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CASE NO.:

Appeal (crl.) 107 of 2003

PETITIONER:

Popular Muthiah

RESPONDENT:

State represented by Inspector of Police

DATE OF JUDGMENT: 04/07/2006

BENCH:

S.B. Sinha & P.P. Naolekar

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL No. 108 OF 2003

S.B. SINHA, J.

Whether inherent jurisdiction of the High Court is available while

dealing with a Criminal Appeal filed by an accused is the principal question

involved in this appeal which arises out of a judgment and order dated

18.4.2002 passed by a Division Bench of the High Court of Judicature at

Madras in Criminal Appeal No. 696 of 1997.

The appellants before us were not parties to the said Criminal Appeal.

The prosecution case relates to an incidence which took place on

13.3.1992 resulting in death of one Chandran. On 13.3.1992, the brother of

Nallakannu @ Muthu was said to have fatally been attacked in Maruthur

Village. A case was registered against PW3, the brother of PW1,

Arasappan, father of PW1, Vanumamali, brother-in-law of PW3, Raja, son

of PW3, Raj son of PW1's sister Ganambal and George (deceased) son of

the PW1's sister Ganambal. They were arrested and released on bail subject

to certain conditions. PW1 and her relatives after the said incident allegedly

shifted to another village Palayamkottai. The father-in-law of PW1 was a

homoeopathic doctor. He was having a medical shop. He was also having a

hotel commonly known as 'Hare Krishna" hotel. The medical shop and the

hotel were situate opposite to each other near Palaymkottai bus stand and

were at a distance of 6 furlongs from the house of PW1.

On 11.7.1992 at about 3.00 P.M., PW3 \026 brother of PW1, Arasappan

\026 father of PW1, Vanumamali \026 brother-in-law of PW3, Raj \026 son of PW1's

sister Ganambal and George (deceased) son of PW1's sister Ganambal came

to the house of PW1. As PW1 was not feeling well, she came to the medical

shop of her father-in-law to purchase medicines. Nallakannu @ Muthu,

Murugan and Popular Muthiah came behind him in a Rajdoot motorcycle.

They stopped them near the Palayamkottai bus stand. The appellant Popular

Muthiah allegedly shouted to kill George \026 son of PW1's sister Ganambal

and left the scene on the motorcycle leaving behind Nallakannu and

Murugan. Nallakannu took a sickle which is said to have been hidden in his

shirt and assaulted George on the left side of his neck. The deceased who

received bleeding injury left his chappals there and started to run from the

said place. Nallakannu and Murugan allegedly chased him. The deceased

ran inside 'Hare Krishna' hotel which, as noticed hereinbefore, owned by the

father-in-law of PW1. At that time, PW3 \026 brother of PW1 and PW4

Ashokan, brother-in-law of PW1 were inside the hotel. Upon noticing that

the deceased was being chased, PW3 and Ashokan came out of the hotel.

Inside the hotel, Murugan is said to have assaulted the deceased on his chest.

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Nallakannu @ Muthu also assaulted him on the left side of his chest. The

deceased also received injuries at their hands on his shoulder and on the left

ear. The deceased thereafter fell down whereupon Nallakannu again is said

to have assaulted the deceased on the left side of his chest with the sickle.

Thereafter, Nallakannu came out of the hotel and went towards west.

The deceased was taken to the Government Hospital, Palaymkottai in

an auto-rickshaw by PW3 along with PW2, PW3 and PW4 where he was

declared dead by the doctor. A First Information Report in respect of the

said incident was lodged by PW-1.

Admittedly, no chargesheet was filed against the appellant herein. A

copy of the said chargesheet, however, admittedly was not sent to the first

informant. The learned Magistrate, before whose Court the said chargesheet

was filed also did not inform the first informant which was mandatory.

Nallakannu @ Muthu alone was committed to the Court of Sessions. Before

the learned Sessions Judge, all the eye-witnesses allegedly took the names of

the appellants as having played active roles in the entire episode. The

learned Sessions Judge was neither called upon to exercise nor suo motu

exercised his jurisdiction in terms of Section 319 of the Code of Criminal

Procedure. Nallakannu @ Muthu alone in the aforementioned situation was

tried and convicted for commission of the said offence under Section 302 of

the IPC and was sentenced to undergo rigorous imprisonment for life.

