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TMI Blog2017 (7) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings vis-ŕ-vis the opponent; and the right to a reasoned decision. 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 learned counsel for the appellants. The issue having already been agitated before this Court and negatived, we do not think it appropriate to revisit the order of 25th July, 2014 passed by this Court nor do we think it appropriate to modify that order. - CRIMINAL APPEAL NO. 1137 OF 2017 (Arising out of S.L.P (Crl.) No.9503 of 2016) WITH Criminal Appeal No. 1146 of 2017 (Arising out of SLP (Crl.) No.8392/2016), Criminal Appeal No.1143 of 2017 (Aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be appointed as Special Public Prosecutor by the Government of India to conduct the prosecution of the offences pertaining to coal block allocation matters on behalf of CBI and Enforcement Directorate. On such appointment, Mr. R.S. Cheema may choose two other advocates, who, in his opinion, will be of assistance in the matter. While doing so, Mr. R.S. Cheema may keep in view the magnitude and complexities of the case. 7. The Special Public Prosecutor shall have access to the entire evidence/material including case diaries collected in the course of investigation. 8. We direct the CBI to render all necessary assistance to the Special Public Prosecutor. 9. All cases pending before different courts in Delhi pertaining to coal block allocation matters shall stand transferred to the court of Special Judge as afore-noted. 10. We also make it clear that any prayer for stay or impeding the progress in the investigation/trial can be made only before this Court and no other Court shall entertain the same. 3. Leave granted. 4. The issue in the present appeals concerns the interpretation and effect of paragraph 10 of the above order which provides that any request for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission was that the order passed by this Court deserves to be recalled or revisited since the appellants have been denied access to justice in that: (i) The right to file a revision petition under Section 397 of the Code of Criminal Procedure, 1973 or the Cr.P.C. as well approaching the High Court under Section 482 of the Cr.P.C. has been taken away; (ii) The order passed by this Court has taken away the right of the appellants to file a petition under Articles 226 and 227 of the Constitution and thereby judicial review, which is a part of the basic structure of the Constitution, has been violated which even Parliament cannot violate; (iii) Article 14 of the Constitution has been violated by treating the coal block allocation cases as a separate class having a separate procedure, thereby denying to them equal protection of the law; (iv) The right to life and liberty guaranteed by Article 21 of the Constitution has been restricted; (v) Article 32 and Article 142 of the Constitution oblige this Court to protect the fundamental rights of citizens and not curtail them; (vi) The High Court has an inherent right to grant a stay of proceedings, but this Court has pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any right to the revision of a revisable order. It was held as follows: In our opinion, in the absence of statutory provisions, in terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case, must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence, and that subordinate Criminal Courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. 13. The decision of the Constitution Bench has been subsequently followed in a large number of cases, including somewhat more recently in Kaml ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. 16. While the text of sub-section (1) of Section 397 of the Cr.P.C. appears to confer very wide powers on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by sub-section (2) thereof. There is a complete prohibition in a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction? 17. There are three categories of orders that a court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order. 18. The concept of an intermediate order f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Some of the more notorious cases concern big business persons. So, this new provision was also welcomed by most of the witnesses as well as the Select Committee. . . . This was a well-thought out measure so we do not want to delete it. As noted in Amar Nath the purpose of introducing Section 397(2) of the Cr.P.C. was to curb delays in the decision of criminal cases and thereby to benefit the accused by giving him or her a fair and expeditious trial. Unfortunately, this legislative intendment is sought to be turned topsy turvy by the appellants. 21. The concept of an intermediate order was further elucidated in Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551 by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bits interference with interlocutory orders, it would not be permissible to resort to Section 482 of the Cr.P.C. to set aside an interlocutory order. This is what this Court held: While we fully agree with the view taken by the learned Judge 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 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of paragraph 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising its extraordinary discretionary power available under Section 397 of the Cr.P.C. 28. However, this does not mean that the appellants have no remedy available to them - paragraph 10 of the order does not prohibit the appellants from approaching this Court under Article 136 of the Constitution. Therefore all that has happened is that the forum for ventilating the grievance of the appellants has shifted from the High Court to this Court. It was submitted by one of the learned counsel that this is not good enough for the appellants since this Court is not obliged to give reasons while dismissing such a petition unlike the High Court which would necessarily have to give reasons if it rejected a revision petition. In our opinion, the mere fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. 