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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. of 2008
(Arising out of SLP(Crl) No.295 of 2007)
Bharat Parikh ...Appellant
Vs.
C.B.I. & Anr. ...Respondents
J U D G M E N T
ALTAMAS KABIR,J.
1. Leave granted.
2. Two legal propositions fall for consideration
in this appeal. The first proposition deals
with the question as to whether having framed
charges against an accused, a Magistrate has
the jurisdiction in law to recall such order on
the ground that the prosecution had failed to
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comply with the provisions of Section 207 of
the Code of Criminal Procedure. An ancillary
question will also arise as to whether such
failure would render the framing of charge
void.
3. The second proposition raises a question as to
whether in exercise of its inherent powers, the
High Court could quash the charges framed and
acquit the accused on account of such non-
compliance with the provisions of Sections 207
and 238 of the aforesaid Code.
4. The appellant herein is the original accused
No.5 in a special case pending before the
learned Special Judge, Mumbai in which charge
was framed against him and the other accused
persons on 13th December, 1996 under Sections
120-B read with Sections 420, 468, 471, 477-A
of the Indian Penal Code and Section 13(2) read
with Section 13(1)(d)of the Prevention of
Corruption Act, 1988. Though such charge had
been framed against the appellant on 13th
December, 1996, after about five years an
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application was made on behalf of the appellant
in 2001, before the Special Court seeking
directions for production of certain documents
in the custody of the prosecution. By order
dated 27th August, 2001, the said application
was allowed and the prosecution was directed to
produce all the documents referred to in the
statement of one Mr. P.K.R.K. Menon made on
24th February, 1993. The said documents were
ultimately produced in 2002. Thereafter, the
appellant filed an application for re-opening
the proceedings and for discharge, which was
rejected by the learned Special Judge by his
order dated 1st April, 2006.
5. In rejecting the said application, the learned
Special Judge relied primarily on the decision
of this Court in the case of Ratilal Bhanji
Mithani vs. State of Maharashtra [AIR 1979 SC
94] in which this Court had held that once a
charge is framed, the Magistrate has no power
under Section 227 or any other provision of the
Code of Criminal Procedure to cancel such
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charge and to discharge the accused. It was
also observed that once charge has been framed
and the accused pleads not guilty, the
Magistrate is required to proceed with the
trial to its logical end. In other words, once
a charge is framed in a warrant case instituted
either on complaint or a police report, the
Magistrate has no power under the Code to
discharge the accused. He can, thereafter,
either acquit or convict the accused.
6. The learned Special Judge also relied another
decision of this Court in State of Andhra
Pradesh vs. Golconda Linga Swamy and Anr. [AIR
2004 SC 3967], where similar views have been
expressed.
7. Aggrieved by the said order of the learned
Special Judge, the appellant filed an
application under Section 482 of the aforesaid
Code before the Bombay High Court for quashing
the proceedings of the Special case pending
before the learned Special Judge, Mumbai and
also for quashing the order dated 1st April,
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2006, whereby the learned Special Judge had
rejected the appellant’s application for
discharge.
8. Taking a view, which was similar to that
expressed by the learned Special Judge, the
Bombay High Court dismissed the revisional
application upon holding that there had been
sufficient compliance by the prosecution with
the requirement of law and that failure to
produce the documents referred to in the order
dated 27th August, 2001 would not nullify the
proceedings from the stage of framing of
charge. On a reference to the decision in
Ratilal Bhanji Mithani’s case (supra), the High
Court took the view that since charge had been
framed, the case would have to go for trial as
no case had been made out for exercising
jurisdiction under Section 482 of the Code at
the said stage.
9. In this appeal, the appellant has assailed the
orders passed by the learned Special Judge, as
also the High Court.
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10. On behalf of the appellant it was submitted by
learned senior counsel, Mr. Amit Desai, that
the High Court had misapplied the decision in
Ratilal Bhanji Mithani’s case (supra) as it was
the case of the appellant that non-compliance
of the provisions of Section 207 of the Code
of Criminal Procedure had vitiated the entire
proceedings, including framing of charge. He
submitted that such non-compliance was
antithetical to the concept of a fair and
speedy trial as contemplated in Article 21 of
the Constitution as was held in the case of
Satish Mehra vs. Delhi Administration (1996) 9
SCC 766. It was submitted that the entire
proceedings were vitiated on such score as
well. It was urged that the High Court had
erred in not exercising its inherent power
under Section 482 of the Code to quash the
entire proceedings, including framing of
charge.
11. In support of his aforesaid submission, Mr.
Desai referred to the decision of a seven-Judge
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Bench of this Court in P. Ramachandra Rao vs.
State of Karnataka, (2002) 4 SCC 578, wherein
the question of speedy trial had been
considered and having regard to the views
expressed in Abdul Rehman Antulay’s case,
(1992) 1 SCC 225, it was held that if the delay
in concluding a trial was oppressive or
unwarranted, it would violate Article 21 of the
Constitution and such trial or such proceedings
would be liable to be terminated.
