Honnaiah T.H. vs The State Of Karnataka

Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 1147 of 2022 (Arising out of SLP (Crl) No 2021 of 2022)

Honnaiah T.H. Appellant(s)

Versus

State of Karnataka and Others Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 This appeal arises from a judgment dated 20 December 2021 of a Single Judge of the

High Court of Karnataka by which the criminal revision filed by the appellant was

dismissed on the ground of maintainability. The appellant, who is the original

informant moved this Court.

3 It has been alleged that a dispute occurred on 25 December 2016 between the

accused and villagers of Thoppanahalli village in Maddur, Karnataka on the

Signature Not Verified allocation of water. The dispute is alleged to have led to a series of altercations and Digitally signed by Chetan Kumar

culminated in the murder of two persons and injuries to several others, including the Date: 2022.08.11 16:28:40 IST Reason:

2

appellant. A First Information Report 1 under Section 154 of the Code of Criminal

Procedure 1973 2 was registered on 26 December 2016 at PS Maddur, District Mandya,

being Crime No. 0582 of 2016, for offences punishable under Sections 143, 147, 148,

504, 323, 302, 307, 114 and 149 of the Indian Penal Code.3 According to the FIR,

around 1830 hours on 25 December 2016, the accused came to the village of the

appellant armed with knives and rods, and abused and assaulted some of the

villagers. A few of the accused allegedly assaulted and stabbed the appellant, his

elder brother, Mutthuraju, and another villager named Nandeesha with knives. The

grievously injured persons were first taken to the Government Hospital at Maddur. The

doctors at the hospital referred the injured to Mandya District Hospital from where

they were further transferred to K R Hospital, Mysore. Both Nandeesha and Mutthuraju

succumbed to the injuries.

4 The appellant claims that the FIR was registered on the information which was

furnished by him, making him the informant. Upon investigation, a charge-sheet was

submitted under Section 173 CrPC before the competent court and the case was

committed for trial.

5 During the course of the trial in SC No. 82 of 2017, the prosecution examined seven

prosecution witnesses.4 PW 2, Dr Chikkaboregowda stated that the appellant and

another injured witness were brought by the police to Maddur Government Hospital

at 1925 hours on 25 December 2016 and that he had referred both the patients to

Mandya District Hospital for further treatment. PW 4, Dr Manjoj P working at K R

Hospital, Mysore stated that the statement of the appellant was recorded in his

1 “FIR” 2 “CrPC” 3 “IPC” 4 “PW” 3

presence by the PSI Maddur at 0115 hours on 26 December 2016.

6 The appellant was examined as PW 7. During the course of his examination-in-chief,

the Public Prosecutor wanted to mark the complaint together with the signature of

the appellant as an exhibit. An objection was raised by the defense counsel on the

ground that in view of the statement of PW 2, during the course of his examination,

the statement of the appellant is referable to Section 161 of the CrPC and cannot be

marked as an exhibit.

7 The trial court in its order dated 3 October 2019 refused to mark the complaint on the

basis of the statement by PW 2, and on the ground that PW 7 did not depose in his

evidence that he gave the complaint to the police. The trial court observed:

“The witness has not deposed in his evidence that he has given complaint to the police. He has deposed that he has given statement while he was taking treatment in the hospital in presence of the Investigating Officer and the Doctor. On the basis of the above evidence of P.W.2, the statement of this witness cannot be marked by treating the same as First Information Report. And, as requested by the learned Special Public Prosecutor, the statement of the witness and his signature cannot be marked as ‘exhibit’, since the witness has stated that he has given his statement.”

8 The State did not pursue its remedies against the order of the trial court. The

appellant instituted a criminal revision under Sections 397(1) and 401 of the CrPC.

The High Court by the impugned judgment dated 20 December 2021 upheld the

order of the trial court, and dismissed the revision petition on the ground of

maintainability. The High Court observed that the appellant as the de-facto

complainant had no locus standi to file the revision petition. The relevant

observations of the High Court are extracted below:

4

“12. The State has left the matter as it is. However, it is the complainant who is now agitating before this Court by challenging the said order. The word 'victim' is defined in Section 2(wa) of the Cr.P.C. which reads as under:

"victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim"

includes his or her guardian or legal heir;

13. In a given case, it also includes the rights of the complainant which is carved out under Section 372 of Cr.P.C. only for the purpose of challenging the order passed by the Court acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation. Except these three requirements in the amended CrPC for the victim/complainant, when the CrPC is silent as to the further rights of a victim/complainant, the filing of the revision petition challenging every order that would be passed during the pendency of the trial is not maintainable. Therefore, revision petition at the instance of the defacto complainant/victim, in the considered opinion of this Court, is not maintainable.”

