Holding

The High Court was right in deleting the names of the two respondents; a revision under s.397/401 may only examine the prima facie existence of an offence and cannot join non‑parties.

Summary

The State Government filed a criminal complaint under s.500 IPC, with sanction under s.199(2) CrPC, alleging defamation of the Director General of Police. The trial court took cognizance and issued process against the appellants. The appellants filed a revision petition under s.397 and s.401 CrPC challenging the issue of process and, in the petition, also joined the Director General of Police and the Chief Minister as respondents. The Karnataka High Court admitted the petition but deleted the two additional respondents, holding they were not necessary parties. On appeal, the Supreme Court held that the High Court was correct: a revision under s.397/401 is limited to examining whether the complaint and accompanying papers prima facie disclose an offence, and it cannot join persons who were not parties before the trial court. Consequently, the appeal was dismissed and the High Court’s order upheld.

Issues considered

Whether persons who are not parties before the trial court can be joined as parties in a revision petition under s.397 and s.401 CrPC.
Scope of the High Court's revisional jurisdiction when the issue of process is challenged – whether it may consider the necessity of non‑party respondents.
Whether sub‑clause (2) of s.401 CrPC requires a hearing for persons who are not parties in the lower court proceedings.

Legislation cited

Code of Criminal Procedure, 1973s. 199(2), s. 397, s. 401
Indian Penal Code, 1860s. 500

Subjects

revisionissue of processCriminal Procedure Codeprima facie offencenon‑party respondentdefamation complaintsection 397section 401

Judgment

A A.K. SUBBAIAH & QRS.
v.
STATE OF KARNATAKA & ORS.

AUGUST 28, 1987
B
[SABYASACHI MUKHARJI AND G.L. OZA, JJ.]

Criminal Procedure Code, 1973: ss. 397 & 401-High Court-
Revisional jurisdiction-Scope of-Challenge to issue of process-High

c
Court to see whether prima facie case made out-Persons not parties
before trial court-Whether could be impleaded in revision.

The trial court took cognizance of a complaint by the State
--
Government under s. 500 l.P.C. filed on the basis of a sanction granted
by the State Government under s. 199(2) Cr. P.C., as one of the persollS
defamed was the Director General of Police, and issued process ag~inst
D the appellants. In the revision petition preferred by the appellants
under ss. 397 and 401 Cr. P.C. against that order, in addition to
respondent I, the appellants also joined respondent 2, the Director
General of Police, and respondent 3, the Chief Minister of the State, llS
parties. The High Court admitted the petition and ordered issue of
notice to the respondents, but directed deletion of the names of respon-

-
E dents 2 and 3 holding that they were not necessary parties to the ~
proceedings.

In the appeal by special leave assailing the order of the High
Court it was contended for the appellants that since the prosecution was
instituted by sanction from the State Government, and the news item
and the allegation which formed the basis of the complaint pertained to
F
the two respondents they were necessary parties before the High Court.
The High Court, therefore in exercise of its jurisdiction under s. 401(2)
Cr.P.C. was not right in deleting the names of these two respondents.
For the resp0ndents, it was contended that the High Court was right in
deleting the names of respondents 2 and 3 as they were not parties in the
G criminal cas~ pending before the trial court, nor were they necessary ~
parties to the proceedings before the High Court, that under ss. 397 and
401 Cr.P.C. what the High Court was expected to see in revision against
the issue of process was as to whether the complaint and the papers filed
alongwith it were sufficient to justify the order passed by the trial court
and whether it was a proceeding which deserves to continue or it could
H be quashed.
1128
A.K. SUBBAIAH v. STATE OF KARNATAKA 1129

Dismissing the appeal by special leave, A

HELD: 1. The High Court was right in deleting the names of the
two respondents. [1137F-G]

t 2. When the issue of process is challenged in revision petition
before the High Court and the recrod is called for under s. 397 Cr.P.C., 13
what it is expected to see only is as to whether the complaint and the
).. papers accompanying it prima facie indicate that an offence is made
out. If the complaint and the papers in the opinion of the High Court
are such which do not prima facie disclose an offence then it will be
open to the High Court to entertain the revision and quash the proceed-
• ings. Except this the High Court is not expected to go into the matter at
c
"( all. [1137C-DJ