He preferred an appeal against the said judgment of conviction and

sentence in the High Court which was registered as Criminal Appeal No.

696 of 1997. The said appeal came up for hearing before a Division Bench

of the High Court. The Division Bench examined the materials brought on

records by the prosecution in great details. It was opined that no case has

been made out to interfere with the judgment of conviction and sentence

passed against the Nallakannu Muthu. He has not approached this Court

questioning the correctness of the said judgment.

The High Court opined:

(i) the evidence of PWs 1 and 2 unimpeachably show the involvement

of Popular Muthiah (abetting), Murugan and the accused in

inflicting the fatal injuries to the deceased;

(ii) the evidence of PWs 3 and 4 show the role played by Murugan and

the accused; and

(iii) in Ex. I, all the evidence were 'found fully reflective'.

According to the High Court, the action on the part of the

investigating officers, viz., PW-17 and PW-18 leaving out the names of

Popular Muthiah and Murugan from the array of accused was not a bona fide

error. It was observed:-

"As we feel that Murugan and Popular Muthiah had been left

out willfully by the Investigating Agency, we direct the

Director General of Police to seriously probe into it and take

follow-up action in accordance with law. The fact that the

occurrence took place in 1992 and we are in 2002 should not be

taken as a reason for taking a lenient view by all those

concerned including the Court. If the instances of this nature

are allowed to happen, certainly the people will lose faith in

Police force and in turn in the State Administration as well as in

the administration of justice by Courts."

The High Court furthermore noticed that the mandatory provisions of

Section 173 (2)(i) had not been complied with insofar as the first informant

was not intimated by the Investigating Officer that Murugan and Popular

Muthiah were not to be chargesheeted. Referring to sub-Section (8) of

Section 173 of the Code of Criminal Procedure, the High Court lamented

that the learned Magistrate failed to follow the decision of this Court in

Bhagwan Singh v. Commissioner of Police [1985 SCC (Crl.) 267] and other

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judgments of this Court. The High Court also felt that the District Judge

ought to have conducted himself fairly in the matter of exercising his

jurisdiction under Section 319 of the Code of Criminal Procedure.

The High Court, therefore, made certain adverse comments against

the Investigating Officers, the public prosecutors as also the learned trial

Judge for conducting themselves in the manner in which they had discharged

their duties.

It was directed:

"We are of the view that this is a fit case where we have to

direct the prosecution of Murugan as well as Popular Muthiah;

and the learned State Public Prosecutor shall advise the State as

to under what section they have to be charged and tried. We

may be able to relax a bit only after directing the CB, CID to

take up the matter. We direct the CB, CID to take over the

matter and re-investigate and prosecute the said Murugan and

Popular Muthiah."

It was furthermore directed:-

"(b) In view of our conclusion that since there is evidence at

every stage implicating Murugan and Popular Muthiah in the

crime relating to the murder of George, justice requires that the

Investigating Agency must have a fresh look on the materials

already available on record and the materials to be collected

pursuant to this order in the re-investigation connecting Popular

Muthiah and Murugan also with the crime. Therefore, we order

fresh investigation by the Investigating Agency so far as

Popular Muthiah and Murugan are concerned. Consequently,

the Director General of Police is directed to entrust the

investigation in this case relating to the involvement of Popular

Muthiah and Murugan to CB, CID. The Director General of

Police is also directed to nominate an officer, not below the

rank of Superintendent of Police, to monitor the investigation to

be done by CB, CID.

(c ) The Director General of Police is also directed to deeply

probe into the lapses on the part of PW17 Rajaram and PW18

Thondiraj in the Investigation conducted with reference to the

murder of George, so also in the prosecution and take follow-up

action in accordance with law."

The appellants are, thus, before us.

Mr. M.N. Rao, the learned senior counsel appearing on behalf of the

appellants raised the following contentions in support of this appeal:-

(i) The High Court while hearing the appeal preferred by Nallakannan

@ Muthu wrongly exercised its power in terms of Section 482 of

the Code of Criminal Procedure.

(ii) While exercising the said jurisdiction, the High Court, thus, could

neither exercise any revisional jurisdiction under Section 397 nor

its inherent jurisdiction under Section 482 of the Code of Criminal

Procedure.

(iii) Suo motu exercise of power by the High Court under Section 482

is unknown in law.

