Gujarat High Court
Kantilal Bhikhabhai Chavda vs Union Of India & on 17 September, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
KANTILAL BHIKHABHAI CHAVDA....Applicant(s)V/SUNION OF INDIA C/WPPIL/188/2013 CAV JUDGEMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 188 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================1
Whether Reporters of Local Papers may be allowed to see the judgment ?
2To be referred to the Reporter or not ?
3Whether their Lordships wish to see the fair copy of the judgment ?
4Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5Whether it is to be circulated to the civil judge ?
================================================================ KANTILAL BHIKHABHAI CHAVDA....Applicant(s) Versus UNION OF INDIA &
5....Opponent(s) ================================================================ Appearance:
MR GM JOSHI, ADVOCATE for the Applicant(s) No. 1 GOVERNMENT PLEADER for the Opponent(s) No. 6 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 17/09/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This petition in the nature of a Public Interest Litigation has been filed by a President of an N.G.O. named Prakruti Environment Research and Development, registered as a Public Trust, and has prayed for the following reliefs :
(A) To admit and allow this Public Interest Litigation.
(B) To issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus declaring the action of respondent No.1 to 3 as unjust, improper, contrary to the provisions of law therefore illegal insofar as it relates to interference with the investigation carried out by respondent No.4 and be further pleased to direct the respondents not to interfere in any manner whatsoever in the process of investigation by respondent No.4.
(BB) To issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus declaring the action of Respondent Nos.3 and 4 in not arraigning Shri Rajendra Kumar as an accused as dishonest, failure in performance of statutory duty and based on extraneous considerations.
(C) To direct respondent No.4 to file necessary proceedings against the concerned officers under Section 201 of Indian Penal Code and place the report before this Hon ble Court.
Pending hearing and final disposal of this petition, Hon ble Court be pleased to direct the respondent No.4 to discharge the function of investigation independently without being influence by the directions and interference of respondent no.1 to 3 in the process of investigation assigned pursuant to the order passed by this Hon ble Court Annexure E to this petition.
(DD) During the admission, pendency and final disposal of this petition be pleased to call upon the Respondent CBI, SCB, Mumbai to place before this Honourable Court reason for not implicating Mr.Rajendra Kumar as an accused.
(E) Pending hearing and final disposal of this petition, Hon ble Court be pleased to call for the case diary of investigation from respondent no.4.
(F) Be pleased to grant any other and further relief as think fit and proper in the facts and circumstances of the case and in the interest of justice.
The case made out by the petitioner in this petition may be summarised as under :
A Police Inspector of Crime Branch, Ahmedabad, Shri J.G.Parmar lodged a First Information Report on 15th June 2004 with the Crime Branch Police Station, Ahmedabad vide C.R. No.I-8 of 2004, inter alia, stating that on 14th June 2004 at about 23:00 hours an information was received by the Joint Commissioner of Police Shri P.P.Pandey through his personal sources that in a blue coloured Indica Car bearing Registration No.MH-02-JA-4786, one individual named Javed and two Pakistani Fidayeens had left Mumbai for Ahmedabad with arms and ammunition. As the said information was supported by the intelligence sources, the Additional Commissioner of Police (Crime Branch), namely, Shri D.G.Vanzara directed the Assistant Commissioner of Police and the Police Inspector to keep a close watch and apprehend those persons. A team comprising of high ranking police officers kept a close watch over Indira Bridge as the information received was that the blue coloured Indica car may pass through the Indira Bridge. The Indica car was spotted and on instructions from one Shri Amin, a high ranking police officer, a shot was fired by a Commando which hit the rear tyre of the Indica car, as a result of which the car stopped. One terrorist got down from the car armed with AK.56 and started firing towards the police officers. The other terrorist who was sitting in the car also started firing. The team of police officers also opened fire on all those persons who were in the car and finally four persons including a lady were shot dead.
It was stated in the First Information Report that all the deceased persons were terrorists Fidayeens of prohibited Lashker-e-Taiba and had hatched a conspiracy to kill the Chief Minister of Gujarat. As a part of the conspiracy they had entered Ahmedabad and were shot dead by the police officers.
