Supreme Court of India
M.R. AJAYANversusSTATE OF KERALA & ORS.
- Citation
- 2024 INSC 881
- Decided
- 20 November 2024
- Bench
- C T RAVIKUMAR
Holding
The Supreme Court held that the petitioner has locus standi, the High Court erred in applying the bar of Section 195(1)(b), and the High Court may order a de novo trial in exceptional circumstances, thereby setting aside the impugned order and restoring the cognizance of the FIR.
Summary
The case arose from allegations that a piece of evidence (an underwear) seized in a 1990 NDPS case was tampered with after being released from judicial custody, leading to the conviction of an Australian national being set aside and a subsequent FIR being lodged against court staff and a junior lawyer for conspiracy and forgery. The Kerala High Court quashed the cognizance of the FIR on the ground that the offences fell within the bar of Section 195(1)(b) of the CrPC and directed further action under that provision. The Supreme Court examined whether the private individual M.R. Ajayan had locus standi to file a Special Leave Petition, whether the High Court correctly applied the bar under Section 195(1)(b), and whether the High Court could order de novo proceedings against the accused. The Court held that Ajayan had sufficient standing, that the High Court erred in invoking the bar because the proceedings were initiated by a judicial order, not a private complaint, and that the High Court could order a retrial in exceptional circumstances. Consequently, the Supreme Court set aside the High Court’s order, restored the cognizance of the FIR, and directed the trial court to complete the trial within a year. The appeal filed by Ajayan was allowed, while the separate appeal by Antony Raju was dismissed.
Issues considered
- Whether M.R. Ajayan has locus standi to prefer the Special Leave Petition against the impugned order.
- Whether the Kerala High Court correctly held the proceedings to be barred under Section 195(1)(b) of the Code of Criminal Procedure.
- Whether the High Court could lawfully order de novo steps (re‑trial) against the appellant.
Legislation cited
- Code of Criminal Procedure, 1973s. 195(1)(b), s. 482
- Indian Penal Code, 1860s. 120(B), s. 193, s. 201, s. 217, s. 34, s. 420
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(11), s. 20(b)(ii)
Headnote
Issue for Consideration Issue arose whether the appellant has the locus standi to prefer this SLP against the impugned order; whether the High Court rightly held the proceedings in question to be hit by the bar u/s. 195(1)(b) Cr.P.C.; and whether the High Court could have ordered de novo steps to Headnotes† Constitution of India – Art. 136 – Locus standi of private individual – De novo trial – Permissibility – High Court, if could order de novo steps to be taken against the accused on the allegations made out in the quashed proceedings – Locus
Subjects
Locus standi to prefer SLPProceedings hit by the bar u/s.195(1)(b) Cr.P.C.Ordering de novo stepsLocus standi of private individualDe novo trialSocially spirited personEditor of ‘Green Kerela News’Australian nationalPossession of charas in pocket of underwearStrong possibility of tampering with the seized articleVigilance enquiryRegistration of FIRConspiracy with the intention and preparation to cause disappearance of evidenceInterference with judicial processDispensation and administration of justiceTravesty of justicePrinciples relating to prosecution u/s.195 CrPC
Judgment
[2024] 11 S.C.R. 1448 : 2024 INSC 881
M.R. Ajayan
v.
State of Kerala & Ors.
(Criminal Appeal No. 4675 of 2024)
20 November 2024
[C.T. Ravikumar and Sanjay Karol,* JJ.]
Issue for Consideration
Issue arose whether the appellant has the locus standi to prefer
this SLP against the impugned order; whether the High Court
rightly held the proceedings in question to be hit by the bar u/s.
195(1)(b) Cr.P.C.; and whether the High Court could have ordered
de novo steps to be taken against the appellant.
Headnotes†
Constitution of India – Art. 136 – Locus standi of private
individual – De novo trial – Permissibility – High Court, if
could order de novo steps to be taken against the accused
on the allegations made out in the quashed proceedings –
Locus standi of the socially spirited person and an editor,
to prefer SLP against the impugned order – High Court, if
correct in holding that the proceedings hit by the bar u/s.