(iv) In any event, as the High Court in its impugned judgment did not

state that it was exercising its jurisdiction under Section 482 or 209

of the Code of Criminal Procedure, it is unsustainable in law.

(v) In any event, the High Court could not have issued the impugned

directions without giving an opportunity of hearing to the

appellants herein whose fundamental rights have been affected by

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reason thereof.

(vi) The direction of the High Court to prosecute the appellants is

illegal and without jurisdiction as such directions could not have

been issued in exercise of its inherent power.

(vii) The High Court even could not direct the appellants to stand trial,

inasmuch as the provisions of Section 319 of the Code of Criminal

Procedure were not attracted in the instant case.

(viii) In any view of the matter, the Investigating Officers having found

lacunae in the prosecution case, particularly in view of the fact that

one of the appellants was found to have suffered fracture in an

accident four days prior to the date of occurrence, it was wholly

improper on the part of the High Court to direct reopening of the

investigation.

Dr. Rajiv Dhawan, the learned senior counsel on behalf of the

respondent-State of Madras, on the other hand, submitted:-

(i) The provisions of the Code of Criminal Procedure contained

a series of interlocked provisions so as to correct the errors

in regard to improper investigation on the part of the

investigating officer.

(ii) Investigation which is bad in law or insufficient

investigation is subject to corrective orders by the High

Court;

(iii) Having regard to the changes made in the Code of Criminal

procedure, 1973, what is brought before the Court is a case

and not the accused.

(iv) The High Court has been conferred a special power, namely,

the inherent power which can be exercised at any stage of

the proceeding including the appellate proceeding.

(v) In view of the fact that the High Court had directed fresh

investigation, the principles of natural justice have no

application.

(vi) In view of the finding of the High Court in regard to non-

compliance of the mandatory provisions of Section 173 of

the Code of Criminal Procedure as also the gross errors

committed by both the learned Magistrate as also the learned

Trial Judge, the High Court had justifiably exercised its

inherent jurisdiction in order to secure justice in terms of

Section 482 of the Code of Criminal Procedure.

(vii) As the High Court exercises its inherent power to secure the

ends of justice, the same by necessary intendment could

bring within its purview justice required to be done to the

victim also.

(viii) The appellants were not prejudiced in any manner

whatsoever by reason of the impugned order as at different

stages they would be entitled to raise their contentions.

(ix) Section 173(8) of the Code of Criminal Procedure does not

postulate any power on the part of the Courts to direct re-

investigation as the statutory power to make investigation

always remain with the Investigating agency.

In view of the rival contentions noticed hereinbefore, the questions

involved in this case are:

(i) Whether the High Court while exercising its appellate jurisdiction

under Section 374(2) read with Section 386 of the Code of

Criminal Procedure could direct further investigation of the case

against the persons whom the High Court felt should have been

included in the challan on the basis of the materials on record

available before the appellate court?

(ii) Whether only because of the fact that the appellate power of the

High Court in terms of Sections 374(2), 386 and 391 does not

contain any specific power to direct further investigation, the High

Court lacked jurisdiction from seeking recourse to its inherent and

supervisory powers under Sections 482 and 483 of the Code of

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Criminal Procedure in a case of this nature?

(iii) Whether the impugned judgment is wholly unsustainable as prior

to issuing the impugned direction, the principles of natural justice

had not been complied with.

Before, however, we advert to the said questions, it may be

appropriate to notice that the High Court in passing the impugned judgment

proceeded on the basis that PW-1 to PW-5 namely, Muthulakshmi, Shanthy,

Murugaiah Pndian, Ashokan and Ganeshan were independent witnesses who

had categorically testified about the involvement of the Appellants herein as

also Murugan and Muthu in hacking George to death firstly in the street and

then in the hotel and the prosecution case was proved on the basis thereof.

The High Court indisputably could have arrived at such a finding.

The High Court thereafter directed entrustment of the investigation to

CB-CID having regard to the fact that there were two other eye-witnesses to

the occurrence.

The High Court furthermore:

(i) directed prosecution of Murugan and Popular Muthiah;

(ii) ordered a fresh investigation under the CB-CID under an officer

nominated by the Director General of Police;

(iii) directed the Director General of Police to probe into the lapses of

the investigating officers and take up follow up action in

accordance with law.

