SARANYA versus BHARATHI AND ANOTHER

[2021] 8 S.C.R. 513

SARANYA

BHARATHI AND ANOTHER

(Criminal Appeal No. 873 of 2021)

AUGUST 24, 2021.

[DR. DHANANJAYA Y. CHANDRACHUD AND

M. R. SHAH, JJ.]

Code of Criminal Procedure, 1973: s. 482 – Exercise of powerunder – Stage of framing of charge – High Court quashed and setaside the criminal proceedings qua co-accused-respondent no. 1for the offences u/ss. 420, 302 rw 109 IPC – Correctness of – Held:High Court entered into the appreciation of the evidence andconsidered whether on the basis of the evidence, the accused is likelyto be convicted or not – At this stage, while considering theapplication u/s.482 Cr.P.C., this is not at all permissible – High Courtwas not conducting the trial and/or was not exercising thejurisdiction as an appellate court against the order of convictionor acquittal – Furthermore, there was ample material to show atleast prima facie case against respondent no. 1, the High Courtought not to have quashed the chargesheet qua respondent no.1 –Order passed by the High Court quashing the chargesheet/criminalproceedings for the offences u/ss. 420, 302 rw 109 qua respondentno.1 quashed and set aside.

s. 482 – Stage of framing of charge while considering thedischarge application – Principles which the High Court to keep inmind while exercising jurisdiction u/s. 482 – Stated.

Allowing the appeal, the Court

HELD: 1.1 There is sufficient material on record raisingthe strong suspicion against respondent no.1-A2 also. It has beenfound that A2-respondent no.1 who was serving in the Secretariatand was in touch with the deceased and the complainant as sheused to go to Xerox shop owned by the deceased and sheintroduced A1 to the complainant and the deceased. It isspecifically alleged that she said that she could manage to getthe job/employment for the deceased but for that they had to pay.

CDE

AIt is true that as per the case of the prosecution and even as perthe statement of the complainant, an amount of Rs. 5 lakhs waspaid to A1. However, during the course of the investigation, anamount of Rs. 1 lakh 20 thousand has been recovered from thehouse of respondent no. 1-A2 at the instance of A2 herself. Theso-called confessional statement of respondent no.1 isBinadmissible in evidence. However, on the basis of suchstatement, there was recovery of Rs. 1 lakh 20 thousand fromthe house of A2- respondent no.1. The other aspect whether therecovered amount of Rs. 1 lakh 20 thousand was the same amountwhich was given by the deceased and the complainant to A1 is aCmatter of evidence to be considered during trial. Even the sourceof Rs. 1 lakh 20 thousand might have to be explained by theaccused. [Para 8][522-F-H; 523-A-B]

1.2 During the course of the investigation, the investigatingofficer has collected very important evidence in the form of callDdetails between A1 & A2 which are in the proximity of the time ofcommission of offence and even thereafter. Therefore, in the factsand circumstances of the case, when respondent no.1 has beenchargesheeted for the offences under Sections 420, 302 r/w 109IPC and when there is ample material to show at least primafacie case against respondent no.1-A2, the High Court hasEcommitted grave error in quashing the chargesheet/entirecriminal proceedings qua her in exercise of powers under Section482 Cr.P.C. Quashing the chargesheet against the accused is notjustified. The High Court evidently ignored what has emergedduring the course of investigation. The High Court entered into

Fthe appreciation of the evidence and considered whether on thebasis of the evidence, the accused is likely to be convicted ornot, which as such is not permissible at all at this stage whileconsidering the application under Section 482 Cr.P.C. The HighCourt was not as such conducting the trial and/or was not

exercising the jurisdiction as an appellate court against the orderGof conviction or acquittal. Therefore, in the facts andcircumstances of the case, the High Court ought not to havequashed the chargesheet qua respondent no.1- original accusedno.2. The judgment and order passed by the High Court quashingthe chargesheet/criminal proceedings for the offences underH

Sections 420, 302 r/w 109 IPC qua respondent no.1-accused no.2is quashed and set aside. [Para 9, 10][523-B-F-G]

State of Madhya Pradesh v. Deepak (2019) 13 SCC62 : [2019] 2 SCR 1055 – relied on.

Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460 :[2012] 7 SCR 988; State of Rajasthan v. FatehkaranMehdu (2017) 3 SCC 198 : [2017] 2 SCR 491; ChitreshKumar Chopra v. State (Government of NCT of Delhi)(2009) 16 SCC 605 : [2009] 13 SCR 230 – referredto.

CaseLawReference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.873 of 2021.

