VERY IMPORTANT POINT
Different statements at different stages of the criminal case made by the Public Prosecutor would not amount to any offence falling under Section 195 Cr.P.C. 1973 attracting the permission of Section 340 Cr.P.C. to make a complaint before Court.

Headnote:(i) Constitution of India-Article 136-Appeal by special leave-TADA-Section 19-Cr.P.C. 1973-Sections 341 and 340-Interim order of locus standi in an application under Section 340 r/w 195 Cr.P.C. by Designated Court in TADA case viz. Bombay Blast Cases"-Designated Court entertaining application by stranger against Public Prosecutor in that case-Appeal by Special Leave by said P.P. to Supreme Court-Respondent alleging should not be entertained as it would affect a statutory right of appeal and that such appeal is barred-Whether correct? (No).
       Held : Article 136 of the Constitution enables this Court to exercise in its discretion appellate powers by granting special leave from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in India. This power is conferred on this Court notwithstanding the provisions for regular appeal from proceedings in different enactments being available and there may remain some cases where justice might require interference by this Court with the decisions of the High Courts or the tribunals of the land. The power of this Court to grant leave to appeal from any decision of any court or tribunal is not subject to any limitation and is left entirely to the discretion of this Court. Though this Court is circumspect in its exercise of its jurisdiction under Article 136 it has a duty to interfere in cases of grave miscarriage of justice. It is trite to say that the extraordinary power conferred under Article 136 of the Constitution cannot be taken away by any legislation, short of constitutional amendment. The nature of the statute or limitations imposed within a statute cannot deter this Court from exercising its jurisdiction. It is not even restricted by the appellate provisions enumerated in Criminal Procedure Code or any other statute. Therefore, contentions urged, which are preliminary in nature, cannot detain us in entertaining this matter or examining the correctness of the proceedings before the Designated Judge. However, the respondent urged that in A.P. Antulay vs. R.S. Nayak, 1988(2) SCC 602. this Court had held that one of the considerations in exercise of its power by this Court is not to deprive any party of a statutory appeal and if such deprivation occasions then the matter will have to be reopened as was done in that case. This argument proceeds on a misconception of the position in law. An appeal lies when a matter is finally and conclusively decided by a court or a tribunal. If the High Court or the Supreme Court, in exercise of the extraordinary jurisdiction under Article 226 or Article 136 of the Constitution or Section 482 Cr.P.C. as the case may be, quashes certain proceedings, a party cannot complain that his right to statutory appeal had been deprived. Therefore, this contention deserves to be rejected. (Para 7)
       (ii) Criminal Procedure Code, 1973-Section 340-Complaint under before designated Court in a TADA case-Complainant a stranger-Designated Court entertained it-Whether respondent-Complainant had locus standi? (Yes).
       Held : It is well settled that in criminal law that a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. In respect of offences adverted to in Section 195 Cr.P.C. there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 Cr.P.C. is invoked to get over the bar imposed under Section 195 Cr.P.C. In ordinary crimes not adverted to under Section 195 Cr.P.C., if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 Cr.P.C.. For that matter, the wordings of Section 340 Cr.P.C. are significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision. Therefore, it is wholly unnecessary to examine this aspect of the matter. We proceed on the basis that the respondent has locus standi to present the complaint before the Designated Judge. (Para 9)
       (iii) Criminal Procedure Code, 1973-Section 195 read with 340-TADA-Bombay Blast Cases-On behalf of State conducted by Chief Public Prosecutor-For framing of charges making contradictory submissions-Earlier to frame charge for offence of waging war against State by all the 157 accused persons-Later asking to drop it as there was no material-Respondent, a stranger, making complaint under Section 340 Cr.P.C.-Whether different statements at different stages of the case made by P.P. would amount to any offence attracting the provisions of Section 340 Cr.P.C.? (No)-Appeal allowed-The complaint of respondent does not deserve to be proceeded with.
       Held : We are amazed at the manner in which the learned Designated Judge dealt with this matter. While holding that the respondent had locus standi to present the petition, he ought to have applied his mind further as to whether he should proceed further in the matter at all. If he had thoroughly perused the petition, it would have appeared that the submissions made by the learned public prosecutor - however contradictory they may be - in a case cannot amount to fabrication of evidence by any stretch of imagination. The substance of the complaint should have been looked into and should have been decided. If such caution had been exercised, we are sure, he would not have proceeded further in the matter. We are conscious of the fact that the learned Designated Judge has not exercised his power under Section 340 Cr.P.C. as yet to lodge a complaint nor has he proceeded to hold an inquiry but at the same time we must notice that issue of notice on an application of this nature would nave serious impact upon the public prosecutor in conduct of the case particularly when at every stage he has got to be conscious whether any of his statement would attract Section 340 Cr.P.C.. This is not the kind of atmosphere where a public prosecutor can function effectively, independently and fearlessly. In the conduct of the case a public prosecutor must have full freedom and he can even give up certain cases and request the court to discharge or acquit any accused. If that kind of autonomy is to be enjoyed by the public prosecutor, he cannot be fettered in conducting the proceedings. By initiating the proceedings against him, the learned Designated Judge has crippled the freedom of the public prosecutor in functioning effectively and such a matter certainly results in serious miscarriage in administration of justice and no Advocate would be safe if such proceedings are initiated on the basis of the allegations of the nature made in the complaint. Either the learned Designated Judge has not applied his mind or he has not understood the scope of the application and if he had done either, he would have dismissed the application. That we do now. In the result, we allow this appeal, set aside the order made by the learned Designated Judge and dismiss the application filed by the respondent under Section 340 Cr.P.C.. At the same time, we make it clear that the respondent shall not engage in this kind of litigation hereafter and he is restrained from making any applications of this nature and if any such application is made before any court, the same shall be dismissed in limine and appropriate proceedings be initiated against him. The appeal is allowed accordingly. (Paras 15, 16, 17 & 18)

