SANJAY KUMAR RAI versus STATE OF UTTAR PRADESH & ANR.

[2021] 7 S.C.R. 143

SANJAY KUMAR RAI

STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No. 472 of 2021)

MAY 07, 2021

[N. V. RAMANA, CJI, SURYA KANT ANDANIRUDDHA BOSE, JJ.]

Code of Criminal Procedure, 1973 – s.397 – Criminal revision– Judicial Magistrate declined to discharge appellant in case u/ss.504 and 506 IPC – Criminal revision against the order turneddown by High Court on ground of lack of jurisdiction u/s.397 CrPCwhile citing Supreme Court decision in Asian Resurfacing case –On appeal, held: The High Court apparently under-appreciatedthe decision in Asian Resurfacing case – One may say so at least fortwo reasons – Firstly, the said case dealt with challenge to chargesframed under the Prevention of Corruption Act, 1988 (POCA) whichnot only is special legislation, but also contains specific bar u/s.19 thereof against routine exercise of revisional jurisdiction –Secondly, Supreme Court in Asian Resurfacing case while expressingconcern regarding the need to tackle rampant pendency and delaysin criminal law system, followed the ratio laid down in an earlierdecision in Madhu Limaye wherein it is laid down that orders framingcharges or refusing discharge are neither interlocutory nor final innature and are therefore not affected by the bar of s.397(2) CrPC –That apart, the High Court is imbued with inherent jurisdiction toprevent abuse of process or to secure ends of justice having regardto the facts and circumstances of individual cases – In the presentcase, the High Court committed jurisdictional error by notentertaining the revision petition on merits and overlooking the factthat ‘discharge’ is valuable right provided to the accused – In linewith the fact that the High Court and the court below did not examinethe fairness of criminal investigation in this case and other relatedaspects concerning improvement of witness statements, the HighCourt is directed to decide the revision petition afresh – IPC – ss.504and 506 – Revision.

CDE

AJurisdiction – Inherent Jurisdiction – Inherent Jurisdictionof the High Court – Ambit of – Held: High Court is imbued withinherent jurisdiction to prevent abuse of process or to secure endsof justice having regard to the facts and circumstance of individualcases – However, the High Court, while exercising its afore-statedjurisdiction ought to be circumspect – Discretion vested in the HighBCourt is to be invoked carefully and judiciously for effective andtimely administration of criminal justice system – Nonetheless, acomplete hands off approach is not recommended – Albeit, thereshould be interference, may be, in exceptional cases, failing whichthere is likelihood of serious prejudice to the rights of citizen –CAbuse of Court – Prevention of – Administration of criminal justice.

Remanding the matter to High Court, the Court

HELD:1.1. While limiting the scope of criminal revisionto jurisdictional errors alone, the High Court apparently under-appreciated the Judgment in Asian Resurfacing case. One may sayDso at least for two reasons. First, the material facts in the said casedealt with challenge to the charges framed under the Preventionof Corruption Act, 1988 (POCA). The judgment itself enlightensthat not only is POCA special legislation, but also contains aspecific bar under Section 19 against routine exercise of revisionalEjurisdiction. Second, this Court in Asian Resurfacing while expressingconcern regarding the need to tackle rampant pendency and delaysin our criminal law system, followed the ratio laid down in an earlierdecision in Madhu Limaye. [Para 13][149-G-H; 150-A-B]1.2. The correct position of law as laid down in MadhuFLimaye, is that orders framing charges or refusing discharge areneither interlocutory nor final in nature and are therefore notaffected by the bar of Section 397 (2) of CrPC. That apart, theHigh Court is imbued with inherent jurisdiction to prevent abuseof process or to secure ends of justice having regard to the factsand circumstance of individual cases. As caveat it may be statedGthat the High Court, while exercising its afore-stated jurisdictionought to be circumspect. The discretion vested in the High Courtis to be invoked carefully and judiciously for effective and timelyadministration of criminal justice system. This Court,nonetheless, does not recommend complete hands off approach.H

Albeit, there should be interference, may be, in exceptional cases,failing which there is likelihood of serious prejudice to the rightsof citizen. For example, when the contents of complaint or theother purported material on record is brazen attempt topersecute an innocent person, it becomes imperative upon theCourt to prevent the abuse of process of law. [Para 15][151-B-E]

