M.R. Ajayan Vs. State of Kerala & Ors.
[Criminal Appeal No.________ of 2024 arising out of SLP (Crl.) No. 4887 of 2024]
Antony Raju Vs. State of Kerala & Anr.
[Criminal Appeal No.________ of 2024 arising out of SLP (Crl.) No. 7896 of 2023]
Sanjay Karol J.
1. Leave Granted.
2. The present appeals arise from the common final judgment and order dated 10th March, 2023 passed by the High Court of Kerala at Ernakulam in CRL.M.C.No.5261 of 2022, whereby the order taking cognizance in Crime No.215/1994 and all further proceedings pursuant to the same (C.C. No. 811 of 2014) on the files of Judicial First Class Magistrate-I, Nedumangad, were quashed and the Registry of the High Court was directed to take appropriate action against Antony Raju in accordance with the procedure set out under Section 195 of the Code of Criminal Procedure, 19731.
FACTUAL MATRIX
3. The genesis of this case dates back to the year 1990. On 4th April, 1990, an FIR came to be registered bearing Crime No.60 of 1990, under Section 20(b)(ii) of the Narcotics Drugs and Psychotropic Substances Act, wherein an Australian national, Andrew Salvatore, was travelling from Thiruvananthapuram to Mumbai. While undergoing frisking at the airport, he was found to be in possession of 2 packets containing 55 grams and 6.6 grams of charas, which were kept concealed in the pocket of his underwear. On registration of the FIR, the person, along with the seized articles and personal belongings, were kept in the custody of the Valiyathura Police Station.
4. These seized articles were produced before the Judicial First Class Magistrate- II, Thiruvananthapuram. Accused No.1 was the Clerk, in the custody of whom, by virtue of a judicial order, the articles were entrusted. Thereafter, on 17.07.1990, an application was made on behalf of Andrew Salvatore, seeking the release of his personal belongings, which came to be permitted.
5. Accordingly, the articles were released to accused No.2/appellant in SLP(Crl.)No.7896 of 2023, who was the junior lawyer of the counsel appearing for Andrew Salvatore. Pertinently, one of the items of the case property, i.e., the underwear of Andrew Salvatore, was also released along with the personal articles directed to be released by the Court. However, later, the underwear was returned by Accused No.2 to Accused No.1, which was forwarded to the Sessions Court and during trial, it was marked as Exhibit Mo2, in case Crime No.60 of 1990.
6. The Sessions Court convicted Andrew Salvatore and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 Lakh under Section 20(b)(11) of the NDPS Act, 1985. An appeal was preferred as Criminal Appeal No.20 of 1991 before the High Court of Kerala. During the course of hearing, a practical test was conducted, and it was found that the said underwear (Ex. Mo2) was not the size of the convicted person. Therefore, vide judgment and order dated 5th February, 1991, the High Court while acquitting Andrew Salvatore, observed that “there is a strong possibility of Mo2 being planted in an attempt to help the appellant to wriggle out of the situation. I hope that this matter will be duly enquired into and dealt with properly by the concerned authorities. A copy of this judgment be forwarded to the Chief Secretary for appropriate action.”
7. Subsequent to the judgment dated 5th February, 1991, the Vigilance Officer of the High Court of Kerala conducted an investigation and a report in this regard was submitted highlighting the necessity of a detailed investigation into the incident. This resulted in an Office Memorandum dated 27th September, 1994 being issued by the High Court requesting the District Court, Thiruvananthapuram, to direct the Sheristadar to lodge a First Information Report before the police.
8. Thereafter on 5th October, 1994, an FIR bearing No.215/94 came to be registered stating that – “As per the Order No.8384/94 dated 27.09.1994 issued by the Kerela High Court, a letter has been sent to the Trivandrum District Judge. As per the direction of the District Court, Trivandrum, the following charges have been imposed in SC No.147/90 for replacing Mo2 (Jetty), hence the accused cheated the Court by destroying the evidence and committed the offence.” It was further stated that the FIR pertains to replacing the Mo2 by an unknown person.
