//
you're reading...
legal issues

Sec.482 Cr.P.C. – making adverse comments in the absence of a party – not valid – While quashing criminal case against one accused, the High court made adverse comments against the other accused with out making him as a party to the proceedings and with out hearing him – Apex court set aside the order of High court and remanded the matter to dispose afresh after impleading the appellant as a party = Homi Rajvansh …. Appellant(s) Versus State of Maharashtra & Ors. …. Respondent(s)= 2014 (March . Part) judis.nic.in/supremecourt/filename=41347

Sec.482 Cr.P.C. – making adverse comments in the absence of a party – not valid –  While quashing criminal case against one accused, the High court made adverse comments against the other accused with out making him as a party to the proceedings and with out hearing him – Apex court set aside the order of High court and remanded the matter to  dispose afresh after impleading the appellant as a party =

 

the High  Court  quashed  the

criminal  proceedings  against  Alok  Ranjan-Respondent  No.3  herein  (writ

petitioner in the High Court) in C.C. No. 1036/CPW/2008 pending  before  the

Metropolitan Magistrate, 19th Court, Esplanade, Mumbai.=

 

    It is settled law that for considering  the  petition  under  Section

482 of the Code, it is necessary to consider as to whether  the  allegations

in the complaint prima facie make out a case or not and the Court is not  to

scrutinize  the  allegations  for  the  purpose  of  deciding  whether  such

allegations are likely to be upheld in trial.

 

15)   The High Court committed an error in quashing  the  complaint  against

Respondent No.3 without hearing the appellant herein who is a co-accused  in

the case as  their  alleged  roles  are  interconnected.    The  High  Court

committed an error in coming to a finding against the appellant without  the

appellant being a party in the writ petition filed by Respondent  No.3.   In

fact, the perusal of the impugned order clearly shows that  the  High  Court

simply agreed with the submissions of Respondent No.3 against the  appellant

herein without giving him an opportunity of being heard.

 

16)   We are satisfied that the High Court,  in  the  impugned  order,  over

exercised its jurisdiction which is  complete  violation  of  principles  of

natural justice since the appellant, who is a co-accused, was not  heard  on

the allegations levelled against him by Respondent No.3 herein.

 

17)   Though the High Court possesses inherent powers under Section  482  of

the Code, these powers are meant to do real  and  substantial  justice,  for

the administration of which alone it exists  or  to  prevent  abuse  of  the

process of the court.   This  Court,  time  and  again,  has  observed  that

extraordinary power should be exercised sparingly and with  great  care  and

caution.  The High Court would be justified in  exercising  the  said  power

when it is imperative to exercise the same in order to prevent injustice.

 

18)   Inasmuch as admittedly the appellant was not  impleaded/shown  as  one

of the parties before the High  Court,  the  specific  finding  against  his

alleged role, based on the submissions of  Respondent  No.3  herein  without

giving an opportunity of being heard, cannot be sustained.

 

19)   In the light of what is stated  above,  the  impugned  judgment  dated

29.06.2012 in Criminal Writ Petition No. 220 of 2010 is set  aside  and  the

matter is remitted to the High Court for fresh disposal.

 

20)   In view of our conclusion, the appellant herein  –  Homi  Rajvansh  be

impleaded as Respondent No. 4 in Criminal Writ Petition No. 220 of 2010  and

we request the  High  Court  to  hear  the  matter  afresh  after  affording

opportunity to all the parties including  the  newly  impleaded  party,  and

dispose of the same as expeditiously as possible preferably within a  period

of six months from the date of receipt of copy of this judgment.

 

21)   The appeal is allowed on the above terms.

2014 (March . Part) judis.nic.in/supremecourt/filename=41347

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 687 OF 2014

(Arising out of S.L.P. (Crl.) No. 2634 of 2013)

Homi Rajvansh …. Appellant(s)

Versus

State of Maharashtra & Ors. …. Respondent(s)
J U D G M E N T
P.Sathasivam, CJI.

 

1) Leave granted.

2) The above appeal is filed against the final impugned judgment and
order dated 29.06.2012 passed by the High Court of Judicature at Bombay in
Criminal Writ Petition No. 220 of 2010 wherein the High Court quashed the
criminal proceedings against Alok Ranjan-Respondent No.3 herein (writ
petitioner in the High Court) in C.C. No. 1036/CPW/2008 pending before the
Metropolitan Magistrate, 19th Court, Esplanade, Mumbai.

3) Brief facts:

(a) The appellant, an Indian Revenue Service Officer, joined National
Agricultural Co-operative Marketing Federation of India Ltd. (NAFED), on
deputation on 15.07.2003 as an Executive Director.

(b) On 01.10.2003, Respondent No.3 herein–Alok Ranjan took over the
charge as the new Managing Director of NAFED and he approved the 1st Non-
agricultural tie-up of NAFED on 13.10.2003 in order to diversify NAFED’s
business activities to cope up from severe financial crunch so that income
from other businesses can compensate the losses being made on trading of
agricultural items. Respondent No. 3 participated in all the meetings and
approved all the transactions entered into with M/s Swarup Group of
Industries (SGI) for the above said purpose.

