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Supreme Court of India
Saranya vs Bharathi on 24 August, 2021Author: M.R. Shah
Bench: Hon’Ble Dr. Chandrachud, M.R. Shah
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 873 OF 2021
Saranya …Appellant
Versus
Bharathi and another …Respondent
JUDGMENT
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 25.08.2020 passed by the High Court of Judicature at
Madras in Criminal OP No. 1443 of 2020, by which the High Court in
exercise of powers under Section 482 Cr.P.C. has quashed and set
aside the entire criminal proceedings qua respondent no.1 herein –
original accused no.2 (A2) in P.R.C. No.250 of 2019 on the file of the
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2021.08.24
17:19:32 IST
Reason:
learned X Metropolitan Magistrate, Egmore, Chennai, the original
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complainant – wife of the deceased – victim has preferred the present
appeal.
2. That an FIR was lodged against respondent no.1 herein and one
another on the statement of the appellant herein initially for the offences
under Sections 326, 307, 302, 420, r/w 34 IPC. As per the statement
and the allegations in the FIR, her husband was serving as Assistant
Professor a year before. However, thereafter he was unemployed; that
she had studied up to B.Com and looking after the domestic works; that
since her husband was unemployed and it was difficult to maintain the
family expenses, at that time, one Vela alias Velayutham was introduced
by respondent no.1 herein and told them that the said Vela alias
Velayutham is employed at Guindy Employment Exchange and that if
they give money, he can arrange Government employment for them; it
was further alleged that believing in his words they gave Rs. 4 lakhs to
Velayutham about six months before; that on 23.09.2019 the said
Velayutham promised that my husband will get the appointment order
today itself and asked us to come to Vyasarpadi; that as asked by
Velayutham, A1 in the aforesaid FIR, the complainant and her husband
went to Flat No. 560, 8th Main Road behind Vyasarpadi Mullai Nagar Bus
Depot at about 9:00 a.m. and met him; that A1 offered them ‘Prasadam’
from Shirdi Sai Baba Temple and to talk after our taking the Prasadam;
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that it was a powder like Vibhuti in Shiva Temples; that since the powder
was bitter in taste, she spitted it out, however, her husband had
consumed it; that her husband fainted and fell down and that she was
also feeling drowsy; that people nearby called 108 Ambulance and sent
them to Stanley Hospital for treatment; that while she was on treatment
she came to know that her husband died at the spot of the incident itself;
that it was alleged that the powder given by Velayutham-A1 was the
cause for her husband’s death and her drowsiness; that the statement of
the complainant was recorded at the hospital on 24.09.2019 which at the
relevant time was treated as dying declaration. The relevant extract of
the same is as under:
“My name is Saranya I studied B.Com, I got married, my husband name is
Karthick, I am having two sons, I am a house wife, my husband was
professor and due to non-payment of salary, he started Xerox shop. One
Bharathi regularly come to my husband’s Xerox shop for Xeroxing. She
said that she is working in secretariat, she said there is a job in
employment office and for arranging the same Rs. 6 Lakhs may be given,
we decided the job for my husband as advance during 7 month we paid 5
Lakhs. Daily when enquired the phone, the file has been moved, one week
ago he said that he will give order copy and saibaba prasadam. We went
to palani with family and returned on Monday at 7.30 hrs, Since, there is
examination for our sons, I took my sons to school due to delay and
spoken with the madam and left my sons in the school, my husband saw
the missed call from velayutham three times, immediately my husband
asked me to go home but I wanted to accompany him to Mullai Nagar.
Previously I went to guindy office, velayutham asked as to come in the
lane, green colour house is my house. He showed an order and given
viboothi and kungumam and we kept it then he opened the box in the
vehicle, he has given some powder from to me and my husband yellow
colour cover in spoon, immediately velayutham took the mobile of her
husband and went in two wheeler for taking Xerox copy of the order copy.
My husband took the prasadam and felt something irritation and
immediately took the water and spit the same, and also he give water to
his wife with instruction to spit the content in her mouth, she also spit the
content, my husband suffered fits and he closed his eyes, I do not know
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what had happened to me. When I wake up, I was in the hospital.
Velayutham has given something to my husband and killed him, Bharathi
is also the cause. Enquiry completed at 02.55 afternoon. The Patient
conscious and able to speak till completing the declaration.”