9. Subsequently, a chargesheet came to be filed on 24th March, 2006 against one Mr. Jose, the Thondi clerk of the Court and Advocate Antony Raju under Sections 120(B), 420, 201, 193, 217 and 34 of the Indian Penal Code2. Allegedly, these accused persons conspired together with the intention and preparation to cause the disappearance of evidence (Mo2). It stated that Accused No.1, Clerk handed over Mo2 to Accused No.2, Antony Raju, who made alterations thereto, ensuring that it would not fit Accused Andrew Salvatore. Cognizance of this final report came to be taken by Judicial First Class Magistrate Court-I, Nedumangad, as C.C. No.811/2014.
10. In the year 2022, both these accused persons preferred separate petitions (being Crl.M.C.No.7805/2022 & Crl.M.C.No.5261/2022) before the High Court of Kerela under Section 482 of the Cr.P.C. seeking quashing of the proceedings of Crime No.215 of 1994 and C.C.No.811/2014 on the ground that cognizance in the present case could not have been taken due to the bar created under Section 195(1)(b) of the Cr.P.C.
11. Resultantly, the impugned order came to be passed, allowing the petitions and thereby quashing the order taking cognizance in Crime No.215/1994 and all further proceedings pursuant to the same (C.C.No.811/2014) on the files of Judicial First Class Magistrate-I, Nedumangad. However, it directed the Registry of the Court to undertake appropriate measures in accordance with the procedure under Section 195(1)(b) of the Cr.P.C.
12. Impugning the said order passed by the High Court, two petitions have been filed before this Court. SLP(Crl.)No.4887 of 2024 is filed by M.R. Ajayan, stating that he is a socially spirited person and editor of “Green Kerela News”. He is said to be aggrieved by the quashing of the grievous allegations in the complaint by the High Court. SLP (Crl.)No.7896 of 2023 is filed by Mr. Antony Raju, who is Accused No.2, stating that the High Court could not have directed de novo steps to be taken against the accused on the allegations made out in the quashed proceedings. Accused No.1 has not assailed any order.
REASONING OF THE COURT BELOW
13. The High Court vide the impugned order, after considering the contentions of the parties, gave the following findings while allowing the petitions:
i. The release of article Mo2 (Jetty) from the custody of the Court, followed by its return after being altered, would be considered an act of criminal conspiracy under Section 120B, IPC and will also constitute an offence under Section 193, IPC. As the said article was released from the custody of the Court, and at that time, the same was unquestionably under ‘Custodiam Legis’, and therefore, the bar u/s 195(1)(b) would get attracted.
ii. The cognizance taken on the final report was not legally sustainable, as it contravened the legal requirements under Section 195 (1)(b) of the Code of Criminal Procedure. The Court categorically distinguished the decision of this Court in CBI v. M. Sivamani3 (2-Judge Bench) on the point that the procedural distinctions between judicial and administrative orders are underscored by this case, where the CB-CID had initiated the investigation based on a judicial order issued by the Madras High Court, rather than an administrative order, as in the present case.
ISSUES FOR CONSIDERATION
14. We have heard the learned counsel for the parties and have also perused the written submissions filed. The issues which arise for consideration of this Court are:
i. Whether M.R. Ajayan, appellant in SLP(Crl.)No.4887 of 2024 has the locus standi to prefer this SLP against the impugned order?
ii. Whether the High Court has rightly held the proceedings in question to be hit by the bar under Section 195(1)(b) Cr.P.C.?
iii. Independent of the above, whether the High Court could have ordered de novo steps to be taken against the appellant?
DISCUSSION AND ANALYSIS
15. Coming to the first issue at hand, concerning the locus standi of Mr. M.R. Ajayan, the appellant in SLP(Crl.)No.4887 of 2024, he has submitted that he is a socially spirited person and editor of “Green Kerela News”. He had also filed an intervention application before the High Court of Kerala, resisting the quashing petition.
16. Antony Raju, Respondent No.2 in SLP(Crl.)No.4887 of 2024/ appellant in the appeal arising out SLP(Crl.)No.7896 of 2023, has objected to the locus of Mr. M.R. Ajayan, submitting that third parties cannot be permitted to prefer appeal in criminal proceedings and has sought to place reliance on judgments of this Court in P.S.R. Sadhanantham v. Arunachalam & Anr. (5-Judge Bench)4, National Commission for Women v. State of Delhi & Anr. (2-Judge Bench)5 and Amanuallah & Anr. v. State of Bihar & Ors. (2-Judge Bench)6.
