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TMI Blog2006 (7) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... registered against PW3, the brother of PW1, Arasappan, father of PW1, Vanumamali, brother-in-law of PW3, Raja, son of PW3, Raj son of PW1's sister Ganambal and George (deceased) son of the PW1's sister Ganambal. They were arrested and released on bail subject to certain conditions. PW1 and her relatives after the said incident allegedly shifted to another village Palayamkottai. The father-in-law of PW1 was a homoeopathic doctor. He was having a medical shop. He was also having a hotel commonly known as 'Hare Krishna" hotel. The medical shop and the hotel were situate opposite to each other near Palaymkottai bus stand and were at a distance of 6 furlongs from the house of PW1. 3. On 11.7.1992 at about 3.00 P.M., PW3 brother of PW1, Arasappan father of PW1, Vanumamali brother-in-law of PW3, Raj son of PW1's sister Ganambal and George (deceased) son of PW1's sister Ganambal came to the house of PW1. As PW1 was not feeling well, she came to the medical shop of her father-in-law to purchase medicines. Nallakannu @ Muthu, Murugan and Popular Muthiah came behind him in a Rajdoot motorcycle. They stopped them near the Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the said judgment of conviction and sentence in the High Court which was registered as Criminal Appeal No. 696 of 1997. The said appeal came up for hearing before a Division Bench of the High Court. The Division Bench examined the materials brought on records by the prosecution in great details. It was opined that no case has been made out to interfere with the judgment of conviction and sentence passed against the Nallakannu Muthu. He has not approached this Court questioning the correctness of the said judgment. The High Court opined: (i) the evidence of PWs 1 and 2 unimpeachably show the involvement of Popular Muthiah (abetting), Murugan and the accused in inflicting the fatal injuries to the deceased; (ii) the evidence of PWs 3 and 4 show the role played by Murugan and the accused; and (iii) in Ex. I, all the evidence were 'found fully reflective'. 6. According to the High Court, the action on the part of the investigating officers, viz., PW-17 and PW-18 leaving out the names of Popular Muthiah and Murugan from the array of accused was not a bona fide error. It was observed:- "As we feel that Murugan and Popular Muthiah had been left out willfully by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we order fresh investigation by the Investigating Agency so far as Popular Muthiah and Murugan are concerned. Consequently, the Director General of Police is directed to entrust the investigation in this case relating to the involvement of Popular Muthiah and Murugan to CB, CID. The Director General of Police is also directed to nominate an officer, not below the rank of Superintendent of Police, to monitor the investigation to be done by CB, CID. (c) The Director General of Police is also directed to deeply probe into the lapses on the part of PW17 Rajaram and PW18 Thondiraj in the Investigation conducted with reference to the murder of George, so also in the prosecution and take follow-up action in accordance with law." The appellants are, thus, before us. 10. Mr. M.N. Rao, the learned senior counsel appearing on behalf of the appellants raised the following contentions in support of this appeal:- (i) The High Court while hearing the appeal preferred by Nallakannan @ Muthu wrongly exercised its power in terms of Section 482 of the Code of Criminal Procedure. (ii) While exercising the said jurisdiction, the High Court, thus, could neither exercise any revisional jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure as also the gross errors committed by both the learned Magistrate as also the learned Trial Judge, the High Court had justifiably exercised its inherent jurisdiction in order to secure justice in terms of Section 482 of the Code of Criminal Procedure. (vii) As the High Court exercises its inherent power to secure the ends of justice, the same by necessary intendment could bring within its purview justice required to be done to the victim also. (viii) The appellants were not prejudiced in any manner whatsoever by reason of the impugned order as at different stages they would be entitled to raise their contentions. (ix) Section 173(8) of the Code of Criminal Procedure does not postulate any power on the part of the Courts to direct re- investigation as the statutory power to make investigation always remain with the Investigating agency. 12. In view of the rival contentions noticed hereinbefore, the questions involved in this case are: (i) Whether the High Court while exercising its appellate jurisdiction under Section 374(2) read with Section 386 of the Code of Criminal Procedure could direct further investigation of the case against the persons whom the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Procedure provides is an exhaustive Code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court as would be evident from the following: (i) The Court has the power to direct investigation in cognizable cases under Section 156(3) read with Section 190 of the Code of Criminal Procedure. (ii) A Magistrate can postpone the issue of process and inquire into the case himself under Section 202 (1) of the Code of Criminal Procedure. (iii) When a charge sheet is failed, the court can refuse to accept the same and proceed to take cognizance of the offence on the basis of the materials on record. The Court can direct further investigation into the matter (iv) The Magistrate may treat a protest petition as a complaint and proceed to deal therewith in terms of Chapter XV of the Code of Criminal Procedure. (v) Once the case is committed, the Sessions Judge may refer the matter to the High Court. (vi) In the event, without taking any further evidence, it is found that while passing the order of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is only proper that the Magistrate should have the power to call and join him in the proceedings. Section 351 provides for such a situation, but only if that persons happens to be attending the Court. He can then be detained and proceeded against. There is no express provision in Section 351 for summoning such a person if he is not present in Court. Such a provision would make section 351 fairly comprehensive, and we think it proper to expressly provide for that situation." 