2.1 That the dying declaration was recorded by the Magistrate in the
presence of Doctor who certified that the patient was conscious and able
to speak; that it was the specific case on behalf of the appellant-
complainant that it was the respondent no.1 herein – original accused
no.2 who introduced Vela @ Velayutham – A1 to them and she said that
she is working in the Secretariat and that there is a job in the
employment office and for arranging the same, Rs. 6 lakhs may be given
and relying upon her statement Rs. 5 lakhs was given; that thereafter
after the investigation the investigating officer filed the chargesheet
against Vela @ Velayutham – A1 for the offences under Sections 326,
307, 302, 420 r/w 34 IPC and against respondent no.1 herein – A2 for
the offences under Sections 420, 302 r/w Section 109 IPC; that the case
was pending for committal before the learned X Metropolitan Magistrate,
Egmore, Chennai; that at this stage respondent No.1 herein – A2
approached the High Court by way of Criminal O.P. No. 1443 of 2020
under Section 482 Cr.P.C praying for quashing the entire chargesheet as
against her, pending committal in P.R.C. No. 250 of 2019 on the file of
the learned X Metropolitan Magistrate, Egmore, Chennai; that by the
impugned judgment and order, the High Court in exercise of powers
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under Section 482 Cr.P.C. has quashed and set aside the entire
chargesheet and the criminal proceedings qua respondent no.1 herein-
A2 in P.R.C. No. 250 of 2019 on the file of the learned X Metropolitan
Magistrate, Egmore, Chennai for the offences under Sections 420, 302
r/w 109 IPC.
3. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court quashing and setting aside the
entire criminal proceedings/chargesheet qua respondent no.1 herein-A2
in P.R.C. No. 250 of 2019 on the file of the learned X Metropolitan
Magistrate, Egmore, Chennai for the offences under Sections 420, 302
r/w 109 IPC, the original complainant – victim – wife of the deceased has
preferred the present appeal.
4. Shri G.S. Mani, learned Advocate has appeared for the appellant,
Shri S. Nagamuthu, learned Senior Advocate has appeared on behalf of
respondent no.1 herein – original accused no.2 and Shri (Dr.) Joseph
Aristotle S, learned Advocate has appeared on behalf of the respondent
– State of Tamil Nadu.
4.1 Shri Mani, learned Advocate appearing on behalf of the appellant
has vehemently submitted that in the facts and circumstances of the
case, the High Court has committed a grave error in quashing and
setting aside the entire criminal proceedings qua respondent no.1 herein
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for the offences under Sections 420, 302 r/w 109 IPC, in exercise of
powers under Section 482 Cr.P.C.
4.2 It is submitted that despite the fact that there is ample material
against respondent no.1 herein – original accused no.2, the High Court
has quashed the entire criminal proceedings/chargesheet by entering
into the merits of the allegations and appreciating the evidence on
record, which at this stage and while considering the application under
Section 482 Cr.P.C. is not permissible.
4.3 It is submitted that the High Court has not properly appreciated the
fact that as such it was respondent no.1 herein – original accused no.2
who assured and/or given promise that she will arrange for the job and
for that she demanded the money.
4.4 It is submitted that as such respondent no.1 herein – original
accused no.2 introduced Vela @ Velayutham – A1 to the complainant
and her husband and an amount of Rs. 5 lakhs were given to A1. It is
submitted that the High Court has not properly appreciated the fact that
as such there was confessional statement of respondent no.1 herein –
A2 and on the basis of the said confessional statement, there was a
recovery of Rs. 1 lakh 20 thousand from the house of respondent no.1
herein – original accused no.2.
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4.5 It is further submitted that during the course of the investigation,
the investigating officer also collected the evidence in the form of call
details, more particularly the calls between A1 & A2 in the proximity of
the time of commission of offence.
4.6 It is submitted that despite the above material collected and the
circumstances, the High Court has erroneously quashed the
chargesheet/entire criminal proceedings qua respondent no.1 herein –
original accused no.2, in exercise of powers under Section 482 Cr.P.C.
4.7 It is submitted that while quashing the chargesheet/entire criminal
proceedings, the High Court has evidently ignored what has emerged
during the course of investigation. The High Court has not at all applied
the relevant test, namely, when there is sufficient ground for proceeding
against the accused or whether there is ground for presuming that
accused has committed the offence. It is submitted that the High Court
has exceeded in its jurisdiction to quash the chargesheet/entire criminal
proceedings in exercise of powers under Section 482 Cr.P.C. Heavy
reliance is placed on the decision of this Court in the case of State of
Madhya Pradesh v. Deepak, reported in (2019) 13 SCC 62.
4.8 Making the above submissions, it is prayed to allow the present
appeal and quash and set aside the impugned judgment and order
passed by the High Court quashing and setting aside the
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chargesheet/entire criminal proceedings qua respondent no.1 herein –
original accused no.2 for the offences under Sections 420, 302 r/w 109
IPC.