The First Information Report was registered for the offences punishable under Sections 3(2)(a) & (c), 13, 14 of the Foreigners Act, Sections 120B, 121, 121A, 122, 123, 307, 553, 186 of the Indian Penal Code, Sections 27, 29 of the Arms Act, Sections 3(1)(a)(b), 3(2), 3(3), 20 and 21 of the Prevention of Terrorism Act and Section 135(1) of the Bombay Police Act.
The persons named as accused in the First Information Report were :
Jishan Johar @ Jaanbaaz @ Abhas Abdul Gani, a resident of Pakistan Amjad Ali @ Salim @ Chandu @ Raj Kumar Javed @ Praneshkumar Pillai, a resident of Pune A lady terrorist named Ishrat Jahan Raza The investigation of the F.I.R.was assigned to the Assistant Commissioner of Police (Mahila), namely, Ms.Parixita Gurjar, of the Crime Branch, Ahmedabad city. During the course of investigation, an application was filed dated 14th June 2004 before the Designated Judge, POTA Court, for addition of the offences under Sections 4 and 5 of the Explosive Substances Act and for the offences under Sections 4 and 53 of the Prevention of Terrorism Act (POTA).
When the investigation was almost completed, at that point of time, the mother of the deceased Ishrat Jahan named Mrs.Samima Kausar preferred a Special Criminal Application No.822 of 2004 in this High Court challenging the action of the police of killing her daughter in a fake encounter and prayed that the investigation be transferred to the Central Bureau of Investigation (CBI).
A Division Bench of this High Court vide judgment and order dated 1st December 2011 directed that the further investigation of CR No.I-8 of 2004 registered with the Crime Branch Police Station, Ahmedabad, be transferred to the CBI and the CBI was directed to register a fresh F.I.R. and investigate into the matter.
Pursuant to the order passed by the Division Bench of this Court dated 1st December 2011, the CBI took over the investigation and filed a charge-sheet in the Court of the Additional Chief Judicial Magistrate, CBI Court No.II, Mirzapur, Ahmedabad, against the following persons, namely :
Shri Jaisinh Gulabsinh Parmar Shri Prithvi Pal Pandey Shri Dahyaji Gobraji Vanzara Shri Girishkumar Laxmanbhai Singhal Dr.Narendra Kantilal Amin Shri Tarunkumar Amrutlal Barot Shri Anaju Jimanbhai Chbaudhary Shri K.R.Kaushik Shri Vakhatsinh Devisinh Vanaar Shri Hareshkumar P.Agrawat Shri Pravinsinh Gatorsinh Vaghela Shri Chetankumar Jayendragiri Goswami Shri Rameshbhai Ishwarbhai Patel Shri Kishorsinh Motisinh Vaghela Shri Devendragiri Himmatgiri Goswami Shri Ibrahim Kalabhai Chauhan Shri Shri Mohanbhai Nanjibhai Menat Shri Bhalabhai Rupabhai Bharvad Shri Kalubhai Sartanbhai Desai Shri Mohanbhai Lalabhai Kalaswa Shri Bharatkumar Amrutlal Patel all police officers of different ranks for the offences punishable under Sections 302, 364, 368, 346, 120-B, 201, 203, 204, 217, 218 of the Indian Penal Code and under Sections 25(1)(e), 27 of the Arms Act.
The charge-sheet filed in the Court of the Additional Chief Judicial Magistrate, CBI Court No.II, Mirzapur, Ahmedabad, culminated into registration of the same as Special Criminal Case No.1 of 2013.
The case of the petitioner in public interest is that the respondent no.5 herein, who retired as a Special Director, Central Bureau of Investigation, was directly involved in the offence of fake encounter and inspite of the role of the respondent no.5 in the crime being referred to in the charge-sheet, he has not been taken up as an accused and no charge-sheet has been filed against the respondent no.5.
In such circumstances, it is the case of the petitioner that when the respondent no.5 was a co-conspirator and had played his role in the fake encounter case, the CBI, should have arraigned the respondent no.5 as an accused and charge-sheet should have been filed against the respondent no.5.
