Telangana High Court
K.Ravinder vs Bineetha Pandey on 6 July, 2022
Bench: K.Lakshman
1
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ CRIMINAL REVISION CASES NOs.955, 957, 965, 968, 994 AND
995 OF 2018
% Delivered on: 06.07.2022
Crl.R.C.No.955 of 2018
Between:
# Ch.Raghunandan and others .. Petitioners
And
$ The State of Telangana represented by
Special Public Prosecutor for CBI,
and another .....Respondents
Crl.R.C.No.957 of 2018
Between:
# Ch.Raghunandan and others .. Petitioners
And
$ The State of Telangana represented by
Special Public Prosecutor for CBI,
and another .....Respondents
Crl.R.C.No.965 of 2018
Between:
# K.Ravinder and others .. Petitioners
And
$ The State of Telangana represented by
Special Public Prosecutor for CBI,
and another .....Respondents
Crl.R.C.No.968 of 2018
Between:
# K.Ravinder and others .. Petitioners
And
$ The State of Telangana represented by
Special Public Prosecutor for CBI,
and another .....Respondents
2
Crl.R.C.No.994 of 2018
Between:
# D.Mohan and others .. Petitioners
And
$ The State of Telangana represented by
Special Public Prosecutor for CBI,
and another .....Respondents
Crl.R.C.No.995 of 2018
Between:
# D.Mohan and others .. Petitioners
And
$ The State of Telangana represented by
Special Public Prosecutor for CBI,
and another .....Respondents
!For petitioners Mr. T. Niranjan Reddy, Ld.Sr.Counsel,
representing Mr.T.Nagarjun Reddy
Mr. E. Uma Maheshwar Rao,
Mr. T. Bala Mohan Reddy,
Mr. Kondadi Ajay Kumar.
^ For unofficial Respondents Mr. D. Suresh Kumar,
Mr. Nandigam Krishna Rao, Ld.Counsel.
rep. Mr.Balla Ravindranath,
Mr. Dasarath,
Mr. Mahadevan,
Mr.V.Raghunath
For State Special Public Prosecutor for CBI.
< Gist
3
> Head Note
1
? Cases Referred (2019) 8 SCC 27.
2. (1985) 2 SCC 537.
3. (2015) 8 SCC 774.
4. (2012) 9 SCC 460.
5. (2002) 5 SCC 659.
6. (2003) 8 SCC 625.
7. (2012) 10 SCC 517
8. (2020) 6 SCC 625.
9. (1961) 1 SCR 1.
10. (1987) 1 SCC 476.
11. (2013) 9 SCC 199.
12. (2016) 6 SCC 680.
13. (1989) 2 SCC 132.
14. (2014) 13 SCC 70.
15. (2012) 11 SCC 252,
16. (1992) 4 SCC 305,
17. (2015) 3 SCC 123,
18. (1979) 1 ALT 56,
19. (2014) 9 SCC 640,
20. ( 2001) SCC OnLine AP 1578,
21. 1978 SCC OnLine Kar 128,
22. (2005) 1 ALT (Cri) 339,
23. (1964) 1 SCR 639,
24. 2016 (2) ALT (Crl.) 165 (A.P.),
25. (2004) 2 SCC 349,
26. (2016) 2 SCC 143.
4
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL REVISION CASES NOs.955, 957, 965, 968, 994 AND 995 OF 2018
COMMON ORDER:
The lis involved in the present batch of the Criminal Revision
Cases is the same. Therefore, they are being heard and disposed off vide
the following common order.
2-a. The Crl.R.C.No.955 of 2018 is filed challenging the order
dated 15.02.2018 passed in Crl.R.P.No.24 of 2015 by the learned Judge,
Family Court - cum - IV Addl. District and Sessions Judge, Adilabad
reversing the order dated 24.03.2015 passed in CFR.No.1816 of 2013 by
the Judicial Magistrate of First Class, Adilabad.
2-b. The Crl.R.C.No.957 of 2018 is filed challenging the order
dated 15.02.2018 passed in Crl.R.P.No.19 of 2015 by the said Judge,
reversing the order dated 24.03.2015 passed in CFR.No.1817 of 2013 by
the said Magistrate.
2-c. The Crl.R.C.No.965 of 2018 is filed challenging the order
dated 15.02.2018 passed in Crl.R.P.No.24 of 2015 by the said Judge,
5
reversing the order dated 24.03.2015 passed in CFR.No.1817 of 2013 in
R.C.No.14(S) 2011-CBI/HYD by the said Magistrate.
2-d. The Crl.R.C.No.968 of 2018 is filed challenging the order
dated 15.02.2018 passed in Crl.R.P.No.19 of 2015 by the said Judge,
reversing the order dated 24.03.2015 passed in CFR.No.1816 of 2013 in
R.C.No.14(S) 2011-CBI/HYD by the said Magistrate.
2-e. The Crl.R.C.No.994 of 2018 is filed challenging the common
order dated 15.02.2018 passed in Crl.R.P.Nos.19 and 24 of 2015 by the
said Judge, reversing the common order dated 24.03.2015 passed in
CFR.No.1816 of 2013 and 1817 of 2013 in R.C.No.14(S) 2011-
CBI/HYD by the said Magistrate
2-f. The Crl.R.C.No.995 of 2018 is filed challenging the common
order dated 15.02.2018 passed in Crl.R.P.No.24 of 2015 by the said
Judge, reversing the order dated 24.03.2015 passed in CFR.No.1816 of
2013 in R.C.No.14(S) 2011-CBI/HYD by the said Magistrate.
3. Heard Mr. T. Niranjan Reddy learned Senior Counsel,
representing Sri T.Nagarjun Reddy, Mr. E. Uma Maheshwar Rao,
6
Mr. T. Bala Mohan Reddy, Sri Kondadi Ajay Kumar, learned counsels
for the Petitioners; and Mr. D. Suresh Kumar, Mr. Nandigam Krishna
Rao, learned counsel, representing Mr.Balla Ravindranath, Mr.
Dasarath, Mr. Mahadevan, Sri V.Raghunath, learned counsels for the
unofficial Respondents and Special Public Prosecutor for CBI. Perused
the record.
Facts
of the case:-
4. The entire dispute revolves around an alleged encounter which
took place during the intervening night of 01.07.2010 and 02.07.2010 in
the Sarkepalli - Velgi forest area, Wankidi Mandal, Adilabad District.
During the said intervening night of 01.07.2010 and 02.07.2010 an
alleged exchange of fire took place between the police party and an
alleged Maoist group. The exchange of fire resulted in the deaths of one
Mr. Cherukuri Raj Kumar @ Azad (who was the Central Committee and
Polit Bureau Member of the banned organization CPI(M)) and one Mr.
Hemchnadra Pandey (who was working as a journalist).
5. The Petitioners herein are the accused police officers who were
part of a combing operation which resulted in the deaths of Mr. Azad
and Mr. Pandey. According to them, on the afternoon of 01.07.2010
credible information was received that a group of 20 to 25 members of
the banned Maoist organization were spotted in the hillock region of
Sarkepalli - Velgi forest region. Based on such information, a special
police party of 29 police personnel was constituted which included the
Petitioners herein. At around 23:00 hrs, the said special party reached the
spot where the Maoists were spotted based on the coordinates they had.
6. According to the Petitioners herein, the police party heard a
commotion and found with night vision devices that there was a
movement of a group of persons. The police party shouted that they were
the police and asked the group to identify themselves. No response was
received and the other group started firing on the police party. The police
party also fired in retaliation. According to the Petitioners, the exchange
of fire lasted for thirty minutes. To avoid ambush, the police party
moved up to the hillock area.
7. On 02.07.2010, a complaint was lodged by one
Ch. Raghunandan Rao (one of the Petitioner herein) regarding the firing
incident which came to be registered as Cr.No. 40 of 2010 against
unknown Maoists under Sections 148, 307, 149 and 147 of the Indian
Penal Code, 1860 and Sections 25(1)(b) and 27 of the Arms Act, 1959.
8. Inquest was conducted on 02.07. 2010. On 03.07.2010
postmortem of Mr. Azad was conducted by Dr. Neelakanteshwar Rao
and Dr. Chandriah. On the same day, the postmortem of Mr. Pandey was
conducted by Dr. A. Bheeshma and Dr. A. Aravind. In both the
postmortem reports observations were made that bullet wounds have
darkening-burnt edges and blackening was found around the wounds.
The unofficial Respondents (the wives of deceased) allege that the
darkening/burning/blackening around the wounds is a result of close-
range firing.
9. On 05.07.2010, the investigation of Cr. No. 40 of 2010 was
transferred to SDPO, Jagtial. The said SDPO sought opinion of
Department of Forensic Science, Osmania Medical College and Forensic
Medicine Department, Gandhi Medical College. According to the
Petitioners, both the departments opined that the wounds were a result of
distant range firing.
