Delhi High Court
Puneet Sabharwal vs Central Bureau Of Investigation on 6 January, 2010
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.Rev.P. 293/2006
% Reserved on : 18th December, 2009
Pronounced on: 6th January, 2010
# R.C. Sabharwal ..... Revisionist
! Through: Mr. Harish K. Sharma,
Adv.
versus
$ Central Bureau of Investigation ..... Respondent
! Through: Mr. Vikas Pahwa, ASC
with Mr. Biswajit Kumar Patra, Adv.
Crl.Rev.P. 294/2006
# Puneet Sabharwal ..... Revisionist
! Through: Mr. Harish K. Sharma,
Adv.
versus
$ Central Bureau of Investigation ..... Respondent
! Through: Mr. Vikas Pahwa, ASC
with Mr. Biswajit Kumar Patra, Adv.
Crl.Rev.P. 352/2006
# Rekha Anand ..... Petitioner
! Through: Mr. Tripurari Rai, Adv.
versus
$ Central Bureau of Investigation ..... Respondent
! Through: Mr. Vikas Pahwa, ASC
with Mr. Biswajit Kumar Patra, Adv.
Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 1 of 55
Crl.Rev.P. 580/2006
# Shafiquur Rehman Khan ..... Petitioner
! Through: Mr. Islam Khan, Adv.
versus
$ Central Bureau of Investigation ..... Respondent
! Through: Mr. Vikas Pahwa, ASC
with Mr. Biswajit Kumar Patra, Adv.
W.P. (Crl.) No. 1419/2009
# Rajeshwar Bansal & Ors. ..... Petitioners
! Through: Mr.Mohit Mathur with
Mr. D.S.Kohli, Advs.
versus
$ State (through CBI) ..... Respondent
! Through: Mr. Vikas Pahwa, ASC
with Mr. Biswajit Kumar Patra, Adv.
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
: V.K. JAIN, J.
1. These petitions involves a common questions of law as to
(i) whether an order directing framing of charge or framing
charge, in a case attracting the provisions of Prevention of
Corruption Act, 1988 is an interlocutory order and (ii) whether
such an order can be challenged by way of (a) Revision Petition
or (b) petition under Section 482 of the Code of Criminal
Procedure or (c) petition under Article 226/227 of the
Constitution.
2. Section 19(3)(c) of the Prevention of Corruption Act
provides as under:
―(c) no court shall stay the proceedings
under this Act on any other ground and no
court shall exercise the powers of revision
in relation to any interlocutory order
passed in any inquiry, trial, appeal or
other proceedings.‖
3. In 'Dharambir Khattar & Ors vs. CBI' 2009 IV AD
(Delhi) 657, four criminal revision petitions directed against the
Order on Charge, passed by the learned Special Judge under
Section 120B of the IPC, read with various provisions of
Prevention of Corruption Act, 1988, were filed by the accused
persons, against whom charges were framed. Relying upon the
provisions of Section 19(3)(c) of the Prevention of Corruption
Act, a preliminary objection was raised by CBI disputing
maintainability of the petitions.
In support of its contention, CBI referred to the decisions
of the Hon'ble Supreme Court in ‗State vs. Navjot Sandhu,
2003 (6) SCC 641 and ‗Satya Narayan Sharma vs. State of
Rajasthan' AIR 2001 (8) SCC 607. It also placed reliance upon
the decision of the Hon'ble Supreme Court in 'V.C. Shukla vs.
CBI' 1980 (Suppl.) SC 921 in support of the contention that
Order on Charge in a corruption case is an interlocutory order.
4. After examining the provisions of Section 19(3)(c) of
Prevention of Corruption Act, 1988, Section 11 of Special Courts
Act, 1979 and Section 34 of Prevention of Terrorism Act, the
Court was of the view that they are pari materia with each other
and held that the Order on Charge is an interlocutory order. It
was further held that in view of the embargo placed by Section
19(3)(c) of the Prevention of Corruption Act, no revision petition
would be maintainable in the High Court against Order on
Charge or an order framing charge, passed by the Special Judge.
5. During the course of arguments, it was contended before
this Court that notwithstanding the provision of Section 19(3)(c)
of the Act, the power of the High Court under Article 226 and
227of the Constitution and Section 482 of the Code of Criminal
Procedure, remain untrammeled and could be invoked in
appropriate case. The argument was rejected, holding that it
does not survive after the pronouncement of the Supreme Court
in Navjot Siddhu (supra) and Satya Narayan Sharma's case
(supra).
6. The following contentions have primarily been made by the
learned counsels for the petitioners (i) an order framing charge
or directing framing of charge even in a case attracting the
provisions of Prevention of Corruption Act, 1988 is not an
interlocutory order and therefore revision against such an order
is not barred and the judgment of this Court in Dharambir
Khattar's case (supra) holding therein that a Revision Petition
against such an order is not maintainable needs reconsideration
by a larger Bench; (ii) the power of this Court under Section 482
of the Code of Criminal Procedure have not been taken away by
Section 19(3)(c) of Prevention of Corruption Act and in suitable
cases such powers can be invoked, when an order framing
charge or directing framing of charge in a corruption case is
challenged, by a person aggrieved from such an order; (iii) the
constitutional power of this Court under Article 226 and 227 of
the Constitution have not been and cannot be taken away by a
statutory enactment, including Section 19(3) (c) of Prevention of
Corruption Act, 1988. This is also their contention that the
observations of this Court in the case of Dharambir Khattar
(supra) to the effect that neither powers under Section 482 of
the Code of Criminal Procedure nor the power under Article 226
and 227 of the Constitution can be invoked in such cases are by
way of obiter and do not constitute the ratio decidendi of the
case.
Interlocutory Order
7. The term ‗interlocutory order' has not been defined in the
Code of Criminal Procedure. Ordinarily, the expression
‗interlocutory order' is taken to mean as a converse of the term
‗final order'. A judgment or order, which determines the
principal matter in question, is generally termed as ‗final'.
Normally, an order which does not deal with the final rights of
the parties, is made before the judgment, gives no final decision
on the matters in dispute, but is merely on a matter of
procedure, is termed as ‗interlocutory'. Though not conclusive
of the main dispute an interlocutory order may be conclusive as
to the subordinate matter with which it deals.
In S. Kuppuswami Rao v. The King, 1947 FCR 180: AIR
1949 FC 1, the Federal Court referred to the following
observations made in Salaman vs. Warner (1891) 1 QB 734:
"If their decision, whichever way it is
given, will, if it stands, finally dispose of
the matter in dispute, I think that for the
purposes of these rules it is final. On the
other hand, if their decision, if given in one
way, will finally dispose of the matter in
dispute, but, if given in the other, will
allow the action to go on, then I think it is
not final, but interlocutory."
8. The expression ‗interlocutory order' used in Section 397 of
the Code of Criminal Procedure came up for consideration
before the Hon'ble Supreme Court in Amar Nath vs. State of
Haryana and Anr.(1977) 4 SCC 137.The Hon'ble Supreme
Court, inter alia, observed as under:
―It seems to us that the term "interlocutory
order" in Section 397(2) of the 1973 Code
has been used in a restricted sense and not
in any broad or artistic sense. It merely
denotes orders of a purely interim or
temporary nature which do not decide or
touch the important rights or the liabilities
of the parties. Any order which
substantially affects the rights of the
accused, or decides certain rights of the
parties cannot be said to be an
interlocutory order so as to bar a revision
to the High Court against that order,
because that would be against the very
object which formed the basis for insertion
of this particular provision in Section 397
of the 1973 Code. Thus, for instance,
orders summoning witnesses adjourning
cases, passing orders for bail, calling for
reports and such other steps in aid of the
pending proceeding, may no doubt amount
to interlocutory orders against which no
revision would lie under Section 397(2) of
the 1973 Code. But orders which are
matters of moment and which affect or
adjudicate the rights of the accused or a
particular aspect of the trial cannot be said
to be interlocutory order so as to be
outside the purview of the re-visional
jurisdiction of the High Court.‖
Applying the aforesaid proposition of law, the Hon'ble
Supreme Court held that the order, whereby the appellants were
summoned as accused, in the facts and circumstances of the
case before it, was not an interlocutory order, since it was only
with the passing of such an order that the criminal proceedings
started and the question of the appellants being put up for trial
arose for the first time. It was noticed by the Hon'ble Court that
a valuable right of the appellants had been taken away by the
Magistrate, in passing an order prima facie in sheer mechanical
fashion, without applying his mind. It was observed that had the
appellants not been summoned, they would not have faced trial
at all, by compelling them to face a trial without proper
application of mind, and such an order could not be held to be an
interlocutory matter.