(c) On 20.04.2004, when the Respondent No. 3 was scheduled to go for an
international tour to Beijing, the appellant was made the officiating
Managing Director for 21.04.2004 to 27.04.2004 in order to attend all
urgent matters.

(d) In January 2006, a public interest litigation was filed against NAFED
before the Delhi High Court on the allegations of misappropriation of funds
by its officials in non-agricultural business. The Government of India, in
its reply, stated that CBI enquiry will be conducted. In the affidavit
filed by NAFED, it was again reiterated that all the transactions were bona
fide.

(e) Anticipating pressure of CBI, Respondent No. 3 directed Mr. M.V.
Haridas, Manager (Vigilance and Personnel) to lodge a complaint against SGI
and, accordingly, a complaint was lodged before the CBI Economic Offences
Wing (EOW), Mumbai.

(f) The CBI filed a charge-sheet dated 15.12.2008 against the appellant
herein and Respondent No.3 along with other accused for committing offence
under Section 120B read with Sections 409, 411,420, 467, 468 and 471 of the
Indian Penal Code, 1860 (in short ‘the IPC’).

(g) At this stage, Respondent No.3 preferred a petition being Criminal
Writ Petition No. 220 of 2010 for discharge before the High Court under
Section 482 of the Code of Criminal Procedure, 1973 (in short “the Code”)
read with Article 226/227 of the Constitution of India.

(h) By impugned order dated 29.06.2012, the High Court accepted the case
of Respondent No.3 herein and allowed his petition.

(i) Being aggrieved by the impugned judgment of the High Court, the
appellant moved before this Court. Since the appellant herein was not a
party before the High Court, this Court, by order dated 19.03.2013, granted
him permission to file special leave petition.

4) Heard Mr. Shekhar Naphade, learned senior counsel for the appellant,
Mr. P.P. Malhotra, learned Additional Solicitor General for Respondent No.2-
CBI, Mr. Kailash Vasdev, learned senior counsel for the contesting
Respondent No.3 and Ms. Asha Gopalan Nair, learned counsel for the State of
Maharashtra.

Contentions:

5) Mr. Shekhar Naphade, learned senior counsel for the appellant, after
taking us through the charge sheet dated 15.12.2008 filed before the
Special Judge, CBI, bye-laws of NAFED and impugned order of the High Court,
submitted as under:

(i) the High Court erred in quashing the complaint against Respondent
No.3 without hearing the appellant herein, who is a co-accused in the case;
(ii) the High Court had over exercised its jurisdiction by holding a
summary trial on facts, which is contrary to the law laid down by this
Court in catena of judgments;

(iii) the High Court committed an error in coming to a finding against the
appellant without the appellant being a party in the writ petition filed by
respondent No.3 herein before it;

(iv) the High Court committed an error in agreeing with the submissions of
Respondent No.3 herein without affording an opportunity of being heard to
the appellant; and

(v) the adverse findings against the appellant in the impugned judgment
would affect the trial, and hence prayed for quashing of the same.

6) On the other hand, Mr. Kailash Vasdev, learned senior counsel for
Respondent No.3 submitted that in the absence of specific material in the
charge-sheet about the role of respondent No.3, the High Court is fully
justified in quashing the criminal case and discharging him. He further
submitted that there is no categorical finding against the appellant and
the High Court has merely reproduced what is stated in the charge sheet and
nothing more.

7) We have carefully considered the rival submissions and perused the
relevant materials.

 

 

Discussion:

8) In view of our proposed decision and the ultimate direction which we
are going to issue at the end, there is no need to traverse all the factual
details. We have already noted the role of the appellant, Respondent No.3
and Respondent No.4. A careful consideration of the bye-laws of the NAFED
also makes clear the separate role of the accused. It is not in dispute
that in the writ petition filed by Respondent No.3 before the High Court
for quashing the criminal proceedings, the appellant herein was not shown
or impleaded as one of the parties. On the other hand, the role of the
appellant herein was specifically contended before the High Court at
several places and, in categorical terms, in paragraph 10 of the impugned
order, which is as under:

“………..According to the learned counsel, the loss that has been caused,
is attributable to the subsequent MOU dated 24.4.2004, entered into
between NAFED and M/s Swarup Group of Industries, which was signed by
the accused No.2 – Homi Rajvansh, who was the then Divisional Head of
Finance and Accounts and tie up business in NAFED. It is submitted
that it is the case of the investigating agency itself, that the said
MOU was signed by the accused No.2 – Homi Rajvansh, without the
approval of the petitioner or without his knowledge. The said MOU
neither has any quantitative nor any value restrictions. It is
submitted that the collateral security which had been provided in the
earlier MOU, was totally missing in this MOU. Not only that, but
various relevant clauses appearing in earlier MOU protecting and
securing the interest of NAFED were either deleted or modified without
information to the petitioner. It is submitted that though the
allegation in the charge sheet is that the accused No.2 – Homi
Rajvansh made such huge disbursement of funds worth Rs.235 crores,
without taking approval of the Managing Director, i.e., the
petitioner, strangely, the Managing Director, i.e., the petitioner
has been held responsible for such disbursement and has been made an
accused in the case.”