The High Court in its impugned judgment:

(i) affirmed conviction of Muthu;

(ii) opined that successive investigating officers PWs-17 and 18 had

not discharged their functions as investigating officer properly;

(iii) held that the Magistrate had failed to exercise his powers as also to

make the details of the charge sheet available to the complainant as

was mandatorily required in law;

(iv) found that the District Judge had not exercised his power under

Section 319 of the Code of Criminal Procedure; and

(v) exercised its power in issuing the directions in the interest of

justice.

The Code of Criminal Procedure provides is an exhaustive Code

providing a complete machinery to investigate and try cases, appeals against

the judgments. It has provisions at each stage to correct errors, failures of

justice and abuse of process under the supervision and superintendence of

the High Court as would be evident from the following:

(i) The Court has the power to direct investigation in cognizable cases

under Section 156(3) read with Section 190 of the Code of

Criminal Procedure.

(ii) A Magistrate can postpone the issue of process and inquire into the

case himself under Section 202 (1) of the Code of Criminal

Procedure.

(iii) When a charge sheet is failed, the court can refuse to accept the

same and proceed to take cognizance of the offence on the basis of

the materials on record. The Court can direct further investigation

into the matter

(iv) The Magistrate may treat a protest petition as a complaint and

proceed to deal therewith in terms of Chapter XV of the Code of

Criminal Procedure.

(v) Once the case is committed, the Sessions Judge may refer the

matter to the High Court.

(vi) In the event, without taking any further evidence, it is found that

while passing the order of commitment, the Magistrate has

committed an error in not referring the case of an accused or left

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out an accused after evidences are adduced, the court may proceed

against a person who was not an accused provided it appears from

the evidences that he should be tried with the accused.

(vii) The revisional court during pendency of the trial may exercise its

revisional jurisdiction under Section 397 in which case, it may

direct further inquiry in terms of Section 398 of the Code of

Criminal Procedure.

(viii) The revisional powers of the High Court and the Sessions Court

are pointed out in the Code separately; from a perusal whereof it

would appear that the High Court exercises larger power.

(ix) In the event of any conviction by a court of Sessions, an appeal

thereagainst would lie to the High Court. The appellate court

exercises the power laid down under Section 386 of the Code of

Criminal Procedure in which event it may also take further direct

evidences in terms of Section 391 thereof.

(x) The High Court has inherent power under Section 482 of the Code

of Criminal Procedure to correct errors of the courts below and

pass such orders as may be necessary to do justice to the parties

and/ or to prevent the abuse of process of court.

The Code of Criminal Procedure, thus, provides for a corrective

mechanism at each stage, viz., (i) investigation; (ii) trial; (iii) appeal and (iv)

revision.

The Code of Criminal Procedure, 1973 in contrast to the old Code

provides for cognizance of an offence and committal of a case as

contradistinguished from cognizance of an offender or committal of an

accused to the court of Sessions.

It is also significant to note that whereas inherent power of a court or a

tribunal is generally reocgnised, such power has been recognized under the

Code of Criminal Procedure only in the High Court and not in any other

court. The High Court apart from exercising its revisional or inherent power

indisputably may also exercise its supervisory jurisdiction in terms of Article

227 of the Constitution of India and in some matters in terms of Section 483

thereof. The High Court, therefore, has a prominent place in the Code of

Criminal Procedure vis-`-vis the court of Sessions which is also possessed of

a revisional power.

The Law Commission of India in its 41st Report on the Code of

Criminal Procedure, 1898 stated as under:

"24.80. It happens sometimes, though not very

often, that a Magistrate hearing a case against

certain accused finds from the evidence that some

person, other than the accused before him, is also

concerned in that very offence or in a connected

offence. It is only proper that the Magistrate

should have the power to call and join him in the

proceedings. Section 351 provides for such a

situation, but only if that persons happens to be

attending the Court. He can then be detained and

proceeded against. There is no express provision

in Section 351 for summoning such a person if he

is not present in Court. Such a provision would

make section 351 fairly comprehensive, and we

think it proper to expressly provide for that

situation."

24.83. Section 351 should, therefore, be amended

to read as follows:-

"351. (1) Where, in the course of an inquiry into or

trial of an offence, it appears from the evidence

that any person not being the accused has

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committed any offence for which such person

could be tried together with the accused, the Court

may proceed against such person for the offence

which he appears to have committed.

(2) Where such person is attending the Court,

although not under arrest or upon a summons, he

may be detained by such Court for the purpose of

the inquiry into or trial of the offence which he

appears to have committed.