31. The expanse of Section 482 of the Cr.P.C. was also discussed in great detail in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 in the context of quashing a first information report or a complaint. After giving several illustrations, this Court cautioned that the power available under Section 482 of the Cr.P.C. should be exercised in the rarest of rare cases. It was said: We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 32. In Satya Narayan Sharma v. State of Rajasthan (2001) 8 SCC 607 this Court considered the provisions of the PC Act and held that there could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made since in respect of such orders even a petition under Section 482 of the Cr.P.C. would not be maintainable. Article 226 and Article 227 of the Constitution 35. It was submitted on behalf of the appellants that paragraph 10 of the order passed by this Court prohibits the appellants from approaching the High Court under Articles 226 and 227 of the Constitution. In this context, it was submitted that it is now well settled that judicial review by the High Court and by this Court is a part of the basic structure of the Constitution and this has been recognized in L. Chandra Kumar v. Union of India. (1997) 3 SCC 261 36. It was submitted by relying upon Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329 that the jurisdiction of the High Court under Articles 226 and 227 of the Constitution is very vast and the principles for the exercise of jurisdiction have been culled out in that decision by this Court on an analysis of several earlier decisions. The principles have been stated in paragraph 49 of the Report and are not repeated here. 37. There is no doubt that the power of superintendence available to the High Court under Article 227 is extremely vast but at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to decline to interfere. In Kartar Singh v. State of Punjab (1994) 3 SCC 569 this Court considered the nagging question whether an accused could approach the High Court for the grant of bail under Article 226 of the Constitution in a case arising out of an offence under the Terrorist and Disruptive Activities (Prevention) Act of 1985 and 1987 or the TADA Act. In that context, this Court took the view that given the special nature of the statute, if a High Court entertains a bail application invoking its extraordinary jurisdiction under Article 226 and passes orders, the very scheme and object of the TADA Act and the intendment of the Parliament would be completely defeated and frustrated. It was held that a High Court would interfere, if at all, only in extreme and rare cases and additionally, judicial discipline and comity of courts require that High Courts should refrain from exercising their jurisdiction in entertaining bail applications, more particularly since this Court could grant relief in an appropriate case under Article 136 of the Constitution. It was held: Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act 1987, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters. 41. There is therefore nothing extraordinary if this Court were to pass an order that in a certain identified category of cases, the High Court ought not to interfere and leave it to this Court to take a decision in the matter in larger public interest, which this Court has already seen and explained. Violation of Article 14 of the Constitution 42. According to learned counsel for the appellants, paragraph 10 of the order violates the provisions of Article 14 of the Constitution inasmuch as the appellants are denied equal protection of the law by being singled out to have their case dealt with by a special procedure not provided for by law. In this regard, reliance is placed on paragraph 81 and the discussion following that paragraph in Antulay. Reliance was also placed on State of West Bengal v. Anwar Ali Sarkar. 1952 SCR 284. 43. In our opinion, it is not as if one single case has been take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these cases and the decisions based on them, there is no real conflict of principle involved in them. The majority decision in Anwar Ali Sarkar case proceeded on the view that no standard was laid down and no principle or policy was disclosed in the legislation challenged in that case, to guide the exercise of discretion by the Government in selecting a case for reference to the Special Court for trial under the special procedure provided in the Act. All that was relied on as indicative of a guiding principle for selection was the object, as disclosed in the preamble of the West Bengal Act, of providing for the speedier trial of certain offences , but the majority of the learned Judges brushed that aside as too indefinite and vague to constitute a reasonable basis for classification. It was then said: It will be seen that the main reasoning of the majority Judges in Anwar Ali Sarkar case as disclosed in the passages extracted above is hardly applicable to the statute here in question which is based on a classification which, in the context of the abnormal post-war economic and social conditions is readily intelligible and obviously calculated to subserve the legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and giving special treatment