REPORTAB LE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1389  OF 2008 (Arising out of SLP (Crl) No. 5238 of 2004)

State Rep. By D.S.P., S.B.C.I.D., Chenai              ...

Appellants

VERSUS

K.V. Rajendran & Ors                                     …

Respondents                  

J U D G M E N T

TARUN CHATTERJEE, J.

1. Leave granted.

2. The  only  question  that  needs  to  be  decided  in  this

appeal is whether in the exercise of the inherent powers

under Section 482 of the Code of Criminal Procedure

(in short, “ the Code”), an order disposing of a criminal

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petition, refusing to grant any relief, could be modified

and,  thereafter,  an  investigation,  which  was  with  the

State  Police  authorities  could  be  transferred  to  the

Central Bureau of Investigation (in short, “the CBI”).   

3. A criminal petition under Section 482 of the Code was

filed by the respondents for transfer of the investigation

which had been initiated for an offence under Sections

177, 186 and 506(ii)  of  the Indian Penal Code to the

CBI.  In the year 1998, the said criminal petition was

disposed of by the High Court refusing to transfer the

investigation to CBI.  By the said order the High Court,

while disposing of the said criminal petition, held that it

was not necessary to hand over the investigation to CBI

in  the  facts  and  circumstances  of  the  case  and  the

SBCID was directed to continue with the investigation.

After more than 3 ½ years of the final order refusing to

transfer  the  investigation  to  CBI,  an  Interlocutory

Application  was  filed  in  the  disposed  of  criminal

petition  by the complainant/respondents  but  this  time,

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the  learned  Single  Judge  of  the  Madras  High  Court

transferred the investigation to the CBI and directed the

State Police to hand over the records to CBI forthwith.

It  is  this  order,  by  which  the  investigation  was

transferred  to  CBI,  is  in  appeal  before  us,  which,  on

grant  of  leave,  was  heard  in  the  presence  of  learned

counsel for the parties.   

4. In our view, the High Court fell in error in reopening

the issue which was finally decided and refused earlier in

the exercise of power under Section 482 of the Code on a

petition  which was  filed in  a  disposed of  petition  at  the

instance of  the  DSP [SB CID].   Before  we take up  this

question for our decision, it would be appropriate to narrate

the facts of this case leading to the filing of this appeal in a

nutshell :-

5. On  26th of  August,  1998  the  Revenue  Divisional

Officer  (in  short  ‘the  RDO’)  Mayiladuthurai  received  a

phone  call  regarding  smuggling  of  sandalwood  and  teak

wood  logs.  The  RDO  immediately  made  enquiries  and

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discovered  that  the  call  was  a  false  alarm.  During  the

enquiry it also came to light that the caller was one K.V

Rajendran son of Vardarajan (the Respondent herein). He

had impersonated as a reporter of the Indian Express and

made a hoax call to the officer.              On 27th of August,

1998  at  01.00  hrs,  the  RDO  appeared  before  the

Superintendent  of  Police  Nagapattinam  and  made  a

complaint against the Respondent. He produced a statement

given  by  the  Respondent  wherein  he  had  admitted  the

allegations  made  against  him.  The  Respondent  was

identified as a Lecturer in Government Presidency College,

Madras. On the personal complaint of the RDO, a case was

registered in Porayiar police Station against the Respondent

under  Sections  177,  186 and 506(ii)  of  the Indian  Penal

Code. The Respondent was arrested and in the morning of

27th of August 1998, he was produced before the Judicial

Magistrate No. 2 Mayiladuthurai and remanded to judicial

custody. On the next day, the respondent was granted bail

and was released from custody. On 2nd of September, 1998,

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the  respondent  herein  alleged to  have  given  a complaint

against the RDO and other officers for having tortured him

and for having committed other illegal acts between 26th of

August 1998 and 28th August, 1998.  

6. On 06th of  September,  1998,  the respondent  filed a

petition before the State Human Rights Commission, Tamil

Nadu.  On  this  complaint,  the  District  Collector,

Nagapattinam,  ordered  an  elaborate  enquiry  and  on  the

basis of such an order, a report was submitted to him. On

05th of October, 1998, the District Revenue Officer (DRO)

and the Additional District Magistrate submitted the report

of their enquiry to the District Collector. According to this

report,  the  allegations  leveled  against  the  RDO and  the

other  personnel  by  the  respondent  appeared  to  be  an

afterthought and totally false. On 08th of October, 1998, the

aforesaid report was forwarded to the State Human Rights

Commission,  Tamil Nadu.  The Commission accepted the

report  and informed the respondent  that  the Commission

was satisfied that no further enquiry should be conducted at

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the  level  of  the  Commission.  The  Commission  did  not

proceed with the matter and following the view taken by

them, a departmental enquiry that was initiated,  was also

dropped.   