3. Section 401(2) Cr.P.C. contemplates a situation where a
person may not be an accused person before the court below but one
who might have been discharged and therefore if the revisional court
after exercising jurisdiction under s. 401 wants to pass an order to the D
-1: prejudice of such a person, it is necessary that that person should be
given an opportunity of hearing but it does not contemplate any con-
tingency of hearing of any person who is neither party in the proceed-
ings in the court below nor is expected at any stage even after the
revision to be joined as party. [1136B-DJ

-- '(
.Jfl. ,
In the instant case the prosecution was launched by the State
Government and before the trial court the only parties were the peti-
tioners, who were accused persons, and the State Government, which
stood in the place of a complainant. There were prosecution witnesses
E

and there might even be defence witnesses. But the witnesses are not
parties to the proceedings. The two respondents were not parties before F
the court below. They could not, therefore, be joined as parties before
the High Court. [1135B-C]

4. The question about anyone else being instrumental in getting
the prosecution launched or questions which are foreign are not to be
Y considered in a revision where the issue of process is being challenged G
and therefore the further question in the instant case as to whether the
party against whom an allegation is made is or is not a necessary party
in the proceedings also is not relevant. [1137E-F]

Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors.,
[1983] l SCR 884 referred to. H
1130 SUPREME COURT REPORTS [1987] 3 S.C.R.

A Thakur Ram v. The State of Bihar, [1966] 2 SCR 740, distin·
guished.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 401of1987.

B From the Judgment and Order dated 8.9.1986 of the Karnataka
-f
High Court in Cr!, Revision Petition No. 482 of 1986.

L.R. Singh for the Appellants.

M. Veerappa and A.K. Panda for the Respondents.
c
The Judgment of the Court was delivered by

OZA, J. Leave granted.

D This appeal has been preferred by the appellants who are the r
accused persons in a complaint filed by the State Government before
the Principal Sessions Court, Bangalore. It is alleged that this comp-
laint is filed by the State Govt. under Sec. 500 of the Indian Penal
Code. This complaint was filed by the State Govt. on the basis of a
sanction granted by the State Govt. under Sec. 199, clause (2) of the
E Code of Criminal Procedure, as one of the persons defamed is the ~
Director General of Police, State of Karnataka. ,-

The Trial Court after the filing of the complaint took cognizance
of the matter and issued process against the petitioners who were the 'r
accused persons before the court below. Against this issue of process,
F these petitioners filed a criminal revision before the High Court of
Karnataka seeking the relief of quashing of the order directing issue of
process and also the quashing of proceedings pending in the court
below. The revision which was filed in the High Court was filed under
Sections 397 and 401. In addition to the State Government, the
petitioners joined respondent No. 2, the Director General of Police,
G State of Karnataka and also respondent No. 3. the Chief Minister of 'f
Karnataka, Shri Ramakrishna Hegde.

It is alleged that when the revision petition was filed in the High
Court, it was heard for admission and was admitted and orders were
passed for issue of notices to the respondents. But by the impugned
H order the High Court directed deletion of the names of respondents

..
A.K. SUBBAIAH v. STATE OF KARNATAKA [OZA, J.] 1131

Nos. 2 and 3 holding that they are not necessary parties to the proceed- A
ings and it is against this order that the special leave was filed and
hence this appeal.

The order of the High Court indicates that the matter was taken
t up on being mentioned by either of the counsel in the matter as it
reads: B

"This CRP coming on for being spoken to the Court made
the following order:

Respondents 2 and 3 in this petition, who are not parties to
the complaint, are not necessary parties to the proceedings. C
Hence, Respondents 2 and 3 in this petition are deleted.

Sd/Judge ..

An attempt was made by the learned counsel for the appellant, to
contend that once the process was issued in the revision by the High D
Court after admission it is curious that this matter was taken up.
Although it is not clearly alleged that this order was passed without
affording an opportunity of hearing to the petitioner, admittedly they
were heard. The main grievance appears to be that it was suddenly
taken up for hearing on being mentioned. This is not unusual and there
is no grievance that the petitioners had no hearing. Under these E
circumstances no grievance could be made to this part of the order.

