HONNAIAH T.H. versus STATE OF KARNATAKA AND OTHERS on 4 August 2022

[2022] 6 S.C.R. 1108

SUPREME COURT REPORTS

[2022] 6 S.C.R.

HONNAIAH T.H.

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STATE OF KARNATAKA AND OTHERS

(Criminal Appeal No. 1147 of 2022)

BAUGUST 04, 2022

[DR DHANANJAYA Y CHANDRACHUD ANDJ B PARDIWALA, JJ]

Code of Criminal Procedure, 1973 – ss.161. 397(2) –Prosecution csae was that FIR was registered on 26 December 2016Cfor offences punishable under ss.143, 147, 148, 504, 323, 302,307, 114 and 149 of the IPC – According to the FIR, on 25December 2016, the accused came to the village of the appellantarmed with knives and rods, and abused and assaulted some of thevillagers – A few of the accused allegedly assaulted and stabbedDthe appellant, his elder brother and another villager with knives –The grievously injured persons were first taken to the GovernmentHospital at Maddur – The injured were referred to Mandya DistrictHospital from where they were further transferred to K R Hospital,Mysore – Appellant claimed that the FIR was registered on theinformation furnished by him, making him the informant – DuringEtrial, PW 2 (doctor of Maddur Government Hospital), stated thatthe appellant and another injured witness were brought by the policeto Maddur Government Hospital and that he had referred both thepatients to Mandya District Hospital for further treatment – PW 4,working at K R Hospital, Mysore stated that the statement of theFappellant was recorded in his presence by the PSI Maddur on 26December 2016 – During the course of his examination-in-chief,the Public Prosecutor wanted to mark the complaint together withthe signature of the appellant as an exhibit – An objection wasraised by the defense counsel on the ground that in view of thestatement of PW 2, during the course of his examination, theGstatement of the appellant is referable to s.161 of the CrPC andcannot be marked as an exhibit – Trial court refused to mark thecomplaint on the basis of the statement by PW 2, and on the groundthat PW 7 did not depose in his evidence that he gave the complaintto the police – The State did not pursue its remedies against theHorder of the trial court – Appellant instituted a criminal revision under ss.397(1) and 401 of the CrPC before High Court – HighCourt upheld the order of the trial court, holding that the appellantas the de-facto complainant had no locus standi to file the revisionpetition and the powers of revision cannot be exercised in relationto an interlocutory order and therefore dismissed the revision petitionin view of the bar contained in s.397(2) of CrPC – Hence instantappeal – Held: On the basis of the deposition of PW 4, it primafacie appears that the statement of the appellant was recorded on26 December 2016 at K R Hospital, Mysore in the presence of PW4 – On the basis of the statement of PW7, intimation about the offencewas received at PS Maddur following which the FIR was registeredon 26 December 2016 – Thus, the basis of the order of the trialcourt, which has been upheld by the High Court, namely, that thestatement of the appellant is a statement under s.161 CrPC iserroneous – The statement of the appellant, in fact, was the basison which the FIR was registered – Hence, it was legitimately opento the prosecution to have the statement proved and marked as anexhibit during the course of the trial – There would be a seriousmiscarriage of justice in the course of the criminal trial if thestatement were not to be marked as an exhibit since that forms thebasis of the registration of the FIR – The order of the trial judgecannot in these circumstances be treated as merely procedural or ofan interlocutory in nature since it has the potential to affect thesubstantive course of the prosecution.

Code of Criminal Procedure, 1973 – s.397(2) – RevisionalJurisdiction of High Court in criminal matter – Scope of – Therevisional jurisdiction u/s.397 of CrPC can be exercised againstthe final order of acquittal or conviction, or an intermediate ordernot being interlocutory order where the interest of the public justicerequires to subvert manifest illegality and to prevent grossmiscarriage of justice – In the present case, the order of the trialcourt declining to mark the statement of the informant as an exhibitis an intermediate order affecting important rights of the partiesand cannot be said to be purely of an interlocutory nature – Therevisional jurisdiction u/s 397 r/w 401 of CrPC is a discreationaryin nature and can be exercised suo motu and there can be no baron the third party invoking such jurisdiction inviting the attentionof the High Court that an occasion to exercise the power has arisen– Since the order of the trial court is not interlocutory in nature AB

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Aand that the bar u/s.397(2) of the CrPC in inapplicable, a criminalrevision filed by an appellant-informant against the said order ofthe trial court was maintainable.