to an identifiable class of cases. The order passed by this Court does not amount to legislating in the classical mould but according special treatment to a class of cases for good and clear reason and in larger public interest as well as in the interest of the accused. Violation of Article 21 of the Constitution 47. It was submitted that the right to life and liberty guaranteed by Article 21 of the Constitution has also been restricted by paragraph 10 of the order passed by this Court. The submission made in this regard was that there are certain procedural safeguards provided by statutes and these have been denied to the appellants or in any event restricted or constricted by a judicial order and therefore the procedure established by law has been compromised. It is further submitted that the procedure which the appellants are subjected to is not just, fair and reasonable. 48. This contention of learned counsel for the appellants also deserves rejection. No procedural safeguard has been denied to the appellants and it is a complete misnomer to say that any statutory right has been restricted or constricted by a judicial order. The remedies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rights of a citizen cannot be taken away even by an order of the court except where a restriction is placed by the statute such as remanding an accused to judicial custody, no right of the appellants has been curtailed by this Court by the order under consideration. As repeatedly emphasized, it is only the forum in which the right to seek relief has been varied, and not denied. We do not see how this is impermissible or contrary to any law or any fundamental right of the appellants. 53. This Court is undoubtedly obliged to protect the fundamental rights of the people in the country in accordance with the Constitution, but it is equally true that while doing so public interest cannot be flung out of the window. It is now time for all of us including the courts to balance the right of an accused person vis- -vis the rights and interests of individual victims of a crime and society. Very often, public interest is lost sight of while dealing with an accused person and the rights of an accused person are given far greater importance than societal interests and more often than not greater importance than the rights of individual victims. This is a delicate balance to be struck and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented the grant of any interim stay by any court and has even otherwise gone beyond its remit as stated in Vineet Narain v. Union of India (1998) 1 SCC 226 wherein it was specifically held that the task of monitoring investigations by a court is over the moment a charge sheet is filed in respect of a particular investigation. It was submitted that paragraph 10 of the order permits the continuation of the monitoring process at the stage of trial as well and therefore goes beyond the stage of investigation. In other words, it was submitted that the terms of the order passed by this Court result in monitoring and supervising the trials by this Court, which is impermissible. 57. There is obviously some misconception in this regard as far as the appellants are concerned. This Court is not in any manner monitoring the progress of the trial in the coal block allocation cases nor is it supervising the trial. Conducting the trial is entirely the business of the learned Special Judge. Paragraph 10 of the order only results in the removal of any impediment in the progress of the trial. To ensure that the trial is concluded at the earliest not only in the interest of the accused persons but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included. Both these objectives have been incorporated in the provisions of the Prevention of Corruption Act, 1988 through Section 19 and Section 4 thereof. For the present we are concerned with Section 4 of the Prevention of Corruption Act, 1988 which provides in sub-Section (4) as follows: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis. It is clear that the intention of Parliament, which ought to be respected, is the expeditious conclusion of a trial on a day-to-day basis without any impediment and certainly not an impediment through a stay of proceedings granted for the asking as if it were an ordinary criminal trial. Prevention of Corruption Act 61. This takes us to the last submission on behalf of learned counsel for the appellants, namely, with regard to the interpretation of Section 19(3)(c) of the Prevention of Corruption Act, 1988. Section 19 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the objection could and should have been raised at any earlier stage in the proceedings. Explanation.-For the purposes of this section, - (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. 62. The submission of learned counsel for the appellants was that the prohibition against granting a stay of proceedings is not absolute insofar as Section 19(3)(c) of the PC Act is concerned. It was submitted that if there is a failure of justice, a stay of proceedings could certainly be granted by the High Court. 63. We are not in agreement with the over-broad interpretation given by learned counsel for the appellants to Section 19(3)(c) of the PC Act. 64. A reading of Section 19(3) of the PC Act indicates that it deals with three situations: (i) Sub-clause (a) deals a situation where a final judgment and sentence has been delivered by the Special Judge. We are not concerned with this situation. (ii) Sub-clause (b) deals with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h at the appellate stage as well as for the purposes of stay of the proceedings. 