195(1)(b) – On facts, Australian national found in possession
of charas in the pocket of his underwear – Seized articles and
personal belongings kept in the custody of the Police Station –
Thereafter, on an application on behalf of the Australian
national-accused, his personal belongings were released to
the appellant-junior lawyer of the counsel appearing for the
accused – However, later, the underwear was returned by the
appellant to the court – Sessions court convicted the accused
under the NDPS Act, however, in appeal, acquitted him since
the the said underwear was not of his size though observed
that there was strong possibility of tampering with the seized
article – Vigilance enquiry conducted and thereafter, FIR was
registered – Appellant and the court staff chargesheeted for
offences punishable under the Penal Code for conspiracy with
the intention and preparation to cause the disappearance of
* Author
[2024] 11 S.C.R. 1449
M.R. Ajayan v. State of Kerala & Ors.
evidence – Aggreived thereagainst, separate petitions filed
before the High Court u/s.482 Cr.P.C. seeking quashing of the
proceedings on the ground that cognizance could not have
been taken due to the bar created u/s.195(1)(b) Cr.P.C. – High
Court quashed the order taking cognizance, however, directed
to undertake appropriate measures in accordance with the
procedure u/s.195(1)(b) Cr.P.C – Petitions before this Court,
one by the appellant; and other by the socially spirited person
and editor – Maintainability:
Held: Locus standi of the appellant, does not come in the way of
this Court hearing the same – Instant case, quashed by the High
Court, involves serious allegations of interference with judicial
processes which strike at the very foundation of both dispensation
and the administration of justice – Thus, the appellant has the
locus standi to prefer this SLP against the impugned order as it is
incumbent upon this Court to check the correctness of the approach
adopted by the High Court, and the locus of the appellant would
not come in the way of the same – Approach of the High Court in
quashing the order taking cognizance and proceedings emanating
therefrom not correct – On a perusal of the FIR, it is clear that
based on the letter issued by the High Court and by the District
Judge, the offence was registered against the accused persons –
Criminal proceedings clearly do not arise from a complaint by a
private individual – High Court erroneously observed that there is
no judicial order concerning the present proceedings – Alleged act
is a glaring occurrence where the process of criminal prosecution
stands interfered with, impugning upon the sanctity of judicial
proceedings, resulting in a travesty of justice – Such actions not
only erode public trust in the judicial system but compromise the
principles of the rule of law and fairness, which are essential for
the justice delivery system – Such incidents strike at the foundation
of the independence and integrity of the judicial process, hence,
it cannot be said that there is a lack of public interest – In the
instant case, the accused allegedly received a material object in
question, from the judicial custody, despite there being no specific
order for release thereof, and subsequently tinkered/ assisted
in tinkering with the same and thereafter substituted it for the
original – High Court erred in holding that the proceedings were
hit by the bar u/s. 195(1)(b) – Further, it cannot be said that the
High Court, in the attending circumstances, erred in ordering de
novo steps to be taken against the appellant-accused – Alleged
1450 [2024] 11 S.C.R.
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forgery of evidence in a criminal investigation has resulted in
acquittal in the NDPS case and, thereafter, FIR was registered –
Interference by the High Court in quashing the criminal proceedings
was unwarranted – Impugned order is set aside – Order taking
cognizance in Crime and all further proceedings pursuant to the same
restored on the files of Magistrate – Code of Criminal Procedure,
1973 – s.195(1)(b). [Paras 17-19, 22, 23, 28-30,31, 34-36].
Code of Criminal Procedure, 1973 – s. 195(1)(b) – Prosecution
for contempt of lawful authority of public servants, for offences
against public justice and for offences relating to documents
given in evidence – Principles relating to prosecutions u/s.
195 – Stated. [Para 21]
Case Law Cited
CBI v. M. Sivamani [2017] 7 SCR 509 : (2017) 14 SCC 855; P.S.R.
Sadhanantham v. Arunachalam & Anr. [1980] 2 SCR 873 : (1980)
3 SCC 141; National Commission for Women v. State of Delhi &
Anr. [2010] 10 SCR 905 : (2010) 12 SCC 599; Amanuallah & Anr.
v. State of Bihar & Ors. [2016] 2 SCR 1027 : (2016) 6 SCC 699;
Naveen Singh v. State of U.P. [2021] 7 SCR 52 : (2021) 6 SCC 191;
Sachida Nand Singh v. State of Bihar [1998] 1 SCR 492 : (1998) 2
SCC 493; Iqbal Singh Marwah & Anr. v. Meenakshi Marwah& Anr.
[2005] 2 SCR 708 : (2005) 4 SCC 370; Perumal v. Janaki [2014] 1
SCR 591 : (2014) 5 SCC 377; Nasib Singh v. State of Punjab [2021]
13 SCR 566 : (2022) 2 SCC 89; Sunita Devi v. State of Bihar &
Anr. [2024] 5 SCR 629 : 2024 SCC OnLine SC 984 – referred to.
List of Acts
Narcotics Drugs and Psychotropic Substances Act, 1985; Code
of Criminal Procedure, 1973; Penal Code 1860.
