Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 1 of 61 IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.REV.P.340/2008 & CRL.M.A. 7751/2008 Reserved on : 7th February 2009 Date of decision: May 5th 2009 DHARAMBIR KHATTAR ..... PETITIONER Through:Mr.S.K.Rungta with Ms.Pratiti Rungta, and Dr.Rekha Dhakar, Advocates. versus CENTRAL BUREAU OF INVESTIGATION ..... RESPONDENT Through :Mr.Dayan Krishnan, Special Public Prosecutor with Mr.Gautam Narayan, Advocate. CRL.REV.P.371/2008 & CRL.M.A. 8085/2008 PRADEEP KAPUR & ANR. ..... PETITIONERS Through : Ms.Neelam Grover, Advocate. versus CENTRAL BUREAU OF INVESTIGATION ..... RESPONDENT Through : Mr.Dayan Krishnan, Special Public Prosecutor with Mr.Gautam Narayan, Advocate. CRL.REV.P.380/2008 SUBHASH SHARMA ..... PETITIONER Through :Mr.S.K.Saxena with Ms.Manisha Sharma, Advocates. versus CENTRAL BUREAU OF INVESTIGATION ..... RESPONDENT Through : Mr.Dayan Krishnan, Special Public Prosecutor with Mr.Gautam Narayan, Advocate. CRL.REV.P.456/2008 & CRL.M.A. 9662/2008 VED PRAKASH ..... PETITIONER Through : Mr.H.P.Sharma, Advocate. versus Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 2 of 61 CENTRAL BUREAU OF INVESTIGATION ..... RESPONDENT Through : Mr.Dayan Krishnan, Special Public Prosecutor with Mr.Gautam Narayan, Advocate. CORAM: HON'BLE DR. JUSTICE S. MURALIDHAR J U D G E M E N T 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in Digest? Yes S. MURALIDHAR, J. 1. These four Criminal Revision Petitions under Section 397 read with Section 401of the Code of Criminal Procedure, 1973 (CrPC) are directed against order on charge dated 8th April, 2008 and an order dated 16th April, 2008 passed by the learned Special Judge, Central Bureau of Investigation (CBI) framing charges against each of the petitioners, inter alia, for the offences under Section 120-B Indian Penal Code (IPC) read with Sections 8 and 12 of the Prevention of Corruption Act, 1988 (PCA), under Section 120B IPC read with Sections 7, 8, 13(2), 13(1) (d) PCA and for some of the accused for the substantive offence under Sections 13 (2) read with 13 (1) (d) PCA. Background of the Lift Case 2. The present batch of four revision petitions arise from a common charge sheet filed by the CBI in RC No. 25(A)/2003-CBI/ACB/New Delhi. This concerns the unauthorised construction of a lift at a commercial complex at Mahavira Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 3 of 61 Towers, IIIrd Floor, Paschim Vihar and is hereafter referred to as the `lift case‟. The FIR in this case was registered on 3rd April 2003 under Sections 7, 13(2) read with 13(1) (d) PC Act. In this case Subhash Sharma („Sharma‟), the former Vice-Chairman of the Delhi Development Authority (DDA) is accused No.1, Dharambir Khattar („Khattar‟) who allegedly worked as a middleman between public servants and private individuals is accused No.2, Ved Prakash Kaushik an individual and co-conspirator who helped in liaising with the DDA is accused No.3, Pradeep Kapur husband of Kavita Kapur, a partner of a firm M/s APY Hoteliers and Developers is accused No.4. Anil Wadhwa and Yashpal Manocha, the other two partners of the said firm are accused Nos. 5 and 6 respectively. The gist of the case is that the accused acted in criminal conspiracy to commit the aforementioned offences whereby Subhash Sharma used his official position to prevent the demolition of the unauthorised construction of the lift in the commercial complex and subsequently to get it authorized. 3. The charge sheet in the Lift Case was filed on 15th July 2004. According to the CBI, the facts and evidence gathered during the investigation revealed disclosed the commission by the accused of offences punishable under Section 120B IPC read with Sections 7, 8, 13(2) read with 13(1) (d) and Section 15 of PCA and substantive offences against some of them. By the impugned order on charge dated 8th April 2008, after discussing the materials gathered by the CBI, the learned Special Judge, CBI discharged accused Yashpal Manocha and held that charges for the aforementioned offences should be framed against the remaining accused. By the subsequent order dated 16th April 2008 the learned Special Judge framed charges against each of the petitioners for the Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 4 of 61 aforementioned offences. 4. The submissions of Mr.S.K.Rungta, learned Advocate on behalf of Dharambir Khattar, Mr.S.K.Saxena, learned Advocate on behalf of Subhash Sharma, Mr.H.P.Sharma, learned Advocate on behalf of Ved Prakash Sharma, Ms.Neelam Grover, learned Advocate on behalf of Pradeep Kapur and Anil Wadhwa and Mr.Dayan Krishnan, learned Special Public Prosecutor appearing for CBI have been heard. Preliminary objection of the CBI as to maintainability 5. A preliminary objection has been raised by the CBI about the maintainability of these revision petitions. It is submitted that in terms of Section 19 (3) (c) of PCA, no Court can exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings by the trial court. It is submitted that an order holding that charges are required to be framed against the accused and an order framing charges passed by the Special Court under the PCA are interlocutory orders against which no revision would lie to the High Court. 