IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.      of 2008 (Arising out of SLP(Crl) No.295 of 2007)

Bharat Parikh    ...Appellant

Vs.

C.B.I. & Anr.          ...Respondents

J U D G M E N T

ALTAMAS KABIR,J. 1. Leave granted.

2. Two legal propositions fall for consideration

in this appeal.  The first proposition deals

with the question as to whether having framed

charges against an accused, a Magistrate has

the jurisdiction in law to recall such order on

the ground that the prosecution had failed to

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comply with the provisions of Section 207 of

the Code of Criminal Procedure.  An ancillary

question will also arise as to whether such

failure  would  render  the  framing  of  charge

void.

3. The second proposition raises a question as to

whether in exercise of its inherent powers, the

High Court could quash the charges framed and

acquit  the  accused  on  account  of  such  non-

compliance with the provisions of Sections 207

and 238 of the aforesaid Code.

4. The appellant herein is the original accused

No.5  in  a  special  case  pending  before  the

learned Special Judge, Mumbai in which charge

was framed against him and the other accused

persons on 13th December, 1996 under Sections

120-B read with Sections 420, 468, 471, 477-A

of the Indian Penal Code and Section 13(2) read

with  Section  13(1)(d)of  the  Prevention  of

Corruption Act, 1988.  Though such charge had

been  framed  against  the  appellant  on  13th

December,  1996,  after  about  five  years  an

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application was made on behalf of the appellant

in  2001,  before  the  Special  Court  seeking

directions for production of certain documents

in the custody of the prosecution.  By order

dated 27th August, 2001, the said application

was allowed and the prosecution was directed to

produce all the documents referred to in the

statement of one Mr. P.K.R.K. Menon made on

24th February, 1993.  The said documents were

ultimately  produced in  2002. Thereafter,  the

appellant filed an application for re-opening

the proceedings and for discharge, which was

rejected by the learned Special Judge by his

order dated 1st April, 2006.  

5. In rejecting the said application, the learned

Special Judge relied primarily on the decision

of this Court in the case of Ratilal Bhanji

Mithani vs. State of Maharashtra [AIR 1979 SC

94] in which this Court had held that once a

charge is framed, the Magistrate has no power

under Section 227 or any other provision of the

Code  of  Criminal  Procedure  to  cancel  such

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charge and to discharge the accused.  It was

also observed that once charge has been framed

and  the  accused  pleads  not  guilty,  the

Magistrate  is  required  to  proceed  with  the

trial to its logical end.  In other words, once

a charge is framed in a warrant case instituted

either on complaint or a police report, the

Magistrate  has  no  power  under  the  Code  to

discharge  the  accused.   He  can,  thereafter,

either acquit or convict the accused.

6. The learned Special Judge also relied another

decision  of  this  Court  in  State  of  Andhra

Pradesh vs. Golconda Linga Swamy and Anr. [AIR

2004 SC 3967], where similar views have been

expressed.

7. Aggrieved  by  the  said  order  of  the  learned

Special  Judge,  the  appellant  filed  an

application under Section 482 of the aforesaid

Code before the Bombay High Court for quashing

the  proceedings  of  the  Special  case  pending

before the learned Special Judge, Mumbai and

also for quashing the order dated 1st April,

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2006,  whereby  the  learned  Special  Judge  had

rejected  the  appellant’s  application  for

discharge.

8. Taking  a  view,  which  was  similar  to  that

expressed  by  the  learned  Special  Judge,  the

Bombay  High  Court  dismissed  the  revisional

application upon holding that there had been

sufficient compliance by the prosecution with

the  requirement  of  law  and  that  failure  to

produce the documents referred to in the order

dated 27th August, 2001 would not nullify the

proceedings  from  the  stage  of  framing  of

charge.   On  a  reference  to  the  decision  in

Ratilal Bhanji Mithani’s case (supra), the High

Court took the view  that since charge had been

framed, the case would have to go for trial as

no  case  had  been  made  out  for  exercising

jurisdiction under Section 482 of the Code at

the said stage.

9. In this appeal, the appellant has assailed the

orders passed by the learned Special Judge, as

also the High Court.

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10. On behalf of the appellant it was submitted by

learned senior counsel, Mr. Amit Desai, that

the High Court had misapplied the decision in

Ratilal Bhanji Mithani’s case (supra) as it was

the case of the appellant that non-compliance

of the provisions of Section 207  of the Code

of Criminal Procedure had vitiated the entire

proceedings,  including framing  of charge.  He

submitted  that  such  non-compliance    was

antithetical  to  the  concept  of  a  fair  and

speedy trial as contemplated in Article 21 of

the Constitution as was held in the case of

Satish Mehra vs. Delhi Administration (1996) 9

SCC  766.  It  was  submitted  that  the  entire

proceedings  were  vitiated  on  such  score  as

well.  It  was  urged  that  the  High  Court  had

erred  in  not  exercising  its  inherent  power

under  Section  482  of  the  Code  to  quash  the

entire  proceedings,  including  framing  of

charge.

11. In  support  of  his  aforesaid  submission,  Mr.

Desai referred to the decision of a seven-Judge

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Bench of this Court in P. Ramachandra Rao vs.

State of Karnataka, (2002) 4 SCC 578, wherein

the  question  of  speedy  trial  had  been

considered  and  having  regard  to  the  views

expressed  in  Abdul  Rehman  Antulay’s  case,

(1992) 1 SCC 225, it was held that if the delay

in  concluding  a  trial  was  oppressive  or

unwarranted, it would violate Article 21 of the

Constitution and such trial or such proceedings

would be liable to be terminated.