5. Dr. Joseph Aristotle S, learned Advocate appearing on behalf of
the State of Tamil Nadu has supported the appellant. Reliance is placed
on the counter affidavit filed on behalf of respondent no.2 – State of
Tamil Nadu.
5.1 It is vehemently submitted that as such during the course of the
investigation, the investigating officer collected ample material/evidence
against both the accused and only thereafter chargesheet has been filed
against A1 for the offences under Sections 326, 307, 302, 420, r/w 34
IPC and for the offences under Sections 420, 302 r/w 109 IPC against
respondent no.1 herein – original accused no.2.
5.2 It is vehemently submitted that during the course of the
investigation, the investigating officer has collected the call details
between A1 and A2. It is submitted that perusal of the call details report
furnished by the service provider and the nodal officer clearly proves that
there were several calls made by both A1 and A2, vice versa, for
example on 23.09.2019 (the day when the incident had occurred) at
about 09:05:26, respondent no.1 herein – A2 made a call to A1 on his
mobile No. 9790846016 from her mobile No. 6382028209 and again A1
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had made a call to A2 – respondent no.1 herein on the same day at
about 09:51:59 and 09:55:15. It is submitted that it clearly shows that at
that time A1 was available at the place of the incident and for second call
also tower location showed the same place. It is submitted that again on
the same day from mobile No. 9790846016, A1 made a call to A2 on her
mobile no. 6382028209 at about 6:36 p.m. It is submitted that therefore
it is clearly established that the said Mrs. Bharathi, respondent no.1
herein – A2 aided and instigated the offence committed by A1.
5.3 It is further submitted that there was a recovery of Rs. 1 lakh 20
thousand from the house of A2 at the instance of A2. It is submitted
therefore that the High Court has exceeded in its jurisdiction to quash
the chargesheet/entire criminal proceedings qua respondent no.1 herein,
while exercising the powers under Section 482 Cr.P.C.
6. Shri Nagamuthu, learned Senior Advocate appearing on behalf of
respondent no.1 herein – A2 has submitted that in the facts and
circumstances of the case and considering the material/evidence on
record and having found that there is not even a prima facie
evidence/material against respondent no.1 herein – A2, the High Court
has rightly quashed the chargesheet/criminal proceedings qua
respondent no.1 herein in exercise of powers under Section 482 Cr.P.C.
It is submitted that as such and even considering the statement of the
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original complainant as it is and even considering the case of the
prosecution as it is, it cannot be said that respondent no.1 herein – A2
has committed any offence under Sections 420, 302 r/w 109 IPC. It is
submitted that from the statement of the original complainant –
appellant, it can be gathered that the allegations against A2 is that she
introduced A1 to them; that an amount of Rs.4/5 lakhs was paid to A1;
that the allegations of giving poison and even purchasing of poison is
against A1 only; that there is no evidence that at the time when A1 gave
poison to the deceased, A2 – respondent no.1 herein was present.
6.1 It is further submitted that the so-called confessional statement of
A2 is not admissible in the evidence at all and therefore no reliance can
be placed upon such alleged confessional statement, which has no
evidentiary value.
6.2 It is further submitted that even the so-called recovery of Rs. 1 lakh
20 thousand from the house of A2 cannot bring home the charge against
A2 for the offences for which she has been chargesheeted. It is
submitted that there is no evidence at all that it was the very money
which was given to A1 by the complainant.
6.3 It is submitted that even the so-called call details between A1 & A2
cannot be said to be a sufficient material/evidence against A2. Merely
because A1 & A2 might have talked cannot be held against A2.
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6.4 It is further submitted that even the statement of the complainant
recorded on 24.09.2019 recorded at the hospital cannot be treated as
dying declaration as subsequently she survived. It is submitted that
there is improvement in the case and subsequently she had come out
with the case that she paid Rs. 5 lakhs, whereas as per the original
case, an amount of Rs. 4 lakhs was given.
6.5 It is submitted that as such there is no material/evidence at all
against A2 for the offence under Section 109 IPC. It is submitted that no
case of appellant attracting the offence under Section 109 IPC against
respondent no.1 herein – A2 is made out. It is submitted that there is no
ingredient available as against A2 to attract the offence under Section
109 IPC.
6.6 It is submitted therefore that in the facts and circumstances of the
case, the High Court has not committed any error in quashing and
setting aside the chargesheet/criminal proceedings qua accused no.2 in
exercise of powers under Section 482 Cr.P.C.
6.7 Making the above submissions, it is prayed to dismiss the present
appeal.
7. We have heard the learned counsel for the respective parties at
length.
