Supreme Court of India

N. NATARAJANversusB.K. SUBBA RAO

Citation: 2002 INSC 507
Decided: 3 December 2002
Disposal: Appeal(s) allowed
Bench: S RAJENDRA BABU

Holding

The Supreme Court held that Article 136 confers unlimited appellate jurisdiction, the respondent has locus standi under Section 340, but the public prosecutor's conduct does not attract criminal liability, and the Designated Judge’s order is set aside.

Summary

The respondent filed an application under Section 340 of the Criminal Procedure Code before a Designated Court, alleging that the appellant, the Chief Public Prosecutor, had made contradictory submissions in the Bombay blast case, potentially amounting to fabrication of evidence. The Designated Judge held that the respondent had locus standi and ordered notice to be issued to the appellant. The appellant challenged this order before the Supreme Court under Article 136, contending that the order was an interim decision under TADA and that the respondent, a stranger to the proceedings, lacked standing. The Supreme Court held that the extraordinary jurisdiction under Article 136 is not curtailed by statutory appeal provisions and that any citizen may lodge a complaint under Section 340, but the prosecutor's contradictory statements did not constitute an offence under Sections 192‑196, 227, 340 or 341 CrPC. Consequently, the Court set aside the Designated Judge’s order, dismissed the Section 340 application, and restrained the respondent from filing similar petitions in the future.

Issues considered

Whether the Supreme Court can entertain an appeal under Article 136 against an interim order of a Designated Court despite the existence of statutory appeal provisions under Section 341 CrPC.
Whether a stranger to the proceedings has locus standi to file a complaint under Section 340 CrPC against a public prosecutor.
Whether the public prosecutor's contradictory statements amount to offences under Sections 192‑196, 227, 340 and 341 CrPC.
Whether issuing notice under Section 340 in the present circumstances would impair the functioning of the public prosecutor and cause a miscarriage of justice.

Legislation cited

Code of Criminal Procedure, 1973s. 192, s. 193, s. 194, s. 195, s. 196, s. 227, s. 340, s. 341
Constitution of Indias. Article 136
Indian Penal Code, 1860s. 121, s. 121A

Subjects

Article 136Section 340 CrPClocus standipublic prosecutorBombay blast caseTADAmiscarriage of justiceappellate jurisdictioncriminal procedure

Judgment

A N. NATARAJAN
v.
B.K. SUBBA RAO

DECEMBER 3, 2002

B [S. RAJENDRA BABU AND ARUN KUMAR, JJ.J

Code of Criminal Procedure, 1973; Sections 192 to 196, 227, 340 and
341: Proceedings before Designated Court-Complaint against Public
C Prosecutor-Locus standi-According to Designated Court Complainant has
locus standi to file complaint against Public Prosecutor and directed issue
ofnotice-Challenge of-Power under Article 136-Jnvoking of-Held, power
under Article 136 not subject to any limitation and left entirely to discretion
of Supreme Court-Court has duty to interfere in case of grave miscarriage
ofjustice and it cannot be taken away by any legislation except constitut~onal
D amendment-Issuing of notice in such complaint would affect adversely
functioning of public prosecutor in proper conducting of cases with full
freedom and might·result in serious miscarriage in administration ofjustice,
besides advocates would feel insecured-Constitution of India, 1950-Article
136.

E Words & Phrases:

'NOLLE PROSEQUJ'-Meaning of

Respondent filed an application before the Designated Court alleging
that appellant-Chief Public Prosecutor while conducting Bombay blast case
F submitted that the material on record was sufficient to frame charges against
accused in that matter. However, at later stage of the proceedings, he submitted
to drop those charges against the accused. These contradictory submissions
causes injury and injustice to some of the accused and his conduct would attract
the provision.of Section 192 to 196 and 227 Cr.P.C. Designated Court
G recorded its satisfaction as to locus standi of the respondent and directed to
issue notice to the appellant, which was challenged in this appeal.

It was contended for the appellant that since respondent was stranger
to the proceed~ngs before TADA Court, no public interest would be served by
interfering in the matter.
H 428
N. NATARAJAN v. B.K. SUBBA RAO 429
Respondent contended that no appeal under Article 136 lies against the A
interim order passed by the Designated Judge under TADA; and that exercise
of power in this matter by this Court would affect his statutory right to appeal
under Section 341 Cr. P.C.