From the Judgment and Order dated 25.08.2020 of the High Courtof Judicature at Madras in Crl. O.P. No.1443 of 2020.

G. S. Mani, Ms. Khushboo Tomar, G. Ganesh Kumar, R. Sathish,Advs. for the Appellant.

S. Nagamuthu, Sr. Adv., M.P. Parthiban, A.S. Vairawan,R. Sudhakaran, Mrs. Shalini Mishra, T Hari Hara Sudhan, Vikas, Dr.Joseph Aristotle S., Ms. Preeti Singh, Ms. Ripul Swati Kumari, Advs.for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 25.08.2020 passed by the High Court of Judicature atMadras in Criminal OP No. 1443 of 2020, by which the High Court inexercise of powers under Section 482 Cr.P.C. has quashed and set asidethe entire criminal proceedings qua respondent no.1 herein – originalaccused no.2 (A2) in P.R.C. No.250 of 2019 on the file of the learned X

AMetropolitan Magistrate, Egmore, Chennai, the original complainant –wife of the deceased – victim has preferred the present appeal.

2. That an FIR was lodged against respondent no.1 herein andone another on the statement of the appellant herein initially for theoffences under Sections 326, 307, 302, 420, r/w 34 IPC. As per theBstatement and the allegations in the FIR, her husband was serving asAssistant Professor year before. However, thereafter he wasunemployed; that she had studied up to B.Com and looking after thedomestic works; that since her husband was unemployed and it wasdifficult to maintain the family expenses, at that time, one Vela aliasVelayutham was introduced by respondent no.1 herein and told themCthat the said Vela alias Velayutham is employed at Guindy EmploymentExchange and that if they give money, he can arrange Governmentemployment for them; it was further alleged that believing in his wordsthey gave Rs. 4 lakhs to Velayutham about six months before; that on23.09.2019 the said Velayutham promised that my husband will get theDappointment order today itself and asked us to come to Vyasarpadi; thatas asked by Velayutham, A1 in the aforesaid FIR, the complainant andher husband went to Flat No. 560, 8[th] Main Road behind VyasarpadiMullai Nagar Bus Depot at about 9:00 a.m. and met him; that A1 offeredthem ‘Prasadam’ from Shirdi Sai Baba Temple and to talk after ourtaking the Prasadam; that it was powderlike Vibhuti in Shiva Temples;Ethat since the powder was bitter in taste, she spitted it out, however, herhusband had consumed it; that her husband fainted and fell down andthat she was also feeling drowsy; that people nearby called 108Ambulance and sent them to Stanley Hospital for treatment; that whileshe was on treatment she came to know that her husband died at theFspot of the incident itself; that it was alleged that the powder given byVelayutham-A1 was the cause for her husband’s death and herdrowsiness; that the statement of the complainant was recorded at thehospital on 24.09.2019 which at the relevant time was treated as dyingdeclaration. The relevant extract of the same is as under:

G“My name is Saranya I studied B.Com, I got married, my husbandname is Karthick, I am having two sons, I am house wife, myhusband was professor and due to non-payment of salary, hestarted Xerox shop. One Bharathi regularly come to my husband’sXerox shop for Xeroxing. She said that she is working in secretariat,she said there is job in employment office and for arranging theH

same Rs. 6 Lakhs may be given, we decided the job for my husbandas advance during 7 month we paid 5 Lakhs. Daily when enquiredthe phone, the file has been moved, one week ago he said that hewill give order copy and saibaba prasadam. We went to palaniwith family and returned on Monday at 7.30 hrs, Since, there isexamination for our sons, I took my sons to school due to delayand spoken with the madam and left my sons in the school, myhusband saw the missed call from velayutham three times,immediately my husband asked me to go home but I wanted toaccompany him to Mullai Nagar. Previously I went to guindy office,velayutham asked as to come in the lane, green colour house ismy house. He showed an order and given viboothi and kungumamand we kept it then he opened the box in the vehicle, he has givensome powder from to me and my husband yellow colour cover inspoon, immediately velayutham took the mobile of her husbandand went in two wheeler for taking Xerox copy of the order copy.My husband took the prasadam and felt something irritation andimmediately took the water and spit the same, and also he givewater to his wife with instruction to spit the content in her mouth,she also spit the content, my husband suffered fits and he closedhis eyes, I do not know what had happened to me. When I wakeup, I was in the hospital. Velayutham has given something to myhusband and killed him, Bharathi is also the cause. Enquirycompleted at 02.55 afternoon. The Patient conscious and able tospeak till completing the declaration.”2.1 That the dying declaration was recorded by the Magistrate inthe presence of Doctor who certified that the patient was conscious andable to speak; that it was the specific case on behalf of the appellant-complainant that it was the respondent no.1 herein – original accusedno.2 who introduced Vela @ Velayutham – A1 to them and she said thatshe is working in the Secretariat and that there is job in the employmentoffice and for arranging the same, Rs. 6 lakhs may be given and relyingupon her statement Rs. 5 lakhs was given; that thereafter after theinvestigation the investigating officer filed the chargesheet against Vela@ Velayutham – A1 for the offences under Sections 326, 307, 302, 420r/w 34 IPC and against respondent no.1 herein – A2 for the offencesunder Sections 420, 302 r/w Section 109 IPC; that the case was pendingfor committal before the learned X Metropolitan Magistrate, Egmore,Chennai; that at this stage respondent No.1 herein – A2 approached the