67. In Central Bureau of Investigation v. V.K. Sehgal (1999) 8 SCC 501 it was held that for determining whether the absence of or any error, omission or irregularity in the grant of sanction has occasioned or resulted in a failure of justice, the court has a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, if on a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubly ensure that there is no indirect stay of proceedings by calling for the records of the Special Judge while dealing with a revision petition filed by an accused person, Section 22 of the PC Act has been enacted with reference to Section 397(1) of the Cr.P.C. By virtue of Section 22(d) of the PC Act, a proviso has been added to Section 397(1) of the Cr.P.C. which makes it clear that the court exercising revision jurisdiction shall not ordinarily call for the record of the proceedings unless certain conditions are fulfilled. The proviso reads as follows: Provided that where the powers under this section are exercised by a court on an application made by a party to such proceedings, the court shall not ordinarily call for the record of the proceedings, ˗˗ (a) without giving the other party an opportunity of showing cause why the record should not be called for; or (b) If it is satisfied that an examination of the record of the proceedings may be made from the certified copies. 70. By adding the proviso to Section 397(1) of the Cr.P.C. Parliament has made it clear that it would be appropriate not to call for the records of the case before the Special Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72. This decision was followed in State of M.P. v. Bhooraji (2001) 7 SCC 679 and also in Rattiram v. State of M.P. (2012) 4 SCC 516 In the latter decision, it was held that the expression failure of justice must be given its due significance otherwise every procedural lapse or interdict could be interpreted to result in a failure of justice making the criminal justice delivery system completely illusory. Rattiram dealt with non-compliance with Section 193 of the Cr.P.C. and it was held that this did not result in a failure of justice. It was held in paragraphs 65 and 66 of the Report as follows: We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed new Article 11 was the commission of a fundamental error in procedure. The use of the word fundamental was intended to preclude review on account of trivial errors in procedure or errors that were not of a substantial nature. In order to make the intention clearer, the Indian delegation would suggest that the phrase which has occasioned a failure of justice should be inserted after the words fundamental error in procedure in the text of the article. 76. While considering the interpretation of the expression a fundamental error in procedure which has occasioned a failure of justice the International Court of Justice expressed the view that to constitute a failure of justice an error in procedure is fundamental when it is of the kind where the fundamental right of a staff member to present his case, either orally or in writing is denied. The International Court then proceeded to identify certain elements of the right to hearing well recognized as 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed the following order on 11th April, 2011 in what is now, commonly known as the 2G Spectrum Scam cases: We also make it clear that any objection about the appointment of Special Public Prosecutor or his assistant advocates or any prayer for staying or impeding the progress of the trial can be made only before this Court and no other court shall entertain the same. The trial must proceed on a day-to-day basis. All these directions are given by this Court in exercise of its power under Article 136 read with Article 142 of the Constitution and in the interest of holding a fair prosecution of the case. 79. The aforesaid order came up for consideration before this Court in Shahid Balwa v. Union of India. (2014) 2 SCC 687 80. While dealing with the submissions made in relation to the aforesaid order (submissions that are similar to those made before us) this Court held that considering the width and ambit of the investigation which could even spread overseas and also considering the larger public interest, the aforesaid order was passed reserving the right of the accused to move this Court if there is a grievance against the order passed by the Special Judge during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 136 read with Article 142 of the Constitution of India. 81. It was further held that the order passed only facilitates the progress of the trial by ordering that it must proceed on a day to day basis. It was noted that the backlog of cases is often an incentive to the litigants to take unfair advantage of the delays and therefore, it was necessary to pass the order dated 11th April, 2011. It was stated as follows in paragraph 31 of the Report: We also, therefore, find no basis in the contention of the petitioners that the orders dated 11-4-2011 and 9-11-2012 have the effect of monitoring the trial proceedings. No court, other than the court seized of the trial, has the power to monitor the proceedings pending before it. The order dated 11-4-2011 only facilitates the progress of the trial by ordering that the trial must proceed on a day-to-day basis. Large backlog of cases in the courts is often an incentive to the litigants to misuse the courts system by indulging in unnecessary and fraudulent litigation, thereby delaying the entire trial process. Criminal justice system s procedure guarantees and elaborateness sometimes give, create openings for abusive, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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