List of Keywords
Locus standi to prefer SLP; Proceedings hit by the bar u/s.195(1)(b)
Cr.P.C.; Ordering de novo steps; Locus standi of private individual;
De novo trial; Socially spirited person; Editor of ‘Green Kerela
News’; Australian national; Possession of charas in pocket of
underwear; Strong possibility of tampering with the seized article;
Vigilance enquiry; Registration of FIR; Conspiracy with the intention
[2024] 11 S.C.R. 1451
M.R. Ajayan v. State of Kerala & Ors.
and preparation to cause disappearance of evidence; Interference
with judicial process; Dispensation and administration of justice;
Travesty of justice; Principles relating to prosecution u/s.195 CrPC.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
4675 of 2024
From the Judgment and Order dated 10.03.2023 of the High Court
of Kerala at Ernakulam in CRLMC No. 5261 of 2022
With
Criminal Appeal No. 4676 of 2024
Appearances for Parties
Basant, P.V. Dinesh, Sr. Advs., Deepak Prakash, Sriram P., Vishal
Somany, Pawan Kr. Dabas, Kamal Singh Bisht, Raneev Dahiya,
Ravindra Singh, Nachiketa Vajpayee, Ms. Divyangna Malik, Ms.
Vishnu Priya, Ms. J. Merlyn Rachel, Vardaan Kapoor, Rahul
Lakhera, Rahul Suresh, Ms. Manshi Sinha, Ms. Priyamvada Singh
Solanki, Saurabh Ajay Gupta, D. K. Devesh, Nishant Bishnoi, Ms.
Srishti Prabhakar, Ritik Gupta, Nishe Rajen Shonker, Mrs. Anu K
Joy, Alim Anvar, Ms. Anna Oommen, Ajith Anto Perumbully, Amith
Krishnan H, Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
Sanjay Karol, J.
Leave Granted.
2. The present appeals arise from the common final judgment and
order dated 10th March, 2023 passed by the High Court of Kerala
at Ernakulam in CRL.M.C.No.5261 of 2022, whereby the order
taking cognizance in Crime No.215/1994 and all further proceedings
pursuant to the same (C.C. No. 811 of 2014) on the files of Judicial
First Class Magistrate-I, Nedumangad, were quashed and the Registry
of the High Court was directed to take appropriate action against
1452 [2024] 11 S.C.R.
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Antony Raju in accordance with the procedure set out under Section
195 of the Code of Criminal Procedure, 1973.1
FACTUAL MATRIX
3. The genesis of this case dates back to the year 1990. On 4th
April, 1990, an FIR came to be registered bearing Crime No.60
of 1990, under Section 20(b)(ii) of the Narcotics Drugs and
Psychotropic Substances Act, wherein an Australian national, Andrew
Salvatore, was travelling from Thiruvananthapuram to Mumbai.
While undergoing frisking at the airport, he was found to be in
possession of 2 packets containing 55 grams and 6.6 grams of
charas, which were kept concealed in the pocket of his underwear.
On registration of the FIR, the person, along with the seized articles
and personal belongings, were kept in the custody of the Valiyathura
Police Station.
4. These seized articles were produced before the Judicial First Class
Magistrate–II, Thiruvananthapuram. Accused No.1 was the Clerk, in
the custody of whom, by virtue of a judicial order, the articles were
entrusted. Thereafter, on 17.07.1990, an application was made on
behalf of Andrew Salvatore, seeking the release of his personal
belongings, which came to be permitted.
5. Accordingly, the articles were released to accused No.2/appellant in
SLP(Crl.) No.7896 of 2023, who was the junior lawyer of the counsel
appearing for Andrew Salvatore. Pertinently, one of the items of the
case property, i.e., the underwear of Andrew Salvatore, was also
released along with the personal articles directed to be released by
the Court. However, later, the underwear was returned by Accused
No.2 to Accused No.1, which was forwarded to the Sessions Court
and during trial, it was marked as Exhibit Mo2, in case Crime No.60
of 1990.
6. The Sessions Court convicted Andrew Salvatore and sentenced him
to undergo rigorous imprisonment for 10 years and to pay a fine
of Rs.1 Lakh under Section 20(b)(11) of the NDPS Act, 1985. An
appeal was preferred as Criminal Appeal No.20 of 1991 before the
High Court of Kerala. During the course of hearing, a practical test
was conducted, and it was found that the said underwear (Ex. Mo2)
1 hereinafter “Cr.P.C”
[2024] 11 S.C.R. 1453
M.R. Ajayan v. State of Kerala & Ors.
was not the size of the convicted person. Therefore, vide judgment
and order dated 5th February, 1991, the High Court while acquitting
Andrew Salvatore, observed that “there is a strong possibility of Mo2
being planted in an attempt to help the appellant to wriggle out of the
situation. I hope that this matter will be duly enquired into and dealt
with properly by the concerned authorities…A copy of this judgment
be forwarded to the Chief Secretary for appropriate action.”
7. Subsequent to the judgment dated 5th February, 1991, the Vigilance
Officer of the High Court of Kerala conducted an investigation and
a report in this regard was submitted highlighting the necessity of
a detailed investigation into the incident. This resulted in an Office
Memorandum dated 27th September, 1994 being issued by the High
Court requesting the District Court, Thiruvananthapuram, to direct
the Sheristadar to lodge a First Information Report before the police.
