India: Asian Resurfacing Of Road Agency v. Central Bureau Of Investigation : Criminal Appeal Nos. 1375-1376 Of 2013

Brief Facts :

A First Information Report dated 07.03.2001 was registered with the Delhi Special Police Establishment under Sections 420, 467, 468, 471 and 477A of Indian Penal Code, 1860 and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred as the "PC Act") at the instance of Municipal Corporation of Delhi (MCD). The primary allegation in the F.I.R was of using forged invoices of Oil Companies related to transfer of Bitumen for use in "Dense Carpeting Works" of roads in Delhi during the year 1997-1998.

After investigation, charge sheet was filed against the Appellant and other employees by the CBI before the Special Judge, CBI on 28.11.2002. The Appellants filed an application for discharge before the Special Judge, CBI. The Special Judge, CBI directed to proceed with the framing of charges after considering the material on record. It found that prima facie the charges were established against the accused. The instant Revision was converted into Writ Petition (Criminal) No.352 of 2010.

Point of Law referred by the Single Bench to the Division Bench

The following question was referred by the Single Judge to the Division Bench:

"Whether an order on charge framed by a Special Judge under the provisions of Prevention of Corruption Act, being an interlocutory order, and when no revision against the order or a petition under Section 482 of Cr.P.C. lies, can be assailed under Article 226/227 of the Constitution of India, whether or not the offences committed include the offences under Indian Penal Code apart from offences under Prevention of Corruption Act?"

The Learned Single Judge observed that as two conflicting opinions had been taken up in Dharambir Khattar v. Central Bureau of Investigation1 and R.C. Sabharwal v. Central Bureau of Investigation2.

In Dharambir Khattar3, the Hon'ble Court observed,

"32. To conclude this part of the discussion it is held that in the context o 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) of the PC Act, no revision petition would be maintainable in the High Court against order on charge or an order framing charge passed by the Special Court.

33. Therefore, in the considered view of this Court, the preliminary objection of the CBI to the maintainability of the present petitions is required to be upheld...."

Whereas in RC Sabharwal4, the Hon'ble Court observed that the remedy under S. 482 of Cr. P.C. cannot be exercised owing to express statutory bar. However, the constitutional remedies mentioned under Article 226 and Article 227 of Constitution of India, 1950 remained unfettered despite the statutory bar.

In order to settle the conflicting positions of law, the matter was referred to the Division Bench.

Questions for consideration framed by the Division Bench

The Division Bench in the impugned judgment framed the following questions for consideration:

1. Whether an order framing charge under the 1988, Act would be treated as an interlocutory order thereby barring the exercise of revisional power of this Court?

2. Whether the language employed in Section 19 of the 1988 Act which bars the revision would also bar the exercise of power under Section 482 of the Code of Criminal Procedure for all purposes?

3. Whether the order framing charge can be assailed under Article 227 of the Constitution of India?

Questions of Law answered by the Division Bench

The Bench concluded that an order framing charge made under the act is an interlocutory order and Section 19(3) of the act provides a statutory bar against revision vis-a-vis a interlocutory order. Thus, any revision shall not be maintainable.

However, any petition presented under S. 482 of Cr.P.C., Article 227 of the Constitution of India, 1950 shall be entertained despite the statutory bar contained under the act. However, even if the petition is entertained by the court under Section 482 of Cr.P.C or Article 227 of Constitution of India, no order of stay shall be passed in a routine manner in light of the statutory bar contained under the act. The exercise of power under Article 227 of Constitution of India, 1950 or Section 482 of Cr.P.C should be exercised sparingly and under exceptional circumstances to meet the ends of justice.

Any petition presented under the Section 482 of Cr.P.C or Article 227 of Constitution of India, 1950 should not be used as "cloak of an appeal in disguise" or reappreciation of evidence.

Discussion by the Apex Court

The Appellant argued that as the Petition presented under Section 482 of the Criminal Code or Article 227 of The Constitution of India was held to be maintainable, any order passed by the court ordering stay or any interference by the High Court shall also be legal. Whereas, on the other hand the CBI argued that that the view taken by the High Court was in consonance with the law of the land.

The Hon'ble Supreme Court further relying upon the authority laid down in Madhu Limaye5 observed that the legislative intent behind the bar to revisional jurisdiction provided under Section 397 (2) was to put a check on delay in disposal of criminal cases. Whereas, the inherent powers of the High Court provided under Section 482 of Cr.P.C is unfettered by any other provision.

The Court further relied upon the authority laid down in Amar Nath v. State of Haryana6 and reiterated that the power conferred upon the High Court u/s. 482 of the Code should be sparingly and cautiously exercised. However, in order to meet the ends of justice, this inherent power should be exercised irrespective of anything contained u/s. 397(2) of the Cr.P.C.

