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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1466 OF 2023

[ @ SPECIAL LEAVE PETITION (CRL.) NO.11377 OF 2022 ]

SANJAY DUBEY … APPELLANT

VERSUS

THE STATE OF MADHYA PRADESH AND ANOTHER … RESPONDENTS

R1: The State of Madhya Pradesh

R2: Victim A Through Police Station Slimnabad

J U D G M E N T

AHSANUDDIN AMANULLAH,J.

Heard learned senior counsel/counsel for the

parties.

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2. Leave granted.

3. The present appeal is directed against the

Judgment and Order dated 21.09.2022 (hereinafter

referred to as the “Impugned Judgment”) rendered by a

learned Single Bench of the High Court of Madhya

Pradesh at Jabalpur (hereinafter referred to as the

“High Court”) in MCRC No. 43998 of 2022, in which a

finding, albeit prima facie, of being guilty of

dereliction of duty against the appellant has been

recorded. Further, it was observed in the Impugned

Judgment that the appellant is not fit to be assigned

any important responsibility in the Police Department

and is unfit to hold any responsible post. It has

further been noted that the Superintendent of Police,

Katni had already line-attached the appellant and was

initiating enquiry for imposition of major penalty, for

which he would get conducted a preliminary enquiry by

the Additional Superintendent of Police and forward the

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report to the Disciplinary Authority for imposition of

a major penalty.

4. The Impugned Judgment also records a ‘direction’

issued to take appropriate action against the appellant

for dereliction of duty, insubordination and causing

undue disruption in the proceedings of the High Court.

THE FACTUAL PRISM:

5. The Appellant was an Inspector of Sl eemanabad

Police Station, Katni where FIR No. 424 of 2021 dated

18.07.2021 was registered against the accused therein,

one Shiv Kumar Kushwah (hereinafter referred to as the

“accused”) under Sections 376 & 506 of the Indian Penal

Code, 1860 (hereinafter referred to as the “ IPC”),

Sections 3 and 4 of the Protection of Children from

Sexual Offences Act, 2012 (hereinafter referred to as

the “POCSO Act”), Sections 3(1)(W)(ii) and 3(2)(V) of

the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 and Sections 67

and 67A of the Information Technology Act, 2000. The

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Forensic Science Laboratory Report (hereinafter

referred to as the “FSL Report”) was forwarded to the

office of the Superintendent of Police, Katni on

25.10.2021. The FSL Report was forwarded to the

appellant with a note that DNA examination as per

guidelines be undertaken. However, the DNA examination

was not carried out. In the meantime, the accused filed

MCRC No.43998 of 2022 seeking bail before the High

Court.

6. During the proceedings, the High Court called for

the case-diary, but the FSL Report was not included

therewith. This led the High Court to seek the personal

appearance of the Superintendent of Police, Katni and

the In-charge of the Regional Forensic Science

Laboratory, Jabalpur. On 21.09.2022, the duo mentioned

supra appeared before the High Court, and informed that

the FSL Report was sent to the office of Superintendent

of Police, Katni on 25.10.2021. The Superintendent of

Police, Katni stated that the FSL report was forwarded

to the appellant along with communication dated

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27.10.2021, with a note that DNA examination as per

guidelines be carried out. However, the same was not

done, as the appellant took the stand that the

concerned Woman Sub-Inspector had not brought the FSL

Report to his knowledge.

7. The learned Government Advocate for the State

stated before the High Court that the case-diary had

been received in the Office of the learned Advocate

General on 13.09.2022, but the FSL Report was not

included therewith. This prompted the High Court to

pass the Impugned Judgment, as discussed above.

SUBMISSIONS BY THE APPELLANT:

8. Learned senior counsel for the appellant submitted

that the accused had filed MCRC No.43998 of 2022 under

Section 439 of the Code of Criminal Procedure, 1973

(hereinafter referred to as the “Code”), which only

relates to grant of bail to an accused in custody.

Thus, the direction to take action and hold a

departmental enquiry as also the recording of finding

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against the appellant cannot be sustained. In support

of his contention, learned counsel referred to and

relied upon the decisions of this Court in Sangitaben

Shaileshbhai Datanta v State of Gujarat , (2019) 14 SCC

522 and State Represented by Inspector of Police v M

Murugesan, (2020) 15 SCC 251 . It was contended that no

matter how laudable the object, while deciding an

application for bail, the Court cannot enter into any

other realm.