(3) Where such person is not attending the

Court, he may be arrested or summoned, as the

circumstances of the case may require, for the

purpose aforesaid.

(4) Where the Court proceeds against any

person under sub-section (1), then -

(a) the proceedings in respect of such

person shall be commenced afresh,

and the witnesses re-heard;

(b) subject to the provisions of clause

(a), the case may proceed as if

such person had been an accused

person when the Court took

cognizance of the offence upon

which the inquiry or trial was

commenced."

Section 386 of the Code of Criminal Procedure provides for the power

of the appellate court. Indisputably, stricto sensu in terms thereof the

appellate court cannot direct a person to stand trial. Its jurisdiction is

specified thereunder.

While exercising its appellate power, the jurisdiction of the High

Court although is limited but, in our opinion, there exists a distinction but a

significant one being that the High Court can exercise its revisional

jurisdiction and/ or inherent jurisdiction not only when an application

therefor is filed but also suo motu. It is not in dispute that suo motu power

can be exercised by the High Court while exercising its revisional

jurisdiction. There may not, therefore, be an embargo for the High Court to

exercise its extraordinary inherent jurisdiction while exercising other

jurisdictions in the matter. Keeping in view the intention of the Parliament,

while making the new law the emphasis of the Parliament being 'a case

before the court' in contradistinction from 'a person who is arrayed as an

accused before it' when the High Court is seized with the entire case

although would exercise a limited jurisdiction in terms of Section 386 of the

Code of Criminal Procedure, the same, in our considered view, cannot be

held to limit its other powers and in particular that of Section 482 of the

Code of Criminal Procedure in relation to the matter which is not before it.

In certain situations, the court exercises a wider jurisdiction, e.g., it

may pass adverse remarks against an investigator or a prosecutor or a

judicial officer, although they are not before it. Expunction of such remarks

may also be directed by the High Court at a later stage even suo motu or at

the instance of the person aggrieved.

The High Court while, thus, exercising its revisional or appellate

power, may exercise its inherent powers. Inherent power of the High Court

can be exercised, it is trite, both in relation to substantive as also procedural

matters.

In respect of the incidental or supplemental power, evidently, the High

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Court can exercise its inherent jurisdiction irrespective of the nature of the

proceedings. It is not trammeled by procedural restrictions in that

(i) power can be exercised suo motu in the interest of justice. If such

a power is not conceded, it may even lead to injustice to an

accused.

(ii) Such a power can be exercised concurrently with the appellate or

revisional jurisdiction and no formal application is required to be

filed therefor.

(iii) It is, however, beyond any doubt that the power under Section 482

of the Code of Criminal Procedure is not unlimited. It can inter

alia be exercised where the Code is silent where the power of the

court is not treated as exhaustive, or there is a specific provision in

the Code; or the statute does not fall within the purview of the

Code because it involves application of a special law. It acts ex

debito justitiae. It can, thus, do real and substantial justice for

which alone it exists.

This Court in Dinesh Dutt Joshi v. State of Rajasthan and Another,

[(2001) 8 SCC 570] while dealing with the inherent powers of the High

Court held:

"\005The principle embodied in the section is based

upon the maxim: quando lex aliquid alicui

concedit, concedere videtur et id sine quo res ipsae

esse non potest i.e. when the law gives anything to

anyone, it gives also all those things without which

the thing itself would be unavailable. The section

does not confer any new power, but only declares

that the High Court possesses inherent powers for

the purposes specified in the section. As lacunae

are sometimes found in procedural law, the section

has been embodied to cover such lacunae wherever

they are discovered. The use of extraordinary

powers conferred upon the High Court under this

section are however required to be reserved, as far

as possible, for extraordinary cases."

The decisions of this Court emphasised the fact that there exists a

distinction between two classes of cases, viz., (i) where application of

Section 482 is specifically excluded and (ii) where there is no specific

provision but limitation of the power which is sought to be exercised has

specifically been stated.

In R.P. Kapur v. State of Punjab [AIR 1960 SC 866], this Court

summarized some of the categories of cases where inherent power should be

exercised to quash a criminal proceeding against the accused stating:

" (i) where it manifestly appears that there is a

legal bar against the institution or continuance e.g.

want of sanction;

(ii) where the allegations in the first information

report or complaint taken at its face value and

accepted in their entirety do not constitute the

offence alleged;

(iii) where the allegations constitute an offence,

but there is no legal evidence adduced or the

evidence adduced clearly or manifestly fails to

prove the charge."

