* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Reserve: 8th September, 2010 Date of Order: 15th September, 2010 + W.P.(Crl.) No. 357/2010 % 15.09.2010 [ENTITY] & Ors. Petitioners Through: Mr. [ENTITY], Advocate Versus [ENTITY] Respondent Through: Mr. [ENTITY], Standing Counsel for [ENTITY] with Mr. [ENTITY], Advocate JUSTICE [ENTITY] 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporter or not? 3. Whether judgment should be reported in Digest? JUDGMENT
1. The above petition and many more petitions have been filed by litigants against the orders of Special Judge framing charge for the offences under [ACT] coupled with or without charges for offences under [ACT].
2. Some of the petitions were filed originally under [SECTION] of the [ACT], some were filed as Revision Petitions and were converted as Writ Petitions at the request of the parties, and some Writs were filed after dismissal of Revision Petition.
3. In [ENTITY] v. Central Bureau of Investigation, 159 (2009) DLT 636, the Bench of Dr. [ENTITY] J. after considering the provisions of [SECTION] of [ACT] and after considering the legal position and after scanning through various judgments of Supreme Court had observed as under:
"To conclude this part of the discussion it is held that in the context of [SECTION] the words "no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial " includes an interlocutory order in the form of an order on charge or an order framing charge. On a collective reading of the decisions in [ENTITY] and [ENTITY], it is held that in terms of [SECTION] [ACT], no revision petition would be maintainable in the High Court against order on charge or an order framing charge passed by the Special Court."
4. In para 24, the Bench observed that a petition under [SECTION] [ACT] and under [SECTION] of the [ACT] would also be not maintainable "In the present petitions it was urged that notwithstanding the above legal position, the powers of this Court under [SECTION] and [SECTION] of the [ACT] and [SECTION] [ACT] remained untramelled. In other words, it was submitted that in appropriate cases, the said provisions could be invoked notwithstanding the statutory bar to challenge an order on revision passed by the Special Court. In the considered view of this Court, this argument although attractive also does not survive after the authoritative pronouncement of the Supreme Court in [PRECEDENT] (supra). There a similar argument raised in the context of [SECTION] [ACT] was negatived. An order by the Special Judge [ACT] regarding call interception was challenged in the High Court by a petition under [SECTION] and [SECTION] of the [ACT] read with [SECTION] [ACT]. The Supreme Court held that the High Court ought not to have entertained the petition at all. It noticed the judgments in Madhu Limaye v. State of Maharasthra and [ENTITY] v. State of Rajasthan."
5. In subsequent decision in [ENTITY] Vs. Central Bureau of Investigation, 166 (2010) DLT 362, the Bench of [ENTITY] J. re-affirmed the legal position regarding the order on charge passed by Special Judge of [ENTITY] being an interlocutory order and observed as under:
"For the reasons given in the preceding paragraphs, I am in full agreement with the view taken in [ENTITY] case as regards the interpretation of the expression interlocutory order used in [SECTION] of [ACT]."
6. However, Justice [ENTITY]'s Bench further observed that it was in full agreement with the view taken in the case of [ENTITY] that inherent power of the Court cannot be used to interfere with an order on charge or directing the framing of charge in case attracting the provisions of [ACT], meaning thereby that a petition under [SECTION] [ACT] would not be maintainable before High Court assailing an order on charge, which was also the view of the previous bench. However, the bench of Justice [ENTITY] took contrary view to the view of Justice [ENTITY]'s bench regarding maintainability of a petition under [SECTION] of [ACT] and observed as under:
"40. In the case of [ENTITY] (supra), this Court also observed that in view of the decision of the Hon'ble Supreme Court in the case of [ENTITY]), the power of the Court under [SECTION] and [SECTION] of the [ACT] cannot be used to interfere with an order of this nature. I have carefully gone through the decision of the Hon'ble Supreme Court in the case of [PRECEDENT] (supra) and I find that in this case, the Hon'ble Supreme Court did not rule out invoking of writ jurisdiction of the High Court, in appropriate cases, even in respect of interlocutory orders. The Hon'ble Supreme Court noticed that the order of this Court challenged before it did not indicate as to whether the Court was exercising its power of superintendence under [SECTION] of the [ACT] or its inherent powers under [SECTION] of the [ACT]. It was noted that the respondent [ENTITY] had not invoked [SECTION] of the [ACT] and it was contended by Dr. [ENTITY] that the order was passed in exercise of inherent jurisdiction under [SECTION] of the [ACT]. The Hon'ble Supreme Court found it difficult to accept the submission of Mr. [ENTITY] that the order of this Court was under
[SECTION] of the [ACT]. Thus, Court felt, on the facts of the case before it, that neither the power under [SECTION] of the [ACT] nor inherent jurisdiction under [SECTION] of the [ACT] should have been exercised, even if such powers were available. In para 28 of the judgment, the Hon'ble Supreme Court held as under:
"Thus the law is that [SECTION] of the [ACT] gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunal's within the limits of their authority and to seeing that they obey the law. The powers under [SECTION] are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order
It is settled law that this power of judicial superintendence, under [SECTION], must be exercised sparingly and only to keep subordinate Courts and Tribunal's within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under [SECTION] of the [ACT] since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under [SECTION] could not be exercised 'as the cloak of an appeal in disguise'."
