Om Parkash vs Cbi
2010 Latest Caselaw 3560 Del

 *                      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Criminal Revision Petition No.387 of 2010 & C.M. Appl.
                                  Nos.12848 of 2010, 12849 of 2010

%                                                                              02.08.2010

          OM PARKASH                                                 ...... Petitioner
                                         Through: Mr. Ramesh Gupta, Senior Advocate with
                                                  Mr. Vipin Sanduja, Advocate.

                                             Versus
          C.B.I.                                                    ......Respondent
                                         Through: Mr. Vikas Pahwa, Additional Standing
                                                  Counsel with Mr. Sachin Chandra, Adv.

                                                               Reserved on: 29th July, 2010
                                                           Pronounced on: 2nd August, 2010

          JUSTICE SHIV NARAYAN DHINGRA

1.        Whether reporters of local papers may be allowed to see the judgment?

2.        To be referred to the reporter or not?

3.        Whether judgment should be reported in Digest?

                                        JUDGMENT

1. The present revision petition under Section 397/401 of Criminal Procedure Code

has been filed against the charge framed against the petitioner by the Special Judge-01

(CBI), Rohini Courts, Delhi.

2. At the very outset, counsel for the CBI submitted that a revision petition against

framing of charge by the Special Judge, CBI was barred under Section 19 (3) (c) of

Prevention of Corruption Act, 1988 (as amended) wherein it is provided that no court

shall exercise power of revision in relation to any interlocutory order passed in any

inquiry, trial, appeal or other proceedings. This court had considered the issue whether a

revision would lie or not against charge under Prevention of Corruption Act in Dharamvir

Khattar & Ors. Vs. CBI; 2009 IV AD (Delhi) 657 and after discussing numerous

judgments of this court and Apex court had come to a conclusion that the order framing

charge was purely an interlocutory order and a revision against the order framing charge

was barred under Section 19 (3) (c) of Prevention of Corruption Act. This court in

Criminal Revision Petition No.293 of 2006 titled R.C. Sabharwal & Ors. vs. CBI decided

on 6th January, 2010, after considering Dharamvir's case (supra) and State vs. Navjot

Sandhu & Ors.; (2003) 6 SCC 641 and Satya Narayan Sharma vs. State of Rajasthan;

(2001) 8 SCC 607 had observed that a revision was not maintainable. However, in above

case it was contended that if revision was not maintainable, there should be no bar on

challenge being made under Article 227 of the Constitution of India. This court observed

that since no request had been made to court by any of the revisionists that revision

should be converted to a petition under Article 227 of the Constitution of India and

revision was not maintainable, the revision was dismissed. However, one of the petitions

made under Article 226/227 was kept pending for decision.

3. It is argued by counsel for the petitioner that this court had not held that a petition

under Article 227 of the Constitution of India was also not maintainable.

4. In Bharat Parikh vs. CBI & Anr.; (2008) 10 SCC 109, Supreme Court had

considered the issue of maintainability of revision or a petition under Section 482 Cr.P.C

against charge and observed as under :-

"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 Cri. LJ 527, that a criminal proceeding may be quashed to secure 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."

5. It is settled law that what cannot be done directly, cannot be done indirectly.

Where the Legislature has specifically barred a revision against order on charge, the

powers of this court under Article 226 or 227 of Constitution of India cannot be invoked

to circumvent the legislative intent nor inherent powers under Section 482 Cr.P.C. can be

exercised for that purpose.

6. I, therefore, consider that the present revision filed by the petitioner against charge

framed by the Special Judge, CBI was not maintainable and is liable to the dismissed and

is hereby dismissed.

SHIV NARAYAN DHINGRA [JUDGE] AUGUST 02, 2010 'AA'