The said decision has been noticed subsequently by this Court in

State of Karnataka v. M. Devendrappa and Another [(2002) 3 SCC 89].

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This Court furthermore laid down that the inherent power of the High

Court can be invoked in respect of the matters covered by the provisions of

the Code unless there is specific provision to redress the grievance of the

aggrieved party. [See Madhu Limaye v. State of Maharashtra, (1977) 4 SCC

551 and Raj Kapoor v. State, (1980) 1 SCC 43]

It is also not in dispute that the said power overrides other provisions

of the Code but evidently cannot be exercised in violation / contravention of

a statutory power created under any other enactment.

In State Through Special Cell, New Delhi v. Navjot Sandhu Alias

Afshan Guru and Others [(2003) 6 SCC 641], it was stated:

"Section 482 of the Criminal Procedure Code

starts with the words "Nothing in this Code". Thus

the inherent jurisdiction of the High Court under

Section 482 of the Criminal Procedure Code can

be exercised even when there is a bar under

Section 397 or some other provisions of the

Criminal Procedure Code. However as is set out in

Satya Narayan Sharma case this power cannot be

exercised if there is a statutory bar in some other

enactment. If the order assailed is purely of an

interlocutory character, which could be corrected

in exercise of revisional powers or appellate

powers the High Court must refuse to exercise its

inherent power. The inherent power is to be used

only in cases where there is an abuse of the process

of the court or where interference is absolutely

necessary for securing the ends of justice. The

inherent power must be exercised very sparingly as

cases which require interference would be few and

far between. The most common case where

inherent jurisdiction is generally exercised is

where criminal proceedings are required to be

quashed because they are initiated illegally,

vexatiously or without jurisdiction. Most of the

cases set out hereinabove fall in this category. It

must be remembered that the inherent power is not

to be resorted to if there is a specific provision in

the Code or any other enactment for redress of the

grievance of the aggrieved party. This power

should not be exercised against an express bar of

law engrafted in any other provision of the

Criminal Procedure Code. This power cannot be

exercised as against an express bar in some other

enactment."

In State of W.B. and Others v. Sujit Kumar Rana [(2004) 4 SCC 129],

to which our attention has been drawn by Mr. Rao, this Court was dealing

with a matter arising out of an order of confiscation passed under the

provisions of the Forest Act, 1927.

In that case, the law was stated in the following terms:

"The said authority before passing a final order in

terms of Section 59-A(3) of the Act is required to

issue notice and give opportunity of hearing to the

parties concerned. Unless such a notice is issued,

the confiscation proceeding cannot be said to have

started. Once, however, a confiscation proceeding

is initiated; in terms of Section 59-G of the Act,

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the jurisdiction of the criminal court in this behalf

stands excluded. The criminal court although

indisputably has the jurisdiction to deal with the

property which is the subject-matter of offence in

terms of the provisions of the Code of Criminal

Procedure but once a confiscation proceeding is

initiated, the said power cannot be exercised by the

Magistrate."

To what extent, if any, Section 386 limits the exercise of jurisdiction

of the High Court under Section 482 may now be considered.

In The State of Andhra Pradesh v. Thadi Narayan [(1962) 2 SCR

904], this Court opined that while exercising the appellate power, the High

Court should not assume itself that the whole case is before it. Evidently, it

was dealing with a case before coming into force of the 1973 Act.

The power to direct enquiry may not, thus, be held to be confined only

to the original but also of appellate jurisdiction. Such a power can be

exercised also as against the persons who were not the accused at the stage

of trial.

In Ranjit Singh v. State of Punjab [(1998) 7 SCC 149], this Court

held:

"Though such situations may arise only in

extremely rare cases, the Sessions Court is not

altogether powerless to deal with such situations to

prevent a miscarriage of justice. It is then open to

the Sessions Court to send a report to the High

Court detailing the situation so that the High Court

can in its inherent powers or revisional powers

direct the committing Magistrate to rectify the

committal order by issuing process to such left-out

accused. But we hasten to add that the said

procedure need be resorted to only for rectifying or

correcting such grave mistakes."

