Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.472 OF 2021
[ Arising out of Special Leave Petition (Crl.) No. 10157 of 2019 ]
| Sanjay Kumar Rai | ..... Appellant |
|---|---|
| VERSUS | |
| State of Uttar Pradesh & Anr. | ..... Respondent(s) |
J U D G M E N T
Surya Kant, J:
Leave granted.
2.
This appeal emanates from the judgment dated 28.11.2018
Signature Not Verified
passed by the High Court of Judicature at Allahabad whereby a
Digitally signed by
Vishal Anand
Date: 2021.05.07
19:41:47 IST
Reason:
criminal revision against the order dated 13.03.2014 of the
2
Chief Judicial Magistrate, Sant Kabir Nagar refusing to
discharge the appellant in N.C.R. No.120/2012 under Sections
504 and 506 of Indian Penal Code, 1860 [hereinafter referred to
as “IPC”], has been turned down.
3. A brief reference to the facts may be necessary for disposal of
the present appeal. A complaint was lodged with the
jurisdictional police by Respondent No.2 (Kuldeep Mishra), who
claimed to be a newspaper correspondent working for ‘The
Pioneer’. It was alleged that he had conducted a journalistic
investigation for malpractices against one gas agency, namely
‘Kalpana Indane Service’. He had also applied for certain
information under the Right to Information Act 2005, so as to
conduct investigation on alleged black marketing of gas
cylinders by the aforesaid agency. The appellant herein is a
partner in the aforesaid gas agency. As per the NCR report it is
stated that the appellant, while he was responding to the calls
made by Respondent No.2, started calling him names and
threatened to kill Respondent No.2. It is alleged that the
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appellant had threatened Respondent No.2 to pump numerous
bullets in his face so that he may not even be recognized.
4. On 08.05.2012 the complainant filed an application before the
concerned Chief Judicial Magistrate (“CJM”) under Section 155
(2) Cr.P.C. for conducting investigation in the aforesaid
allegations. The Court accordingly directed investigation and
ordered the local police to submit the report.
5. It may be noted that during the course of investigation
statement of complainant was recorded by the police which
forms part of the case diary. The material allegations as stated
in the aforesaid statement are as follows:
“………..The applicant had kept the speaker of
his mobile on and from his mobile no. XXXX
telephoned to Sanjay Rai’s mobile no.XXXX to
enquire about the latest irregularities in the
said gas agency. On mobile itself, Sanjay Rai
started to give filthy abuses to the applicant
and threatened to kill him. At the same he
also told that your right to information and
intellectual concerns shall be kept back in
your hands. I will shot [ sic. ] such number of
bullets that even your face could not be
recognized. Mohd. Sahrif Kahn and Umesh
Kumar Bhatt had also heard the threatening
given by Sanjay Rai.”
4
It is apparent that there is material change in the statement
of the respondent – complainant wherein he introduced Mohd.
Sharif Khan and Umesh Kumar Bhatt as witnesses for the call
made by the appellant herein.
6. In any case, on 21.07.2012 a charge sheet came to be filed
against the appellant/accused under Sections 504 and 506 IPC
based on the statement of complainant and the affidavits of two
witnesses. It may not be out of context to mention here that
the Investigating Officer did not deem it necessary to take the
version of the appellant on record or consider his side of story
also.
7. The CJM took cognizance of the matter on 08.11.2012.
However, well before for framing of the charges the appellant
sought his discharge under Section 239 Cr.P.C. contending that
the complainant has falsely implicated him and the allegation of
telephonic threats does not constitute an offence under
Sections 504 and 506 of IPC. It was further averred that the
investigation was not fair and was unilateral in its approach
wherein the investigating officer had made no efforts to find out
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the truth and had instead relied on the statement of the
complainant and other planted witnesses to fasten a case
against the appellant. The learned CJM did not agree with the
appellant’s plea and rejected his discharge application
observing as under:
“xxx xxx xxx
From perusal of record it is obvious that no
affidavit or any documentary evidence has
been filed by the applicant/accused in support
of his dischargeapplication.
The fact that which word has been used as
abuses and threatening by the applicant is a
matter of evidence which can not be determined
at this stage. [sic.]