In K.K. Patel & Anr. Vs. State of Gujarat & Anr. 2000
(6) SCC 195, the Hon'ble Supreme Court, inter alia, observed as
under:
―The feasible test is whether by upholding
the objections raised by a party, it would
result in culminating the proceedings, if so
any order passed on such objections would
not be merely interlocutory in nature as
envisaged in Section 397(2) of the Code. In
the present case, if the objection raised by
the appellants were upheld by the Court
the entire prosecution proceedings would
have been terminated. Hence, as per the
said standard, the order was revisable.‖
9. The statement of law enunciated in the case of Amar Nath
(supra)again came up for consideration before the Hon'ble
Supreme Court in Madhu Limaye vs. The State of
Maharashtra' (1977) 4 SCC 551. The Hon'ble Supreme Court,
inter alia, observed as under:
―On the one hand, the Legislature kept
intact the revisional power of the High
Court and, on the other, it put a bar on the
exercise of that power in relation to any
interlocutory order. In such a situation it
appears to us that the real intention of the
Legislature was not to equate the
expression "interlocutory order" as
invariably being converse of the words
"final order". There may be an order
passed during the course of a proceeding
which may not be final in the sense noticed
in Kuppuswami's case (supra), but, yet it
may not be an interlocutory order--pure or
simple. Some kinds of order may fall in
between the two. By a rule of harmonious
construction, we think that the bar in Sub-
section (2) of Section 397 is not meant to
be attracted to such kinds of intermediate
orders. They may not be final orders for
the purposes of Article 134 of the
Constitution, yet it would not be correct to
characterise them as merely interlocutory
orders within the meaning of Section
397(2). It is neither advisable, nor possible,
to make a catalogue of orders to
demonstrate which kinds of orders would
be merely, purely or simply interlocutory
and which kinds of orders would be final,
and then to prepare an exhaustive list of
those types of orders which will fall in
between the two. The first two kinds are
well-known and can be culled out from
many decided cases. We may, however,
indicate that the type of order with which
we are concerned in this case, even though
it may not be final in one sense, is surely
not interlocutory so as to attract the bar of
sub-Section (2) of Section 397. In our
opinion it must be taken to be an order of
the type falling in the middle course.‖
In this case, charge was made against the appellant under
Section 500 of IPC. The appellant challenged the order of
Sessions Judge in a Revision Petition before Bombay High Court.
The Revision Petition was rejected on the ground that it was not
maintainable in view of the provisions contained in sub-Section
(2) of Section 397 of the Code.
10. If the interpretation given by the Hon'ble Supreme Court to
an interlocutory order in the case of Madhu Limaye is applied,
an order framing charge or directing framing of charge cannot
be said to be an interlocutory order. Therefore, the question
that comes up for consideration is as to whether the term
‗interlocutory order', as used in Section 19(3) (c) of Prevention
of Corruption Act, needs to be given a meaning different from
the meaning given to it by the Hon'ble Supreme Court in the
context of the Code of Criminal Procedure.
11. The provisions of Section 19(3)(c) of Prevention of
Corruption Act, to the extent it provides that no Court shall
exercise the power of revision in relation to any interlocutory
order passed in any appeal, inquiry, trial or other proceedings
are pari materia with Section 397 (2) of the Code of Criminal
Procedure. The Prevention of Corruption Act was enacted in the
year 1988, much after the Code of Criminal Procedure, 1973
came into force and the provisions of Section 19(3)(c) have been
given overriding effect over the provisions contained in Code of
Criminal Procedure. Had the intention of the Legislature been
to give the same meaning to the term ‗interlocutory order' in
Section 19(3)(c) of Prevention of Corruption Act, as had been
given to this term in the context of Section 397 (2) of the Code,
there would have been no necessity of incorporating a specific
provision to this effect in Prevention of Corruption Act. Even in
the absence of such a provision in Prevention of Corruption Act,
revisional powers could not have been used in respect of an
interlocutory order, in view of the embargo placed by Section
397(2) of the Code. The Acts of the Legislature are not intended
to be superfluous, and the Legislature is presumed to be aware
and conscious of all other statutory enactments when it passes a
particular legislation. Hence, if the Legislature, despite pre-
existence of similar provision in the Code of Criminal Procedure,
chose to make a specific provision in Prevention of Corruption
Act so as to take interlocutory orders out of the purview of
revisional jurisdiction of the Court, it could not have intended to
give same meaning to the expression ‗interlocutory order' as had
been given to this term in the context of the Section 397(2) of
the Code. It would also be pertinent to note here that the
decision of the Hon'ble Supreme Court in the case of Madhu
Limaye (supra), interpreting the expression ‗interlocutory order'
in the context of Section 397(2) of the Code, had come many
years before Prevention of Corruption Act was enacted in the
year 1988. Therefore, the legislative intent obviously was to
give a different meaning to this expression in the context of
Prevention of Corruption Act and that is why the provisions of
Section 19(3)(c) were given overriding effect over the provision
of the Code of Criminal Procedure. Therefore, I am of the
considered view that the term ‗interlocutory order', as used in
Section 19(3)(c) of Prevention of Corruption Act, cannot be given
the same meaning as was given to it by the Hon'ble Supreme
Court in the case of Amar Nath (supra) and Madhu Limaye
(supra). The meaning to be assigned to the expression
‗interlocutory order' in the context of Section 19(3)(c) of
Prevention of Corruption Act has to be derived considering the
objective behind enactment of Prevention of Corruption Act,
1988, including the mischief which the Legislature intended to
do away with by this enactment. This rule, known as ‗purposive
construction', enables consideration of the following matter
while construing an Act (i) what was the law before making of
the Act; (ii) what was the mischief for which the earlier law did
not provide; (iii) what is the remedy the Act has provided; (iv)
what is the reason of the remedy. This rule requires the Court
to adopt a construction which will suppress the mischief and
advance the remedy. Before enactment of Prevention of
Corruption Act, 1988, orders such as order framing charge or
directing framing of charge having been held to be intermediate
orders came within the purview of revisional jurisdiction of the
High Court and resulted in delay of trial by filing revision
petitions or petitions under Section 482 of the Code of Criminal
Procedure, obtaining stay orders, summoning the Trial Court
Record and thereby thwarting progress of the trial. This defect
in the law was sought to be remedied by taking away the
revisional jurisdiction of the High Court in respect of
interlocutory orders and by prohibiting stay of proceedings on
any ground whatsoever. The Court must, therefore, give such a
construction as would advance the legislative intent, instead of
perpetuating the defect which existed in the law before
enactment of Prevention of Corruption Act, 1988.
12. One main object behind replacing Prevention of Corruption
Act, 1947 by a new Act in the year 1988 was to expedite the
proceedings initiated under Prevention of Corruption Act by
providing for day to day trial of cases and incorporating
prohibitory provisions with regard to grant of stay and exercise
of powers of revision on interlocutory order. It has been
experienced that those who are arraigned for trial under the
provisions of Prevention of Corruption Act, try to delay the trial,
using one or the other method and availing all possible remedies
available to them in law, presumably in the hope that with the
passage of time, the evidence that can be used against them
during trial may not remain available, if they are able to delay
the progress of the case, to the extent they can possibly do. Not
only final or intermediate orders even interlocutory orders used
to be and are still challenged despite the accused knowing it
fully well that such orders cannot be subject matter of challenge
in revisional jurisdiction. Though there is an absolute bar on
stay of proceedings, it is not uncommon for the accused in such
cases to seek stay of proceedings on the ground that they are
likely to be seriously prejudiced and failure of justice is likely to
be occasioned, unless the proceedings are stayed. Even if the
Court is not inclined to stay the proceedings, considering the
embargo placed by Section 19(3)(b)(c), the accused persons
insist upon the record of the trial being summoned, contending
that examination of the record would be necessary for the
purpose of deciding the petition filed by them. Section 22(d) of
Prevention of Corruption Act, 1988 provides that where the
powers under Section 397(1) of the Code are exercised, the
Court shall not ordinarily call for the record of the proceedings
without giving the other party an opportunity of showing cause
why the record should not be called for, or if the Court is
satisfied that examination of the record of the proceedings may
be made from the certified copies. But it has been experienced
that the record is requisitioned in many cases, entertaining the
submission of the petitioners to the effect that scrutiny of the
original record would be necessary for the purpose of proper
and complete appreciation of the controversy involved in the
case. As a result, even if there is no stay of proceedings, the
trial comes to be stalled on account of the record having been
requisitioned by the Superior Court. In fact, Trial Court Record
has actually been summoned in Crl.Rev.P. No. 293/2006,
352/2006 and 294/2006 being disposed of this order, which
shows that despite legislative restriction, the record of Trial
Court continues to be summoned by the Superior Courts.
