Full Judgment Text
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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
J U D G M E N T
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
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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 ½ 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,
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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 :-
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5. On 26 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
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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
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made a hoax call to the officer. On 27 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
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27 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
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and was released from custody. On 2 of September, 1998,
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the respondent herein alleged to have given a complaint
against the RDO and other officers for having tortured him
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and for having committed other illegal acts between 26 of
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August 1998 and 28 August, 1998.
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6. On 06 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
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05 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
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afterthought and totally false. On 08 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
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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
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the complaint filed on 02 of September, 1998;
(b) Transfer further investigation to the Central
Bureau of Investigation;
(c) Order payment of compensation of Rs One lakh.
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8. As noted herein earlier, by a final order dated 1 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
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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
Vs. State of W. B. (1995 (1) SCC 416).
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
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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 ½ years,
the DSP (SB CID) Chennai had filed an application in the
aforesaid disposed of petition saying that on the date of the
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aforesaid final order of the High Court dated 1 of March,
2001, there was no post of DSP (SB CID) Nagapattinam, as
the said post was abolished by a Government order dated
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17 of May, 2000. It was also brought to the notice by the
DSP (SB CID) Nagapattinam that in Rule 57 of the Manual
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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
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modification of the final order dated 1 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
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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
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over the investigation to CBI authorities dated 1 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
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dated 1 of March, 2001 rejecting the prayer of the
respondents to hand over the investigation to the CBI
authorities and other materials on record.
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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 :
Whether the High Court had become functus
(I)
officio with the disposal of the criminal
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petition by the judgment and order dated 01
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.
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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.
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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
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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.”
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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
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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
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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
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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.
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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,
…………………………
[TARUN CHATTERJEE ]
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Hon. Mr. Justice P. Sathasivam
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