1999 Supreme(Del) 1158

High Court Of Delhi
RAJIV GANDHI EKTA SAMITI - Appellant
Versus
UNION OF INDIA - Respondent
Criminal Miscellaneous (Main) 3420 of 1999
Decided On : 12/23/1999

Headnote:Criminal Procedure Code, 1973 - Section 173 — Charge Sheet by police — Mention of name of deceased Prime Minister as accused not sent for trial — The name of even a dead person can be shown in the column meant accused persons not sent for trial.

       Held :

       The provisions contained in Section 173(2) of the Code show that a report forwarded to the Magistrate should contain the statement as to "whether any offence appears to have been committed and, if so, by whom." Naturally the names of the persons by whom the offence appears to have been committed should necessarily be mentioned in the charge sheet, whether they are alive or not and whether they have been arrested or not and whether they are absconding or not. Hence if the Officer in charge was of the opinion that the offences in this case appeared to have been committed by the late Shri Rajiv Gandhi also, the Officer in charge had no escape from the legal and statutory obligation to mention Shri Rajiv Gandhis name in the charge sheet even though he was not alive when the report was sent. When the accused is dead the only thing the Officer in charge can do is to indicate in the report that the accused is dead and that he is not sent up for trial.

       There is no challenge against the form prescribed by the Government. There is no contention that the prescribed form is not in accordance with the statutory provisions. Hence while furnishing the details mentioned in column No. 3 the Officer-in-Charge had to mention the offences and the circumstances connected with the offences and the . names of persons who appear to have committed the offence. Since Shri Rajiv Gandhi could not be sent up for trial, his name had to be shown in column No. 2 meant for names of accused persons not sent up for trial. Thus by including the late Shri Rajiv Gandhis name in column No. 2 the CBI has not committed any illegality. The CBI has done only its statutory duty under Section 173 of the Code. According to the petitioner there was no evidence and materials to enable the Officer in charge to form an opinion that the alleged offences appear to have been committed by the late Shri Rajiv Gandhi. I make it clear that I have not considered whether there is sufficient justification for forming such an opinion. I do not propose to consider that aspect in this case because the late Shri Rajiv Gandhi has not been sent up for trial. I refrain from considering the said aspect for another reason also. The Trial Court has not yet heard the accused persons sent up for trial on the question of charge and charges Have not been framed in the case. It is for the Trial Court to consider whether there is prima facie case to proceed against the accused persons sent up for trial. It is not proper for this Court to express any opinion on the merit of the charges while considering a petition filed by a third party stated to be interested in the accused who has not been sent up for trial.

       There is no merit in the contention of the petitioner (hat the name of a person who is not alive cannot be shown in column No. 2 of the charge sheet. There is no such restriction or prohibition either in the Code or in the prescribed form. Column No. 2 is meant for names and addresses of accused persons not sent up for trial, irrespective of the reason for not sending them up for trial. Hence the name, of an accused person who is not sent up for trial due to his death also can be included in column No. 2.

       Section 482 — Quashing of proceedings — Petition seeking removal of name of deceased Prime Minister from the FIR stated to as accused not sent for trial — Petition filed by a social organization established in the memory of deceased Prime Minister — Liberal view has to be adopted by the Court — The petition is maintainable.

       The petitioner claims to be a social service organisation engaged in social work. It was established in the memory of the late Shri Rajiv Gandhi. Along with an affidavit dated 18.11.1999 of the petitioner, a copy of the constitution of Rajiv Gandhi Ekta Samiti and photocopies of some correspondence between the petitioner and others were produced. As per its constitution, the aims and objects of the organisation the learned Counsel for the petitoner admitted it is not a registered association. As per its constitution, the aims and objects of the organisation include, (i) to preach and propagate all over India the principles and ideologies chershed and expounded by Amar Shaheed Shri Rajiv Gandhi; (it) to take up programmes for keeping the name of late Shri Rajiv Gandhi alive and to approach the concerned officials for implementation of such programmes or schemes; (iii) to organise Rajiv Gandhis martyrdom day, i.e. 21st May, as Anti Terrorism Day and to make efforts to get this day declared by Government as Anti Terrorist Day; (iv) to arrange functions for spreading goodwill on the birth day of Shri Rajiv Gandhi; and (v) to take appropriate action wherever necessary in Courts and other Forums for questioning action or design to malign the name of the late Shri Rajiv Gandhi. The photocopies of the correspondence produced by the petitioner relate to the period from 1992 to 1999.

       The inherent power recognised in this section can be exercised by the High Court, (i) to give effect to any order passed under the Code; or (ii) to prevent abuse of process of any Court; or (iii) otherwise to secure the ends of justice. Section 482 does not say who is entitled to move the Court for invoking the jurisdiction of the Court under that section. Tliere is no reference to person aggrieved or person interested. There is no mention of persons entitled to move the Court or prohibited from invoking the jurisdiction under this section. It is a provision devised to advance justice and not to frustrate it. Hence a liberal view has to be taken on the question of locus standi of a person to move the Court under the said provision. The anxiety and endeavor of the Court should be to prevent the abuse of the process of Court and to secure the ends of justice. The High Court should not be bogged down by hyper technical arguments on the locus standi of the person who brings any abuse of the process of the Court or any injustice to the notice of the High Court. If there is any abuse of the process of the Court or any injustice ordinarily it should not be allowed to continue after it is brought to the notice of the High Court. At the some time the High Court must be prudent and careful to see that the person who approaches the Court is acting bona fide and not for personal gain or private profit or political motive or oblique considerations. Tiie High Court must not allow its process to be abused by self seeking and self serving persons under the garb of public interest litigants. Hence it is difficult to lay down a hard and fast rule or a straight jacket formula for deciding the locus standi of persons who invoke the jurisdiction of the High Court under Section 482 of theCode. Each case has to be considered on the particular facts and circumstances of the case bearing in mind the scope and spirit of the statutory rovision.