Ordinarily, the accused in such cases command vast material
resources and are in a position to have access to the best legal
assistance for the purpose of their defence. If an order framing
charge or directing framing of charge is held to be an
interlocutory order, the inevitable result would be a flood of
Revision Petitions challenging such orders, coupled with request
for either staying the proceedings in exercise of inherent powers
of the Court or seeking summoning of the Trial Court record,
thereby staying the trial for all practical purposes. This is yet
another reason why the expression ‗interlocutory order' used in
Section 19(3)(c) of the Prevention of Corruption Act needs to be
interpreted differently from the interpretation given to it in the
context of Section 397 of the Code of Criminal Procedure.
13. With a view to expedite the trial of cases, involving
offences under Prevention of Corruption Act 1988, the
Legislature has made a number of changes in the regular
procedure prescribed in the Code of Criminal Procedure for trial
of criminal cases. Special Courts have been constituted for trial
of such cases. The Special Judges are required, as far as
practicable, to hold the trial on day to day basis. A specific
provision has been made placing embargo upon stay of
proceedings under Prevention of Corruption Act not only on the
ground of any error, omission or irregularity in the sanction
unless such error, omission or irregularity has resulted in a
failure of justice, but also on any other ground. Section 243(1)
of the Code has been amended so as to require the accused in a
corruption case, to give in writing, a list of the persons to whom
he proposes to examine as his witnesses and the documents on
which he proposes to rely. Another provision made in Section
22(b) of the Act provides that the proceedings shall not be
adjourned or postponed merely on the ground that an
application under Section 397 has been made by a party to the
proceedings. This provision was necessitated since it was
experienced that after filing a petition under Section 397 of the
Code of Criminal Procedure, the accused would seek
adjournment or postponement of proceedings on the ground that
the Revision Petition filed by him was pending before the
superior Court, and therefore, the trial Court should keep its
hands off the proceedings. A specific provision has been made
in Section 317 of the Code providing that the Judge may, for
reasons to be recorded by him and if he so thinks fit, proceed
with the inquiry or trial in the absence of accused or his pleader
and record the evidence of any witness subject to the right of the
accused to recall the witnesses for cross-examination. This
provision was necessitated experiencing that either accused or
his pleader would be absent when the material witnesses are
present and that would necessitate adjournment of the case to
another date, thereby not only delaying the trial, but also
causing inconvenience to the witnesses and putting pressure on
them to get tired and exhausted on account of frequent visits to
the Court. The objective behind all these provisions is to
expedite trial of the cases instituted under Prevention of
Corruption Act. If an order framing charge or directing framing
of charge in such cases is held to be an interlocutory order, the
legislative objective behind enactment of Prevention of
Corruption Act, 1988 is likely to be substantially defeated. The
virus of corruption continues to eat into the vitals of our
character and strength. With Government entering into large
commercial contract and making huge purchases with increased
expenditure on social welfare schemes and infrastructural
projects, the scope for corrupt practices has increased manifold
as the schemes and projects of the Government and its
instrumentalities are executed only through public servants
which gives considerable scope for misconduct on their part.
Misuse of powers by those who occupy posts in Government is
capable of causing considerable damage to the image and
reputation of our country. We, therefore, need to curb and
control the growing temptation to make a fast buck and get rich
overnight by indulging in corrupt practices. This is possible only
if those who indulge in such activities are given swift and
deterrent punishment, which, in turn, is possible only if they are
tried promptly and expeditiously, unhindered by unnecessary
interference from superior Courts. It is with this objective in
mind, Section 19(3)(c) of Prevention of Corruption Act has been
enacted so as to take away the revisional powers of the High
Court in the cases involving corruption by public servants.
14. Section 11 of Special Courts Act, 1979, to the extent it is
relevant, read as under:
"The Special Courts Act, 1979
11. Appeal (1) Notwithstanding anything
in the Code, an appeal shall lie as of right
from any judgment, sentence or order, not
being interlocutory order, of a Special Court
to the Supreme Court both on facts and on
law......
(3) Except as aforesaid, no appeal or revision
shall lie to any court from any judgment,
sentence or order of a Special Court.
In V.C. Shukla's case (supra), the question that came up
for consideration before the Hon'ble Supreme Court was as to
whether the expression ‗interlocutory order' used in Section
11(i) of Special Courts Act, 1979, needs to be given same
interpretation as was given by the Court in the context of
Section 397 (2) of the Code. The Hon'ble Supreme Court was of
the view that speedy disposal of trial being the heart and soul of
the Act, its provisions need to be interpreted in a manner that
would eliminate all possible avenues of delay by adopting
dilatory tactics. It was observed that if an order framing charge
is held to be an interlocutory order, the Supreme Court would be
flooded with appeals against the orders of Special Courts
framing charges and that would impede the progress of the trial
and delay the disposal of the case, which was against the very
spirit of the Special Courts Act. It was noted that the Act
applied only to specified number of cases which fulfilled the
conditions contained in the Act. After considering its earlier
decisions in the cases of Madhu Limaye, Amar Nath, S.
Kuppuswami Rao and applying the non obstante contained in
Section 11(i) of Special Courts Act, the Hon'ble Court held that
the expression ‗interlocutory order' in Special Courts Act had
been used in its natural sense and not in a special or wider
sense, as used in Section 397(2) of the Code of Criminal
Procedure. The Hon'ble Court felt that the view taken by it was
in complete consonance with the object of the Act to provide for
a most expeditious trial and quick dispatch of the cases tried by
the Special Courts, which was the paramount intention in
passing the Act.
15. The legal proposition on interpretation of the expressions
‗interlocutory order' and ‗final order' was summarized by the
Hon'ble Court as under
―34. Thus, on a consideration of the
authorities, mentioned above, the following
propositions emerge: (1) that an order
which does not determine the right of the
parties but only one aspect of the suit or
the trial is an interlocutory order;
(2) that the concept of interlocutory order
has to be explained in contradistinction to
a final order. In other words, if an order is
not a final order, it would be an
interlocutory order;
(3) that one of the tests generally accepted
by the English courts and the Federal
Court is to see if the order is decided in
one way, it may terminate the proceedings
but if decided in another way, then the
proceedings would continue, because, in
our opinion, the term ‗interlocutory order'
in the Criminal Procedure Code has been
used in a much wider sense so as to
include even intermediate or quasi-final
orders;
(4) that an order passed by the Special
Court discharging the accused would
undoubtedly be a final order inasmuch as it
finally decides the rights of the parties and
puts an end to the controversy and thereby
terminates the entire proceedings before
the court so that nothing is left to be done
by the court thereafter;
(5) that even if the Act does not permit an
appeal against an interlocutory order the
accused is not left without any remedy
because in suitable cases, the accused can
always move this Court in its jurisdiction
under Article 136 of the Constitution even
against an order framing charges against
the accused. Thus, it cannot be said that by
not allowing an appeal against an order
framing charges against the accused.
Thus, it cannot be said that by not allowing
an appeal against an order framing
charges, the Act works serious injustice to
the accused.‖
16. It was contended by the learned counsel for the petitioners
that the interpretation given by the Hon'ble Supreme Court to
the expression ‗interlocutory order' in the context of Section
11(i) of Special Courts Act cannot be applied for interpreting it
in the context of Section 19(3)(c) of the Prevention of Corruption
Act for the reasons that (i) Special Courts constituted under
Special Courts Act, 1979, was to be manned by a sitting Judge of
the High Court who is presumed to frame the charges only after
considering the various principles and guidelines laid down by
other High Courts and the Supreme Court on the subject,
whereas the trial under Prevention of Corruption Act is to be
conducted by a Sessions Judge or Additional Sessions Judge who
is designated as a Special Judge; (ii) the appeal from the order of
Special Court constituted under Special Courts Act, 1979 was
provided directly to Supreme Court, whereas the revisions from
the order of the Special Judge lie to the High Court and not to
the Supreme Court; and (iii) the Special Courts Act dealt with
only a few cases, pertaining to crimes committed by a particular
class of people, who were holding high public or political offices.
17. In my view, the above referred distinctions by themselves
are not good enough to interpret the term ‗interlocutory order'
in a wider sense, giving it the same meaning as has been given
in the context of the Code of Criminal Procedure, since the main
reason which persuaded the Hon'ble Supreme Court to give a
natural meaning as compared to a wider meaning given in the
context of Section 397(2) of the Code, was the object behind
enactment of Special Courts Act, which was to plug all possible
loopholes that could be used to delay the trial of such cases and
to ensure a quick dispatch in the trial of such cases. Since the
main object behind enactment of Section 19(3)(c) of the
Prevention of Corruption Act is to ensure a speedy trial of
corruption cases by eliminating delays, which frequently occur
on account of filing revision petitions against orders framing
charge or orders directing framing of charge, there is no reason
to give an interpretation different from the one given in the case
of V.C. Shukla (supra). While interpreting the term
‗interlocutory order' used in Section 11(i) of Special Courts Act,
the Hon'ble Supreme Court was conscious that this would result
in neither an appeal nor a revision being maintainable against an
order framing charge or directing framing of charge. Despite
that, the Hon'ble Court gave natural interpretation of the
expression ‗interlocutory order' so as to sub-serve the purpose
behind the enactment of Special Courts Act. For the very same
reason, the interpretation given by the Hon'ble Supreme Court
in the case of V.C. Shukla (supra) needs to be given in the
context of use of the expression ‗interlocutory order' in Section
19(3)(c) of Prevention of Corruption Act.
