TaxTMI 
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2017 (7) TMI 1088
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.... 1263/2017) and Criminal Appeal No.1138 of 2017 (Arising out of SLP (Crl.) No. 1441/2017). Madan B. Lokur , Kurian Joseph and A. K. Sikri, JJ. JUDGMENT Madan B. Lokur, J. 1. On 25th August, 2014, this Court delivered judgment in Manohar Lal Sharma v. Principal Secretary. (2014) 9 SCC 516 in the case on 24th September, 2014 (2014) 9 SCC 614 . 2 These decisions are commonly referred to as having been rendered in the Coal Block Allocation cases. 2. Much earlier, on 25th July, 2014 the following order was passed by this Court in the Coal Block Allocation cases (the relevant extract is reproduced): "4. In pursuance of our order dated 18.7.2014, the Registrar General, Delhi High Court has intimated to the Secretary General of this Court that the Hon'ble the Chief Justice of Delhi High Court has been pleased to nominate Mr. Bharat Prashar, an officer of Delhi Higher Judicial Service for being posted as Special Judge to deal and exclusively try the offences pertaining to coal block allocation matters under the Indian Penal Code, 1860, Prevention of Corruption Act,1988, Prevention of Money-Laundering Act, 2002 and other allied offences. 5. We, accordingly, direct the competen....
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....r passed by the learned Special Judge, Criminal Misc. Case No. 3847 of 2016 was filed in the Delhi High Court by Girish Kumar Suneja. In the High Court, a preliminary issue arose regarding the maintainability of the petition in view of paragraph 10 of the order passed by this Court on 25th July, 2014. 7. A learned Single Judge of the High Court heard elaborate submissions of learned counsel and by a well reasoned order, after relying upon several decisions of this Court and of the Delhi High Court, concluded that in view of the order passed by this Court on 25th July, 2014 the petition deserves to be dismissed as not maintainable. Against that decision of the High Court, the present appeal has been preferred by Suneja. 8. Appeals raising a similar issue have been preferred by other accused persons arising out of the same order and also by others in other proceedings before the learned Special Judge. The learned Special Public Prosecutor Mr. R.S. Cheema placed before us a tabular statement of all appeals raising the same substantive issue as has been raised by Suneja. With consent, we took up all these appeals and heard learned counsel for the appellants as also the learned Specia....
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....dge but the order passed by this Court effectively prevents the High Court from entertaining any such petition. 12. The Constitution Bench of this Court considered the scope of the revision jurisdiction of the High Court under Section 439 of the Criminal Procedure Code, 1898 (the old Code) in Pranab Kumar Mitra v. State of West Bengal. 1959 Supp. (1) SCR 63. The consideration was in the context of an application for substitution filed by the son of a convict who had challenged his conviction and sentence, but had expired during the pendency of the revision petition. The Constitution Bench held that the revision jurisdiction of the High Court is a discretionary jurisdiction to be exercised in aid of justice. What is significant is that a litigant does not have a right to have a revisable order set aside. Whether the High Court chooses to exercise its revision jurisdiction in a particular case or not depends upon the facts of that case - hence, the reference to the revision jurisdiction as a discretionary jurisdiction. The revision jurisdiction of the High Court only conserves the power of the High Court to ensure that justice is done in accordance with the recognized rules of crimi....
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.... that is agitated before us but the right to be heard in a revision petition which might then be disposed of one way or the other by the High Court. The objection really is to the finding of non-maintainability of a revision petition. 15. To appreciate the submission, it is necessary to interpret Section 397 of the Cr.P.C. which reads as follows: 397. Calling for records to exercise of powers of revision - (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.-All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions....
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....tly foolish or perverse." This led to the courts being flooded with cases challenging all kinds of orders and thereby delaying prosecution of a case to the detriment of an accused person. 20. The Statement of Objects and Reasons of the Cr.P.C. state that the Government kept in mind the following for the purposes of enacting the Cr.P.C.: "(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice; (ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and (iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community." As regards Section 397(2) of the Cr.P.C. paragraph 5(d) of the Statement of Objects and Reasons mentioned that: "(5) Some of the more important changes proposed to be made with a view to speeding up the disposal of criminal cases are - (d) the powers of revision against interlocutory orders are being taken away, as it has been found to be one of the main contributing factors in the delay or disposal of criminal cases; " In reply to th....
