STATE REP. BY D.S.P., S.B. C.l.D., CHENNAI vs K.V. Rajendran & Ors.

State Rep. By D.S.P., S.B.C.I.D., Chenai ...

Appellants

VERSUS

K.V. Rajendran & Ors ...

Respondents

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. The only question that needs to be decided in this

appeal is whether in the exercise of the inherent powers

under Section 482 of the Code of Criminal Procedure

(in short, " the Code"), an order disposing of a criminal

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petition, refusing to grant any relief, could be modified

and, thereafter, an investigation, which was with the

State Police authorities could be transferred to the

Central Bureau of Investigation (in short, "the CBI").

3. A criminal petition under Section 482 of the Code was

filed by the respondents for transfer of the investigation

which had been initiated for an offence under Sections

177, 186 and 506(ii) of the Indian Penal Code to the

CBI. In the year 1998, the said criminal petition was

disposed of by the High Court refusing to transfer the

investigation to CBI. By the said order the High Court,

while disposing of the said criminal petition, held that it

was not necessary to hand over the investigation to CBI

in the facts and circumstances of the case and the

SBCID was directed to continue with the investigation.

After more than 3 = years of the final order refusing to

transfer the investigation to CBI, an Interlocutory

Application was filed in the disposed of criminal

petition by the complainant/respondents but this time,

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the learned Single Judge of the Madras High Court

transferred the investigation to the CBI and directed the

State Police to hand over the records to CBI forthwith.

It is this order, by which the investigation was

transferred to CBI, is in appeal before us, which, on

grant of leave, was heard in the presence of learned

counsel for the parties.

4. In our view, the High Court fell in error in reopening

the issue which was finally decided and refused earlier in

the exercise of power under Section 482 of the Code on a

petition which was filed in a disposed of petition at the

instance of the DSP [SB CID]. Before we take up this

question for our decision, it would be appropriate to narrate

the facts of this case leading to the filing of this appeal in a

nutshell :-

5. On 26th of August, 1998 the Revenue Divisional

Officer (in short `the RDO') Mayiladuthurai received a

phone call regarding smuggling of sandalwood and teak

wood logs. The RDO immediately made enquiries and

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discovered that the call was a false alarm. During the

enquiry it also came to light that the caller was one K.V

Rajendran son of Vardarajan (the Respondent herein). He

had impersonated as a reporter of the Indian Express and

made a hoax call to the officer. On 27th of August,

1998 at 01.00 hrs, the RDO appeared before the

Superintendent of Police Nagapattinam and made a

complaint against the Respondent. He produced a statement

given by the Respondent wherein he had admitted the

allegations made against him. The Respondent was

identified as a Lecturer in Government Presidency College,

Madras. On the personal complaint of the RDO, a case was

registered in Porayiar police Station against the Respondent

under Sections 177, 186 and 506(ii) of the Indian Penal

Code. The Respondent was arrested and in the morning of

27th of August 1998, he was produced before the Judicial

Magistrate No. 2 Mayiladuthurai and remanded to judicial

custody. On the next day, the respondent was granted bail

and was released from custody. On 2nd of September, 1998,

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the respondent herein alleged to have given a complaint

against the RDO and other officers for having tortured him

and for having committed other illegal acts between 26th of

August 1998 and 28th August, 1998.

6. On 06th of September, 1998, the respondent filed a

petition before the State Human Rights Commission, Tamil

Nadu. On this complaint, the District Collector,

Nagapattinam, ordered an elaborate enquiry and on the

basis of such an order, a report was submitted to him. On

05th of October, 1998, the District Revenue Officer (DRO)

and the Additional District Magistrate submitted the report

of their enquiry to the District Collector. According to this

report, the allegations leveled against the RDO and the

other personnel by the respondent appeared to be an

afterthought and totally false. On 08th of October, 1998, the

aforesaid report was forwarded to the State Human Rights

Commission, Tamil Nadu. The Commission accepted the

report and informed the respondent that the Commission

was satisfied that no further enquiry should be conducted at

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the level of the Commission. The Commission did not

proceed with the matter and following the view taken by

them, a departmental enquiry that was initiated, was also

dropped.

7. In October 1998, the respondent filed the aforesaid

criminal petition under Section 482 of the Code in the

Madras High Court seeking the following reliefs:

(a) Direction to immediately register an FIR based on

the complaint filed on 02nd of September, 1998;

(b) Transfer further investigation to the Central

Bureau of Investigation;

(c) Order payment of compensation of Rs One lakh.