The High Court also observed that under Section 397(2) of CrPC, the powers of

revision cannot be exercised in relation to an interlocutory order passed in any

appeal, inquiry, trial or other proceeding. The High Court held that the order of the

trial court declining to mark the statement of the appellant as an exhibit is an

interlocutory order, and dismissed the revision petition in view of the bar contained in

Section 397(2) of CrPC.

9 The appellant moved this court, aggrieved by the order of the High Court dated 20

December 2021. Notice was issued on 11 March 2022, when the proceedings in SC

No. 82 of 2017 pending before the trial court were stayed. By an order dated 11 April 5

2022, this Court modified its earlier order and stayed only the further recording of the

evidence of PW 7 (the appellant) at the trial.

10 We have heard Mr Senthil Jagadeesan, counsel appearing on behalf of the

appellant, Mr Shubranshu Padhi, counsel for the State of Karnataka and Mr T.R.B.

Sivakumar, counsel for the respondents-accused.

11 The case of the prosecution is that the injured persons, including the appellant, were

shifted from the Government Hospital at Maddur to Mandya District Hospital to K R

Hospital, Mysore on 26 December 2016. The appellant has not stated at any stage

that he was brought by the police to any of the hospitals for treatment. On the basis

of the deposition of PW 4, it prima facie appears that the statement of the appellant

was recorded at 0115 hours on 26 December 2016 at K R Hospital, Mysore in the

presence Dr Manoj P who was examined as PW 4. On the basis of the statement of

PW7, intimation about the offence was received at PS Maddur following which the

FIR was registered as Crime No 0582 of 2016 at 0230 hours on 26 December 2016.

Thus, the basis of the order of the trial court, which has been upheld by the High

Court, namely, that the statement of the appellant is a statement under Section 161

CrPC is erroneous. The statement of the appellant, in fact, was the basis on which

the FIR was registered. Hence, it was legitimately open to the prosecution to have

the statement proved and marked as an exhibit during the course of the trial.

12 There would be a serious miscarriage of justice in the course of the criminal trial if the

statement were not to be marked as an exhibit since that forms the basis of the

registration of the FIR. The order of the trial judge cannot in these circumstances be

treated as merely procedural or of an interlocutory in nature since it has the potential

to affect the substantive course of the prosecution. The revisional jurisdiction under 6 Section 397 CrPC can be exercised where the interest of public justice requires

interference for correction of manifest illegality or the prevention of gross miscarriage

of justice. 5 A court can exercise its revisional jurisdiction against a final order of acquittal

or conviction, or an intermediate order not being interlocutory in nature. In the decision

in Amar Nath v State of Haryana, 6 this Court explained the meaning of the term

“interlocutory order” in Section 397(2) CrPC. This Court held that the expression

“interlocutory order” denotes orders of a purely interim or temporary nature which do

not decide or touch upon the important rights or liabilities of parties. Hence, any order

which substantially affects the right of the parties cannot be said to be an

“interlocutory order”. Speaking for a two-Judge Bench, Justice Murtaza Fazal Ali

observed:

“6. […] It seems to us that the term “interlocutory order” in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so

5 Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460; Sheetala Prasad v Sri Kant, (2010) 2 SCC 190 6 (1977) 4 SCC 137 7

as to be outside the purview of the revisional jurisdiction of the High Court.”

Explaining the historical reason for the enactment of Section 397(2) CrPC, this Court

observed in Amar Nath (supra) that the wide power of revision of the High Court is

restricted as a matter of prudence and not as a matter of law, to an order that

“suffered from any error of law or any legal infirmity causing injustice or prejudice to

the accused or was manifestly foolish or perverse.” In KK Patel v State of Gujarat,7

where a criminal revision was filed against an order taking cognizance and issuing

process, this Court followed the view as expressed in Amar Nath (supra), and

observed:

“11. [….] It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v State of Haryana, Madhu Limaye v State of Maharashtra, 8 VC Shukla v State,9 and Rajendra Kumar Sitaram Pande v Uttam 10). The feasible test is whether upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.”

