Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. vs Central Bureau of Investigation

Constitution of India: Art. 21 – Mandate of speedy justice in criminal cases – Delay in trials of corruption cases, due to grant of stay – Directions issued – Prevention of Corruption Act, 1988 – Stay. [Per A.K. Goel, J. (for himself and Navin Sinha, J.)] Stay: Duration of, in civil and criminal cases – Held: Where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months – Administration of justice. [Per A.K. Goel, J. (for himself and Navin Sinha, J.)]

Prevention of Corruption Act, 1988: s.19(3)(c) r/w ss.4(4) and 22 – Cases under the Act – Disposal of – Held: S.19(3)(c) read with ss.4(4) and 22, make it clear that cases under the Act have to be decided with utmost despatch and without any glitches on the way in the form of interlocutory stay orders. (Per R.F. Nariman, J.)

Code of Criminal Procedure, 1973: s. 482 – Inherent Powers of Court – Nature of – Discussed. (Per R.F. Nariman, J.)

Interpretation of Statutes: In case of ambiguity – Held: If there is an ambiguity, and two views are possible, the view which most accords with the object of the Act, and which makes the Act workable, must necessarily be the controlling view. (Per R.F. Nariman, J.)

Prevention of Corruption Act, 1988: s.19(3)(c) – “On any other ground” – Plea of appellants that the expression “on any other ground” is referable only to grounds which relate to sanction and not to all proceedings under the Act – Respondents contended that these are grounds referable to the proceedings under the Act and are not relatable to sanction only – Held: “On any other ground”, refers to and relates to all grounds that are available in proceedings under the Act other than grounds which relate to sanction granted by the authority. (Per R.F. Nariman, J.) Answering the referred questions, the Court

HELD: Per A.K. Goel, J. (for himself and Navin Sinha, J.)

1.1 Order framing charge may not be held to be purely an interlocutory order and can in a given situation be interfered with under Section 397(2) Cr.P.C. or 482 Cr.P.C. or Article 227 of the Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation. The High Court has jurisdiction in appropriate case to consider the challenge against an order framing charge and also to grant stay. [Paras 26, 27] [1072-E-F]

Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551 : [1978] 1 SCR 749 – affirmed.

1.2 In the PC Act cases, the intention of legislature is expeditious conclusion of trial on day-to-day basis without any impediment through the stay of proceedings and this concern must be respected. The proviso to Section 397(1) Cr.P.C. added by Section 22(d) of the Prevention of Corruption Act, 1988 states that a revisional court shall not ordinarily call for the record of proceedings. If record is called, the Special Judge may not be able to proceed with the trial which will stand indirectly stayed. The right of the accused has to be considered vis-à-vis the interest of the society. Even constitutional power of the High Court under Article 226 which was very wide ought to be used with circumspection in accordance with judicial consideration and well established principles. The power should be exercised sparingly in rare and extreme circumstances. It is well accepted that delay in a criminal trial, particularly in the PC Act cases, has deleterious effect on the administration of justice in which the society has a vital interest. Delay in trials affects the faith in Rule of Law and efficacy of the legal system. It affects social welfare and development. Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint. Mere prima facie case is not enough. Party seeking stay must be put to terms and stay should not be incentive to delay. The order granting stay must show application of mind. The power to grant stay is coupled with accountability. [Paras 28, 29][1072-G-H; 1073-A-D]

1.3 Wherever stay is granted, a speaking order must be passed showing that the case was of exceptional nature and delay on account of stay will not prejudice the interest of speedy trial in a corruption case. Once stay is granted, proceedings should not be adjourned and concluded within two-three months. The wisdom of legislature and the object of final and expeditious disposal of a criminal proceeding cannot be ignored. In exercise of its power the High Court is to balance the freedom of an individual on the one hand and security of the society on the other. Only in case of patent illegality or want of jurisdiction the High Court may exercise its jurisdiction. The acknowledged experience is that where challenge to an order framing charge is entertained, the matter remains pending for long time which defeats the interest of justice. The judicial experience is that trial of corruption cases is not permitted to proceed on account of challenge to the order of charge before the High Courts. Once stay is granted, disposal of a petition before the High Court takes long time. Consideration of the challenge against an order of framing charge may not require meticulous examination of voluminous material which may be in the nature of a mini trial. Still, the Court is at times called upon to do so inspite of law being clear that at the stage of charge the Court has only to see as to whether material on record reasonably connects the accused with the crime. [Paras 30-32] [1073-E-G; 1074-A-B]

Hardeep Singh v. State of Punjab (2014) 3 SCC 92 : [2014] 2 SCR 1 – followed.

1.4 If at the stage of charge, the High Court adopts the approach of weighing probabilities and re-appreciate the material, it may be certainly a time consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. Thus, even while reiterating the view that there is no bar to jurisdiction of the High Court to consider a challenge against an order of framing charge in an exceptional situation for correcting a patent error of lack of jurisdiction, exercise of such jurisdiction has to be limited to rarest of rare cases. Even if a challenge to order framing charge is entertained, decision of such a petition should not be delayed. Though no mandatory time limit can be fixed, normally it should not exceed two-three months. If stay is granted, it should not normally be unconditional or of indefinite duration. Appropriate conditions may be imposed so that the party in whose favour stay is granted is accountable if court finally finds no merit in the matter and the other side suffers loss and injustice. To give effect to the legislative policy and the mandate of Article

21 for speedy justice in criminal cases, if stay is granted, matter should be taken on day-to-day basis and concluded within twothree months. Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial Court. This timeline is being fixed in view of the fact that such trials are expected to be concluded normally in one to two years. In view of above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this, situation, it is directed that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced. [Paras 33, 35] [1076-B-F; 1078-C-F]

1.5 Thus, the law is declared to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated. Mandate of speedy justice applies to the PC Act cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be. In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced. The High Courts may also issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly period at the trial stage. [Paras 36, 37] [1078-G-H; 1079-A-D]

L. Chandra Kumar v. Union of India and Ors. (1997) 3 SCC 261; Kartar Singh v. State of Punjab (1994) 3 SCC 569 : [1994] 2 SCR 375 – followed.

Imtiaz Ahmad v. State of U.P. (2012) 2 SCC 688 : [2012] 1 SCR 779 – relied on.

Dharambir Khattar v. Central Bureau of Investigation

159 (2009) DLT 636; R. C. Sabharwal v. Central Bureau of Investigation 166 (2010) DLT 362; CBI v. Ravi Shankar Srivastava (2006)7 SCC 188 : [2006] 4 Suppl. SCR 450; Dharimal Tobacco Products Ltd. and Ors. v. State of Maharashtra and Anr. AIR 2009 SC 1032 : [2008] 17 SCR 844; Krishnana v. Krishnaveni (1997) 4 SCC 241 : [1997] 1 SCR 511; Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam AIR 1958 SC 398 : [1958] SCR 1240; Nihandra Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895 : [1963] Suppl. SCR 570; Sarpanch, Lonand

Grampanchayat v. Ramgiri Gosavi and Anr. AIR 1968 SC 222 : [1967] SCR 774; Maruti Bala Raut v. Dashrath Babu Wathare and Ors. (1974) 2 SCC 615: [1975]

1 SCR 899; Babhutmal Raichand Oswal v. Laxmibai R. Tarte and Anr. AIR 1975 SC 1297; Jagir Singh v. Ranbir Singh and Anr. AIR 1979 SC 381 : [1979] 2 SCR 282; Vishesh Kumar v. Shanti Prasad AIR 1980 SC 892: [1980] 3 SCR 32; Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala AIR 1988 SC 184: [1988] 1 SCR 1057; M.C. Mehta v. Kamal Nath and Ors. AIR 2000 SC 1997; Ranjeet Singh v. Ravi Prakash AIR 2004 SC 3892; Amarnath v. State of Haryana (1977) 4 SCC 137 : [1978] 1 SCR 222;

Mohanlal Maganlal Thacker v. State of Gujarat [1968]

2 SCR 685; Manohar Lal Sharma v. Principal Secretary and ors. (2014) 9 SCC 516 : [2014] 8 SCR 836; Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC

329 : [2010] 8 SCR 836; State v. Navjot Sandhu (2003)

6 SCC 641 : [2003] 1 Suppl. SCR 130; V.C. Shukla v. State through CBI (1980) Suppl. SCC 92 :

[1980] SCR 380; Girish Kumar Suneja v. Central Bureau of Investigation (2017) 14 SCC 809; S. Kuppuswami Rao v. The King (1947) 9 FCR 180; Satya Narayan Sharma v. State of Rajasthan (2001) 8 SCC

607 : [2001] 3 Suppl. SCR 268; Chander Shekhar Singh v. Siya Ram Singh (1979) 3 SCC 118 : [1979]

1 SCR 947; Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay and Anr. [1967] 3 SCR 926; Siliguri Municipality vs. Amalendu Das (1984) 2 SCC

436 : [1984] 2 SCR 344; Assistant Collector of Central Excise, Chandan Nagar, West Bengal vs. Dunlop India Ltd. and Ors. (1985) 1 SCC 260 : [1985] 2 SCR 190; Union Territory of Pondicherry and Ors. vs. P.V. Suresh and Ors. (1994) 2 SCC 70 : [1993] 2 Suppl. SCR 487; State of West Bengal and Ors. vs. Calcutta Hardware Stores and Ors. (1986) 2 SCC 203 : [1986] 1 SCR

364 – referred to.