AHigh Court by way of Criminal O.P. No. 1443 of 2020 under Section482 Cr.P.C praying for quashing the entire chargesheet as against her,pending committal in P.R.C. No. 250 of 2019 on the file of the learned XMetropolitan Magistrate, Egmore, Chennai; that by the impugnedjudgment and order, the High Court in exercise of powers under Section482 Cr.P.C. has quashed and set aside the entire chargesheet and theBcriminal proceedings qua respondent no.1 herein-A2 in P.R.C. No. 250of 2019 on the file of the learned X Metropolitan Magistrate, Egmore,Chennai for the offences under Sections 420, 302 r/w 109 IPC.

3. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court quashing and setting aside the entireCcriminal proceedings/chargesheet qua respondent no.1 herein-A2 inP.R.C. No. 250 of 2019 on the file of the learned X MetropolitanMagistrate, Egmore, Chennai for the offences under Sections 420, 302r/w 109 IPC, the original complainant – victim – wife of the deceasedhas preferred the present appeal.D

4. Shri G.S. Mani, learned Advocate has appeared for the appellant,Shri S. Nagamuthu, learned Senior Advocate has appeared on behalf ofrespondent no.1 herein – original accused no.2 and Shri (Dr.) JosephAristotle S, learned Advocate has appeared on behalf of the respondent– State of Tamil Nadu.

4.1 Shri Mani, learned Advocate appearing on behalf of theappellant has vehemently submitted that in the facts and circumstancesof the case, the High Court has committed grave error in quashing andsetting aside the entire criminal proceedings qua respondent no.1 hereinfor the offences under Sections 420, 302 r/w 109 IPC, in exercise ofFpowers under Section 482 Cr.P.C.

4.2 It is submitted that despite the fact that there is ample materialagainst respondent no.1 herein – original accused no.2, the High Courthas quashed the entire criminal proceedings/chargesheet by enteringinto the merits of the allegations and appreciating the evidence on record,Gwhich at this stage and while considering the application under Section482 Cr.P.C. is not permissible.

4.3 It is submitted that the High Court has not properly appreciatedthe fact that as such it was respondent no.1 herein – original accusedno.2 who assured and/or given promise that she will arrange for the joband for that she demanded the money.H

4.4 It is submitted that as such respondent no.1 herein – originalaccused no.2 introduced Vela @ Velayutham – A1 to the complainantand her husband and an amount of Rs. 5 lakhs were given to A1. It issubmitted that the High Court has not properly appreciated the fact thatas such there was confessional statement of respondent no.1 herein –A2 and on the basis of the said confessional statement, there was arecovery of Rs. 1 lakh 20 thousand from the house of respondent no.1herein – original accused no.2.

4.5 It is further submitted that during the course of the investigation,the investigating officer also collected the evidence in the form of calldetails, more particularly the calls between A1 & A2 in the proximity ofthe time of commission of offence.

4.6 It is submitted that despite the above material collected andthe circumstances, the High Court has erroneously quashed thechargesheet/entire criminal proceedings qua respondent no.1 herein –original accused no.2, in exercise of powers under Section 482 Cr.P.C.

4.7 It is submitted that while quashing the chargesheet/entirecriminal proceedings, the High Court has evidently ignored what hasemerged during the course of investigation. The High Court has not atall applied the relevant test, namely, when there is sufficient ground forproceeding against the accused or whether there is ground for presumingthat accused has committed the offence. It is submitted that the HighCourt has exceeded in its jurisdiction to quash the chargesheet/entirecriminal proceedings in exercise of powers under Section 482 Cr.P.C.Heavy reliance is placed on the decision of this Court in the case ofState of Madhya Pradesh v. Deepak, reported in (2019) 13 SCC62.

