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CASE NO.:

Appeal (crl.) 556 of 1995

PETITIONER:

N. Natarajan

RESPONDENT:

B.K.Subba Rao

DATE OF JUDGMENT: 03/12/2002

BENCH:

S. RAJENDRA BABU & ARUN KUMAR.

JUDGMENT:

J U D G M E N T

RAJENDRA BABU, J. :

An application under Section 340 of the Criminal Procedure Code was laid

by the respondent in the Designated Court at Bombay. The appellant had been

conducting the cases as the Chief Public Prosecutor before the Designated

Judge in what is popularly known as "Bombay Blast Cases". The respondent

urged in his petition that the appellant before us being a public prosecutor had an

onerous duty and had to act in a fair manner and at one stage of the proceedings

both orally and in writing had submitted to the court that the material on record

was sufficient to frame charges against various offences arising under Chapter VI

of the Indian Penal Code like waging war against the State, etc., after adverting

to the decisions of this Court. However, at a later stage of the proceedings in the

same case, the appellant urged the Designated Court to drop the charges under

Sections 121 and 121A IPC against all the 157 accused as there was no

material. Thus he made statements which were contradictory to the earlier stand

taken by him and left the matter to the discretion of the court to accept one or the

other version to be true in order to secure the ends of justice. Apart from

misconduct on the part of the appellant arising under the Advocates Act, it is

contended that the same would amount to criminal contempt of court. The

contention advanced on behalf of the respondent was that the charge of waging

war against the State without reasonable or sufficient material on record results

in grave injustice and injury to some of the accused and if he had carried out his

functions with due care and caution, such injustice would not have occasioned.

He contended in the course of the application as follows :

" Having opened the case under Section 226 CrPC and having

proceeded quite far under Section 227 CrPC in respect of framing

charges, for the prosecutor to come up with a plea not to frame the

charges for lack of material on record amounts to making a mockery of

the administration of justice. The conduct of the CBI prosecutor Mr.

Natarajan has polluted the course of administration of justice,

notwithstanding the fact that there is material or not to frame the charge.

This kind of conduct on the part of the public prosecutor if not dealt with

according to law would leave wide scope in our judicial system to injure

and cause injustice to ill place citizens. Therefore a judicial examination

of the conduct of the CBI prosecutor Mr. Natarajan will be in public

interest, as it would act as a deterrent against public prosecutors

indulging in unfair practices."

The respondent also submitted that he was not concerned with the

outcome of the case but more in the conduct of the public prosecutor in making

contradictory submissions. He submitted that this conduct on the part of the

appellant would attract the provisions of Section 192 to 196 and 227 CrPC.

On receipt of the application, the learned Designated Judge directed the

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Registry to post the matter for hearing on the question of locus standi of the

respondent to file an application under Section 340 CrPC and whether that court

had jurisdiction to entertain the application. The Designated Judge held that he

was satisfied that the court could entertain an complaint even at the instance of a

stranger in order to address his grievances as offences affecting the

administration of justice. Though the appellant was not notified of the said

application, the learned Designated Judge heard Mr. R.K.H.Sharma, Special

Public Prosecutor, in the matter and noted that he had not challenged the locus

standi of the respondent in presenting the application but had emphasised that if

the court entertains such petition without ascertaining its merit, it would open

flood gates and any person would walk in the court with such petitions. Before

the learned Designated Judge, it was contended by Mr. Sharma that there can

be only two parties before the court, that is, the public prosecutor or the

complainant, as the case may be, and on the other side the accused represented

by his advocate and in those circumstances the respondent could not be heard in

the matter. However, the court by an order made on 21.2.1995, recorded its

satisfaction as to the locus standi of the respondent and directed to register the

application and to issue notice to the public prosecutor returnable on 10.3.1995.

The public prosecutor noted to have taken notice of the matter. Against this

order of the Designated Judge, the present appeal has been filed by the

appellant.

This Court, on 8.3.1995, directed to issue notice to the respondent and

also granted an ad-interim stay of the order made by the Designated Judge on

21.2.1995 and it was also made clear that the pendency of these proceedings

will not debar the petitioner from functioning as a prosecutor in the case known

as the Bombay Blast Case. Thereafter leave was granted and the interim order

granted was affirmed.

When the matter was set down for final hearing, the respondent appeared

in person and contended that this Court should not entertain a petition on appeal

under Article 136 of the Constitution inasmuch as the order passed by the

Designated Judge being under TADA and is an interim order and no appeal lies

against such order in view of Section 19 thereof. He further contended that

inasmuch as an appeal lies under Section 341 CrPC against an order made

under Section 340 CrPC in the event of a complaint having been made against

the appellant. In this context, he also drew our attention to the provisions of sub-

section (2) of Section 340 CrPC to point out that the power conferred on the court

under Section 340(1) CrPC in respect of an offence could be exercised by an

appellate court in case the subordinate has neither made a complaint under sub-

section (1) in respect of that offence nor rejected an application for the making of

such complaint. He, therefore, submitted that the powers of this Court under

Article 136 should not be exercised as exercise of such power would affect a

statutory right of appeal.

