Research › Browse › Judgment

Kerala High Court · body

1996 DIGILAW 300 (KER)

Rajendran v. Union of India

1996-07-19

K.S.RADHAKRISHNAN

body1996
Judgment :- K.S. Radhakrishnan, J. Chief Judicial Magistrate, Ernakulam, accepted the report submitted by the Central' Bureau of Investigation, hereinafter called the 'CBF, in what is known as ISRO Espionage case, and discharged six accused persons under S.173(4) of the Criminal Procedure Code. 2. Petitioners are the convenor of Bharathiya Janatha Patty's Legal Cell, Kerala State, Secretary of All India Lawyers' Unit, Ernakulam District Committee, and a retired Asst. Central Intelligence Officer Gr. I respectively. They arc aggrieved by the report of the CBI, and the order of the learned Chief Judicial Magistrate and they have come up before this Court invoking Articles 226 and 227 of the Constitution of India and Ss.397 and 401 of the Code. They are also seeking a direction to the State of Kerala to order reinvestigation of Crime No. 246 of 1994 of Vanchiyoor Police Station and to entrust the investigation with top officers of the Kerala Police and higher officers of Central Intelligence Bureau, Research Wing. 3. On the basis of a written compliant filed by one Vijayan, Inspector, Special Branch, Crime No. 246 of 1994 was registered at the Vanchiyoor Police Station, Thiruvanthapuram, on 13.13.1994 against Fauziya Hussain and Mariyam Rasheeda under Ss.3 and 4 of the Official Secrets Act, 1923 read with S.34IPC for charges of espionage. Crime was detected on 20.10.1994 while questioning Mariyam Rasheeda, a foreign national, in Crime No. 225 of 1994 relating to her unauthorised over-stay in India. During the course of examination, it was revealed that Fauziya Hussain and Mariyam Rasheeda in collusion with some others, both Indians and foreigners, have involved in actions prejudicial to the sovereignty and integrity of India. 4. On a request made by the Kerala Government, investigation of Crime No. 225/ 94 and Crime No. 246 of 1994 were entrusted with CBI for investigation. Case R.C. No. 10/S/94 under S.14 and Paragraph 7 of the Foreigners Act, 1948 relating to Crime No. 225 of 1994 and R.C. No. 11/S/94 under S.120-B read with S.3 to 5 of the Official Secrets Act, read with S.34 IPC relating to Crime No. 246 of 1994 were registered on 3.12.1994 by the CBI, New Delhi. After taking over the investigation in Crime No. 2257 94, a charge sheet was filed in Court on 17.12.1994 against Mariyam Rasheeda. However, she was acquitted vide judgment dt.14.11.1995 by the Chief Judicial Magistrate, Ernakulam 5. After taking over the investigation in Crime No. 2257 94, a charge sheet was filed in Court on 17.12.1994 against Mariyam Rasheeda. However, she was acquitted vide judgment dt.14.11.1995 by the Chief Judicial Magistrate, Ernakulam 5. Before taking over Crime No. 246/94 by the CBI investigation was conducted by Special Branch of Kerala Police for a few days and later the investigation was handed over to Special Investigation team headed by DIG (Crimes), Trivandrum. During the course of investigation, Kerala Police arrested 6 accused persons, who are respondents 3 to 7 in Crl. R.P.No. 438 of 1996. All accused persons while in the custody of Kerala Police, except one Sasikumaran, allegedly made incriminating statement before the Crime Branch admitting their involvement in the espionage activities. 6. After taking over of the investigation by the CBI of Crime No. 246/94, all the above-mentioned 6 persons were interrogated and they denied the statements purported to have been made before the Kerala Police, Crime Branch. CBI conducted a detailed investigation and on the basis of the evidence on record, both oral and documentary, they came to the conclusion that allegations of espionage were not proved and have been found to be false. A final report to that effect was filed by the Deputy Superintendent of Police, CBI/SIC.II/New Delhi before the Chief Judicial Magistrate, Ernakulam, under S.173(2)(ii) of the Code. Chief Judicial Magistrate agreed with the report and accused persons were discharged cancelling the bail bonds executed by them. Permission was also granted to the Officer concerned to return the seized documents. Superintendent of Central Prison, Viyyur, was also informed to discharge accused 1 and 2. 7. The main contention raised by counsel for the petitioners was that Chief Judicial Magistrate has committed grave error in not issuing notice to the first informant, one Vijayan, before deciding to drop proceedings, under S.173 of the Code. Even the request made by the first informant for an opportunity of being heard was denied by the learned Chief Judicial Magistrate. Petitioner relied on the decision of the Supreme Court in Bhagavant Singh v. Commissioner of Police, AIR 1985 SC 1285, and contended that the Supreme Court has cautioned all courts of the necessity of giving notice to the first informant in ease the Magistrate decides to refer the case. Petitioner relied on the decision of the Supreme Court in Bhagavant Singh v. Commissioner of Police, AIR 1985 SC 1285, and contended that the Supreme Court has cautioned all courts of the necessity of giving notice to the first informant in ease the Magistrate decides to refer the case. It is also their case that learned Magistrate has not applied his mind while accepting the report and referring the case. According to petitioners, the evidence collected by the Special Team of Kerala Police, which conducted investigation earlier, would clearly prove the culpability of accused