6. It is submitted that that while interpreting a similarly worded provision, viz., Section 11(1) of the Special Courts Act 1979 (SCA), a Bench of four Judges of Supreme Court in V.C.Shukla v. CBI (1980) Supp SCC 92 by a 3:1 majority held that an order framing charges against the accused was not a final order but an interlocutory one and, therefore, no appeal would lie against such order to the Supreme Court. A comparison is also drawn with a similarly worded provision, Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 5 of 61 Section 34 of the Prevention of Terrorism Act 2002 (POTA) which was interpreted in State v. Navjot Sandhu (2003) 6 SCC 641 by the Supreme Court. It was held that in terms of the said provision an interlocutory order of the Special Court was not appealable to the High Court. It was further held that the High Court could also not exercise its powers under Articles 226 and 227 of the Constitution of India or Section 482 CrPC to entertain a petition challenging an interlocutory order of the Special Court under the POTA. 7. According to learned counsel for the CBI, the opening words of Section 19(3) PCA indicate that it is a non-obstante clause and, therefore resort cannot be had to either the CrPC or Section 22 or Section 27 of the PCA to justify the High Court entertaining a revision petition. He places reliance on the decision of the Supreme Court in Satya Narayan Sharma v. State of Rajasthan (2001) 8 SCC 607 where in the context of a stay order passed by the Special Court under the PCA, the scope of Section 19 (3) (c) was explained and it was held that no stay of the proceedings before the Special Court could be granted even by the High Court by virtue of the said provision. Reliance is also upon the judgment of a Division Bench of this Court in Bachraj Bengani v. State 110(2004) DLT 233 where it was held that an appeal could not be filed in terms of Section 34 POTA against an order framing charges. It was held that even a revision petition would not lie in the High Court. Submissions of the petitioners on maintainability 8. The submissions of the learned counsel for the CBI have been countered by learned counsel for the petitioners accused not only in the present batch of cases Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 6 of 61 but also by counsel who appeared in the connected batch of cases which were heard along with the present case. While arguments in the lift case were addressed both on the issues of maintainability as well as on merits, the arguments in the connected cases were addressed only on the issue of maintainability. 9. Learned counsel for the accused submit that the judgment in V.C.Shukla (supra) has no application to the present cases since it was rendered in the context of Section 11 SCA which is not, according to them, in pari materia Section 19 (3) (c) PCA. Likewise, it is submitted that the wording of Section 34 POTA is different. It bars appeals and revisions against interlocutory orders as understood in the context of the POTA. It is submitted that as far as the PCA is concerned, Section 19 deals essentially with the grant of sanction to prosecute and the remedy available to a person aggrieved by an order granting sanction. Thus, the scope of Section 19 (3) (c) PCA cannot be expanded to cover all orders passed by the trial court at the various stages of the trial. Referring to Section 22 and 27 of the PCA, it is submitted that each of these provisions has to be given full effect and the revision petition is, therefore, maintainable against an order on charge or an order framing charges passed by the Special Court under the PCA. 10. Counsel for the petitioners submit that in any event an order on charge or an order framing charge passed by the Special Court under the PCA is not an interlocutory order. Since the provisions of the CrPC apply to the Special Court Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 7 of 61 under the PCA, the nature of the order on charge has to be understood in the context of the CrPC. Such an order passed by the criminal court under the CrPC has been held by the Supreme Court in Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551 to be a final order that is revisable under Section 397 CrPC. It is submitted that Section 19 (3) (c) PCA is not intended to curtail the revisional power of the High Court, which in any event has been preserved by Section 27 PCA. Reliance is placed by learned counsel for the petitioners on the judgments in Jarnail Singh v. State of Rajasthan 1992 Cr LJ 810 and two judgments of the learned Single Judge of the Madras High Court in State v. Mrs. Renukadevi 1999 Crl LJ 2955 and V.R. Nedunchezhian v. State 2000 Crl LJ 976. Comparison of the statutes 11. The contentions of the learned counsel for the CBI about the similarity of the provisions contained in Section 11 SCA, Section 34 POTA and Section 19 (3) (c) PCA requires to be first dealt with. The said provisions read thus: “The Special Courts Act, 1979 11. Appeal (1) Notwithstanding anything in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special 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 judgment, sentence or order of a Special Court. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of any judgment sentence or order of a Special Court: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for non preferring the appeal within the period of thirty days. (emphasis supplied) Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 8 of 61 The Prevention of Corruption Act, 1988 19. Previous sanction necessary for prosecution.- (1)xxxxxxxxxx (2)xxxxxxxxxx (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) No finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether 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. (emphasis supplied) 27. Appeal and revision.-Subject to the provisions of this Act, the High Court may exercise, so far as they may be applicable, all the powers of appeal and revision conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a High Court as if the court of the Special Judge were a court of Session trying cases within the local limits of the High Court. Prevention of Terrorism Act, 2002 34. Appeal.- (1)Notwithstanding anything contained in the Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 9 of 61 Code, an appeal shall lie from any judgment, sentence or oral, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. Explanation.-For the purposes of this section, “High Court” means a High Court within whose jurisdiction, a Special Court which passed the judgment, sentence or order, is situated. (2)Every appeal under sub-section (1) shall be heard by a Bench of two Judges of the High Court. (3)Except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order including an interlocutory order of a Special Court. (4)Notwithstanding anything contained in sub-section (3) of Section 378 of the Code, an appeal shall lie to the High Court against an order of the Special Court granting or refusing bail. (5) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.” (emphasis supplied) 12. A bare perusal of the above provisions reveals their apparent similarity. While Section 11 SCA and Section 34 POTA bar appeals against an interlocutory order of the trial court, Section 19 (3) (c) PCA prohibits the entertaining of revision petitions by the High Court against interlocutory orders of the Special Court. The second similarity is that each of the provisions begins with the non obstante clause „Notwithstanding anything contained in the Code of Criminal Procedure.‟ Clearly the said provision will prevail over any contrary or inconsistent provision in the CrPC. A look at Section 27 PCA shows that it is a provision concerning the revisional power of the High Court and it has been made „subject to the other provisions of the Act‟. Therefore Section 27 PCA is subject to Section 19 (3) PCA which in turn is unaffected by any contrary provision in the CrPC. The third similarity is that in none of the statutes is there a definition of the words `interlocutory order.‟ The said words are not defined Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 10 of 61 even under the CrPC. This Court is therefore unable to accept the submission of the learned counsel for the accused that Section 11 SCA and Section 34 POTA are not in pari materia Section 19 (3) PCA. Is the order on charge and an order framing charge under the PCA an interlocutory order? 13. The principal question that arises in the context of the preliminary objection is whether in terms of Section 19 (3) (c) PCA, an order on charge and an order framing charge is an interlocutory order? In V.C.Shukla the Supreme Court was called upon to answer a similar question in the context of a similarly worded Section 11 SCA. Under the SCA the trial court was a Special Court presided over by a Judge of the High Court. The question was whether an appeal would lie to the Supreme Court against an order framing charge passed by the Special Court under the SCA. The question was answered in the negative by a 3:1 majority, with Fazl Ali J., writing the majority opinion for himself and Sen. J. with Desai J. writing a separate concurring opinion. Singhal, J. dissented. 