SUBMISSIONS OF THE RESPONDENT-STATE:

9. Per contra, learned counsel for the State

submitted that the appellant had, clearly, exhibited

insubordination, incompetence and, dereliction of duty

in an important matter and thus, in any way, was liable

to be proceeded against. It was submitted that the

Departmental Committee concerned had also conducted an

enquiry where the appellant and some other officials

were found negligent in performing their duties in

providing the FSL Report along with the case-diary

besides suppressing material documents. Learned counsel

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added that due to an interim stay apropos the

departmental proceedings against the appellant, granted

vide Order dated 23.11.2022, the matter could not be

taken to its logical end.

ANALYSIS, REASONING AND CONCLUSION:

10.Having given the matter our anxious and thoughtful

consideration, though the appellant may have a point

that, stricto sensu, in a petition under Section 439 of

the Code, the concerned Court ought not to travel

beyond considering the specific issue viz. whether to

grant bail or reject bail to an accused in custody, it

cannot be lost sight of that the Court concerned herein

was not a ‘Court of Session’ but the High Court for the

State of Madhya Pradesh, established under Article 214

of the Constitution of India (hereinafter referred to

as the “Constitution”).

11. This singular fact, for reasons elaborated

hereinafter, leads us to decline interfering with the

Impugned Judgment, but for different reasons. We have

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no hesitation in stating that had the Impugned Judgment

been rendered by a Court of Session, the factors that

would have weighed with us would be starkly different.

12. A little digression is necessitated. The High

Court is a Constitutional Court, possessing a wide

repertoire of powers. The High Court has original,

appellate and suo motu powers under Articles 226 and

227 of the Constitution. The powers under Articles 226

and 227 of the Constitution are meant for taking care

of situations where the High Court feels that some

direction(s)/order(s) are required in the interest of

justice. Recently, in B S Hari Commandant v Union of

India, 2023 SCC OnLine SC 413 , the present coram had

the occasion to hold as under:

“50. Article 226 of the Constitution is a succour

to remedy injustice, and any limit on exercise of

such power, is only self-imposed. Gainful refer -

ence can be made to, amongst others, A V

Venkateswaran v. Ramchand Sobhraj Wadhwani,

(1962) 1 SCR 573 and U P State Sugar Corporation

Ltd. v. Kamal Swaroop Tandon, (2008) 2 SCC 41 .

The High Courts, under the Constitutional scheme,

are endowed with the ability to issue prerogative

writs to safeguard rights of citizens. For ex -

actly this reason, this Court has never laid down

any strait-jacket principles that can be said to

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have “cribbed, cabined and confined” [to borrow

the term employed by the Hon. Bhagwati, J. (as he

then was) in E P Royappa v. State of Tamil

Nadu, (1974) 4 SCC 3 : AIR 1974 SC 555 ] the ex-

traordinary powers vested under Arti -

cles 226 or 227 of the Constitution . Adjudged on

the anvil of Nawab Shaqafath Ali Khan (supra),

this was a fit case for the High Court to have

examined the matter threadbare, more so, when it

did not involve navigating a factual minefield. ”

(emphasis supplied)

13.Returning to the present case, though usually the

proper course of action of the High Court ought to have

been to confine itself to the acceptance/rejection of

the prayer for bail made by the accused under Section

439 of the Code; however the High Court, being

satisfied that there were, in its opinion, grave lapses

on the part of the police/investigative machinery,

which may have fatal consequences on the justice

delivery system, could not have simply shut its eyes.

14. We are of the view that the learned Single Bench

could have directed institution of separate proceedings

taking recourse to Article 226 of the Constitution,

after formulating reasons and points for consideration.

Thereafter, the matter should have been referred to the

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learned Chief Justice of the High Court for placing it

before an appropriate Bench, which would proceed in

accordance with law, of course, after affording

adequate opportunity to the person(s) proceeded

against.

15. With regard to the High Court’s justified concern

to prevent miscarriage of justice, separate/fresh

proceedings could have been instituted as indicated

above. We hasten to add that our observations are not

to be construed to imply that the High Courts should

delve into the efficacy of investigation at the stage

of bail, and the present judgment is not to be misread

to haul up the investigative agencies/officers in all

cases.

