Holding

The High Court exceeded its jurisdiction by directing fresh investigation and prosecution of the omitted accused without hearing them; its inherent power under Section 482 is limited and must be exercised sparingly, so the directions were set aside.

Summary

The case arose from a 1992 murder where the charge sheet omitted two alleged participants, Popular Muthiah and Murugan, although eye‑witnesses identified them. Only Nallakannu (Muthu) was tried, convicted and sentenced to life imprisonment. On appeal, the Madras High Court, exercising its appellate jurisdiction, directed a fresh investigation by the CB‑CID, the prosecution of the omitted persons and issued several procedural orders, invoking its inherent power under Section 482 of the CrPC. The Supreme Court held that while the High Court may exercise inherent jurisdiction, it cannot, under Section 482, direct a new investigation or prosecution of persons not before it without affording them a hearing, and such power must be exercised sparingly. The Court set aside the High Court’s directions and remitted the matter for fresh consideration, emphasizing the need to respect the limits of Section 386 appellate power and the requirements of natural justice. The appeals were allowed.

Issues considered

Whether the High Court, while exercising appellate jurisdiction under Section 386 CrPC, can direct fresh investigation and prosecution of persons not before it using its inherent power under Section 482.
Whether the High Court may exercise suo motu inherent jurisdiction in an appellate proceeding despite the absence of a specific statutory provision.
Whether the principles of natural justice, particularly the right to be heard, must be observed before the High Court issues directions affecting the rights of the omitted accused.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 173(2)(i), s. 173(8), s. 190, s. 202, s. 319, s. 351, s. 386, s. 391, s. 397, s. 398, s. 482, s. 483
Indian Penal Code, 1860s. 302

Subjects

inherent jurisdictionSection 482 CrPCappellate jurisdictionSection 386 CrPCfresh investigationnatural justiceright to be heardleft‑out accusedSection 319 CrPChigh court powers

Judgment

A POPULAR MUTHIAH
v.
STATE OF TAMIL NADU

JULY 4, 2006

B [S.B. SINHA AND P.P. NAOLEKAR, JJ.]

Code of Criminal Procedure, 1973:

Sections 482, 386. 319 and 173-lnherent jurisdiction of High Court-
C Availability of-In exercise of appellate jurisdiction-Names of two persons
left out from the array of accused despite they having been specifically named
by all the eye-witnesses-Non-compliance of provision under Section 173-
Prosecution of only one accused-Non-exercise ofjurisdiction under Section
319 by Sessions Judge--Conviction by trial court-High Court confirmed his
D conviction, but in exercise of its inherent power directed reinvestigation of the
case regarding left out persons by CB-CID, examination of witnesses and
their prosecution-On appeal, held: In exercise of appellate power under
Section 386, though jurisdiction of High Court is limited, it can exercise its
revisional and/or inherent jurisdiction on application as well as suo motu-
The inherent power can be exercised both in substantive as also procedural
E matters-The power to direct enquiry can be exercised at original as well as
appellate stage-However, High Court was not correct in directing re-
investigation by a particular investigating agency in a particular manner as.
the same does not come within purview of Section 482-ln a case where
Magistrate directs further investigation or Sessions Judge exercises power
F under Section 319, though an accused is not entitled to be heard, but in the
facts of the present case, the left out persons should have been given opportunity
of hearing-Matter remitted to High Court for reconsideration.

Section 482-/nherent power of High Court-Exercise of-When-Held:
It should be exercised sparingly-Where the Code is silent, where the power
G of Court is not treated as exhaustive, or where there is specific provision in
the Code, or the statute does not fall within purview of the Code and where
it acts ex debitor justitiae.

In an incident, 3 persons including the appellants· (one appellant
abetting the crime) were alleged to have caused death of a person. Despite
H JOO
POPULAR MUTHIAH v. ST ATE OFT AMIL NADU 101
specific mention of the names of the three, by the witnesses, no charge A
sheet was filed against the appellants. Copy of the charge sheet was not
sent to the first informant. Even the Magistrate did not inform the first
informant. Only one of the accused was committed to Sessions Trial and
was convicted. Sessions Judge was neither called upon nor suo motu
exercised his jurisdiction in terms of Section 319 Cr.P.C. In appeal by the B
convicted accused, High Court directed fresh investigation by the
Investigating Agency so far as the appellants were concerned, observing
that the evidence of prosecution witnesses show their involvement; that
leaving out their names was not a bonafide error; that provisions of Section
173 (2) (i) Cr.P.C. had not been complied with; and that Sessions Judge
ought to have exercised his jurisdiction under Section 319 Cr.P.C. High C
Court directed entrustment of the investigation to CB-CID, examination
of witnesses and prosecution of the appellants. High Court, however,
confirmed the conviction. Hence the present appeals.

Allowing the appeals and remitting the matter to High Court, the
c~rt D
HELD: 1. High Court in passing the impugned judgment proceeded
on the basis that the independent witnesses had categorically testified about
the involvement of the appellants herein as also other accused in hacking
the deceased to death and the prosecution case was proved on the basis
thereof. The High Court could have arrived at such a finding. (111-D-F) E
2.1. Cr.P.C. is an exhau~tive Code providing a complete machinery
to investigate and try cases, appeals against the judgments. It has
provisions at each stage to correct errors, failures of justice and abuse of
process under the supervision and superintendence of the High Court F
Cr.P.C. provides for a corrective mechanism at each stage, viz., (i)
investigation; (ii) trial; (iii) appeal and (iv) revision. [112-C-D; 113-E-F)

2.2. Whereas inherent power of a court or a tribunal is generally
recognized, such power has been recognized under Cr.P.C only in the High
Court and net in any other court. The High Court apart from exercising G
its revisional or inherent power indisputably may also exercise its
supervisory jurisdiction in terms of Article 227 of the Constitution of India
and in some matters in terms of Section 483 thereof. The High Court,
therefore, has a prominent place in Cr.P.C. vis-a-vis the court of Sessions
which is also possessed of a revisional power. [113-G-H; 114-AI
H
102 SUPREME COURT REPORTS (2006) SUPP. 3 S.C.R.