17. The locus of a private individual seeking the exercise of jurisdiction of this Court under Article 136 of the Constitution is no longer res integra. This Court in National Commission for Women (supra) has observed that an appeal by a private individual can be entertained, both sparingly and after due vigilance, following the exposition of law in Arunachalam (supra). Furthermore, in Amanuallah (supra), this Court dealt with this issue in detail and observed:
“19. The term “locus standi” is a Latin term, the general meaning of which is “place of standing”. Concise Oxford English Dictionary, 10th Edn., at p. 834, defines the term “locus standi” as the right or capacity to bring an action or to appear in a court. The traditional view of “locus standi” has been that the person who is aggrieved or affected has the standing before the Court that is to say he only has a right to move the Court for seeking justice. Later, this Court, with justice-oriented approach, relaxed the strict rule with regard to “locus standi”, allowing any person from the society not related to the cause of action to approach the Court seeking justice for those who could not approach themselves.
Now turning our attention towards the criminal trial, which is conducted, largely, by following the procedure laid down in CrPC. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him. The focal point, here, is that if the State fails in this regard and the party having bona fide connection with the cause of action, who is aggrieved by the order of the Court cannot be left at the mercy of the State and without any option to approach the appellate Court for seeking justice.
24. After considering the case law relied upon by the learned counsel for the appellants as well as the respondents, in the light of the material placed on record, we are of the view that the appellants have locus standi to maintain this appeal. From the material placed on record, it is clear that the appellants have precise connection with the matter at hand and thus, have locus to maintain this appeal.
The learned counsel for the appellants has rightly placed reliance upon the Constitution Bench judgment of this Court, namely, P.S.R. Sadhanantham [P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141 : 1980 SCC (Cri) 649] and other decisions of this Court in Ramakant Rai [Ramakant Rai v. Madan Rai, (2003) 12 SCC 395 : 2004 SCC (Cri) Supp 445], Esher Singh [Esher Singh v. State of A.P., (2004) 11 SCC 585 : 2004 SCC (Cri) Supp 113], Rama Kant Verma [Rama Kant Verma v. State of U.P., (2008) 17 SCC 257 : (2010) 4 SCC (Cri) 734].
Further, it is pertinent here to observe that it may not be possible to strictly enumerate as to who all will have locus to maintain an appeal before this Court invoking Article 136 of the Constitution of India, it depends upon the factual matrix of each case, as each case has its unique set of facts. It is clear from the aforementioned case law that the Court should be liberal in allowing any third party, having bona fide connection with the matter, to maintain the appeal with a view to advance substantial justice. However, this power of allowing a third party to maintain an appeal should be exercised with due care and caution. Persons, unconnected with the matter under consideration or having personal grievance against the accused should be checked. A strict vigilance is required to be maintained in this regard.”
(Emphasis supplied)
18. More recently, similar to the case at hand, in Naveen Singh v. State of U.P. (2-Judge Bench)7, while considering the locus of the Petitioner therein, this Court observed that since the allegations concerned tampering with the order of the Court, hence locus is not that important but, in fact, insignificant with the State not carrying forward the matter any further.
19. In view of the above expositions of law, we are of the considered view that the locus standi of the appellant in SLP(Crl.)No.4887 of 2024, does not come in the way of this Court hearing the same. The case at hand, which has been quashed by the High Court, involves serious allegations of interference with judicial processes which strike at the very foundation of both dispensation and the administration of justice. Therefore, the first issue is answered in the affirmative as it is incumbent upon this Court to check the correctness of the approach adopted by the High Court, and the locus of the appellant would not come in the way of the same.
