Sanjay Kumar Rai vs The State Of Uttar Pradesh

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.472 OF 2021 [Arising out of Special Leave Petition (Crl.) No. 10157 of 2019]

Sanjay Kumar Rai ..... Appellant

VERSUS

State of Uttar Pradesh & Anr. ..... Respondent(s)

JUDGMENT

Surya Kant, J:

Leave granted.

2. This appeal emanates from the judgment dated 28.11.2018 Signature Not Verified Digitally signed by Vishal Anand Date: 2021.05.07 passed by the High Court of Judicature at Allahabad whereby a 19:41:47 IST Reason:

criminal revision against the order dated 13.03.2014 of the 2

Chief Judicial Magistrate, Sant Kabir Nagar refusing to

discharge the appellant in N.C.R. No.120/2012 under Sections

504 and 506 of Indian Penal Code, 1860 [hereinafter referred to

as “IPC”], has been turned down.

3. A brief reference to the facts may be necessary for disposal of

the present appeal. A complaint was lodged with the

jurisdictional police by Respondent No.2 (Kuldeep Mishra), who

claimed to be a newspaper correspondent working for ‘The

Pioneer’. It was alleged that he had conducted a journalistic

investigation for malpractices against one gas agency, namely

‘Kalpana Indane Service’. He had also applied for certain

information under the Right to Information Act 2005, so as to

conduct investigation on alleged black marketing of gas

cylinders by the aforesaid agency. The appellant herein is a

partner in the aforesaid gas agency. As per the NCR report it is

stated that the appellant, while he was responding to the calls

made by Respondent No.2, started calling him names and

threatened to kill Respondent No.2. It is alleged that the 3

appellant had threatened Respondent No.2 to pump numerous

bullets in his face so that he may not even be recognized.

4. On 08.05.2012 the complainant filed an application before the

concerned Chief Judicial Magistrate (“CJM”) under Section 155

(2) Cr.P.C. for conducting investigation in the aforesaid

allegations. The Court accordingly directed investigation and

ordered the local police to submit the report.

5. It may be noted that during the course of investigation

statement of complainant was recorded by the police which

forms part of the case diary. The material allegations as stated

in the aforesaid statement are as follows:­

“………..The applicant had kept the speaker of his mobile on and from his mobile no. XXXX telephoned to Sanjay Rai’s mobile no.XXXX to enquire about the latest irregularities in the said gas agency. On mobile itself, Sanjay Rai started to give filthy abuses to the applicant and threatened to kill him. At the same he also told that your right to information and intellectual concerns shall be kept back in your hands. I will shot [sic.] such number of bullets that even your face could not be recognized. Mohd. Sahrif Kahn and Umesh Kumar Bhatt had also heard the threatening given by Sanjay Rai.” 4

It is apparent that there is material change in the statement

of the respondent – complainant wherein he introduced Mohd.

Sharif Khan and Umesh Kumar Bhatt as witnesses for the call

made by the appellant herein.

6. In any case, on 21.07.2012 a charge sheet came to be filed

against the appellant/accused under Sections 504 and 506 IPC

based on the statement of complainant and the affidavits of two

witnesses. It may not be out of context to mention here that

the Investigating Officer did not deem it necessary to take the

version of the appellant on record or consider his side of story

also.

7. The CJM took cognizance of the matter on 08.11.2012.

However, well before for framing of the charges the appellant

sought his discharge under Section 239 Cr.P.C. contending that

the complainant has falsely implicated him and the allegation of

telephonic threats does not constitute an offence under

Sections 504 and 506 of IPC. It was further averred that the

investigation was not fair and was unilateral in its approach

wherein the investigating officer had made no efforts to find out 5

the truth and had instead relied on the statement of the

complainant and other planted witnesses to fasten a case

against the appellant. The learned CJM did not agree with the

appellant’s plea and rejected his discharge application

observing as under:­

“xxx xxx xxx From perusal of record it is obvious that no affidavit or any documentary evidence has been filed by the applicant/accused in support of his discharge­application.

The fact that which word has been used as abuses and threatening by the applicant is a matter of evidence which can not be determined at this stage. [sic.] From oral as well as documentary evidences on records, there are sufficient evidence on records to frame charges against the accused.

In view of the aforesaid facts and circumstances, the application dated 20.02.2014 filed by the applicant Shree Sanjay Kumar Rai, U/s­239, Cr.P.C. does not appear to be maintainable at this stage and therefore is liable to be rejected.

xxx xxx xxx”

8. The appellant aggrieved by the aforesaid order approached the

High Court through a Criminal Revision Petition, seeking 6

reversal of CJM’s order. The High Court relying on the

judgment of this Court in Asian Resurfacing of Road Agency

Pvt. Ltd. v. Central Bureau of Investigation1 observed that

interference in the order framing charges or refusing to

discharge is called for in rarest of rare case only to correct the

patent error of jurisdiction. Finding no such jurisdictional error

in CJM’s order the Criminal Revision Petition was dismissed.

9. Dissatisfied with the aforesaid impugned order, the appellant­

accused has approached this Court through Special Leave

Petition.