A The law Commission of India 4/st Report Ot'I the Code of Criminal
Procedure, (1898), referred to,

2.3. While exercis1ing its appellate power under Section 386 Cr.P.C
the jurisdictfon of the High Court although is limited, but there exists a
distinction but a signifkant one being that the High Court can exercise
B its revisional jurisdiction and/or inherent jurisdiction not only when an
application therefor is filed but also suo motu. Keeping in view the intention
of the Parliament, while making the new law the emphasis of the
Parliament being 'a cai:e before the court' in contradistinction from 'a
person who is arrayed as an accused before it' when the High Court is
C seized with the entire case although would exercise a limited jurisdiction
in terms of Section 386 Cr.P.C. the same cannot be held to limit its other
powers and in particul~r that of Section 482 Cr.P.C in relation to the
matter which is not before it. [115-B-E)

2.4. The High Court while, thus, exercising its revisional or appellate
D power, may exercise its inherent powers. Inherent power of the High Court
can be exercised, it is trite, both in relation to substantive as also
procedural matters. [115-F-GJ

2.5. In respect of the incidental or supplemental power, evidently,
the High Court can exercise its inherent jurisdiction irrespective of the
E nature of the proceeding:s. It is not trammeled by procedural restrictions
in that (i) power can be exercised suo motu in the interest of justice. (ii)
Such a power can be exercised concurrently with the appellate or
revisional jurisdiction anid no formal application is required to be filed
therefor. (iii) It is, however, beyond any doubt that the power under
F Section 482 is not unlimited. It can inter alia be exercised where the Code
is silent, where the power of the court is not treated as exhaustive, or there
is a specific provision in the Code, or the statute does not fall within the
purview of the Code because it involves application of a special law. It
acts ex debito justitiae. It can, thus, do real and substantial justice for which
alone it exists. [115-G-H; 116-A-C)
G
Dinesh Dutt Joshi v. State of Rajasthan and Anr., [20011 8 SCC 570;
R. P. Kapurv. State of Punjab, AIR (1960) SC 866; State of Karnataka v. M
Devendrappa and Anr., 1120021 3 SCC 89; Madhu limaye v. State of
Maharashtra, 1977 (4) SCC 551; Raj Kapoor v. State, [19801 1 SCC 43;
Zahira Habibu//a H Sheikh v. State a/Gujarat, [2004) 4 SCC 158 and Satyajit
H Banerjee and Ors. v. State of W.B. and Ors., [200511SCC115, referred to.
POPULAR MUTHIAH v. ST ATE OFTAMIL NADU I03
2.6. The inherent power overrides other provisions of the Cr.P.C. A
but evidently cannot be exercised in violation/contravention of a statutory
power created under any other enactment. Jl 17-C-DI

State Through Special Cell, New Delhi v. Navjot Sandhu Alias Afshan
Guru and Ors., f20031 6 SCC 641, relied on.
B
State of W.B. and Ors. v. Sujit Kumar Rana, (2004] 4 SCC 129, referred
to.

3.1. The power to direct enquiry may not, thus, be held to be confined
only to the original but also of appellate jurisdiction. Such a power can
be exercised also as against the persons who. were not the accused at the C
stage of trial. Such a power evidently can be exercised even after the trial
is over. (118-G-H)

The State of Andhra Pradesh v. Thadi Narayan, (19621 2 SCR 904;
Ranjit Singh v. State of Punjab, 11998] 7 SCC 149; Municipal Corporation D
of Delhi v. Ram Kishan Rohtagi and Ors., 11983] 1 SCC 1; Kishori Singh v.
State ofBihar, (2004) 13 SCC 11; Raj Kishore Prasadv. State of Bihar, (19961
4 SCC 495 and Dharam Pal and Ors. v. State of Haryana and Anr., 12004)
13 sec 9, referred to.

3.2. The High Court, however, was not correct in issuing a direction E
<to the State to take advice of the State Public Prosecutor as to under what
Section the appellant has to be charged and tried or directing the CB, CID
to take up the matter and re-investigate and prosecute the appellants
herein. Such a power does not come within the purview of Section 482
Cr.P.C. Investigation of an offence is a statutory power of the police.The
State in its discretion may get the investigation done by any agency unless F
there exists an extraordinary situation. It is for the Public Prosecutor to
discharge his duties in terms of the provisions of the Cr.P.C. The High
Court, thus, has no role to play in such matters. 1120-F-H; 121-A)

3.3. The High Court while passing the impugned judgment did not
bear the said principles in mind. It went beyond its jurisdiction in directing G
the prosecution of the appellants. In a case of this nature, where a superior
court exercises its inherent jurisdiction, it indisputably should remind itself
about the inherent danger in taking away right of an accused. The High
Court should have been circumspect in exercising the said jurisdiction.
When a power under sub-section (8) of Section 173 Cr.P.C is exercised, H
104 SUPREME COURT REPORTS (2006) SUPP. 3 S.C.R.

A the court ordinarily should not interfere with the statutory power of the
investigating agency. It cannot issue directions to investigate the case from
a particular angle or by a particular agency. In the instant case, not only
the High Court had asked reinvestigation into the matter, but also directed
examination of the w1itnesses who had not been cited as prosecution
B witnesses. It furthermore directed prosecution of the Appellant which was
unwarranted in law. [121-A-DI

3.4. The jurisdiction of the Magistrate in the matter of issuance of
process or taking of cognizance depends upon existence of conditions
precedent therefor. Thie Magistrate has jurisdiction in the event a final
C form is filed (i) to accept the final form; (ii) in the event a protest petition
is filed to treat the same as a complaint petition and if a primafacie case
is made out, to issue processes; (iii) to take cognizance of the offences
against a person, although a final form has been filed by the police, in the
event he comes to the opinion that sufficient materials exist in the case
diary itself therefor; and (iv) to direct re-investigation into the matter.
D [122-F-Hl

Abhinandan Jha and Ors. v. Dinesh Mishra, AIR (1968) SC 117 and
Minu Kumari and Anr. v. The State of Bihar and Ors., (2006) 4 SCALE 329,
referred to.