From oral as well as documentary evidences on
records, there are sufficient evidence on records
to frame charges against the accused.
In view of the aforesaid facts and
circumstances, the application dated
20.02.2014 filed by the applicant Shree Sanjay
Kumar Rai, U/s239, Cr.P.C. does not appear to
be maintainable at this stage and therefore is
liable to be rejected.
xxx xxx xxx”
8. The appellant aggrieved by the aforesaid order approached the
High Court through a Criminal Revision Petition, seeking
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reversal of CJM’s order. The High Court relying on the
judgment of this Court in Asian Resurfacing of Road Agency
1
observed that
Pvt. Ltd. v. Central Bureau of Investigation
interference in the order framing charges or refusing to
discharge is called for in rarest of rare case only to correct the
patent error of jurisdiction. Finding no such jurisdictional error
in CJM’s order the Criminal Revision Petition was dismissed.
9. Dissatisfied with the aforesaid impugned order, the appellant
accused has approached this Court through Special Leave
Petition.
CONTENTIONS:
10. Learned Counsel for the appellant urged that prima facie, the
story of the complainant seems dubious, for he himself initiated
the phone call, put it on speaker and had two witnesses ready
to listen to the conversation. No call records had been sought
by the police, affidavits of the witnesses were blindly accepted
and no attempt was made to record their statements under
Section 161 of CrPC. The Investigating Officer proceeded with a
closed mind and casually overlooked the credentials of the
1
(2018) 16 SCC 299
7
complainant who is involved in seven criminal cases including
under Sections 323, 504 and 506 of IPC. A letter from the
Resident Editor of ‘The Pioneer’ was also produced, showing
that the complainant was not employed with their newspaper
around the time of the alleged incident.
11. On the other hand, learned State Counsel urged that the
allegations make for a clear case under Sections 504 and 506
of IPC and that no error was committed by the High Court or
the CJM. In addition to the judgment of this Court which the
High Court relied upon, he buttressed his submissions citing
2
which held that the
State of Karnataka v. M.R. Hiremath
Court ought not to enter into questions of evidentiary value of
the material adduced at the stage of considering discharge, and
3
Srilekha Sentelkumar v. CBI whereby this Court opined that
it was impermissible to look into the merits of the case while
exercising powers under Section 239 CrPC.
ANALYSIS :
2 (2019) 7 SCC 515
3 (2019) 7 SCC 82
8
12. At the outset, we may note that the High Court has dismissed
the Criminal Revision on the ground of lack of jurisdiction
under Section 397 of Cr.P.C. The High Court did not examine
the issue in detail to find out whether the continuation of
proceedings will amount to abuse of process of law in this case.
The impugned order cites the decision of this Court in Asian
wherein it was noted as under:
Resurfacing (supra)
“ …Thus, we declare the law to be that order framing
charge is not purely an interlocutory order nor a
final order. Jurisdiction of the High Court is not
barred irrespective of the label of a petition, be it
under Sections 397 or 482 CrPC or Article 227 of the
Constitution. However, the said jurisdiction is to be
exercised consistent with the legislative policy to
ensure expeditious disposal of a trial without the
same being in any manner hampered. Thus
considered, the challenge to an order of charge
should be entertained in a rarest of rare case only to
correct a patent error of jurisdiction and not to re
appreciate the matter.”
13. It appears to us that while limiting the scope of a criminal
revision to jurisdictional errors alone, the High Court
apparently underappreciated the Judgment in
Asian
Resurfacing (supra) . We say so at least for two reasons. First,
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the material facts in the abovecited case dealt with a challenge
to the charges framed under the Prevention of Corruption Act,
1988 (“POCA”). The cited judgment itself enlightens that not
only is POCA a special legislation, but also contains a specific
bar under Section 19 against routine exercise of revisional
jurisdiction. Second , This Court in Asian Resurfacing (Supra)
while expressing concern regarding the need to tackle rampant
pendency and delays in our criminal law system, followed the
ratio laid down in an earlier decision in
Madhu Limaye v.
