IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21..04..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. R.C.No.22 of 2010 and M.P.Nos.1 and 2 of 2010 P.Thangaraju .... Petitioner/Accused 6 Vs. State Represented by its Deputy Superintendent of Police, Vigilance and Anti Corruption, Dharmapuri. (Crime No.8/AC/2000) .. Respondent/Complainant Memorandum of Grounds of Criminal Revision filed under Sections 397 r/w 401 of the Code of Criminal Procedure , 1973 praying to call for the records in C.M.P.No.42 of 2008 in C.C.No.18 of 2008 on the file of the learned Chief Judicial Magistrate, Dharmapuri District and revise the order dated 10.12.2008 passed in C.M.P.No.42 of 2008 in C.C.No.18 of 2008. For petitioner : Mr.A.Ramesh, Senior Counsel for Mr.R.Karthikeyan For respondent : Mr.N.R.Elango, Addl. Public Prosecutor Assisted by Mr.R.Muniyapparaj, Govt. Advocate [Criminal Side] ORDER Challenging the order of the Special Judge under the Prevention of Corruption Act, Dharmapuri dated 10.12.2008 dismissing the petition in C.M.P.No.42 of 2008 in C.C.No.18 of 2008 thereby declining to discharge the petitioner herein, who is the 6th Accused in the said case, he has come forward with this revision. 2. According to the final report submitted by the respondent, there are totally 18 accused including the petitioner. It is alleged that all the 18 accused have committed offences U/s.120(B) r/w 167, 409, 419, 420, 468 r/w 471 of IPC and U/s.13(1)(c) and (d) r/w 13(2) of the Prevention of Corruption Act, 1988 [in short "the PCA"]. Contending that there https://hcservices.ecourts.gov.in/hcservices/ are no materials on record to frame charges against him, the petitioner [A6] filed C.M.P.No.42 of 2008 for discharge. The trial Court dismissed the same. That is how, he is now before this Court with this revision. 3. At the outset, Mr.N.R.Elango, the learned Additional Public Prosecutor appearing for the respondent raised a preliminary objection regarding the maintainability of this revision. According to him, the impugned order declining to discharge the petitioner from the case is an interlocutory order and, therefore, this revision is not maintainable. To substantiate his contention, he relies on a recent judgement of the Delhi High Court in Dharambir Khattar v. CBI, 159 (2009) Delhi Law Times 636. 4. Per contra, Mr.A.Ramesh, the learned senior counsel appearing for the petitioner would submit that the order impugned is neither an interlocutory order nor a final order. But, it is an 'intermediate order' against which revision lies. To substantiate his contention, he would rely on a judgement of the Hon'ble Supreme Court in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 followed by this court in V.R.Nedunchezhian v. State, 2000 Crl.L.J. 2955. He would further submit that in Dharambir Khattar's case cited supra, the Delhi High Court has not decided the law correctly. 5. Indisputably, under Section 397 (2) of the Code, the powers of revision conferred under Section 397 (1) of the Code shall not be exercised in relation to an "interlocutory order" passed in any appeal, inquiry, trial or other proceedings. However, the term "interlocutory order" has not been defined anywhere in the Code. On more than one occasion, the Hon'ble Supreme Court was called upon to interpret the term "interlocutory order". Finally, the Hon'ble Supreme Court in Madhu Limaye's case cited supra, set the controversy at rest, by holding that an order declining to discharge an accused is neither a final order nor an interlocutory order. It can be termed as either as an "intermediate order" or a "quasi final order". The Hon'ble Supreme Court has further held that such an intermediate order or quasi final order is revisable under Section 397 (1) of the Code. 6. In V.C.Shukla Vs. C.B.I., AIR 1980 SC 962, the Hon'ble Supreme Court had to again consider the construction of the term "interlocutory order" in terms of Section 11 (1) of The Special Courts Act [in short, "the SCA"]. The Hon'ble Supreme Court had to consider whether to adopt the liberal construction of the term as made in Madhu Limaye's case or to give a restricted construction to the said term so as to say that an order declining to discharge an accused in respect of offences tried as per the SCA is pure and simple an interlocutory order. The Hon'ble Supreme Court, after having made a complete survey of the https://hcservices.ecourts.gov.in/hcservices/ principles stated in Madhu Limaye's case, the object of the SCA and the special features found in the Act, ultimately held that insofar as the offences tried as per the SCA are concerned, an order declining to discharge an accused is an interlocutory order against which no revision lies. Thus, the Hon'ble Supreme Court gave a restricted meaning to the term "interlocutory order". 