20. We now proceed to examine the second issue, which pertains to the bar of prosecution under Section 195(1)(b) of the Cr.P.C. It reads as:
“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Penal Code, 1860, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code ( 45 of 1860), namely, section 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (I) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of Sub-Section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint;
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of Sub-Section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of Sub-Section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate;
Provided that- a. where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
b. where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”
21. The principles relating to prosecutions under Section 195 Cr.P.C., as expounded by this Court in Sachida Nand Singh v. State of Bihar (3-Judge Bench)8; M.S. Ahlawat v. State of Haryana & Anr. (3-Judge Bench)9; Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. (5-Judge Bench)10; Perumal v. Janaki (2-Judge Bench)11; and Sivamani (supra) are:
i. The procedure prescribed under Section 195 Cr.P.C. is mandatory in nature.
ii. The Section curtails the general right of a person and the general right of a Magistrate to register a complaint when the offences enumerated thereunder are committed.
iii. The Section deals with three distinct categories of offences: (1) contempt of lawful authority of public servants, (2) offence against public justice, and (3) offence relating to documents given in evidence.
iv. Broadly, the scheme of the Section requires that the offence should be such which has a direct bearing on the discharge of lawful duties of a public servant or has a direct correlation with the proceedings in a Court of justice, affecting the administration of justice.
v. The provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by the Court.
vi. To attract the bar under Section 195(1)(b), the offence should have been committed when the document was in “custodia legis” or in the custody of the Court concerned.
vii. The bar under Section 195(1)(b)(ii) cannot be thought to be applied when the forgery of a document has happened prior to its production in Court. The bar only applies in case the enumerated offence takes place after the production of the document or in evidence in any Court.
viii. High Courts can exercise jurisdiction and power enumerated under Section 195 on an application being made to it or suo-motu, whenever the interest of justice so demands.
ix. In such a case, where the High Court as a superior Court directs a complaint to be filed in respect of an offence covered under Section 195(1)(b)(i), the bar for taking cognizance, will not apply.
22. In the instant case, the High Court, on the basis of the above bar on taking cognizance, has quashed the order taking cognizance and proceedings emanating therefrom. We are of the considered view, that this approach was not correct for the reasons set out below.
23. At this stage, we must reiterate and re-emphasize the genesis of the proceedings in this case. On a perusal of the FIR, it is clear that based on the letter issued by the Kerala High Court dated 27th September, 1994 and by the District Judge, Trivandrum, the offence was registered against the accused persons. The criminal proceedings clearly do not arise from a complaint by a private individual.
24. Elaborating the law to the attending facts, we notice that this Court in Perumal (supra) had observed:
“19. Therefore, all that sub-section (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to another court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195(1), every appellate Court competent to entertain the appeals either from decrees or sentence passed by the original Court is treated to be a court concurrently competent to exercise the jurisdiction under Section 195(1).
The High Courts being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suo motu whenever the interests of justice demand.”
25. The above exposition came to be followed and expanded by this Court in Sivamani (supra), wherein it was observed:
“12. While the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person. The expression “the public servant or his administrative superior” cannot exclude the High Court. It is clearly implicit in the direction of the High Court quoted above that it was necessary in the interest of justice to take cognizance of the offence in question.
Direction of the High Court is on a par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. The view taken by the High Court will frustrate the object of law and cannot be sustained.”
(Emphasis supplied)
26. The High Court differentiated the judgment of this Court in Sivamani (supra), to the facts of the case herein, stating that in this case, the final report came to be filed on the basis of an administrative order and not a judicial one. We are unable to agree with the reasoning of the High Court on this aspect.
27. As discussed above, the initiation of the present proceedings in the present case, was from the judgment and order dated 5thFebruary, 1991 of the Kerala High Court in Criminal Appeal No. 20 of 1991, in acquitting Andrew Salvatore directing the matter of planting of Mo2 be positively looked into. This was followed by an investigation by the vigilance officer of the Court. Therefore, in the impugned order, the High Court has erroneously observed that there is no judicial order concerning the present proceedings.
28. The High Court also distinguished Sivamani (supra) on the ground that the public interest present therein is absent in the present case. This is the second aspect that must be clarified. The alleged act is a glaring occurrence where the process of criminal prosecution stands interfered with, impugning upon the sanctity of judicial proceedings, resulting in a travesty of justice. Such actions not only erode public trust in the judicial system but compromise the principles of the rule of law and fairness, which are essential for the justice delivery system.