Allowing the appeal, the Court

HELD: 1. There would be a serious miscarriage of justiceBin the course of the criminal trial if the statement were not to bemarked as an exhibit since that forms the basis of the registrationof the FIR. The order of the trial judge cannot in thesecircumstances be treated as merely procedural or of aninterlocutory in nature since it has the potential to affect theCsubstantive course of the prosecution. The revisional jurisdictionunder Section 397 CrPC can be exercised where the interest ofpublic justice requires interference for correction of manifestillegality or the prevention of gross miscarriage of justice. A courtcan exercise its revisional jurisdiction against a final order ofacquittal or conviction, or an intermediate order not beingDinterlocutory in nature. Any order which substantially affects theright of the parties cannot be said to be an “interlocutory order”.[Para 12][1116-B-D]

Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460[2012] 7 SCR 988; Sheetala Prasad v. Sri Kant (2010)E2 SCC 190 : [2009] 16 SCR 686; KK Patel v State ofGujarat (2000) 6 SCC 195 : [2000] 1 Suppl. SCR 312;Amar Nath v. State of Haryana (1977) 4 SCC 137 :[1978] 1 SCR 222; Madhu Limaye v. State ofMaharashtra (1977) 4 SCC 551 : [1978] 1 SCR 749 – relied on.F

2. In the present case, the objection taken by the defensecounsel (which was upheld by the trial judge) that the statementof the informant is a statement under Section 161 CrPC travelsto the root of the case of the prosecution and its acceptance wouldGsubstantially prejudice the case of the prosecution. According tothe charge sheet, the statement of the appellant/ informant formedthe basis of the FIR and set the criminal law in motion. Rejectionof the prayer of the Public Prosecutor to mark the statement asan exhibit would possibly imperil the validity of the FIR. In thisbackground, the order of the trial court declining to mark theH

statement of the informant as an exhibit is an intermediate orderaffecting important rights of the parties and cannot be said to bepurely of an interlocutory nature. In the present case, if thestatement of the appellant/ informant is not permitted to bemarked as an exhibit, it would amount to a gross miscarriage ofjustice. [Para 13][1117-G; 1118-A-B]

3. The challenge to the maintainability of the revision atthe instance of the appellant impugning an order passed duringthe pendency of the trial must also be rejected. The revisionaljurisdiction of a High Court under Section 397 read with Section401 of the CrPC, is a discretionary jurisdiction that can beexercised by the revisional court suo motu so as to examine thecorrectness, legality or propriety of an order recorded or passedby the trial court or the inferior court. As the power of revisioncan be exercised by the High Court even suo moto, there canbe no bar on a third party invoking the revisional jurisdiction andinviting the attention of the High Court that an occasion toexercise the power has arisen. [Para 14][1118-C-E]

4. The view of the High Court that a victim/ complainantneeds to restrict his revision petition to challenging final orderseither acquitting the accused or convicting the accused of a lesseroffence or imposing inadequate compensation (threerequirements mentioned under Section 372 CrPC) isunsustainable, so long as the revision petition is not directedagainst an interlocutory order, an inbuilt restriction in Section397(2) of the CrPC. In the present case, the appellant filed acriminal revision as his interests as an informant and as an injuredvictim were adversely affected by the trial court rejecting theprayer to mark the statement of the informant as an exhibit. Havingheld that the order of the trial court is not interlocutory in natureand that the bar under Section 397(2) of the CrPC in inapplicable,a criminal revision filed by an informant against the said order ofthe trial court was maintainable. [Para 15][1119-A-C]

K Pandurangan v. SSR Velusamy (2003) 8 SCC 625;Sheetala Prasad v. Sri Kant (2010) 2 SCC 190 : [2009]16 SCR 686; Menoka Malik v. State of West Bengal(2019) 18 SCC 721 – relied on.