2. Further, it is well settled that the Trial court whileconsidering the discharge application is not to act as mere postoffice. The Court has to sift through the evidence in order to findout whether there are sufficient grounds to try the suspect. Thecourt has to consider the broad probabilities, total effect ofevidence and documents produced and the basic infirmitiesappearing in the case and so on. Likewise, the Court has sufficientdiscretion to order further investigation in appropriate cases, ifneed be. [Para 16][151-E-F]

3. In the present case, the High Court committedjurisdictional error by not entertaining the revision petition onmerits and overlooking the fact that ‘discharge’ is valuable rightprovided to the accused. In line with the fact that the High Courtand the court below have not examined the fairness of criminalinvestigation in this case and other related aspects concerningimprovement of witness statements, it is necessary for the HighCourt to reconsider the entire matter and decide the revisionpetition afresh. [Para 18][151-G-H; 152-A-B]

Madhu Limaye v. State of Maharashtra (1977) 4 SCC551:[1978] 1 SCR 749 and Union of India v. PrafullaKumar Samal (1979) 3 SCC 4: [1979] 2 SCR 229 – reliedon.

Asian Resurfacing of Road Agency Pvt. Ltd. v. CentralBureau of Investigation (2018) 16 SCC 299: [2018] 2 SCR1045 – referred to.

Case Law Reference

Para 13Para 8Para 16

ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.472 of 2021

From the Judgment and Order dated 28.11.2018 of the High Courtof Judicature at Allahabad in Criminal Revision Defective No. 325 of2014.

BDeepak Nargolkar, Sr. Adv., Mrs. Prerna Singh, Mrs. DivyaMishra, Shantanu Sagar, Advs. for the Appellant.

S.R. Singh, Sr. Adv., Ankur Prakash, Adv. for the Respondents.

The Judgment of the Court was delivered by

SURYA KANT, J,C

1. Leave granted.

2. This appeal emanates from the judgment dated 28.11.2018passed by the High Court of Judicature at Allahabad whereby criminalrevision against the order dated 13.03.2014 of the Chief JudicialMagistrate, Sant Kabir Nagar refusing to discharge the appellant inDN.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. brief reference to the facts may be necessary for disposal ofthe present appeal. complaint was lodged with the jurisdictional policeby Respondent No.2 (Kuldeep Mishra), who claimed to be newspaperEcorrespondent working for ‘The Pioneer’. It was alleged that he hadconducted journalistic investigation for malpractices against one gasagency, namely ‘Kalpana Indane Service’. He had also applied for certaininformation under the Right to Information Act 2005, so as to conductinvestigation on alleged black marketing of gas cylinders by the aforesaidagency. The appellant herein is partner in the aforesaid gas agency.FAs per the NCR report it is stated that the appellant, while he wasresponding to the calls made by Respondent No.2, started calling himnames and threatened to kill Respondent No.2. It is alleged that theappellant had threatened Respondent No.2 to pump numerous bullets inhis face so that he may not even be recognized.

4. On 08.05.2012 the complainant filed an application before theconcerned Chief Judicial Magistrate (“CJM”) under Section 155 (2)Cr.P.C. for conducting investigation in the aforesaid allegations. TheCourt accordingly directed investigation and ordered the local police tosubmit the report.

5. It may be noted that during the course of investigation statementof complainant was recorded by the police which forms part of the casediary. The material allegations as stated in the aforesaid statement areas follows:-

“………..The applicant had kept the speaker of his mobile onand from his mobile no. XXXX telephoned to Sanjay Rai’s mobileno.XXXX to enquire about the latest irregularities in the said gasagency. On mobile itself, Sanjay Rai started to give filthy abusesto the applicant and threatened to kill him. At the same he also toldthat your right to information and intellectual concerns shall bekept back in your hands. I will shot [sic.] such number of bulletsthat even your face could not be recognized. Mohd. Sahrif Kahnand Umesh Kumar Bhatt had also heard the threatening given bySanjay Rai.”

It is apparent that there is material change in the statement of therespondent – complainant wherein he introduced Mohd. Sharif Khanand Umesh Kumar Bhatt as witnesses for the call made by the appellantherein.