Mr.G.M.Joshi, the learned counsel appearing for the petitioner submitted that the contents of para 9 of the charge as reflected from the charge-sheet specifically discloses the role of the respondent no.5. According to Mr.Joshi , the narration of the events makes it clear that the respondent no.5 was one of the officers who had met the deceased Amjad Ali during his confinement at Arharm Farm. Para 11 also discloses that he was one of the officers who had met Javed and Ishrat Jahan during their illegal confinement on different days and different times. Mr.Joshi vehemently submitted that inspite of such clinching evidence implicating the respondent no.5 in the crime, he has not been arraigned as an accused by the investigating agency, namely, CBI for the obvious reason that the respondent no.5 was retiring from service in the month of July.
Mr.Joshi submitted that in the event of the respondent no.5 being charge-sheeted during service, he could have been subjected to departmental proceedings and would have lost his retiral benefits also.
Mr.Joshi submitted that the moment the respondent no.5 is permitted to retire he would save himself from the departmental proceedings. Such action on the part of the CBI could be termed as malafide, failure to perform a statutory duty and gross misuse of the power.
Mr.Joshi invited our attention to Rule 24 of the Gujarat Civil Services (Pension) Rules, 2002 which reads as under :
24.
Right of Government to withhold or withdraw pension :
(1) Government may, by order in writing, withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and also order the recovery from such pension, the whole or part of any pecuniary loss caused to Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement :
Provided that the Gujarat Public Service Commission shall be consulted before any final order is passed in respect of officers holding posts within their purview :
Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension can be reduced below the minimum fixed by Government.(2)
(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government employee was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government employee, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government employee had continued in service.
(b) The departmental proceedings, if not instituted while the Government employee was in service, whether before his retirement or during his reemployment-
shall not be instituted save with the sanction of the Governor, shall not be in respect of any event which took place more than four years before such institution, and shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government employee during his service.
(3)In case of a Government employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in rule 144 to 146 shall be sanctioned.
(4)Where Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not, subject to the provision of sub-rule (1) of this rule, ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government employee.
(5)For the purpose of this rule :-
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government employee or pensioner, or if the Government employee has been placed under suspension from an earlier date, on such date, and
(b) judicial proceedings shall be deemed to be instituted -
in case of criminal proceedings, on the date on which the complaint or report is made by a police officer of which the Magistrate takes cognizance, and in case of civil proceedings, on the date of presenting the plaint in the court.
Relying on Rule 24 of the Pension Rules, Mr.Joshi submitted that if the departmental proceedings are not instituted while the Government employee was in service, whether before his retirement or during his re-employment, then such departmental proceedings are barred if the same is in respect of any event which may have taken place more than four years before such institution.
Mr.Joshi very assiduously urged before us that this is a fit case to issue a writ of mandamus to arraign the respondent no.5 as an accused and file charge-sheet against him.
Having heard the learned counsel appearing for the petitioner and having gone through the materials on record, the only question that falls for our consideration is, whether this Court in exercise of powers under Article 226 of the Constitution of India can direct the investigating agency to include a person as an accused in the case and file charge-sheet against such a person, more particularly, when the investigation is over and charge-sheet is already filed in the Court of competent jurisdiction.
Ordinarily, court would allow litigation in public interest if it is found :
That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
That the person approaching the Court has come with clean hands, clean heart and clean objectives;
That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
It is also the duty of the Court to ensure that the petitioner has not been setup by others and is nothing but a 'name lender'.
Applying the aforesaid tests to the facts of the present case, this Court owes a duty to see as to whose cause the petitioner is promoting when a petition is filed to pursue a Public Interest Litigation? Whose fundamental or other rights, if any, have been infringed? Who is to be relieved against any wrong and injury caused to him for which he cannot come to this Court ? These are some of the vital questions which are to be answered to test maintainability of any petition which purports to be in 'Public Interest ' and for a 'Public Cause'.
In the present case, we do not find anything from the materials on record that the petitioner has any personal cause for grievance against the respondents. Equally, we also do not find that the petitioner has any personal interest or cause to serve. He has only brought to the notice of the Court that although there is thumping materials indicating the involvement of the respondent no.5 in the crime, the investigating agency, namely, the CBI has not thought fit to arraign the respondent no.5 as an accused and file charge-sheet against him along with the other co-accused. It is equally true that a fair and impartial investigation by any investigating agency is the demand of public interest. In such circumstances, we do not propose to question the locus standi of the petitioner. He has brought a particular fact to our notice and, in our opinion, a pure question of law arises for our consideration and, therefore, we would like to address ourselves only on the question of law.