7. In V.R.Nedunchezhian's case cited supra, the very same term "interlocutory order" as found in Section 19 (3) (c) of the PCA came to be considered by this Court. A learned single Judge of this Court [Hon'ble Mr.Justice M.Karpagavinayagam, as he then was] after having considered the interpretation of the term made in V.C.Shukla's case as well as in Madhu Limaye's case held that insofar as an order declining to discharge an accused under the PCA is concerned, it is an intermediate order against which revision lies under Section 397(1) of the Code. To put it otherwise, the learned Judge held that the meaning given to the said term in Madhu Limaye's case alone is applicable to the cases under the PCA and the restricted meaning given to the said term in V.C.Shukla's case cannot be imported to the Prevention of Corruption Act. The said judgement has been consistently followed by this Court. 8. In the instant case, the learned Additional Public Prosecutor relies on the judgement of the Delhi High Court in Dharambir Khattar's case cited supra wherein it has been held that the restricted meaning given to the term "interlocutory order" in V.C.Shukla's case should be made applicable to the PCA also. In other words, according to the Delhi High Court, an order declining to discharge an accused under the PCA is an interlocutory order and, therefore, it is not revisable. The learned Judge has observed that the non-obstante clause found in Section 11(2) of the SCA was taken note of by the Hon'ble Supreme Court to hold that the provisions of the Code of Criminal Procedure, 1973 have been made inapplicable to the SCA. Similarly, according to the learned Judge, there is a non obstante clause in Section 19 (3) (c) of the PCA also, which excludes the applicability of Section 397 (3) of the Code. Thus, according to the learned Judge, both the provisions are in pari materia and, therefore, the meaning assigned to the term 'interlocutory order" in V.C.Shukla's case alone is applicable to the PCA. Therefore, according to the learned Judge, the law laid down by this Court in V.R.Nedunchezhian's case cited supra does not reflect the correct position of law. 9. Let me now evaluate the above contentions. At the outset, we have to carefully look into the judgement in V.C.Shukla's case to find as to what are all the factors taken note of by the Hon'ble Supreme Court to give a different interpretation to the expression "interlocutory order" than the one given in Madhu Limayee's case. It is not as though in V.C.Shuklas case the Hon'ble Supreme Court has disagreed with the law laid down in https://hcservices.ecourts.gov.in/hcservices/ Madhu Limaye's case which is evident from the following observations in para 44 of the judgement:- "44. ........ As the decisions of this Court in the cases of Madhu Limaye and Amarnath v. State of Haryana were given with respect to the provisions of the Code, particularly S.397(2), they were correctly decided and would have no application to the interpretation of S.11(1) of the Act, which expressly excludes the provisions of the Code of Criminal Procedure by virtue of the non-obstante clause." [Emphasis supplied] 10. A reading of the above observations of the Hon'ble Supreme Court would make it manifestly clear that the law laid down in Madhu Limaye's case holding that an order declining to discharge an accused is not an interlocutory order in terms of Section 397 (2) of the Code and that the same is revisable, holds good. 11. However, for the purposes of SCA, instead of assigning the extended meaning to the expression "interlocutory order", the Hon'ble Supreme Court adopted the natural meaning considering the special features and the object of the SCA. In para 44 of the judgement in V.C.Shukla's case, the Hon'ble Supreme Court has concluded as follows:- " On a true construction of S. 11(1) of the Act and taking into consideration the natural meaning of the expression 'interlocutory order', there can be no doubt that the order framing charges against the appellant under the Act was merely an interlocutory order which neither terminated the proceedings nor finally decided the rights of the parties. According to the test laid down in Kuppuswami's case (supra) the order impugned was undoubtedly an interlocutory order. " 12. Now, it is the time to analyse the factors which were taken into consideration by the Hon'ble Supreme Court to adopt the natural meaning to the term "interlocutory order" in terms of Section 11(1) of the SCA. Let us have a look into Section 11 (1) & (2) of the SCA. "Appeal. 