14. The sheet anchor of the argument on behalf of the appellant in V.C.Shukla was that the SCA “being a statute in pari materia the Criminal Procedure Code, the expression used and the meaning of the words employed in the Act must have the same meaning and signification as used in the various provisions of the Criminal Procedure Code of 1973…” It was further submitted in that case, as it is here, that “on a proper construction of Section 11 of the Act, the word „interlocutory order‟ has been used exactly in the same sense as the same word has been used in Section 397(2) of the Code.” Fazl Ali, J. for the majority (with Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 11 of 61 Desai, J. concurring) first went on to discuss the decisions in Amar Nath v. State of Haryana (1977) 4 SCC 137, Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551 and S. Kuupuswami Rao v. King AIR 1949 FC 1 and observed that (SCC, p.104): “the term „interlocutory order‟ used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in Section 397(3) of the Code would apply to a variety of cases coming up before the courts not only being offences under the Penal Code but under numerous Acts” and that “the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi-final.” However, it qualified this by saying: “The same, however, in our opinion, could not be said of the Special Courts Act which was meant to cover only specified number of crimes and criminals and the objective attained was quickest despatch and speediest disposal.” The majority then observed (SCC, p.106): “we are in complete agreement with the principle, involved in the cases discussed above, that an order framing charges against an accused undoubtedly decides an important aspect of the trial and it is the duty of the court to apply its judicial mind to the materials and come to a clear conclusion that a prima facie case has been made out on the basis of which it would be justified in framing charges. The question, however, with which we are concerned in the present appeal is essentially different. The order of the Special Judge framing the charge is a reasoned order and not a mechanical or a casual order so as to vitiate the order of the Special Judge. In the instant case, we are concerned with a much larger question viz. whether or not the term “interlocutory order” used in Section 11(1) of the Act should be given the same meaning as this very term appearing in Section 397(2) of the Code. In other words, the question is whether Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 12 of 61 Section 11(1) of the Act tightens or widens the scope of the term “interlocutory order” as contained in Section 397(2) of the Code and as interpreted by this Court in the decisions, referred to above.” (emphasis supplied) 15. While dealing with the said question, the objects of the SCA were examined and it was concluded that (SCC, p. 111): “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 Section 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 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.” 16. Next, the law on the effect of the non obstante clause in Section11 SCA, “notwithstanding anything in the Code..” was analysed. The judgment of the Supreme Court in Aswini Kumar Ghosh v. Arabinda Bose AIR 1952 SC 369 Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 13 of 61 and in particular the following opinion of Patanjali Sastri, CJ was noticed (SCC, p. 113): “(1) We should exclude the statute concerned from consideration; in the instant case „The Code‟. (2) We should construe the words used according to their natural and ordinary meaning instead of referring to the statute which is sought to be excluded.” 17. Next, the interpretation of the words “interlocutory order” independent of the interpretation of those words in the context of Section 397 CrPC, was taken up. In doing so it was noticed that there was a species of an “intermediate order.” It was observed in para 24 (SCC, p.115): “the essential attribute of an interlocutory order is that it merely decides some point or matter essential to the progress of the suit or collateral to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the judgment. Untwalia, J. in the case of Madhu Limaye v. State of Maharashtra clearly meant to convey that an order framing charge is not an interlocutory order but is an intermediate order as defined in the passage, extracted above, in CORPUS JURIS SECUNDUM, Vol. 60. We find ourselves in complete agreement with the observations made in CORPUS JURIS SECUNDUM. It is obvious that an order framing of the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term “interlocutory order” as used in Section 11(1) of the Act. WHARTON’S LAW LEXICON (14th Edn., p. 529) defines interlocutory order thus: “An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties.” Thus, summing up the natural and logical meaning of an Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08 Page 14 of 61 interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings