Dr Dhananjaya Y Chandrachud, J
1 Leave granted.
2 This appeal arises from a judgment dated 20 December 2021 of a Single Judge of
the High Court of Karnataka by which the criminal revision filed by the appellant
was dismissed on the ground of maintainability. The appellant, who is the original
informant moved this Court.
3 It has been alleged that a dispute occurred on 25 December 2016 between the
accused and villagers of Thoppanahalli village in Maddur, Karnataka on the
Chetan Kumar
allocation of water. The dispute is alleged to have led to a series of altercations
and culminated in the murder of two persons and injuries to several others,
including the appellant. A First Information Report1 under Section 154 of the Code
of Criminal Procedure 19732 was registered on 26 December 2016 at PS Maddur,
District Mandya, being Crime No. 0582 of 2016, for offences punishable under
Sections 143, 147, 148, 504, 323, 302, 307, 114 and 149 of the Indian Penal
Code.3 According to the FIR, around 1830 hours on 25 December 2016, the
accused came to the village of the appellant armed with knives and rods, and
abused and assaulted some of the villagers. A few of the accused allegedly
assaulted and stabbed the appellant, his elder brother, Mutthuraju, and another
villager named Nandeesha with knives. The grievously injured persons were first
taken to the Government Hospital at Maddur. The doctors at the hospital referred
the injured to Mandya District Hospital from where they were further transferred
to K R Hospital, Mysore. Both Nandeesha and Mutthuraju succumbed to the
injuries.
4 The appellant claims that the FIR was registered on the information which was
furnished by him, making him the informant. Upon investigation, a charge-sheet
was submitted under Section 173 CrPC before the competent court and the case
was committed for trial.
5 During the course of the trial in SC No. 82 of 2017, the prosecution examined
seven prosecution witnesses.4 PW 2, Dr Chikkaboregowda stated that the
appellant and another injured witness were brought by the police to Maddur
Government Hospital at 1925 hours on 25 December 2016 and that he had
referred both the patients to Mandya District Hospital for further treatment. PW 4,
Dr Manjoj P working at K R Hospital, Mysore stated that the statement of the
appellant was recorded in his presence by the PSI Maddur at 0115 hours on 26
December 2016.
6 The appellant was examined as PW 7. During the course of his examination-in-
chief, the Public Prosecutor wanted to mark the complaint together with the
signature of the appellant as an exhibit. An objection was raised by the defense
counsel on the ground that in view of the statement of PW 2, during the course of
his examination, the statement of the appellant is referable to Section 161 of the
CrPC and cannot be marked as an exhibit.
7 The trial court in its order dated 3 October 2019 refused to mark the complaint on
the basis of the statement by PW 2, and on the ground that PW 7 did not depose
in his evidence that he gave the complaint to the police. The trial court observed:
“The witness has not deposed in his evidence that he
has given complaint to the police. He has deposed that
he has given statement while he was taking treatment in
the hospital in presence of the Investigating Officer and
4 “PW”
the Doctor. On the basis of the above evidence of P.W.2,
the statement of this witness cannot be marked by
treating the same as First Information Report. And, as
requested by the learned Special Public Prosecutor, the
statement of 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 the trial court. The
appellant instituted a criminal revision under Sections 397(1) and 401 of the
CrPC. The High Court by the impugned judgment dated 20 December 2021
upheld the order of the trial court, and dismissed the revision petition on the
ground of maintainability. The High Court observed that the appellant as the de-
facto complainant had no locus standi to file the revision petition. The relevant
observations of the High Court are extracted below:
“12. The State has left the matter as it is. However, it is
the complainant who is now agitating before this
Court by challenging the said order. The word
'victim' is defined in Section 2(wa) of the Cr.P.C.
which reads as under:
"victim" means a person who has suffered
any loss or injury caused by reason of the
act or omission for which the accused
person has been charged and the
expression "victim" includes his or her
guardian or legal heir;
13. In a given case, it also includes the rights of the
complainant which is carved out under Section
372 of Cr.P.C. only for the purpose of challenging
the order passed by the Court acquitting the
accused or convicting the accused for a lesser
offence or imposing inadequate compensation.