10. However, accowerding to the unofficial Respondents herein
(who are the wives of the both the deceased), both the deceased were
killed in an illegal encounter by the police (who are the Petitioners
herein). According to Mrs. K. Padma (wife of Mr. Azad), Mr. Azad left
the house to go to Nagpur on 30.06.2010 by taking the Gondwana
Express. Similarly, according to Mrs. Bineeta Pandey (wife of Mr.
Pandey) Mr. Pandey also left for Nizamuddin Station on 30.06.2010 to
go to Nagpur. Later wives of both came to know that both Mr. Azad and
Mr. Pandey were killed in an encounter. According to them, both the
deceased were kidnapped from Nagpur and airlifted. They were taken to
Adilabad where both of them were killed in a fake encounter. The wives
of the deceased contended and raised various factual grounds to show
that both of them were shot from a close range which, according to them,
shows that the encounter was fake.
11. Based on the said allegations, Mrs. Bineeta Pandey and one
Mr. Swamy Agnivesh filed W.P. (Crl.) No. of 1 of 2011 and W.P. (Crl.)
No. of 3 of 2011 before the Supreme Court alleging that Mr. Azad and
Mr. Pandey were killed in a fake encounter. The Supreme Court vide
order dated 26.04.2011 ordered the Central Bureau of Investigation
(hereinafter 'CBI') to investigate into the deaths of Mr. Azad and Mr.
Pandey.
12. The CBI registered an FIR in RC.14(S)2011-CBI/HYD under
Sections 120 r/w 302 of the Indian Penal Code, 1860 (for short, 'IPC').
The CBI submitted its final report to the Supreme Court which on
03.05.2012 directed to submit the same before the Magistrate having
jurisdiction.
13. According to the Petitioners herein, the CBI conducted a
detailed investigation covering and answering all the allegations of the
unofficial Respondents raised before the Supreme Court. With regard to
the allegations pertaining to close range firing, the CBI requested one
Dr. TD Dogra, Head of Department of Forensic Science & Toxicology,
AIIMS Delhi to examine the postmortem reports. The AIIMS board
examined the postmortem reports and conducted an enquiry in which the
Doctors who conducted the postmortem also participated. The report of
the AIIMS opined and ruled out the possibility of a closed range firing.
14. The CBI filed the final report before the Judicial Magistrate of
First Class, Adilabad (hereinafter 'the Magistrate'). The Magistrate
issued notices to the unofficial Respondents herein to file their
objections to the final report. Mrs. Bineeta Pandey filed a protest petition
which was numbered as CFR No. 1816 of 2013 and Mrs. K. Padma's
protest petition was numbered as CFR No. 1816 of 2013. The Magistrate
recorded the sworn statements of both the protest petitioners along with
their witnesses Mr. Swamy Agnivesh and Mr. Neelakanteshwar Rao (the
doctor who conducted postmortem of Mr. Azad). After recording their
statements and examining them, the Magistrate dismissed the protest
petitions vide a common order dated 24.03.2015.
15. Being aggrieved by the order dated 24.03.2015, the protest
petitioners (Mrs. Bineeta Pandey and Mrs. K. Padma) approached the
Judge, Family Court - cum - IV Addl. District and Sessions Judge
Adilabad (hereinafter 'Sessions Court') by filing revision petitions vide
Criminal Revision Petition No. 19 of 2015 & Criminal Revision Petition
No. 24 of 2015 challenging the order dated 24.03.2015 passed by the
Magistrate.
16. The Sessions Court heard the protest petitioners and the CBI.
However, no notice was issued to the accused/Petitioners herein. The
Sessions Court set aside the order dated 24.03.2015 passed by the
Magistrate and directed him to take cognizance of the offence vide a
common order dated 15.12.2018.
17. Therefore, aggrieved by the order dated 15.12.2018 passed by
the Sessions Court, the Petitioners herein/accused have filed the present
criminal revision petitions.
18. Contentions of the Petitioners
i. The investigation conducted by the CBI was monitored by
the Supreme Court. The Supreme Court after perusing the
final report refused to order judicial inquiry or re-
investigation of the case. This indicates that the Supreme
Court was satisfied with the investigation conducted by the
CBI.
ii. The final report of the CBI is comprehensive and takes into
account all the allegations made by the unofficial
Respondents and media houses. Therefore, after a thorough
investigation, the CBI did not find any evidence supporting
the allegations of the unofficial Respondents.
iii. The Magistrate rightly passed the order dated 24.03.2015
dismissing the protest petitions of the unofficial
Respondents herein. The protest petitioners therein failed to
produce any material to discredit the conclusion arrived by
the CBI in its final report.
iv. The Magistrate had followed the procedure laid down under
Sections 200 to Section 204 of the Cr.P.C. while dismissing
the protest petitions. Therefore, the discretion of the
Magistrate cannot be faulted with. Reliance was placed on
Vishnu Kumar Tiwari v. State of U.P.1 and Bhagawant
Singh v. Commissioner of Police2.
v. The Sessions Court could not have passed the impugned
order as it is against the provisions of the Cr.P.C. The
(2019) 8 SCC 27.
(1985) 2 SCC 537.
jurisdiction of revisional court is only to satisfy itself of the
legality, propriety and correctness of any finding or
irregularity of any proceedings of the lower courts. Reliance
was placed on Chandra Babu @ Moses v. State3, Amit
Kumar v. Ramesh Chandra4, Jagannath Chowdary v.
Ramayan Singh5 and K. Pandurangan v. S.S.R.
Veluswamy6.
vi. The Sessions Court exercising its powers of revision cannot
direct the Magistrate to take cognizance. At most the
Sessions Court can direct the Magistrate to pass appropriate
orders in accordance with law.
vii. The protest petitioners did not file any fresh material except
the statements of only Mr. Swamy Agnivesh and
Dr. Neelakanteshwar Rao which were marked as Ex.C1 and
Ex.C2. Relying only on the said statements, the order of
Magistrate was illegally set aside.
(2015) 8 SCC 774.
(2012) 9 SCC 460.
(2002) 5 SCC 659.
(2003) 8 SCC 625.
viii. The Sessions Court could not have passed the impugned
order dated 15.02.2018 without issuing a notice under
Section 401(2) of the Cr.P.C. to the Petitioners
herein/accused. Reliance was placed on Manharibhai
Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel7
and Subash Sahebrao Deshmukh v. Satish Atmaram
Talekar8.
ix. The Petitioners maintained that the deceased were killed in
an encounter and they acted in discharge of their public
duty. Reliance was placed on Sections 6, 21, 76, 79, and
300 (3) of the Indian Penal Code, 1860.
x. The plea of self - defence can be considered during the pre-
trial stage. Reliance was placed on Vadilal Panchal v.
Dattatraya Dulaji Gha Digaonkar9.
(2012) 10 SCC 517
(2020) 6 SCC 625.
(1961) 1 SCR 1.
xi. The cognizance is bad in law as no sanction as required
under Section 197 of the Cr.P.C. was obtained. Reliance
was placed on Ram Kumar v. State of Haryana10.
19. Contentions of the Respondents
i. The criminal revision petitions are not maintainable as no
summons were served on the Petitioners. Cognizance is
taken of the offence and not the offender. The role of the
accused comes into picture only after serving of summons.
Hence, no revision petition can be filed by the Petitioners
unless process were issued to them. Reliance was placed on
Manharibhai (Supra).
ii. The Magistrate ought to have taken cognizance even if the
investigating authority submits a final report stating that no
case is made out. Reliance was placed on Moti Lal
Songara v. Prem Prakash11, Balveer Singh v. State of
(1987) 1 SCC 476.
(2013) 9 SCC 199.
Rajasthan12 and Indian Carat Pvt. Ltd. v. State of
Karnataka13.
iii. The order of the Magistrate is devoid of reasons as the
Magistrate failed to record any reasons as required under
Section 203 of the Cr.P.C.
iv. The fact that two deaths occurred itself shows that a prima
facie case is made out. The question whether the deaths
happened in exercise of self - defence or not is to be
decided at the stage of trial. The Magistrate failed to
consider the said fact.
v. The wounds and postmortem reports indicate that Mr. Azad
and Mr. Pandey were killed in close range firing. Darkening
of wounds and burnt edges around the wounds indicates
that shooting happened from a point-blank range. The same
is also confirmed by the statement before the Magistrate by
(2016) 6 SCC 680.
(1989) 2 SCC 132.
Dr. Neelakanteshwar Rao who conducted the postmortem
of Mr. Azad.
vi. The CBI conducted investigation in a biased manner and
has ignored several factual aspects. The Sessions Judge
considering all the aspects which were ignored by the
Magistrate had passed the impugned orders.
vii. The statement of Swamy Agnivesh makes it clear that the
encounter was pre-planned and involved the erstwhile
Home Minister of the country.
viii. There is no requirement of sanction to prosecute the
Petitioners/Accused as the encounter was not done in
discharge of their official duties. Commission of an offence
cannot be part of discharge of official duty. Reliance was
placed on Chandan Kumar Basu v. State of Bihar14 and
Om Kr. Dhankar v. State of Haryana15.
(2014) 13 SCC 70.