7. In October 1998, the respondent filed the aforesaid

criminal  petition  under  Section  482  of  the  Code  in  the

Madras High Court seeking the following reliefs:  

(a) Direction to immediately register an FIR based on

the complaint filed on 02nd of September, 1998;

(b)  Transfer  further  investigation  to  the  Central

Bureau of Investigation;

(c) Order payment of compensation of Rs One lakh.

8. As noted herein earlier, by a final order dated 1st of

March,  2001,  a  learned  Single  Judge  of  the  High  Court

disposed of the said criminal petition under Section 482 of

the Code refusing to transfer the investigation to CBI and

also  directed  that  the  question  of  granting  compensation

would arise at a later stage.  The said order was passed on

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the basis of the findings arrived at by the learned Judge,

which are as follows :-

 “The third Respondent has already conducted confidential inquiry and submitted that report to Superintendent  of  Police,  SB  CID stating  that there are enough prima facie materials to take action on the complaint given by the Appellant against the sixth Respondent and others. Under  these  circumstances,  it  would  be appropriate  to  direct  the  third  Respondent  to register FIR for the various offences mentioned in  the  complaint  given  by  the  Appellant  dated 2.9.1998  against  Karunakaran,  RDO  sixth Respondent  and  other  officials  and  conduct investigation. Since the confidential report show that  the  preliminary  confidential  enquiry  has been  conducted  in  a  proper  way  by  the  third Respondent, it  is  unnecessary to hand over the investigation  to  the  CBI.  Accordingly,  the Deputy  Superintendent  of  Police,  SBCID, Nagapattinam District,  the third Respondent  is directed to register an FIR, as noted above and take  suitable  action  against  the  persons concerned  in  accordance  with  the  procedure contemplated  under  law,  continue  the investigation and file a final report. Regarding  the  claim  of  interim  compensation, the  learned  counsel  for  the  Appellant  cited judgments  in  Bodhisatwa  Gautam  v.  Subhra Chakraborty (1996 (1) SCC 49)) and D.K. Basu Vs. State of W. B. (1995 (1) SCC 416).     In my view, the question of compensation can be considered at a later stage. The more important is  that  the  RDO  has  taken  law  into  his  own hands  and  caused  serious  prejudice  to  the

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personal  liberty  of  the  Appellant  has  to  be booked  and  investigation  has  to  be  conducted after  registration  of  the  FIR.  Therefore,  the question  regarding  the  entitlement  of compensation and quantum of the same can be considered by the appropriate forum and at the appropriate stage. With these observations, the petition is allowed. Consequently, no separate order is necessary in Crl. M.P. No. 9037 of 1998.”

9. A plain  reading  of  the  aforesaid  order,  refusing  to

hand over the investigation to CBI, would show that the

said  order  was  a  final  order  rejecting  the  prayer  of  the

appellant  before  the  High  Court.   Subsequent  to  the

disposing of the application, that is to say, after 3 ½ years,

the DSP (SB CID) Chennai had filed an application in the

aforesaid disposed of petition saying that on the date of the

aforesaid final order of the High Court dated 1st of March,

2001, there was no post of DSP (SB CID) Nagapattinam, as

the said post was abolished by a Government order dated

17th of May, 2000.  It was also brought to the notice by the

DSP (SB CID) Nagapattinam that in Rule 57 of the Manual

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for  Instructions  for  State  Special  Branch,  the  Special

Branch  Officers  were  not  empowered  to  conduct

investigation  of  cases.   Accordingly,  an  application  was

filed  by  him  in  the  disposed  of  criminal  petition  for

modification of the final order dated 1st of March, 2001 and

for a direction to the DSP (CB CID) Nagapattinam instead

of  DSP (SB CID)  Nagapattinam for  investigation.   This

application filed by DSP (SBCID) was registered as Crl.

M.P. 3713/2001.   

10. During the pendency of this application filed by the

DSP [SB CID], an application was filed by the respondent

complaining that he and the witnesses were ill treated and

harassed by the Investigating Officer and the investigation

was not conducted in an unbiased manner and accordingly,

investigation must be transferred to CBI as prayed for by

him earlier.   