8. As noted herein earlier, by a final order dated 1st of

March, 2001, a learned Single Judge of the High Court

disposed of the said criminal petition under Section 482 of

the Code refusing to transfer the investigation to CBI and

also directed that the question of granting compensation

would arise at a later stage. The said order was passed on

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the basis of the findings arrived at by the learned Judge,

which are as follows :-

"The third Respondent has already conducted confidential inquiry and submitted that report to Superintendent of Police, SB CID stating that there are enough prima facie materials to take action on the complaint given by the Appellant against the sixth Respondent and others. Under these circumstances, it would be appropriate to direct the third Respondent to register FIR for the various offences mentioned in the complaint given by the Appellant dated 2.9.1998 against Karunakaran, RDO sixth Respondent and other officials and conduct investigation. Since the confidential report show that the preliminary confidential enquiry has been conducted in a proper way by the third Respondent, it is unnecessary to hand over the investigation to the CBI. Accordingly, the Deputy Superintendent of Police, SBCID, Nagapattinam District, the third Respondent is directed to register an FIR, as noted above and take suitable action against the persons concerned in accordance with the procedure contemplated under law, continue the investigation and file a final report. Regarding the claim of interim compensation, the learned counsel for the Appellant cited judgments in Bodhisatwa Gautam v. Subhra Chakraborty (1996 (1) SCC 49)) and D.K. Basu Vs. State of W. B. (1995 (1) SCC 416). In my view, the question of compensation can be considered at a later stage. The more important is that the RDO has taken law into his own hands and caused serious prejudice to the

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personal liberty of the Appellant has to be booked and investigation has to be conducted after registration of the FIR. Therefore, the question regarding the entitlement of compensation and quantum of the same can be considered by the appropriate forum and at the appropriate stage.

With these observations, the petition is allowed. Consequently, no separate order is necessary in Crl. M.P. No. 9037 of 1998."

9. A plain reading of the aforesaid order, refusing to

hand over the investigation to CBI, would show that the

said order was a final order rejecting the prayer of the

appellant before the High Court. Subsequent to the

disposing of the application, that is to say, after 3 = years,

the DSP (SB CID) Chennai had filed an application in the

aforesaid disposed of petition saying that on the date of the

aforesaid final order of the High Court dated 1st of March,

2001, there was no post of DSP (SB CID) Nagapattinam, as

the said post was abolished by a Government order dated

17th of May, 2000. It was also brought to the notice by the

DSP (SB CID) Nagapattinam that in Rule 57 of the Manual

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for Instructions for State Special Branch, the Special

Branch Officers were not empowered to conduct

investigation of cases. Accordingly, an application was

filed by him in the disposed of criminal petition for

modification of the final order dated 1st of March, 2001 and

for a direction to the DSP (CB CID) Nagapattinam instead

of DSP (SB CID) Nagapattinam for investigation. This

application filed by DSP (SBCID) was registered as Crl.

M.P. 3713/2001.

10. During the pendency of this application filed by the

DSP [SB CID], an application was filed by the respondent

complaining that he and the witnesses were ill treated and

harassed by the Investigating Officer and the investigation

was not conducted in an unbiased manner and accordingly,

investigation must be transferred to CBI as prayed for by

him earlier.

11. The aforesaid application filed by DSP (SB CID)

Nagapattinam, and the application filed by the

complainant/respondent in the disposed of criminal petition

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were heard by the same learned Judge and this time, by the

impugned order, the learned Judge directed that it would be

better to transfer the investigation to CBI and, accordingly,

the Investigating Officer was directed to hand over the case

diary and other records forthwith to the Director, CBI, New

Delhi, who will hand over the same to a competent officer

to make further investigation and take appropriate action

against the concerned and file the final report within three

months from the date of the receipt of the order. By the

aforesaid order, the original final order refusing to hand

over the investigation to CBI authorities dated 1st of March,

2001, was modified. It is this order now in appeal before

us.

12. We have heard the learned counsel for the parties and

examined the impugned order as well as the final order

dated 1st of March, 2001 rejecting the prayer of the

respondents to hand over the investigation to the CBI

authorities and other materials on record.

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13. In our view, the learned Judge of the Madras High

Court had fallen in error in passing the impugned order.

The following questions need to be considered by us :

(I) Whether the High Court had become functus

officio with the disposal of the criminal

petition by the judgment and order dated 01st

of March, 2001?

(II) Whether the High Court, in exercise of its

inherent power under Section 482 of the Code can

modify its earlier judgment and order?

14. Before we take up the questions for our decision, we

may look into the law on the questions posed before us.

15. In the case of Hari Singh Mannn vs. Harbhajan

Singh Bajwa & others (2001) 1 SCC 169, this Court held:

"There is no provision in the Code Of Criminal Procedure authorizing the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. Section 362 CrPC has extended the bar of review not only to judgment but also to the final orders other than the judgment.

11 12 Section 362 is based on an acknowledged principal of law that once a matter is finally disposed of by a court, the said court in the absence of statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for the same relief unless the former order is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error."

16. Yet, in the case of Simrikha vs. Dolley Mukherjee

and Chhabi Mukherjee & Anr, (1990) 2 SCC 437, this

court held:

"The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something, which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court.

12 13 Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362."

17. Keeping the principles, as laid down by the aforesaid

decisions of this Court in mind, let us now look to Section

362 of the Code, which expressly provides that no Court

which has signed its judgment and final order disposing of

a case, shall alter or review the same except to correct

clerical or arithmetical error saved as otherwise provided

by the Court. At this stage, the exercise of power under

Section 482 of the Code may be looked into.

18. Section 482 enables the High Court to make such

order as may be necessary to give effect to any order under

the Code or to prevent abuse of the process of any Court or

otherwise to secure the ends of justice. The inherent

powers, however, as much are controlled by principle and

precedent as are its express powers by statutes. If a matter

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is covered by an express letter of law, the court cannot give

a go-by to the statutory provisions and instead evolve a

new provision in the garb of inherent jurisdiction.

19. In the case of Smt Sooraj Devi vs. Pyare Lal &

Anr, AIR 1981 SC 736, this Court held "that the inherent

power of the Court cannot be exercised for doing that

which is specifically prohibited by the Code."

20. Similar view was expressed in the case of Sankatha

Singh vs. State of U.P. [1962] Supp 2 SCR 817, in which

it was held:

"It is true that the prohibition in Section 362 against the Court altering or reviewing its judgment is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail."

14 15 21. As noted herein earlier, Section 362 of the Code

prohibits reopening of a final order except in the cases of

clerical or arithmetical errors. Such being the position and

in view of the expressed prohibition in the Code itself in

the form of Section 362, exercise of power under Section

482 of the Code cannot be exercised to reopen or alter an

order disposing of a petition decided on merits.

22. In the present case, we find that the High Court, in

the original final order, disposing of the petition under

Section 482 of the Code has specifically given reasons for

rejecting the prayer for handing over the investigation to

the CBI authorities.

23. That apart, after the final order was passed rejecting

the prayer of the respondent to hand over the investigation

to the CBI authorities, by which, the criminal petition filed

under Section 482 was practically rejected, it was not open

to the High Court to pass a fresh order in the disposed of

petition or even in the pending petition of the DSP (SB

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CID) Nagapattinam, directing investigation to be made by

the CBI authorities.

24. As noted herein earlier, Section 362 of the Code

prohibits a Court from making alternation in a judgment

after the final order or Judgment was signed by the Court

disposing of the case finally except to correct clerical or

arithmetical errors. In our view, therefore, Section 362 of

the Code cannot apply in the facts and circumstances of the

present case. There was no clerical or arithmetical error in

the order.

25. That apart, the respondents did not file any

independent application for transferring the investigation

from the State Police authorities to the CBI authorities on

certain events which had occurred after the final order was

passed by the High Court disposing of the earlier criminal

petition under Section 482 of the Code. A prayer could be

made by the respondents before the High Court for

transferring the investigation from the State Police

authorities to the CBI by filing a fresh petition under

16 17 Section 482 of the Code in view of subsequent events that

had taken place after the final order disposing of the earlier

criminal petition was passed. Again, as noted herein

earlier, the respondents had never applied for transferring

the investigation from State Police authorities to the CBI

by making an independent application. Accordingly, we do

not think that the High Court was justified in handing over

the investigation of the case from the State Police

authorities to the CBI authorities. It is needless to mention

that it would be open for the respondent to make

independent application under Section 482 of the Code if

they find that subsequent events having been taken place,

the investigation must be transferred from State Police

authorities to CBI. Accordingly, we are unable to sustain

the impugned order of the High Court in view of our

discussions made hereinabove. Therefore, the impugned

order is set aside. The appeal is thus allowed.

26. We make it clear once again that if a fresh criminal

petition under Section 482 of the Code is filed by the

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respondents for transferring the investigation from State

Police authorities to CBI after bringing certain subsequent

events that had taken place after the disposal of the original

criminal petition if there be any, it would be open for the

High Court to entertain such application if it is warranted

and decide the same in accordance with law for which we

express no opinion on merit.

27. For the reasons aforesaid, the appeal is thus allowed

to the extent indicated above.

...........................J. [TARUN CHATTERJEE]

...........................J. [P. SATHASIVAM]

NEW DELHI

September 02, 2008.

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2008 (Arising out of SLP (Crl) No. 5238 of 2004)

State Rep. By D.S.P., S.B.C.I.D., Chenai ...

Appellants

VERSUS

K.V. Rajendran & Ors ...

Respondents

*.*.*.*.*.*.*

Dear Brother,

The judgment in the above matter is sent herewith for

your perusal and kind consideration.

With warm regards,

..............................

[TARUN CHATTERJEE ]

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Hon. Mr. Justice P. Sathasivam

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