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....mar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra, V.C. Shukla v. State through CBI 1980 Supp SCC 92 and Rajendra Kumar Sitaram Pande v. Uttam(1999) 3 SCC 134). 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." (Emphasis supplied by us). 23. We may note that in different cases, different expressions are used for the same category of orders - sometimes it is called an intermediate order, sometimes a quasi-final order and sometimes it is called an order that is a matter of moment. Our preference is for the expression 'intermediate order' since that brings out the nature of the order more explicitly. 24. The second reason why Amar Nath is important is that it invokes the principle, in the context of criminal law, that what cannot be done directly cannot be don....
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....endment Act of 1952 which reads as follows: 9. Appeal and revision -The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (5 of 1898) on a High Court as if the Court of the Special Judge were a Court of Session trying cases without a jury within the local limits of the jurisdiction of the High Court. It is quite obvious that the Section is with reference to the Cr.P.C. of 1898 and not the Cr.P.C. of 1973. The law as it stood with reference to the Cr.P.C. of 1898 is radically different from the law with reference to the Cr.P.C. of 1973. Moreover and quite obviously, since this Court had directed in Antulay that the trial would have to be conducted not by the Special Judge but by the High Court, no revision would lie to the High Court from its own order. Therefore, we are of opinion that the appellants cannot draw any support for their submissions from Antulay. 27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court ....
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.... of the Cr.P.C.? This was considered and explained in Madhu Limaye which noticed the prohibition in Section 397(2) of the Cr.P.C. and at the same time the expansive text of Section 482 of the Cr.P.C. and posed the question: In such a situation, what is the harmonious way out? This Court then proceeded to answer the question in the following manner: "In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a s....
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.... in other appeals the grievance is in respect of: admission and denial of documents under Section 294 of the Cr.P.C. [SLP (Crl) No. 6912 of 2016 - Ashok Daga v. CBI and SLP (Crl) No. 7477 of 2016 - Mukesh Gupta v. CBI]; alteration of charge under Section 216 of the Cr.P.C. [SLP (Crl) No. 8391 of 2016 - Mukesh Gupta v. CBI]; joint or single trial under Sections 219 and 220 of the Cr.P.C. [SLP (Crl) No. 8703 of 2016 - Manoj K. Jayaswal v. CBI]; summoning additional accused persons [SLP (Crl) No. 1441 of 2017 - Devendra Darda v. CBI]. A challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the court. 34. How ridiculous a challenge can become was illustrated in Centre for Public Interest Litigation v. Union of India (2012) 3 SCC 117 wherein this Court cautioned against challenging the appointment of the Special Public Prosecutor or his assistant advocates! Quite obviously, these are tactics employed by the accused to delay the trial while the endeavour of Parliament is to expedite all trials to prevent harassment to the accused. This has led to odd situations in which some accused are desirous of continuin....
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....n 397(2) of the Cr.P.C. is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 of the Cr.P.C. is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Cr.P.C. or to prevent abuse of the process of any Court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Cr.P.C. restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues. 39. In any event, if such a one in a million case does arise, the appellants can certainly approach this Court for relief under Article 136 of the Constit....
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....eir extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated. But at the same time it cannot be said that the High Courts have no jurisdiction. Therefore, we totally agree with the view taken by this Court in Abdul Hamid Haji Mohammed (1994) 2 SCC 664 that if the High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in strait-jacket. However, we would like to emphasise and re-emphasise that the judicial discipline and comity of courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicted under the special Act since this Court has jurisdiction to interfere and correct the orders of the High Courts under Article 136 of the Constitution." This was reaffirmed subsequently in the decision in the foll....
