from State Police authorities to CBI after bringing certain subsequent events
that had taken place after the disposal of the original criminal petition if
there be any, it would be open for the High Court to entertain such application
if it is warranted and decide the same in accordance with law for which we
express no opinion on merit.
27.
For
the reasons aforesaid, the appeal is thus allowed to the extent indicated
above.
...........................J.
[TARUN CHATTERJEE]
...........................J.
[P. SATHASIVAM]
NEW
DELHI
September
02, 2008.
18 19 IN THE SUPREME
COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008
(Arising out of SLP (Crl) No. 5238 of 2004) State Rep. By D.S.P., S.B.C.I.D.,
Chenai ...
Appellants VERSUS
K.V. Rajendran & Ors ...
Respondents
*.*.*.*.*.*.* Dear Brother, The judgment in the above matter is sent herewith
for your perusal and kind consideration.
With warm regards,
..............................
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