Except these three requirements in the amended
CrPC for the victim/complainant, when the CrPC is
silent as to the further rights of a
victim/complainant, the filing of the revision
petition challenging every order that would be
passed during the 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 not
maintainable.”
The High Court also observed that under Section 397(2) of CrPC, the powers of
revision cannot be exercised in relation to an interlocutory order passed in any
appeal, inquiry, trial or other proceeding. The High Court held that the order of the
trial court declining to mark the statement of the appellant as an exhibit is an
interlocutory order, and dismissed the revision 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 High Court dated 20
December 2021. Notice was issued on 11 March 2022, when the proceedings in
SC No. 82 of 2017 pending before the trial court were stayed. By an order dated
11 April 2022, this Court modified its earlier order and stayed only the further
recording of the evidence of PW 7 (the appellant) at the trial.
10 We have heard Mr Senthil Jagadeesan, counsel appearing on behalf of the
appellant, Mr Shubranshu Padhi, counsel for the State of Karnataka and Mr T.R.B.
Sivakumar, counsel for the respondents-accused.
11 The case of the prosecution is that the injured persons, including the appellant,
were shifted from the Government Hospital at Maddur to Mandya District
Hospital to K R Hospital, Mysore on 26 December 2016. The appellant has not
stated at any stage that he was brought by the police to any of the hospitals for
treatment. On the basis of the deposition of PW 4, it prima facie appears that the
statement of the appellant was recorded at 0115 hours on 26 December 2016 at
K R Hospital, Mysore in the presence Dr Manoj P who was examined as PW 4. On
the basis of the statement of PW7, intimation about the offence was received at
PS Maddur following which the FIR was registered as Crime No 0582 of 2016 at
0230 hours on 26 December 2016. Thus, the basis of the order of the trial court,
which has been upheld by the High Court, namely, that the statement of the
appellant is a statement under Section 161 CrPC is erroneous. The statement of
the appellant, in fact, was the basis on which the FIR was registered. Hence, it
was legitimately open to the prosecution to have the statement proved and
marked as an exhibit during the course of the trial.
12 There would be a serious miscarriage of justice in the course of the criminal trial if
the statement were not to be marked as an exhibit since that forms the basis of
the registration of the FIR. The order of the trial judge cannot in these
circumstances be treated as merely procedural or of an interlocutory in nature
since it has the potential to affect the substantive course of the prosecution. The
revisional jurisdiction under Section 397 CrPC can be exercised where the interest
of public justice requires interference for correction of manifest illegality or the
prevention of gross miscarriage of justice.5 A court can exercise its revisional
jurisdiction against a final order of acquittal or conviction, or an intermediate order not
being interlocutory in nature. In the decision in Amar Nath v State of Haryana,6
this Court explained the meaning of the term “interlocutory order” in Section
397(2) CrPC. This Court held that the expression “interlocutory order” denotes
orders of a purely interim or temporary nature which do not decide or touch upon
the important rights or liabilities of parties. Hence, any order which substantially
affects the 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 Section 397(2) of the 1973 Code has
been used in a restricted sense and not in any
broad or artistic sense. It merely denotes orders of
a purely interim or temporary nature which do not
decide or touch the important rights or the
liabilities of the parties. Any order which
substantially affects the right of the accused, or
decides certain rights of the parties cannot be said
to be an interlocutory order so as to bar a revision
to the High Court against that order, because that
would be against the very object which formed the
basis for insertion of this particular provision in
Section 397 of the 1973 Code. Thus, for instance,
orders summoning witnesses, adjourning cases,
passing orders for bail, calling for reports and such
5 Amit Kapoor v Ramesh Chander, (2012) 9 SCC 460; Sheetala Prasad v Sri Kant, (2010) 2 SCC 190
other steps in aid of the pending proceeding, may