(2012) 11 SCC 252.
ix. Mere taking of cognizance does not cause any prejudice to
the accused and they have other remedies. The Petitioners
have a remedy to challenge the proceedings at any stage
under Section 482 of the Cr.P.C. or can file a discharge
petition before the trial court.
x. There are several factual aspects which have to be
necessarily decided during the course of trial.
Findings of the Court
20. From the facts of the case and the contentions raised, it is clear
that the parties have put forth arguments supporting and disputing the
findings of the final report filed by the CBI. During the course of
hearing, the parties have raised several factual aspects and interpreted
them in support of their contentions. However, this Court is conscious of
its limited jurisdiction under Section 397 r/w Section 401 of the Cr.P.C.
while dealing with revision petitions. Therefore, the following issues fall
for consideration before this Court:
A. Whether the present revision petitions are maintainable?
B. Whether the order dated 15.02.2018 passed in Criminal
Revision Petition No. 19 of 2015 & Criminal Revision
Petition No. 24 of 2015 passed by the Sessions Judge is
valid in light of the provisions of the Cr.P.C.?
C. Whether a sanction in terms of Section 197 of the Cr.P.C.
is required and the same was obtained to prosecute the
Petitioners herein?
21. Before deciding the issues at hand, this Court feels it apposite
to discuss the scope of revisional powers conferred under Section 397 to
Section 401 of the Cr.P.C. The provisions are extracted below:
397. Calling for records to exercise of powers of revision.--
(1) The High Court or any Sessions Judge may call for and
examine the record of any proceeding before any inferior
Criminal Court situate within its or his local jurisdiction for the
purpose of satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order, recorded
or passed, and as to the regularity of any proceedings of such
inferior Court, and may, when calling for such record, direct that
the execution of any sentence or order be suspended, and if the
accused is in confinement, that he be released on bail or on his
own bond pending the examination of the record.
Explanation.--All Magistrates, whether Executive or Judicial,
and whether exercising original or appellate jurisdiction, shall be
deemed to be inferior to the Sessions Judge for the purposes of
this sub-section and of Section 398.
(2) The powers of revision conferred by sub-section (1) shall not
be exercised in relation to any interlocutory order passed in any
appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any
person either to the High Court or to the Sessions Judge, no
further application by the same person shall be entertained by
the other of them.
398. Power to order inquiry.--On examining any record under
Section 397 or otherwise, the High Court or the Sessions Judge
may direct the Chief Judicial Magistrate by himself or by any of
the Magistrates subordinate to him to make, and the Chief
Judicial Magistrate may himself make or direct any subordinate
Magistrate to make, further inquiry into any complaint which
has been dismissed under Section 203 or sub-section (4) of
Section 204, or into the case of any person accused of an offence
who has been discharged:
Provided that no Court shall make any direction under this
section for inquiry into the case of any person who has been
discharged unless such person has had an opportunity of
showing cause why such direction should not be made.
399. Sessions Judge's powers of revision.--(1) In the case of
any proceeding the record of which has been called for by
himself, the Sessions Judge may exercise all or any of the
powers which may be exercised by the High Court under sub-
section (1) of Section 401.
(2) Where any proceeding by way of revision is commenced
before a Sessions Judge under sub-section (1), the provisions of
sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as
may be, apply to such proceeding and references in the said sub-
sections to the High Court shall be construed as references to the
Sessions Judge.
(3) Where any application for revision is made by or on behalf
of any person before the Sessions Judge, the decision of the
Sessions Judge thereon in relation to such person shall be final
and no further proceeding by way of revision at the instance of
such person shall be entertained by the High Court or any other
Court.
401. High Court's powers of revision.--(1) In the case of any
proceeding the record of which has been called for by itself or
which otherwise comes to its knowledge, the High Court may, in
its discretion, exercise any of the powers conferred on a court of
appeal by Sections 386, 389, 390 and 391 or on a Court of
Session by Section 307 and, when the Judges composing the
Court of revision are equally divided in opinion, the case shall
be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of
the accused or other person unless he has had an opportunity of
being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High
Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is
brought, no proceeding by way of revision shall be entertained at
the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for
revision has been made to the High Court by any person and the
High Court is satisfied that such application was made under the
erroneous belief that no appeal lies thereto and that it is
necessary in the interests of justice so to do, the High Court may
treat the application for revision as a petition of appeal and deal
with the same accordingly.
The powers of revision under Section 397 of the Cr.P.C. are
concurrently vested on both the Sessions Courts and the High Courts.
Section 399 of the Cr.P.C. provides that the Sessions Court shall have
the same powers of revision as are conferred on the High Court under
Section 401 of the Cr.P.C. Therefore, the courts derive the power of
revision from Section 397 of the Cr.P.C. r/w Section 401 of the Cr.P.C.
22. Under the revisional powers, the courts are empowered to call
for records of any inferior or subordinate criminal court to test the
correctness, legality or propriety of any proceeding of such inferior or
subordinate criminal court. The powers of revision are limited and
cannot be invoked lightly. The object behind exercising the revisional
powers is to set right an error or illegality in the orders passed by the
lower courts. The revisional powers under Section 397 r/w 401 of the
Cr.P.C. are discretionary and the same shall be exercised to ensure that
justice is done and the lower courts do not exceed and abuse the powers
vested in them. Interference with the orders of lower courts is warranted
only if findings in such orders are illegal, improper, perverse, contrary to
the material on record or are grossly erroneous. Further, the revisional
power may be exercised only to set right a patent defect to an error of
law or jurisdiction.
23. The Supreme Court in Janata Dal v. H.S. Chowdhary16
explained the scope of revisional powers under Section 397 and Section
401 of the Cr.P.C. The relevant paragraphs are extracted below:
127. Now let us briefly cogitate over the legal issue relating to
the revisional and inherent jurisdiction of the High Court to call
for the records and examine the records of any proceeding
before any inferior criminal court within its jurisdiction for the
purpose of satisfying itself as to the correctness, legality or
propriety of any finding, sentence or order, recorded or passed
and to quash criminal proceeding, deliberate on the legality and
correctness of the later part of the order of Justice M.K. Chawla
in and by which he has assumed the jurisdiction to initiate suo -
motu proceedings, particularly for quashing the first information
report and all other connected and allied proceedings arising
during the course of the investigation.
128. Sections 397, 401 and 482 of the new Code are analogous
to Sections 435, 439 and 561-A of the old Code of 1898 except
for certain substitutions, omissions and modifications. Under
Section 397, the High Court possesses the general power of
superintendence over the actions of courts subordinate to it
which discretionary power when administered on administration
(1992) 4 SCC 305.
side, is known as the power of superintendence and on the
judicial side as the power of revision. In exercise of the
discretionary powers conferred on the High Court under the
provisions of this section, the High Court can, at any stage, on
its own motion, if it so desires and certainly when illegalities
and irregularities resulting in injustice are brought to its notice,
call for the records and examine them. The words in Section 435
are, however, very general and they empower the High Court to
call for the record of a case not only when it intends to satisfy
itself about the correctness of any finding, sentence or order but
also as to the regularity of any proceeding of any subordinate
court.
129. By virtue of the power under Section 401, the High Court
can examine the proceedings of inferior courts if the necessity
for doing so is brought to its notice in any manner, namely, (1)
when the records have been called for by itself, or (2) when the
proceedings otherwise comes to its knowledge.
130. The object of the revisional jurisdiction under Section
401 is to confer power upon superior criminal courts -- a
kind of paternal or supervisory jurisdiction -- in order to
correct miscarriage of justice arising from misconception of
law, irregularity of procedure, neglect of proper precaution
or apparent harshness of treatment which has resulted, on
the one hand, or on the other hand in some underserved
hardship to individuals. The controlling power of the High
Court is discretionary and it must be exercised in the
interest of justice with regard to all facts and circumstances
of each particular case, anxious attention being given to the
said facts and circumstances which vary greatly from case to
case.
Similarly, the Supreme Court in Sanjaysinh Ramrao Chavan v.
Dattatray Gulabrao Phalke17 has held that the Magistrate's order can
only be interfered by exercising revisional jurisdiction if such order is
perverse and is marred by glaring illegalities. The Court therein held that
revisional courts are not supposed to act as appellate courts. They only
have to satisfy themselves regarding the correctness, legality and
propriety of the findings of the lower court which are under challenge.
The relevant paragraph is extracted below:
14. In the case before us, the learned Magistrate went through
the entire records of the case, not limiting to the report filed by
the police and has passed a reasoned order holding that it is not a
fit case to take cognizance for the purpose of issuing process to
the appellant. Unless the order passed by the Magistrate is
perverse or the view taken by the court is wholly unreasonable
or there is non-consideration of any relevant material or there is
palpable misreading of records, the Revisional Court is not
justified in setting aside the order, merely because another view
(2015) 3 SCC 123
is possible. The Revisional Court is not meant to act as an
appellate court. The whole purpose of the revisional
jurisdiction is to preserve the power in the court to do justice
in accordance with the principles of criminal jurisprudence.