[See also Municipal Corporation of Delhi v. Ram Kishan Rohtagi and

Others, (1983) 1 SCC 1]

Such a power evidently can be exercised even after the trial is over.

In Kishori Singh v. State of Bihar [(2004) 13 SCC 11], referring to

Raj Kishore Prasad v. State of Bihar, [(1996) 4 SCC 495] and Ranjit Singh

(supra), this Court held:

"After going through the provisions of the Code of

Criminal Procedure and the aforesaid two

judgments and on examining the order dated 10-6-

1997 passed by the Magistrate, we have no

hesitation to come to the conclusion that the

Magistrate could not have issued process against

those persons who may have been named in the

FIR as accused persons, but not charge-sheeted in

the charge-sheet that was filed by the police under

Section 173 CrPC.

So far as those persons against whom charge-sheet

has not been filed, they can be arrayed as "accused

persons' in exercise of powers under Section 319

Cr PC when some evidence or materials are

brought on record in course of trial or they could

also be arrayed as "accused persons" only when a

reference is made either by the Magistrate while

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passing an order of commitment or by the learned

Sessions Judge to the High Court and the High

Court, on examining the materials, comes to the

conclusion that sufficient materials exist against

them even though the police might not have filed

charge-sheet, as has been explained in the latter

three-Judge Bench decision. Neither of the

contingencies has arisen in the case in hand."

The correctness or otherwise of the decision of this Court in Ranjit

Singh (supra) was doubted and the matter was referred to a larger Bench in

Dharam Pal and Others v. State of Haryana and Another [(2004) 13 SCC 9],

wherein one of us (Naolekar, J.) was a member, stating:

"\005According to the decision in Kishun Singh

Case the Sessions Court has such a power under

Section 193 of the Code. As per Ranjit Singh case,

from the stage of committal till the Sessions Court

reaches the stage indicated in Section 230 of the

Code, that court can deal with only the accused

referred to in Section 209 of the Code and there is

no intermediary stage till then for the Sessions

Court to add any other person to the array of the

accused. The effect of this conclusion is that the

accused named in column 2 and not put up for trial

cannot be tried while exercising power under

Section 193 read with Section 228 of the Code.

This means that even when the Sessions Court

applies its mind at the time of framing of charge

and comes to the conclusion from the material

available on record that, in fact, offence is made

out against even those who are shown in column 2,

it has no power to proceed against them and has to

wait till the stage under Section 319 of the Code

reaches, namely, commencement of the

prosecution evidence. The effect is that in less

serious offences triable by a Magistrate, he would

have the power to proceed against those who are

mentioned in column 2, if on the basis of material

on record he disagrees with the police conclusion,

but, as far as serious offences triable by the Court

of Session are concerned, that court will have to

wait till the stage of Section 319 of the Code is

reached. It, however, appears that in a case triable

by the Court of Session, in law, a Magistrate

would have no power to summon for trial an

accused mentioned in column 2 to be tried with

other accused and, to that extent, the impugned

order of the High Court may have to be set aside

but immediately the question involved herein

would arise when the matter would be placed

before the Sessions Court."

The High Court, however, was not correct in issuing a direction to the

State to take advice of the State Public Prosecutor as to under what section

the Appellant has to be charged and tried or directing the CB, CID to take up

the matter and re-investigate and prosecute the Appellant herein. Such a

power does not come within the purview of Section 482 of the Code of

Criminal Procedure. Investigation of an offence is a statutory power of the

police. The State in its discretion may get the investigation done by any

agency unless there exists an extraordinary situation.

Yet again, it is for the public prosecutor to discharge his duties in

terms of the provisions of the Code of Criminal Procedure. The High Court,

thus, has no role to play in such matters. Ordinarily, it is for the public

prosecutor himself to see to whom and how to render his advice or as to

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whether the State would like to proceed against an accused or not.

The High Court while passing the impugned judgment did not bear

the said principles in mind. It went beyond its jurisdiction in directing the

prosecution of the Appellant before us. In a case of this nature, where a

superior court exercises its inherent jurisdiction, it indisputably should

remind itself about the inherent danger in taking away right of an accused.