It is not disputed that in the revision petition itself the relief
---( claimed by the petitioners were:

"Wherefore the petitioners pray that this Hon'ble court be F
pleased to call for the records and a return from the respon-
dents and-

(i) Quash the proceedings of the first respondent dated
30.6.1986 bearing Order No. HD 1610 PCC 86,
Annexure-'E'.
G
(ii) Quash the entire proceedings initiated against the
petitioners as per the summons Annexure 'F' in C.C.
No. 62186 on the file of the Principal Civil and Ses-
sions Judge, Bangalore City.

(iii) Grant such other reliefs as this Hon'ble Court deems H
1132 SUPREME COURT REPORTS [1987] 3 S.C.R.

fit in the circumstances of the case including an order
A
as to costs."

A perusal of these prayers made in the revision petition clearly indi-
cates that what was challenged before the High Court was the order
dated 30.6.86 by which the process was issued against the petitioners
B and further the quashing of the proceedings instituted before the court l
below i.e. Principal Civil & Sessions Judge, Bangalore City which was
Criminal Complaint No. 62 of 1986. It is therefore clear that the only J
challenge before the High Court was to the proceedings on the basis of
the complaint and the relief sought was quashing of these proceedings.

It is clear that High Court exercises jurisdiction under Sec. 40 I
c when it exercises revislonal jurisdiction. It is contended by the learned
counsel that it is Sec. 397 of the Code of Criminal Procedure which
}
-
empowers the High Court to call for the record and examine the
record about the propriety of the order. But the High Court exercises
revisional jurisdiction under Sec. 40 I. Learned counsel laid much
D emphasis on sub-clause 2 of Sec. 401 to contend that as in the revision ~
petition the contention advanced by the petitioners is that this pro-
secution was instituted by sanction from the State Govt. because the
two respondents and the petitioner in this revision petition made alle-
gations against the two respondents who have been deleted that it was
necessary for them to join them as parties under clause 2 of Sec. 401. It
was further contended that in fact the news item and the allegation
E which form the basis of the complaint pertain to these two persons. In ... _
~
fact not about the Chief Minister himself but about his wife and in this
aspect of the matter it was contended that these two were necessary
parties before the High Court and it was for this reason that the
y
petitioners joined them in the High Court. Learned counsel for the
appellants placed reliance on a decision of this Court in Thakur Ram v.
F The State of Bihar, [ 1966] 2 SCR 740 and it was contended that the
Court below was not right in deleting these two respondents.

Learned Advocate General appearing for the State of Karnataka
frankly stated that so far as the two respondents' continuance or dis-
continuance from the criminal revision is concerned the State of '-1
G Karnataka is not interested and he has nothing more to add but he
contended that joining of such parties which are not necessary in a
revision arising out of criminal proceedings is a matter of far-reaching
consequences. He contended that if such parties are permitted to be
joined then any accused person who is facing a trial in a criminal
prosecution may file a revision challenging either the issue of process
H or the framing of charge and may join unnecessarily parties and it may
A.K. SUBBAIAH v. STATE OF KARNATAKA [OZA, J.] 1133

"' become difficult even. to serve such parties and because of this the
criminal proceedings may remain stayed for long time. This ultimately
A
may result in defeating the criminal justice. And in this view of the
matter the learned Advocate General contended that the High Court
was right in deleting these two names as they were not parties in the
t criminal case pending before the trial court nor were necessary parties
to these proceedings. B

> Learned counsel appearing for the two respondents contended
that in fact in view of Sec. 397 and 401 of the Cr.P.C. what the court

- i.e .. the High Court is expected to see in a revision of this nature
against the issue of process is as to whether the complaint and the

i passed
papers filed alongwith the complaint are sufficient to justify the order
by the learned trial court by issuing process against the petition- c
ers-accused persons. It was contended by the learned counsel that the
Court is not expected to see anything further nor there is any material
to come to a conclusion as to whether the prosecution has been
launched fairly or at the instigation or under the influence of some
other person. It was contended that in fact these questions may be
.... before the court below when evidence is recorded what the Court D
primarily is concerned to see is that the facts alleged in the complaint
whether prima facie constitute an offence calling for a trial and if the
· Court is so satisfied it issues process. The High Court in revision under
Sec. 401 read with 397 only is concerned to see those papers which
were before the court below. Admittedly these two respondents Nos. 2
'-"' and 3 were not parties before the court below and the High Court was E
-- right in deleting their names from the proceedings. Learned counsel
placed reliance on a decision of this Court in Municipal Corporation of
/
Delhi v. Ram Kishan Rohtagi and Ors., [1983) 1 SCR 884 and con-
1 tended that the scope of Sections 401 and 397 has been considered by
series of decisions of this Court, the above noted case being one and
contended that in the light of law laid down, no grievance could be F
made against the order of the High Court.