E 3.5. The power of the Sessions Judge to summon a person to stand
trial with the other accused in exercise of its jurisdiction under Section
319 of the Code of Criminal Procedure is also limited inasmuch as from
the evidences of the witnesses, it must clearly be found that the proceedee
had a role to play in the commission of an offence. [123-A-BI

F 4.1. Inherent power of the High Court is required to be exercised
sparingly. The High Court may or may not in a given situation,
particularly having regard to lapse of time, exercise its discretionary
jurisdiction. For the said purpose, it was not only required to apply its
mind to the materials on records but was also required to consider as to
whether any purpose would be served thereby. [123-B-CI
G
4.2. In a case of this nature with an extra ordinary situation, it would
have been in the fitness of things, the appellant should have been heard
by the High Court. How1ever, this direction is not intended to lay down
the law that while the Magistrate directs a further investigation or a
Sessions Judge while exercises its jurisdiction under Section 319 Cr.P.C.
H an accused is entitled to Ille heard; he is not, as he has no right therefor
POPULAR MUTHIAH v. STA TE OF TAMIL NADU [SINHA, J.] I05
and, thus, the question of hearing him at that stage would not arise. A
(121-F-H; 122-Al

CR!MlNAL APPELLATE JURISDICTION : Cirminal Appeal No. 107
of 2003.

From the Judgment and Order dated 18.4.2002 of the High Court of B
Madras in Crl. Appeal No. 696/1997.

WITH

Crl. A. No. 108 of 2003.

Dr. M.N. Rao, P. Ramesh, P.R. Kovilan and Rakesh K. Sharma for the
c
Appellant.

Dr. Rajeev Dhawan, Prashanta Venkatesh, Subramonium Prasad and
Abhay Kumar for the Respondent
D
The Judgment of the Court was delivered by

S.B. SINHA, J. Whether inherent jurisdiction of the High Court is
available while dealing with a Criminal Appeal filed by an accused is the
principal question involved in this appeal which arises out of a judgment and
order dated 18.4.2002 passed by a Division Bench of the High Court of E
Judicature at Madras in Criminal Appeal No. 696 of 1997.

The appellants before us were not parties to the said Criminal Appeal.

The prosecution case relates to an incidence which took ·place on
13.3.1992 resulting in death of one Chandran. On 13.3.1992, the brother of F
Nallakannu @ Muthu was said to have fatally been attacked in Maruthur
Village. A case was registered against PW3, the brother of PW!, Arasappan,
father of PWI, Vanumamali, brother-in-law of PW3, Raja, son of PW3, Raj,
son of PWI 's sister Ganambal and George (deceased) son of the PW! 's sister
Ganambal. They were arrested and released on bail subject to certain
conditions. PW I and her relatives after the said incident allegedly shifted to G
another village Palayamkottai. The father-in-law of PWI was a homoeopathic
doctor. He was having a medical shop. He was also having a hotel commonly
known as 'Hare Krishna" hotel. The medical shop and the hotel were situate
opposite to each other near Palaymkottai bus stand and were at a distance of
6 furlongs from the house of PW!. H
106 SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A On 11.7.1992 at about 3.00 P.M., PW3 - brother of PWI, Arasappan
father of PWI, Vanumamali - brother-in-law of PW3-Raj son of PWI 's sister
Ganambal and George (deceased) son of PWI 's sister Ganambal came to the
house of PWI. As PWI was not feeling well, she came to the medical shop
ofher father-in-law to prnrchase medicines. Nallakannu @ Muthu, Murugan
B and Popular Mut!:tiah came behind her in a Rajdoot motorcycle. They stopped
them near the Palayamkottai bus stand. The appellant Popular Muthiah
allegedly shouted to kill George - son of PWI 's sister Ganambal and left the
scene on the motorcycle leaving behind Nallakannu and Murugan. Nallakannu
took a sickle which is said to have been hidden in his shirt and assaulted
George on the left side of his neck. The deceased who received bleeding
C injury left his chappals there and started to run from the said place. Nallakannu
and Murugan allegedly chased him. The deceased ran inside 'Hare Krishna'
hotel which, as noticed hereinbefore, owned by the father-in-law of PWI. At
that time, PW3 - brother of PWI and PW4 - Ashokan, brother-in-law of PWI
were inside the hotel. Upon noticing that the deceased was being chased,
PW3 and Ashokan came out of the hotel. Inside the hotel, Murugan is said
D to have assaulted the deceased on his chest. Nallakannu@ Muthu also assaulted
him on the left side of his chest. The deceased also received injuries at his
hands on his shoulder and on the left ear. The deceased thereafter fell down
whereupon Nallakannu again is said to have assaulted the deceased on the
left side of his chest with the sickle. Thereafter, Nallakannu came out of the
E hotel and went towards west.
The deceased was taken to the Government Hospital, Palaymkottai in
an auto-rickshaw by PW3 along with PW2, PW3 and PW4 where he was
declared dead by the doctor. A First Information Report in respect of the said
incident was lodged by PW-I.
F
Admittedly, no chargesheet was filed against the appellant herein. A
copy of the said chargesheet, however, admittedly was not sent to the first
informant. The learned Magistrate, before whose Court the said chargesheet
was filed also did not inform the first informant which was mandatory.
Nallakannu @ Muthu alone was committed to the Court of Sessions. Before
G the learned Sessions Judge, all the eye-witnesses allegedly took the names of
the appellants as having played active roles in the entire episode. The learned
Sessions Judge was neither called upon to exercise nor suo moll/ exercised
his jurisdiction in terms of Section 319 of the Code of Criminal Procedure.
Nallakannu @ Muthu alon'e in the aforementioned situation was tried and
H convicted for commission of the said offence under Section 302 of the IPC
'
POPULAR MUTHIAH v. ST ATE OF TAMIL NADU [SINHA, J.] 107
and was sentenced to undergo rigorous imprisonment for life. A
He preferred an appeal against the said judgment of conviction and
sentence in the High Court which was registered as Criminal Appeal No. 696
of 1997. The said appeal came up for hearing before a Division Bench of the
High Court. The Division Bench examined the materials brought on records
by the prosecution in great details. It was opined that no case has been made B
out to interfere with the judgment of conviction and sentence pa~sed against
the Nallakannu Muthu. He has not approached this Court questioning the
correctness of the said judgment.