Article 136 of the Constitution enables this Court to exercise in its

discretion appellate powers by granting special leave from any judgment, decree,

determination, sentence or order in any cause or matter passed or made by any

court or tribunal in India. This power is conferred on this Court notwithstanding

the provisions for regular appeal from proceedings in different enactments being

available and there may remain some cases where justice might require

interference by this Court with the decisions of the High Courts or the tribunals of

the land. The power of this Court to grant leave to appeal from any decision of

any court or tribunal is not subject to any limitation and is left entirely to the

discretion of this Court. Though this Court is circumspect in its exercise of its

jurisdiction under Article 136 it has a duty to interfere in cases of grave

miscarriage of justice. It is trite to say that the extraordinary power conferred

under Article 136 of the Constitution cannot be taken away by any legislation,

short of constitutional amendment. The nature of the statute or limitations

imposed within a statute cannot deter this Court from exercising its jurisdiction. It

is not even restricted by the appellate provisions enumerated in Criminal

Procedure Code or any other statute. Therefore, contentions urged, which are

preliminary in nature, cannot detain us in entertaining this matter or examining

the correctness of the proceedings before the Designated Judge. However, the

respondent urged that in A.R.Antulay vs. R.S.Nayak, 1988 (2) SCC 602, this

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Court had held that one of the considerations in exercise of its power by this

Court is not to deprive any party of a statutory appeal and if such deprivation

occasions then the matter will have to be reopened as was done in that case.

This argument proceeds on a misconception of the position in law. An appeal lies

when a matter is finally and conclusively decided by a court or a tribunal. If the

High Court or the Supreme Court, in exercise of the extraordinary jurisdiction

under Article 226 or Article 136 of the Constitution or Section 482 Cr.P.C., as the

case may be, quashes certain proceedings, a party cannot complain that his right

to statutory appeal had been deprived. Therefore, this contention deserves to be

rejected.

Mr. K.K.Venugopal, learned Senior Advocate appearing for the appellant,

submitted that the respondent has a habit of making such complaints and he is

not a person who is interested in the matter in any way and no public interest

would be served by entertaining an application made by him and he is a total

stranger to the proceedings. In fact, he described the respondent as 'busy body

or interloper' in the proceedings. In answer to this contention, the respondent

relied upon the decisions in Bhagwandas Narandas vs. D.D.Patel & Co., AIR

1940 Bombay 131 and Harekrishna Parida & Ors. vs. Emporer, AIR 1929

Patna 242, to contend that even a stranger to a cause can lodge a complaint

under Section 340 CrPC.

In our view it is not necessary to pursue the approach of either of the

party. It is well settled that in criminal law that a complaint can be lodged by

anyone who has become aware of a crime having been committed and thereby

set the law into motion. In respect of offences adverted to in Section 195 CrPC,

there is a restriction that the same cannot be entertained unless a complaint is

made by a court because the offence is stated to have been committed in

relation to the proceedings in that court. Section 340 CrPC is invoked to get over

the bar imposed under Section 195 CrPC. In ordinary crimes not adverted to

under Section 195 CrPC, if in respect of any offence, law can be set into motion

by any citizen of this country, we fail to see how any citizen of this country cannot

approach even under Section 340 CrPC. For that matter, the wordings of

Section 340 CrPC are significant. The Court will have to act in the interest of

justice on a complaint or otherwise. Assuming that the complaint may have to be

made at the instance of a party having an interest in the matter, still the court can

take action in the matter otherwise than on a complaint, that is, when it has

received information as to a crime having been committed covered by the said

provision. Therefore, it is wholly unnecessary to examine this aspect of the

matter. We proceed on the basis that the respondent has locus standi to present

the complaint before the Designated Judge.

What we have to see is whether the different statements at different

stages of the case made by the public prosecutor would amount to any offence

attracting the provision of Section 340 CrPC. We repeatedly asked the

respondent as to how two different stands taken by a counsel would be covered

by the offences referred to in provisions of Section 195 CrPC. He tried to explain

that there is distinction between submissions made on law and on facts.

Submissions based on facts, which would affect the life and liberty of innocent

persons are not legal submissions but would amount to causing circumstances to

exist so as to amount to fabricating evidence within the meaning of Section 192

IPC.