The Apex Court then went ahead to rely upon several other authorities and concluded that the High Court has appropriate jurisdiction to consider the challenge against an order framing charge including passing an order granting stay. The Hon'ble Apex Court further noted that how this power needs to be exercised needs to be evaluated by in order to address the pendency of cases.

The Court then went on to rely upon Girish Kumar Suneja7 to highlight the legislative intent behind the PC Act. The Court noted that the legislative intent behind the PC Act was to ensure speedy disposal of such cases without any obstacle put in place by stay of the proceedings. The court also took note of the proviso to Section 397(1) added by Section 22(d) of the PC Act.

The Hon'ble Court observed that the legislative wisdom of speedy disposal of cases should not be ignored by the courts along the spectrum. An effective balance has to be maintained between the interests of the accused and interests of the society. It was acknowledged by the topmost court that when a challenge against an order framing charge is made, a considerable time is lost which eventually defeats the interest of justice.

The topmost court then went on to show its concerns towards pendency of such cases and went on to hold that though there is no bar upon jurisdiction of the High Court to interfere with the order framing charge, but this power of interference has to be exercised judiciously without tampering with the legislative intent behind the enactment of the Act. The Court further noted that hearing in these cases should be conducted on day to day basis.

The Court observed that an order framing charge not being an interlocutory order or a final order can be quashed by the High Court. However, the court needs to be cautious about the fact that the legislative intent of speedy disposal of corruption cases behind the enactment of the act does not get distorted while interference is made by the High Court in accordance with the inherent powers granted upon it u/s 482 of Cr.P.C. The Court thereby directed that the High Court can interfere with an order framing charge in exceptional circumstances in order to correct any patent error of jurisdiction and not for re-appreciation of evidence. If a stay is granted by the High Court, this needs to be decided by on day to day basis by the court so that there is no undue delay in the proceedings w.r.t PC Act. The Court also recommended that the decision should not exceed two to three months on a normal basis. Furthermore, the court noted that the duration of stay should not exceed six months and if does, there should be a speaking order for the same. The Court further went on to note that the trial court may proceed with the matter if any specific order barring the same is not produced before it on expiry of the abovementioned term.

Concurring Opinion rendered by Justice Nariman

The Hon'ble Judge while giving his concurrent judgment while agreeing with the submissions made by the Respondent reasoned that Section 19(3)(b) takes into its sweep all kinds of error/omission or irregularity in the sanctions granted.

The above view finds support in explanation (a) which defines error as competency of the authority to grant sanction. The Hon'ble Judge also noted that "in the sanction granted by the authority" is visible by its absence in clause (c). Thereby, suggesting that it is the proceedings under the act that have been referred to. The expression "on any other ground" covers all the grounds other than the ones pertaining to the sanction granted by the authority. On presumption that there can two different interpretation of a provision, the interpretation which is in tandem with the object of the act shall hold precedence. That as provided in Madhu Limaye v. State of Maharashtra8, the cases pertaining to the PC Act have to be dealt with utmost urgency. The proceedings under the act can be stayed only for an error, omission or irregularity in the sanction that results in failure of justice.

Authors' Analysis

The Hon'ble Supreme Court vide this judgment has sought to put a check on the abuse of process of law which thereby led to huge delay in disposal of case related to corruption. This judgment is a welcome change where the judiciary has proactively attempted towards striking a fair balance between the rights of an accused and interests of the society. The topmost court also observed that the legislative intent behind the Prevention of Corruption Act is to ensure speedy disposal of cases. Furthermore, the court also reiterated that right to speedy trial is fundamental aspect of Right to Life as enshrined under Article 21 of the Constitution of India. The Court also recognized that there should not be undue interference by the High Court and it should be done only in rarest of the rare cases to correct the patent illegality of jurisdiction. The Court provided extensive guidelines as to how the proceedings in such cases have to be carried out in a timely manner. By providing timeline as to the completion of proceedings within six months, an effective effort has been made by the top court to ensure timely completion of proceedings without taking away the power of the High Courts to interfere with the order framing charge. Another key feature of this decision is the concurring judgment by Justice Nariman where he highlighted the rampant position of corruption in our country and highlighted how the previous enactments had failed in curbing the menace of corruption in the country and why was it all the more necessary to enforce the legislative intent behind the enactment of the PC Act. The Hon'ble Supreme Court via instant Judgment sought to deal with an iron hand with the flooding applications seeking stay in the lower courts in order to keep the pendency of disposal of cases at bay. The instant decision has brought about a fresh air in the criminal jurisprudence of our legal system whereby a meaningful attempt has been made to strike a fair balance between the Rights of an accused and rights of the society.

Footnotes

1 159 (2009) DLT 636

2 166 (2010) DLT 362

3 Supra Note 1

4 Supra Note 2

5 (1977) 4 SCC 551

6 (1977) 4 SCC 137

7 (2017) 14 SCC 809

8 MANU/SC/0103/1977

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