2013 Supreme(SC) 830

Supreme Court Of India
Dr. B.S. CHAUHAN, S.A. BOBDE, JJ.
Umesh Kumar – Appellant
Versus
State of Andhra Pradesh – Respondent
Criminal Appeal No.1305 of 2013 with Criminal Appeal No.1304 of 2013
Decided On : 06-09-2013

IMPORTANT POINT
Law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned.

Headnote:Code of Civil Procedure, 1908- Section 139-Affidavit- Attestation of the undated affidavit is in utter disregard to the provisions of Section 139 of the Code of Civil Procedure, 1908. The Supreme Court Rules 1966 under Order XI, Rule 7 also require adherence to the provisions of Section 139 CPC. … it is an essential characteristic of an affidavit that it should be made on oath or affirmation before a person having authority to administer the oath or affirmation, and thus, duty to state on oath on the part of the deponent is sacrosanct. Same remains the position in respect of administration of oath as required under the Oaths Act 1873. (Para 30)

        Criminal Procedure Code, 1973-Inquiry for crimes- Scheme for inquiry/trial provided under the Cr.P.C. is quite clear. After investigation, report under Section 173(2) Cr.P.C. is to be submitted before the competent court i.e. magistrate having jurisdiction in the matter and the magistrate may take cognizance under Section 190 Cr.P.C. However, it is still open to the magistrate to direct further investigation under the provisions of Section 173(8) Cr.P.C. If the case is triable by the Court of Sessions, the magistrate would commit the case to the said court under Section 209 Cr.P.C. It is for the court to examine whether there is sufficient material collected during investigation and filed alongwith the charge sheet that a prima facie view can be taken to proceed against the accused and in view thereof, frame charges under Section 228 Cr.P.C. At this stage the remedy available to the accused is to ask for discharge under Section 227 Cr.P.C. In case charges are framed the accused has to face the trial, charges can be added/altered at any stage of the trial, before the pronouncement of the judgment to suit the evidence adduced before the court, under the provisions of Section 216 Cr.P.C. The only legal requirement is that a witness has to be recalled as provided under Section 217 Cr.P.C. when a charge is altered or added by the court. (Para 19)

        Criminal Procedure Code, 1973- Section 323- Framing of charges- The High Court was approached by Umesh Kumar, appellant under section 482 Cr.P.C. at a premature stage. At the said stage the High Court could examine the chargesheet, case diary and other material in the chargesheet which by no means can be termed as substantive evidence. (Para 23)

        The order of the High Court impugned before us cannot be termed as a final decision. The order is subject to further order which could be passed by the trial court under Section 216 Cr.P.C., on the basis of the evidence to be led during trial. If the impugned order is dubbed as having attained finality, the provisions of Section 216 Cr.P.C. would render otiose/nugatory. Thus, the same is to be read that the said order had been passed taking into consideration the material which was available "at that stage" and it is still open to the trial court to add or alter the charges according to the evidence produced before it. (Para 25)

        Criminal Procedure Code, 1973- Section 482- Scope- The scope of Section 482 Cr.P.C. is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Cr.P.C.; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed alongwith the petition labelled as evidence without being tested and proved, cannot be examined. (Para 12)

        Criminal Procedure Code, 1973- Section 482- Power to quash the charge sheet - Law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused to undergo the agony of a criminal trial. (Para 12)

        In case there is some substance in the allegations and material exists to substantiate the complicity of the applicant, the case is to be examined in its full conspectus and the proceedings should not be quashed only on the ground that the same had been initiated with mala fides to wreak vengeance or to achieve an ulterior goal. (Para 18)

        Constitution of India, 1950- Article 21- Right of reputation- Allegations against any person if found to be false or made forging some one else signature may affect his reputation. Reputation is a sort of right to enjoy the good opinion of others and it is a personal right and an enquiry to reputation is a personal injury. Thus, scandal and defamation are injurious to reputation. Reputation has been defined in dictionary as "to have a good name; the credit, honor, or character which is derived from a favourable public opinion or esteem and character by report". Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Therefore, it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution. International Covenant on Civil and Political Rights 1966 recognises the right to have opinions and the right of freedom of expression under Article 19 is subject to the right of reputation of others. Reputation is "not only a salt of life but the purest treasure and the most precious perfume of life." (Para 11)

       Facts of the case:

        A letter purported to have been written by Shri M.A. Khan, M.P., suggests that various properties had been purchased by respondent no.2 as benami and the copies of the sale deeds etc. filed alongwith the said letter fortify the same. No attempt has ever been made by any person to hold the enquiry relating to the genuineness of the allegations in the complaint purported to have been signed by Shri M.A. Khan, M.P. The letter dated 24.8.2011 makes it clear that before the report could reach the Government, respondent no.2 directed that an FIR be lodged, enquiry conducted and the report of the same be submitted to his office. The documents revealed that the statement made by Shri T. Sunil Reddy after his arrest did not reveal the name of Umesh Kumar. However, when he was in police custody and his statement was recorded a second time he named the appellant. It is also evident that he was made an approver with the help of the public prosecutor and later on the said order of the trial court was set aside by the High Court at the behest of Umesh Kumar.

        The complaint was initially made in respect of acquiring huge immovable properties by respondent No. 2 in his name and in the name of his wife, and the Central Government had asked the State Government to conduct an inquiry into the said allegations. The complaint may be forged or fabricated, but it is nobody’s case that the copies of sale deeds annexed alongwith the said complaint were not genuine. While issuing direction to hold inquiry/investigation as to who had fabricated the said complaint and forged the signatures of Shri M.A. Khan, M.P., the allegations of acquiring properties by the respondent No.2 have been abandoned and unattended altogether.

       Findings of the Court:

        Facts of the case warranted some enquiry in respect of the allegations of acquiring huge properties by Shri V. Dinesh Reddy - respondent no.2. The State took the courage to flout the order of the Central Government and did not look into the contents of the complaint and misdirected the enquiry against Umesh Kumar, appellant. In such a fact-situation, this court would not fail in its duty to direct the enquiry in those allegations. In view of the above, the appeals are disposed of directing the CBI to investigate the matter against Shri V. Dinesh Reddy - respondent no. 2 on the allegations of acquiring the disproportionate assets. However, this should not be considered as expressing any opinion upon the merits of the case.

       Result : Order accordingly to hold CBI inquiry.