Supposing a counsel presents a preposterous argument or blatantly

wrong argument which, he later on corrects himself on realizing the incorrectness

of his submission or in a converse situation, having made a correct argument

realising that the same would defeat the claim of his client, takes a diametrically

opposite stand, could it be said that the said stand would lead to fabricating

evidence before the court in any manner which attracts the offences adverted to

under Section 195 CrPC. By no stretch of imagination, can we say that the stand

of a counsel, howsoever inconsistent it may be at different stages of the

proceedings, can amount to offences adverted to under Section 195 CrPC. If the

courts begin to issue notice for prosecution or as to why the inquiry should not be

made in the matter or to launch a prosecution, no Advocate can function with

safety nor can he assist the court with the necessary fearlessness which is

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required of him. It is not unknown that even in criminal cases even after

committal proceedings are over at the stage of sessions trial before charges are

framed by the court or at the stage of final arguments, many public prosecutors

have entered NOLLE PROSEQUI in cases where they thought that a charge

could not be framed or the concerned accused should be acquitted. However,

that does not mean that such a stand could not have been taken or attracts wrath

of Section 340 CrPC.

In the present case, the hearing as to framing of charges has gone on for

nearly eight months. Considering the nature of the charges to be framed in the

case, the voluminous record of the case presented before the court, the

seriousness and magnitude of the matter when several hundred of persons have

been killed and property worth crores of rupees has been destroyed, in what

manner the case should be conducted is a very serious affair. If the public

prosecutor had been supporting at one stage of the proceedings the charge

sheet that had been laid in respect of the offences arising under Sections 121

and 121A Indian Penal Code, later on he realises that evidence is not available

at that stage of the case, seeks that for the time being these charges need not be

proceeded with, and if further investigation discloses such offences as having

been committed, supplementary charge sheet would be filed before the court

later, we fail to understand as to how such shift in the stand would attract

offences enumerated under Section 195 CrPC.

The stand of the respondent that we should not interfere in this matter as

relevant facts are before the Designated Court and not before this Court does not

hold water. What we are examining is whether the complaint made by the

respondent, taking it as a whole, deserves to be proceeded with.

Though the respondent has grievance as to the manner of disposal of the

case in Dr. Budhi Kota Subbarao vs. Mr. K. Parasaran & Ors., 1996 Supp.

(4) SCR 574, the fact remains that he attacked the Attorney General personally

in that case when he furnished his satisfaction in a matter and now the appellant

herein. Though this Court castigated the respondent in that case, did not

proceed further to impose any cost upon him or to debar him from presenting

such petitions thereafter. This is one of those rare cases where we think that we

ought to exercise our powers in the interests of administration of justice to restrict

the hands of the respondent to engage in this kind of vexatious litigation. On

half-baked knowledge of law, he proceeds to present argument before the court

with an analysis of facts which is tendentious and waste the time of the court by

trying to cite decisions which have no relevance to the case. In the present case

too, he did not the same. He drew our attention to one case where a Sub-Judge,

who had tampered with the proceedings before the court to facilitating

substitution of the written statement, pursuant to a complaint being filed, was

prosecuted under Section 340 CrPC; to another case where a pleader had

instigated the witnesses to tender false evidence before the court; to cases

where the witnesses have changed their stand from time to time. All those

cases, in our opinion, have no bearing at all on the present case.

We are amazed at the manner in which the learned Designated Judge

dealt with this matter. While holding that the respondent had locus standi to

present the petition, he ought to have applied his mind further as to whether he

should proceed further in the matter at all. If he had thoroughly perused the

petition, it would have appeared that the submissions made by the learned public

prosecutor - however contradictory they may be - in a case cannot amount to

fabrication of evidence by any stretch of imagination. The substance of the

complaint should have been looked into and should have been decided. If such

caution had been exercised, we are sure, he would not have proceeded further

in the matter.

We are conscious of the fact that the learned Designated Judge has not

exercised his power under Section 340 CrPC as yet to lodge a complaint nor has

he proceeded to hold an inquiry but at the same time we must notice that issue of

notice on an application of this nature would have serious impact upon the public

prosecutor in conduct of the case particularly when at every stage he has got to

be conscious whether any of his statement would attract Section 340 CrPC. This

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is not the kind of atmosphere where a public prosecutor can function effectively,

independently and fearlessly. In the conduct of the case a public prosecutor

must have full freedom and he can even give up certain cases and request the

court to discharge or acquit any accused. If that kind of autonomy is to be

enjoyed by the public prosecutor, he cannot be fettered in conducting the

proceedings. By initiating the proceedings against him, the learned Designated

Judge has crippled the freedom of the public prosecutor in functioning effectively

and such a matter certainly results in serious miscarriage in administration of

justice and no Advocate would be safe if such proceedings are initiated on the

basis of the allegations of the nature made in the complaint. Either the learned

Designated Judge has not applied his mind or he has not understood the scope

of the application and if he had done either, he would have dismissed the

application. That we do now.

In the result, we allow this appeal, set aside the order made by the learned

Designated Judge and dismiss the application filed by the respondent under

Section 340 CrPC. At the same time, we make it clear that the respondent shall

not engage in this kind of litigation hereafter and he is restrained from

making any applications of this nature and if any such application is made

before any court, the same shall be dismissed in limine and appropriate

proceedings be initiated against him.

The appeal is allowed accordingly.