41. Thus, in the case of [PRECEDENT] (supra) the Hon'ble Supreme Court expressly recognized the powers of the High Court to interfere even with an interlocutory order in exercise of jurisdiction under [SECTION] of the [ACT] though it cautioned that such powers should be exercised sparingly and only with a view to keep subordinate Courts within the limits of their authority and only in very exception circumstances, warranting interference in exercise of these extraordinary powers. Therefore, the judgment of the Hon'ble Supreme Court in the case of [ENTITY]) does not rule out invoking and exercise of [ACT]al powers of this Court in appropriate cases."
7. Ultimately, the bench of Justice [ENTITY] was of the view that the [ACT]al remedy under [SECTION], [SECTION] of the [ACT] cannot be shut out on the ground that the petitions under [SECTION], [SECTION] of the [ACT], if entertained against interlocutory orders on framing charge, the revision petitions challenging such order may be re-filed as Writ Petitions. According to [ENTITY] case (Supra), the remedy does not lie in denying writ jurisdiction of the High Court, but, lies in exercising a self restrain by the High Court in exercising jurisdiction under [SECTION], [SECTION] of the [ACT] in accordance with authoritative pronouncements of the Supreme Court, sparingly and in exceptional circumstances.
8. This Court is of the view that the very purpose of the statutory provisions enacted by legislature under [SECTION] of the [ACT] stand defeated if the petitions under [SECTION] are entertained against the order on charge.
9. In [ENTITY] case the Single Bench gave the reasons as to why the Legislature was forced to enact [SECTION] of [ACT] and why expression 'interlocutory order' needs to be interpreted differently from the interpretation given to it in the context of [SECTION] of [ACT] in following manner:
12. One main object behind replacing [ACT] by a new Act in the year 1988 was to expedite the proceedings initiated under [ACT] by providing for day to day trial of cases and incorporating prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory order. It has been experienced that those who are arraigned for trial under the provisions of [ACT], try to delay the trial, using one or the other method and availing all possible remedies available to them in law, presumably in the hope that with the passage of time, the evidence that can be used against them during trial may not remain available, if they are able to delay the progress of the case, to the extent they can possibly do.
Not only final or intermediate orders even interlocutory orders used to be and are still challenged despite the accused knowing it fully well that such orders cannot be subject matter of challenge in revisional jurisdiction. Though there is an absolute bar on stay of proceedings, it is not uncommon for the accused in such cases to seek stay of proceedings on the ground that they are likely to be seriously prejudiced and failure of justice is likely to be occasioned, unless the proceedings are stayed. Even if the Court is not inclined to stay the proceedings, considering the embargo placed by [SECTION], the accused persons insist upon the record of the trial being summoned, contending that examination of the record would be necessary for the purpose of deciding the petition filed by them. [SECTION] of [ACT] provides that where the powers under [SECTION] of the Code are exercised, the Court shall not ordinarily call for the record of the proceedings without giving the other party an opportunity of showing cause why the record should not be called for, or if the Court is satisfied that examination of the record of the proceedings may be made from the certified copies. But it has been experienced that the record is requisitioned in many cases, entertaining the submission of the petitioners to the effect that scrutiny of the original record would be necessary for the purpose of proper and complete appreciation of the controversy involved in the case. As a result, even if there is no stay of proceedings, the trial comes to be stalled on account of the record having been requisitioned by the Superior Court. In fact, Trial Court Record has actually been summoned in [CASE NUMBER] being disposed of this order, which shows that despite legislative restriction, the record of Trial Court continues to be summoned by the Superior Courts. Ordinarily, the accused in such cases command vast material resources and are in a position to have access to the best legal assistance for the purpose of their defence. If an order framing charge or directing framing of charge is not held to be an interlocutory order, the inevitable result would be a flood of Revision Petitions challenging such orders, coupled with request for either staying the proceedings in exercise of inherent powers of the Court or seeking summoning of the Trial Court record, thereby staying the trial for all practical purposes. This is yet another reason why the expression 'interlocutory order' used in [SECTION] of the [ACT] needs to be interpreted differently from the interpretation given to it in the context of [SECTION] of the [ACT].