9) Apart from the above contentions, the charges levelled by the
investigating agency against the accused persons in the police report were
also highlighted.

10) The High Court, after adverting to the above contentions, arrived at
the following conclusion:

“There is great substance in the contention advanced by the learned
counsel for the petitioner. The allegation that the accused No.2 –
Homi Rajvansh, committed the acts in question without the approval of
the Managing Director, i.e., the petitioner and without informing him
and the allegation that the Managing Director, i.e., the petitioner is
responsible for the said acts, cannot go hand in hand together.
Surely, if the case is that Homi Rajvansh committed these illegalities
without informing the Managing Director, as was required and without
his permission, as was necessary, then the responsibility of such acts
(which were done without the permission of and the information to the
petitioner), cannot be fastened on the petitioner. This is so
obvious, that it does not need any further elaboration.”

11) Again in paragraph 17, in categorical terms, the High Court has
concluded as under:

“…….Significantly, so far as the accused No.2—Homi Rajvansh is
concerned, the investigation could establish that he had acquired huge
properties from the ill-gotten wealth……”

12) In paragraph 22, the High Court arrived at a specific conclusion
against the appellant herein which reads as under:

“Further, the allegations leveled against the petitioner about he
being in collusion with the accused No.2-Homi Rajvansh, are in
conflict with the allegations that have been levelled against the
accused No.2. It has already been seen that the allegations that the
said accused No.2, Homi Rajvansh, did certain wrongs without the
permission of the petitioner and behind his back, and that the said
Homi Rajvansh and the petitioner had conspired to commit the said
wrongs, cannot go hand in hand together. Indeed, the allegations
against the co-accused Homi Rajvansh are supported by material in the
charge sheet, but the very absence of such material, so far as the
petitioner is concerned, renders the theory of the petitioner being a
party to the alleged conspiracy, unacceptable.”

13) The perusal of the contentions of Respondent No.3 herein-the writ
petitioner in the High Court and the categorical findings followed by
conclusion not only exonerated Respondent No.3 herein from the criminal
prosecution but also reinforce the allegations levelled against the
appellant herein, who was admittedly not a party before the High Court.

14) It is settled law that for considering the petition under Section
482 of the Code, it is necessary to consider as to whether the allegations
in the complaint prima facie make out a case or not and the Court is not to
scrutinize the allegations for the purpose of deciding whether such
allegations are likely to be upheld in trial.

15) The High Court committed an error in quashing the complaint against
Respondent No.3 without hearing the appellant herein who is a co-accused in
the case as their alleged roles are interconnected. The High Court
committed an error in coming to a finding against the appellant without the
appellant being a party in the writ petition filed by Respondent No.3. In
fact, the perusal of the impugned order clearly shows that the High Court
simply agreed with the submissions of Respondent No.3 against the appellant
herein without giving him an opportunity of being heard.

16) We are satisfied that the High Court, in the impugned order, over
exercised its jurisdiction which is complete violation of principles of
natural justice since the appellant, who is a co-accused, was not heard on
the allegations levelled against him by Respondent No.3 herein.

17) Though the High Court possesses inherent powers under Section 482 of
the Code, these powers are meant to do real and substantial justice, for
the administration of which alone it exists or to prevent abuse of the
process of the court. This Court, time and again, has observed that
extraordinary power should be exercised sparingly and with great care and
caution. The High Court would be justified in exercising the said power
when it is imperative to exercise the same in order to prevent injustice.

18) Inasmuch as admittedly the appellant was not impleaded/shown as one
of the parties before the High Court, the specific finding against his
alleged role, based on the submissions of Respondent No.3 herein without
giving an opportunity of being heard, cannot be sustained.

19) In the light of what is stated above, the impugned judgment dated
29.06.2012 in Criminal Writ Petition No. 220 of 2010 is set aside and the
matter is remitted to the High Court for fresh disposal.

20) In view of our conclusion, the appellant herein – Homi Rajvansh be
impleaded as Respondent No. 4 in Criminal Writ Petition No. 220 of 2010 and
we request the High Court to hear the matter afresh after affording
opportunity to all the parties including the newly impleaded party, and
dispose of the same as expeditiously as possible preferably within a period
of six months from the date of receipt of copy of this judgment.

21) The appeal is allowed on the above terms.

 

………….…………………………CJI.

(P. SATHASIVAM)

 

 

 
.………….……………………………J.
(RANJAN GOGOI)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
.………….……………………………J.
(N.V. RAMANA)
NEW DELHI;
MARCH 27, 2014.
———————–
11

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,845,131 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,868 other followers

Follow advocatemmmohan on WordPress.com