12. Reference was also made to a decision of a
three-Judge Bench in State of Orissa vs.
Debendra Nath Padhi, (2005) 1 SCC 568, wherein
while called upon to answer the wider question
as to whether at the time of framing charge the
trial court can consider material filed by the
accused, reference was disapprovingly made to
an earlier two-Judges Bench decision in the
case of Satish Mehra vs. Delhi Administration.
In fact, the matter was heard on a reference as
there was a conflict of views between two
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Benches of co-ordinate jurisdiction. In Satish
Mehra’s case (supra) it was held that at the
time of framing of charge the trial court was
competent to consider material produced on
behalf of the accused in the light of Section
227 of the Code which provides for an
opportunity of being heard to the accused so
that he was not unnecessarily made to undergo
the entire gamut of a trial which could be
concluded at the time of framing of charge
itself, if the trial court was satisfied upon
the material produced both by the prosecution
and the accused that there was no need to
proceed to conduct the trial. The said view
taken in Satish Mehra’s case was, however,
overruled in Debendra Nath Padhi’s case.
13. Reference was lastly made to a decision of a
single Judge of the Rajasthan High Court in
Dhananjay Kumar Singh vs. State of Rajasthan,
2006 Crl.L.J. 3873, where the principles of
natural justice were held to be an integral
part of a fair trial in the context of Article
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21 of the Constitution and the Universal
Declaration of Human Rights adopted by the
United Nations on 10th December, 1948.
14. Appearing for the Central Bureau of
Investigation (hereinafter referred to as
`CBI’), learned Additional Solicitor General,
Mr. Mohan Parasaran, submitted that a similar
application (Criminal Application No.1129 of
1997) made by the appellant had been dismissed
on 2nd November, 1998, as none of the parties
were represented at the time of hearing of the
application. He also submitted that having
regard to the decision in Debendra Nath Pathi’s
case(supra) and also in Ratilal Bhanji
Mithani’s case (supra), the earlier ambiguity
had been removed and it had been clearly laid
down that not only could the trial court not
recall its order framing charge, which would
result in re-opening of the proceedings, but
it could not also consider the material
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produced on behalf of the accused at the time
of framing charge.
15. Of the two propositions raised in this appeal,
the first proposition has been completely
answered in Debendra Nath Padhi’s case (supra)
regarding the trial court’s power to recall its
order framing charge against an accused.
Having regard to the language of Sections 207
and 227 of the Code of Criminal Procedure,
while framing charges the trial court can only
look into the materials produced by the
prosecution while giving an opportunity to the
accused to show that the said materials were
insufficient for the purpose of framing charge.
The decision in Satish Mehra’s case (supra)
having been overruled in Debendra Nath Padhi’s
case (supra) the contention of Mr. Desai that
the Magistrate should have re-opened the matter
on the basis of the documents produced by the
prosecution at the instance of the accused, is
no longer res-integra. The question of
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discharge by the learned Magistrate after
framing of charge does not, therefore, arise,
notwithstanding the submissions advanced with
regard to denial of natural justice and a fair
and speedy trial as contemplated under Article
21 of the Constitution, which have no
application whatsoever to the facts of this
case.
16. With regard to the second proposition regarding
the High Court’s powers to look into materials
produced on behalf of or at the instance of the
accused for the purpose of invoking its powers
under Section 482 of the Code for quashing the
charges framed, it has to be kept in mind that
after the stage of framing charge evidence has
to be led on behalf of the prosecution to prove
the charge if an accused pleads not guilty to
the charge and/or charges and claims to be
tried. It is only in the exceptional
circumstances enumerated in State of Haryana
vs. Bhajan Lal 1992 Suppl.(1) SCC 335, that a
criminal proceeding may be quashed to secure
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the ends of justice, but such a stage will
come only after evidence is led, particularly
when the prosecution had produced sufficient
material for charges to be framed. As observed
in Debendra Nath Padhi’s case (supra) at the
stage of framing charge roving and fishing
inquiry is impermissible and a mini trial
cannot be conducted at such stage. At the stage
of framing of charge the submissions on behalf
of the accused has to be confined to the
material produced by the investigating agency.
The accused will get an opportunity to prove
the documents subsequently produced by the
prosecution on the order of the Court, but the
same cannot be relied upon to re-open the
proceedings once charge has been framed or for
invocation of the High Court’s powers under
Section 482 of the Code of Criminal Procedure.
17. Accordingly, no interference is warranted with
the orders passed by the learned special Judge
or the High Court, and the appeal is,
therefore, dismissed.
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………………J.
(Altamas Kabir)
………………J.
(Mukundakam Sharma)
New Delhi,
Dated:July 14,2008