We need to keep the following aspects in mind :
The investigation is over and the charge-sheet has been filed in the Court of Additional Chief Judicial Magistrate, CBI Court No.II, Mirzapur, Ahmedabad.
Since the offences are exclusively triable by the Court of Sessions, the learned Magistrate must have committed the case to the Court of Sessions under the provisions of Section 209 of the Code of Criminal Procedure and if not yet committed, will have to be committed in near future.
Once the case stands committed to the Court of Sessions, Section 193 of the Code of Criminal Procedure would come into play.
It will be profitable to take into consideration the provisions of Chapter XII of the Code of Criminal Procedure, which deals with the information to the police and their powers to investigate. Section 156 of the Code relates to the police officers power to investigate cognizable cases. Section 156(1) of the Code of Criminal Procedure empowers an officer in charge of police station to investigate any cognizable case without the order of a Magistrate. Sub-Section (2) of Section 156 lays down that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate, while Sub-section (3) gives power to any Magistrate empowered under Section 190 of the Code to order such an investigation in any case as mentioned in sub-section (1). Section 157 requires that, whenever such information is received by an officer in charge of a police station that he has reason to suspect the commission of an offence which he is empowered to investigate under Section 156, he must forthwith send a report of it to the Magistrate empowered to take cognizance of such an offence upon a police report and, at the same time, he must either proceed in person, or depute one of his subordinate officers to proceed, to the spot to investigate the facts and circumstances of the case, and, if necessary, to take measures for discovery and arrest of the offender.
This provision is qualified by a proviso which is in two parts. The first clause of the proviso enables an officer in charge of a police station not to proceed to make an investigation on the spot or to depute a subordinate officer for that purpose if the information received is given against a person by name and the case is not of a serious nature. The second clause of the proviso permits the officer in charge of a police station not to investigate the case if it appears to him that there is no sufficient ground for entering on an investigation. The report to be sent to the Magistrate under Sub-section (1) of Section 157 requires that in each of the cases where the officer in charge of the police station decides to act under the two clauses of the proviso, he must state in his report his reasons for not fully complying with the requirements of sub-section (1) and, in addition, in cases where he decides not to investigate on the ground mentioned in the second clause of the proviso, he is required to notify to the informant the fact that he will not investigate the case or cause it to be investigated. These provisions are followed by Section 159 which is as follows:-
"159.
Such Magistrate, on receiving such report, may direct an investigation or if the thinks lit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code".
Under Section 159, the only power, which the Magistrate can exercise on receiving a report from the officer in charge of a police station, is to make an order in those cases which are covered by the proviso to Sub-section (1) of Section 157, viz., cases in which the officer in charge of the police station does not proceed to investigate the case.
From the above, it is evident that till the police officer files the report, the Court should not interfere with the process of investigation. This position of law has been well-explained by the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad, reported in AIR 1945 PC 18. Their Lordships examined the question of inherent power of the High Court in interfering with the statutory investigation of the police and observed :
Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal Procedure Code, to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then. It has sometimes been thought that Section 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake the investigation.
The position of law explained by the Privy Council has been reiterated by the Supreme Court in the case of M.C.Abraham and another v. State of Maharashtra and others, reported in (2003)2 SCC 649. The relevant observations made in paragraphs 17, 18 and 19 are quoted below :
17.
The principle, therefore, is well settled that it is for the investigating agency to submit a report to the Magistrate after full and complete investigation. The investigating agency may submit a report finding the allegations substantiated. It is also open to the investigating agency to submit a report finding no material to support the allegations made in the first information report. It is open to the Magistrate concerned to accept the report or to order further enquiry. But what is clear is that the Magistrate cannot direct the investigating agency to submit a report that is in accord with his views. Even in a case where a report is submitted by the investigating agency finding that no case is made out for prosecution, it is open to the Magistrate to dis-agree with the report and to take cognizance, but what he cannot do is to direct the investigating agency to submit a report to the effect that the allegations have been supported by the material collected during the course of investigation.