16.This Court could have interfered with the

‘direction’ for departmental proceedings against the

appellant, as learned counsel for the appellant

advanced, had been so done in Sangitaben Shaileshbhai

Datanta (supra) and M Murugesan (supra). However, it

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would be proper to take note that in the aforesaid two

cases, the factual positions were quite different. In

Sangitaben Shaileshbhai Datanta (supra), the Court took

note of the fact that in the case involving rape of a

minor, the High Court ordering the accused and the

appellant therein, who was the grandmother of the

victim along with parents of the victim to undergo

scientific tests viz. lie detection, brain-mapping and

narco-analysis was not only in contravention of the

first principles of criminal law jurisprudence but also

a violation of statutory requirements and thus, the

bail granted to the accused was cancelled. The facts of

the instant case are quite different, and ergo,

Sangitaben Shaileshbhai Datanta (supra) does not aid

the appellant.

17.In M Murugesan (supra), it was noted that the

jurisdiction of High Court is limited to grant or

refuse to grant bail pending trial and such

jurisdiction ends when the bail application is finally

decided. In this background, the High Court, after

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taking a decision on the bail application, having

retained the file and directing the State to constitute

a Committee and seek its recommendation on reformation,

rehabilitation and re-integration of convicts/accused

persons and best practices for improving the quality of

investigation and also to obtain District-wise data

from State and upon submission of final data, after

reviewing the same, making such data a part of the

order after decision on bail application, was held to

be beyond jurisdiction. In the present case, on the

date of passing of the Impugned Judgment, the bail

application was still at large, and had not yet been

decided one way or the other.

18. There is no quibble with the propositions lucidly

enunciated in Sangitaben Shaileshbhai Datanta (supra)

and M Murugesan (supra). Yet, as our discussions in the

preceding paragraphs display, the same are inapplicable

to the extant factual matrix. It is too well-settled

that judgments are not to be read as Euclid’s theorems;

they are not to be construed as statutes, and; specific

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cases are authorities only for what they actually

decide. We do not want to be verbose in reproducing the

relevant paragraphs but deem it proper to indicate some

authorities on this point – Sreenivasa General Traders

v State of Andhra Pradesh , (1983) 4 SCC 353 and M/s

Amar Nath Om Prakash v State of Punjab , (1985) 1 SCC

345 – which have been reiterated, inter alia, in BGS

SGS Soma JV v NHPC Limited , (2020) 4 SCC 234 , and Chin-

tels India Limited v Bhayana Builders Private Limited ,

(2021) 4 SCC 602.

19. In the present case, the judgment impugned was

passed before the final disposal of the bail

application by the High Court. On a closer scrutiny of

the judgment impugned, it is clear that the

Superintendent of Police, Katni, while appearing in

person on 21.09.2022 had submitted that he had already

line-attached the appellant vide an order dated

20.09.2022 and was initiating enquiry for imposition of

major penalty. The High Court was informed that the

Superintendent of Police, Katni would “ get conducted

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preliminary enquiry in the hands of the Additional S.P.

and forward the report to the disciplinary authority of

the T.I.to initiate inquiry for major penalty. ”

20.The aforenoted was only reiterated by the High

Court in the latter portion of the judgment impugned,

in the following terms:

“Let DNA report be now produced within a

period of three weeks by the concerned

Officer for which Superintendent of Po -

lice, Katni shall personally monitor that

sample is sent in time to the concerned

DNA Testing Laboratory and report is ob -

tained besides taking appropriate action

against the concerned T.I. Shri Sanjay

Dubey for dereliction of duty, insubordi -

nation and causing undue disruption in

the proceedings of the High Court. ”

(sic)

(emphasis supplied)

21. A combined reading of the afore-extracted snippets

makes it crystal clear that the Superintendent of

Police, Katni, who was the officer superior to the

appellant, himself had stated that he would take action

against the appellant and was initiating enquiry for

imposition of major penalty, which statement was a suo

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motu act and not upon or flowing from any direction of

the Court. Therefore, there was no occasion for the

High Court to further observe for action against the

appellant to be taken, as already, the Superintendent

of Police, Katni had taken a decision to initiate

enquiry against the appellant for imposition of major

penalty.