Allowing the appeal, the Court
B
HELD: 1.1. It is trite to say that the extraordinary power conferred under
Article 136 of the Constitution cannot be taken away by any legislation, short·
of constitutional amendment The nature of the statute or limitations "imposed
within a statute cannot deter this Court from exercising its jurisdiction. It is
not even restricted by the appellate provisions enumerated in Criminal C
Procedure Code or any other statute. Therefore, contentions urged, which
are preliminary in nature, cannot detain this Court in entertaining ·this matter
or examining the correctness of the proceedings before the Designated Judge.
(434-B-C)

1.2. An appeal lies when a matter is finally and conclusively decided by D
a Court or a Tribunal. If the High Court or the Supreme C 0urt, in exercise
of the extraordinary jurisdiction under Article 226 or Article 136 of the
Constitution or under Section 482 Cr.P.C., as the case may be, quashes certaiii
proceedings, a party cannot complain that his right to statutory appeal had
been deprived. [434-D-E)
E
A.R. Antulay v. R.S. Nayak, 11988) 2 SCC 602, distinguished.

2. It is well settled that in criminal law that a complaint can be lodged
by any one who has become aware of a crime having been committed and
thereby set the law into motion. In respect of offences adverted to in Section
195 Cr.P.C. there is a restriction that the same cannot be entertained unless F
a complaint is made by a Court because the offence is stated to have been
committed in relation to the proceedings in that Court. Section 340 Cr.P.C.
is invoked to get over the bar imposed under Section 195 Cr.P.C. In ·ordinary
crimes not adverted to under Section 195 Cr.P.C. if in respect of any offence,
law can be set into motion by any citizen of this country, any citizen of this G
country can approach even under Section 340 Cr.P.C. For that matter, the
· wordings of Section 340 Cr.P.C. are significant. The Court will have to act in
the interest of justice on a complaint or otherwise. Assuming that the
complaint may have to be made at the instance of a party having an interest in
the matter, still the Court can take action in the matter otherwise than on a
complaint, that is, when it has received information as to a crime having been H
.430 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A committed covered by the said provision. (434-H; 435-A-C(

3.1. In the instant case, the hearing as to framing of charges has gonr
on for nearly eight months. Considering the nature of the charges to be
framed, the voluminous record of the case presented before the Court, the
seriousness and magnitude of the matter when several hundred of persons
B have been killed and property worth crores of rupees has been destroyed, in
what manner the case should be conducted is a very serious affair. If the public
prosecutor had been supporting at one stage of the proceedings the charge
sheet that had been laid in respect of the offences arising under Sections
121 and 121A IPC, later on he realises that evidence is not available at that
C stage of the case, seeks for the time being these charges need not be proceeded
with, and if fur.ther investigation discloses such offences as having been
committed, supplementary charge sheet would be filed before the Court later,
such shift in the stand would not attract offences enumerated under Section
195 Cr.P.C. [436-B-DJ

D 3.2. Designated Judge, while holding that the respondent ha.d locus
standi to present the petition and ordering issuing of notice, ought to have
applied his mind further as to whether he should proceed further in the matter
at all. If he had thoroughly perused the petition, it would have appeared that
the submissions made by the public prosecutor however contradictory they
may be, cannot amount to fabrication of evidence by any stretch of imagination.
E (437-C, DJ

3.3. In criminal cases even after committal proceedings are over at'the
stage of sessions trial before charges are framed by the Court or at the stage
of final arguments, many public prosecutors have entered NOLLE PROSEQUI
in cases where they thought that a charge could not be framed or the concerned
F
accused should be acquitted. That does not mean that such a stand could not
have been taken or attracts wrath of Section 340 Cr.P.C. (436-A, BJ