The High Court opined:
c
(i) the evidence of PWs I and 2 unimpeachably show the
involvement of Popular Muthiah (abetting), Murugan and the
accused in inflicting the fatal injuries to the deceased;
(ii) the evidence of PWs 3 and 4 show the role played by Murugan
and the accused; and D
(iii) in Ex. I, all the evidence were 'found fully reflective'.

According to the High Court, the action on the part of the investigating
officers, viz., PW-17 and PW-18 leaving out the names of Popular Muthiah
and Murugan from the array of accused was not a bona fide error. It was E
observed:-

"As we feel that Murugan and Popular Muthiah had been left out
willfully by the Investigating Agency, we direct the Director General
of Police to seriously probe into it and take follow-up action in
accordance with law. The fact that the occurrence took place in 1992 F
and we are in 2002 should not be taken as a reason for taking a
lenient view by all those concerned including the Court. Ifthe instances
of this nature are allowed to happen, certainly the people will lose
faith in Police force and in tum in the State Administration as well
as in the administration of justice by Courts."
G
The High Court furthermore noticed that the mandatory provisions of
Section 173 (2)(i) had not been complied with insofar as the first informant
was not .intimated by the Investigating Officer that Murugan and Popular
Muthiah were not to be chargesheeted. Referring to sub-Section (8) of Section
l 73 of the Code of Criminal Procedure, the High Court lamented that the H
108 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A learned Magistrate failed to follow the decision of this Court in Bhagwan
Singh v. Commissioner of Police, [1985) SCC (Crl.) 267 and other judgments
of this Court. The High Court also felt that the District Judge ought to have
conducted himself fairly in the matter of exercising his jurisdiction under
Section 319 of the Code of Criminal Procedure.

B The High Court, therefore, made certain adverse comments against the
Investigating Officers, the public prosecutors as also the learned trial Judge
for conducting themselves in the manner in which they had discharged their
duties.

It was directed:
c
"We are of the view that this is a fit case where we have to direct the
prosecution of Murugan as well as Popular Muthiah; and the learned
State Public Prosecutor shall advise the State as to under what section
they have to be charged and tried. We may be able to relax a bit only
D after directing the CB, CID to take up the matter. We direct the CB,
CID to take over the matter and re-investigate and prosecute the said
Murugan and Popular Muthiah."

It was furthermore directed:-

E "(b) In view of our conclusion that since there is evidence at every
stage impli~ating Murugan and Popular Muthiah in the crime relating
to the murder of G<:orge, justice requires that the Investigating Agency
must have a fresh look on the materials already available on record
and the materials to be collected pursuant to this order in the re-
investigation connecting Popular Muthiah and Murugan also with the
F crime. Therefore, we order fresh investigation by the Investigating
Agency so far as Popular Muthiah and Murugan are concerned.
Consequently, the Director General of Police is directed to entrust the
investigation in this case relating to the involvement of Popular
Muthiah and Murugan to CB, CID. The Director General of Police is
G also directed to nominate an officer, not below the rank of
Superintendent of Police, to monitor the investigation to be done by
CB, CID.

(c ) The Director General of Police is also directed to deeply probe
into the lapses on the part of PW 17 Rajaram and PW! 8 Thondiraj in
H the Investigation conducted with reference to the murder of George,
POPULAR MUTHIAH v. ST ATE OFT AMIL NADU [SLNHA, J.] l 09

so also in the prosecution and take follow-up action in accordance A
with law."

The appellants are, thus, before us.

Mr. M.N. Rao, the learned senior counsel appearing on behalf of the
appellants raised the following contentions in support of this appeal:- B
(i) The High Court while hearing the appeal preferred by
Nallakannan @ Muthu wrongly exercised its power in terms of
Section 482 of the Code of Criminal Procedure.
(ii) While exercising the said jurisdiction, the High Court, thus, could C
neither exercise any revisional jurisdiction under Section 397
nor its inherent jurisdiction under Section 482 of the Code of
Criminal Procedure.
(iii) Suo motu exercise of power by the High Court under Section
482 is unknown in law.
D
(iv) In any event, as the High Court in its impugned judgment did
not state that it was exercising its jurisdiction under Section 482
or 209 of the Code of Criminal Procedure, it is unsustainable in
law.
(v) In any event, the High Court could not have issued the impugned E
directions without giving an opportunity of hearing to the
appellants herein whose fundamental rights have been affected
by reason thereof.
(vi) The direction of the High Court to prosecute the appellants is
illegal and without jurisdiction as such directions could not have
F
been issued in exercise of its inherent power.
(vii) The High Court even could not direct the appellants to stand
trial, inasmuch as the provisions of Section 319 of the Code of
Criminal Procedure were not attracted in the instant case.
(viii) In any view of the matter, the Investigating Officers having found G
lacunae in the prosecution case, particularly in view of the fact
that one of the appellants was found to have suffered fracture in
an accident four days prior to the date of occurrence, it was
wholly improper on the part of the High Court to direct reopening
H
110 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A of the investigation.

Dr. Rajiv Dhawan, the learned sen10r counsel on behalf of the
respondent-State of Madras, on the other hand, submitted:-

(i) The provisions of the Code of Criminal Procedure contained a
B series of interlocked provisions so as to correct the errors in
regard to improper investigation on the part of the investigating
officer.
(ii) Investigation which is bad in law or insufficient investigation is
subject to corrective orders by the High Court;
C (iii) Having regard to the changes made in the Code of Criminal
procedure, 1973, what is brought before the Court is a case and
not the accused.
(iv) The High Court has been conferred a special power, namely, the
inherent power which can be exercised at any stage of the
D proceeding including the appellate proceeding.
(v) In view of the fact that the High Court had directed fresh
investigation, the principles ofnatural justice have no application.
(vi) Jn view of the finding of the High Court in regard to non-
compliance of the mandatory provisions of Section 173 of the ....
E Code of Criminal Procedure as also the gross errors committed
J

by both the learned Magistrate as also the learned Trial Judge,
the High Court had justifiably exercised its inherent jurisdiction
in order to secure justice in terms of Section 482 of the Code of
Criminal Procedure.
F (vii) As. the High Court exercises its inherent power to secure the
ends of justice, the same by necessary intendment could bring
within its purview justice required to be done to the victim also.
(viii)The appellants were not prejudiced in any manner whatsoever
by reason of the impugned order as at different stages they would
G be entitled to raise their contentions.
(ix) Section 173 (8) of the C?de of Criminal Procedure does not
postulate any power on the part of the Courts to direct re- '
investigation as the statutory power to make investigation always
remain with the Investigating agency.
H
POPULAR MUTHIAH v. ST ATE OF TAMIL NADU [SINHA, J.) 111