12. Reference  was  also  made  to  a  decision  of  a

three-Judge  Bench  in  State  of  Orissa   vs.

Debendra Nath Padhi, (2005) 1 SCC 568, wherein

while called upon to answer the wider question

as to whether at the time of framing charge the

trial court can consider material filed by the

accused, reference was disapprovingly made to

an  earlier  two-Judges  Bench  decision  in  the

case of Satish Mehra vs. Delhi Administration.

In fact, the matter was heard on a reference as

there  was  a  conflict  of  views  between  two

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Benches of co-ordinate jurisdiction. In Satish

Mehra’s case (supra) it was held that at the

time of framing of charge the trial court was

competent  to  consider  material  produced  on

behalf of the accused in the light of Section

227  of  the  Code  which  provides  for  an

opportunity of being heard to the accused so

that he was not unnecessarily made to undergo

the  entire  gamut  of  a  trial  which  could  be

concluded  at  the  time  of  framing  of  charge

itself, if the trial court was satisfied upon

the material produced both by the prosecution

and the accused that  there  was no need to

proceed to conduct the trial. The said view

taken  in  Satish  Mehra’s  case  was,  however,

overruled in Debendra Nath Padhi’s case.

13. Reference was lastly made to a decision of a

single Judge of the Rajasthan High Court in

Dhananjay Kumar Singh vs. State of Rajasthan,

2006  Crl.L.J.  3873,  where  the  principles  of

natural justice were held to be an integral

part of a fair trial in the context of Article

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21  of  the  Constitution  and  the  Universal

Declaration  of  Human  Rights  adopted  by  the

United Nations on 10th December, 1948.

14. Appearing  for  the  Central  Bureau  of

Investigation  (hereinafter  referred  to  as

‘CBI’), learned  Additional Solicitor General,

Mr. Mohan Parasaran, submitted that a similar

application  (Criminal  Application  No.1129  of

1997) made by the appellant had been dismissed

on 2nd November, 1998, as none of the parties

were represented at the time of hearing of the

application.  He  also  submitted  that  having

regard to the decision in Debendra Nath Pathi’s

case(supra)  and  also  in  Ratilal  Bhanji

Mithani’s case (supra), the earlier ambiguity

had been removed and it had been clearly laid

down that not only could the trial court not

recall its order framing charge, which would

result in  re-opening of the proceedings, but

it  could  not  also  consider  the  material

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produced on behalf of the accused at the time

of framing charge.

15. Of the two propositions raised in this appeal,

the  first  proposition  has  been  completely

answered in Debendra Nath Padhi’s case (supra)

regarding the trial court’s power to recall its

order  framing  charge  against  an  accused.

Having regard to the language of Sections 207

and  227  of  the  Code  of  Criminal  Procedure,

while framing charges the trial court can only

look  into  the  materials  produced  by  the

prosecution while giving an opportunity to the

accused to show that the said materials were

insufficient for the purpose of framing charge.

The  decision  in  Satish  Mehra’s  case  (supra)

having been overruled in Debendra Nath Padhi’s

case (supra) the contention of Mr. Desai that

the Magistrate should have re-opened the matter

on the basis of the documents produced by the

prosecution at the instance of the accused, is

no  longer  res-integra.  The  question  of

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discharge  by  the  learned  Magistrate  after

framing of charge does not, therefore, arise,

notwithstanding the submissions advanced with

regard to denial of natural justice and a fair

and speedy trial as contemplated under Article

21  of  the  Constitution,  which  have  no

application  whatsoever  to  the  facts  of  this

case.

16. With regard to the second proposition regarding

the High Court’s powers to look into materials

produced on behalf of or at the instance of the

accused for the purpose of invoking its powers

under Section 482 of the Code for quashing the

charges framed, it has to be kept in mind that

after the stage of framing charge evidence has

to be led on behalf of the prosecution to prove

the charge if an accused pleads not guilty to

the  charge  and/or  charges  and  claims  to  be

tried.  It  is  only  in  the  exceptional

circumstances  enumerated in  State of  Haryana

vs. Bhajan Lal 1992 Suppl.(1) SCC 335, that a

criminal proceeding may be quashed to secure

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the ends of justice, but  such a stage will

come only after evidence is led, particularly

when  the prosecution  had produced  sufficient

material for charges to be framed. As observed

in Debendra Nath Padhi’s case (supra) at the

stage  of  framing  charge  roving  and  fishing

inquiry  is  impermissible  and  a  mini  trial

cannot be conducted at such stage. At the stage

of framing of charge the submissions on behalf

of  the  accused  has  to  be  confined  to  the

material produced by the investigating agency.

The accused will get an opportunity to prove

the  documents  subsequently  produced  by  the

prosecution on the order of the Court, but the

same  cannot  be  relied  upon  to  re-open  the

proceedings once charge has been framed or for

invocation  of  the  High  Court’s  powers  under

Section 482 of the Code of Criminal Procedure.

17. Accordingly, no interference is warranted with

the orders passed by the learned special Judge

or  the  High  Court,  and  the  appeal  is,

therefore, dismissed.

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..................J. (Altamas Kabir)

..................J. (Mukundakam Sharma)

New Delhi,

Dated:July 14,2008

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