6. In any case, on 21.07.2012 charge sheet came to be filedagainst the appellant/accused under Sections 504 and 506 IPC based onthe statement of complainant and the affidavits of two witnesses. It maynot be out of context to mention here that the Investigating Officer didnot deem it necessary to take the version of the appellant on record orconsider 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 hisdischarge under Section 239 Cr.P.C. contending that the complainant hasfalsely implicated him and the allegation of telephonic threats does notconstitute an offence under Sections 504 and 506 of IPC. It was furtheraverred that the investigation was not fair and was unilateral in its approachwherein the investigating officer had made no efforts to find out the truthand had instead relied on the statement of the complainant and otherplanted witnesses to fasten case against the appellant. The learnedCJM did not agree with the appellant’s plea and rejected his dischargeapplication observing as under:-

“xxx

xxx

From perusal of record it is obvious that no affidavit or anydocumentary evidence has been filed by the applicant/accused insupport of his discharge-application.

The fact that which word has been used as abuses and threateningby the applicant is matter of evidence which can not beBdetermined at this stage. [sic.]

From oral as well as documentary evidences on records, thereare sufficient evidence on records to frame charges against theaccused.

In view of the aforesaid facts and circumstances, the applicationCdated 20.02.2014 filed by the applicant Shree Sanjay Kumar Rai,U/s-239, Cr.P.C. does not appear to be maintainable at this stageand therefore is liable to be rejected.

xxxxxxxxx”

D8. The appellant aggrieved by the aforesaid order approached theHigh Court through Criminal Revision Petition, seeking reversal ofCJM’s order. The High Court relying on the judgment of this Court inAsian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau ofInvestigation[1] observed that interference in the order framing charges orrefusing to discharge is called for in rarest of rare case only to correct theEpatent error of jurisdiction. Finding no such jurisdictional error in CJM’sorder 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:F

10. Learned Counsel for the appellant urged that prima facie, thestory of the complainant seems dubious, for he himself initiated the phonecall, put it on speaker and had two witnesses ready to listen to theconversation. No call records had been sought by the police, affidavits ofthe witnesses were blindly accepted and no attempt was made to recordGtheir statements under Section 161 of CrPC. The Investigating Officerproceeded with closed mind and casually overlooked the credentials ofthe complainant who is involved in seven criminal cases including underSections 323, 504 and 506 of IPC. letter from the Resident Editor of

‘The Pioneer’ was also produced, showing that the complainant was notemployed with their newspaper around the time of the alleged incident.

11. On the other hand, learned State Counsel urged that theallegations make for clear case under Sections 504 and 506 of IPC andthat no error was committed by the High Court or the CJM. In additionto the judgment of this Court which the High Court relied upon, hebuttressed his submissions citing State of Karnataka v. M.R. Hiremath[2]which held that the Court ought not to enter into questions of evidentiaryvalue of the material adduced at the stage of considering discharge, andSrilekha Sentelkumar v. CBI[3]whereby this Court opined that it wasimpermissible to look into the merits of the case while exercising powersunder Section 239 CrPC.

ANALYSIS :

12. At the outset, we may note that the High Court has dismissedthe Criminal Revision on the ground of lack of jurisdiction under Section397 of Cr.P.C. The High Court did not examine the issue in detail to findout whether the continuation of proceedings will amount to abuse ofprocess of law in this case. The impugned order cites the decision of thisCourt in Asian Resurfacing (supra) wherein it was noted as under:-

“…Thus, we declare the law to be that order framing charge isnot purely an interlocutory order nor final order. Jurisdictionof the High Court is not barred irrespective of the label of apetition, be it under Sections 397 or 482 CrPC or Article 227 ofthe Constitution. However, the said jurisdiction is to be exercisedconsistent with the legislative policy to ensure expeditious disposalof trial without the same being in any manner hampered. Thusconsidered, the challenge to an order of charge should beentertained in rarest of rare case only to correct patent errorof jurisdiction and not to re-appreciate the matter.”13. It appears to us that while limiting the scope of criminalrevision to jurisdictional errors alone, the High Court apparently under-appreciated the Judgment in Asian Resurfacing (supra). We say so atleast for two reasons. First, the material facts in the above-cited casedealt with challenge to the charges framed under the Prevention ofCorruption Act, 1988 (“POCA”). The cited judgment itself enlightens