18. In Mohan Lal's case (supra), the Hon'ble Supreme Court,
inter alia, observed as under:
―The question as to whether a judgment or
an order is final or not has been the
subject matter of a number of decisions;
yet no single general test for finality has so
far been laid down. The reason probably is
that a judgment or order may be final for
one purpose and interlocutory for another
or final as to part and interlocutory as to
part. The meaning of the two words "final"
and "interlocutory" has, therefore, to be
considered separately in relation to the
particular purpose for which it is required.
However, generally speaking, a judgment
or order which determines the principle
matter in question is termed final. It may
be final although it directs enquiries or is
made on an interlocutory applications or
reserves liberty to apply. In some of the
English decisions where this question
arose, one or the other of the following
four tests was applied.
1. Was the order made upon an application
such that a decision in favour of either
party would determine the main dispute ?
2. Was it made upon an application upon
which the main dispute could have been
decided?
3. Does the order as made determine the
dispute?
4. If the order in question is reversed,
would the action have to go on?‖
In Madhu Limaye's case (supra) also, the Hon'ble
Supreme Court, observed as under:
―An order rejecting the plea of the accused
on a point which, when accepted, will
conclude the particular proceeding, will
surely be not an interlocutory order within
the meaning of Section 397(2)‖
It was contended by the learned counsels for the
petitioners that if the revision filed by an accused against whom
charge has been framed is allowed, that would terminate the
proceedings initiated against him, and therefore, the order
framing charge cannot be said to be an interlocutory order. The
contention was that an order cannot be interlocutory when it
results in framing charge and final when it results in discharge
of the accused. I find that not only the judgment in Mohan
Lal's case and in Madhu Limaye's case were considered, this
argument also was dealt with and repelled by the Hon'ble
Supreme Court in the case of V.C. Shukla. Rejecting the
contention, the Hon'ble Supreme Court, inter alia, observed as
under:
―It is true that if the Special Court would
have refused to frame charges and
discharged the accused, the proceedings
would have terminated but that is only one
side of the picture. The other side of the
picture is that if the Special Court refused
to discharge the accused and framed
charges against him, then the order would
be interlocutory because the trial would
still be alive‖
Therefore, I am unable to agree that the judgment of this
Court in Dharambir Khattar's case (supra) to the extent it
holds that an order framing charge or directing framing of
charge is an interlocutory order, is per incuriam, and therefore,
has no precedent value.
19. It was contended by the learned counsels for the
petitioners that since trial under Special Courts Act was
conducted by the High Court, as provided in Section 474 of the
Code of Criminal Procedure, revisional powers could not have
been conferred against an order passed in such a trial. In my
view, the contention is misconceived. Merely because the
Presiding Judge of Special Courts was to be a High Court Judge
did not convert it into a trial by the High Court within the
meaning of Section 474 of the Code of Criminal Procedure. In
any case, nothing prevented the Legislature, if it so intended,
from providing a revision directly to the Supreme Court against
an order passed by the Special Court, constituted under Special
Courts Act, 1979.
20. It was contented by the learned counsels for the petitioners
that speedy trial is the objective not only behind the enactment
of Section 19(3)(c) of Prevention of Corruption Act, but also
behind various provisions contained in the Code of Criminal
Procedure which are aimed at curtailing delays and expediting
disposal of criminal cases, and therefore, there is no reason to
interpret the expression ‗interlocutory order' in Section 19(3)(c)
of Prevention of Corruption Act differently from the
interpretation given to it by the Hon'ble Supreme Court in the
context of Code of Criminal Procedure. In my view, the
contention is devoid of any merit. Despite the provisions
contained interlocutory order the Code of Criminal Procedure,
the Hon'ble Supreme Court, in the case of V.C. Shukla took the
view that an order framing charge is an interlocutory order. The
reasons given by the Hon'ble Supreme Court for giving a natural
meaning and not a wider meaning to the term ‗interlocutory
order' in Section 11(i) of the Special Courts Act equally apply to
its interpretation in the context of Section 19(3)(c) of Prevention
of Corruption Act. As noted earlier, the Legislature, despite the
provisions contained in the Code, chose to make a specific
provision taking away revisional jurisdiction of the Court in
respect of the interlocutory orders and the legislative intent
needs to be respected and given effect to by the Courts, while
interpreting a statutory provision.
21. The learned counsels for the petitioners have also relied
upon the decision of the Hon'ble Supreme Court in State of
Madhya Pradesh vs. Sheetla Sahay and Ors. 2009 (8) SC 617
in support of their contention that the revision petition against
order framing charge in a case under Prevention of Corruption
Act is maintainable. In the case before the Hon'ble Supreme
Court, the Special judge framed charge against the respondents
in the case under Prevention of Terrorism Act, 1988. On a
revision filed by them, the impugned order was set aside by the
High Court. The appeal preferred by the State against the order
of the High Court was dismissed by the Hon'ble Supreme Court.
A perusal of this judgment would show that no contention was
raised by the Hon'ble Supreme Court that the High Court could
not have set aside the charge in exercise of its revisional
jurisdiction. The arguments on behalf of the appellant find
incorporation in para 34 of the judgment and the contention
before the Hon'ble Supreme Court was that the sanction in
terms of Section 197 of Cr.P.C. was not required since
respondents 1 to 4 were no longer holders of public office and
that while exercising its revisional jurisdiction, the High Court
could not have appreciated evidence and probative value of the
material brought on record. Since neither the expression
‗interlocutory order' came up for consideration before the
Hon'ble Supreme Court nor the extent of revisional power of the
High Court in a corruption case came to be considered before
the Hon'ble Supreme Court in this case, it cannot be said that by
dismissing the appeal filed by the State, the Hon'ble Supreme
Court had taken a view that the Revision Petition against charge
framed under Prevention of Corruption Act was maintainable
before the High Court.
22. The learned counsel for the petitioner has relied upon the
decisions of Orissa High Court in Jasobant vs. State of Orissa
2009 (1) Crimes 143 where a learned Single Judge of Orissa
High Court, after considering a number of decisions, including
the decision of the Hon'ble Supreme Court in the case of Madhu
Limaye held that an order framing charge under Section 12 of
Prevention of Corruption Act and Section 201 of IPC was not an
interlocutory order and consequently, revision against such an
order was not maintainable.
Since the order of this court in the case of Dharambir
Khattar(supra) is based primarily upon the decision of the
Hon'ble Supreme Court in V.C. Shukla's case and comparing
the provisions of Section 19(3)(c)of Prevention of Corruption Act
with those contained in Section 11(i) of Special Courts Act and
Section 34 of Prevention of Terrorism Act, 2002 and I feel that
holding such an order to be a final or intermediate order and
those by allowing Revision Petition against such an order would
defeat the legislative object behind Section 19(3)(c) of
Prevention of Corruption Act. I therefore have not been able to
persuade myself to agree with the view taken by the Orissa High
Court.
23. It was also contended by the learned counsel for the
petitioners that if neither revisional jurisdiction nor inherent
jurisdiction of this Court is available against an order framing
charge or directing framing of charge, that would deprive the
petitioners of a statutory remedy otherwise available to them
under the Code of Criminal Procedure and would be
discriminatory vis-à-vis those who are tried for committing other
offences and such a view would be violative of Article 14 of the
Constitution. In support of their contention, they have relied
upon the decision of a Division Bench of this Court in A.S.
Impex vs. Delhi High Court 2003 (8) A.D. 189, where an
Administrative Order of this Court, transferring the complaints
under Section 138 of Negotiable Instruments Act, pending as on
31st December, 2001 from the Courts of Metropolitan
Magistrates to the Courts of Additional Sessions Judges came to
be challenged by way of some Writ Petitions. Quashing the
Administrative Order, passed by this Court, a Division Bench,
inter alia, observed as under:
―Therefore, the object of speedy trial
would include the remedies as provided
under the Code which also include the
remedy of revision and denial of that
remedy, to our mind, would hit Article 21
of the Constitution. We also find force in
the submission of Mr. Anil Kumar Sharma
that in case of petitioners two ladders of
remedy have been taken away by the
impugned order. The first is of filing an
appeal to the Court of Sessions and second
revision to the High Court. Whereas the
persons against whom cases are filed after
31.12.2001 they would continue to avail
two ladders of the remedy. This is not
permissible under the law. Section 482 of
the Code is a safeguard available by which
the High Court exercises superintendence
over the Courts below and prevents any
miscarriage of justice. By taking away this
right of the petitioners the safeguard
provided under the Code has also been
taken away which violates the right of the
petitioners under Articles 21 and 41 of the
Constitution.‖
The above referred judgment, in my view, does not apply as
those who are accused of having committed offences punishable
under Prevention of Corruption Act, 1988 form a class altogether
different from those who are accused of having committed
offences punishable under other Acts such as Indian Penal Code.
By their very nature, these offences need to be treated
differently from the offences punishable under other statutory
provisions, such as the Penal Code. The menace of corruption in
our society has now reached such alarming proportions that it is
eating into the vitals of our economy that we cannot afford to
treat such offences at par with general offences. It is an
imperative need of the hour to try such offenders as
expeditiously as is possible so as to punish the guilty at the
earliest. In the case of A.S. Impex (supra), a differential
treatment was given to those against whom cases were filed
prior to 3rd December 2001 though they were similarly situated
to those again whom the cases were filed after 31st December
2001, despite the fact that all of them were accused of having
committed offences punishable under Section 138 of Negotiable
Instruments Act. Since the accused in corruption cases form an
altogether different class of offenders and the classification is
based on an intelligible differentia, it cannot be said that there
will be violation of their constitutional right of equality,
incorporating in Article 14 of the Constitution, if they are not
allowed to avail revisional or inherent jurisdiction of the Court
for redressal of their grievances. It would be noteworthy in the
case of V.C. Shukla(supra), the Hon'ble Supreme Court upheld
denial of appeal or revision against an interlocutory order to
those who were to be tried under Special Courts Act since only
those could be tried under the Special Courts Act who fulfilled
the requirements laid down in the Act. Similarly, Section 34 of
POTA also denies right of appeal or revision against an
interlocutory order to those who are accused of having
committed offence punishable under Prevention of Terrorism
Act. As the accused in corruption case constitute a separate
class altogether different from other offenders, it would not be a
violation of any constitutional right of equality if they are denied
access to the revisional and inherent jurisdiction of this Court,
since remedy of approaching this Court under Article 226 and
227 of the Constitution and the Hon'ble Supreme Court under
Article 136 of the Constitution would still be available to them,
and therefore, they cannot be said to be altogether remediless.
24. For the reasons given in the preceding paragraphs, I am in
full agreement with the view taken in Dharambir Khattar's
case as regards the interpretation of the expression
‗interlocutory order' used in Section 19(3)(c) of Prevention of
Corruption Act, 1988.
Inherent powers of the High Court
25. It was contended on behalf of the petitioners that even if it
is held that an order framing charge or directing framing of
charge being an interlocutory order is not revisable in view of
the bar created by Section 19(3)(c) of Prevention of Corruption
Act, inherent powers of the Court, recognized in Section 482 of
the Code of Criminal Procedure can be used, in appropriate
cases, to interfere with such an order, despite its being an
interlocutory order.
26. In ‗CBI vs. Ravi Shankar Srivastava' 2006, 7 SCC 188,
the Hon'ble Supreme Court inter-alia hold that Section 482 of
the Code does not confer any new powers on the High Court. It
only saves the inherent power, which the Court possessed before
the enactment of the Code. It was observed that no legislative
enactment dealing with the procedure can provide for all cases
that may possibly arise and the Courts, therefore, have inherent
powers apart from express provisions of law, which are
necessary for the proper discharge of functions and duties
imposed upon them by law and this doctrine finds expression in
Section 482, which merely recognizes and preserves inherent
powers of the High Court.
27. In Dharimal Tobacoo Products Ltd. & Ors. vs. State of
Maharashtra & Anr. AIR 2009 SC 1032, the Hon'ble Supreme
Court, inter alia, observed as under:
―Inherent power of the High Court is not
conferred by statute but has merely been
saved thereunder. It is, thus difficult to
conceive that the jurisdiction of the High
Court would be held to be bared only
because the revisional jurisdiction could
also be availed of.‖
The issue before the Hon'ble Supreme Court in the case of
Dharimal (supra) was as to whether a petition under Section
482 of Cr.P.C. was maintainable against an order issuing process
since such an order was also revisable under Section 397 of the
Code.
28. In Raj Kapoor vs. State 1980 (1) SCC 43, the question
before the Hon'ble Supreme Court was whether inherent
powers of the High Court under Section 482 is excluded when
the revisional power under Section 397 overlaps. The Hon'ble
Supreme Court rejected the contention that inherent powers of
the High Court under Section 482 stands repelled when the
revisional power under Section 397 overlaps. It was held that
there is no total ban on the exercise of inherent powers where
abuse of the process of the Court or other extraordinary
situation excites the Court's jurisdiction. It was however
observed that the policy of law was clear that interlocutory
orders, pure and simple, should not be taken up to the High
Court resulting in unnecessary litigation and delay.
29. In the case of Madhu Limaye (supra),a Three-Judges
Bench of the Hon'ble Supreme Court held that:-
―11. the bar on the power of revision was
put in order to facilitate expedient disposal
of the cases but in Section 482 it is
provided that nothing in the Code, which
would include Section 397(2) also, shall be
deemed to limit or affect the inherent
powers of the High Court. On a
harmonious construction of the said two
provisions in this behalf, it was held that
though the High Court has no power of
revision in an interlocutory order, still the
inherent power will come into play when
there is no provision for redressal of the
grievance of the aggrieved party.‖
The Hon'ble Supreme Court further observed as under:
―At the outset the following principles may
be noticed in relation to the exercise of the
inherent powers of the High Court which
have been" followed ordinarily and
generally, almost invariably, barring a few
exceptions:
(1) That the power is not to be resorted to
if there is a specific provision in the Code
for the redress of the grievance of the
aggrieved party ;
(2) That it should be exercised very
sparingly to prevent abuse of process of
any Court or otherwise to secure the ends
of justice;
(3) That it should not be exercised as
against the express bar of law engrafted in
any other provision of the Code (emphasis
supplied)‖
30. In the case of V.C.Shukla vs. State(supra), a Four-Judges
Bench per majority held that sub-Section (3) of Section 397 does
not at all limit the inherent powers of the High Court contained
in Section 482. It merely curbs the revisional powers given to
the High Court or to the Court of Sessions (under Section 397(1)
of the Code).
31. However, in Amar Nath's case (supra), the Hon'ble
supreme Court agreed with the view taken by a learned Single
Judge of Punjab and Haryana High Court, that where a Revision
to the High Court against the order of the Subordinate Judge is
expressly barred under sub-Section (2) of Section 397 of the
Code, the inherent powers contained in Section 482 would not
be available to defeat the bar contained in Section 397(2) which
does not confer any new powers but preserves the powers which
the High Court already possessed.
32. In Krishnan vs. Krishnaveni, (1997) 4 SCC 241, the issue
before the Hon'ble Supreme Court was whether, considering the
embargo raised by Section 397(3) of the Code of Criminal
Procedure on filing of a second revision petition before the High
Court, after dismissal of the first one by the Court of Sessions,
inherent powers of the High Court is still available under Section
482 of the Code. The Hon'ble Supreme Court, inter alia, held as
under:-
―10. Ordinarily, when revision has been
barred by Section 397(3) of the Code, a
person - accused/complainant - cannot be
allowed to take recourse to the revision to
the High Court under Section 397(1) or
under inherent powers of the High Court
under Section 482 of the Code since it may
amount to circumvention of the provisions
of Section 397(3) or Section 397(2) of the
Code. It is seen that the High Court has
suo motu power under Section 401 and
continuous supervisory jurisdiction under
Section 483 of the Code. So, when the
High Court on examination of the record
finds that there is grave miscarriage of
justice or abuse of the process of the
courts or the required statutory procedure
has not been complied with or there is
failure of justice or order passed or
sentence imposed by the Magistrate
requires correction, it is but the duty of the
High Court to have it corrected at the
inception lest grave miscarriage of justice
would ensue. It is, therefore, to meet the
ends of justice or to prevent abuse of the
process that the High Court is preserved
with inherent power and would be
justified, under such circumstances, to
exercise the inherent power and in an
appropriate case even revisional power
under Section 397(1) read with Section
401 of the Code. As stated earlier, it may
be exercised sparingly so as to avoid
needless multiplicity of procedure,
unnecessary delay in trial and protraction
of proceedings.‖
33. In the case of Dharambir Khattar (supra), this Court
rejected the contention that notwithstanding the provisions
contained in Section 19(3)(c) of Prevention of Corruption Act,
the powers of the High Court under Article 226 and 227 of the
Constitution and Section 482 of the Code of Criminal Procedure
of the Code of Criminal Procedure remain untrammeled, relying
upon the decision of the Hon'ble Supreme Court in Navjot
Sandhu and Satya Narayan Sharma's case (supra). It was
contended by the learned counsels for the petitioners that the
Hon'ble Supreme Court did not hold in the case of Satya
Narayan Sharma (supra) that the power under Section 482 of
the Code of Criminal Procedure could not be invoked in a case
attracting the provisions of Prevention of Corruption Act, 1988.
A perusal of the judgment of the Hon'ble Supreme Court in the
case of Satya Narayan Sharma (supra) would show that in the
case before the Hon'ble Supreme Court, the appellant filed
miscellaneous petition in the High Court against the order,
whereby cognizance was taken for the offences punishable
under the provisions of IPC and Section 5(2) of Prevention of
Corruption Act, 1947 and got a stay of trial. On his petition
being dismissed, he approached the Hon'ble Supreme Court by
way of a Special Appeal and claimed that the inherent
jurisdiction of the High Court was not circumscribed by the
limitations imposed upon its revisional powers and that the
power to pass an interlocutory order, like a stay order, was part
of the inherent power of the Court. It was also contended by
him that inherent powers could be invoked to quash proceedings
even under Prevention of Corruption Act and it was absolutely
necessary to stay the trial during pendency of such proceedings
as, in the absence of stay of proceedings, the trial may conclude
before the High Court examines the legality of charge. On
behalf of the State, it was contended that inherent jurisdiction of
the Court could not be exercised against an express bar of law
engrafted in any other provision. The Hon'ble Supreme Court
held that the legislative mandate against stay of proceeding
would apply even where a Court is exercising inherent powers
under Section 482 of the Code of Criminal Procedure. During
the course of judgment, the Hon'ble Supreme Court, inter alia,
observed as under:
―Section 482 of the Criminal Procedure
Code does not provide that inherent
jurisdiction can be exercised
notwithstanding any other provision
contained in any other enactment. Thus if
an enactment contains a specific bar then
inherent jurisdiction cannot be exercised
to get over that bar. As has been pointed
out in the cases of Madhu Limaye vs . The
State of Maharashtra, Janata Dal vs. and
in Indra Sawhney vs. Union of India, the
inherent jurisdiction cannot be resorted to
if there was a specific provision or there is
an express bar of law.‖
34. However, in para 17 of the judgment, the Hon'ble Court
further observed as under:
―We clarify that we are not saying that
proceedings under Section 482 of the
Criminal Procedure Code cannot be
adapted. In appropriate cases proceedings
under Section 482 can be adapted.
However, even if petition under
Section 482 Criminal Procedure Code is
entertained, there can be no stay of trials
under the said Act.‖
Relying upon the above referred observations, the learned
counsel for the petitioners contended that the Hon'ble Supreme
Court recognized in the case of Satya Narayan Sharma(supra),
that in appropriate cases, the powers of the High Court under
Section 482 of the Code of Criminal Procedure can be used. Per
contra, it was contended by the learned counsel representing
CBI that by making the above referred observations, the Hon'ble
Court did not intend to say that the powers under Section 482 of
the Code of Criminal Procedure could be adopted even to set
aside an interlocutory order despite the embargo placed by
Section 19(3)(c) of Prevention of Corruption Act and that, in fact,
these observations would apply to proceedings in which an order
other than an interlocutory order is challenged by way of
proceedings under Section 482 of the Code of Criminal
Procedure. It was further contended by learned counsel for the
respondent that issue before the Hon'ble Supreme Court in the
case of Satya Narayan Sharma (supra) was as to whether
there could be stay of trial in exercise of powers of the High
Court under Section 482 of the Code of Criminal Procedure and
not whether an interlocutory order could be challenged by way
of a petition under Section 482 of the Code of Criminal
Procedure.
35. Section 34 of Prevention of Terrorism Act, 2002 to the
extent it is relevant provides as under:
"34. Appeal.- (1)Notwithstanding anything
contained in the Code, an appeal shall lie from
any judgment, sentence or oral, not being an
interlocutory order, of a Special Court to the
High Court both on facts and on law....
(3)Except as aforesaid, no appeal or revision shall
lie to any court from any judgment, sentence or
order including an interlocutory order of a Special
Court."
In the case of Navjot Sandhu (supra), the Hon'ble
Supreme Court ruled against exercise of inherent powers of the
High Court, in respect of an interlocutory order, in view of the
bar engrafted in Section 34 of Prevention of Terrorism Act
against entertaining any appeal or revision against an
interlocutory order passed by the Special Courts. Section
19(3)(c) of Prevention of Corruption Act also takes away the
revisional jurisdiction of the Court in respect of interlocutory
orders passed by the Special Judge. Therefore, the decision of
the Hon'ble Supreme Court in the case of Navjot Sandhu
(supra) squarely applies while deciding as to whether inherent
powers of the High Court can be invoked or not, to challenge an
interlocutory order, passed by the Special Courts.
36. In the case of Navjot Sandhu (supra), the Hon'ble
Supreme Court was considering an appeal against an order
passed by this Court in a petition challenging an interlocutory
order passed by the Special Judge. As regards the scope of
powers under Section 482 of the Code of Criminal Procedure,
the Hon'ble Supreme Court, inter alia, observed as under:
―Section 482 of the Criminal Procedure
Code starts with the words "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 Narayanan Sharma's
case this power cannot be exercised if
there is 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
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. Most of the cases set out
herein above 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 express bar of law
engrafted in any other provision of the
Criminal Procedure Code. This power
cannot be exercised as against an express
bar in some other enactment.
(emphasis supplied)‖
37. In view of the authoritative pronouncement of the Hon'ble
Supreme Court in the case of Navjot Sandhu (supra), coupled
with its earlier decisions in the case of Madhu Limaye (supra),
it cannot be disputed that inherent powers of the High Court,
recognized in Section 482 of the Code of Criminal Procedure,
cannot be used when exercise of such powers would be in
derogation of an express bar contained in a statutory enactment,
other than the Code of Criminal Procedure. The inherent
powers of the High Court have not been limited by any other
provisions contained in the Code of Criminal Procedure, as is
evident from the use of the words ―Nothing in this Code‖ in
Section 482 of the Code of Criminal Procedure, but, the powers
under Section 482 of the Code of Criminal Procedure cannot be
exercised when exercise of such powers would be against the
legislative mandate contained in some other statutory enactment
such as Section 19(3)(c) of Prevention of Corruption Act.
38. Taking a realistic view, if it is held that inherent powers of
the Court can be invoked to challenge an interlocutory order,
this Court would be flooded with such petitions since the
petitions being presently filed in exercise of revisional
jurisdiction of this Court would be labelled as petitions under
Section 482 of the Code of Criminal Procedure and would,
almost invariably, be accompanied by request for stay of
proceedings and/or summoning of the Trial Court Record. The
legislative intent behind enactment of Section 19(3)(c) of
Prevention of Corruption Act would thereby be effectively
defeated only by changing the label of the petition. In fact, this
precisely was the concern of the Hon'ble Supreme Court in
Rajan Kumar Manchanda vs. State of Karnataka 1990
(suppl.) SCC 132, wherein while holding that a second revision
did not lie before the High Court, after dismissal of the first
revision before the Court of Sessions, the Hon'ble Supreme
Court observed that if that was to be permitted, every revision
application facing the bar of Section 397 (3) of the Code would
be labelled as one under Section 482 of the Code of Criminal
Procedure.
39. Therefore, I am in full agreement with the view taken in
the case of Dharambir Khattar (supra) that inherent powers of
the High Court cannot be used to interfere with an order
framing charge or directing the framing of charge in case
attracting the provisions of Prevention of Corruption Act.
Powers under Article 226 and 227 of the Constitution.
40. In the case of Dharambir Khattar (supra), this Court also
observed that in view of the decision of the Hon'ble Supreme
Court in the case of Navjot Sandhu(supra), the power of the
Court under Article 226 and 227 of the Constitution cannot be
used to interfere with an order of this nature. I have carefully
gone through the decision of the Hon'ble Supreme Court in the
case of Navjot Sandhu(supra) and I find that in this case, the
Hon'ble Supreme Court did not rule out invoking of writ
jurisdiction of the High Court, in appropriate cases, even in
respect of interlocutory orders. The Hon'ble Supreme Court
noticed that the order of this Court challenged before it did not
indicate as to whether the Court was exercising its power of
superintendence under Article 226 of the Constitution or its
inherent powers under Section 482 of the Code of Criminal
Procedure. It was noted that the respondent Geelani had not
invoked Article 227 of the Constitution and it was contended by
Dr. Dhawan that the order was passed in exercise of inherent
jurisdiction under Section 482 of the Code of Criminal
Procedure. The Hon'ble Supreme Court found it difficult to
accept the submission of Mr. Shanti Bhushan that the order of
this Court was under Article 227 of the Constitution. Thus,
Court felt, on the facts of the case before it, that neither the
power under Article 227 of the Constitution nor inherent
jurisdiction under Section 482 of the Code of Criminal Procedure
should have been exercised, even if such powers were available.