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.... cases that flood the Courts, there is a violation of Article 14 of the Constitution. 44. In Kedar Nath Bajoria v. State of West Bengal 1954 SCR 30 this Court explained Anwar Ali Sarkar and held that it proceeded on the basis that no identifiable principle was laid down for the trial of a case by the Special Court except that it was for the "speedier trial of certain offences". However, where there is a definite objective that furnishes a tangible and rational basis of classification, then there would be no violation of Article 14 of the Constitution. A distinction was drawn between discrimination with reason and discrimination without reason. No general rule can be laid down and it would depend on the relevant facts in each situation and a practical assessment of the law. In this context, it was said: "Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for, no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary. There are to be found case....
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....nishes a tangible and rational basis of classification to the State Government for the purpose of applying the provisions of the Ordinance and for choosing only such offences or cases as affect public safety, maintenance of public order and the preservation of peace and tranquillity....." 45. Insofar as the present appeals are concerned, the cases fall in a class apart, arising as they do out of the illegal and unlawful allocation of coal blocks. It is only in respect of these cases that this Court monitored the investigations and it is only in respect of these cases that the order was passed by this Court on 25th July, 2014. The cases are concerned with large scale corruption that polluted the allocation of coal blocks and they form a clear and distinct class that need to be treated in a manner different from the cases that our justice delivery system usually deals with. The classification being identifiable and clear, we do not see any violation of Article 14 of the Constitution. 46. Learned counsel for the appellants then submitted that in effect, this Court has legislated and that it was not permissible to do so. In our opinion, it is not that this Court has legislated, other....
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....adopted by this Court, in the facts and circumstances of the case, violate any right to the life and liberty of any of the appellants or any other persons allegedly involved in the criminality associated with the allocation of coal blocks. Article 32 and Article 142 of the Constitution 50. It was submitted that paragraph 10 of the order contravenes the fundamental right of the appellants to access justice and an accused person cannot be deprived of this fundamental right even by a judicial order. Reliance was placed on Naresh Shridhar Mirajkar & Ors v. State of Maharashtra. (1966) 3 SCR 744 It was further submitted that in the garb of doing complete justice, this Court could not deprive the appellants of their right to access justice. 51. It is no doubt true that the words 'complete justice' appearing in Article 142 of the Constitution enable this Court to exercise extremely wide powers but there is also no doubt that the power is ancillary and can be made use of only when it is not in conflict with the substantive provisions of any law. This has been the view expressed by several larger Benches of this Court including in Mirajkar and Antulay and was also settled in Supreme Cou....
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....and could be used when not necessary in conflict with substantive provisions of law. Article 142 of the Constitution is supplementary in nature and cannot supplant substantive provisions of the statute. It is the power that gives preference to equity over the law enabling the moulding of a relief as distinguished from a declaration of law as contemplated under Article 141 of the Constitution. While directions issued under Article 142 of the Constitution do not constitute a binding precedent, a declaration of law under Article 141 of the Constitution does constitute a binding precedent. Stay of proceedings 55. The penultimate submission of learned counsel for the appellants was that the High Court has an inherent power to stay proceedings in a criminal case. Reliance was placed on Income Tax Officer v. M.K. Mohammed Kunhi AIR 1969 SC 430 wherein it was categorically held by this Court that the Income Tax Appellate Tribunal must be held to have the power to grant a stay as incidental or ancillary to its appellate jurisdiction. Reference was also made to Satish Mehra v. State (NCT of Delhi). (2012) 13 SCC 614. There is no doubt that a High Court has an inherent power to grant a stay....
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....is no unnecessary impediment in a trial, in the form of a stay of proceedings or in any other manner. The emphasis given by learned counsel on the right of the appellants to apply for a stay of proceedings gives the impression that the appellants are primarily concerned with an interim order of stay and not in the conclusion of the trial. It should be clear that a stay of proceedings is not the most important part of a trial and should not be the main or the sole objective of an accused. We need to think beyond a stay of criminal proceedings which has played havoc with our criminal justice delivery. 59. The submission that paragraph 10 of the order passed by this Court fetters the discretion of the High Court in granting a stay of proceedings proceeds on the assumption that the High Court has an unfettered discretion to stay a trial. This is simply not so - the stay of a trial is a rather extraordinary step and cannot be given for the asking. 60. In this context, we may note that we are not concerned with any ordinary criminal trial, but a trial for an offence punishable under the provisions of the Prevention of Corruption Act, 1988. We may draw attention to the Statement and Obj....