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ACase Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1147 of 2022.DFrom the Judgment and Orders dated 20.12.2021 of the HighCourt of Karnataka at Bengaluru in Criminal Revision Petition No. 1384of 2019.

Senthil Jagadeesan, Ms. Remya Raj, Ms. Sonakshi Malhan,Ms. Sajal Jain, Advs. for the Appellant.

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Shubhranshu Padhi, Ashish Yadav, Vishal Banshal, Ms. RajeshwariShankar, Anil V. Katarki, Anil C. Nishani, Ms. Veena Katarki, T. R. B.Sivakumar, Advs. for the Respondents.

The Judgment of the Court was delivered by FDR DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from a judgment dated 20 December 2021 ofa Single Judge of the High Court of Karnataka by which the criminalrevision filed by the appellant was dismissed on the ground ofGmaintainability. The appellant, who is the original informant moved thisCourt.

3. It has been alleged that a dispute occurred on 25 December2016 between the accused and villagers of Thoppanahalli village inMaddur, Karnataka on the allocation of water. The dispute is alleged toHhave led to a series of altercations and culminated in the murder of two

persons and injuries to several others, including the appellant. A FirstInformation Report[1] under Section 154 of the Code of Criminal Procedure1973[2] was registered on 26 December 2016 at PS Maddur, DistrictMandya, being Crime No. 0582 of 2016, for offences punishable underSections 143, 147, 148, 504, 323, 302, 307, 114 and 149 of the IndianPenal Code.[3] According to the FIR, around 1830 hours on 25 December2016, the accused came to the village of the appellant armed with knivesand rods, and abused and assaulted some of the villagers. A few of theaccused allegedly assaulted and stabbed the appellant, his elder brother,Mutthuraju, and another villager named Nandeesha with knives. Thegrievously injured persons were first taken to the Government Hospitalat Maddur. The doctors at the hospital referred the injured to MandyaDistrict Hospital from where they were further transferred to K RHospital, Mysore. Both Nandeesha and Mutthuraju succumbed to theinjuries.

4. The appellant claims that the FIR was registered on theinformation which was furnished by him, making him the informant. Uponinvestigation, a charge-sheet was submitted under Section 173 CrPCbefore the competent court and the case was committed for trial.

5. During the course of the trial in SC No. 82 of 2017, theprosecution examined seven prosecution witnesses.[4] PW 2, DrChikkaboregowda stated that the appellant and another injured witnesswere brought by the police to Maddur Government Hospital at 1925hours on 25 December 2016 and that he had referred both the patientsto Mandya District Hospital for further treatment. PW 4, Dr Manjoj Pworking at K R Hospital, Mysore stated that the statement of the appellantwas recorded in his presence by the PSI Maddur at 0115 hours on 26December 2016.

6. The appellant was examined as PW 7. During the course of hisexamination-in- chief, the Public Prosecutor wanted to mark the complainttogether with the signature of the appellant as an exhibit. An objectionwas raised by the defense counsel on the ground that in view of thestatement of PW 2, during the course of his examination, the statementof the appellant is referable to Section 161 of the CrPC and cannot bemarked as an exhibit.

1 “FIR”2 “CrPC”

3 “IPC”4 “PW”

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A7. The trial court in its order dated 3 October 2019 refused tomark the complaint on the basis of the statement by PW 2, and on theground that PW 7 did not depose in his evidence that he gave the complaintto the police. The trial court observed:

“The witness has not deposed in his evidence that he has givenBcomplaint to the police. He has deposed that he has givenstatement while he was taking treatment in the hospital in presenceof the Investigating Officer and the Doctor. On the basis of theabove evidence of P.W.2, the statement of this witness cannot bemarked by treating the same as First Information Report. And, asrequested by the learned Special Public Prosecutor, the statementCof the witness and his signature cannot be marked as ‘exhibit’,since the witness has stated that he has given his statement.”