3.4. It is noticed that issue of notice on an application of this nature
would have serious impact upon the public prosecutor in conducting the case
G particularly when at every stage he has got to be conscious whether any of
his statement would attract Section 340 Cr.P.C. This is not the kind of
atmosphere where a public prosecutor can function effectively, independently
and fearlessly. In the conduct of the case, a public prosecutor must have full
freedom and he can even give up certain cases and request the Court to
discharge or acquit any accused. If that kind of autonomy is to be enjoyed by
H the public prosecutor, he cannot be fettered in conducting the proceedings.
N. NATARAJAN v. B.K. SUBBA RAO (S. RA.IENDRA BABU, J.] 431

By initiating the proceedings against him, the Designated Judge has crippled A
the freedom of the public prosecutor in functioning effectively and such a
matter certainly results in serious n1iscarriage in administration of justice
and no Advocate would feel safe if such proceedings are initiated on the basis
of the allegations of the nature made in the complaint. (437-E, GJ

Dr. Budhi Kata Subbarao v. Mr. K Parasaran and Ors., (1996) Supp. 4 B
SCR 574, referred to.

4. It is clarified that the respondent shall not engage in this kind of
litigation hereafter and he is restrained from making any applications of this
nature and if any such application is made before any Court, the same shall C
be dismissed in limine and appropriate proceedings be initiated against him.
(438-A, Bl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 556
of 1995.

From the Judgment and Order dated 21.2.1995 of the Mumbai High D
Court in M.A. No. 49195 in B.B.C. No. I of 1993.

K.K. Venugopal and V. Krishna Murthy for the Appellant.

In-person for the Respondent.

The Judgment of the Court was delivered by E
RAJENDRA BABU, J. An application under Section 340 of the Criminal
Procedure Code was laid by the respondent in the Designated Court at
Bombay. The appellant had been conducting the cases as the Chief Public
Prosecutor before the Designated Judge in what is popularly known as
"Bombay Blast Cases". The respondent urged in his petition that the appellant F
,, before us being a public prosecutor had an onerous duty and had to act in
a fair manner and at one stage of the proceedings both orally and in writing
had submitted to the court that the material on record was sufficient to frame
charges against various offences arising under Chapter VI of the Indian Penal
Code like waging war against the State, etc., after adverting to the decisions G
of this Court. However, at a later stage of the proceedings in the same case,
the appellant urged the Designated Court to drop the charges under Sections
121 and ! 21 A !PC against all the 157 accused as there was no material. Thus
he made statements which were contrndictory to the earlier stand taken by
him and left the matter to the discretion of the court to accept one or the other
version to be true in order to secure the ends of justice. Apart from misconduct H
432 SUPREME COURT REPORTS [2002) SUPP. 4 S.C.R.

A on the pait of the appellant arising under the Advocates Act, it is contended
that the same would amount to criminal contempt of court. The contention
advanced on behalf of the respondent was that the charge of waging war
against the State without reasonable or sufficient material on record results
in grave injustice and injury to some of the accused and if he had carried out
his functions with due care and caution, such injustice would not have
B occasioned. He contended in the course of the application as follows :

" ................. Having opened the case under Section 226 CrPC and having
proceeded "quit.e far under Section 227 CrPC in respect of framing
charges, for the prosecutor to come up with a plea not to frame the ·
charges for Iack of material on record amounts to making a mockery
c of the administration of justice. The conduct of the CBI prosecutor
Mr. Natarajan has polluted the course of administration of justice,
notwithstanding the fact that there is material or not to frame the
·~
charge. This kind of conduct on the part of the public prosecutor if
not dealt with according to law would leave wide scope in our judicial
D system to injure and cause injustice to ill place citizens. Therefore a
judicial examination of the conduct of the CBI prosecutor Mr. Natarajan
will be in public interest, as it would act as a deterrent against public
prosecutors indulging in unfair practices."

The respondent also submitted that he was not concerned with the
E outeome of the case but more in the conduct of the public prosecutor in
making contradictory submissions. He submitted that this conduct on the part
of the appellant would attract the provisions of Section 192 to 196 and 227
CrPC.