13. With a view to expedite the trial of cases, involving offences under [ACT], the Legislature has made a number of changes in the regular procedure prescribed in the [ACT] for trial of criminal cases. Special Courts have been constituted for trial of such cases. The Special Judges are required, as far as practicable, to hold the trial on day to day basis. A specific provision has been made placing embargo upon stay of proceedings under [ACT] not only on the ground of any error, omission or irregularity in the sanction unless such error, omission or irregularity has resulted in a failure of justice, but also on any other ground. [SECTION] of the Code has been amended so as to require the accused in a corruption case, to give in writing, a list of the persons to whom he proposes to examine as his witnesses and the documents on which he proposes to rely. Another provision made in [SECTION] of the Act provides that the proceedings shall not be adjourned or postponed merely on the ground that an application under [SECTION] has been made by a party to the proceedings. This provision was necessitated since it was experienced that after filing a petition under [SECTION] of the [ACT], the accused would seek adjournment or postponement of proceedings on the ground that the Revision Petition filed by him was pending before the superior Court, and therefore, the trial Court should keep its hands off the proceedings. A specific provision has been made in [SECTION] of the Code providing that the Judge may, for reasons to be recorded by him and if he so thinks fit, proceed with the inquiry or trial in the absence of accused or his pleader and record the evidence of any witness subject to the right of the accused to recall the witnesses for cross- examination. This provision was necessitated experiencing that either accused or his pleader would be absent when the material witnesses are present and that would necessitate adjournment of the case to another date, thereby not only delaying the trial, but also causing inconvenience to the witnesses and putting pressure on them to get tired and exhausted on account of frequent visits to the Court. The objective behind all these provisions is to expedite trial of the cases instituted under [ACT]. If an order framing charge or directing framing of charge in such cases is not held to be an interlocutory order, the legislative objective behind enactment of [ACT] is likely to be substantially defeated. The virus of corruption continues to eat into the vitals of our character and strength. With Government entering into large commercial contract and making huge purchases with increased expenditure on social welfare schemes and infrastructural projects, the scope for corrupt practices has increased manifold as the schemes and projects of the Government and its instrumentalities are executed only through public servants which gives considerable scope for misconduct on their part. Misuse of powers by those who occupy posts in Government is capable of causing considerable damage to the image and reputation of our country. We, therefore, need to curb and control the growing temptation to make a fast buck and get rich overnight by indulging in corrupt practices. This is possible only if those who indulge in such activities are given swift and deterrent punishment, which, in turn, is possible only if they are tried promptly and expeditiously, unhindered by unnecessary interference from superior Courts. It is with this objective in mind, [SECTION] of [ACT] has been enacted so as to take away the revisional powers of the High Court in the cases involving corruption by public servants.
10. This Court and the Apex Court have been consistently of the view as to what cannot be done directly cannot be done indirectly. The legislative intent, as expressed by introduction of [SECTION] of [ACT], for speedier disposal of corruption cases cannot be allowed to be defeated by opening a back-door entry to the litigants for assailing orders on charge under [SECTION] of the [ACT]. It is evident from the fact that more than 30 petitions out of the above were initially filed as Revision Petitions but later on converted to Writ Petitions under [SECTION] of the [ACT] by the order of the Court. This itself shows that since the Revision against order on charge was barred by statute, the Court opened another door for doing the same act which could not have been done by the petitioners due to the statutory prohibition.
11. In [PRECEDENT], the Supreme Court had occasion to consider a request made by the appellant to convert a revision into a petition under [SECTION] of the [ACT] and the Supreme Court made following observations:
"17. It has been urged by the appellant in [PRECEDENT] that in case this Court is of the opinion that a revision petition Under [SECTION], [ACT], is not maintainable, the case should be remitted to the High Court for consideration as a petition under [SECTION] of the [ACT]. We are unable to accept that prayer. A revision petition Under [SECTION] is a separate and distinct proceeding from a petition under [SECTION] of the [ACT], and one cannot be identified with the other."