8. The State did not pursue its remedies against the order of thetrial court. The appellant instituted a criminal revision under Sections397(1) and 401 of the CrPC. The High Court by the impugned judgmentDdated 20 December 2021 upheld the order of the trial court, and dismissedthe revision petition on the ground of maintainability. The High Courtobserved that the appellant as the de- facto complainant had no locusstandi to file the revision petition. The relevant observations of the HighCourt are extracted below:

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“12.The State has left the matter as it is. However, it is thecomplainant who is now agitating before this Court bychallenging the said order. The word ‘victim’ is defined inSection 2(wa) of the Cr.P.C. which reads as under:

“victim” means a person who has suffered any lossor injury caused by reason of the act or omissionfor which the accused person has been charged andthe expression “victim” includes his or her guardianor legal heir; F

13. In a given case, it also includes the rights of the complainantGwhich is carved out under Section 372 of Cr.P.C. only forthe purpose of challenging the order passed by the Courtacquitting the accused or convicting the accused for alesser offence or imposing inadequate compensation. Exceptthese three requirements in the amended CrPC for thevictim/complainant, when the CrPC is silent as to the furtherH

rights of a victim/complainant, the filing of the revisionpetition challenging every order that would be passed duringthe pendency of the trial is not maintainable. Therefore,revision petition at the instance of the defacto complainant/victim, in the considered opinion of this Court, is notmaintainable.”

The High Court also observed that under Section 397(2) of CrPC,the powers of revision cannot be exercised in relation to an interlocutoryorder passed in any appeal, inquiry, trial or other proceeding. The HighCourt held that the order of the trial court declining to mark the statementof the appellant as an exhibit is an interlocutory order, and dismissed therevision petition in view of the bar contained in Section 397(2) of CrPC.

9. The appellant moved this court, aggrieved by the order of the HighCourt dated 20 December 2021. Notice was issued on 11 March 2022,when the proceedings in SC No. 82 of 2017 pending before the trialcourt were stayed. By an order dated 11 April 2022, this Court modifiedits earlier order and stayed only the further recording of the evidence ofPW 7 (the appellant) at the trial.

10. We have heard Mr Senthil Jagadeesan, counsel appearing onbehalf of the appellant, Mr Shubranshu Padhi, counsel for the State ofKarnataka and Mr T.R.B. Sivakumar, counsel for the respondents-accused.

11. The case of the prosecution is that the injured persons, includingthe appellant, were shifted from the Government Hospital at Maddur toMandya District Hospital to K R Hospital, Mysore on 26 December2016. The appellant has not stated at any stage that he was brought bythe police to any of the hospitals for treatment. On the basis of thedeposition of PW 4, it prima facie appears that the statement of theappellant was recorded at 0115 hours on 26 December 2016 at K RHospital, Mysore in the presence Dr Manoj P who was examined asPW 4. On the basis of the statement of PW7, intimation about the offencewas received at PS Maddur following which the FIR was registered asCrime No 0582 of 2016 at 0230 hours on 26 December 2016. Thus, thebasis of the order of the trial court, which has been upheld by the HighCourt, namely, that the statement of the appellant is a statement underSection 161 CrPC is erroneous. The statement of the appellant, in fact,was the basis on which the FIR was registered. Hence, it was legitimately A

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Aopen to the prosecution to have the statement proved and marked as anexhibit during the course of the trial.

12. There would be a serious miscarriage of justice in the courseof the criminal trial if the statement were not to be marked as an exhibitsince that forms the basis of the registration of the FIR. The order ofBthe trial judge cannot in these circumstances be treated as merelyprocedural or of an interlocutory in nature since it has the potential toaffect the substantive course of the prosecution. The revisional jurisdictionunder Section 397 CrPC can be exercised where the interest of publicjustice requires interference for correction of manifest illegality or theprevention of gross miscarriage of justice.[5] A court can exercise itsCrevisional jurisdiction against a final order of acquittal or conviction, oran intermediate order not being interlocutory in nature. In the decision inAmar Nath v State of Haryana,[6] this Court explained the meaning ofthe term “interlocutory order” in Section 397(2) CrPC. This Court heldthat the expression “interlocutory order” denotes orders of a purely interimDor temporary nature which do not decide or touch upon the importantrights or liabilities of parties. Hence, any order which substantially affectsthe right of the parties cannot be said to be an “interlocutory order”.Speaking for a two-Judge Bench, Justice Murtaza Fazal Ali observed:

“6. […] It seems to us that the term “interlocutory order” in SectionE397(2) of the 1973 Code has been used in a restricted sense andnot in any broad or artistic sense. It merely denotes orders of apurely interim or temporary nature which do not decide or touchthe important rights or the liabilities of the parties. Any order whichsubstantially affects the right of the accused, or decides certainrights of the parties cannot be said to be an interlocutory order soFas to bar a revision to the High Court against that order, becausethat would be against the very object which formed the basis forinsertion of this particular provision in Section 397 of the 1973Code. Thus, for instance, orders summoning witnesses, adjourningcases, passing orders for bail, calling for reports and such otherGsteps in aid of the pending proceeding, may no doubt amount tointerlocutory orders against which no revision would lie underSection 397(2) of the 1973 Code. But orders which are matters 5 Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460; Sheetala Prasad v Sri Kant,

(2010) 2 SCC 190.H6 (1977) 4 SCC 137

of moment and which affect or adjudicate the rights of the accusedor a particular aspect of the trial cannot be said to be interlocutoryorder so as to be outside the purview of the revisional jurisdictionof the High Court.”

Explaining the historical reason for the enactment of Section 397(2)CrPC, this Court observed in Amar Nath (supra) that the wide powerof revision of the High Court is restricted as a matter of prudence andnot as a matter of law, to an order that “suffered from any error oflaw or any legal infirmity causing injustice or prejudice to theaccused or was manifestly foolish or perverse.” In KK Patel v Stateof Gujarat,[7] where a criminal revision was filed against an order takingcognizance and issuing process, this Court followed the view asexpressed in Amar Nath (supra), and observed:

“11. [….] It is now well-nigh settled that in deciding whether anorder challenged is interlocutory or not as for Section 397(2) ofthe Code, the sole test is not whether such order was passedduring the interim stage (vide Amar Nath v State of Haryana,Madhu Limaye v State of Maharashtra,[8]VC Shukla v State,[9]and Rajendra Kumar Sitaram Pande v Uttam[10]). The feasibletest is whether upholding the objections raised by a party, it wouldresult in culminating the proceedings, if so any order passed onsuch objections would not be merely interlocutory in nature asenvisaged in Section 397(2) of the Code. In the present case, ifthe objection raised by the appellants were upheld by the Courtthe entire prosecution proceedings would have been terminated.Hence, as per the said standard, the order was revisable.”

13. In the decision in VC Shukla (supra), this Court noted thatunder the CrPC, the question whether an order such as an ordersummoning an accused[11] or an order framing a charge[12] is an“interlocutory order” must be analysed in the light of the peculiar factsof a particular case. In the present case, the objection taken by thedefense counsel (which was upheld by the trial judge) that the statementof the informant is a statement under Section 161 CrPC travels to the 7 (2000) 6 SCC 1958 (1977) 4 SCC 5519 1980 Supp SCC 92

10 (1999) 3 SCC 13411 Amar Nath v State of Haryana, (1977) 4 SCC 13712 Madhu Limaye v State of Maharashtra, (1977) 4 SCC 551

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Aroot of the case of the prosecution and its acceptance would substantiallyprejudice the case of the prosecution. According to the charge sheet,the statement of the appellant/ informant formed the basis of the FIRand set the criminal law in motion. Rejection of the prayer of the PublicProsecutor to mark the statement as an exhibit would possibly imperilthe validity of the FIR. In this background, the order of the trial courtBdeclining to mark the statement of the informant as an exhibit is anintermediate order affecting important rights of the parties and cannotbe said to be purely of an interlocutory nature. In the present case, if thestatement of the appellant/ informant is not permitted to be marked asan exhibit, it would amount to a gross miscarriage of justice.C

