Delhi High Court
S Kalyani vs Central Bureau Of Investigation on 8 February, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 8th February, 2013
+ W.P.(CRL) 1673/2012
S KALYANI ..... Petitioner
Through: Mr. Vijay Aggarwal, Mr. Gurpreet Singh,
Mr. Mudit Jain & Mr. Bakul Jain,
Advocates
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Gautam Narayan & Mr. Nikhil A.
Menon, Advocates
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CRL.MA 1055/2013 (for early hearing)
1. Since Crl.M.A.19331/2012 for stay is taken up for hearing, the
application for early hearing is disposed of.
CRL.MA.19331/2012 (stay)
2. It is urged by the learned counsel for the Petitioner that the Petitioner has
been falsely implicated in the case and he is innocent. Thus, the
impugned order dated 24.04.2012 passed by the learned Special Judge
ordering framing of charges against the Petitioner is liable to be set aside.
3. Learned counsel for the Petitioner contends that if the proceedings before
the Trial Court are not stayed, his Writ Petition praying for quashing of
the charges will become infructuous. In support of his contention, the
learned counsel for the Petitioner places reliance on Arun Kumar Sharma
& Ors. v. UT Chandigarh & Anr. 2005 (11) SCC 480 wherein the
proceedings before the Trial Court were ordered to be stayed. The
learned counsel for the Petitioner also relies on Abhay Singh Chautala v.
CBI, SLP Appeal (Crl.) 7384/2010 decided on 22.10.2010; Asia
Resurfacing of Road Agency & Anr. v. CBI, SLP (Crl.) Appeal MP
No.18586/2011, decided on 29.03.2011; Naveen kaushik v. CBI, SLP
(Crl.) MP No.8858 decided on 30.03.2011; S.P. Saxena v. CBI, SLP
(Crl.) 5782/2012, decided on 01.06.2012; and Vikas Shukla v. CBI,
Crl.MP No.16893, Crl. RP No.385/2012, decided on 03.08.2012 wherein
the proceedings in a case under the Prevention of Corruption Act, 1988
(P.C. Act) were stayed by the Hon'ble Supreme Court.
4. On the other hand, learned counsel for the CBI states that Arun Kumar
Sharma is not applicable to the facts of the instant case as it is not borne
out from the said case if the same was under the PC Act. It is urged that
in rest of the cases cited by the learned counsel for the Petitioner, the
provisions of Section 19 (3) (c) of the P.C. Act were not considered
which specifically bars the Court from staying the proceedings before the
Trial Court. The learned counsel for the CBI places reliance on Satya
Narayan Sharma v. State of Rajasthan (2001) 8 SCC 607 wherein the
Supreme Court dealt with the question of grant of stay of the proceedings
before the Trial Court in a case under the P.C. Act and also interpreted
the provisions of Section 19 (3) (c) of the P.C. Act.
5. The learned counsel for the CBI heavily relies on a Division Bench
judgment of this Court in Anur Kumar Jain v. CBI (2011) 178 DLT 501
(DB) where also the question of staying proceedings before the Trial
Court in a case under the P.C. Act was specifically dealt with and it was
laid down that the High Court does not have any power to stay the
proceedings.
6. I have given my thoughtful consideration to the respective contentions
raised on behalf of the parties.
7. Arun Kumar Sharma did not deal with the question of stay of proceedings
in a case under the P.C. Act. There were general observations about the
stay of the proceedings when proceedings for quashment of the charges
are initiated before the High Court. The question of bar under Section 19
(3) (c) of the P.C. Act was not before the Supreme Court in Arun Kumar
Sharma.
8. It is true that in rest of the cases, relied upon by the learned counsel for
the Petitioner, the proceedings before the Trial Court were stayed. In all
these cases, question of bar created under Section 19 (3) (c) of the P.C.
Act was neither raised nor decided by the Hon'ble Supreme Court. As
against this in Satya Narayan Sharma a contention was raised before the
Supreme Court that the bar under Section 19 (3) (c) of the P.C. Act would
not exclude the inherent power of the High Court to stay the proceedings
under the P.C. Act. The contention was negated by the Supreme Court
holding that if the enactment contains a specific bar then inherent
jurisdiction cannot be exercised to get over that bar. Paras 15, 17 and 29
of the report in Satya Narayan Sharma are extracted hereunder:-
"15. There is another reason also why the submission that Section
19 of the Prevention of Corruption Act would not apply to the
inherent jurisdiction of the High Court, cannot be accepted.
Section 482 of the Criminal Procedure Code starts with the words
"Nothing in this Code". Thus the inherent power can be exercised
even if there was a contrary provision in the Criminal Procedure
Code. 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 v. State of Maharashtra (1977) 4 SCC
551, Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305 and Indra
Sawhney v. Union of India (2000) 1 SCC 168 the inherent
jurisdiction cannot be resorted to if there was a specific provision
or there is an express bar of law.
x x x x x x x x x
17. Thus in cases under the Prevention of Corruption Act, there
can be no stay of trials. 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 of the Criminal Procedure Code is entertained, there
can be no stay of trials under the said Act. It is then for the party to
convince the court concerned to expedite the hearing of that
petition. However, merely because the court concerned is not in a
position to take up the petition for hearing would be no ground for
staying the trial even temporarily.
x x x x x x x x x
29. We are informed that several High Courts, overlooking the
said ban, are granting stay of proceedings involving offences
under the Act pending before Courts of Special Judges. This might
be on account of a possible chance of missing the legislative ban
contained in clause (c) of sub-section (3) of Section 19 of the Act
because the title to Section 19 is "Previous sanction necessary for
prosecution". It would have been more advisable if the prohibition
contained in sub-section (3) had been included in a separate
section by providing a separate distinct title. Be that as it may, that
is no ground for bypassing the legislative prohibition contained in
the sub-section."
9. Similarly, in Anur Kumar Jain a Division Bench of this Court while
analyzing the provision of Section 19 about the maintainability of a
Revision Petition against an order of framing charge under the P.C. Act
held that Section 19 (3) (c) clearly bars Revision against an interlocutory
order and framing of the charge being interlocutory order, a Revision will
not be maintainable. The Division Bench further held that even if a
Petition under Section 482 of the Code of Criminal Procedure or a Writ
Petition under Article 227 of the Constitution of India is entertained by
the High Court, under no circumstance an order of stay should be passed
regard being had to the prohibition contained in Section 19 (3) (c) of the
P.C. Act.
10. In this view of the matter, the Petitioner's prayer for stay of the
proceedings before the Trial Court cannot be entertained. The prayer is
accordingly declined. The application is dismissed.
W.P.(CRL) 1673/2012
11. List on 15.03.2013, the date already fixed.
G.P. MITTAL, J.
FEBRUARY 08, 2013
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