8. Thereafter on 5th October, 1994, an FIR bearing No.215/94 came
to be registered stating that – “As per the Order No.8384/94 dated
27.09.1994 issued by the Kerela High Court, a letter has been sent
to the Trivandrum District Judge. As per the direction of the District
Court, Trivandrum, the following charges have been imposed in SC
No.147/90 for replacing Mo2 (Jetty), hence the accused cheated
the Court by destroying the evidence and committed the offence.”
It was further stated that the FIR pertains to replacing the Mo2 by
an unknown person.
9. Subsequently, a chargesheet came to be filed on 24th March, 2006
against one Mr. Jose, the Thondi clerk of the Court and Advocate
Antony Raju under Sections 120(B), 420, 201, 193, 217 and 34 of
the Indian Penal Code.2 Allegedly, these accused persons conspired
together with the intention and preparation to cause the disappearance
of evidence (Mo2). It stated that Accused No.1, Clerk handed over
Mo2 to Accused No.2, Antony Raju, who made alterations thereto,
ensuring that it would not fit Accused Andrew Salvatore. Cognizance
of this final report came to be taken by Judicial First Class Magistrate
Court-I, Nedumangad, as C.C. No.811/2014.
10. In the year 2022, both these accused persons preferred separate
petitions (being Crl.M.C.No.7805/2022 & Crl.M.C.No.5261/2022)
2 hereinafter “IPC”
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before the High Court of Kerela under Section 482 of the Cr.P.C.
seeking quashing of the proceedings of Crime No.215 of 1994 and
C.C.No.811/2014 on the ground that cognizance in the present case
could not have been taken due to the bar created under Section
195(1)(b) of the Cr.P.C.
11. Resultantly, the impugned order came to be passed, allowing the
petitions and thereby quashing the order taking cognizance in Crime
No.215/1994 and all further proceedings pursuant to the same
(C.C.No.811/2014) on the files of Judicial First Class Magistrate-I,
Nedumangad. However, it directed the Registry of the Court to
undertake appropriate measures in accordance with the procedure
under Section 195(1)(b) of the Cr.P.C.
12. Impugning the said order passed by the High Court, two petitions
have been filed before this Court. SLP(Crl.)No.4887 of 2024 is filed
by M.R. Ajayan, stating that he is a socially spirited person and editor
of “Green Kerela News”. He is said to be aggrieved by the quashing
of the grievous allegations in the complaint by the High Court. SLP
(Crl.)No.7896 of 2023 is filed by Mr. Antony Raju, who is Accused
No.2, stating that the High Court could not have directed de novo
steps to be taken against the accused on the allegations made out in
the quashed proceedings. Accused No.1 has not assailed any order.
REASONING OF THE COURT BELOW
13. The High Court vide the impugned order, after considering the
contentions of the parties, gave the following findings while allowing
the petitions:
i. The release of article Mo2 (Jetty) from the custody of the Court,
followed by its return after being altered, would be considered
an act of criminal conspiracy under Section 120B, IPC and will
also constitute an offence under Section 193, IPC. As the said
article was released from the custody of the Court, and at that
time, the same was unquestionably under ‘Custodiam Legis’,
and therefore, the bar u/s 195(1)(b) would get attracted.
ii. The cognizance taken on the final report was not legally
sustainable, as it contravened the legal requirements under
Section 195 (1)(b) of the Code of Criminal Procedure. The
Court categorically distinguished the decision of this Court in
[2024] 11 S.C.R. 1455
M.R. Ajayan v. State of Kerala & Ors.
CBI v. M. Sivamani 3 (2-Judge Bench) on the point that the
procedural distinctions between judicial and administrative
orders are underscored by this case, where the CB-CID had
initiated the investigation based on a judicial order issued by
the Madras High Court, rather than an administrative order, as
in the present case.
ISSUES FOR CONSIDERATION
14. We have heard the learned counsel for the parties and have also
perused the written submissions filed. The issues which arise for
consideration of this Court are:
i. Whether M.R. Ajayan, appellant in SLP(Crl.)No.4887 of 2024 has
the locus standi to prefer this SLP against the impugned order?
ii. Whether the High Court has rightly held the proceedings in
question to be hit by the bar under Section 195(1)(b) Cr.P.C.?
iii. Independent of the above, whether the High Court could have
ordered de novo steps to be taken against the appellant?
DISCUSSION AND ANALYSIS
15. Coming to the first issue at hand, concerning the locus standi of
Mr. M.R. Ajayan, the appellant in SLP(Crl.)No.4887 of 2024, he has
submitted that he is a socially spirited person and editor of “Green
Kerela News”. He had also filed an intervention application before
the High Court of Kerala, resisting the quashing petition.