11 (1) - Notwithstanding anything in the Code, an appeal shall lie as of right from any judgement, sentence or order, not being interlocutory order, of a Special https://hcservices.ecourts.gov.in/hcservices/ Court to the supreme Court both on facts and on law. (2) Except as aforesaid, no appeal or revision shall lie to any court from any judgement, sentence or order of a Special Court. (3) ....................................." 13. At the first instance, it cannot be lost sight of that under Section 11 (1) & (2) of the SCA, all orders of the Special Court are appealable to the Hon'ble Supreme Court, except interlocutory orders. It is obvious that revisional provision contained in Section 397 of the Code has been completely excluded by Section 11 (2) of the Act and thus even in respect of a final order, no revision lies. Such exclusion was evident from the non- obstante clause in the said provision. 14. Nextly, the Hon'ble Supreme Court had to consider the other special features in respect of trials to be conducted as per the provisions of the SCA also. The Hon'ble Supreme Court took note of the speech given by the Home Minister on the floor of the Parliament when the bill for the SCA was introduced and the preamble of the Act and then culled out the following special features: (1) That the Act makes a distinct departure from the trial of ordinary offences by criminal courts in that the trial of the offences is entrusted to a very high judicial (dignitary who is a sitting Judge of the High Court to be appointed by the Chief Justice concerned on the recommendations of the Chief Justice of India. This contains a built-in safeguard and a safety valve for ensuring the independence of judiciary on the one hand and a complete fairness of trial on the other. In appointing the Special Judge, the Government has absolutely no hand or control so that the Special Judge is appointed on the recommendations of the highest judicial authority in the country, viz., the Chief Justice of India. This would naturally instil great confidence of the people in the Special Judge who is given a very elevated status. (2) Secondly, whereas in ordinary cases the matter is straightaway brought to the court after the investigation is completed, the Act requires certain preliminary safeguards before the matter is placed before the Special Court. In the first place, the allegations made against the accused have been scrutinised by https://hcservices.ecourts.gov.in/hcservices/ a High Powered Commission, presided over by Mr. Justice Shah, a retired Judge of the Supreme Court, as indicated by the Home Minister in his speech while introducing the Bill. Secondly, the matter does not rest there but a thorough investigation has been made not by the ordinary police but by the C.B.I. (3) Thirdly, after the investigation is made, the matter is placed before the Central Government which makes a declaration after being satisfied about existence of prima facie evidence of the commission of an offence alleged to have been committed by an accused. It is only after such a declaration is made that the matter is brought before the Special Court, designated by the Central Government. It thus appears that before a case to the Court a three-tier system has already been adopted which eliminates any possibility of miscarriage of justice or any element of unfairness or foul play. Further- more, although the Special Judge functions as a Sessions Judge for the purposes of the trial and follows a procedure provided for the trial of warrant cases, the fact remains that the Judge is a high judicial dignitary, being a sitting Judge not subordinate in any way to the Government. The Special Judge appointed, therefore, is a very experienced judicial officer who must be presumed to act in an extremely just and equitable manner keeping himself alive to the rules of natural justice and fair play. [Emphasis supplied] 15. The Hon'ble Supreme Court in paragraphs 14, 17 and 18 has observed as follows:- "14. Although these judgements were rendered in explaining the scope of Art. 14 of the Constitution of India but the principle deduced from these decisions applies to the present case in order to show that fairness of the trial has to be presumed when a person of the status of a sitting High Court Judge tries the case against an accused. Another important feature of the Act is that unlike other cases, an appeal against the decision of a Special Court lies to the highest Court of the country, namely, the Supreme Court, and the appeal lies as a matter of right both on https://hcservices.ecourts.gov.in/hcservices/ facts and on law. In other words, any judgement rendered by the Special Court is to be examined by the highest court of the country which is bound to consider the diverse aspects of the materials, evidence and findings given by the Special Court without being fettered by any legal or factual restriction. Thus, an analysis of the aforesaid features clearly reveals that no accused can have any genuine grievance against the fairness of the trial that is meted out to him by the Act. If any error of fact or law is committed by the Special Judge that can be corrected by this Court." [Emphasis supplied] ... .... .... ... ... ... 