13 In the decision in VC Shukla (supra), this Court noted that under the CrPC, the

question whether an order such as an order summoning an accused 11 or an order

7 (2000) 6 SCC 195 8 (1977) 4 SCC 551 9 1980 Supp SCC 92 10 (1999) 3 SCC 134 11 Amar Nath v State of Haryana, (1977) 4 SCC 137 8

framing a charge 12 is an “interlocutory order” must be analysed in the light of the

peculiar facts of a particular case. In the present case, the objection taken by the

defense counsel (which was upheld by the trial judge) that the statement of the

informant is a statement under Section 161 CrPC travels to the root of the case of

the prosecution and its acceptance would substantially prejudice the case of the

prosecution. According to the charge sheet, the statement of the appellant/

informant formed the basis of the FIR and set the criminal law in motion. Rejection of

the prayer of the Public Prosecutor to mark the statement as an exhibit would

possibly imperil the validity of the FIR. In this background, the order of the trial court

declining to mark the statement of the informant as an exhibit is an intermediate

order affecting important rights of the parties and cannot be said to be purely of an

interlocutory nature. In the present case, if the statement of the appellant/ informant

is not permitted to be marked as an exhibit, it would amount to a gross miscarriage

of justice.

14 The challenge to the maintainability of the revision at the instance of the appellant

impugning an order passed during the pendency of the trial must also be rejected.

The revisional jurisdiction of a High Court under Section 397 read with Section 401 of

the CrPC, is a discretionary jurisdiction that can be exercised by the revisional court

suo motu so as to examine the correctness, legality or propriety of an order

recorded or passed by the trial court or the inferior court. As the power of revision

can be exercised by the High Court even suo moto, there can be no bar on a third

party invoking the revisional jurisdiction and inviting the attention of the High Court

that an occasion to exercise the power has arisen. Holding a revision petition

instituted by a complainant maintainable, Justice Santosh Hegde writing for this

12 Madhu Limaye v State of Maharashtra, (1977) 4 SCC 551 9

Court in K Pandurangan v SSR Velusamy13 observed:

“6. So far as the first question as to the maintainability of the revision at the instance of the complainant is concerned, we think the said argument has only to be noted to be rejected. Under the provisions of the Code of Criminal Procedure, 1973, the court has suo motu power of revision, if that be so, the question of the same being invoked at the instance of an out- sider would not make any difference because ulti- mately it is the power of revision which is already vested with the High Court statutorily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court. In this regard, we may note the following judgment of this Court in the case of Nadir Khan v. State (Delhi Admn).”

15 The view of the High Court that a victim/ complainant needs to restrict his revision

petition to challenging final orders either acquitting the accused or convicting the

accused of a lesser offence or imposing inadequate compensation (three

requirements mentioned under Section 372 CrPC) is unsustainable, so long as the

revision petition is not directed against an interlocutory order, an inbuilt restriction in

Section 397(2) of the CrPC. In the present case, the appellant filed a criminal revision

as his interests as an informant and as an injured victim were adversely affected by

the trial court rejecting the prayer to mark the statement of the informant as an

exhibit. Having held that the order of the trial court is not interlocutory in nature and

that the bar under Section 397(2) of the CrPC in inapplicable, a criminal revision filed

by an informant against the said order of the trial court was maintainable. In

Sheetala Prasad v Sri Kant, 14 a two Judge Bench of this Court has held that a private

complainant can file a revision petition in certain circumstances, including when the

13 (2003) 8 SCC 625 14 (2010) 2 SCC 190 10

trial court wrongly shuts out evidence which the prosecution wishes to produce.

Noting the principles on which revisional jurisdiction can be exercised by the High

Court at the instance of a private complainant, this Court observed:

“12. The High Court was exercising the revisional jurisdic-

tion at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of the Code of Crimi- nal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of a pri- vate complainant (1) where the trial court has wrongly shut out evi- dence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been over-

looked either by the trial court or the appellate court or the order is passed by considering irrelevant evi- dence, and (5) where the acquittal is based on the compound-

ing of the offence which is invalid under the law.”

The principles which have been enunciated in Sheetala Prasad (supra) have been

recently relied upon by this Court in Menoka Malik v State of West Bengal 15 to hold

that the High Court can exercise its revisional jurisdiction in a revision petition filed by

the first informant where the trial court overlooked material evidence. Thus, the

impugned judgment of the High Court dated 20 December 2021 is incorrect in

holding that the appellant did not have locus to institute the criminal revision against

the order of the trial court.

16 In these circumstances, we allow the appeal and set aside the order of the trial court

15 (2019) 18 SCC 721 11

dated 3 October 2019 and the impugned judgment of the High Court dated 20

December 2021. We accordingly direct that the trial court shall allow the plea of the

Public Prosecutor, in the course of the examination of the appellant, to prove the

statement of the appellant which was recorded at 0115 hours on 26 December 2016

so that it can be marked as an exhibit during the course of the trial.

17 Having regard to the fact that the trial is pending since 2016, we direct the trial court

to conclude the trial by 31 March 2023.

18 Pending applications, if any, stand disposed of.

……….......…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

..……….....…........……………….…........J. [J B Pardiwala]

New Delhi;

August 04, 2022

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