14. The challenge to the maintainability of the revision at the instanceof the appellant impugning an order passed during the pendency of thetrial must also be rejected. The revisional jurisdiction of a High Courtunder Section 397 read with Section 401 of the CrPC, is a discretionaryjurisdiction that can be exercised by the revisional court suo motu so asDto examine the correctness, legality or propriety of an order recorded orpassed by the trial court or the inferior court. As the power of revisioncan be exercised by the High Court even suo moto, there can be nobar on a third party invoking the revisional jurisdiction and inviting theattention of the High Court that an occasion to exercise the power hasarisen. Holding a revision petition instituted by a complainant maintainable,EJustice Santosh Hegde writing for this Court in K Panduranganv SSR Velusamy[13]observed:

“6. So far as the first question as to the maintainability of therevision at the instance of the complainant is concerned, we thinkthe said argument has only to be noted to be rejected. Under theFprovisions of the Code of Criminal Procedure, 1973, the court hassuo motu power of revision, if that be so, the question of the samebeing invoked at the instance of an outsider would not make anydifference because ultimately it is the power of revision which isalready vested with the High Court statutorily that is beingGexercised by the High Court. Therefore, whether the same is doneby itself or at the instance of a third party will not affect suchpower of the High Court. In this regard, we may note the followingjudgment of this Court in the case of Nadir Khan v. State (DelhiAdmn).”

15. The view of the High Court that a victim/ complainant needsto restrict his revision petition to challenging final orders either acquittingthe accused or convicting the accused of a lesser offence or imposinginadequate compensation (three requirements mentioned under Section372 CrPC) is unsustainable, so long as the revision petition is not directedagainst an interlocutory order, an inbuilt restriction in Section 397(2) ofthe CrPC. In the present case, the appellant filed a criminal revision ashis interests as an informant and as an injured victim were adverselyaffected by the trial court rejecting the prayer to mark the statement ofthe informant as an exhibit. Having held that the order of the trial courtis not interlocutory in nature and that the bar under Section 397(2) of theCrPC in inapplicable, a criminal revision filed by an informant againstthe said order of the trial court was maintainable. In Sheetala Prasadv Sri Kant,[14]a two Judge Bench of this Court has held that aprivate complainant can file a revision petition in certain circumstances,including when the trial court wrongly shuts out evidence which theprosecution wishes to produce. Noting the principles on which revisionaljurisdiction can be exercised by the High Court at the instance of aprivate complainant, this Court observed:

“12. The High Court was exercising the revisional jurisdiction atthe instance of a private complainant and, therefore, it is necessaryto notice the principles on which such revisional jurisdiction canbe exercised. Sub-section (3) of Section 401 of the Code of CriminalProcedure prohibits conversion of a finding of acquittal into oneof conviction. Without making the categories exhaustive, revisionaljurisdiction can be exercised by the High Court at the instance ofa private complainant

(1) where the trial court has wrongly shut out evidence which theprosecution wished to produce,

(2) where the admissible evidence is wrongly brushed aside asinadmissible,

(3) where the trial court has no jurisdiction to try the case and hasstill acquitted the accused,

(4) where the material evidence has been overlooked either bythe trial court or the appellate court or the order is passed byconsidering irrelevant evidence, and A

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1120SUPREME COURT REPORTS

A(5) where the acquittal is based on the compounding of the offencewhich is invalid under the law.”

The principles which have been enunciated in Sheetala Prasad(supra) have been recently relied upon by this Court in Menoka Malikv State of West Bengal[15]to hold that the High Court can exercise itsBrevisional jurisdiction in a revision petition filed by the first informantwhere the trial court overlooked material evidence. Thus, the impugnedjudgment of the High Court dated 20 December 2021 is incorrect inholding that the appellant did not have locus to institute the criminal revisionagainst the order of the trial court.

C16. In these circumstances, we allow the appeal and set asidethe order of the trial court dated 3 October 2019 and the impugnedjudgment of the High Court dated 20 December 2021. We accordinglydirect that the trial court shall allow the plea of the Public Prosecutor, inthe course of the examination of the appellant, to prove the statement ofthe appellant which was recorded at 0115 hours on 26 December 2016Dso that it can be marked as an exhibit during the course of the trial.

17. Having regard to the fact that the trial is pending since 2016,we direct the trial court to conclude the trial by 31 March 2023.

18. Pending applications, if any, stand disposed of.

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Appeal allowed.

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H15 (2019) 18 SCC 721