2006 Supreme(SC) 564

2006(5) Supreme 210
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Sinha and P.P. Naolekar, JJ.
Popular Muthiah — Appellant
versus
State of Tamil Nadu — Respondent
Criminal Appeal No. 107/2003
With
Criminal Appeal No. 108/2003
Decided on 4-7-2006
Counsel for the Parties :
For the Appellant : M.N. Rao, Sr. Advocate, P. Ramesh, P.R. Kovilan, Rakesh K. Sharma, Advocates.
For the Respondent : Dr. Rajeev Dhawan, Sr. Advocate, Prashanta Venkatesh, Subramonium Prasad, Abhay Kumar, Advocates.

IMPORTANT POINT
There is no embargo for High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdiction like appeal or revision.

Headnote:Criminal Procedure Code, 1973 — Sections 482, 374, 386 and 319 — Inherent jurisdiction of High Court while hearing criminal appeal — Appellant and another accused though named during investigation of murder case and by witness during trial was neither charge-sheeted by police nor summoned by Sessions Court in exercise of its power u/s 319 Cr.P.C. — The Sole Charge Sheeted accused was convicted by trial Court who preferred appeal — High Court while dismissing the appeal opined that evidence showed involvement of abetting by appellant and other accused and ordered fresh investigation so far appellant and other accused were concerned — Appeal — Questions involved was whether High Court while exercising its appellate jurisdiction u/s 374(2) r/w Section 386 Cr.P.C. could direct further investigation of case against persons whom High Court felt should have been challaned on basis of material on record before the appellate Court and could seek recourse to its inherent and supervisory powers? Yes.

       Held : While exercising its appellate power, the jurisdiction of the High Court although is limited but, in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revisional jurisdiction and/ or inherent jurisdiction not only when an application therefor is filed but also suo motu. It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdictions in the matter. Keeping in view the intention of the Parliament, while making the new law the emphasis of the Parliament being a case before the court in contradistinction from a person who is arrayed as an accused before it when the High Court is seized with the entire case although would exercise a limited jurisdiction in terms of Section 386 of the Code of Criminal Procedure, the same, in our considered view, cannot be held to limit its other powers and in particular that of Section 482 of the Code of Criminal Procedure in relation to the matter which is not before it.(Para 28)

       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.(Para 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 a statutory power of the police. The State in its discretion may get the investigation done by any agency unless there exists an extraordinary situation. (Para 48)

       Yet again, it is for the public prosecutor to discharge his duties in terms of the provisions of the Code of Criminal Procedure. The High Court, thus, has no role to play in such matters. Ordinarily, it is for the public prosecutor himself to see to whom and how to render his advice or as to whether the State would like to proceed against an accused or not.(Para 49)

       The High Court while passing the impugned judgment did not bear the said principles in mind. It went beyond its jurisdiction in directing the prosecution of the Appellant before us. In a case of this nature, where a superior court exercises its inherent jurisdiction, it indisputably should remind itself about the inherent danger in taking away right of an accused. The High Court should have been circumspect in exercising the said jurisdiction. When a power under sub-section (8) of Section 173 of the Code of Criminal Procedure is exercised, the court ordinarily should not interfere with the statutory power of the investigating agency. It cannot issue directions to investigate the case from a particular angle or by a particular agency. In the instant case, not only the High Court had asked reinvestigation into the matter, but also directed examination of the witnesses who had not been cited as prosecution witnesses. It furthermore directed prosecution of the Appellant which was unwarranted in law.(Para 50)

       In a case of this nature, therefore, in our opinion, it would have been in the fitness of things, the Appellant should have been heard by the High Court. We may, however, hasten to add that our direction is not intended 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. (Paras 53 and 54)

       Similarly, the power of the Sessions Judge to summon a person to stand trial with the other accused in exercise of its jurisdiction under Section 319 of the Code of Criminal Procedure is also limited inasmuch as from the evidences of the witnesses, it must clearly be found that the proceedee had a role to play in the commission of an offence. So far as inherent power of the High Court is concerned, indisputably the same is required to be exercised sparingly. The High Court may or may not in a given situation, particularly having regard to lapse of time, exercise its discretionary jurisdiction. For the said purpose, it was not only required to apply its mind to the materials on records but was also required to consider as to whether any purpose would be served thereby. Having regard to the peculiar facts and circumstances of this case, we are of the opinion that before issuing the impugned directions, the High Court should have given an opportunity of hearing to the Appellants herein. For the reasons aforementioned, the impugned judgment is set aside and the matter is remitted to the High Court for consideration of the matter afresh. The High Court shall issue notice to the Appellants herein as also the State and pass appropriate orders as it may deem fit and proper and in accordance with law.(Paras 57 to 60)