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Saturday, March 29, 2014

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.
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