Head Note: 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. 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
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 ofIndia Ltd.
(NAFED), on deputation on 15.07.2003 as anExecutive 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
nonagricultural 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 leveled
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 leveled 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.