In para 28 of the judgment, the Hon'ble Supreme Court held as
under:
―Thus the law is that Article 227 of the
Constitution of India gives the High Court
the power of superintendence over all
Courts and Tribunals throughout the
territories in relation to which it exercises
jurisdiction. This jurisdiction cannot be
limited or fettered by any act of the State
Legislature. The supervisory jurisdiction
extends to keeping the subordinate
Tribunal's within the limits of their
authority and to seeing that they obey the
law. The powers under Article 227 are
wide and can be used, to meet the ends of
justice. They can be used to interfere even
with an interlocutory order...
(emphasis supplied)
It is settled law that this power of judicial
superintendence, under Article 227, must
be exercised sparingly and only to keep
subordinate Courts and Tribunal's within
the bounds of their authority and not to
correct mere errors. Further where the
statute bans the exercise of revisional
powers it would require very exceptional
circumstances to warrant interference
under Article 227 of the Constitution of
India since the power of superintendence
was not meant to circumvent statutory law.
It is settled law that the jurisdiction under
Article 227 could not be exercised ‗as the
cloak of an appeal in disguise'.‖
41. Thus, in the case of Navjot Sandhu(supra), the Hon'ble
Supreme Court expressly recognized the powers of the High
Court to interfere even with an interlocutory order in exercise of
jurisdiction under Article 227 of the Constitution though it
cautioned that such powers should be exercised sparingly and
only with a view to keep subordinate Courts within the limits of
their authority and only in very exception circumstances,
warranting interference in exercise of these extraordinary
powers. Therefore, the judgment of the Hon'ble Supreme Court
in the case of Navjot Sandhu(supra) does not rule out invoking
and exercise of constitutional powers of this Court in
appropriate cases.
42. In State of Gujarat vs. Vakhatsinghji Vajesinghji
Vaghela, AIR 1968 SC 1481, it was contended before the
Hon'ble Supreme Court that Section 12 of Bombay Taluqdari
Abolition Act, 1849 made the decision of Bombay Revenue
Tribunal final and conclusive and the High Court had no
jurisdiction to interfere with that decision. Rejecting the
contention, the Hon'ble Supreme Court observed as under:
―Article 227 of the Constitution gives to
High Court the power of superintendence
over all courts and tribunals throughout
the territories in relation to which it
exercises jurisdiction. This jurisdiction
cannot be limited or fettered by any Act of
the State Legislature. The supervisory
jurisdiction extends to keeping the
subordinate tribunals within the limits of
their authority and to seeing that they obey
the law.‖
43. In Chandershekhar Singh vs. Siya Ram Singh, (1979) 3
SCC 118, the scope of jurisdiction under Article 227 of the
Constitution came up for consideration before the Supreme
Court in the context of Section 435 and 439 of Criminal
Procedure Code, 1898 which prohibited a second revision to the
High Court vested against decision in first revision rendered by
the Sessions Judge. A Three-Judges Bench summed up the
position of law as under:-
(i) That the powers conferred on the High
Court under Article 227 of the Constitution
cannot, in any way, be curtailed by the
provisions of the Code of Criminal
Procedure;
(ii) the scope of interference by the High
Court under Article 227 is restricted. The
power of superintendence conferred by
Article 227 is to be exercised sparingly and
only in appropriate cases, in order to keep
the subordinate courts within the bounds
of their authority and not for correcting
mere errors;
(iii) that the power of superintendence
under Article 227 of the Constitution
cannot be invoked to correct an error of
fact which only a superior court can do in
exercise of its statutory power as the court
of appeal; the High Court cannot, in
exercise of its jurisdiction under Article
227, convert itself into a court of appeal.
44. In Jagir Singh vs. Ranbir Singh 1979 (1) SCC 560, the
question before the Hon'ble Supreme Court was as to whether a
Revision Application to the High Court could be maintained
under Article 226 of the Constitution even after rejection of an
earlier Revision Petition by the Court of Sessions. The Hon'ble
Supreme Court observed that Where the statute banned the
exercise of revisional powers by the High Court, it would indeed
require very exceptional circumstances to warrant interference
under Article 227 of the Constitution, since the power of
Superintendence was not meant to circumvent statutory law.
Thus, the Hon'ble Supreme Court did not rule out exercise of
power under Article 227 of the Constitution though in
exceptional circumstances.
45. In Industrial Credit and Investment Corporation of
India Limited vs. Grapco Industries Limited, 1999 (4) SCC
710, the Hon'ble Supreme Court, inter alia, observed as under:
―There was no bar on the High Court to
itself examine the merits of the case in the
exercise of its jurisdiction under Article
227 of the Constitution if the
circumstances so require. There is no
doubt that High Court can even interfere
with interim orders of the courts and
tribunals under Article 227 of the
Constitution if the order is made without
jurisdiction.‖
46. In Surya Dev Rai vs. Ram Chander Rai & Others,
(2003) 6 SCC 675, the appellant whose prayer for ad-interim
injunction was rejected by the trial court as well as by the
Appellate Court and who could not have availed the remedy
under Section 115 of CPC, after its amendment, filed a petition
in the High Court labeling it as one under Article 226 of the
Constitution. The High Court summarily dismissed the petition
holding that the same was not maintainable. Allowing the
appeal, the Hon'ble Supreme Court held that amendment of the
Code of Civil Procedure does not take away and could not have
taken away the constitutional jurisdiction of the High Court to
issue a writ of Certiorari to a Civil Court nor is the power of the
Superintendence averred on the High Court under Article 227 of
the Constitution taken away or whittled down. It was held that
the power exists untrammeled by the amendment in Section 115
of CPC and is available to be exercised subject to rules of his
self-discipline and during the course of judgment, the Hon'ble
Supreme Court, inter alia, observed as under:-
―26. In order to safeguard against a mere
appellate or revisional jurisdiction being
exercised in the garb of exercise of
supervisory jurisdiction under Article 227
of the Constitution, the courts have
devised self-imposed rules of discipline on
their power. Supervisory jurisdiction may
be refused to be exercised when an
alternative efficacious remedy by way of
appeal or revision is available to the
person aggrieved. The High Court may
have enactments where the legislature in
exercise of its wisdom has deliberately
chosen certain orders and proceedings to
be kept away from exercise of appellate
and revisional jurisdiction in the hope of
accelerating the conclusion of the
proceedings and avoiding delay and
procrastination which is occasioned by
subjecting every order at every stage of
proceedings to judicial review by way of
appeal or revision. So long as an error is
capable of being corrected by a superior
court in exercise of appellate or revisional
jurisdiction, though available to be
exercised only at the conclusion of the
proceedings, it would be sound exercise of
discretion on the part of the High Court to
refuse to exercise the power of
superintendence during the pendency of
the proceedings. However, there may be
cases where but for invoking the
supervisory jurisdiction, the jurisdictional
error committed by the inferior court or
tribunal would be incapable of being
remedied once the proceedings have
concluded.‖
Referring to the decision of the Constitution in Rupa
Ashok Hurra case, (2002) 4 SCC 388, it was held that the
orders and proceedings of a judicial court subordinate to the
High Court are amenable to writ jurisdiction of the High Court
under Article 226 of the Constitution, by issuing a writ of
certiorari. While upholding the constitutional powers of the
High Court under Article 226 & 227 of the Constitution, the
Hon'ble Court inter alia cautioned as under:
―(7) The power to issue a writ of certiorari
and the supervisory jurisdiction are to be
exercised sparingly and only in appropriate
cases where the judicial conscience of the
High Court dictates it to act lest a gross
failure of justice or grave injustice should
occasion. Care, caution and
circumspection need to be exercised, when
any of the abovesaid two jurisdictions is
sought to be invoked during the pendency
of any suit or proceedings in a subordinate
court and the error though calling for
correction is yet capable of being
corrected at the conclusion of the
proceedings in an appeal or revision
preferred thereagainst and entertaining a
petition invoking certiorari or supervisory
jurisdiction of the High Court would
obstruct the smooth flow and/or early
disposal of the suit or proceedings. The
High Court may fell inclined to intervene
where the error is such, as, if not corrected
at that very moment, may become
incapable of correction at a later stage and
refusal to intervene would result in
travesty of justice or where such refusal
itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari
or supervisory jurisdiction will not convert
itself into a court of appeal and indulge in
re-appreciation or evaluation of evidence
or correct errors in drawing inferences or
correct errors of mere formal or technical
character.
(9) In practice, the parameters for
exercising jurisdiction to issue a writ of
certiorari and those calling for exercise of
supervisory jurisdiction are almost similar
and the width of jurisdiction exercised by
the High Courts in India unlike English
courts has almost obliterated the
distinction between the two jurisdictions.