The High Court should have been circumspect in exercising the said

jurisdiction. When a power under sub-section (8) of Section 173 of the

Code of Criminal Procedure is exercised, the court ordinarily should not

interfere with the statutory power of the investigating agency. It cannot

issue directions to investigate the case from a particular angle or by a

particular agency. In the instant case, not only the High Court had asked

reinvestigation into the matter, but also directed examination of the

witnesses who had not been cited as prosecution witnesses. It furthermore

directed prosecution of the Appellant which was unwarranted in law.

Strong reliance has been placed on Zahira Habibulla H. Sheikh v.

State of Gujarat [(2004) 4 SCC 158] by Dr. Dhawan for the proposition that

the High Court can exercise its inherent jurisdiction in certain situation. Mr.

Rao, on the other hand, has relied upon a decision of this Court in Satyajit

Banerjee and Others v. State of W.B. and Others [(2005) 1 SCC 115]

wherein Dharmadhikari, J. speaking for the Bench opined that the case of

Best Bakery was of exceptional nature.

We may not go into the said respective contentions as we are of the

opinion that, having regard to the order proposed to be passed by us, it is not

necessary so to do.

In a case of this nature, therefore, in our opinion, it would have been

in the fitness of things, the Appellant should have been heard by the High

Court.

We may, however, hasten to add that our direction is not intended to

lay down the law that while the Magistrate directs a further investigation or a

Sessions Judge while exercises its jurisdiction under Section 319 of the Code

of Criminal Procedure, an accused is entitled to be heard; he is not as he has

no right therefor and, thus, the question of hearing him at that stage would

not arise.

But herein, the High Court was dealing with an extraordinary situation

because :

(i) rightly or wrongly the Magistrate had accepted the final form and

did not direct any further enquiry;

(ii) although the investigating officer or the court did not intimate the

first informant about filing of the final form in respect of the

Appellant, it cannot be said that the first informant was not aware

thereof.

(iii) The first informant neither filed any protest petition nor filed any

complaint petition.

(iv) Even during the trial, no application was filed before the learned

Sessions Judge for summoning the Appellant on behalf of the State

or the complainant.

(v) The learned Sessions Judge did not exercise his power suo motu.

(vi) The High Court was hearing an appeal preferred by a convicted

person and exercised its extraordinary jurisdiction after 10 years.

(vii) Even it could direct further investigation, it was required to apply

its mind as regard existence of a very strong prima facie case

therefor and particularly in view of the fact that a period of 10

years had lapsed in the meanwhile.

(viii) Had an opportunity of hearing been given, the State also could

have shown that for valid reasons the investigating officer did not

think it fit to proceed against the Appellant and that there was

otherwise justifiable reasons to file the final form.

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We have noticed hereinbefore that the jurisdiction of the learned

Magistrate in the matter of issuance of process or taking of cognizance

depends upon existence of conditions precedent therefor. The Magistrate has

jurisdiction in the event a final form is filed (i) to accept the final form; (ii)

in the event a protest petition is filed to treat the same as a complaint petition

and if a prima facie case is made out, to issue processes; (iii) to take

cognizance of the offences against a person, although a final form has been

filed by the police, in the event he comes to the opinion that sufficient

materials exist in the case diary itself therefor; and (iv) to direct re-

investigation into the matter. [See Abhinandan Jha and Others v. Dinesh

Mishra , AIR 1968 SC 117, see also Minu Kumari and Anr. v. The State of

Bihar and Ors., 2006 (4) SCALE 329]

Similarly, the power of the Sessions Judge to summon a person to

stand trial with the other accused in exercise of its jurisdiction under Section

319 of the Code of Criminal Procedure is also limited inasmuch as from the

evidences of the witnesses, it must clearly be found that the proceedee had a

role to play in the commission of an offence.

So far as inherent power of the High Court is concerned, indisputably

the same is required to be exercised sparingly. The High Court may or may

not in a given situation, particularly having regard to lapse of time, exercise

its discretionary jurisdiction. For the said purpose, it was not only required

to apply its mind to the materials on records but was also required to

consider as to whether any purpose would be served thereby.

Having regard to the peculiar facts and circumstances of this case, we

are of the opinion that before issuing the impugned directions, the High

Court should have given an opportunity of hearing to the Appellants herein.

For the reasons aforementioned, the impugned judgment is set aside

and the matter is remitted to the High Court for consideration of the matter

afresh. The High Court shall issue notice to the Appellants herein as also the

State and pass appropriate orders as it may deem fit and proper and in

accordance with law. The appeals are allowed with the aforementioned

observations and directions.