Law Web: Whether revision is maintainable against the order of framing of charge or discharge of accused?

The correct position of law as laid down in Madhu Limaye

(supra), thus, is that orders framing charges or refusing

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 above cited 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

innocent person, it becomes imperative upon the Court to

prevent the abuse of process of law. {Para 15}

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

Samal(1979) 3 SCC 4]. 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

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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.472 OF 2021

Sanjay Kumar Rai Vs State of Uttar Pradesh & Anr.

Author: Surya Kant, J:

DATED : 07.05.2021

Leave granted.

2. This appeal emanates from the judgment dated 28.11.2018

passed by the High Court of Judicature at Allahabad whereby a

criminal revision against the order dated 13.03.2014 of the

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

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.”

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

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

reversal of CJM’s order. The High Court relying on the

judgment of this Court in Asian Resurfacing of Road Agency

Pvt. Ltd. v. Central Bureau of Investigation (2018) 16 SCC 299 observed that

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

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

State of Karnataka v. M.R. Hiremath (2019) 7 SCC 515

which held that the

Court ought not to enter into questions of evidentiary value of

the material adduced at the stage of considering discharge, and

Srilekha Sentelkumar v. CBI (2019) 7 SCC 82 whereby this Court opined that

it was impermissible to look into the merits of the case while

exercising powers under Section 239 CrPC.

ANALYSIS :

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

Resurfacing (supra) wherein it was noted as under:“…

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 reappreciate

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,

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.

State of Maharashtra4 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

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)

15. The correct position of law as laid down in Madhu Limaye

(supra), thus, is that orders framing charges or refusing

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

innocent person, it becomes imperative upon the Court to

prevent the abuse of process of law.