18. In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstances to issue a direction that the case should not only be investigated, but a charge sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc., the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency.
In these circumstances, therefore, we set aside the direction contained in the order of the High Court dated 10th January, 2002 directing the arrest of the appellants. We also set aside the direction made by the High Court directing the investigating agency to submit a charge-sheet. However, the investigating agency must promptly take all necessary steps, conclude the investigation and submit its report to the concerned Magistrate. It is open to the investigating agency to submit such report as it considers appropriate, having regard to the facts and circumstances of the case and result of the investigation. After such a final report is submitted by the investigating agency, the concerned Magistrate will proceed to deal with the matter further in accordance with law without being influenced by any observation made by the High Court in the impugned orders.
Thus, it is amply clear that no Court can direct the investigating officer to include the person s name in the FIR as an accused in the case. We have no doubt in our mind that the Court, in exercise of the powers under Article 226 of the Constitution of India, has no power to direct the investigating officer to include the person as an accused even in the case while the investigation is in progress. The aforesaid view stands fully fortified by a three-Judge Bench decision of the Supreme Court in the case of Director, Central Bureau of Investigation and others v. Niyamavedi and others, reported in 1995 Cri.L.J. 2917. In that case, after the entrustment of the investigation to the Central Bureau of Investigation and while the investigation was in progress, a petition was filed in the High Court of Kerala by an organization called Niyamavedi in public interest, praying that one Raman Srivastava, I.P.S., Inspector General of Police, Southern Zone, Kerala State, Trivandrum, be arrested by the Director, C.B.I., New Delhi for his alleged involvement in the case and for a direction to the State of Kerala to suspend and remove the said officer from service. A learned Single Judge of the High Court dismissed the petition, and in appeal, a Division Bench of the Kerala High Court affirmed the order passed by the learned Single Judge. However, with a view to seek some clarification, the C.B.I. preferred a Special Leave Petition in the Supreme Court and the Supreme Court made the following observations :
...In appeal, a Division Bench of the Kerala High Court, after a detailed judgment, rightly dismissed the appeal holding that no Court has power to direct the investigating officer to include a person as an accused in the case while the investigation is in progress.
Thus, the position so far as the power of the High Court under Article 226 of the Constitution of India in issuing the directions for adding of an accused or arraigning a person as an accused pending investigation of a crime is concerned is very clear.
Therefore, the second and the principal question is, as to at what stage and under which provision of law an accused although named in the F.I.R., if not charge-sheeted by the investigating agency, could be added as an accused and put to trial along with the other co-accused, more particularly, in a case where the investigation is over and charge-sheet is already filed.
It is well-settled that although the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India is competent to entrust the investigation to any independent agency, but once such investigating agency complete its function of investigating into the offences, it is the court in which the charge-sheet is filed which is to deal with all the matters relating to the trial of the accused including the matters falling within the scope of Section 173(8) and Section 319 of the Code of Criminal Procedure.
In Vineet Narain v. Union of India, reported in AIR 1996 SC 3386, the Supreme Court held as under:
In case of persons against whom a prima facie case is made out and a charge-sheet is filed in the competent court, it is that court which will then deal with that case on merits, in accordance with law.
In Union of India v. Sushil Kumar Modi, reported in AIR 1997 SC 1672, the Supreme Court observed that the monitoring process in the High Court in respect of the particular matter had come to an end with the filing of the charge-sheet in the Special Court and the matter relating to execution of the warrant issued by the Special Court against Shri Laloo Prasad Yadav was a matter only within the competence of the Special Court so that there was no occasion for the High Court to be involved in any manner with the execution of the warrant. By relying on decision in Vineet Narain's case (supra), the Supreme Court reiterated that once a charge-sheet is filed in the competent court after completion of the investigation, the process of monitoring by the Supreme Court for the purpose of making the CBI and other investigating agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code.
In M.C.Mehta (Taj Corridor Scam) v. Union of India and others, reported in AIR 2007 SC 1087, the Supreme Court again reiterated the same principle. The following conclusion is relevant:
30.