On receipt of the application, the learned Designated Judge directed the
F Registry to post the matter for hearing on the question of locus standi of the
respondent to file an•·application under Section 340 CrPC and whether that
court had jurisdiction to entertain the application. The Designated Judge held
that he was satisfied that the .court could entertain a complaint even at the
instance of a stranger in order to address his grievances as offences affecting
G the administration of justice. Though the appellant was not notified of the
said application, the learned Designated Judge heard Mr. R.K.H. Sharma,
Special Public Prosecutor, in the matter and noted that he had not challenged
the locus standi of the respondent in presenting the application but had
emphasised that if the court entertains such petition without ascertaining its

-
merit, it would open flood gates and any person would walk in the court with
H such petitions. Before the learned . Designated Judge, it was contended
·-

N. NAT ARA.JAN v. B.K. SUBBA RAO [S. RAJENDRA BABU. J.] 433

by Mr. Sharma that there can be only two parties before the court. that is, A
the public prosecutor or the complainant, as the case may be, and on the
other side the accused represented by his advocate and in those circun1stances
the respondent could not be heard in the matter. However, the cou1t by an
order made on 21.2.1995, recorded its satisfaction as to the locus standi of
the respondent and directed to register the application and to issue notice to B
the public prosecutor returnable on 10.3.1995. The public prosecutor noted to
have taken notice of the matter. Against this order of the Designated Judge,
the present appeal has been filed by the appellant.

This Court, on 8.3.1995, directed to issue no.tice to the respondent and
also granted an ad-interim stay of the order made by the Designated Judge C
on 21.2.1995 and it was also made Clear thatthe pendency of these proceedings
will not debar the petitioner from functioning as a prosecutor in the case
known as the Bombay Blast Case. Thereafter leave was granted and the
interim order granted was affirmed.

When the matter was set down for final hearing, the respondent appeared D
in person and contended that this Court should not entertain a petition on
appeal under Article 136 of the Constitution inasmuch •.s the order passed
by the Designated Judge being under TADA and is an interim order and no
appeal lies against such order in view of Section 19 thereof. He further
contended that inasmuch as an appeal lies under Section 341 CrPC against
an order made under Section 340 CrPC in the event of a complaint having E
been 1nade against the appellant. In this context, he also dre\.v our attention
to the provisions of sub-section (2) of Section 340 CrPC to point out that the
power conferred on the court under Section 340(1) CrPC in respect of an
offence could be exercised by an appellate court in case the subordinate has
neither made a c~mplaint under sub-section (I) in respect of that offence nor F
rejected an application for the making of such complaint. He, therefore,
submitted that the powers of this Court under Article 136 shou Id not be
exercised as exercise of such power would affect a statutory right of appeal.

Article 136 of the Constitution enables this Court to exercise in its
discretion appellate powers by granting special leave from any judgment, G
decree, determination, sentence or order in any caus_e or matter passed or
made by any court or tribunal in India. This power is conferred on this Court
notwithstanding the provisions for regular appeal from proceedings in different
enactments being available and there 1nay remain some cases \Vhere justice
might require interference by this Court with the decisions of the High Courts H

i
434 SUPREME COURT REPORTS [2002) SUPP. 4 S.C.R.

A or the tribunals of the land. The power of th is Court to grant leave to appeal
from any decision of any court or tribunal is not subject to any limitation and
is left entirely to the discretion of this Court. Though this Court is circumspect
in its exercise of its jurisdiction under Article 136 it has a duty to interfere
in cases of grave miscarriage of justice. It is trite to say that the extraordinary
B power conferred under Article 136 of the Constitution cannot be taken away
by any legislation, short of constitutional amendment. The nature of the
statute or limitations imposed within a statute cannot deter this Court from
exercising its jurisdiction. It is not even restricted by the appellate provisions
enumerated in Criminal Procedure Code or any other statute. Therefore,
contentions urged, which are preliminary in nature, cannot detain us in
C entertaining this matter or examining the correctness of the proceedings
before the Designated Judge. However, the respondent urged that in A.R.
Antulay v. R.S. Nayak, [1988] 2 SCC 602, this Court had held that one of the
considerations in exercise of its powe;· by this Court is not to deprive any
party of a statutory appeal and if such deprivation occasions then the matter
will have to be reopened as was done in that case. This argument proceeds
D on a misconception .of the position in law. An appeal lies when a matter is
finally and conclusively decided by a court or a tribunal. If the High Court
or the Supreme Court, in exercise of the extraordinary jurisdiction under
Article 226 or Article 136 of the Constitution or Section 482 Cr.P.C., as the case
may be, quashes certain proceedings, a party cannot complain that his right
E to statutory appeal had been deprived .. Therefore, this contention deserves
to be rejected.