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....rity, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (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. (4) In determining under sub-section (3) whether the ....
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....irregularity in the sanction granted for a prosecution and that error, omission or irregularity has resulted in a failure of justice. There is no other situation that is contemplated for the grant of a stay of proceedings under the PC Act on any other ground whatsoever, even if there is a failure of justice. Clause (c) additionally mandates a prohibition on the exercise of revision jurisdiction in respect of any interlocutory order passed in any trial such as those that we have already referred to. In our opinion, the provisions of clauses (b) and (c) of Section 19(3) of the PC Act read together are quite clear and do not admit of any ambiguity or the need for any further interpretation. 66. Sub-section (4) of Section 19 of the PC Act is also important in this context inasmuch as the time lapse in challenging an error, omission or irregularity in the sanction resulting in a failure of justice is of considerable significance. Unless the challenge is made at the initial stages of a trial and within a reasonable period of time, the court would not be obliged to consider the absence of, or any error, omission or irregularity in the sanction for prosecution. Therefore, it is not as if ....
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....he trial stage cannot possibly sustain such a plea made for the first time in the appellate court...... In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure." 68. In enacting Section 19 of the PC Act in the manner which it did, Parliament has made it abundantly clear that it is extremely concerned about ensuring that trials under the PC Act are conclud....
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....er it is only a camouflage. It was held in paragraphs 23 and 24 of the Report as follows: "We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment 1978 AC 359 ). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the op....
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....ly indispensable. If the "core" of the case is not affected but there are some procedural illegalities that would not be a good ground for ordering a de novo trial. "This is because the appellate court has plenary powers for revaluating and reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court." 74. Interestingly, in an Advisory Opinion given by the International Court of Justice Application for Review of Judgment No.158 of the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1973, p.166 one of the questions referred was as follows: "Has the Tribunal (United Nations Administrative Tribunal) committed a fundamental error in procedure which has occasioned the failure of justice as contended in the application to the Committee for Review of Administrative Tribunal Judgements?" 75. In the Advisory Opinion, the International Court considered Article 11 of the Statute of the United Nations Administrative Tribunal (as it then stood). The words 'which has occasioned a failure of justice' appearing in that Article were introduced at the 499th meeting of th....
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.... well recognized and provide criteria helpful in identifying fundamental errors in procedure which have occasioned a failure of justice: for instance, the right to an independent and impartial tribunal established by law; the right to have the case heard and determined within a reasonable time; the right to a reasonable opportunity to present the case to the tribunal and to comment upon the opponent's case; the right to equality in the proceedings vis-à-vis the opponent; and the right to a reasoned decision." 77. An allegation of 'failure of justice' is a very strong allegation and use of an equally strong expression and cannot be equated with a miscarriage of justice or a violation of law or an irregularity in procedure - it is much more. If the expression is to be understood as in common parlance, the result would be that seldom would a trial reach a conclusion since an irregularity could take place at any stage, inadmissible evidence could be erroneously admitted, an adjournment wrongly declined etc. To conclude, therefore, Section 19(3)(c) of the PC Act must be given a very restricted interpretation and we cannot accept the over-broad interpretation canvassed by lea....
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....ns, to move this Court if their prayer would amount to staying or impeding the progress of the trial. In case they have any grievance against the orders passed by the Special Judge during trial, they are free to approach this Court so that the progress of the trial would not be hampered by indulging in cumbersome and time-consuming proceedings in the other forums, thereby stultifying the peremptory direction given by this Court for day-to-day trial. Article 136 read with Article 142 of the Constitution of India enables this Court to pass such orders, which are necessary for doing complete justice in any cause or matter pending before it and, any order so made, shall be enforceable throughout the territory of India. The parties, in such a case, cannot invoke the jurisdiction under Article 226 or 227 of the Constitution of India or under Section 482 CrPC so as to interfere with those orders passed by this Court, in exercise of its constitutional powers conferred under Article 136 read with Article 142 of the Constitution of India. Or, else, the parties will move courts inferior to this Court under Article 226 or Article 227 of the Constitution of India or Section 482 CrPC, so as t....