11. The  aforesaid  application  filed  by  DSP  (SB  CID)

Nagapattinam,  and  the  application  filed  by  the

complainant/respondent in the disposed of criminal petition

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were heard by the same learned Judge and this time, by the

impugned order, the learned Judge directed that it would be

better to transfer the investigation to CBI and, accordingly,

the Investigating Officer was directed to hand over the case

diary and other records forthwith to the Director, CBI, New

Delhi, who will hand over the same to a competent officer

to  make further  investigation and take appropriate action

against the concerned and file the final report within three

months from the date of the receipt of the order.  By the

aforesaid  order,  the  original  final  order  refusing  to  hand

over the investigation to CBI authorities dated 1st of March,

2001, was modified.  It is this order now in appeal before

us.   

12. We have heard the learned counsel for the parties and

examined  the  impugned  order  as  well  as  the  final  order

dated  1st of  March,  2001  rejecting  the  prayer  of  the

respondents  to  hand  over  the  investigation  to  the  CBI

authorities and other materials on record.   

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13. In our view, the learned Judge of the Madras High

Court  had fallen in error  in passing the impugned order.

The following questions need to be considered by us :

(I) Whether the High Court had become functus

officio  with  the  disposal  of  the  criminal

petition by the judgment and order dated 01st

of March, 2001?

(II) Whether  the  High  Court,  in  exercise  of  its

inherent  power under  Section 482 of  the Code can

modify its earlier judgment and order?      

14. Before we take up the questions for our decision, we

may look into the law on the questions posed before  us.   

15. In the case of  Hari Singh Mannn vs.  Harbhajan

Singh Bajwa & others (2001) 1 SCC 169, this Court held:

“There is no provision in the Code Of Criminal Procedure  authorizing  the  High  Court  to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of  the Code.  Section 362 CrPC has extended the bar of review not only to judgment but also to  the  final  orders  other  than  the  judgment.

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Section  362  is  based  on  an  acknowledged principal  of  law that  once a matter is  finally disposed of  by a court,  the said  court  in  the absence of statutory provision becomes functus officio  and  is  disentitled  to  entertain  a  fresh prayer  for  the  same  relief  unless  the  former order  is  set  aside  by  a  court  of  competent jurisdiction  in  a  manner  prescribed  by  law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent  of  correcting  a  clerical  or  an arithmetical error.”

16. Yet, in the case of  Simrikha vs.  Dolley Mukherjee

and Chhabi  Mukherjee & Anr, (1990)  2 SCC 437,  this

court held:  

“The  inherent  power  under  Section  482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power  cannot  be  exercised  to  do  something, which  is  expressly  barred under the Code.  If any consideration of the facts by way of review is  not  permissible  under  the  Code  and  is expressly  barred,  it  is  not  for  the  Court  to exercise  its  inherent  power  to  reconsider  the matter  and  record  a  conflicting  decision.  If there had been change in the circumstances of the  case,  it  would  be  in  order  for  the  High Court  to  exercise  its  inherent  powers  in  the prevailing circumstances and pass appropriate orders  to  secure  the  ends  of  justice  or  to prevent the abuse of the process of the Court.

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Where there is no such changed circumstances and the decision has  to be arrived at  on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the  same  materials  to  arrive  at  different conclusion  is  in  effect  a  review,  which  is expressly barred under Section 362.”

17. Keeping the principles, as laid down by the aforesaid

decisions of this Court in mind, let us now look to Section

362 of the Code, which expressly provides that no Court

which has signed its judgment and final order disposing of

a  case,  shall  alter  or  review  the  same  except  to  correct

clerical  or arithmetical error saved as otherwise provided

by the Court.  At this stage, the exercise of power under

Section 482 of the Code may be looked into.   

18. Section  482 enables  the  High  Court  to  make such

order as may be necessary to give effect to any order under

the Code or to prevent abuse of the process of any Court or

otherwise  to  secure  the  ends  of  justice.  The  inherent

powers, however, as much are controlled by principle and

precedent as are its express powers by statutes. If a matter

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is covered by an express letter of law, the court cannot give

a  go-by to  the  statutory  provisions  and instead  evolve  a

new provision in the garb of inherent jurisdiction.

19. In the  case  of  Smt Sooraj  Devi vs. Pyare Lal  &

Anr, AIR 1981 SC 736, this Court held “that the inherent

power  of  the  Court  cannot  be  exercised  for  doing  that

which is specifically prohibited by the Code.”