no doubt amount to interlocutory orders against
which no revision would lie under Section 397(2)
of the 1973 Code. But orders which are matters of
moment and which affect or adjudicate the rights
of the accused or a particular aspect of the trial
cannot be said to be interlocutory order so as to
be outside the purview of the revisional
jurisdiction of 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 power of revision of the High
Court is restricted as a matter of prudence and not as a matter of law, to an
order that “suffered from any error of law or any legal infirmity causing injustice
or prejudice to the accused or was manifestly foolish or perverse.” In KK Patel v
State of Gujarat,7 where a criminal revision was filed against an order taking
cognizance and issuing process, this Court followed the view as expressed in
Amar Nath (supra), and observed:
“11. [….] It is now well-nigh settled that in deciding
whether an order challenged is interlocutory or
not as for Section 397(2) of the Code, the sole test
is not whether such order was passed during 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
Uttam10). The feasible test is whether upholding
the objections raised by a party, it would result in
culminating the proceedings, if so any order
9 1980 Supp SCC 92
passed on such objections would not be merely
interlocutory in nature as envisaged in Section
397(2) of the Code. In the present case, if the
objection raised by the appellants were upheld by
the Court the 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 that under the CrPC, the
question whether an order such as an order summoning an accused11 or an order
framing a charge12 is an “interlocutory order” must be analysed in the light of the
peculiar facts of a particular case. In the present case, the objection taken by the
defense counsel (which was upheld by the trial judge) that the statement of the
informant is a statement under Section 161 CrPC travels to the root of the case
of the prosecution and its acceptance would substantially prejudice the case of
the prosecution. According to the charge sheet, the statement of the appellant/
informant formed the basis of the FIR and set the criminal law in motion.
Rejection of the prayer of the Public Prosecutor to mark the statement as an
exhibit would possibly imperil the validity of the FIR. In this background, the
order of the trial court declining to mark the statement of the informant as an
exhibit is an intermediate order affecting important rights of the parties and
cannot be said to be purely of an interlocutory nature. In the present case, if the
statement of the appellant/ informant is not permitted to be marked as an
exhibit, it would amount to a gross miscarriage of justice.
11 Amar Nath v State of Haryana, (1977) 4 SCC 137 12 Madhu Limaye v State of Maharashtra, (1977) 4 SCC 551
14 The challenge to the maintainability of the revision at the instance of the
appellant impugning an order passed during the pendency of the trial must also
be rejected. The revisional jurisdiction of a High Court under Section 397 read
with Section 401 of the CrPC, is a discretionary jurisdiction that can be exercised
by the revisional court suo motu so as to examine the correctness, legality or
propriety of an order recorded or passed by the trial court or the inferior court.
As the power of revision can be exercised by the High Court even suo moto,
there can be no bar on a third party invoking the revisional jurisdiction and
inviting the attention of the High Court that an occasion to exercise the power
has arisen. Holding a revision petition instituted by a complainant maintainable,
Justice Santosh Hegde writing for this Court in K Pandurangan v SSR
Velusamy13 observed:
“6. So far as the first question as to the
maintainability of the revision at the instance of
the complainant is concerned, we think the said
argument has only to be noted to be rejected.
Under the provisions of the Code of Criminal
Procedure, 1973, the court has suo motu power of
revision, if that be so, the question of the same
being invoked at the instance of an outsider would
not make any difference because ultimately it is
the power of revision which is already vested with
the High Court statutorily that is being exercised
by the High Court. Therefore, whether the same is
done by itself or at the instance of a third party
will not affect such power of the High Court. In this
regard, we may note the following judgment of
this Court in the case of Nadir Khan v. State (Delhi
Admn).”