Such incidents strike at the foundation of the independence and integrity of the judicial process, hence, it cannot be said that there is a lack of public interest herein. In the peculiar circumstances obtained in this case where the accused allegedly received a material object in question, from the judicial custody, despite there being no specific order for release thereof, and subsequently tinkered/ assisted in tinkering with the same and thereafter substituted it for the original.
29. Furthermore, on a perusal of the judgment of this Court in Sivamani (supra) and the statutory provision, there is no distinction between a judicial or administrative order by a “Court to which that Court is subordinate.”
30. The second question is, accordingly, answered in the negative.
31. Lastly, independent of the above, this Court must address the ground of challenge to the impugned order raised by the appellant – Antony Raju, in the appeal arising out of SLP(Crl.)No.7896 of 2023. He has submitted that the High Court could not have ordered a de novo trial against him, being impermissible in law, as has been so directed to be done in paragraph 28 of the impugned order. In our view, it cannot be said that the High Court, in the attending circumstances, erred in doing so.
32. On this aspect, we must make reference to the judgment of this Court in Nasib Singh v. State of Punjab (3-Judge Bench)12, wherein it was stated:
“33. The principles that emerge from the decisions of this Court on retrial can be formulated as under:
33.1. The appellate Court may direct a retrial only in “exceptional” circumstances to avert a miscarriage of justice….
33.6. The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice:
(a) The trial court has proceeded with the trial in the absence of jurisdiction;
(b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and
(c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.”
33. More recently, in Sunita Devi v. State of Bihar & Anr. (2-Judge Bench)13, this Court summarized the power of an Appellate Court to order retrial:
“8. Every trial is a march towards the truth. It is the primary duty of the Court to search for the truth using the procedural law as its tool. Such a procedural law may have a substantive part extending certain inalienable rights to both, the accused and the victim. By non-compliance of the procedural law, justice cannot be allowed to derail. Anyone, who complains of an unfair trial, is duty bound to satisfy the Court that he stands prejudiced by it. This does not mean that a Court can be lackadaisical in following the rules and procedures meant to ensure justice.
9. A fair trial is the heart and soul of criminal jurisprudence. The principle of democracy lies in a fair trial. It is not only a statutory right, but also a human right, which would be violated when the safeguards provided under the Statute are not followed. The absence of a fair trial would seriously impair and violate the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India. What is important to be seen is the existence of a failure of justice, which is obviously one of fact. A mere violation per se would not vitiate the trial, especially when the degree of substantivity exhibited in a statute is minimal.
27. An Appellate Court has got ample power to direct re-trial. However, such a power is to be exercised in exceptional cases. The irregularities found must be so material that a re-trial is the only option. In other words, the failure to follow the mandate of law must cause a serious prejudice vitiating the entire trial, which cannot be cured otherwise, except by way of a re-trial. Once such a re-trial is ordered, the effect is that all the proceedings recorded by the Court would get obliterated leading to a fresh trial, which is inclusive of the examination of witnesses.”
(Emphasis supplied)
34. Applying the above principles to the case at hand, the alleged forgery of evidence in a criminal investigation has resulted in acquittal in the NDPS case and, thereafter, an FIR has been registered, in the circumstance referred to hereinbefore. But then, the interference by the High Court in quashing the criminal proceedings was unwarranted.
35. Therefore, in view of the above the impugned order is set aside. The order taking cognizance in Crime No.215/1994 and all further proceedings pursuant to the same (C.C No 811 of 2014) are restored on the files of Judicial First Class Magistrate-I, Nedumangad.
36. Before parting with the present appeals, there is another aspect that this Court must be cognizant of. The proceedings in the case at hand emanate from nearly two decades ago. Therefore, in the interest of justice, we deem it appropriate to direct the Trial Court to conclude the trial within a period of one year from today. The accused shall appear before the Trial Court on 20th December 2024 or on the next working day of the Court concerned. The Registry to take follow-up steps.
37. The appeal arising out of SLP(Crl.)No.4887 of 2024 is allowed in the aforesaid terms. The appeal arising out of SLP (Crl.)No.7896 of 2023 is dismissed. All pending applications, if any, are disposed of.
………………..J. (C.T. Ravikumar)
………………..J. (Sanjay Karol)
New Delhi,
November 20, 2024