20. Similar view was expressed in the case of Sankatha

Singh vs. State of U.P. [1962] Supp 2 SCR 817, in which

it was held:

“It  is true that the prohibition in Section  362 against  the  Court  altering  or  reviewing  its judgment  is  subject  to  what  is  "otherwise provided by this Code or by any other law for the  time  being  in  force".  Those  words, however, refer to those provisions only where the Court has been expressly authorised by the Code  or  other  law  to  alter  or  review  its judgment. The inherent power of the Court is not  contemplated  by  the  saving  provision contained  in  Section  362 and,  therefore,  the attempt  to  invoke  that  power  can  be  of  no avail.”  

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21. As  noted  herein  earlier,  Section  362  of  the  Code

prohibits reopening of a final order except in the cases of

clerical or arithmetical errors.  Such being the position and

in view of the expressed prohibition in the Code itself in

the form of Section 362, exercise of power under Section

482 of the Code cannot be exercised to reopen or alter an

order disposing of a petition decided on merits.   

22. In the present case, we find that the High Court, in

the  original  final  order,  disposing  of  the  petition  under

Section 482 of the Code has specifically given reasons for

rejecting the prayer for handing over the investigation to

the CBI authorities.   

23. That apart, after the final order was passed rejecting

the prayer of the respondent to hand over the investigation

to the CBI authorities, by which, the criminal petition filed

under Section 482 was practically rejected, it was not open

to the High Court to pass a fresh order in the disposed of

petition  or  even in  the  pending  petition  of  the DSP (SB

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CID) Nagapattinam, directing investigation to be made by

the CBI authorities.   

24. As  noted  herein  earlier,  Section  362  of  the  Code

prohibits  a Court  from making alternation in a judgment

after the final order or Judgment was signed by the Court

disposing of the case finally except to correct  clerical or

arithmetical errors.  In our view, therefore, Section 362 of

the Code cannot apply in the facts and circumstances of the

present case.  There was no clerical or arithmetical error in

the order.   

25. That  apart,  the  respondents  did  not  file  any

independent  application  for  transferring  the  investigation

from the State Police authorities to the CBI authorities on

certain events which had occurred after the final order was

passed by the High Court disposing of the earlier criminal

petition under Section 482 of the Code.  A prayer could be

made  by  the  respondents  before  the  High  Court  for

transferring  the  investigation  from  the  State  Police

authorities  to  the  CBI  by  filing  a  fresh  petition  under

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Section 482 of the Code in view of subsequent events that

had taken place after the final order disposing of the earlier

criminal  petition  was  passed.   Again,  as  noted  herein

earlier, the respondents had never applied for transferring

the investigation from State Police authorities to the CBI

by making an independent application.  Accordingly, we do

not think that the High Court was justified in handing over

the  investigation  of  the  case  from  the  State  Police

authorities to the CBI authorities.  It is needless to mention

that  it  would  be  open  for  the  respondent  to  make

independent application under Section 482 of the Code if

they find that subsequent events having been taken place,

the  investigation  must  be  transferred  from  State  Police

authorities to CBI.  Accordingly, we are unable to sustain

the  impugned  order  of  the  High  Court  in  view  of  our

discussions  made hereinabove.   Therefore,  the impugned

order is set aside.  The appeal is thus allowed.   

26. We make it clear once again that if a fresh criminal

petition  under  Section  482  of  the  Code  is  filed  by  the

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respondents  for  transferring  the  investigation  from State

Police authorities to CBI after bringing certain subsequent

events that had taken place after the disposal of the original

criminal petition if there be any, it would be open for the

High Court to entertain such application if it is warranted

and decide the same in accordance with law for which we

express no opinion on merit.   

27. For the reasons aforesaid, the appeal is thus allowed

to the extent indicated above.                       

………………………J. [TARUN CHATTERJEE]

………………………J.  [P. SATHASIVAM]

NEW DELHI

September 02, 2008.

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     OF 2008 (Arising out of SLP (Crl) No. 5238 of 2004)

State Rep. By D.S.P., S.B.C.I.D., Chenai              ...

Appellants

VERSUS

K.V. Rajendran & Ors                                     …

Respondents     

*.*.*.*.*.*.*

Dear Brother,

The judgment in the above matter is sent herewith for

your perusal and kind consideration.

With warm regards,

………………………… [TARUN CHATTERJEE ]

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Hon. Mr. Justice P. Sathasivam

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