CONTENTIONS:

10. Learned Counsel for the appellant urged that prima facie, the

story of the complainant seems dubious, for he himself initiated

the phone call, put it on speaker and had two witnesses ready

to listen to the conversation. No call records had been sought

by the police, affidavits of the witnesses were blindly accepted

and no attempt was made to record their statements under

Section 161 of CrPC. The Investigating Officer proceeded with a

closed mind and casually overlooked the credentials of the

1(2018) 16 SCC 299 7

complainant who is involved in seven criminal cases including

under Sections 323, 504 and 506 of IPC. A letter from the

Resident Editor of ‘The Pioneer’ was also produced, showing

that the complainant was not employed with their newspaper

around the time of the alleged incident.

11. On the other hand, learned State Counsel urged that the

allegations make for a clear case under Sections 504 and 506

of IPC and that no error was committed by the High Court or

the CJM. In addition to the judgment of this Court which the

High Court relied upon, he buttressed his submissions citing

State of Karnataka v. M.R. Hiremath2 which held that the

Court ought not to enter into questions of evidentiary value of

the material adduced at the stage of considering discharge, and

Srilekha Sentelkumar v. CBI3 whereby this Court opined that

it was impermissible to look into the merits of the case while

exercising powers under Section 239 CrPC.

ANALYSIS :

2 (2019) 7 SCC 515

3 (2019) 7 SCC 82 8

12. At the outset, we may note that the High Court has dismissed

the Criminal Revision on the ground of lack of jurisdiction

under Section 397 of Cr.P.C. The High Court did not examine

the issue in detail to find out whether the continuation of

proceedings will amount to abuse of process of law in this case.

The impugned order cites the decision of this Court in Asian

Resurfacing (supra) wherein it was noted as under:­

“…Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re­ appreciate the matter.”

13. It appears to us that while limiting the scope of a criminal

revision to jurisdictional errors alone, the High Court

apparently under­appreciated the Judgment in Asian

Resurfacing (supra). We say so at least for two reasons. First, 9

the material facts in the above­cited case dealt with a challenge

to the charges framed under the Prevention of Corruption Act,

1988 (“POCA”). The cited judgment itself enlightens that not

only is POCA a special legislation, but also contains a specific

bar under Section 19 against routine exercise of revisional

jurisdiction. Second, This Court in Asian Resurfacing (Supra)

while expressing concern regarding the need to tackle rampant

pendency and delays in our criminal law system, followed the

ratio laid down in an earlier decision in Madhu Limaye v.

State of Maharashtra4 as can be seen from the following

extract:

“27. Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 CrPC, the principle laid down in Madhu Limaye [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551: 1978 SCC (Cri) 10] still holds the field. Order framing charge may not be held to be purely an interlocutory order and can in a given situation be interfered with under Section 397(2) CrPC or 482 CrPC or Article 227 of the 4 (1977) 4 SCC 551 10

Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in a exceptional situation.”

(emphasis supplied)

14. In Madhu Limaye (supra), this Court authoritatively held:

“9… Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court..

10. … Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercises for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial.

(emphasis supplied) 11

15. The correct position of law as laid down in Madhu Limaye

(supra), thus, is that orders framing charges or refusing

discharge are neither interlocutory nor final in nature and are

therefore not affected by the bar of Section 397 (2) of CrPC. That

apart, this Court in the above­cited cases has unequivocally

acknowledged that the High Court is imbued with inherent

jurisdiction to prevent abuse of process or to secure ends of

justice having regard to the facts and circumstance of individual

cases. As a caveat it may be stated that the High Court, while

exercising its afore­stated jurisdiction ought to be circumspect.

The discretion vested in the High Court is to be invoked carefully

and judiciously for effective and timely administration of criminal

justice system. This Court, nonetheless, does not recommend a

complete hands off approach. Albeit, there should be

interference, may be, in exceptional cases, failing which there is

likelihood of serious prejudice to the rights of a citizen. For

example, when the contents of a complaint or the other

purported material on record is a brazen attempt to persecute an 12

innocent person, it becomes imperative upon the Court to

prevent the abuse of process of law.

16. Further, it is well settled that the trial court while considering

the discharge application is not to act as a mere post office. The

Court has to sift through the evidence in order to find out

whether there are sufficient grounds to try the suspect. The court

has to consider the broad probabilities, total effect of evidence

and documents produced and the basic infirmities appearing in

the case and so on. [Union of India v. Prafulla Kumar

Samal5]. Likewise, the Court has sufficient discretion to order

further investigation in appropriate cases, if need be.

17. This brings us to the present case wherein the High Court has

not gone into the merits of the case and did not analyze the

case in light of the settled law referred to above.

18. The High Court has committed jurisdictional error by not

entertaining the revision petition on merits and overlooking the

fact that ‘discharge’ is a valuable right provided to the accused.

In line with the fact that the High Court and the court below

have not examined the fairness of criminal investigation in this

5 (1979) 3 SCC 4 13

case and other related aspects concerning improvement of

witness statements, it is necessary for the High Court to

reconsider the entire matter and decide the revision petition

afresh. Accordingly, we set aside the impugned order dated

28.11.2018 and remand the case back to the High Court for its

reconsideration in accordance with law.

19. The appeal is disposed of in the aforesaid terms.

All the pending application(s), if any, also stands disposed of

accordingly.

..…………………………..CJI.

……………………………J. (SURYA KANT)

..………………………….J. (ANIRUDDHA BOSE)

NEW DELHI DATED: 07.05.2021