16. Antony Raju, Respondent No.2 in SLP(Crl.)No.4887 of 2024/ appellant
in the appeal arising out SLP(Crl.)No.7896 of 2023, has objected to
the locus of Mr. M.R. Ajayan, submitting that third parties cannot be
permitted to prefer appeal in criminal proceedings and has sought to
place reliance on judgments of this Court in P.S.R. Sadhanantham v.
Arunachalam & Anr. (5-Judge Bench),4 National Commission for
Women v. State of Delhi & Anr. (2-Judge Bench)5 and Amanuallah
& Anr. v. State of Bihar & Ors. (2-Judge Bench.6
3 [2017] 7 SCR 509 : (2017) 14 SCC 855
4 [1980] 2 SCR 873 : (1980) 3 SCC 141
5 [2010] 10 SCR 905 : (2010) 12 SCC 599
6 [2016] 2 SCR 1027 : (2016) 6 SCC 699
1456 [2024] 11 S.C.R.
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17. The locus of a private individual seeking the exercise of jurisdiction
of this Court under Article 136 of the Constitution is no longer res
integra. This Court in National Commission for Women (supra) has
observed that an appeal by a private individual can be entertained,
both sparingly and after due vigilance, following the exposition of
law in Arunachalam (supra). Furthermore, in Amanuallah (supra),
this Court dealt with this issue in detail and observed:
“19. The term “locus standi” is a Latin term, the general
meaning of which is “place of standing”. Concise Oxford
English Dictionary, 10th Edn., at p. 834, defines the term
“locus standi” as the right or capacity to bring an action or
to appear in a court. The traditional view of “locus standi”
has been that the person who is aggrieved or affected has
the standing before the Court that is to say he only has
a right to move the Court for seeking justice. Later, this
Court, with justice-oriented approach, relaxed the strict rule
with regard to “locus standi”, allowing any person from the
society not related to the cause of action to approach the
Court seeking justice for those who could not approach
themselves. Now turning our attention towards the criminal
trial, which is conducted, largely, by following the procedure
laid down in CrPC. Since, offence is considered to be a
wrong committed against the society, the prosecution
against the accused person is launched by the State. It
is the duty of the State to get the culprit booked for the
offence committed by him. The focal point, here, is that if
the State fails in this regard and the party having bona fide
connection with the cause of action, who is aggrieved by
the order of the Court cannot be left at the mercy of the
State and without any option to approach the appellate
Court for seeking justice.
24. After considering the case law relied upon by the learned
counsel for the appellants as well as the respondents, in
the light of the material placed on record, we are of the
view that the appellants have locus standi to maintain this
appeal. From the material placed on record, it is clear that
the appellants have precise connection with the matter
at hand and thus, have locus to maintain this appeal.
The learned counsel for the appellants has rightly placed
[2024] 11 S.C.R. 1457
M.R. Ajayan v. State of Kerala & Ors.
reliance upon the Constitution Bench judgment of this Court,
namely, P.S.R. Sadhanantham [P.S.R. Sadhanantham v.
Arunachalam (1980) 3 SCC 141 : 1980 SCC (Cri) 649] and
other decisions of this Court in Ramakant Rai [Ramakant Rai
v. Madan Rai (2003) 12 SCC 395 : 2004 SCC (Cri) Supp
445], Esher Singh [Esher Singh v. State of A.P., (2004) 11
SCC 585 : 2004 SCC (Cri) Supp 113], Rama Kant Verma
[Rama Kant Verma v. State of U.P. (2008) 17 SCC 257 :
(2010) 4 SCC (Cri) 734]. Further, it is pertinent here to
observe that it may not be possible to strictly enumerate
as to who all will have locus to maintain an appeal before
this Court invoking Article 136 of the Constitution of India,
it depends upon the factual matrix of each case, as
each case has its unique set of facts. It is clear from the
aforementioned case law that the Court should be liberal in
allowing any third party, having bona fide connection with
the matter, to maintain the appeal with a view to advance
substantial justice. However, this power of allowing a third
party to maintain an appeal should be exercised with due
care and caution. Persons, unconnected with the matter
under consideration or having personal grievance against
the accused should be checked. A strict vigilance is required
to be maintained in this regard.”
(Emphasis supplied)
18. More recently, similar to the case at hand, in Naveen Singh v.
State of U.P. (2-Judge Bench),7 while considering the locus of the
Petitioner therein, this Court observed that since the allegations
concerned tampering with the order of the Court, hence locus is not
that important but, in fact, insignificant with the State not carrying
forward the matter any further.