17. The aforesaid observations, therefore, clearly show that the heart and soul of the Act is speedy disposal and quick dispatch in the trial of these cases. It is, therefore, manifest that the provisions of the Act must be interpreted so as to eliminate all possible avenues of delay or means of adopting dilatory tactics by plugging every possible loophole in the Act through which the disposal of the case may be delayed. Indeed if this be the avowed object of the Act, could it have been intended by the Parliament that while the Criminal Procedure Code gives a right of revision against an order which, though not purely interlocutory, is either intermediate or quasi final, the Act would provide a full fledged appeal against such an order? If the interpretation as suggested by the counsel for the appellant is accepted, the result would be that this Court would be flooded with appeals against the order of the Special Court framing charges which will impede the progress of the trial and delay the disposal of the case which is against the very spirit of the Act. We are of the opinion that it was for this purpose that a non-obstante clause was put in S.11 of the Act so as to bar appeals against any interlocutory order whether it is of an intermediate nature or is quasi final. The Act applies only to specified number of cases which fulfil the conditions contained in the preliminary provisions of the Act and in view of its special features, the liberty of the, subject has been fully safeguarded by providing a three-tier system as indicated above. https://hcservices.ecourts.gov.in/hcservices/ "18. ....... As the non-obstante clause expressly excludes the provisions of the Code of Criminal Procedure, we cannot call into aid the provisions of S. 397(2) of the Code which would amount to frustrating the very object which S.11 seeks to advance." ... ... ... ... ... "....... When the Act excludes the Code then it is obvious that it excludes an appeal against any type of an interlocutory order. The absence of revision is more than compensated by giving the accused a right of an appeal against any judgement or order of the Special Judge as of right and open on facts and law. There is one more reason why the power of revision has been excluded. The trial is held by a sitting High Court Judge who also would have the power of revision if be was sitting in a High Court. In these circumstances, it must be presumed that whenever a Special Judge passes any interlocutory order or an inter mediate order like framing of charges, he would do so only with full and complete application of his mind and considering the various principles and guidelines indicated by this Court in several decisions, some of which have been discussed above, and, therefore, it would not be in keeping with the dignity, decorum and status of the Special Judge to provide for an appeal even against such an order which he is supposed to pass with full application of mind and due deliberation." [Emphasis supplied] 16. To sum up, while interpreting the non-obstante clause in Section 11 (2) of the SCA, the Hon'ble Supreme Court primarily considered the following special features in SCA:- (i) In respect of trial of ordinary offences, the matter is straightaway brought to the Court after investigation is completed; whereas in SCA, the allegations made against the accused were scrutinised by a high powered commission presided over by a retired Judge of the Supreme Court. (ii) The investigation was made not by the ordinary police, but, by the C.B.I. (iii) After investigation is made, the matter is placed before the Central Government which makes a declaration U/s.5 of the Act after being satisfied about the existence of prima facie case for commission of an offence. (iv) Thus, there is a three-tier system which eliminates any possibility of miscarriage of justice or any element of unfairness https://hcservices.ecourts.gov.in/hcservices/ or foul play. (v) The Special Judge is a high judicial dignitary being a sitting Judge of the High Court not subordinate in any way to the Government. Such Special Judge is a very experienced judicial officer who must be presumed to act in an extremely just and equitable manner keeping himself alive to the rules of natural justice and fair play. (vi) Unlike the other cases, an appeal against an order lies only to the highest court of the country viz., Supreme Court. (vii) Appeal against an order passed by the Special Court lies as a matter of right and both on facts and on law. (viii) There is total exclusion of revisional power under Section 397 of the Code even against final or intermediate orders. 