22. Be that as it may, the facts of the case prima

facie disclose that in such an important and sensitive

case, there had been, at least prima facie, callousness

on the part of the police officer(s) concerned,

including the appellant, in conducting a proper

investigation to bring on record all relevant materials

in support of the truth. Amidst such backdrop, the

chances of undue benefit accruing to the accused,

leading to miscarriage of justice, cannot be ruled out,

and may, in fact, have increased. The significance of

the investigative component cannot be emphasised

enough, and the views of this Court on such aspect have

been brought to the fore in Sidhartha Vashist v State

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(NCT of Delhi), (2010) 6 SCC 1 and Manoj v State of

Madhya Pradesh, (2023) 2 SCC 353.

23.In this connection, on a slightly different but

connected context, it would be apposite to refer to the

judgment in State of Gujarat v Kishanbhai, (2014) 5 SCC

108, wherein the Court opined and directed as under:

“22. Every acquittal should be understood as a

failure of the justice delivery system, in

serving the cause of justice. Likewise, every

acquittal should ordinarily lead to the

inference, that an innocent person was

wrongfully prosecuted. It is therefore,

essential that every State should put in place

a procedural mechanism which would ensure that

the cause of justice is served, which would

simultaneously ensure the safeguard of interest

of those who are innocent. In furtherance of

the above purpose, it is considered essential

to direct the Home Department of every State,

to examine all orders of acquittal and to

record reasons for the failure of each

prosecution case. A standing committee of

senior officers of the police and prosecution

departments, should be vested with the

aforesaid responsibility. The consideration at

the hands of the above Committee, should be

utilized for crystallising mistakes committed

during investigation, and/or prosecution, or

both. The Home Department of every State

Government will incorporate in its existing

training programmes for junior investigation

/prosecution officials course-content drawn

from the above consideration. The same should

also constitute course-content of refresher

training programmes for senior

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investigating/prosecuting officials. The above

responsibility for preparing training

programmes for officials, should be vested in

the same Committee of senior officers referred

to above. Judgments like the one in hand

(depicting more than 10 glaring lapses in the

investigation/prosecution of the case), and

similar other judgments, may also be added to

the training programmes. The course content

will be reviewed by the above Committee

annually, on the basis of fresh inputs,

including emerging scientific tools of

investigation, judgments of courts, and on the

basis of experiences gained by the Standing

Committee while examining failures, in

unsuccessful prosecution of cases. We further

direct, that the above training programme be

put in place within 6 months. This would ensure

that those persons who handle sensitive matters

concerning investigation/prosecution are fully

trained to handle the same. Thereupon, if any

lapses are committed by them, they would not be

able to feign innocence, when they are made

liable to suffer departmental action, for their

lapses.”

(emphasis supplied)

24.While respectfully reiterating the above, drawing

an analogy therefrom, as the lapses are grave, and

additionally, but importantly, the factum that the

authority viz. the Superintendent of Police, Katni,

itself realised lapses had crept into the

investigation, and decided to initiate proceedings

against the appellant (and others), the operative

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portion of the judgment impugned by the High Court,

becomes, merely reiterative, perhaps in more direct

terms, of what had been stated before it. As such,

purely, in the extant facts and circumstances, the

Impugned Judgment does not warrant any interference by

this Court. We propose no order as to costs.

25.In sum, on an overall circumspection, and in view

of the discussion in the preceding paragraphs, the

instant appeal deserves to be, and is, dismissed, with

the caveat that the High Court’s observations are not

to be treated as findings against the appellant.

26. Interim order dated 23.11.2022, in the present

case, is vacated. However, it is made clear that any

observation(s) made by the High Court in relation to

the appellant in the judgment impugned shall not cause

any prejudice to him in the departmental proceedings,

which shall take its own course, in accordance with

law, and after providing full and effective opportunity

to the appellant.

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27. The appellant would be entitled to raise all

grounds and contentions, as may be available to him, in

facts and law, in the departmental proceedings. Our ob-

servations aforesaid, equally, will not prejudice the

appellant, nor shall they be used against the accused.

........................J.

[KRISHNA MURARI]

........................J.

[AHSANUDDIN AMANULLAH ]

NEW DELHI

MAY 11, 2023