19. In view of the above expositions of law, we are of the considered
view that the locus standi of the appellant in SLP(Crl.)No.4887 of
2024, does not come in the way of this Court hearing the same. The
case at hand, which has been quashed by the High Court, involves
serious allegations of interference with judicial processes which strike
at the very foundation of both dispensation and the administration
of justice. Therefore, the first issue is answered in the affirmative
7 [2021] 7 SCR 52 : (2021) 6 SCC 191
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as it is incumbent upon this Court to check the correctness of the
approach adopted by the High Court, and the locus of the appellant
would not come in the way of the same.
20. We now proceed to examine the second issue, which pertains to the
bar of prosecution under Section 195(1)(b) of the Cr.P.C. It reads as:
“195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
relating to documents given in evidence.
(1) No Court shall take cognizance—
(a) (i) of any offence punishable under sections 172 to 188
(both inclusive) of the Penal Code, 1860, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence,
or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate;…
(b) (i) of any offence punishable under any of the following
sections of the Indian Penal Code ( 45 of 1860), namely,
section 193 to 196 (both inclusive), 199, 200, 205 to 211
(both inclusive) and 228, when such offence is alleged to
have been committed in, or in relation to, any proceeding
in any Court, or
(ii) of any offence described in section 463, or punishable
under section 471, section 475 or section 476, of the
said Code, when such offence is alleged to have been
committed in respect of a document produced or given in
evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to
commit, or the abetment of, any offence specified in sub-
clause (I) or sub-clause (ii),
except on the complaint in writing of that Court or by
such officer of the Court as that Court may authorize
in writing in this behalf, or of some other Court to
which that Court is subordinate.
[2024] 11 S.C.R. 1459
M.R. Ajayan v. State of Kerala & Ors.
(2) Where a complaint has been made by a public ser-
vant under clause (a) of Sub-Section (1) any authority to
which he is administratively subordinate may order the
withdrawal of the complaint and send a copy of such order
to the Court; and upon its receipt by the Court, no further
proceedings shall be taken on the complaint;
Provided that no such withdrawal shall be ordered if the
trial in the Court of first instance has been concluded.
(3) In clause (b) of Sub-Section (1), the term “Court” means
a Civil, Revenue or Criminal Court, and includes a tribunal
constituted by or under a Central, provincial or State Act
if declared by that Act to be a Court for the purposes of
this section.
(4) For the purposes of clause (b) of Sub-Section (1), a
Court shall be deemed to be subordinate to the Court to
which appeals ordinarily lie from appealable decrees or
sentences of such former Court, or in the case of a civil
Court from whose decrees no appeal ordinarily lies, to
the principal Court having ordinary original civil jurisdiction
within whose local jurisdiction such Civil Court is situate;
Provided that—
a. where appeals lie to more than one Court, the Appellate
Court of inferior jurisdiction shall be the Court to which
such Court shall be deemed to be subordinate;
b. where appeals lie to a civil and also to a Revenue
Court, such Court shall be deemed to be subordinate to
the civil or Revenue Court according to the nature of the
case or proceeding in connection with which the offence
is alleged to have been committed.”
21. The principles relating to prosecutions under Section 195 Cr.P.C.,
as expounded by this Court in Sachida Nand Singh v. State of
Bihar (3-Judge Bench);8 M.S. Ahlawat v. State of Haryana &
Anr. (3-Judge Bench);9 Iqbal Singh Marwah & Anr. v. Meenakshi
8 [1998] 1 SCR 492 : (1998) 2 SCC 493
9 [1999] Suppl. 4 SCR 160 : (2000) 1 SCC 278
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Marwah & Anr. (5-Judge Bench);10 Perumal v. Janaki (2-Judge
Bench);11 and Sivamani (supra) are:
i. The procedure prescribed under Section 195 Cr.P.C. is
mandatory in nature.
ii. The Section curtails the general right of a person and the
general right of a Magistrate to register a complaint when the
offences enumerated thereunder are committed.
iii. The Section deals with three distinct categories of offences:
(1) contempt of lawful authority of public servants, (2) offence
against public justice, and (3) offence relating to documents
given in evidence.
iv. Broadly, the scheme of the Section requires that the offence
should be such which has a direct bearing on the discharge of
lawful duties of a public servant or has a direct correlation with
the proceedings in a Court of justice, affecting the administration
of justice.
v. The provision only creates a bar against taking cognizance of
an offence in certain specified situations except upon complaint
by the Court.
vi. To attract the bar under Section 195(1)(b), the offence should
have been committed when the document was in “custodia
legis” or in the custody of the Court concerned.
vii. The bar under Section 195(1)(b)(ii) cannot be thought to be
applied when the forgery of a document has happened prior
to its production in Court. The bar only applies in case the
enumerated offence takes place after the production of the
document or in evidence in any Court.
viii. High Courts can exercise jurisdiction and power enumerated
under Section 195 on an application being made to it or suo-
motu, whenever the interest of justice so demands.
ix. In such a case, where the High Court as a superior Court directs
a complaint to be filed in respect of an offence covered under
Section 195(1)(b)(i), the bar for taking cognizance, will not apply.