The revisional power of the court under Sections 397 to 401
CrPC is not to be equated with that of an appeal. Unless the
finding of the court, whose decision is sought to be revised, is
shown to be perverse or untenable in law or is grossly
erroneous or glaringly unreasonable or where the decision is
based on no material or where the material facts are wholly
ignored or where the judicial discretion is exercised
arbitrarily or capriciously, the courts may not interfere with
decision in exercise of their revisional jurisdiction.
Issue-A:-
24.From the facts it is clear that the order dated 24.03.15 passed
by the Magistrate was challenged by the unofficial Respondents herein
vide revision petitions Criminal Revision Petition No. 19 of 2015 &
Criminal Revision Petition No. 24 of 2015 before the Sessions Court.
The Sessions Judge exercising her powers of revision passed a common
order dated 15.02.2018 allowing the said revision petitions. It is against
the common order dated 15.02.2018 that the present revision petitions
are filed by the Petitioners herein.
25. It was contended on behalf of the unofficial Respondents that
a revision petition against an order passed in a revision petition is not
maintainable. The said argument is misconceived and cannot be
accepted by this Court. Section 397(3) makes it clear that a person
choosing to file a revision either before the High Court or the Sessions
Court cannot prefer another revision. The bar of non-maintainability of a
second revision applies only to a person who has already availed the
benefit of revision. In other words, if a person had already approached
the Sessions Court under Section 397 of the Cr.P.C., he cannot again
approach the High Court invoking Section 397 of the Cr.P.C. However,
a respondent who is aggrieved by the revisional order passed by the
Sessions Court can file a revision petition before High Court.
26. A Full Bench of this Court in In Re: Puritipatti Jega
Reddy18 held that the bar of filing another revision petition applies only
to a person who had already filed a revision application. The relevant
paragraph is extracted below:
(1979) 1 ALT 56.
9. The language of sub-sec. (3) of S. 397 contains no ambiguity.
If any person has already chosen to file a revision before the
High Court or to the Sessions Court under sub-sec. (1),the same
person cannot prefer a further application to the other Court. To
put it in other words. Sub-secs. (1) and (3) make it clear that
person, aggrieved by any order or proceeding can seek remedy
by way of a revision either before the High Court or the Sessions
Court. Once he has availed himself of that remedy. he is
precluded from approaching the other forum. It is equally
manifest from the provisions that Sub- Sec (3) that this bar is
limited to the same person who has already chosen to get
either to the High Court or to the Sessions Court seeking a
remedy and that it does not apply to the other parties or
persons. Further the bar contained in sub-sec.(3) is only
against that person who has ready chosen the remedy either
before the High Court or before the Sessions Judge. It is not
permissible to extent the bar contained under a statute to
other Persons or to other fields. It is well established that the
bar against seeking a remedy in a Court of Law or against a
Court of law rendering justice should be strictly construed. It is
noteworthy that Sub-sec. (1) of Sec, 397 empowers the High
Court or the Sessions Court to call for and examine the record of
any proceeding before any inferior Court. That is to say, it can
exercise this power of calling for and examining the record suo
motu also. The language of Sub-sec. (3). strictly limited as it
is to a person who has chosen to seek the remedy from one of
the two courts, cannot be extended to the High Court
exercising its powers conferred on it under the provision of
the Code. It is patent that the bar contained in sub-sec. (3) is
only against the person who has already chosen his remedy
before one of the two forums.
To sum up, a revision against a revisional order is not maintainable if
both such revision applications were filed by the same person. In the
present case, the earlier revision petitions vide Criminal Revision
Petition No.19 of 2015 & Criminal Revision Petition No. 24 of 2015
were filed by the unofficial Respondents herein. The present revisions
petitions are filed by the Petitioners who are aggrieved by the orders
passed in Criminal Revision Petition No.19 of 2015 & Criminal
Revision Petition No. 24 of 2015. The revisional petitioners are different
in the present case. Therefore, the present revision petitions are
maintainable.
27. The unofficial Respondents also contended that the revision
petitions are not maintainable by the accused when no process is served
on them. According to them, the role of an accused in the trial only
beings after the process are issued to them. This Court cannot accept the
said contention. Although the accused can participate in the trial after the
issue of summons, they can nevertheless file a revision petition under
Section 397 if they are aggrieved by any order passed by any criminal
court dealing with the said offence. Further, a bare reading of Section
401(2) of the Cr.P.C. clearly indicates that a person has a right to
participate in the proceedings and be heard if any order may cause
prejudice to him/her.
28. Section 397 r/w 401(2) of the Cr.P.C. does not create a bar
that only an accused on whom process are served can file a revision
petition. It states that any person or accused can file a revision petition
against any order passed by the lower courts if he/she can show that he is
aggrieved by such impugned order and such order will cause prejudice.
Therefore, according to this Court, the present criminal revisions
petitions are maintainable as accused can file a revision petition even if
no process are issued to him.
29. This Court has further explained infra that accused is entitled
to participate in the proceedings under Section 397 r//w 401(2) of the
Cr.P.C in Issue B.
Issue-B:-
30. The Petitioners herein contended that the impugned order
dated 15.02.2018 passed by the Sessions Court is patently illegal and
suffers from legal infirmities as it acted beyond the scope of Sections
397, 398, 399 and 401 of the Cr.P.C. The Petitioners have challenged the
legality, propriety and correctness of the impugned order on the grounds
that the Sessions Court failed to serve notice on the Petitioners herein
and failed to hear them before passing the impugned order; the Sessions
Court cannot direct the Magistrate to take cognizance of the offence; the
Sessions Court could not have interfered with the Magistrate's order
dated 24.03.15 and; the plea of self-defence can be considered at the pre-
trial stage.
31. Therefore, to decide whether the impugned revisional order
dated 15.02.2018 suffers from patent illegality and is liable to be set
aside, the following issues are to be decided:
i. Whether the Petitioners herein were entitled to
notice and hearing before the impugned order was
passed?
32. The unofficial Respondents contended that the Petitioners
herein were not entitled to notice and hearing as the accused have no role
to play at pre-cognizance stage. Further, cognizance is taken of the
offence and not the offender. Therefore, the accused cannot insist for
participation in the proceedings in cases where no cognizance is taken
and where no process were issued. It was also contended that accused
are in no way aggrieved at pre-cognizance stage as they have other
alternative remedies like invoking the inherent jurisdiction under Section
482 of the Cr.P.C. or filing a discharge petition. Further, the unofficial
Respondents contended that the revision proceedings before the Sessions
Court were a continuation of the proceedings which were pending before
the Magistrate. Hence, as no notice is required at the pre-cognizance
stage, the same also applies to proceedings under revisional jurisdiction
before the Sessions Court.
33. On the other hand, the Petitioners herein relying on
Manharibhai (Supra) contended that the requirement of issuing notice
is mandatory under Section 401(2) of the Cr.P.C. and the proviso to
Section 398 of the Cr.P.C.
34. This Court cannot accept the contention of the Respondents. A
perusal of Section 401(2) of the Cr.P.C clearly indicates that no order
resulting in any prejudice to the accused shall be passed without giving
him/her an opportunity of hearing. The Supreme Court in Manharibhai
(Supra) had discussed the requirement of issuing notice under Section
401(2) of the Cr.P.C. and held that the accused is not entitled to
participate at the pre-cognizance stage where enquiry is conducted under
Section 202 of the Cr.P.C. However, if the complaint is dismissed under
Section 203 of the Cr.P.C. and a revision is preferred against such
dismissal, the accused is entitled for a notice in such revisional
proceedings. The relevant paragraphs are extracted below:
46. The legal position is fairly well-settled that in the
proceedings under Section 202 of the Code the accused/suspect
is not entitled to be heard on the question whether the process
should be issued against him or not. As a matter of law, up to the
stage of issuance of process, the accused cannot claim any right
of hearing. Section 202 contemplates postponement of issue of
process where the Magistrate is of an opinion that further
inquiry into the complaint either by himself is required and he
proceeds with the further inquiry or directs an investigation to be
made by a police officer or by such other person as he thinks fit
for the purpose of deciding whether or not there is sufficient
ground for proceeding. If the Magistrate finds that there is no
sufficient ground for proceeding with the complaint and
dismisses the complaint under Section 203 of the Code, the
question is whether a person accused of crime in the
complaint can claim right of hearing in a revision
application preferred by the complainant against the order
of the dismissal of the complaint. Parliament being alive to
the legal position that the accused/suspects are not entitled to
be heard at any stage of the proceedings until issuance of
process under Section 204, yet in Section 401(2) of the Code
provided that no order in exercise of the power of the
revision shall be made by the Sessions Judge or the High
Court, as the case may be, to the prejudice of the accused or
the other person unless he had an opportunity of being
heard either personally or by pleader in his own defence.