persons. Allegations were also raised against CBI Director of suppressing materials so as to shield accused persons. Various infirmities in the report of the CBI were also highlighted. Dishonest intention was also attributed on the part of the CBI to support accused persons due to high political pressure and extraneous consideration. They also questioned the jurisdiction of the CBI to conduct the enquiry, since no valid notification was issued by the Kerala Government entrusting the case with the CBI. Petitioners also placed reliance on the decisions of the Supreme Court reported in A.R. Antulay v. R.S. Nayak, AIR 1984 SC 718 wdSheoNandan Paswan v. State of Bihar, AIR 1987 SC 877, and contended that even if petitioners are third parties, since the offence alleged is affecting the security of the nation, they have got sufficient locus standi to maintain these petitions. 8. When the cases came up for admission, notice was issued to learned Advocate General, CBI, Union of India and Central Intelligence Bureau. I heard counsel for the petitioners, learned Advocate General, senior counsel appearing for the CBI, as well as Union of India and Director, Intelligence Bureau. 9. Counsel for the CBI questioned the locus standi of the petitioners moving these Petitions under Arts.226 and 227 of the Constitution of India and under Ss.397 and 401 of the Code. It is argued that the order passed by the Chief Judicial Magistrate is a judicial Order, and therefore, not liable to be challenged before this Court by third parties on the basis of public interest litigation. 10. The question whether judicial orders of subordinate courts would be amenable to writ jurisdiction under Arts.226 and 227 of the Constitution of India is more res Integra. 10. The question whether judicial orders of subordinate courts would be amenable to writ jurisdiction under Arts.226 and 227 of the Constitution of India is more res Integra. Supreme Court in Ujjam Bai v. State of U.P., AIR 1962 SC 1621 observed that the characteristic attribute of a judicial act or decision is that it binds, whether it be a right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal, unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. A Full Bench of the Patna High CourimSurendra Singh v. State of Bihar, 1991 Crl.L.J. 3040 held judicial orders passed by the criminal courts are amenable to the jurisdiction of the High Court under Art.227 of the Constitution of India, but only in very exceptional cases. 11. Supreme Court in Naresh v. State of Maharashtra, AIR 1967 SC 1 held whether the findings of fact recorded by the judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided, if the party aggrieved by the decision of the judge, takes the matter before the appellant Court. But, it is singularly inappropriate to assume that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights-of citizens under Art.19(1). What the judicial decision purports to do is to decide the controversy between the parties. It was further observed that if the decision of a court on a question is erroneous, it can of course be corrected by appeal or revision, as may be permissible, under law, but until the adjudication by a superior court on such point is set aside, by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction. 12. Unlike Art.226, the High Court acting under Art.227 of the Constitution of India, is not much concerned with the endorcement of legal rights of parties. In other words, while exercising powers under Art.226 primary duty of the court is to enforce the legal right of petitioners. 12. Unlike Art.226, the High Court acting under Art.227 of the Constitution of India, is not much concerned with the endorcement of legal rights of parties. In other words, while exercising powers under Art.226 primary duty of the court is to enforce the legal right of petitioners. However, while exercising Art.227 of the Constitution of India, the primary duty of the Court is to address itself to its obligations as custodian of administration of justice. Power under Art.226 can be normally exercised only when the affected parties approach it. The power of superintendence under Art.227 can be exercised suo motu. Art.227 is extra-ordinary in nature and cannot be claimed as of right by any party. The supervisory jurisdiction under Art.227 is limited to see that an inferior court or Tribunal functions within its limit of its authority, and not to correct an error apparent on the face of the record much less an error of law. It will not revise or revive the evidence upon which the determination of the inferior court or Tribunal purports to be based or to correct errors of law in the decision. 13. In the instant case, this Court is called upon to consider the correctness or otherwise of the investigation conducted by the CBI. Appreciation of evidence is the function of the criminal Court. Criminal Court is vested with that power either to accept a report submitted by the investigating officer or reject it. Criminal Court can accept the report and drop the proceeding; it may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or direct further investigation to be made by Police under sub-s.(3) of S.156. In other words, appreciation of documents, affidavits, and the evidence collected by the investigating officer, and dealing with various disputed questions of facts, do not come within the jurisdiction of Art.226 and 227 of the Constitution of India. 