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Before considering the rival submissions of the parties, few
decisions of this Court on the principles which the High Court must keep
in mind while exercising the jurisdiction under Section 482 Cr.P.C./at the
stage of framing of the charge while considering the discharge
application are required to be referred to and considered.
7.1 In the case of Deepak (supra), to which one of us (Dr. Justice D.Y.
Chandrachud) is the author, after considering the other binding decisions
of this Court on the point, namely, Amit Kapoor v. Ramesh Chander
(2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu (2017) 3
SCC 198; and Chitresh Kumar Chopra v. State (Government of NCT of
Delhi) (2009) 16 SCC 605, it is observed and held that at the stage of
framing of charges, the Court has to consider the material only with a
view to find out if there is a ground for “presuming” that the accused
had committed the offence. It is observed and held that at that stage,
the High Court is required to evaluate the material and documents on
record with a view to finding out if the facts emerging therefrom, take at
their face value, disclose the existence of all the ingredients constituting
the alleged offence or offences. It is further observed and held that at
this stage the High Court is not required to appreciate the evidence on
record and consider the allegations on merits and to find out on the basis
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of the evidence recorded the accused chargesheeted or against whom
the charge is framed is likely to be convicted or not.
8. In the present case, there is sufficient material on record raising
the strong suspicion against respondent no.1 herein – A2 also. It has
been found that A2- respondent no.1 herein who was serving in the
Secretariat and was in touch with the deceased and the complainant as
she used to go to Xerox shop owned by the deceased and she
introduced A1 to the complainant and the deceased. It is specifically
alleged that she said that she can manage to get the job/employment for
the deceased but for that they have to pay. It is true that as per the case
of the prosecution and even as per the statement of the complainant, an
amount of Rs. 5 lakhs was paid to A1. However, during the course of the
investigation, an amount of Rs. 1 lakh 20 thousand has been recovered
from the house of respondent no.1 herein – A2 at the instance of A2
herself. It may be true that the so-called confessional statement of
respondent no.1 herein is inadmissible in evidence. However, it is to be
noted that on the basis of such statement, there was a recovery of Rs. 1
lakh 20 thousand from the house of A2 – respondent no.1 herein. The
other aspect whether the recovered amount of Rs. 1 lakh 20 thousand
was the same amount which was given by the deceased and the
complainant to A1 is a matter of evidence to be considered during trial.
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Even the source of Rs. 1lakh 20 thousand might have to be explained by
the accused.
9. It also appears that during the course of the investigation, the
investigating officer has collected very important evidence in the form of
call details between A1 & A2 which are in the proximity of the time of
commission of offence and even thereafter. Therefore, in the facts and
circumstances of the case, when respondent no.1 herein has been
chargesheeted for the offences under Sections 420, 302 r/w 109 IPC
and as observed hereinabove when there is ample material to show at
least a prima facie case against respondent no.1 herein – A2, the High
Court has committed a grave error in quashing the chargesheet/entire
criminal proceedings qua her in exercise of powers under Section 482
Cr.P.C. Quashing the chargesheet against the accused is not justified.
The High Court has evidently ignored what has emerged during the
course of investigation. The High Court has entered into the
appreciation of the evidence and considered whether on the basis of the
evidence, the accused is likely to be convicted or not, which as such is
not permissible at all at this stage while considering the application
under Section 482 Cr.P.C. The High Court was not as such conducting
the trial and/or was not exercising the jurisdiction as an appellate court
against the order of conviction or acquittal. Therefore, in the facts and
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circumstances of the case, the High Court ought not to have quashed
the chargesheet qua respondent no.1 herein – original accused no.2.
10. In view of the above and for the reasons stated above, the present
appeal succeeds. The impugned judgment and order passed by the
High Court quashing the chargesheet/criminal proceedings in P.R. C.
No. 250 of 2019 on the file of the learned Metropolitan Magistrate,
Egmore, Chennai for the offences under Sections 420, 302 r/w 109 IPC
qua respondent no.1 herein – original accused no.2 deserves to be
quashed and set aside and is accordingly quashed and set aside. Now
the learned Magistrate to proceed further with the case, in accordance
with law. It goes without saying that any observations made by this
Court in the present order shall be confined to while considering the
application under Section 482 Cr.P.C. and the trial in the aforesaid case
shall proceed further on its own merits, in accordance with law on the
basis of the evidence laid.
11. The appeal is allowed in the aforesaid terms.
….…………………………………J. [Dr. Dhananjaya Y. Chandrachud]
New Delhi; ……………………………………..J.
August 24, 2021. [M.R. Shah]
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