XXXXX
48. In a case where the complaint has been dismissed by the
Magistrate under Section 203 of the Code either at the stage of
Section 200 itself or on completion of inquiry by the Magistrate
under Section 202 or on receipt of the report from the police or
from any person to whom the direction was issued by the
Magistrate to investigate into the allegations in the complaint,
the effect of such dismissal is termination of complaint
proceedings. On a plain reading of sub-section (2) of Section
401, it cannot be said that the person against whom the
allegations of having committed the offence have been made
in the complaint and the complaint has been dismissed by
the Magistrate under Section 203, has no right to be heard
because no process has been issued. The dismissal of
complaint by the Magistrate under Section 203--although it
is at preliminary stage--nevertheless results in termination
of proceedings in a complaint against the persons who are
alleged to have committed the crime. Once a challenge is laid
to such order at the instance of the complainant in a revision
petition before the High Court or the Sessions Judge, by
virtue of Section 401(2) of the Code, the suspects get the
right of hearing before the Revisional Court although such
order was passed without their participation. The right given
to "accused" or "the other person" under Section 401(2) of
being heard before the Revisional Court to defend an order
which operates in his favour should not be confused with the
proceedings before a Magistrate under Sections 200, 202,
203 and 204. In the revision petition before the High Court
or the Sessions Judge at the instance of the complainant
challenging the order of dismissal of complaint, one of the
things that could happen is reversal of the order of the
Magistrate and revival of the complaint. It is in this view of
the matter that the accused or other person cannot be
deprived of hearing on the face of the express provision
contained in Section 401(2) of the Code. The stage is not
important whether it is pre-process stage or post process
stage.
XXXXXXX
53. We are in complete agreement with the view expressed by
this Court in P. Sundarrajan [(2004) 13 SCC 472 : (2006) 1
SCC (Cri) 345] , Raghu Raj Singh Rousha [(2009) 2 SCC 363 :
(2009) 1 SCC (Cri) 801] and A.N. Santhanam [(2012) 12 SCC
321 : (2011) 2 JCC 720] . We hold, as it must be, that in a
revision petition preferred by the complainant before the High
Court or the Sessions Judge challenging an order of the
Magistrate dismissing the complaint under Section 203 of the
Code at the stage under Section 200 or after following the
process contemplated under Section 202 of the Code, the
accused or a person who is suspected to have committed the
crime is entitled to hearing by the Revisional Court. In other
words, where the complaint has been dismissed by the
Magistrate under Section 203 of the Code, upon challenge to the
legality of the said order being laid by the complainant in a
revision petition before the High Court or the Sessions Judge,
the persons who are arraigned as accused in the complaint have
a right to be heard in such revision petition. This is a plain
requirement of Section 401(2) of the Code. If the Revisional
Court overturns the order of the Magistrate dismissing the
complaint and the complaint is restored to the file of the
Magistrate and it is sent back for fresh consideration, the
persons who are alleged in the complaint to have committed
the crime have, however, no right to participate in the
proceedings nor are they entitled to any hearing of any sort
whatsoever by the Magistrate until the consideration of the
matter by the Magistrate for issuance of process. We answer
the question accordingly. The judgments of the High Courts
to the contrary are overruled.
35. Similarly, in Bal Manohar Jalan v. Sunil Paswan19 the
Supreme Court considered a similar contention that notice is not
required under Section 401(2) of the Cr.P.C. if no process was issued.
The Court rejected the contention and held that the dismissal of
complaint under Section 203 of the Cr.P.C. results in termination of
proceedings. Therefore, if such dismissal is challenged by invoking the
revisional jurisdiction, the accused will have a right of hearing and
notice under Section 401(2) of the Cr.P.C. The relevant paragraph is
extracted below.
48. In a case where the complaint has been dismissed by the
Magistrate Under Section 203 of the Code either at the stage of
Section 200 itself or on completion of inquiry by the Magistrate
Under Section 202 or on receipt of the report from the police or
from any person to whom the direction was issued by the
Magistrate to investigate into the allegations in the complaint, the
effect of such dismissal is termination of complaint proceedings.
On a plain reading of Sub-section (2) of Section 401, it cannot
(2014) 9 SCC 640.
be said that the person against whom the allegations of having
committed the offence have been made in the complaint and
the complaint has been dismissed by the Magistrate Under
Section 203, has no right to be heard because no process has
been issued. The dismissal of complaint by the Magistrate
Under Section 203 although it is at preliminary stage
nevertheless results in termination of proceedings in a
complaint against the persons who are alleged to have
committed the crime. Once a challenge is laid to such order at
the instance of the complainant in a revision petition before
the High Court or the Sessions Judge, by virtue of Section
401(2) of the Code the suspects get the right of hearing before
the revisional court although such order was passed without
their participation. The right given to "accused" or "the other
person" Under Section 401(2) of being heard before the revisional
court to defend an order which operates in his favour should not
be confused with the proceedings before a Magistrate Under
Sections 200, 202, 203 and 204. In the revision petition before
the High Court or the Sessions Judge at the instance of the
complainant challenging the order of dismissal of complaint,
one of the things that could happen is reversal of the order of
the Magistrate and revival of the complaint. It is in this view
of the matter that the accused or other person cannot be
deprived of hearing on the face of the express provision
contained in Section 401(2) of the Code. The stage is not
important whether it is pre-process stage or post process
stage.
36. Coming to the present case, the accused/Petitioners herein
were certainly prejudiced as the Magistrate dismissed the protest
petitions of the unofficial Respondents. This virtually led to closure of
criminal proceedings against the accused/Petitioners herein. However,
the Sessions Court exercising its power under revisions set aside the
order of the Magistrate and directed the Magistrate to take cognizance.
Such an order passed by the Sessions Court resulted in reviving the
criminal proceedings against the Petitioners herein. Therefore, the
impugned order caused prejudice to the Petitioners herein as it revived
the criminal proceedings against them. The argument of the unofficial
Respondents that the Petitioners are not prejudiced and no notice is
required cannot be accepted.
ii. Whether it is permissible for the Sessions Court to
direct the Magistrate to take cognizance of
offence?
37. The Petitioners herein contended that the Sessions Court has
limited jurisdiction to only check the legality, propriety and correctness
of the order impugned before it. The Sessions Court has no power to
direct the Magistrate to take cognizance of the offence. On the other
hand, the unofficial Respondents contended that the powers of revision
are wide and the Sessions Court had the power to direct the Magistrate to
take cognizance.
38. This Court agrees with the argument advanced by the
Petitioners. The revisional court can only examine the legality,
correctness and propriety of the orders impugned before it. It cannot
exceed the power and go a step further and direct the Magistrate to take
cognizance of the offence. It is relevant to note that the power to take
cognizance is specifically conferred on the Magistrates under Sections
190 and 200, 201, 202, 203 & 204 of the Cr.P.C.
39. Taking of cognizance is a judicial function and the Magistrate
exercising such function has to apply his/her mind over the material
available and satisfy himself/herself independently as to whether
cognizance can be taken. The power to take cognizance is not vested on
a court exercising revisional powers under Section 397 r/w Section 401
of the Cr.P.C.
40. The revisional court can only discuss and highlight the
illegality or perversity in the orders impugned before it. It shall remand
the matter back to the Magistrate and direct him/her to decide the matter
in accordance with the discussion regarding the illegality or perversity.
Further, if it reaches the conclusion that a further enquiry is necessary in
the matter, it can direct the Magistrate to conduct such enquiry under
Section 398 of the Cr.P.C. The revisional courts cannot usurp the power
specifically conferred on Magistrates to take cognizance.
41. This Court in Mikkilineni Venkateshwari v. Tummula
Nirmala20 held that a Sessions Court cannot direct the Magistrate to take
cognizance. The relevant paragraphs are extracted below:
7. The only contention raised by the learned senior Counsel
appearing for the revision petitioners is that while remitting the
matter back, the learned Sessions Judge committed error in
directing the Court below to take cognizance. In this connection,
the learned senior Counsel invited my attention to Section 398 of
the Code, which may be excepted hereunder thus:
"398. Power to order inquiry: -- On examining any record under
Section 397 or otherwise, the High Court or the Sessions Judge
2001 SCC OnLine AP 1578.
may direct the Chief Judicial Magistrate by himself or by any of
the Magistrates subordinate to him to make, and the Chief Judicial
Magistrate may himself make or direct any subordinate
Magistrate to make, further enquiry into any complaint which has
been dismissed under Section 203 or subsection (4) of Section
204, or into the case of any person accused of an offence who has
been discharged:
Provided that no Court shall make any direction under this section
for inquiry into the case of any person who has been discharged
unless such person has had an opportunity of showing cause why
such direction should not be made."
8. A perusal of the said Section shows that it is open to the
Sessions Judge to direct a Magistrate to make further enquiry
into any complaint, which has been dismissed under Section
203 of the Code. Directing the Magistrate under the impugned
order by the learned Sessions Judge to take cognizance of the
matter is certainly one step forward to the requisite enquiry to
be conducted and leaves no discretion to the Magistrate to
satisfy himself about the truth or otherwise of the allegations.
It becomes almost an empty formality for the Magistrate who
has been directed to take cognizance of the offence. While
remitting back the matter to the Court of Magistrate, the
direction should have been left to consider the case afresh in
the light of the observations made, if any inter alia, in the
remand order. The contention of the learned senior Counsel
in that view of the matter gains significance on bare perusal of
the relevant provisions. Therefore, the impugned order
requires modification to that extent only. The other
conclusions drawn by the learned Sessions Judge in the
impugned order are impeccable.
9. In the result, the Criminal Revision case is allowed and the
impugned order dated 20-11-2000 passed by the learned
Sessions Judge, Krishna Division at Machilipatnam, in Crl.
R.P. No. 7 of 2000 is modified by setting aside the direction
that the Magistrate shall take congnizance of the complaint
while upholding the order of remand for fresh consideration
in the light of the observations made by the learned Sessions
Judge.
42. A similar view was expressed by the Karnataka High Court in
Lalajibaishah v. Asalchand Hukmischand Porawal21. The relevant
paragraph is extracted below:
8. The learned Sessions Judge has not stopped at pointing out
the illegality committed by the Magistrate, but has gone on to
assess the evidence of the complainant-respondent-1 and his
witness Bhima Shankar, as if he was exercising his appellate
powers, and conclude that material was sufficient to disclose an
offence under Sec. 380 IPC, and to make a direction to issue
1978 SCC OnLine Kar 128
process against the petitioners. The Sessions Judge had no
power to do so while exercising his re visional jurisdiction under
Sec. 397 and 398 of the Code. The power that he is
empowered to exercise is only to direct further enquiry into
the complaint. He cannot direct either the Chief Judl.
Magistrate or any subordinate Magistrate, to take
cognizance of an offence or offences or to examine any
person, or persons or to issue process against any person or
persons. But the learned Sessions Judge has done exactly
what he is not empowered to do. The only order that the
learned Sessions Judge could have passed in this case was to set
side the order of dismissal of the complaint on the ground that
the learned Magistrate had taken into consideration material not
envisaged by Sec. 203 of the Code, and direct further enquiry
into the complaint of respondent-1, by the Magistrate, may be by
the Chief Judicial Magistrate. The Chief Judicial Magistrate has
all the liberty to decide whether he should take cognizance of the
offence or offences or whether he should proceed on, the
material already collected viz., the evidence of the complainant
and his witness Bhima Shankar, and issue process against the
petitioners, or not to do so. Therefore, the order of the Sessions
Judge is bad in law to that extent. In the result, this revision
petition is allowed and the order passed by the learned Sessions
Judge is modified to the following effect:
Therefore, the Sessions Court in the present case could not have directed
the Magistrate to take cognizance.
iii. Whether the Sessions Court was justified in
interfering with the order dated 24.03.15 passed
by the Magistrate dismissing the protest petitions
filed by the unofficial Respondents herein?
43. The Petitioners herein contended that the Magistrate's order
dated 24.03.2015 was legal and the Sessions Court could not have
interfered with the same. At this stage, it is relevant to note that the CBI
filed a final report requesting the Magistrate to close the case. The
Magistrate issued a notice to the unofficial Respondents herein to file
their objections to the final report of the CBI. Therefore, protest petitions
were filed by the unofficial Respondents herein.
44. Treating the protest petitions as a private complaint under
Section 200 of the Cr.P.C., the Magistrate postponed the issue of process
under Section 202 of the Cr.P.C. and examined the unofficial
Respondents herein and their witnesses under Section 200 of the Cr.P.C.
The Magistrate examined the unofficial Respondents (Mrs. K. Padma
and Mrs. Beenitha Pandey) and their witnesses one Mr. Swamy
Agnivesh and one Dr. Neelakanteshwar Rao (who conducted the
postmortem of Mr. Azad). The statements of Mr. Swamy Agnivesh and
Dr. Neelakanteshwar Rao were marked as Ex.C1 and Ex.C2.
45. In her statement Mrs. K. Padma deposed that her husband left
their house on 30.06.2010 at around 1:00 pm to board the Gondwana
Express to go to Nagpur to meet one Sahdev in relation to the peace
talks between the Maoists and the government. But later she came to
know through news reports that her husband was killed in an encounter.
According to her, Mr. Azad was kidnapped and killed at a point-blank
range. Her husband Mr. Azad could not have used fire arms as he has
poor eye sight and he has a glass on his left eye.
46. Mrs. Bineeta Pandey also deposed that her husband Mr.
Pandey left their home on 30.06.2010 to take a train to Nagpur. He
informed her that he will be back on 02.07.2010. She waited but her
husband did not return. On 03.07.2010 she recognized her husband's
picture in a newspaper and came to know that he was killed in an
encounter along with Mr. Azad. According to her, it was a cold-blooded
murder and her husband was killed in a close-range firing. He was a
journalist and did not know how to use firearms. She alleged that her
husband was kidnapped and murdered in a fake encounter.
47. Mr. Swamy Agnivesh also deposed that the killing of Mr.
Azad and Mr. Pandey was a fake encounter. He spoke about his
involvement in the proposed peace talks between the Maoists and the
government.
48. Dr. Neelakanteshwar Rao deposed about the nature of injuries
and said that he differed in opinion with the AIIMS report prepared by
one Prof. TD Dogra and others which said that the burnt edges on the
wounds were not caused due to close-range firing. He stated that he
could not have expressed his opinion before the AIIMS board
constituted under Prof. TD Dogra. He stated that his opinion varies from
the opinion of the experts of AIIMS.
49. At this stage, it is relevant to note that while dealing with a
complaint under Section 200 or a protest petition, the Magistrate can
only rely on the material present before him i.e., the statements of the
complainant and the witnesses present. The Magistrate cannot consider
any other material available. Further, the Magistrate cannot conduct a
mini trail or go on a fact-finding mission to determine whether a prima
facie case is made out.
50. This Court in M. Ramesh Babu v. State of A.P.22 has held as
follows:
16. Now, in view of the authoritative pronouncement of the
Apex Court in Chandra Deo Singh's case, which is a four
Judge Bench Judgment, it is obvious that what is open to
the Magistrate which acting under Section 203 is to satisfy
himself as to whether or not there is sufficient ground for
proceeding and in order to come to such conclusion, he is
entitled to consider the evidence taken by him or
recorded in an enquiry under Section 202, or statements
made in an investigation under that section, as the case
may be, but he is not entitled to rely upon any materials
besides this.
Therefore, the Magistrate could have relied upon only on the statements
of the unofficial Respondents (Mrs. K. Padma and Mrs. Beenitha
(2005) 1 ALT (Cri) 339.
Pandey) and their witnesses one Mr. Swamy Agnivesh and one Dr.
Neelakanteshwar Rao.
51. After examining the complainants and the two witnesses, the
Magistrate dismissed the protest petitions on the ground that no
sufficient material is available to make out a prima facie case.
52. The said order dated 24.03.2015 was challenged before the
Sessions Court under Section 397 of the Cr.P.C. The Sessions Court set
aside the order dated 24.03.2015 on the ground that the deaths of Mr.
Azad and Mr. Pandey were alleged to be fake encounters by Mrs. K.
Padma, Mrs. Bineeta Pandey, and Mr. Swamy Agnivesh. Further, the
Sessions Court only reiterated the statement and Dr. Neelakanteshwar
Rao. According to this Court, the Sessions Court with respect to the said
statements has not given any reasons as to how the said statements lead
to a conclusion that a prima facie case is made out. Further, as far as the
said statements are concerned, the Sessions Court did not give any
reasons as to how those statements led to arriving at a conclusion which
is different than the one arrived at by the Magistrate who dismissed the
protest petitions. The Sessions Court should have given reasons as to
how the order dated 24.03.2015 passed by the Magistrate does not
satisfy the requirement of legality, propriety and correctness in light of
the statements of the protest petitioners and their witnesses.
53. Therefore, the Sessions Court was not justified in interfering
with the order dated 24.03.2015 as it failed to provide any reasons as to
how its conclusion differed from that of the Magistrate.
iv. Whether the plea of self - defence can be considered at the
pre-trial stage by the Magistrate?
It is also relevant to note that the Sessions Court set aside the order dated
24.03.2015 passed by the Magistrate on the ground that the Petitioners
herein were involved in the exchange of fire in exercise of self defence.
The Sessions Court held that the plea of right of self defence can be
decided only during the course of trial and not during the pre-trial stage.
This Court cannot accept the view taken by the Sessions Court.
54. The plea of self - defence can also be considered during the
pre-trial stage. The Supreme Court in Vadilal Panchal (Supra) held that
the plea of self - defence can be considered at the pre-trial stage. The
relevant paragraphs are extracted below.
10. Now, in the case before us it is not contended that the
learned Presidency Magistrate failed to consider the
materials which he had to consider, before passing his order
under Section 203 CrPC. As a matter of fact the learned
Magistrate fully, fairly and impartially considered these
materials. What is contended on behalf of the respondent-
complainant is that as a matter of law it was not open to the
learned Magistrate to accept the plea of right of self-defence
at a stage when all that he had to determine was whether a
process should issue or not against the appellant. We are
unable to accept this contention as correct. It is manifestly
clear from the provisions of Section 203 that the judgment
which the Magistrate has to form must be based on the
statements of the complainant and his witnesses and the result of
the investigation or inquiry. The section itself makes that clear,
and it is not necessary to refer to authorities in support thereof.