It was also contended that even if the petitioners have chosen to
make allegations against respondents 2 and 3 as any one is free to
)" make allegations, it does not call for any enquiry before the High
Court as the High Court is not expected to enquire into the allegations G
and counter-allegations while it is only examining in revision the order
issued by the trial court which is nothing more but issue of process and
that order the trial court has passed on the basis of complaint and
papers filed alongwith the complaint and the High Court only is ex-
pected to see as to whether on these papers and complaint the Court
below was right in issuing process and it is a proceeding which deserves H
1134 SUPREME COURT REPORTS [1987] 3 S.C.R.

A to continue or it could be quashed; except this while exercising revi-
sional jurisdiction, according to the learned counsel, High Omrt is not
expected to go into the matter at all. And therefore the High Court
was right in deleting the names of respondents 2 and 3.

"397. Calling for records to exercise powers ot revi- 1
B sion.-(1) The High Court or any Sessions Judge may call
for and examine the record of any proceeding before any _.[
inferior Criminal Court situate within its or his local juris-
diction for the purpose of satisfying itself or himself as to
the correctness,, legality or propriety of any finding, sent-
ence or order, recorded or passed, and as to the regularity ._
of any proceedings of such inferior Court, and may, when ~
c calling for such record, direct that the execution of any r
sentence or order be suspended, and if the accused is in
confinement, that he be released on bail or on his own
bond pending the examination of the record."

D This section provides that the High Court or the Court of Sessions may
send for the record of any inferior criminal court for satisfying itself
about the "correctness, legality and propriety of any findings, sentence
or order recorded or passed and as to the regularity of any proceedings
of such inferior court." Therefore it clearly indicates that the court
when calls for the record in exercising powers under Sec. 397 Cr. P. C.
E it is expected to examine the records for the purpose of satisfying itself l.i..
about legality, propriety and correctness of the order passed and also
about the regularity of the proceedings. It is not disputed that the
complaint filed by the respondent State Govt. was the matter before
the trial court on the basis of which and accompanying papers the
Court after considering issued process and it is this order of issue of
F process correctness, legality or propriety of which is under challenge
before the High Court.

A perusal of the revision petition which has been filed here with
the SLP clearly shows that there is nothing except a challenge to the
propriety and correctness of the order passed by the trial court while '</
G issuing process. There is nothing about irregularity or illegality. The
grievance is also made about the sanction granted by the State Govt.
but that apparently is not a matter which could be gone into at this
stage. Admittedly, therefore the only thing which is before the High
Court is to satisfy itself about the correctness or propriety of the order.
Admittedly no question of legality is raised. Therefore the High Court
H is expected to look into those papers and record which were before the
trial court.
A.K. SUBBAIAH v. STATE OF KARNATAKA [OZA, J.] 1135

It is not in dispute tha't these two respondents Nos. 2 and 3 were A
not parties before the court below. Learned counsel for the appellants
contended that the proceedings have been launched by the State Govt.
on behalf of respondent No. 2 and therefore indirectly respondent
No. 2 being the complainant is a party to the proceedings. That is too
,. tall a proposition. The prosecution is launched by the State Govern-
ment and before the court below i.e. the trial court the only parties are B
the peiitioners who are accused persons and the State Govt. which
stands in the place of a complainant. There are prosecution witnesses

-
and there may even be defence witnesses. But the witnesses are not
parties to the proceedings and admittedly these two respondents who
have been deleted by the impugned order of the High Court were not
parties before the court below.
c
Learned counsel laid much emphasis on the provisions contained
in sub-clause 2 of Sec. 40 I. Sec. 401 reads:

"401. High Court's powers of revision.-(1) in the case of
any proceeding the record of which has been called for by D
itself or which otherwise comes to its knowledge, the High
Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by Sections 386, 389, 390
and 391 or on a Court of Session by Section 307 and, when
the Judges composing the Court of revision are equally
divided in opinion, the case shall be disposed of in the E
manner provided by Section 392.