12. It would not be out of place to mention that revisional jurisdiction is part and parcel of the appellate jurisdiction of the High Court. In [PRECEDENT], the Privy Council had observed that an application by party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptance of the term. Similarly, in [PRECEDENT], a civil revision petition was considered to be an appropriate form of appeal from the judgment of the subordinate Court. Thus the appellate jurisdiction can be exercised by High Court in both forms - in the form of Appeals, in the form of Revisions. Since the right to appeal and right to revision is statutory right, if the statute has taken away this right, the question arises as to whether this right should be permitted to the litigants under [SECTION] of the [ACT] or not ?
13. It is settled law that supervisory jurisdiction conferred on the High Court under [SECTION] of the [ACT] is confined only to whether an inferior Court or Tribunal, has acted within its limits and not to correct an error apparent on the face of record, much less an error of law. In using supervisory power under [SECTION] of the [ACT], High Court does not act as an Appellate Court and it is not permissible for a High Court, on a petition filed under [SECTION] of the [ACT], to review or weigh the evidence upon which inferior Court or Tribunal passed the order or to see if it committed an error of law in decision. While passing an order on charge, the Special Judge has to take a prima facie view on the basis of evidence placed on record along with the charge- sheet and decide if the accused should be put to trial for certain offences as allegedly committed by him or not. The accused is put to notice of the offences by framing charges of the offences and then evidence is lead. In every revision against the order on charge and in every petition under [SECTION] [ACT] or under [SECTION] of the [ACT], the only grievance raised before the High Court is that charge of the alleged offences was not made out and charge has been wrongly framed and the only prayer made is that the charges framed against the accused persons should be set aside and accused should be discharged. Once it has been authoritatively laid down by this Court that order on charge is an interlocutory order and no revision against the charge would lie and no petition under [SECTION] [ACT] would lie, entertaining a petition under [SECTION] of the [ACT] against the order on charge by the High Court and then re-appreciating the evidence collected by prosecution, and giving a finding whether charge was made out or not, would result in deleting [SECTION] from the [ACT] and what has been prohibited directly would be done indirectly.
14. In [PRECEDENT], Supreme Court had observed that it is not for the High Court to discuss the evidence and come to a conclusion different from the conclusion arrived at by the Tribunal. The High Court, while exercising its power under [SECTION] of the [ACT], was not entitled to discuss the evidence given and to come to its own conclusion on the evidence and if this is permitted then it would clearly amount to overstepping the limits of power under [SECTION] of the [ACT]. When an order on charge is assailed before the High Court under [SECTION] of the [ACT] and it is stated that it was a fit case for discharge of the accused, in fact, the prayer made to the High Court is invariably to scrutinize the evidence collected by [ENTITY] and come to a conclusion different to the one arrived at by the Special Court.
15. In [PRECEDENT], Supreme Court had held that the powers of High Court under [SECTION] of the [ACT] are not greater than the power under [SECTION] of the [ACT]. It has been further laid down that power of interference under [SECTION] of the [ACT] was limited to see that the subordinate Court and Tribunal function within the limits of their authority and the High Court cannot sit in appeal against the order of Tribunal under [SECTION] of the [ACT].
16. In [PRECEDENT], it was laid down by Supreme Court that jurisdiction conferred by [SECTION] of the [ACT] was not by any means appellate in its nature for correcting errors in the decisions of Subordinate Courts or Tribunals but was merely a power of superintendence to be used to keep them within the bounds of their authority.
17. In [PRECEDENT], it was observed by the Supreme Court that power under [SECTION] of the [ACT] was a discretionary power and this power could only be exercised sparingly to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct errors in their judgments. Where the [ACT] itself banned the exercise of revisional powers by the high Courts, it would indeed require very exceptional circumstances to warrant interference under [SECTION] of the [ACT], since the power of superintendence was not meant to circumvent statutory law.
18. In [PRECEDENT], the Supreme Court while considering the scope of [SECTION] of the [ACT] observed that the powers under [SECTION] of the [ACT] cannot be construed as powers which authorize the court to ignore the substantive rights of a litigant and this power cannot be used to 'supplant' substantive statutory law applicable to a case or cause under consideration of the Court. The Supreme Court further observed that [SECTION] of the [ACT] even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly.
19. In [PRECEDENT], the Supreme Court observed that in exercise of supervisory jurisdiction of the High Court under [SECTION] of the [ACT] High Court cannot indulge into re-appreciating or evaluation of evidence or correcting the errors in drawing inferences.
20. Even if it is considered that while considering charge on the basis of evidence collected by the prosecution two views were possible and the Trial Court had taken one view, which was plausible view, the High Court under [SECTION] of the [ACT] cannot interfere with the order of the Trial Court of framing charge, more so, when the order is held to be an interlocutory order in view of [SECTION] of the [ACT].