HELD: Per R.F. Nariman, J. (Concurring):

1.1 A perusal of Section 19(3) of the Prevention of Corruption Act, 1988 would show that the interdict against stay of proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority is lifted if the Court is satisfied that the error, omission or irregularity has resulted in a failure of justice. Having said this in clause (b) of Section 19(3), clause (c) says that no Court shall stay proceedings under this Act on any other ground. [Para 7] [1085-G-H]

1.2 The Respondents are correct in their submission that “on any other ground” are grounds referable to the proceedings under this Act and not relatable to sanction only, for the following reasons:

(i) Section 19(3)(b) subsumes all grounds which are relatable to sanction granted. This is clear from the word “any” making it clear that whatever be the error, omission or irregularity in sanction granted, all grounds relatable thereto are covered.

(ii) This is further made clear by Explanation (a), which defines an “error” as including competency of the authority to grant sanction.

(iii) The words “in the sanction granted by the authority” contained in sub-clause (b) are conspicuous by their absence in subclause(c), showing thereby that it is the proceedings under the Act that are referred to.

(iv) The expression “on any other ground”, therefore, refers to and relates to all grounds that are available in proceedings under the Act other than grounds which relate to sanction granted by the authority.

(v) On the assumption that there is an ambiguity, and that there are two views possible, the view which most accords with the object of the Act, and which makes the Act workable, must necessarily be the controlling view. It is settled law that even penal statutes are governed not only by their literal language, but also by the object sought to be achieved by Parliament.

(vi) The Statement of Objects and Reasons of the Prevention of Corruption Act, 1988 makes it clear, Section 19(3)(c) is to be read with Section 4(4) and Section 22, all of which make it clear that cases under the Act have to be decided with utmost despatch and without any glitches on the way in the form of interlocutory stay orders.

(vii) The subject matter of sub-section (4) of Section 19, Prevention of Corruption Act, 1988 is only in the nature of a proviso to Section 19(3)(a) and (b), making it clear that the ground for stay qua sanction having occasioned or resulted in a failure of justice should be taken at the earliest, and if not so taken, would be rejected on this ground alone.

(viii) Section 19(3)(c) became necessary to make it clear that proceedings under the Act can be stayed only in the eventuality of an error, omission or irregularity in sanction granted, resulting in failure of justice, and for no other reason. It was for this reason that it was also necessary to reiterate in the language of Section 397(2) of the Code of Criminal Procedure, that in all cases, other than those covered by Section 19(3)(b), no court shall exercise the power of revision in relation to interlocutory orders that may be passed. It is also significant to note that the reach of this part of Section 19(3)(c) is at every stage of the proceeding, that is inquiry, trial, appeal or otherwise, making it clear that, in consonance with the object sought to be achieved, prevention of corruption trials are not only to be heard by courts other than ordinary courts, but disposed of as expeditiously as possible, as otherwise corrupt public servants would continue to remain in office and be cancerous to society at large, eating away at the fabric of the nation. [Para 8] [1086-B-H; 1087-A-D; 1088-A-E] Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551 : [1978] 1 SCR 749 – affirmed.

Ms. Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) and Anr. 2017 SCC Online SC

787 – referred to.

1.3 The High Courts are established by the Constitution and are courts of record which will have all powers of such courts, including the power to punish contempt of themselves (Article 215). The High Court, being a superior court of record, is entitled to consider questions regarding its own jurisdiction when raised before it. [Para 9] [1088-F-G]

1.4 It is thus clear that the inherent power of a Court set up by the Constitution is a power that inheres in such Court because it is a superior court of record, and not because it is conferred by the Code of Criminal Procedure. This is a power vested by the Constitution itself, inter alia, under Article 215 as aforestated. Also, as such High Courts have the power, nay, the duty to protect the fundamental rights of citizens under Article

226 of the Constitution, the inherent power to do justice in cases involving the liberty of the citizen would also sound in Article 21 of the Constitution. This being the constitutional position, it is clear that Section 19(3)(c) cannot be read as a ban on the maintainability of a petition filed before the High Court under Section 482 of the Code of Criminal Procedure, the non-obstante clause in Section 19(3) applying only to the Code of Criminal Procedure. Insofar as petitions under Articles 226 and 227 are concerned, they form part of the basic structure of the Constitution. [Paras 11, 18] [1089-H; 1090-A-C; 1097-E-F] Satya Narayan Sharma v. State of Rajasthan (2001) 8 SCC 607 : [2001] 3 Suppl. SCR 268 – overruled.

In re Special Reference 1 of 1964 [1965] 1 SCR 413; Ratilal Bhanji Mithani v. Assistant Collector of Customs [1967] SCR 3 926; L. Chandra Kumar v. Union of India and Ors. (1997) 3 SCC 261 : [1997] 2 SCR 1186; Kartar Singh v. State of Punjab (1994) 3 SCC

569 : [1994] 2 SCR 375 – followed.

Girish Kumar Suneja v. C.B.I. (2017) 14 SCC 809 – relied on.

V. C. Shukla v. State through C.B.I. (1980) Supp. SCC

92 : [1980] SCR 380; Poonam Chand Jain and

another v. Fazru (2004) 13 SCC 269 : [2004] 5 Suppl. SCR 525; Amar Nath v. State of Haryana (1977) 4 SCC

137 : [1978] 1 SCR 222 – referred to.