24.83. Section 351 should, therefore, be amended to read as follows:- "351. (1) Where, in the course of an inquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is attending the Court, although not under arrest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... later stage even suo motu or at the instance of the person aggrieved. 20. The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite, both in relation to substantive as also procedural matters. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammeled by procedural restrictions in that (i) power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused. (ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor. (iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Maharashtra, (1977) 4 SCC 551 and Raj Kapoor v. State, (1980) 1 SCC 43] It is also not in dispute that the said power overrides other provisions of the Code but evidently cannot be exercised in violation / contravention of a statutory power created under any other enactment. 24. In State Through Special Cell, New Delhi v. Navjot Sandhu Alias Afshan Guru and Others [(2003) 6 SCC 641], it was stated: "Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is set out in Satya Narayan Sharma case this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a power can be exercised also as against the persons who were not the accused at the stage of trial. 27. In Ranjit Singh v. State of Punjab [(1998) 7 SCC 149], this Court held: "Though such situations may arise only in extremely rare cases, the Sessions Court is not altogether powerless to deal with such situations to prevent a miscarriage of justice. It is then open to the Sessions Court to send a report to the High Court detailing the situation so that the High Court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left-out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes." [See also Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others, (1983) 1 SCC 1] Such a power evidently can be exercised even after the trial is over. 28. In Kishori Singh v. State of Bihar [(2004) 13 SCC 11], referring to Raj Kishore Prasad v. State of Bihar, [(1996) 4 SCC 495] and Ranjit Singh (supra), this Court held: "After going through the provisions of the Code of Criminal Procedure and the aforesaid two judgments an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is that in less serious offences triable by a Magistrate, he would have the power to proceed against those who are mentioned in column 2, if on the basis of material on record he disagrees with the police conclusion, but, as far as serious offences triable by the Court of Session are concerned, that court will have to wait till the stage of Section 319 of the Code is reached. It, however, appears that in a case triable by the Court of Session, in law, a Magistrate would have no power to summon for trial an accused mentioned in column 2 to be tried with other accused and, to that extent, the impugned order of the High Court may have to be set aside but immediately the question involved herein would arise when the matter would be placed before the Sessions Court." 30. The High Court, however, was not correct in issuing a direction to the State to take advice of the State Public Prosecutor as to under what section the Appellant has to be charged and tried or directing the CB, CID to take up the matter and re-investigate and prosecute the Appellant herein. Such a power does not come within the purview of Section 482 of the Code of Criminal Procedure. Investigation of an offence is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to lay down the law that while the Magistrate directs a further investigation or a Sessions Judge while exercises its jurisdiction under Section 319 of the Code of Criminal Procedure, an accused is entitled to be heard; he is not as he has no right therefor and, thus, the question of hearing him at that stage would not arise. 33. But herein, the High Court was dealing with an extraordinary situation because : (i) rightly or wrongly the Magistrate had accepted the final form and did not direct any further enquiry; (ii) although the investigating officer or the court did not intimate the first informant about filing of the final form in respect of the Appellant, it cannot be said that the first informant was not aware thereof. (iii) The first informant neither filed any protest petition nor filed any complaint petition. (iv) Even during the trial, no application was filed before the learned Sessions Judge for summoning the Appellant on behalf of the State or the complainant. (v) The learned Sessions Judge did not exercise his power suo motu. (vi) The High Court was hearing an appeal preferred by a convicted person and exercised its extraordinary jurisdiction after 10 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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