(2) No order under this section shall be made to the pre-
judice of the accused or other person unless he has had an
opportunity of being heard either personally or by pleader
in his own defence. F

(3) Nothing in this section shall be deemed to authorise a
High Court to convert a finding of acquittal into one of
conviction.

(4) Where under this Code an appeal lies and no appeal is G
brought, no proceeding by way of revision shall be enter-
tained at the instance of the party who could have
appealed.

(5) Where under this Code an appeal lies but an applica-
tion for revision has been made to the High Court by any H
1136 SUPREME COURT REPORTS (1987] 3 S.C.R.
A
person and the High Court is satisfied that such applioation
A was made under the erroneous belief that no appeal lies
thereto and that it is necessary in the interests of justice so
to do, the High Court may treat the application for revision
as a petition of appeal and deal with the same accordingly."
~
B Sub-clause 2 of this Sec. talks of a situation where an order is being
passed against any person and it was contended by the learned counsel
that the section not only talks of accused persons but also of "or other
)
person unless he has had an opportunity of being heard." Apparently
this sub-clause contemplates a situation where a person may not be an

c
accused person before the court below but one who might have been
discharged and therefore if the revisional court after exercising juris-
diction under Sec. 401 wants to pass an order to the prejudice of such a t
--
person, it is necessary that that person should be given an opportunity
of hearing but it does not contemplate any contingency of hearing of
any person who is neither party in the proceedings in the court below
nor is expected at any stage even after the revision to be joined as
D party. Learned counsel for the appellants was not in a position to con- )-
tend that even if any contention of the appellants is accepted ana the
High Court accepts the revision petition as it is, there will be any
situation where an order may be passed against these two respondents
or they may be joined as parties to the proceedings. Reference to
Section 40 I clause 2 is of no consequence so far as these two respon-

"' ,
E dents are concerned.

The decision to which refercnce,was made by the learned counsel
for the appellants, it appears has no bearing on the question. That was a
case where the question before this Court was as to whether when a r
person was charged under Section 392 and was facing trial before the
F Court of a Magistrate, it was proper to send the case to the Sessions
Court when such applications earlier to the Magistrate have been re-
jected and it is in this context the scope of the revisional jurisdiction
was being examined. In our opinion, this case is of no con~.equence at
all so far as the present case is concerned. In the case of Municipal
Corporation of Delhi v. Ram Kishan Rohtagi & Ors., (supra) this
~
Court considered the scope of Section 482 Cr.P.C. and Sec. 397 in the
G
context of challenge to the criminal proceedings or issue of process and
this Court observed that:

"It is, therefore, manifestly clear that proceedings against
an accused in the initial stages can be quashed only if on the
H face of the complaint or the papers accompanying the
A.K. SUBBAIAH v. STATE OF KARNATAKA [OZA, J.J 1137

same, no offence is constituted. Jn other words, the test is A
that taking the allegations and the complaint as they are.
without adding or substracting anything, if no offence is
made out then the High Court will be justified in quashing
the proceedings in exercise of its powers under S. 482 of the
present Code."
B
In this decision, the earlier decisions of this Court on the question have
also been considered.

It is therefore clear that when the issue of process is challenged in
.... the revision petition before the High Court what the High Court is
expected to see is as to whether the complaint and the papers C
accompanying the complaint prima facie indicate that an offence is
made out. If so, the Court below was right in issuing process against
the accused persons and such proceedings can not be quashed; if the
complaint and the papers accompanying the complaint, in the opinion
of the High Court are such which do not prima facie disclose an offence D
then it will be open to the High Court to entertain the revision and
quash the proceedings.

In the light of the discussions above therefore it is clear that the
question about anyone else being instrumental in getting the prosecu-
tion launched or questions which are foreign are not to be considered
in a revision where the issue of process is being challenged and there- E
fore the further question as to whether the party against whom an
allegation is made is or is not a necessary party in the proceedings also
is of no avail. The scope of the revisional jurisdiction of the High
Court as we have discussed earlier clearly indicates that the High
Court is only expected to see the legality, correctness or the propriety
of the order, which is an order of issue of process, these things could F
only be seen by looking into the complaint and the accompanying
papers and evidence if any which were before the court below. In our
opinion, the High Court was right in deleting the names of the two
respondents.

·Y We see therefore no substance in this appeal. It is therefore G
dismissed and the order passed by the High Court is maintained.

P.S.S. Appeal dismissed .
•