At the outset, we may state that this Court has repeatedly emphasized in the above judgments that in Supreme Court monitored cases this Court is concerned with ensuring proper and honest performance of its duty by CBI and that this Court is not concerned with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge-sheet in the competent court, according to the ordinary procedure prescribed by law... .....
After saying so, the Supreme Court concluded:
34.
We, accordingly, direct CBI to place the evidence/ material collected by the investigating team along with the report of the SP as required under Section 173(2) CrPC before the Court/Special Judge concerned who will decide the matter in accordance with law.
The only provision which enables a Sessions Court to add a new accused is Section 319 of the Code of Criminal Procedure and the powers thereunder could be invoked only on the strength of the evidence in the trial, but not otherwise. For any reason if the investigating agency has not thought fit to arraign a particular person as an accused in the charge-sheet inspite of the fact that there may be some material to show complicity of such person in the crime, the High Court, in exercise of power under Article 226 of the Constitution of India should not look into the charge-sheet filed in the Court of competent jurisdiction and decide whether such a person should be made an accused and the investigating agency should be directed to file charge-sheet against such a person.
It will be profitable to look into the provisions of Section 319 of the Code of Criminal Procedure. Section 319 of the Code reads thus :
"319.
Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has 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 not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.(3)
Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.(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 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.
On a careful reading of Section 319 of the Code, it becomes clear that the trial Court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with the other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person, even though had initially been named in the FIR as accused, but not charge-sheeted, can also be added to face the trial. Even in a case where a person is not named in the FIR but during the course of the investigation involvement of such a person comes on record and still not charge-sheeted, such person could be added to face the trial. The trial Court can take the necessary steps to add such persons as accused only on the basis of the evidence adduced before it and not on the basis of the materials available in the charge-sheet or the case-diary, because such materials contained in the charge-sheet or the case-diary do not constitute evidence. The word used in Section 319 is evidence , which means evidence led before the trial Court during the course of the trial. (see Lok Ram v. Nihal Singh and another, AIR 2006 SC 1892) Power under Section 319 of the Code can be exercised by the Court even suo motu or on an application by someone including the accused already before it. If the Court is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused. It is an extraordinary power which has been conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. (see Y.Saraba Reddy v. Puthur Rami Reddy and others, 2007 AIR SCW 6258).
In Kishun Singh v. State of Bihar, reported in (1993)2 SCC 16, the Supreme Court considered the question whether power to add any other person to the array of accused could be traced out from the Code dehors Section 319 of the Code, if the Judge finds that besides the accused arraigned before him the complicity of another person in the commission of the crime has prima facie surfaced from the material before him. The Supreme Court in para 16 observed thus :
On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record.
(Underlining supplied) The above referred decision of the Supreme Court came to be considered by a three-Judge Bench in the case of Ranjit Singh v. State of Punjab, reported in 1998 Cri.L.J. 4618 and the three-Judge Bench did not approve its earlier decision in the case of Kishun Singh (supra) and overruled the same. The decision of the Supreme Court in Ranjit Singh (supra) is the complete answer so far as the present petition is concerned. We would like to quote the relevant paras 12 to 23 as under :
12.
It is regarding the last part of the aforesaid observations that serious arguments were addressed by the counsel urging reconsideration thereof. We have no doubt that with the committal order Sessions Court gets unfettered jurisdiction to take cognizance of the offences involved in the case. But the crucial question is whether such jurisdiction would envelop powers to summon any person as an accused other than those covered by the committal order.
13. The change made by the new Code in Section 209 is that it is the "case" which is committed to the Court of Session and not the accused. But while committing the case to the Court of Session the committing Court has a further duty which is in respect of the accused in the case. Section 209 says that the committal Court has to "remand the accused to custody until such commitment has been made" subject to the provisions relating to bail. The accused referred to in the section is the accused against whom the Magistrate has already issued summons or warrant under Section 204(1)(b) of the Code. The said clause reads thus :
"If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
xxx xxx xxx xxx
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or if he has no jurisdiction himself some other Magistrate having jurisdiction."