But the judgment which the Magistrate has to form is whether or
not there is sufficient ground for proceeding. This does not mean
that the Magistrate is bound to accept the result of the inquiry or
investigation or that he must accept any plea that is set up on
behalf of the person complained against. The Magistrate must
apply his judicial mind to the materials on which he has to form
his judgment. In arriving at his judgment he is not fettered in any
way except by judicial considerations; he is not bound to accept
what the Inquiring Officer says, nor is he precluded from
accepting a plea based on an exception, provided always there
are satisfactory and reliable materials on which he can base his
judgment as to whether there is sufficient ground for proceeding
on the complaint or not. If the Magistrate has not misdirected
himself as to the scope of an enquiry under Section 202 and
has applied his mind judicially to the materials before him,
we think that if would be erroneous in law to hold that a plea
based on an exception can never be accepted by him in
arriving at his judgment. What bearing such a plea has on
the case of the complainant and his witnesses, to what extent
they are falsified by the evidence of other witnesses -- all
these are questions which must be answered with reference
to the facts of each case. No universal rule can be laid in
respect of such questions.
11. In support of its view the High Court has relied on some of
its earlier decisions: Emperor v. Dhondu Bapu Gujar [29 BLR
713] ; Emperor v. J.A. Finan [33 BLR 1182] ; and Tulsidas
Amanmal Karani v. S.F. Billimoria [34 BLR 910] . We do not
think that any of the aforesaid decisions lays down any such
proposition in absolute terms as is contended for on behalf of the
respondent. In Emperor v. Dhondu Bapu Gujar a complaint
charging defamation was dismissed by the Magistrate under
Section 203 without taking any evidence, on the ground that the
accused was protected by Section 499, exception 8. It was held
that the order of dismissal was bad. Patkar, J. significantly
observed:
"If the Magistrate in this case had taken evidence on behalf
of the prosecution and on behalf of the accused, and passed a
proper order for discharge, the order of the District Magistrate
ordering a further enquiry without giving reasons might have
stood on a different footing. We do not think that, under the
circumstances of this case, there are adequate grounds for
interfering with the order of the District Magistrate."
12. In Emperor v. J.A. Finan the accused did not dispute the
correctness of the statements made by the complainant, but in
justification pleaded the order passed by his superior officer and
claimed protection under Sections 76 and 79 of the Indian Penal
Code. It is worthy of note that the order of the superior officer
was not produced, but that officer very improperly wrote a letter
to the Magistrate saying that he had given such an order. In these
circumstances, the same learned Judge who decided the earlier
case observed:
"It was, therefore, incumbent on the Magistrate to investigate
the complaint and to find out whether the allegation of the
accused that he was protected by Sections 76 and 79 of the
Indian Penal Code was made out by legal evidence before him."
The facts in Tulsidas Amanmal Karani v. S.F. Billimoria were
different, and the question there considered was whether a
member of the Bar in India had absolute privilege. That decision
has very little bearing on the question now before us.
13. Our attention has also been drawn to a decision of the
Lahore High Court where the facts were somewhat
similar: Gulab Khan, deceased through Karam Khan v. Gulam
Muhammad Khan [AIR 1927 (Lahore) 30] . In that case also the
person complained against took the plea of self-defence, which
was accepted. In the High Court an objection was taken to the
procedure adopted and it was argued that the order of discharge
should be set aside. In dealing with that argument Broadway, J.
said:
"Now a Magistrate is empowered to hold an enquiry into a
complaint of an offence in order to ascertain whether there is
sufficient foundation for it to issue process against the person or
persons complained against. In the present case the Magistrate
clearly acted in the exercise of these powers under Section 202
of the Criminal Procedure Code. He allowed the complainant to
produce such evidence in support of his complaint as he wished
to produce, and after a consideration of that evidence came to
the conclusion that that evidence was so wholly worthy of
credence as to warrant his taking no further action in the
matter."
14. Therefore, none of the aforesaid decisions lay down as an
absolute proposition that a plea of self-defence can in no
event be considered by the Magistrate in dealing with a
complaint under the provisions of Sections 200, 202 and 203
of the Criminal Procedure Code.
55. Similarly, the decision in Vadilal Panchal (Supra) was
affirmed by a four judge bech of the Supreme Court in Chandra Deo
Singh v. Prokash Chandra Bose23. The relevant paragraphs are
extracted below:
12. Reliance is, however, placed by Mr Sethi on the decision of
this court in Vadilal case [(1961) 1 SCR 1, at p 9] at p. 10 of the
report. What was considered there by this court was whether
as a matter of law, it was not open to a Magistrate to accept
the plea of the right of private defence at a stage when all
that he had to determine was whether process is to issue or
not. The learned Judges held that it is competent to a Magistrate
to consider such a plea and observed:
"If the Magistrate has not misdirected himself as to the scope
of an enquiry under Section 202 and has applied his mind
judicially to the materials before him, we think that it would be
erroneous in law to hold that a plea based on an exception can
never be accepted by him in arriving at his judgment, What
bearing such a plea has on the case of the complainant and his
witnesses, to what extent they are falsified by the evidence of
other witnesses, -- all these are questions which must be
answered with reference to the facts of each case. No universal
rule can be laid in respect of such questions."
(1964) 1 SCR 639.
13. On the basis of these observations it was urged that this
court has held that a Magistrate has the power to weigh the
evidence adduced at the enquiry. As we read the decision, it
does not lay down an inflexible rule but seems to hold that
while considering the evidence tendered at the enquiry it is
open to the Magistrate to consider whether the accused
could have acted in self defence. Fortunately, no such question
arises for consideration in this case but we may point out that
since the object of an enquiry under Section 202 is to ascertain
whether the allegations made in the complaint are intrinsically
true, the Magistrate acting under Section 203 has to satisfy
himself that there is sufficient ground for proceeding. In order to
come to this conclusion, he is entitled to consider the evidence
taken by him or recorded in an enquiry under Section 202, or
statements made in an investigation under that section, as the
case may be. He is not entitled to rely upon any material besides
this. By "evidence of other witnesses" the learned judges had
apparently in mind the statements of persons examined by the
police during investigation under Section 202. It is permissible
under Section 203 of the Code to consider such evidence along
with the statements of the complainant recorded by the
Magistrate and decide whether to issue process or dismiss the
complaint...................
56. This Court in Sun Pharmaceuticals Ltd. v. State of
Telangana24 held that the pleas of general exceptions can be considered
during the pre-trial stage. The relevant paragraph is extracted below:
60(ii)(ad). Therefore, general exceptions are part of the
definition of every offence contained in IPC, but the burden to
prove their existence lies on the accused. It is to say that every
offence defined in I.P.C. whether punishable or not from an
offence to make out a non-offence within the meaning of general
exceptions, as stated in Section 6 IPC, every section has to be
read as subject to general exceptions to understand the meaning
to say once general exceptions are applicable though the burden
for that is on accused, it makes the offence otherwise defined a
non-offence is the sum and substance. Thus, the general
exceptions and special exceptions have to be understood with
reference to Section 6 I.P.C. and further from the above
principles defence material can also be considered in finding out
prima facie accusation is there or not, not only while taking
cognizance and issuance of summons but also from impugning
cognizance order without need of putting to the ordeal of trial
and to prove in defence with reference to Section 105 of Indian
Evidence Act. It is thus clear from the expressions supra that
defence under general expressions of I.P.C. can be
considered at the pre-trial stage from the material on record
2016 (2) ALT (Crl.) 165 (A.P.).
in ultimately quashing the cognizance proceedings from the
very offence makes by the general expressions a non offence
if materially is suffice with no need of putting ordeal of trial
for consideration.
57. According to this Court, the view of the Sessions Court that
the plea of self - defence cannot be considered at the pre-trial stage
cannot be accepted. Further, as the Petitioners herein were not heard, the
Sessions Court could not have decided whether such a plea was taken or
not and whether the Petitioners herein were justified in making such a
plea. Therefore, the Sessions Court could not have passed the impugned
orders on the ground that plea of self - defence cannot be taken at the
pre-trial stage.
Issue- C:-
58. The Petitioners herein contended that the Sessions Court could
not have directed the Magistrate to take cognizance in the absence of any
sanction from the government as required under Section 197 of the
Cr.P.C.
197. Prosecution of Judges and public servants.--(1) When any
person who is or was a Judge or Magistrate or a public servant
not removable from his office save by or with the sanction of the
Government is accused of any offence alleged to have been
committed by him while acting or purporting to act in the
discharge of his official duty, no Court shall take cognizance of
such offence except with the previous sanction [save as
otherwise provided in the Lokpal and Lokayuktas Act, 2013]--
(a) in the case of a person who is employed or, as the case may
be, was at the time of commission of the alleged offence
employed, in connection with the affairs of the Union, of the
Central Government;
(b) in the case of a person who is employed or, as the case may
be, was at the time of commission of the alleged offence
employed, in connection with the affairs of a State, of the State
Government:
[Provided that where the alleged offence was committed by a
person referred to in clause (b) during the period while a
Proclamation issued under clause (1) of Article 356 of the
Constitution was in force in a State, clause (b) will apply as if
for the expression "State Government" occurring therein, the
expression "Central Government" were substituted.]