10 [2005] 2 SCR 708 : (2005) 4 SCC 370
11 [2014] 1 SCR 591 : (2014) 5 SCC 377
[2024] 11 S.C.R. 1461
M.R. Ajayan v. State of Kerala & Ors.
22. In the instant case, the High Court, on the basis of the above bar
on taking cognizance, has quashed the order taking cognizance and
proceedings emanating therefrom. We are of the considered view,
that this approach was not correct for the reasons set out below.
23. At this stage, we must reiterate and re-emphasize the genesis of
the proceedings in this case. On a perusal of the FIR, it is clear
that based on the letter issued by the Kerala High Court dated 27th
September, 1994 and by the District Judge, Trivandrum, the offence
was registered against the accused persons. The criminal proceedings
clearly do not arise from a complaint by a private individual.
24. Elaborating the law to the attending facts, we notice that this Court
in Perumal (supra) had observed:
“19. Therefore, all that sub-section (4) of Section 195
says is that irrespective of the fact whether a particular
court is subordinate to another court in the hierarchy
of judicial administration, for the purpose of exercise
of powers under Section 195(1), every appellate Court
competent to entertain the appeals either from decrees
or sentence passed by the original Court is treated to be
a court concurrently competent to exercise the jurisdiction
under Section 195(1). The High Courts being constitutional
courts invested with the powers of superintendence over
all courts within the territory over which the High Court
exercises its jurisdiction, in our view, is certainly a court
which can exercise the jurisdiction under Section 195(1).
In the absence of any specific constitutional limitation of
prescription on the exercise of such powers, the High
Courts may exercise such power either on an application
made to it or suo motu whenever the interests of justice
demand.”
25. The above exposition came to be followed and expanded by this
Court in Sivamani (supra), wherein it was observed:
“12. …. While the bar against cognizance of a specified
offence is mandatory, the same has to be understood in
the context of the purpose for which such a bar is created.
The bar is not intended to take away remedy against a
crime but only to protect an innocent person against false or
1462 [2024] 11 S.C.R.
Digital Supreme Court Reports
frivolous proceedings by a private person. The expression
“the public servant or his administrative superior” cannot
exclude the High Court. It is clearly implicit in the direction
of the High Court quoted above that it was necessary in
the interest of justice to take cognizance of the offence in
question. Direction of the High Court is on a par with the
direction of an administrative superior public servant to file
a complaint in writing in terms of the statutory requirement.
The protection intended by the section against a private
person filing a frivolous complaint is taken care of when the
High Court finds that the matter was required to be gone
into in public interest. Such direction cannot be rendered
futile by invoking Section 195 to such a situation. Once
the High Court directs investigation into a specified offence
mentioned in Section 195, bar under Section 195(1)(a)
cannot be pressed into service. The view taken by the
High Court will frustrate the object of law and cannot be
sustained.”
(Emphasis supplied)
26. The High Court differentiated the judgment of this Court in Sivamani
(supra), to the facts of the case herein, stating that in this case, the
final report came to be filed on the basis of an administrative order
and not a judicial one. We are unable to agree with the reasoning
of the High Court on this aspect.
27. As discussed above, the initiation of the present proceedings in the
present case, was from the judgment and order dated 5th February,
1991 of the Kerala High Court in Criminal Appeal No. 20 of 1991, in
acquitting Andrew Salvatore directing the matter of planting of Mo2
be positively looked into. This was followed by an investigation by
the vigilance officer of the Court. Therefore, in the impugned order,
the High Court has erroneously observed that there is no judicial
order concerning the present proceedings.
28. The High Court also distinguished Sivamani (supra) on the ground
that the public interest present therein is absent in the present case.
This is the second aspect that must be clarified. The alleged act is a
glaring occurrence where the process of criminal prosecution stands
interfered with, impugning upon the sanctity of judicial proceedings,
resulting in a travesty of justice. Such actions not only erode public
[2024] 11 S.C.R. 1463
M.R. Ajayan v. State of Kerala & Ors.
trust in the judicial system but compromise the principles of the
rule of law and fairness, which are essential for the justice delivery
system. Such incidents strike at the foundation of the independence
and integrity of the judicial process, hence, it cannot be said that
there is a lack of public interest herein. In the peculiar circumstances
obtained in this case where the accused allegedly received a material
object in question, from the judicial custody, despite there being no
specific order for release thereof, and subsequently tinkered/ assisted
in tinkering with the same and thereafter substituted it for the original.
29. Furthermore, on a perusal of the judgment of this Court in Sivamani
(supra) and the statutory provision, there is no distinction between
a judicial or administrative order by a “Court to which that Court is
subordinate.”