In view of the rival contentions noticed hereinbefore, the questions A
involved in this case are:

(i) Whether the High Court while exercising its appellate jurisdiction
under Section 374(2) read with Section 386 of the Code of
Criminal Procedure could direct further investigation of the case
against the persons whom the High Court felt should have been B
included in the challan on the basis of the materials on record
available before the appellate court?
(ii) Whether only because of the fact that the appellate power of the
High Court in terms of Sections 374(2), 386 and 391 does not
~ . containany specific power to direct further investigation, the C
High Court lacked jurisdiction from seeking recourse to its
inherent and supervisory powers under Sections 482 and 483 of
the Code of Criminal Procedure in a case of this nature?
(iii) Whether the impugned judgment is wholly unsustainable as prior
to issuing the impugned direction, the principles of natural justice D
had not been complied with.

Before, however, we advert to the said questions, it may be appropriate
to notice that the High Court in passing the impugned judgment proceeded
on the basis that PW-I to PW-5 namely, Muthulakshmi, Shanthy, Murugaiah
Pndian, Ashokan and Ganeshan were independent witnesses who had E
categorically testified about the involvement of the Appellants herein as also
Murugan and Muthu in hacking George to death firstly in the street and then
in the hotel and the prosecution case was proved on the basis thereof.

The High Court indisputably could have arrived at such a finding.
F
The High Court thereafter directed entrustment of the investigation to
CB-CID having regard to the fact that there were two other eye-witnesses to
the occurrence.

The High Court furthermore:
G
(i) directed prosecution of Murugan and Popular Muthiah;
(ii) ordered a fresh investigation under the CB-CID under an officer
nominated by the Director General of Police;
(iii) directed the Director General of Police to probe into the lapses
of the investigating officers and take up follow up action in H
112 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.
r
A accordance with law. J..-.

The High Court in its impugned judgment:

(i) affinned conviction of Muthu;
(ii) opined that successive investigating officers PWs-17 and 18 had
B not discharged their functions as investigating officer properly;
(iii) held that the Magistrate had failed to exercise his powers as also
to make the details of the charge sheet available to the complainant
as was mandatorily required in law;
(iv) found that the District Judge had not exercised his power under
c Section 319 of the Code of Criminal Procedure; and
(v) exercised its power in issuing the directions in the interest of
justice.

The Code of Criminal Procedure is an exhaustive Code providing a
D complete machinery to investigate and try cases, appeals against the judgments.
It has provisions at each stage to correct errors, failures of justice and abuse
of process under the supervision and superintendence of the High Court as
would be evident from the following:

(i) The Court has the power to direct investigation in cognizable
E cases under Section 156(3) read with Section 190 of the Code of
Criminal Procedure.
(ii) A Magistrate can postpone the issue of process and inquire into
the case himself under Section 202 (I) of the Code of Criminal
-
Procedure.
F (iii) When a charge sheet is failed, the court can refuse to accept the
same and proceed to take cognizance of the offence on the basis
of the materials on record. The Court can direct further
investigation into the matter.
(iv) The Magistrate may treat a protest petition as a complaint and
G proceed to deal therewith in tenns of Chapter XV of the Code of
Criminal Procedure.
(v) Once the case is committed, the Sessions Judge may refer the
matte;r to the High Court.

H (vi) In the event, without taking any furthtr evidence, it is found that
POPULAR MUTHIAH v. STATE OF TAMIL NADU [SINHA, J.] 113

while passing the order of commitment, the Magistrate has A
committed an error in not referring the case of an accused or left
out an accused after evidences are adduced, the court may proceed
against a person who was not an accused provided it appears
from the evidences that he should be tried with the accused.
(vii) The revisional court during pendency of the trial may exercise B
its revisional jurisdiction under Section 397 in which case, it
may direct further inquiry in terms of Section 398 of the Code
of Criminal Procedure.
(viii) The revisional powers of the High Court and the Sessions Court
are pointed out in the Code separately; from a perusal whereof C
it would appear that the High Court exercises larger power.
(ix) In the event of any conviction by a court of Sessions, an appeal
thereagainst would lie to the High Court. The appellate court
exercises the power laid down under Section 386 of the Code of
Criminal Procedure in which event it may also take further direct D
evidences in terms of Section 391 thereof.
(x) The High Court has inherent power under Section 482 of the
Code of Criminal Procedure to correct errors of the courts below
and pass such orders as may be necessary to do justice to the
parties and/ or to prevent the abuse of process of court. E
The Code of Criminal Procedure, thus, provides for a corrective
mechanism at each stage, viz., (i) investigation; (ii) trial; (iii) appeal and (iv)
revision.

The Code of Criminal Procedure, 1973 in contrast to the old Code
provides for cognizance of an offence and committal of a case as
F
contradistinguished from cognizance of an offender or committal of an accused
to the court of Sessions.

It is also significant to note that whereas inherent power of a court or
a tribunal is generally recognised, such powe~ has been recognized under the G
Code of Criminal Procedure only in the High Court and not in any other
court. The High Court apart from exercising its revisional or inherent power
indisputably may also exercise its supervisory jurisdiction in terms of Article
227 of the Constitution of India and in some matters in terms of Section 483
thereof. The High Court, therefore, has a prominent place in the Code of
H
114 SUPREME COURT REPORTS (2006) SUPP. 3 S.C.R.

A Criminal Procedure vis-a-vis the court of Sessions which is also possessed of
a revisional power.