While exercising jurisdiction to issue a writ
of certiorari, the High Court may annul or
set aside the act, order or proceedings of
the subordinate courts but cannot
substitute its High Court may not only give
suitable directions so as to guide the
subordinate court as to the manner in
which it would act or proceed thereafter or
afresh, the High Court may in appropriate
cases itself make an order in supersession
or substitution of the order of the
subordinate court as the court should have
made in the facts and circumstances of the
case.‖
47. It has thus been consistently held by the Hon'ble Supreme
Court that the Writ Jurisdiction of the High Court under Article
226 and 227 of the Constitution can, in appropriate cases, be
invoked even if there is a statutory prohibition against exercise
of such power and irrespective of limitation, if any, imposed by
an Act of State Legislature or even Parliament.
48. In fact, Writ Jurisdiction of High Court conferred by Article
226 and 227 of the Constitution being a part of its basic
structure cannot be taken away even by way of a constitutional
amendment. In L.Chandra Kumar vs. Union of India 1997 (3)
SCC 261, a Constitution Bench of the Supreme Court held that:-
―29. the jurisdiction conferred on the
Supreme Court under Article 32 of the
Constitution on the High Courts under
Articles 226 and 227 of the Constitution is
a part of the basic structure of the
Constitution, forming its integral and
essential feature, which cannot be
tampered with much less taken away even
by constitutional amendment, not to speak
of a parliamentary legislation.‖
49. Even the learned counsel representing CBI fairly conceded
that Writ Jurisdiction of this Court could be invoked even in
respect of an interlocutory order, though such constitutional
power would be exercised by this Court only in very rare and
exceptional cases warranting interference by this Court. I,
therefore, have no hesitation in holding that irrespective of the
embargo placed by Section 19(3)(c) of Prevention of Corruption
Act, an interlocutory order, including an order framing charge or
directing framing of charge in a case attracting the applicability
of Prevention of Corruption Act, can be challenged by way of a
Writ Jurisdiction under Article 226 and 227 of the Constitution.
Since neither revisional powers conferred by the Code of
Criminal Procedure, nor inherent powers, recognized by Section
482 of the Code of Criminal Procedure, can be invoked to
challenge an interlocutory order such as order framing charge
or directing framing of charge in a corruption case, invoking
under Article 226 and 227 of the Constitution is the only remedy
available to an accused against whom charge is framed or is
ordered to be framed, besides extraordinary jurisdiction of the
Hon'ble Supreme Court under Article 136 of the Constitution. If
it is held that even constitutional remedy under Article 226 and
227 of the Constitution cannot be invoked against such an order,
the accused will become almost remediless even if the order
passed by the Special Judge in a given case is totally without
jurisdiction and causes grave miscarriage of justice or results in
gross abuse of the process of law, and therefore, needs
interference and correction by a superior Court. There may be a
genuine apprehension that if the petitions under Article 226/227
of the Constitution are entertained against an interlocutory
order such as an order framing charge or directing framing of
charge under the Prevention of Corruption Act, the petitions
challenging such an order may be labelled as writ petitions
though the facts and circumstances of the case may not exercise
of writ jurisdiction of the Court conferred by Article 226/227 of
the Constitution. But, then the remedy does not lie in denying
access to the writ jurisdiction of the High Court which is a
Fundamental Right of every citizen and thereby leave an
accused almost without remedy even in a case that would justify
invocation of the constitutional powers conferred upon this
Court. The guidelines for exercise of jurisdiction conferred upon
the High Court by Article 226/227 of the Constitution have been
well laid down in a number of authoritative pronouncements of
the Hon'ble Supreme Court and needs to be strictly adhered to
whenever such a jurisdiction is invoked. As reminded by the
Apex Court, from time to time, these powers needs to be
exercised cautiously, sparingly and only in exceptional
circumstances, their objective being to keep the subordinate
Courts under check and within the legal authority conferred
upon them. The Courts cannot use revisional powers in the
cloak of the writ powers conferred upon them. Appreciation of
evidence and examination of its probative value is not
permissible nor can the Courts exercising writ jurisdiction.
Interference under Article 226/227 of the Constitution is
warranted only in a case where gross injustice or failure of
justice would be occasioned by refusing to exercise such powers.
Therefore, the solution lies in self-restriction and not in denial of
the constitutional remedy available to an accused.
50. In the case of Dharambir Khattar (supra), the proposition
of law laid down by this Court was summarized as under:
―To conclude this part of the discussion it
is held that in the context of Section 19 (3)
(c) the words ―no Court shall exercise the
powers of revision in relation to any
interlocutory order passed in any inquiry,
trial .........‖ includes an interlocutory order
in the form of an order on charge or an
order framing charge. On a collective
reading of the decisions in V.C.Shukla and
Satya Narayan Sharma, it is held that in
terms of Section 19 (3) (c) PCA, no revision
petition would be maintainable in the High
Court against order on charge or an order
framing charge passed by the Special
Court.‖
51. Black's Law Dictionary defines obiter dictum as under:
―Words of an opinion entirely unnecessary
for the decision of the case. Noel v. Olds,
78 U.S. App. D.C. 155, 138 F., 2d 581, 586.
A remark made, or opinion expressed, by a
judge, in his decision upon a cause, ―by the
way,‖ that is, incidentally or collaterally,
and not directly upon the question before
him, or upon a point not necessarily
involved in the determination of the cause,
or introduced by way of illustration, or
analogy or argument. Such are not
binding as precedent.‖
52. In MCD vs. Gurnam Kaur 1989 (1) SCC 101, the Hon'ble
Supreme Court, inter alia, observed as under:
―Quotability as 'law' applies to the
principle of a case, its ratio decidendi. The
only thing in a Judge's decision binding as
an authority upon a subsequent Judge is
the principle upon which the case was
decided. Statements which are not part of
the ratio decidendi are distinguished as
obiter dicta and are not authoritative.‖
53. As noted earlier, the petitions before this Court in the case
of Dharambir Khattar (supra) were Revisions Petitions and not
petitions under Article 226 and 227 of the Constitution, though it
was urged before the Court that the power of the Court under
Article 226 and 227 of the Constitution remains untrammeled
even if the revisional powers could not be exercised in view of
the embargo placed by Section 19(3)(c) of Prevention of
Corruption Act. This contention was not accepted observing that
the same does not survive after the pronouncement of the
Supreme Court in the case of Navjot Sandhu(supra). The
observations of this Court, to the extent that the contention
regarding constitutional powers of the Court remaining
untrammeled, does not survive in view of the decision of the
Supreme Court in the case of Navjot Sandhu (supra), are
therefore obiter and do not constitute the law laid down by this
Court in that case. The matter therefore does not need to be
referred to a larger Bench.
54. In Pepsi Foods Ltd. vs. Special Judicial Magistrate
1998 (5) SCC 749, the Hon'ble Supreme Court observed that
nomenclature under which petitions filed is not quite relevant
and does not debar the Court from exercising its jurisdiction
with otherwise possesses unless there is a special procedure
prescribed which procedure is mandatory.
55. In Shiv Shakti Coop. Housing Society vs. Swaraj
Developers and Ors. 2003 (6) SCC 659, while interpreting
Section 115 of the Code of Civil Procedure, the Hon'ble Supreme
Court held that if the impugned order is interim in nature or
does not finally decide the lis, the revision will not be
maintainable. It was contended before the Hon'ble Supreme
Court that even if revisions are no maintainable, there should
not be a bar on challenge being made under Article 227 of the
Constitution and an opportunity may be taken to the appellants
to avail that remedy. The Hon'ble Supreme Court observed that
if any remedy is available to a party under any statute, no liberty
is necessary to be granted for availing the same. In any case, no
request has been made to this Court by any of the revisionists to
treat the revision petition filed by them as a petition under
Article 226 and 227 of the Constitution or seeking leave to file a
petition under Article 226/227 of the Constitution. In the
absence of such a prayer, the Revision Petitions cannot be
considered as petitions invoking jurisdiction of this Court under
Article 226 and 227 of the Constitution.
56. I therefore hold that (i) Revision Petition is not
maintainable against an order framing charge or directing
framing of charge in a case attracting the provisions of
Prevention of Corruption Act, 1988; (ii) Inherent Powers of the
High Court cannot be invoked to challenge an order of the
above-referred nature and; (iii) Writ Petition under Article
226/227 of the Constitution is maintainable against an order of
the above-referred nature.
57. For the reasons given in the preceding paragraphs,
Revision Petitions 293/2006, 294/2006, 352/2006 and 580/2006
are hereby dismissed. Since the provisions of Article 226 and
227 of the Constitution have been invoked in Writ Petition
1419/2009, this petition be listed for hearing on merits on 14 th
January, 2010.
(V.K.JAIN)
JUDGE
JANUARY 6, 2010
AG/BG