30. The second question is, accordingly, answered in the negative.
31. Lastly, independent of the above, this Court must address the ground
of challenge to the impugned order raised by the appellant - Antony
Raju, in the appeal arising out of SLP(Crl.)No.7896 of 2023. He has
submitted that the High Court could not have ordered a de novo trial
against him, being impermissible in law, as has been so directed
to be done in paragraph 28 of the impugned order. In our view, it
cannot be said that the High Court, in the attending circumstances,
erred in doing so.
32. On this aspect, we must make reference to the judgment of this Court
in Nasib Singh v. State of Punjab (3-Judge Bench),12 wherein it
was stated:
“33. The principles that emerge from the decisions of this
Court on retrial can be formulated as under:
33.1. The appellate Court may direct a retrial only in
“exceptional” circumstances to avert a miscarriage of
justice.…
33.6. The following are some instances, not intended to
be exhaustive, of when the Court could order a retrial on
the ground of miscarriage of justice:
12 [2021] 13 SCR 566 : (2022) 2 SCC 89
1464 [2024] 11 S.C.R.
Digital Supreme Court Reports
(a) The trial court has proceeded with the trial in the
absence of jurisdiction;
(b) The trial has been vitiated by an illegality or irregularity
based on a misconception of the nature of the proceedings;
and
(c) The prosecutor has been disabled or prevented from
adducing evidence as regards the nature of the charge,
resulting in the trial being rendered a farce, sham or
charade.”
33. More recently, in Sunita Devi v. State of Bihar & Anr. (2-Judge
Bench),13 this Court summarized the power of an Appellate Court
to order retrial:
“8. Every trial is a march towards the truth. It is the
primary duty of the Court to search for the truth using the
procedural law as its tool. Such a procedural law may have
a substantive part extending certain inalienable rights to
both, the accused and the victim. By non-compliance of
the procedural law, justice cannot be allowed to derail.
Anyone, who complains of an unfair trial, is duty bound to
satisfy the Court that he stands prejudiced by it. This does
not mean that a Court can be lackadaisical in following the
rules and procedures meant to ensure justice.
9. A fair trial is the heart and soul of criminal jurisprudence.
The principle of democracy lies in a fair trial. It is not only
a statutory right, but also a human right, which would be
violated when the safeguards provided under the Statute
are not followed. The absence of a fair trial would seriously
impair and violate the fundamental rights guaranteed under
Articles 14 and 21 of the Constitution of India. What is
important to be seen is the existence of a failure of justice,
which is obviously one of fact. A mere violation per se
would not vitiate the trial, especially when the degree of
substantivity exhibited in a statute is minimal.
27. An Appellate Court has got ample power to direct
re-trial. However, such a power is to be exercised in
13 [2024] 5 SCR 629 : 2024 SCC OnLine SC 984
[2024] 11 S.C.R. 1465
M.R. Ajayan v. State of Kerala & Ors.
exceptional cases. The irregularities found must be so
material that a re-trial is the only option. In other words, the
failure to follow the mandate of law must cause a serious
prejudice vitiating the entire trial, which cannot be cured
otherwise, except by way of a re-trial. Once such a re-trial
is ordered, the effect is that all the proceedings recorded
by the Court would get obliterated leading to a fresh trial,
which is inclusive of the examination of witnesses.”
(Emphasis supplied)
34. Applying the above principles to the case at hand, the alleged forgery
of evidence in a criminal investigation has resulted in acquittal in
the NDPS case and, thereafter, an FIR has been registered, in the
circumstance referred to hereinbefore. But then, the interference by
the High Court in quashing the criminal proceedings was unwarranted.
35. Therefore, in view of the above the impugned order is set aside.
The order taking cognizance in Crime No.215/1994 and all further
proceedings pursuant to the same (C.C No 811 of 2014) are restored
on the files of Judicial First Class Magistrate-I, Nedumangad.
36. Before parting with the present appeals, there is another aspect
that this Court must be cognizant of. The proceedings in the case
at hand emanate from nearly two decades ago. Therefore, in the
interest of justice, we deem it appropriate to direct the Trial Court
to conclude the trial within a period of one year from today. The
accused shall appear before the Trial Court on 20th December 2024
or on the next working day of the Court concerned. The Registry to
take follow-up steps.
37. The appeal arising out of SLP(Crl.)No.4887 of 2024 is allowed in
the aforesaid terms. The appeal arising out of SLP (Crl.)No.7896 of
2023 is dismissed. All pending applications, if any, are disposed of.
Result of the case: Appeal arising out of SLP(Crl.) No.4887 of
2024 allowed.
Appeal arising out of SLP (Crl.) No.7896 of
2023 dismissed.
†
Headnotes prepared by: Nidhi Jain
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