17. Considering all the above special features, the Hon'ble Supreme Court has made the following observations:- "14. ........ Thus, an analysis of the aforesaid features clearly reveals that no accused can have any genuine grievance against the fairness of the trial that is meted out to him by the Act. If any error of fact or law is committed by the Special Judge that can be corrected by this Court." 18. It is because of the above said special features of the SCA, while interpreting the non-obstante clause, besides having taken note of the object of the SCA also, the Hon'ble Supreme Court in V.C.Shukla's case held that the expression 'interlocutory order' as found in Section 11(2) of the SCA should be given it's natural meaning only. To put it otherwise, an order declining to discharge an accused should be construed only to be an interlocutory order. 19. In Dharambir Khattar's case, the Delhi High Court has held that because there is a similar non-obstante in Section 19 (3)(c) of the PCA, the expression 'interlocutory order' as found in the said provision should also have the same restricted meaning as was given in V.C.Shukla's case in respect of Section 11 (1) of the SCA. In my considered opinion, the said conclusion arrived at by the learned Judge does not persuade me for the following reasons:- (1) Section 11 of the SCA and Section 19(3)(c) of the PCA cannot be treated as in pari materia with each other inasmuch as Section 11(1) of the SCA provides for appeal; whereas Section 19 (3)(c) of the PCA deals with revision. It is needless to point out that the appellate power is an enlarged power; whereas the revisional power is a very narrow power. As I have already extracted supra, in V.C.Shukla's case, the Hon'ble Supreme Court has made it very clear that under the SCA, an appeal lies as of right both on facts and law. But, it is not so in the matter of revision under the Code of Criminal Procedure. https://hcservices.ecourts.gov.in/hcservices/ (2) There are safeguards in the SCA to ensure fairness in trial such as a commission presided over by a retired Supreme Court Judge go into the facts; the Central Government makes a declaration and the investigation is done by the C.B.I. Similar safeguards are not available in PCA so as to ensure fairness in trial. (3) The trial is conducted by a high judicial dignitary viz., a sitting judge of the High Court who is an experienced judicial officer; whereas the Special Judge under the PCA is either in the cadre of a Subordinate Judge or Sessions Judge. (4) Since the Special Judge under the SCA himself is a sitting Judge of the High Court, the provisions of Sections 397 and 401 of the Code were totally excluded under the SCA, but, in the PCA, there is no such total exclusion of such revisional power. 20. Thus, there are lot of dissimilarities between these two enactments and so, I am at loss to find any reason to agree with the Delhi High Court to hold that the provisions of the PCA and SCA are in pari materia. 21. It is the settled rule of interpretation that when there is a conflict between two enactments, the non-obstante clause to the extent of such conflict may make one Act to have over-riding effect on the other. In this regard, I may refer to the judgement of the Hon'ble Supreme Court in Union of India v. G.M.Kokil and others, AIR 1984 SC 1022 wherein the Hon'ble Supreme Court has held that a non-obstante clause is a legislative device which is usually employed to give over-riding effect to certain provision over some other provision that may be found either in the same enactment, that is to say, to avoid the operation and effect of all contrary provisions. 22. Indisputably, Section 11 of the SCA is in conflict with Section 397 of the Code. The said conflict stands resolved by non-obstante clause in Section 11(2) of the SCA. As per the law laid down by the Hon'ble Supreme Court in G.M.Kokil's case cited supra, the said non-obstante clause in Section 11(2) of the Act gives over-riding effect for the SCA over the Code of Criminal Procedure. But, I find no such conflict between Section 19(3)(c) of the PCA and Section 397 of the Code. As a matter of fact, both the provisions speak of a common factor viz., they provide that no revision shall lie against an interlocutory order. Section 19(3) (c) of the PCA does not completely exclude the applicability of Section 397 of the Code as it has been done by SCA in Section