JUDGMENT

Rajendra Babu, J.-An application under Section 340 of the Criminal Procedure Code was laid by the respondent in the Designated Court at Bombay. The appellant had been conducting the cases as the Chief Public Prosecutor before the Designated Judge in what is popularly known as "Bombay Blast Cases". The respondent urged in his petition that the appellant before us being a public prosecutor had an onerous duty and had to act in a fair manner and at one stage of the proceedings both orally and in writing had submitted to the court that the material on record was sufficient to frame charges against various offences arising under Chapter VI of the Indian Penal Code like waging war against the State, etc., after adverting to the decisions of this Court. However, at a later stage of the proceedings in the same case, the, appellant urged the Designated Court to drop the charges under Sections 121 and 121A IPC against all the 157 accused as there was no material. Thus he made statements which were contradictory to the earlier stand taken by him and left the matter to the discretion of the court to accept one or the other version to be true in order to secure the ends of justice. Apart from misconduct on the part of the appellant arising under the Advocates Act, it is contended that the same would amount to criminal contempt of court. The contention advanced on behalf of the respondent was that the charge of waging war against the State without reasonable or sufficient material on record results in grave injustice and injury to some of the accused and if he had carried out his functions with due care and caution, such injustice would not have occasioned. He contended in the course of the application as follows:

........ Having opened the case under Section 226 Cr.P.C. and having proceeded quite far under Section 227 Cr.P.C. in respect of framing charges, for the prosecutor to come up with a plea not to frame the charges for lack of material on record amounts to making a mockery of the administration of justice. The conduct of the CBI prosecutor Mr. Natarajan has polluted the course of administration of justice, notwithstanding the fact that there is material or not to frame the charge. This kind of conduct on the part of the public prosecutor if not dealt with according to law would leave wide scope in our judicial system to injure and cause injustice to ill place citizens. Therefore a judicial examination of the conduct of the CBI prosecutor Mr. Natarajan will be in public interest, as it would act as a deterrent against public prosecutors indulging in unfair practices."

3. The respondent also submitted that he was not concerned with the outcome of the case but more in the conduct of the public prosecutor in making contradictory submissions. He submitted that this conduct on the part of the appellant would attract the provisions of Section 192 to 196 and 227 Cr.P.C..

4. On receipt of the application, the learned Designated Judge directed the Registry to post the matter for hearing on the question of locus standi of the respondent to file an application under Section 340 Cr.P.C. and whether that court had jurisdiction to entertain the application. The Designated Judge held that he was satisfied that the court could entertain an complaint even at the instance of a stranger in order to address his grievances as offences affecting the administration of justice. Though the appellant was not notified of the said application, the learned Designated Judge heard Mr. R.K.H. Sharma, Special Public Prosecutor, in the matter and noted that he had not challenged the locus standi of the respondent in presenting the application but had emphasised that if the court entertains such petition without ascertaining its merit, it would open flood gates and any person would walk in the court with such petitions. Before the learned Designated Judge, it was contended by Mr. Sharma that there can be only two parties before the could, that is, the public p

Click Here to Read the rest of this document

2002 Supreme(SC) 1185

VERY IMPORTANT POINTDifferent statements at different stages of the criminal case made by the Public Prosecutor would not amount to any offence falling under Section 195 Cr.P.C. 1973 attracting the permission of Section 340 Cr.P.C. to make a complaint before Court.

Cases Referred (1)

VERY IMPORTANT POINT
Different statements at different stages of the criminal case made by the Public Prosecutor would not amount to any offence falling under Section 195 Cr.P.C. 1973 attracting the permission of Section 340 Cr.P.C. to make a complaint before Court.