The Law Commission of India in its 41 st Report on the Code of Criminal
Procedure, 1898 stated as under:

B "24.80. It happens sometimes, though not very often, that a Magistrate
hearing a case against certain accused finds from the evidence that
some person, other than the accused before him, is also concerned in
that very offence or in a connected offence. It is only proper that the
Magistrate should have the power to call and join him in the
proceedings. Section 351 provides for such a situation, but only if
c that persons happens to be attending the Court. He can then be detained
and proceeded against. There is no express provision in Section 351
for summoning such a pe:rson if he is not present in Court. Such a
provision would make section 351 fairly comprehensive, and we think
it proper to expressly provide for that situation."
D 24.83. Section 351 should, therefore, be amended to read as follows:-

"351. ( 1) Where, ir. the course of an inquiry into or trial of an offence,
it appears from the evidence that any person not being the accused
has committed any offence for which such person could be tried .
together with the accused, the Court may proceed against such person
E for the offence which he appears to have committed.

(2) Where such person is attending the Court, although not under
arrest or upon a summons, he may be detained by such Court for the
purpose of the inquiry into or trial of the offence which he appears
to have committed.
F
(3) Where such person is not attending the Court, he may be arrested
or summoned, as the circumstances of the case may require, for the
purpose aforesaid.

(4) Where the Court proceeds against any person under sub-section
G (I), then -

(a) the proceedings in respect of such person shall be commenced
afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed
H as if such person had been an accused person when the
POPULAR MUTHIAH v. STA TE OF TAMIL NADU [SINHA, J.] 115
Court took cognizance of the offence upon which the inquiry A
or trial was commenced."

Section 386 of the Code of Criminal Procedure provides for the power
of the appellate court. Indisputably, stricta sensu in terms thereof the appellate
court cannot direct a person to stand trial. Its jurisdiction is specified
thereunder. B

While exercising its appellate power, the jurisdiction of the High Court
although is limited but, in our opinion, there exists a distinction but a significant
one being that the High Court can exercise its revisional jurisdiction and/ or
inherent jurisdiction not only when an application therefor is filed but also
suo motu. It is not in dispute that suo motu power can be exercised by the C
High Court while exercising its revisional jurisdiction. There may not,
therefore, be an embargo for the High Court to exercise its extraordinary
inherent jurisdiction while exercising other jurisdictions in the matter. Keeping
in view the intention of the Parliament, while making the new law the emphasis
of the Parliament being 'a case before the court' in contradistinction from 'a D
person who is arrayed as an accused before it' when the High Court is seized
with the entire case although would exercise a limited jurisdiction in terms
of Section 386 of the Code of Criminal ProcedurP., the same, in our considered
view, cannot be held to limit its other powers and in particular that of Section
482 of the Code of Criminal Procedure in relation to the matter which is not
before it. E

In certain situations, the court exercises a wider jurisdiction, e.g., it
may pass adverse remarks against an investigator or a prosecutor or a judicial
officer, although they are not before it. Expunction of such remarks may also
be directed by the High Court at a later stage even suo motu or at the instance
of the person aggrieved.
F

The High Court while, thus, exercising its revisional or appellate power,
may exercise its inherent powers. Inherent power of the High Court can be
exercised, it is trite, both in relation to substantive as also procedural matters.

In respect of the incidental or supplemental power, evidently, the High
G
Court can exercise its inherent jurisdiction irrespective of the nature of the
proceedings. It is not trammeled by procedural restrictions in that

(i) power can be exercised suo motu in the interest of justice. If
such a power is not conceded, it may even lead to injustice to an H
116 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A accused.
" ..
(ii) Such a power can be exercised concurrently with the appellate or
revisional jurisdiction and no formal application is required to be
filed therefor.
(iii) It is, however, beyond any doubt that the power under Section
B 482 of the Code of Criminal Procedure is not unlimited. It can
inter alia be exercised where the Code is silent where the power
of the court is not treated as exhaustive, or there is a specific
provision in the Code; or the statute does not fall within the
purview of the Code because it involves application of a special
c law. It acts ex debito justitiae. It can, thus, do real and substantial
justice for which alone it exists.

This Court in Dinesh Dutt .Joshi v. State of Rajasthan and Anr., [200 I]
8 SCC 570 while dealing with the inherent powers of the High Court held:

" ... The principle embodied in the section is based upon the maxim:
D
quando lex aliquid alicui concedit, concedere videtur et id sine quo
res ipsae esse non potest i.e. when the law gives anything to anyone,
it gives also all those things without which the thing itself would be
unavailable. The section does not confer any new power, but only
declares that the High Court possesses inherent powers for the purposes
E specified in the section. As lacunae are sometimes found in procedural
law, the section has been <embodied to cover such lacunae wherever
they are discovered. The use of extraordinary powers conferred upon
the High Court under this section are however required to be reserved,
as far as possible, for extraordinary cases."

F The decisions of this Court emphasised the fact that there exists a
distinction between two classes of c:ases, viz., (i) where application of Section
482 is specifically excluded and (ii) where there is no specific provision but
limitation of the power which is sought to be exercised has specifically been
stated.
G In R.P. Kapur v. State of Punjab, AIR (1960) SC 866, this Court
summarized some of the categorks of cases where inherent power should be
exercised to quash a criminal proceeding against the accused stating:

" (i) where it manifestly appears that there is a legal bar against the
institution or continuance e.g. Wdnt of sanction;
H
POPULAR MUTHIAH v. STATE OF TAMIL NADU [SINHA, J.] 117

(ii) where the allegations in the first information report or complaint A
taken at its face value and accepted in their entirety do not constitute
the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal
evidence adduced or the evidence adduced clearly or manifestly fails
to prove the charge." B
The said decision has been noticed subsequently by this Court in State
of Karnataka v. M. Devendrappa and Anr., (2002] 3 SCC 89.

This Court furthermore laid down that the inherent power of the High
Court can be invoked in respect of the matters covered by the provisions of C
the Code unless there is specific provision to redress the grievance of the
aggrieved party. [See Madhu Limaye v. State of Maharashtra, (1977] 4 SCC
551 and Raj Kapoor v. State, (1980] f SCC 43]

It is also not in dispute that the said power overrides other provisions
of the Code but evidently cannot be exercised in violation I contravention of D
a statutory power created under any other enactment.