14. The said power can be exercised in respect of any offence in warrant cases whether it is triable by a Court of Session or a Magistrate. Once the accused is before the Magistrate, in the next stage he has to supply copies of documents referred to in Section 207 if it is a case instituted on police report, and otherwise the documents referred to in Section 208 of the Code. We have to read Section 209 in the aforesaid sequences of provisions.
"209.
commitment of case to Court of Session when offence is triable exclusively by it.- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session."
15. Commitment of a case to the Court of Session will be complete only on compliance with the formalities enumerated in Section 209 which includes dealing with the accused in the manner mentioned therein.
16. Now, we may look at the procedure for trial before the Court of Session as laid down in Chapter XVIII of the Code which contains practically all the provisions relating to such trial. The commencing Section 225 of the Chapter only says that prosecution shall be conducted by a Public Prosecutor. The next Section 226 says that "when the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused."
17. It is clear that during the said stage the Court of Session can deal only with the accused who is referred to in Section 209. The accused who can appear or can be brought before a Sessions Court at that stage is only that accused who is referred to in Section 209, Section 227 deals with the power of the Court to decide whether that accused is to be discharged or not. If he is not discharged the Sessions Court is obliged to frame a charge against that accused as per Section 228 of the Code. Thereafter the plea of that accused has to be recorded as enjoined by Section 229. The stage of evidence collection commences only next, (vide Sections 230 and 231 of the Code).
18. So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code that can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused.
19. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the Court to wait until the entire evidence is collected for exercising the said powers.
20. But then one more question may survive. In a situation where the Sessions Judge notices from the materials produced but before any evidence is taken, that any other person should also have necessarily been made an accused (without which the framing of the charge would be defective or that it might lead to miscarriage of justice) is the Sessions Court completely powerless to deal with such a contingency? One such situation is cited by the learned Judges through an illustration narrated in Kishun Singh's case (1993 AIR SCW 771) (supra) as follows (para 15) :
"Where two persons A and B attack and kill X and it is found from the material placed before the Judge that the fatal blow was given by A whereas the blow inflicted by B had fallen on a non-vital part of the body of X. If A is not challaned by the police, the Judge may find it difficult to charge B for the murder of X with the aid of Section 34, IPC. If he cannot summon A, how does he frame the charge against B?"
21. Another instance can be this. All the materials produced by the investigating agency would clearly show the positive involvement of a person who was not shown in the array of accused due to some inadvertence or omission. Should the Court wait until evidence is collected to get that person arraigned in the case?
22. Though such situation may arise only in extremely rare cases the Sessions Court is not altogether powerless to deal with such situations to prevent 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.
23. For the foregoing reasons we find it difficult to support the observations in Kishun Singh's case (1993 AIR SCW 771) that powers of the Sessions Court under Section 193 of the Code to take cognizance of the offence would include the summoning of the person or persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record.
Thus, the position of law discernible from the decision of the Supreme Court in the case of Ranjit Singh (supra) could be summarised as under :
Once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the Court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked.
If positive involvement of a person is apparent but still such person is not arraigned as accused due to some inadvertence or omission, then the Court need not wait until the evidence is collected to get that person arraigned in that case. It would be 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. However, the said procedure should be resorted to only for rectifying or correcting grave mistakes.
In the present case, none of the stages referred to above have reached.
The decision of the Supreme Court in the case of Ranjit Singh (supra) has been subsequently followed in a recent pronouncement of the Supreme Court in the case of Jile Singh v. State of U.P. and another, reported in 2012 Cri.L.J. 1603.
We are also not impressed by the submission of Mr.Joshi so far as the issue of Rule 24 of the Pension Rules, 2002 is concerned. Rule 24 prohibits institution of departmental proceedings after retirement for any event which may have taken place more than four years before such institution. The event with which we are concerned is of the year 2004. The respondent no.5 has already attained superannuation and, therefore, even otherwise there is no scope for the Government to institute any departmental proceedings even if the respondent no.5 at any point of time during the course of the trial is arraigned as an accused.
For the foregoing reasons, we do not find any merit in this petition and the same is rejected. However, in the facts and circumstances of the case, there shall be no order as to costs.
We may clarify that we have otherwise not gone into the merit of the sufficiency or insufficiency of the materials to add the respondent no.5 as an accused in the case.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 32 of 32