TaxTMI 
TaxTMI 
2017 (7) TMI 1088
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....17 (Arising out of SLP (Crl.) No. 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 ....
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....of the Prevention of Corruption Act, 1988 (for short "the PC Act"). 6. Being aggrieved by the order 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 cons....
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....ion 11. The submission made on behalf of the appellants was that they have a right to file a revision petition against orders passed by the learned Special Judge 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....
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.... be passed by this Court, various passages from A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 were read out to us. In other words, it is not only the right to file a revision petition 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 exami....
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....ed by the High Court and this Court, as matter of prudence and not as a matter of law, to an order that "suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly 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 spee....
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....g of cognizance and issuance of a process. It was said: "It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar 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. O....
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....in any other provision of the Code. Therefore, it is quite clear that the prohibition in Section 397 of the Cr.P.C. will govern Section 482 thereof. We endorse this view. 26. In this context, reliance on Antulay is completely misplaced. In that case, this Court was concerned with Section 9 of the Criminal Law Amendment 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.....
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....As held in Amar Nath and with which conclusion we agree, if an interlocutory order is not revisable due to the prohibition contained in Section 397(2) of the Cr.P.C. that cannot be circumvented by resort to Section 482 of the Cr.P.C. There can hardly be any serious dispute on this proposition. 30. What then is the utility of Section 482 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 ....
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.... stay of proceedings recourse could be had to Section 482 of the Cr.P.C. Our discussion above makes this quite clear. 33. Proceeding on this basis, what is the nature of cases that we are presently dealing with? While in some appeals the order summoning the appellant or the order for framing charges is in question (we have already dealt with these issues), 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 Cour....
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....rest whereas Article 226 of the Constitution is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above." 38. The Cr.P.C. is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 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 diffic....
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.... and the non-obstante clause in Section 20(7) reading, "Notwithstanding anything contained in the Code...." clearly postulate that in granting of bail, the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Court's entertain bail applications invoking their 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....
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....The treatment of these cases is certainly not arbitrary - on the contrary, the classification is in public interest and for the public good with a view to bring persons who have allegedly committed corrupt activities, within the rule of law. It is hence not possible to accept the submission that by treating the entire batch of coal block allocation cases in a particular manner different from the usual 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 c....
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....on and discrimination with reason.... The main objection to the West Bengal Act was that it permitted discrimination without reason or without any rational basis.... The mere mention of "speedier trial" as the object of the Act did not "cure the defect", as the expression "afforded no help in determining what cases required speedier trial ... The clear recital (in the Saurashtra Ordinance) of a definite objective furnishes 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 n....
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....investigations so that they reach their logical conclusion, without any interference from any quarter. The magnitude of the illegalities is such that it appears that even the integrity of the Director of the CBI was prima facie compromised, and this Court had to intervene and direct investigations into the conduct of the Director of the CBI. That being so, it can hardly be said with any degree of seriousness that the procedure 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 do....
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....ers under Article 142 of the Constitution. It was held that this Article enables this Court to pass such an enforceable decree or order as is necessary for doing complete justice in any case or matter. While discussing the meaning of the expression "complete justice", this Court took the view that there were several decisions that have been rendered which made it clear that though the powers are wide, nevertheless, the power is ancillary 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....
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....t that a proper investigation must be followed by an equally effective prosecution so as not to make the exercise completely futile. This is an important aspect of the rule of law, the emphasis being on a strong and competent prosecution machinery and not merely a fair and competent investigation followed by an equally fair trial. This is in the nature of an entire package and to obtain appropriate results (one way or the other) is to ensure there 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 proc....
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....of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, 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....
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....blanket prohibition against a stay of proceedings under the PC Act even if there is a failure of justice [subject of course to sub-clause (b)]. It mandates that no court shall stay proceedings "on any other ground" that is to say any ground other than a ground relatable to the error, omission or irregularity in the sanction resulting in a failure of justice. 65. A conjoint reading of sub-clause (b) and sub-clause (c) of Section 19(3) of the PC Act makes it is clear that a stay of proceedings could be granted only and only if there is an error, omission or 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....
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....nction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the 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....
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....al Judge may also be made on the basis of certified copies of the record. Quite clearly, the intention of Parliament is that there should not be any impediment in the trial of a case under the PC Act. 71. What does the expression 'failure of justice' mean? In Shamnsaheb M. Multani v. State of Karnataka (2001) 2 SCC 577 it was held that the expression 'failure of justice' is too pliable or facile an expression which could be fitted in any situation. 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. 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....
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....gnizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused." 73. In Bhooraji (2001) 7 SCC 679 this Court concluded that in the event of a failure of justice, a de novo trial could be ordered but that should be the last resort and only when such a course becomes desperately 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 Administr....
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....the Administrative Tribunal, may be found in the fundamental right of a staff member to present his case, either orally or in writing, and to have it considered by the Tribunal before it determines his rights. An error in procedure is fundamental and constitutes "a failure of justice" when it is of such a kind as to violate the official's right to a fair hearing as above defined and in that sense to deprive him of justice. To put the matter in that way does not provide a complete answer to the problem of determining precisely what errors in procedure are covered by the words of Article 11. But certain elements of the right to a fair hearing are 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 allegati....
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....otherwise the very purpose and object of the order would be defeated. This Court held in paragraphs 22 and 23 of the Report as follows: "We may, at the very outset, point out that CBI as well as the Enforcement Directorate are yet to complete the investigation of the cases relating to 2G Scam and the case which is being tried by the Special Judge is only one amongst them, wherein the charge-sheet has been filed and the trial is in progress. This Court, taking into consideration the width and ambit of the investigation which even spreads overseas and the larger public interest involved, passed the orders impugned, reserving the right of all, including the accused persons, 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 I....