[Explanation.--For the removal of doubts it is hereby declared
that no sanction shall be required in case of a public servant
accused of any offence alleged to have been committed under
Section 166-A, Section 166-B, Section 354, Section 354-A,
Section 354-B, Section 354-C, Section 354-D, Section 370,
Section 375, Section 376, [Section 376-A, Section 376-AB,
Section 376-C, Section 376-D, Section 376-DA, Section 376-
DB] or Section 509 of the Indian Penal Code (45 of 1860).]
(2) No Court shall take cognizance of any offence alleged to
have been committed by any member of the Armed Forces of
the Union while acting or purporting to act in the discharge of
his official duty, except with the previous sanction of the Central
Government.
(3) The State Government may, by notification, direct that the
provisions of sub-section (2) shall apply to such class or
category of the members of the Forces charged with the
maintenance of public order as may be specified therein,
wherever they may be serving, and thereupon the provisions of
that sub-section will apply as if for the expression "Central
Government" occurring therein, the expression "State
Government" were substituted.
[(3-A) Notwithstanding anything contained in sub-section (3),
no court shall take cognizance of any offence, alleged to have
been committed by any member of the Forces charged with the
maintenance of public order in a State while acting or purporting
to act in the discharge of his official duty during the period
while a Proclamation issued under clause (1) of Article 356 of
the Constitution was in force therein, except with the previous
sanction of the Central Government.
(3-B) Notwithstanding anything to the contrary contained in this
Code or any other law, it is hereby declared that any sanction
accorded by the State Government or any cognizance taken by a
court upon such sanction, during the period commencing on the
20th day of August, 1991 and ending with the date immediately
preceding the date on which the Code of Criminal Procedure
(Amendment) Act, 1991, receives the assent of the President,
with respect to an offence alleged to have been committed
during the period while a Proclamation issued under clause (1)
of Article 356 of the Constitution was in force in the State, shall
be invalid and it shall be competent for the Central Government
in such matter to accord sanction and for the court to take
cognizance thereon.]
(4) The Central Government or the State Government, as the case
may be, may determine the person by whom, the manner in
which, and the offence or offences for which, the prosecution of
such Judge, Magistrate or public servant is to be conducted, and
may specify the Court before which the trial is to be held.
Section 197 of the Cr.P.C provides that a sanction from the concerned
government is required to prosecute public servants who are guilty of
committing any offence in exercise of his/her public duty. According to
the said provision, no cognizance can be taken against such public
servants unless a sanction is obtained.
59. The object and scope of the said provision was discussed in
detail by the Supreme Court in State of H.P. v. M.P. Gupta25
10. Prior to examining if the courts below committed any
error of law in discharging the accused, it may not be out of
place to examine the nature of power exercised by the court
under Section 197 of the Code and the extent of protection
it affords to public servants, who, apart from various
hazards in discharge of their duties, in absence of a
provision like the one may be exposed to vexatious
prosecution. Sections 197(1) and (2) of the Code read as
under:
"197. (1) When any person who is or was a Judge or
Magistrate or a public servant not removable from his office
save by or with the sanction of the Government is accused
of any offence alleged to have been committed by him
while acting or purporting to act in the discharge of his
official duty, no court shall take cognizance of such offence
except with the previous sanction--
(a) in the case of a person who is employed or, as the
case may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of the
Union, of the Central Government;
(2004) 2 SCC 349.
(b) in the case of a person who is employed or, as the
case may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of a State,
of the State Government:
***
(2) No court shall take cognizance of any offence
alleged to have been committed by any member of the
armed forces of the Union while acting or purporting to act
in the discharge of his official duty, except with the
previous sanction of the Central Government."
The section falls in the chapter dealing with conditions
requisite for initiation of proceedings. That is, if the
conditions mentioned are not made out or are absent
then no prosecution can be set in motion. For instance,
no prosecution can be initiated in a Court of Session
under Section 193, as it cannot take cognizance as a
court of original jurisdiction, of any offence, unless the
case has been committed to it by a Magistrate or the
Code expressly provides for it. And the jurisdiction of a
Magistrate to take cognizance of any offence is provided
by Section 190 of the Code, either on receipt of a
complaint, or upon a police report or upon information
received from any person other than a police officer, or
upon his knowledge that such offence has been
committed. So far as public servants are concerned, the
cognizance of any offence, by any court, is barred by
Section 197 of the Code unless sanction is obtained from
the appropriate authority, if the offence, alleged to have
been committed, was in discharge of the official duty.
The section not only specifies the persons to whom the
protection is afforded but it also specifies the conditions
and circumstances in which it shall be available and the
effect in law if the conditions are satisfied. The
mandatory character of the protection afforded to a
public servant is brought out by the expression, "no
court shall take cognizance of such offence except with
the previous sanction". Use of the words "no" and
"shall" makes it abundantly clear that the bar on the
exercise of power of the court to take cognizance of any
offence is absolute and complete. The very cognizance is
barred. That is, the complaint cannot be taken notice of.
According to Black's Law Dictionary the word
"cognizance" means "jurisdiction" or "the exercise of
jurisdiction" or "power to try and determine causes". In
common parlance, it means taking notice of. A court,
therefore, is precluded from entertaining a complaint or
taking notice of it or exercising jurisdiction if it is in
respect of a public servant who is accused of an offence
alleged to have been committed during discharge of his
official duty.
60. Further, in N.K. Ganguly v. CBI26 the Supreme Court has
held that it is for the Magistrate to decide whether a sanction under
Section 197 of the Cr.P.C. The relevant paragraph is extracted below.
35. From a perusal of the case law referred to supra, it
becomes clear that for the purpose of obtaining previous
sanction from the appropriate Government under Section
197 CrPC, it is imperative that the alleged offence is
committed in discharge of official duty by the accused. It is
also important for the Court to examine the allegations
contained in the final report against the appellants, to decide
whether previous sanction is required to be obtained by the
respondent from the appropriate Government before taking
cognizance of the alleged offence by the learned Special
Judge against the accused. In the instant case, since the
allegations made against the appellants in the final
report filed by the respondent that the alleged offences
were committed by them in discharge of their official
duty, therefore, it was essential for the learned Special
Judge to correctly decide as to whether the previous
(2016) 2 SCC 143.
sanction from the Central Government under Section
197 CrPC was required to be taken by the respondent,
before taking cognizance and passing an order issuing
summons to the appellants for their presence.
61. Therefore, from the facts of the case it is clear that the ground
of absence of sanction could not have been urged by the Petitioners
herein before the Sessions Court as no notice was served upon them. If
the lower court comes to the conclusion that a sanction is required in
terms of Section 197 of the Cr.P.C., the Petitioners herein cannot be
prosecuted, unless such sanction is obtained.
Conclusion
62. In light of the aforesaid discussion, the impugned order dated
15.02.2018 does not satisfy the test of legality, correctness and propriety
as no notice was served upon the Petitioners herein; the Sessions Court
could not have directed the Magistrate to take cognizance; the Sessions
Court failed to provide any reasons as to how its conclusion differed
from the Magistrate while setting aside the order dated 24.03.2015.
63. In result, all the Criminal Revision Cases are allowed as
follows:-
i. The impugned common order dated 15.02.2018 passed in
Crl.R.P.Nos.19 and 24 of 2015 is set aside. The matter is
remanded back to the Judge, Family Court - cum - IV Addl.
District and Sessions Judge, Adilabad with a direction to decide
the said criminal revision petitions in accordance with law.
ii. It is relevant to note that the alleged incident took place on the
intervening night of 01.07.2010 and 02.07.2021. CBI inquiry was
ordered on 26.04.2011 and the final report under Section 173(2) of
the Cr.P.C. after completion of the investigation was submitted on
06.07.2012. The protest petitions were filed on 06.08.2013 and
were dismissed on 24.03.2015. Against the dismissal of the protest
petitions revision applications vide Criminal Revision Petition
Nos. 19 of 2015 and 24 of 2015 were filed and the same were
decided vide order dated 15.02.2018.
iii. Considering the said facts, this Court is of the considered view
that a time frame shall be fixed to dispose of the said Criminal
Revision Petitions by the Sessions Court. Therefore, the Judge,
Family Court - cum - IV Addl. District and Sessions Judge,
Adilabad is directed to dispose off the Criminal Revision Petitions
within 3 months from the date of receipt of the copy of this order.
As a sequel, miscellaneous petitions, if any, pending in the
Criminal Petition shall stand closed.
_________________
K. LAKSHMAN, J
Date:06 .07.2022.
Vvr
Note:- Issue copy today.
L.R.Copy to be marked.
b/o.vvr.