4
State of Maharashtra as can be seen from the following
extract:
“ 27. Thus, even though in dealing with different
situations, seemingly conflicting observations may
have been made while holding that the order
framing charge was interlocutory order and was not
liable to be interfered with under Section 397(2) or
even under Section 482 CrPC, the principle laid
down in Madhu Limaye [Madhu Limaye v. State
of Maharashtra, (1977) 4 SCC 551: 1978 SCC
(Cri) 10] still holds the field. Order framing
charge may not be held to be purely an
interlocutory order and can in a given
situation be interfered with under Section
397(2) CrPC or 482 CrPC or Article 227 of the
4 (1977) 4 SCC 551
10
Constitution which is a constitutional provision
but the power of the High Court to interfere
with an order framing charge and to grant stay
is to be exercised only in a exceptional
situation.”
(emphasis supplied)
14.
In Madhu Limaye (supra), this Court authoritatively held:
“ 9… Sometimes the revisional jurisdiction of the High
Court has also been resorted to for the same kind of
relief by challenging the order taking cognizance or
issuing processes or framing charge on the grounds
that the Court had no jurisdiction to take cognizance
and proceed with the trial, that the issuance of
process was wholly illegal or void, or that no charge
could be framed as no offence was made out on the
allegations made or the evidence adduced in Court..
10. … Even assuming, although we shall presently
show that it is not so, that in such a case an order of
the Court taking cognizance or issuing processes is
an interlocutory order, does it stand to reason to say
that inherent power of the High Court cannot be
exercises for stopping the criminal proceeding as
early as possible, instead of harassing the accused
up to the end?
The answer is obvious that the
bar will not operate to prevent the abuse of the
process of the Court and/or to secure the ends
of justice. The label of the petition filed by an
aggrieved party is immaterial.
(emphasis supplied)
11
15. The correct position of law as laid down in Madhu Limaye
, thus, is that orders framing charges or refusing
(supra)
discharge are neither interlocutory nor final in nature and are
therefore not affected by the bar of Section 397 (2) of CrPC. That
apart, this Court in the abovecited cases has unequivocally
acknowledged that the High Court is imbued with inherent
jurisdiction to prevent abuse of process or to secure ends of
justice having regard to the facts and circumstance of individual
cases. As a caveat it may be stated that the High Court, while
exercising its aforestated jurisdiction ought to be circumspect.
The discretion vested in the High Court is to be invoked carefully
and judiciously for effective and timely administration of criminal
justice system. This Court, nonetheless, does not recommend a
complete hands off approach. Albeit, there should be
interference, may be, in exceptional cases, failing which there is
likelihood of serious prejudice to the rights of a citizen. For
example, when the contents of a complaint or the other
purported material on record is a brazen attempt to persecute an
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innocent person, it becomes imperative upon the Court to
prevent the abuse of process of law.
16. Further, it is well settled that the trial court while considering
the discharge application is not to act as a mere post office. The
Court has to sift through the evidence in order to find out
whether there are sufficient grounds to try the suspect. The court
has to consider the broad probabilities, total effect of evidence
and documents produced and the basic infirmities appearing in
the case and so on. [
Union of India v. Prafulla Kumar
5
Samal ]. Likewise, the Court has sufficient discretion to order
further investigation in appropriate cases, if need be.
17. This brings us to the present case wherein the High Court has
not gone into the merits of the case and did not analyze the
case in light of the settled law referred to above.
18.
The High Court has committed jurisdictional error by not
entertaining the revision petition on merits and overlooking the
fact that ‘discharge’ is a valuable right provided to the accused.
In line with the fact that the High Court and the court below
have not examined the fairness of criminal investigation in this
5 (1979) 3 SCC 4
13
case and other related aspects concerning improvement of
witness statements, it is necessary for the High Court to
reconsider the entire matter and decide the revision petition
afresh. Accordingly, we set aside the impugned order dated
28.11.2018 and remand the case back to the High Court for its
reconsideration in accordance with law.
19.
The appeal is disposed of in the aforesaid terms.
All the pending application(s), if any, also stands disposed of
accordingly.
..…………………………..CJI.
……………………………J.
(SURYA KANT)
..………………………….J.
(ANIRUDDHA BOSE)
NEW DELHI
DATED: 07.05.2021