In State Through Special Cell, New Delhi v. Navjot Sandhu Alias Afshan
Guru and Ors., (2003] 6 SCC 641, it was stated:

"Section 482 of the Criminal Procedure Code starts with the words E
"Nothing in this Code". Thus the inherent jurisdiction of the High
Court under Section 482 of the Criminal Procedure Code can be
exercised even when there is a bar under Section 397 or some other
provisions of the Criminal Procedure Code. However as is set out in
Satya Narayan Sharma case this power cannot be exercised if there F
b a statutory bar in some other enactment. If the order assailed is
purely of an interlocutory character, which could be corrected in
exercise of revisional powers or appellate powers the High Court
must refuse to exercise its inherent power. The inherent power is to
be used only in cases where there is an abuse of the process of the
court or where interference is absolutely necessary for securing the G
ends of justice. The inherent power must be exercised very sparingly
as cases which require interference would be few and far between.
The most common case where inherent jurisdiction is generally
exercised is where criminal proceedings are required to be quashed
because they are initiated illegally, vexatiously or without jurisdiction. H
118 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A Most of the cases set out hereinabove fall in this category. It must be
remembered that the: inherent power is not to be resorted to if there
is a specific provision in the Code or any other enactment for redress
of the grievance of the aggrieved party. This power should not be
exercised against an e:xpress bar of law engrafted in any other provision
of the Criminal Procedure Code. This power cannot be exercised as
B against an express bar in some other enactment."

In State of W.B. and Ors. v. Sujit Kumar Rana, [2004) 4 SCC 129, to
which our attention has been drawn by Mr. Rao, this Court was dealing with
a matter arising out of an .order of confiscation passed under the provisions
C of the Forest Act, 1927.

In that case, the law was stated in the following terms:

"The said authority before passing a final order in terms of Section
59-A(3) of the Act is required to issue notice and give opportunity of
hearing to the parties concerned. Unless such a notice is issued, the
D confiscation proceeding cannot be said to have started. Once, however,
a confiscation proceeding is initiated; in terms of Section 59-G of the
Act, the jurisdiction of the criminal court in this behalf stands excluded.
The criminal court although indisputably has the jurisdiction to deal
with the property which is the subject-matter of offence in terms of
E the provisions of the Code of Criminal Procedure but once a
confiscation proceeding is initiated, the said power cannot be exercised
by the Magistrate."

To what extent, if any, Section 386 limits the exercise of jurisdiction
of the High Court under Section 482 may now be considered.
F
In The State of Andhra Pradesh v. Thadi Narayan, [1962) 2 SCR 904,
this Court opined that while exercising the appellate power, the High Court
should not assume itself that the whole case is before it. Evidently, it was
dealing with a case before coming into force of the 1973 Act.

G The power to direct enquiry may not, thus, be held to be confined only
to the original but also of appellate jurisdiction. Such a power can be exercised
also as against the persons who were not the accused at the stage of trial.

In Ranjit Singh v. State of Punjab, [1998) 7 SCC 149), this Court held:

H "Though such situations may arise only in extremely rare cases, the
POPULAR MUTHIAHv. STATE OF TAMIL NADU [SINHA,J.) 119

Sessions Court is not altogether powerless to deal with such situations A
to prevent a miscarriage of justice. It is then open to the Sessions
Court to send a report to the High Court detailing the situation so that
the High Court can in its inherent powers or revisional powers direct
the committing Magistrate to rectify the committal order by issuing
process to such left-out accused. But we hasten to add that the said
procedure need be resorted to only for rectifying or correcting such B
grave mistakes."

[See also Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors.,
[1983] 1 sec 11

Such a power evidently can be exercised even after the trial is over. c
In Kishori Singh v. State of Bihar, [2004] 13 SCC 11, referring to Raj
Kishore Prasadv. State of Bihar, [1996] 4 SCC 495 and Ranjit Singh (supra),
this Court held:

"After going through the provisions of the Code of Criminal Procedure D
and the aforesaid two judgments and on examining the order dated
I0-6- I997 passed by the Magistrate, we have no hesitation to come
to the conclusion that the Magistrate could not have issued process
against those persons who may have been named in the FIR as accused
persons, but not charge-sheeted in the charge-sheet that was filed by E
the police under Section 173 CrPC.

So far as those persons against whom charge-sheet has not been filed,
they can be arrayed as "accused persons' in exercise of powers under
Section 319 Cr PC when some evidence or materials are brought on
record in course of trial or they could also be arrayed as "accused F
persons" only when a reference is made either by the Magistrate
while passing an order of commitment or by the learned Sessions
Judge to the High Court and the High Court, on examining the
materials, comes to the conclusion that sufficient materials exist against
them even though the police might not have filed charge-sheet, as has
been explained in the latter three-Judge Bench decision. Neither of G
the contingencies has arisen in the case in hand."

The correctness or otherwise of the decision of this Court in Ranjit
Singh (supra) we.s doubted and the matter was referred to a larger Bench in
Dharam Pal and Ors. V. State of Haryana and Anr., [2004] 13 sec 9, H
120 SUPREME COURT REPORTS (2006] SUPP. 3 S.C.R.

A wherein one of us (Naolekar, J.) was a member, stating:
" ... According to the decision in Kishun Singh Case the Sessions Court
has such a power under Section 193 of the Code. As per Ranjit Singh
case, from the stage of committal till the Sessions Court reaches the
stage indicated in Section 230 of the Code, that court can deal with
B only th<' accused referred to in Section 209 of the Code and there is
no intermediary stage till then for the Sessions Court to add any other
person to the array of the accused. The effect of this conclusion is
that the accused named in column 2 and not put up for trial cannot
be tried while exercising power under Section 193 read with Section
228 of the Code. This means that even when the Sessions Court
c applies its mind at the time of framing of charge and comes to the
conclusion from the material available on record that, in fact, offence
is made out against even those who are shown in column 2, it has no
power to proceed against them and has to wait till the stage under
Section 319 of the Codi~ reaches, namely, commencement of the
D prosecution evidence. The: effect is that in less serious offences triable
by a Magistrate, he would have the power to proceed against those
who are mentioned in column 2, if on the basis of material on record
he disagrees with the police conclusion, but, as far as serious offences
triable by the Court of Session are concerned, that court will have to
wait till the stage of Section 319 of the Code is reached. It, however,
E appears that in a case triable by the Court of Session, in law, a
Magistrate would have no power to summon for trial an accused
mentioned in column 2 to be tried with other accused and, to that
extent, the impugned order of the High Court may have to be set
aside but immediately the question involved herein would arise when
F the matter would be placed before the Sessions Court."