2 (2019) 7 SCC 515

3 (2019) 7 SCC 82

Athat not only is POCA special legislation, but also contains specificbar under Section 19 against routine exercise of revisional jurisdiction.Second, This Court in Asian Resurfacing (Supra) while expressingconcern regarding the need to tackle rampant pendency and delays in ourcriminal law system, followed the ratio laid down in an earlier decision inMadhu Limaye v. State of Maharashtra[4 ]as can be seen from theBfollowing extract:

“27. Thus, even though in dealing with different situations,seemingly conflicting observations may have been made whileholding that the order framing charge was interlocutory orderand was not liable to be interfered with under Section 397(2) orCeven under Section 482 CrPC, the principle laid down in MadhuLimaye [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC551: 1978 SCC (Cri) 10] still holds the field. Order framingcharge may not be held to be purely an interlocutory order andcan in given situation be interfered with under Section 397(2)DCrPC or 482 CrPC or Article 227 of the Constitution which is aconstitutional provision but the power of the High Court tointerfere with an order framing charge and to grant stay is tobe exercised only in exceptional situation.”

(emphasis supplied)

E14. In Madhu Limaye (supra), this Court authoritatively held:

“9… Sometimes the revisional jurisdiction of the High Court hasalso been resorted to for the same kind of relief by challengingthe order taking cognizance or issuing processes or framing chargeon the grounds that the Court had no jurisdiction to takeFcognizance and proceed with the trial, that the issuance of processwas wholly illegal or void, or that no charge could be framed asno offence was made out on the allegations made or the evidenceadduced in Court..

10. … Even assuming, although we shall presently show that it isGnot so, that in such case an order of the Court taking cognizanceor issuing processes is an interlocutory order, does it stand toreason to say that inherent power of the High Court cannot beexercises 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 ofthe process of the Court and/or to secure the ends of justice.The label of the petition filed by an aggrieved party isimmaterial.

(emphasis supplied)

15. The correct position of law as laid down in Madhu Limaye(supra), thus, is that orders framing charges or refusing discharge areneither interlocutory nor final in nature and are therefore not affected bythe bar of Section 397 (2) of CrPC. That apart, this Court in the above-cited cases has unequivocally acknowledged that the High Court is imbuedwith inherent jurisdiction to prevent abuse of process or to secure endsof justice having regard to the facts and circumstance of individual cases.As caveat it may be stated that the High Court, while exercising itsafore-stated jurisdiction ought to be circumspect. The discretion vestedin the High Court is to be invoked carefully and judiciously for effectiveand timely administration of criminal justice system. This Court,nonetheless, does not recommend complete hands off approach. Albeit,there should be interference, may be, in exceptional cases, failing whichthere is likelihood of serious prejudice to the rights of citizen. Forexample, when the contents of complaint or the other purported materialon record is brazen attempt to persecute an innocent person, it becomesimperative upon the Court to prevent the abuse of process of law.16. Further, it is well settled that the trial court while consideringthe discharge application is not to act as mere post office. The Courthas to sift through the evidence in order to find out whether there aresufficient grounds to try the suspect. The court has to consider the broadprobabilities, total effect of evidence and documents produced and thebasic infirmities appearing in the case and so on. [Union of India v.Prafulla Kumar Samal[5]]. Likewise, the Court has sufficient discretionto order further investigation in appropriate cases, if need be.

17. This brings us to the present case wherein the High Court hasnot gone into the merits of the case and did not analyze the case in lightof the settled law referred to above.

18. The High Court has committed jurisdictional error by notentertaining the revision petition on merits and overlooking the fact that‘discharge’ is valuable right provided to the accused. In line with the

5 (1979) 3 SCC 4

Afact that the High Court and the court below have not examined thefairness of criminal investigation in this case and other related aspectsconcerning improvement of witness statements, it is necessary for theHigh Court to reconsider the entire matter and decide the revision petitionafresh. Accordingly, we set aside the impugned order dated 28.11.2018and remand the case back to the High Court for its reconsideration inBaccordance with law.

19. The appeal is disposed of in the aforesaid terms.

All the pending application(s), if any, also stands disposed ofaccordingly.

Bibhuti Bhushan Bose

Matter remanded to High Court.