Mr. K.K. Venugopai, learned Senior Advocate appearing for the appellant,
submitted that the respondent has a habit of making such complaints and he
is not .a person who is interested in the matter in any way and no public
F interest would be served by entertaining an application made by him and he
is a total stranger to the proceedings. In fact, he described the respondent
as 'busy body or interloper' in the proceedings. In answer to this contention,
the respondent relied upon the decisions.in Bhagwandas Narandas v. D.D.
Patel & Co., AIR (1940) Bombay 131 and Harekrishna Par.ida and Ors., v.
G Emporer, AIR ( 1929) Patna 242, to contend that even a stranger to a cause
can lodge a complaint under Section 340 CrPC.

In our view it is not necessary to pursue the approach of either of the
party. It is well settled that in criminal law that a complaint can be lodged by
anyone who has become aware of a crime having been committed and thereby
H set the law into motion. In respect of offences adverted to in Section 195
N. NAT ARA.JAN v. ll.K. SUBBA RAO [S. RAJENDRA BABU. J.j 435

CrPC, there is a restriction that the sa1ne cannot be entertained unless a A
complaint is made by a court because the offence is stated to have been
com1nitted in relation to the proceedings in that court. Section 340 CrPC is
invoked to get over the bar imposed under Section 195 CrPC. In ordinary
crimes not adverted to under Section 195 Cr PC, if in respect of any offence,
law can be set into motion by any citizen of this country, we fail to see how
any citizen of this country cannot approach even under Section 340 CrPC. For B
that matter, the wordings of Section 340 CrPC are significant. The Court will
have to act in the interest of justice on a complaint or otherwise. Assuming
that the complaint may have to be made at the instance of a party having an
interest in the matter, still the court can take action in the matter otherwise
than on a complaint, that is, when it has received information as to a crime C
having been committed covered by the said provision. Therefore, it is wholly
unnecessary to examine this aspect of the matter. We proceed on the basis
that the respondent has locus standi to present the complaint before the
Designated Judge.

What we have to see is whether the different statements at different D
stages of the case made by the public prosecutor wou Id amount to any
offence attracting the provision of Section 340 CrPC. We repeatedly asked the
respondent as to how two different stands taken by a counsel would be
covered by the offences referred to in provisions of Section 195 CrPC. He
tried to explain that there is distinction between submissions made on law and
E
on facts. Submissions based on facts, which would affect the life and liberty
of innocent persons are not legal submissions but would amount to causing
circumstances to exist so as to amount to fabricating evidence within the
meaning of Section 192 IPC.

Supposing a counsel presents a preposterous argument or blatantly F
wrong argument which, he later on corrects himself on realizing the
incorrectness of his submission or in a converse situation, having made a
correct argument realising '.hat the same would defeat the claim of his client,
takes a diametrically opposite stand, could it be said that the said stand would
. lead to fabricating evidence before the court in any manner which attracts the
offences adverted to under Section 195 CrPC. By no stretch of imagination, G
can we say that the stand of a counsel, howsoever inconsistent it may be at
different stages of the proceedings, can amount to offences adverted to under
Section 195 CrPC. If the courts begin to issue notice for prosecution or a,s
to why the inquiry should not be made in the matter or to launch a prosecution,'
no Advocate can function with safety nor can he assist the court with the H
436 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A necessary fearlessness which is required of him. It is not unknown that even
in criminal cases even after committal proceedings are over at the stage of
sessions trial before charges are framed by the court or at the stage of final
arguments, many public prosecutors have entered NOLLE PROSEQUI in cases
where they thought that a charge could not be framed or the concerned
B accused should be acquitted. However, that does not mean that such a stand
could not have been taken or attracts wrath of Section 340 CrPC.