The High Court, however, was not correct in issuing a direction to the
State to take advice of the State Public Prosecutor as to under what section
the Appellant has to be charged and tried or directing the CB, CID to take
up the matter and re-investigate and prosecute the Appellant herein. Such a
G power does not come within the purview of Section 482 of the Code of
Criminal Procedure. Investigation of an offence is a statutory power of the
police. The State in its discretion may get the investigation done by any
agency unless there exists an extra.ordinary situation.

Yet again, it is for the public prosecutor to discharge his duties in terms
H
POPULAR MUTHIAH v. STATE OF TAMIL NADU [SINHA, J.) 121

of the provisions of the Code of Criminal Procedure. The High Court, thus, A
has no role to play in such matters. Ordinarily, it is for the public prosecutor
himself to see to whom and how to render his advice or as to whether the
State would like to proceed against an accused or not.

The High Court while passing the impugned judgment did not bear the
said principles in mind. It went beyond its jurisdiction in directing the B
prosecution of the Appellant before us. In a case of this nature, where a
superior court exercises its inherent jurisdiction, it indisputably should remind
itself about the inherent danger in taking away right of an accused. The High
Court should have been circumspect in exercising the said jurisdiction. When
a power under sub-section (8) of Section 173 of the Code of Criminal C
Procedure is exercised, the court ordinarily should not interfere with the
statutory power of the investigating agency. It cannot issue directions to
investigate the case from a particular angle or by a particular agency. In the
instant case, not only the High Court had asked reinvestigation into the matter,
but also directed examination of the witnesses who .had not been cited as
prosecution witnesses. It furthermore directed prosecution of the Appellant D
which was unwarrailted in law.

Strong reliance has been placed on Zahira Habibu/la fl. Sheikh v. State
of Gujarat, [2004] 4 SCC 158 by Dr. Dhawan for the proposition that the
High Court can exercise its inherent jurisdiction in certain situation. Mr. Rao,
on the other hand, has relied upon a decision of this Court in Satyajit Banerjee E
and Ors. v. State of W.B. and Ors., [2005] l SCC 115 wherein Dharrnadhikari,
J. speaking for the Bench opined that the case of Best Bakery was of
exceptional nature.

We may not go into the said respective contentions as we are of the F
opinion that, having regard to the order proposed to be passed by us, it is not
necessary so to do.

In a case of this nature, therefore, in our opinion, it would have been
in the fitness of things, the Appellant should have been heard by the High
Court. G
We may, however, hasten to add that our direction is not intended to
lay down the law that while the Magistrate directs a further investigation or
a Sessions Judge while exercises its jurisdiction under Section 319 of the
Code of Criminal Procedure, an accused is entitled to be heard; he is not as
he has no right therefor and, thus, the question of hearing him at that stage H
122 SGPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A would not arise.
But herein, the High Court was dealing with an extraordinary situation
because :

(i) rightly or wrongly the Magistrate had accepted the final form
B and did not direct any further enquiry;
(ii) although the investigating officer or the court did not intimate
the first infonnant about filing of the final fonn in respect of the
Appellant, it cannot be said that the first informant was not aware
thereof. ·
C (iii) The first informant neither filed any protest petition nor filed any
complaint petition.
(iv) Even during the trial, no application was filed before the learned
Sessions Judge for summoning the Appellant on behalf of the
State or the complainant.
D
(v) The learned Sessions Judge did not exercise his power suo motu.
(vi) The High Court was hearing an appeal preferred by a convicted
person and exercised its extraordinary jurisdiction after l 0 years.
(vii) Even it could direct further investigation, it was required to apply
E its mind as regard existence of a very strong prima facie case
therefor and particularly in view of the fact that a period of I 0
years had lapsed in the meanwhile.
(viii)Had an opportunity of hearing been given, the State also could
have shown that for valid reasons the investigating officer did
F not think it fit to proceed against the Appellant and that there
was otherwise justifiable reasons to file the final form.

We have noticed hereinbefore that the jurisdiction of the learned
Magistrate in the matter of issuance of process or taking of cognizance depends
upon existence of conditions precedent therefor. The Magistrate has jurisdiction
G in the event a final fonn is filed (i) to accept the final fonn; (ii) in the event
a protest petition is filed to treat the same as a complaint petition and if a .....
prima facie case is made out, to issue processes; (iii) to take cognizance of
the offences against a person, although a final fonn has been filed by the
police, in the event he comes to the opinion that sufficient materials exist in
H the case diary itself therefor; and {iv) to direct re-investigation into the matter.
POPULAR MUTHIAH v. STATE OF TAMIL NADU (SINHA, J.] 123

[See Abhinandan Jha and Ors. v. Dinesh Mishra, AIR (1968) SC 117, see A
also Minu Kumari and Anr. v. The State of Bihar and Ors., (2006) 4 SCALE
329].

Similarly, the power of the Sessions Judge to summon a person to stand
trial with the other accused in exercise of its jurisdiction under Section 319
of the Code of Criminal Procedure is also limited inasmuch as from the B
evidences of the witnesses, it must clearly be found that the proceedee had
a role to play in the commission of an offence.

So far as inherent power of the High Court is concerned, indisputably
the same is required to be exercised sparingly. The High Court may or may
not in a given situation, particularly having regard to lapse of time, exercise C
its discretionary jurisdiction. For the said purpose, it was not only required
to apply its mind to the materials on records but was also required to consider
as to whether any purpose would be served thereby.

Having regard to the peculiar facts and circumstances of this case, we D
are of the opinion that before issuing the impugned directions, the High
Court should have given an opportunity of hearing to the Appellants herein.

For the reasons aforementioned, the impugned judgment is set aside
and the matter is remitted to the High Court for consideration of the matter
afresh. The High Court shall issue notice to the Appellants herein as also the E
State and pass appropriate orders as it may deem fit and proper and in
accordance with law. The appeals are allowed with the aforementioned
observations and directions.

K.K.T. Appeals allowed.