15 The view of the High Court that a victim/ complainant needs to restrict his
revision petition to challenging final orders either acquitting the accused or
convicting the accused of a lesser offence or imposing inadequate compensation
(three requirements mentioned under Section 372 CrPC) is unsustainable, so
long as the revision petition is not directed against an interlocutory order, an
inbuilt restriction in Section 397(2) of the CrPC. In the present case, the appellant
filed a criminal revision as his interests as an informant and as an injured victim
were adversely affected by the trial court rejecting the prayer to mark the
statement of the informant as an exhibit. Having held that the order of the trial
court is not interlocutory in nature and that the bar under Section 397(2) of the
CrPC in inapplicable, a criminal revision filed by an informant against the said
order of the trial court was maintainable. In Sheetala Prasad v Sri Kant,14 a
two Judge Bench of this Court has held that a private complainant can file a
revision petition in certain circumstances, including when the trial court wrongly
shuts out evidence which the prosecution wishes to produce. Noting the
principles on which revisional jurisdiction can be exercised by the High Court at
the instance of a private complainant, this Court observed:
“12. The High Court was exercising the revisional
jurisdiction at the instance of a private
complainant and, therefore, it is necessary to
notice the principles on which such revisional
jurisdiction can be exercised. Sub-section (3) of
Section 401 of the Code of Criminal Procedure
prohibits conversion of a finding of acquittal into
one of conviction. Without making the categories
exhaustive, revisional jurisdiction can be exercised
by the High Court at the instance of a private
complainant
(1) where the trial court has wrongly shut out
evidence which the prosecution wished to
produce,
(2) where the admissible evidence is wrongly
brushed aside as inadmissible,
(3) where the trial court has no jurisdiction to try
the case and has still acquitted the accused,
(4) where the material evidence has been
overlooked either by the trial court or the
appellate court or the order is passed by
considering irrelevant evidence, and
(5) where the acquittal is based on the
compounding of the offence which 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 Malik v State of West
Bengal15 to hold that the High Court can exercise its revisional jurisdiction in a
revision petition filed by the first informant where the trial court overlooked
material evidence. Thus, the impugned judgment of the High Court dated 20
December 2021 is incorrect in holding that the appellant did not have locus to
institute the criminal revision against the order of the trial court.
16 In these circumstances, we allow the appeal and set aside the order of the trial
court dated 3 October 2019 and the impugned judgment of the High Court dated
20 December 2021. We accordingly direct that the trial court shall allow the plea
of the Public Prosecutor, in the course of the examination of the appellant, to
prove the statement of the appellant which was recorded at 0115 hours on 26
December 2016 so 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.
[Dr Dhananjaya Y Chandrachud]
[J B Pardiwala]
New Delhi; August 04, 2022 CKB
Petition(s) for Special Leave to Appeal (Crl.) No.2021/2022
(Arising out of impugned final judgment and order dated 20-12-2021 in CRLRP No.1384/2019 passed by the High Court of Karnataka at Bengaluru)
HONNAIAH T.H. Appellant(s)
VERSUS
THE STATE OF KARNATAKA & ORS. Respondent(s)
(With I.R. and IA No.31821/2022-EXEMPTION FROM FILING O.T.)
Date : 04-08-2022 This appeal was called on for hearing today.
CORAM :
For Appellant(s) Mr. Senthil Jagadeesan, AOR
Ms. Remya Raj, Adv.
Ms. Sonakshi Malhan, Adv.
Ms. Sajal Jain, Adv.
For Respondent(s) Mr. Shubhranshu Padhi, AOR
Mr. Ashish Yadav, Adv.
Mr. Vishal Banshal, Adv.
Ms. Rajeshwari Shankar, Adv.
Mr. Anil V. Katarki, Adv.
Mr. Anil C. Nishani, Adv.
Ms. Veena Katarki, Adv.
Mr. T.R.B. Sivakumar, AOR
UPON hearing the counsel the Court made the following
O R D E R
1 Leave granted.
2 The appeal is allowed in terms of the signed reportable judgment.
3 Pending applications, if any, stand disposed of.
A.R.-cum-P.S. Court Master
(Signed Reportable Judgment is placed on the file)