In the present case, the hearing as to fraining of charges has gone on
for nearly eight months: Considering the nature of the charges to be framed
in the case, the voluminous record of the case presented before the court, the
C seriousness and magnitude of the matter when several hundred of persons
have been killed and .property worth crores of rupees has been destroyed, in
what manner the case should be conducted is a very serious affair. If the
public prosecutor had been supporting at one stage of the proceedings the
charge sheet that had been laid in respect of the offences arising under
Sections 121 and 12IA Indian Penal Code, later on he realises that evidence
D is not available at that stage of the case, seeks that for the time being these
charges need not be proceeded with, and if further investigation discloses
such offences as having been committed, supplementary charge sheet would
be filed before the court later, we fail to understand as to how. such shift in
the stand would attract offences enumerated under Section 195 CrPC.
E The stand of the respondent that we should not interfere in this matter
as relevant facts are before the Designated Court and not before this Court
does not hold water. What we are examining is whether the complaint made
by the respondent, taking it as a whole, deserves to be proceeded with.

F Though the respondent has grievance as to the manner of disposal of
the case in Dr. Budhi Kota Subbarao v. Mr. K. Parasaran and Ors., (1996)
Supp. 4 SCR 574, the fact remains that he attacked the Attorney General
personally in that case when he furnished his .satisfaction in a matter and now
the appellant 'herein. Though this Court castigated the respondent in that
case, did not proceed further to impose any cost upon him or to debar him
G from presenting such petitions thereafter. This is one of those rare cases
where we think that we ought to exercise our powers in the interests of
administration of justice to restrict the hands of the respondent to engage in
this kind of vexatious litigation. On half-baked knowledge of law, he proceeds
to present argument before the court with an analysis of facts which is
H tendentious and waste the time of the court by trying to cite decisions which
N. NATARAJAN v. B.K. SUBBA RAO [S. RAJENDRA BABU. J.] 437

have no relevance to the case. In the present case too, he did not the same. A
He drew our attention to one case where a Sub-Judge, who had tampered with
the proceedings before the court to facilitating substitution of the \Vritten
statement, pursuant to a complaint being filed, was prosecuted under Section
340 CrPC; to another case where a pleader had instigated the witnesses to
tender false evidence before the court; to cases where the witnesses have
changed their stand from time to time. All those cases, in our opinion, have B
no bearing at all on the present case.

We are amazed at the manner in which the learned Designated Judge
dealt with this matter. While holding that the respondent had locus standi to
present the petition, he ought to have applied his mind further as to whether C
he should proceed further in the matter at all. If he had thoroughly perused
the petition, it would have appeared that the submissions made by the learned
public prosecutor - however contradictory they may be -· in a c~se cannot
amount to fabrication of evidence by any stretch of imagination. The substance
of the complaint should have been looked into and should have been decided.
If such caution had been exercised, we are sure, he would not have proceeded D
further in the matter.

We are conscious of the fact that the learned Designated Judge has not
exercised his power under Section 340 CrPC as yet to lodge a complaint nor
has he proceeded to hold an inquiry but at the same time we must notice that E
issue of notice on an application of this nature would have serious impact
upon the public prosecutor in conduct of the case particularly when at every
stage he has got to be conscious whether any of his statement would attract
Section 340 CrPC. This is not the kind of atmosphere where a public prosecutor
can function effectively, independently and fearlessly. In the conduct of the
case a public prosecutor must have full freedom and he can even give up F
certain cases and request the court to discharge or acquit a9y accused. If that
kind of autonomy is to be enjoyed by the public prosecutor, he cannot be
fettered in conducting the proceedings. By initiating the proceedings against
him, the learned Designated Judge has crippled the freedom of the public
prosecutor in functioning effectively and such a matter certainly results in
serious miscarriage in administration of justice and no Advocate would be G
safe if such proceedings are initiated on the basis of the allegations of the
.nature made in the complaint. Either the learned Designated Judge has not
applied his mind or he has not understood the scope of the application and
if he had done either, he would have dismissed the application. That we do
now. H
438 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A In the result, we allow this appeal, set aside the order made by the
learned Designated Judge and dismiss the application filed by the respondent
under Section 340 CrPC. At the same time, we make it clear that the respondent
shall not engage in this kind of litigation hereafter and he is restrained from
making any applications of this nature .and if any such application is made
B before any court, the same shall be dismissed in limine and appropriate
proceedings be initiated against him.

The appeal is allowed accordingly.

S.K.S. Appeal allowed.

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