4.8 Making the above submissions, it is prayed to allow the presentappeal and quash and set aside the impugned judgment and order passedby the High Court quashing and setting aside the chargesheet/entirecriminal proceedings qua respondent no.1 herein – original accused no.2for the offences under Sections 420, 302 r/w 109 IPC.

5. Dr. Joseph Aristotle S, learned Advocate appearing on behalfof the State of Tamil Nadu has supported the appellant. Reliance isplaced on the counter affidavit filed on behalf of respondent no.2 – Stateof Tamil Nadu.

A5.1 It is vehemently submitted that as such during the course ofthe investigation, the investigating officer collected ample material/evidence against both the accused and only thereafter chargesheet hasbeen filed against A1 for the offences under Sections 326, 307, 302, 420,r/w 34 IPC and for the offences under Sections 420, 302 r/w 109 IPCagainst respondent no.1 herein – original accused no.2.B

5.2 It is vehemently submitted that during the course of theinvestigation, the investigating officer has collected the call details betweenA1 and A2. It is submitted that perusal of the call details report furnishedby the service provider and the nodal officer clearly proves that therewere several calls made by both A1 and A2, vice versa, for example on23.09.2019 (the day when the incident had occurred) at about 09:05:26,

respondent no.1 herein – A2 made call to A1 on his mobile No.[REDACTED] from her mobile No. [REDACTED] and again A1 had made acall to A2 – respondent no.1 herein on the same day at about 09:51:59and 09:55:15. It is submitted that it clearly shows that at that time A1was available at the place of the incident and for second call also towerlocation showed the same place. It is submitted that again on the sameday from mobile No. [REDACTED], A1 made call to A2 on her mobileno. [REDACTED] at about 6:36 p.m. It is submitted that therefore it isclearly established that the said Mrs. Bharathi, respondent no.1 herein –A2 aided and instigated the offence committed by A1.

5.3 It is further submitted that there was recovery of Rs. 1 lakh20 thousand from the house of A2 at the instance of A2. It is submittedtherefore that the High Court has exceeded in its jurisdiction to quashthe chargesheet/entire criminal proceedings qua respondent no.1 herein,while exercising the powers under Section 482 Cr.P.C.F

6. Shri Nagamuthu, learned Senior Advocate appearing on behalfof respondent no.1 herein – A2 has submitted that in the facts andcircumstances of the case and considering the material/evidence on recordand having found that there is not even prima facie evidence/materialagainst respondent no.1 herein – A2, the High Court has rightly quashedGthe chargesheet/criminal proceedings qua respondent no.1 herein inexercise of powers under Section 482 Cr.P.C. It is submitted that assuch and even considering the statement of the original complainant as itis and even considering the case of the prosecution as it is, it cannot besaid that respondent no.1 herein – A2 has committed any offence underHSections 420, 302 r/w 109 IPC. It is submitted that from the statement

of the original complainant – appellant, it can be gathered that theallegations against A2 is that she introduced A1 to them; that an amountof Rs.4/5 lakhs was paid to A1; that the allegations of giving poison andeven purchasing of poison is against A1 only; that there is no evidencethat at the time when A1 gave poison to the deceased, A2 – respondentno.1 herein was present.

6.1 It is further submitted that the so-called confessional statementof A2 is not admissible in the evidence at all and therefore no reliancecan be placed upon such alleged confessional statement, which has noevidentiary value.

6.2 It is further submitted that even the so-called recovery of Rs.1 lakh 20 thousand from the house of A2 cannot bring home the chargeagainst A2 for the offences for which she has been chargesheeted. It issubmitted that there is no evidence at all that it was the very moneywhich was given to A1 by the complainant.

6.3 It is submitted that even the so-called call details between A1& A2 cannot be said to be sufficient material/evidence against A2.Merely because A1 & A2 might have talked cannot be held against A2.

6.4 It is further submitted that even the statement of thecomplainant recorded on 24.09.2019 recorded at the hospital cannot betreated as dying declaration as subsequently she survived. It is submittedthat there is improvement in the case and subsequently she had comeout with the case that she paid Rs. 5 lakhs, whereas as per the originalcase, an amount of Rs. 4 lakhs was given.

6.5 It is submitted that as such there is no material/evidence at allagainst A2 for the offence under Section 109 IPC. It is submitted that nocase of appellant attracting the offence under Section 109 IPC againstrespondent no.1 herein – A2 is made out. It is submitted that there is noingredient available as against A2 to attract the offence under Section109 IPC.

6.6 It is submitted therefore that in the facts and circumstancesof the case, the High Court has not committed any error in quashing andsetting aside the chargesheet/criminal proceedings qua accused no.2 inexercise of powers under Section 482 Cr.P.C.