14. In other words, appreciation of documents, affidavits, and the evidence collected by the investigating officer, and dealing with various disputed questions of facts, do not come within the jurisdiction of Art.226 and 227 of the Constitution of India. 14. When the report of the police under S.173 of the Code has been forwarded to the Magistrate, after completion of investigation and the material collected by the investigating officer, it has to pass through the judicial scrutiny Of the Magistrate or this Court in revision, and therefore, High Court will do well in not to undertake quashing of the proceedings in exercise of inherent jurisdiction and supervisory jurisdiction under Arts.226 and 227 of the Constitution of India. As held by the Supreme Court in State of Bihar v. P.P. Sharma, AIR 1991 SC 1260, appreciation of evidence is the function of the criminal court, and the judge who is seized with the matter. When a special machinery is provided under the Code to deal with various offences, and inherent power is provided under S.397, this Court sitting under Arts.226 and 227 is not expected to go into the correctness or other wise of the decision taken by the Chief Judicial Magistrate under S.173 of the Code. 15. Counsel for the petitioners contended even assuming that petitioners have no locus standi stricto sensu, this Court has got suo mote power 10 take appropriate action and to quash the order of the Chief Judicial Magistrate in the interests of justice. In very exceptional cases alone, High Court will exercise the power under Art.227 of the Constitution of India, generally where appeals or revisions or applications under S.482 of the Code cannot be entertained by the High Court for setting aside such orders. In cases where a revision is provided under S.397 of the Code, it would not come within the exceptional circumstances to warrant interference under Art.227 of the Constitution of India, since the power of superintendence is not meant to circumvent the statutory remedy. Arts.226 and 227 of the Constitution of India are very wide in their scope but the very plenitude of the power conferred by them requires a cautious exercise of them. 16. Revisional, power under S.397 of the Code is couched in words of widest amplitude. Arts.226 and 227 of the Constitution of India are very wide in their scope but the very plenitude of the power conferred by them requires a cautious exercise of them. 16. Revisional, power under S.397 of the Code is couched in words of widest amplitude. Court can call for the records under S.397 and examine the same for the purpose of satisfying itself about the legality, propriety or correctness of the order passed and also about the regularity of its proceedings. Considering the scope of S.397 of the Code, Supreme Court in its decision in Janatha Dal v. H.S. Chowdry,1992 (4) SCC 305, held that High Court exercises the general power of superintendence on actions of courts subordinate to it. In exercise of its discretionary power, High Court can call for the records from the Court subordinate to it and if it so satisfies that there is some irregularity in the order passed by the Magistrate, Court can revise it. S.401 of the Code also confers supervisory power on the High Court. The object of superior court is to exercise supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand, in some undeserved hardship to individuals. Controlling power of High Court is discretionary and it must be exercised in the interests of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances, which vary greatly from case to case. 17. Mala fides have been attributed by the petitioners against some officials of the CBI, with regard to the meeting the then Prime Minister of India had with the then Chief Minister at Trivandrum, etc. According to the petitioners, this raises a suspicion. No materials have been produced before this Court to examine those allegations or to conclude that investigating officer of the CBI was in any way influenced by political pressure. Investigating officer has wide power of amplitude and he has to investigate the case with the sole object of investigating allegations. In the course of investigation, he has to take into consideration the relevant materials in rel ation to or in connection with the case. Investigating officer has wide power of amplitude and he has to investigate the case with the sole object of investigating allegations. In the course of investigation, he has to take into consideration the relevant materials in rel ation to or in connection with the case. Because investigating officer rules out certain documents or disagrees with the earlier investigation conducted by another agency is no ground to conclude that he is acting mala fide, especially when the said report has to pass through the judicial scrutiny of the Magistrate. As held by the Supreme Court in State of Bihar v. P. P. Sharma, AIR 1991 SC 1260, the allegations of mala fide cause deep incursion on the Psychic attitude to uncover the crime and on the effectivity of the investigation. Trie treat of mala fide would deter an honest and efficient investigating officer to probe an indepth investigation into the crime. The result would be that the crime remains undetected and injury is irredeemable to the society. Therefore, before countenancing such allegations of mala fide or bias it is salutory and enormous duty and responsibility of the Court to insist upon making specific and definite allegations of mala fide. In this case, petitioners have not shown that the report submitted by the CBI is vitiated by mala fide. 18. Petitioners are not parties to any of the proceedings. They are neither first informant nor complainant. They are general public. Their grievance is that CBI has not conducted proper investigation, and they wanted a re-investigation. Administration of criminal justice as a matter of general policy, a function which the State performs and private parties who may be inspired by a feeling or spirit either national or otherwise, ordinarily not encouraged except when for special reasons the cause of justice so demands. High Court therefore, ordinarily, declines to interfere with the orders of subordinate courts except where for some exceptional reasons it considers it proper to do so in the larger interests of justice. 19. While exercising suo mote powers by the High Court under Art.227 of the Constitution of India or under S.397 or 401 of the Code at the instance of third parties, who may be instrumental in invoking its jurisdiction, would not loathe them with locus standi, to insist that they should be heard. 19. While exercising suo mote powers by the High Court under Art.227 of the Constitution of India or under S.397 or 401 of the Code at the instance of third parties, who may be instrumental in invoking its jurisdiction, would not loathe them with locus standi, to insist that they should be heard. Those powers do not create any right on third parties, but only conserve the power of the High Court, to see that justice is done in accordance with the recognised rules of criminal justice, and there is no miscarriage of justice. Barring a law exceptions, in criminal matters, the party who is treated as the aggrieved party is the State, which is the custodian of the social interests of the community at large. It is the State duty to take steps to book the persons who have acted against the interests of the community. 20. Petitioners have brought to the knowledge of this Court the decisions of the Supreme Court in A R. Antulay v. R.S. Nayak, AIR 1984 SC 718; and Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877. Aforesaid decisions are not applicable to the facts of the case on hand. Criminal proceedings are instituted for maintaining stability and orderliness in society and right is given to citizen to set the machinery of criminal law in motion for the purpose of bringing the offenders to book. In other words, the locus standi of any citizen to lodge a FIR or file complaint and set the machinery of criminal law in motion cannot be questioned. Principles laid down in the above-mentioned cases are not applicable to the facts of the case, since the CBI has already conducted a detailed investigation as directed by the State Government and submitted its report before the Chief Judicial Magistrate Court. In other words, the said report was under judicial scrutiny. State Government had also taken care and caution to see that the investigation is conducted with utmost urgency and impartiality. It is on the basis of the request of the Government of Kerala that the investigation of Crime No. 246 of 1994 was entrusted with the CBI. Since the incidence of case spread over other States, foreign locations and considering the special nature, the same was transferred to CBI who are better equipped to conduct the investigation. It is on the basis of the request of the Government of Kerala that the investigation of Crime No. 246 of 1994 was entrusted with the CBI. Since the incidence of case spread over other States, foreign locations and considering the special nature, the same was transferred to CBI who are better equipped to conduct the investigation. Just like citizens have got interest in due administration of justice, the State Government has also got paramount duty in due administration of Justice. In the instant case, learned Advocate General submitted that the State Government has now decided to conduct a re-investigation and issued notifications dt. 27.6.1996 and 8.7.1996 to that effect, withdrawing the earlier notification entrusting the matter with CBI, so as to conduct a further investigation by a Special Team of Police Officers. Therefore, in any view, as things stand today, as far as the petitioners are concerned, their prayer for reinvestigation stands redressed. 21. Sri. Vijayan who even according to petitioners is the first informant has himself filed Crl. R.P. No. 437 of 1996 under Ss.397 and 401 of the Code before this Court complaining that he was not given due notice before the Magistrate referring the case. It is also his case that he was not given an opportunity of being heard even though he made a specific request for the same before the Magistrate. Therefore, while considering the said revision, which is preferred by the first informant, though his status is disputed by the CBI, this Court in exercise of its revisional power can satisfy itself as to the legality, propriety or correctness of the order passed by the Chief Judicial Magistrate. Since this Court is already seized of the matter in Crl.R.P.No. 437 of 1996, at the instance of the first informant, I am of the view that none of the legal rights of the petitioners is affected so as to be corrected by this Court under Art.226 and 227 of the Constitution of India or under Ss.397 and 401 of the Code. I am, therefore, of the view that the case projected by the petitioners is not of extraordinary nature to be interfered with by this Court in exercise of its suo mote power, either under the Constitutional provisions, or under the power conferred on this Court under Ss.397 and 401 of the Code. All the Petitions are accordingly dismissed.