21. In [PRECEDENT], the Supreme Court had observed that High Court should not interfere and would be in error in interfering with the Trial Court order under [SECTION] of the [ACT] where two views were possible and the Trial Court had taken one view.
22. In [PRECEDENT], power of superintendence of High Court was gone into by the Supreme Court and it was observed that this power cannot be invoked to correct the error of fact which can only be corrected by a superior court in exercise of a statutory power of appeal. The High Court in guise of exercising its jurisdiction under [SECTION] of the [ACT] cannot convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final.
23. In view of these observations made by the Supreme Court in above cases, I consider that incase of [ACT], framing of charge once having been held as an interlocutory order and no revision maintainable under the Statute, the High Court cannot open the doors of review of the order of Special Judge under [SECTION] of the [ACT] nullifying the statutory provisions. The function of High Court under [SECTION] of the [ACT] is limited to see that subordinate Court or Tribunal functions within its limit or authority and not to see whether the order passed by the Trial Court or Tribunal was the correct order or not. Under [SECTION] of the [ACT], the High Court cannot correct the errors in the order.
24. In [PRECEDENT], Supreme Court observed that the powers of the High Court under [SECTION] of the [ACT] was not greater than the powers under [SECTION] of the [ACT] and it was limited to see that the Tribunal functions within the limits of its authority. The High Court will not review the discretion of the Authority judicially exercised, but it may interfere if the exercise of the discretion is capricious or perverse or ultra vires.
25. It is well known fact that trials of corruption cases are not permitted to proceed further easily and a trial of corruption case takes anything upto 20 years in completion. One major reason for this state of affairs is that the moment charge is framed, every trial lands into High Court and order on charge is invariably assailed by the litigants and the High Court having flooded itself with such revision petitions, would take any number of years in deciding the revision petitions on charge and the trials would remain stayed. Legislature looking at this state of affairs, enacted provision that interlocutory orders cannot be the subject matter of revision petitions. This Court for reasons as stated above, in para No. 3 & 4 had considered the state of affairs prevalent and came to conclusion that no revision against the order of framing of charge or order directing framing of charge would lie. Similarly, a petition under [SECTION] of [ACT] would also not lie. I am of the opinion that once this Court holds that a petition under [SECTION] would lie, the result would be as is evident from the above petitions that every order on charge which earlier used to be assailed by way of revision would be assailed in a camouflaged manner under [SECTION] of the [ACT] and the result would be same that proceedings before the trial court shall not proceed.
26. The decisions on a petition assailing charge requires going through the voluminous evidence collected by the [ENTITY], analyzing the evidence against each accused and then coming to conclusion whether the accused was liable to be charged or not. This exercise is done by Special Judge invariably vide a detailed speaking order. Each order on charge of the Special Judge, under [ACT], normally runs into 40 to 50 pages where evidence is discussed in detail and thereafter the order for framing of charge is made. If this Court entertains petitions under [SECTION] of the [ACT] to re-appreciate the evidence collected by [ENTITY] to see if charge was liable to be framed or, in fact, the Court would be doing so contrary to the legislative intent. No court can appreciate arguments advanced in a case on charge without going through the entire record. The issues of jurisdiction and perversity are raised in such petitions only to get the petition admitted. The issue of jurisdiction is rarely involved. The perversity of an order can be argued in respect of any well written judgment because perversity is such a term which has a vast meaning and an order which is not considered by a litigant in its favour is always considered perverse by him and his counsel. Therefore, entertaining a petition under [SECTION] of the [ACT] against an order on charge would amount to doing indirectly the same thing which cannot be done directly, I consider that no petition under [SECTION] can be entertained.
27. However, since there are two views, one expressed by the Bench of Justice [ENTITY] in [ENTITY] s (supra) case and one held by the Bench of Justice [ENTITY] in [PRECEDENT] (supra) case and by this Bench, I consider that it was a fit case where a Larger Bench should set the controversy at rest. The matter is, therefore, referred to the Chief Justice for referring the following question:
"Whether an order on charge framed by a Special Judge under the provisions of [ACT], being an interlocutory order, and when no revision against the order or a petition under [SECTION] of [ACT] lies, can be assailed under [SECTION] of the [ACT], whether or not the offences committed include the offences under [ACT] apart from offences under [ACT]?"
to a Larger Bench.
28. The matter be listed before Hon'ble the Chief Justice for referring it to a Larger Bench on 17th September, 2010.
There is no stay of proceedings before the Trial Court. Proceedings before the Trial Court shall continue.
[ENTITY], J.
September 15, 2010 acm