6.7 Making the above submissions, it is prayed to dismiss thepresent appeal.

A7. We have heard the learned counsel for the respective partiesat length.

Before considering the rival submissions of the parties, fewdecisions of this Court on the principles which the High Court must keepin mind while exercising the jurisdiction under Section 482 Cr.P.C./at theBstage of framing of the charge while considering the discharge applicationare required to be referred to and considered.

7.1 In the case of Deepak (supra), to which one of us (Dr. JusticeD.Y. Chandrachud) is the author, after considering the other bindingdecisions of this Court on the point, namely, Amit Kapoor v. RameshCChander (2012) 9 SCC 460; State of Rajasthan v. FatehkaranMehdu (2017) 3 SCC 198; and Chitresh Kumar Chopra v. State(Government of NCT of Delhi) (2009) 16 SCC 605, it is observedand held that at the stage of framing of charges, the Court has to considerthe material only with view to find out if there is ground for“presuming” that the accused had committed the offence. It is observedDand held that at that stage, the High Court is required to evaluate thematerial and documents on record with view to finding out if the factsemerging therefrom, take at their face value, disclose the existence ofall the ingredients constituting the alleged offence or offences. It is furtherobserved and held that at this stage the High Court is not required toEappreciate the evidence on record and consider the allegations on meritsand to find out on the basis of the evidence recorded the accusedchargesheeted or against whom the charge is framed is likely to beconvicted or not.

8. In the present case, there is sufficient material on record raisingFthe strong suspicion against respondent no.1 herein – A2 also. It hasbeen found that A2- respondent no.1 herein who was serving in theSecretariat and was in touch with the deceased and the complainant asshe used to go to Xerox shop owned by the deceased and she introducedA1 to the complainant and the deceased. It is specifically alleged thatshe said that she can manage to get the job/employment for the deceasedGbut for that they have to pay. It is true that as per the case of theprosecution and even as per the statement of the complainant, an amountof Rs. 5 lakhs was paid to A1. However, during the course of theinvestigation, an amount of Rs. 1 lakh 20 thousand has been recoveredfrom the house of respondent no.1 herein – A2 at the instance of A2Hherself. It may be truethat the so-called confessional statement of

respondent no.1 herein is inadmissible in evidence. However, it is to benoted that on the basis of such statement, there was recovery of Rs. 1lakh 20 thousand from the house of A2 – respondent no.1 herein. Theother aspect whether the recovered amount of Rs. 1 lakh 20 thousandwas the same amount which was given by the deceased and thecomplainant to A1 is matter of evidence to be considered during trial.Even the source of Rs. 1lakh 20 thousand might have to be explained bythe accused.

9. It also appears that during the course of the investigation, theinvestigating officer has collected very important evidence in the formof call details between A1 &A2 which are in the proximity of the time ofcommission of offence and even thereafter. Therefore, in the facts andcircumstances of the case, when respondent no.1 herein has beenchargesheeted for the offences under Sections 420, 302 r/w 109 IPCand as observed hereinabove when there is ample material to show atleast prima facie case against respondent no.1 herein – A2, the HighCourt has committed grave error in quashing the chargesheet/entirecriminal proceedings qua her in exercise of powers under Section 482Cr.P.C. Quashing the chargesheet against the accused is not justified.The High Court has evidently ignored what has emerged during thecourse of investigation. The High Court has entered into the appreciationof the evidence and considered whether on the basis of the evidence,the accused is likely to be convicted or not, which as such is notpermissible at all at this stage while considering the application underSection 482 Cr.P.C. The High Court was not as such conducting the trialand/or was not exercising the jurisdiction as an appellate court againstthe order of conviction or acquittal. Therefore, in the facts andcircumstances of the case, the High Court ought not to have quashedthe chargesheet qua respondent no.1 herein – original accused no.2.

10. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passed bythe High Court quashing the chargesheet/criminal proceedings in P.R.C. No. 250 of 2019 on the file of the learned Metropolitan Magistrate,Egmore, Chennai for the offences under Sections 420, 302 r/w 109 IPCqua respondent no.1 herein – original accused no.2 deserves to be quashedand set aside and is accordingly quashed and set aside.Now the learnedMagistrate to proceed further with the case, in accordance with law. Itgoes without saying that any observations made by this Court in the

Apresent order shall be confined to while considering the application underSection 482 Cr.P.C. and the trial in the aforesaid case shall proceedfurther on its own merits, in accordance with law on the basis of theevidence laid.

11. The appeal is allowed in the aforesaid terms.

Nidhi Jain

Appeal allowed.