Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 1 of 55 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.Rev.P. 293/2006 % Reserved on : 18th December, 2009 Pronounced on: 6th January, 2010 # R.C. Sabharwal ..... Revisionist ! Through: Mr. Harish K. Sharma, Adv. versus $ Central Bureau of Investigation ..... Respondent ! Through: Mr. Vikas Pahwa, ASC with Mr. Biswajit Kumar Patra, Adv. Crl.Rev.P. 294/2006 # Puneet Sabharwal ..... Revisionist ! Through: Mr. Harish K. Sharma, Adv. versus $ Central Bureau of Investigation ..... Respondent ! Through: Mr. Vikas Pahwa, ASC with Mr. Biswajit Kumar Patra, Adv. Crl.Rev.P. 352/2006 # Rekha Anand ..... Petitioner ! Through: Mr. Tripurari Rai, Adv. versus $ Central Bureau of Investigation ..... Respondent ! Through: Mr. Vikas Pahwa, ASC with Mr. Biswajit Kumar Patra, Adv. Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 2 of 55 Crl.Rev.P. 580/2006 # Shafiquur Rehman Khan ..... Petitioner ! Through: Mr. Islam Khan, Adv. versus $ Central Bureau of Investigation ..... Respondent ! Through: Mr. Vikas Pahwa, ASC with Mr. Biswajit Kumar Patra, Adv. W.P. (Crl.) No. 1419/2009 # Rajeshwar Bansal & Ors. ..... Petitioners ! Through: Mr.Mohit Mathur with Mr. D.S.Kohli, Advs. versus $ State (through CBI) ..... Respondent ! Through: Mr. Vikas Pahwa, ASC with Mr. Biswajit Kumar Patra, Adv. * CORAM: HON'BLE MR. JUSTICE V.K. JAIN 1. Whether the 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 the Digest? Yes : V.K. JAIN, J. 1. These petitions involves a common questions of law as to (i) whether an order directing framing of charge or framing charge, in a case attracting the provisions of Prevention of Corruption Act, 1988 is an interlocutory order and (ii) whether Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 3 of 55 such an order can be challenged by way of (a) Revision Petition or (b) petition under Section 482 of the Code of Criminal Procedure or (c) petition under Article 226/227 of the Constitution. 2. Section 19(3)(c) of the Prevention of Corruption Act provides as under: ―(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.‖ 3. In ‘Dharambir Khattar & Ors vs. CBI’ 2009 IV AD (Delhi) 657, four criminal revision petitions directed against the Order on Charge, passed by the learned Special Judge under Section 120B of the IPC, read with various provisions of Prevention of Corruption Act, 1988, were filed by the accused persons, against whom charges were framed. Relying upon the provisions of Section 19(3)(c) of the Prevention of Corruption Act, a preliminary objection was raised by CBI disputing maintainability of the petitions. In support of its contention, CBI referred to the decisions of the Hon‘ble Supreme Court in ‗State vs. Navjot Sandhu, 2003 (6) SCC 641 and ‗Satya Narayan Sharma vs. State of Rajasthan‘ AIR 2001 (8) SCC 607. It also placed reliance upon the decision of the Hon‘ble Supreme Court in ‘V.C. Shukla vs. Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 4 of 55 CBI’ 1980 (Suppl.) SC 921 in support of the contention that Order on Charge in a corruption case is an interlocutory order. 4. After examining the provisions of Section 19(3)(c) of Prevention of Corruption Act, 1988, Section 11 of Special Courts Act, 1979 and Section 34 of Prevention of Terrorism Act, the Court was of the view that they are pari materia with each other and held that the Order on Charge is an interlocutory order. It was further held that in view of the embargo placed by Section 19(3)(c) of the Prevention of Corruption Act, no revision petition would be maintainable in the High Court against Order on Charge or an order framing charge, passed by the Special Judge. 5. During the course of arguments, it was contended before this Court that notwithstanding the provision of Section 19(3)(c) of the Act, the power of the High Court under Article 226 and 227of the Constitution and Section 482 of the Code of Criminal Procedure, remain untrammeled and could be invoked in appropriate case. The argument was rejected, holding that it does not survive after the pronouncement of the Supreme Court in Navjot Siddhu (supra) and Satya Narayan Sharma’s case (supra). 6. The following contentions have primarily been made by the learned counsels for the petitioners (i) an order framing charge or directing framing of charge even in a case attracting the provisions of Prevention of Corruption Act, 1988 is not an Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 5 of 55 interlocutory order and therefore revision against such an order is not barred and the judgment of this Court in Dharambir Khattar’s case (supra) holding therein that a Revision Petition against such an order is not maintainable needs reconsideration by a larger Bench; (ii) the power of this Court under Section 482 of the Code of Criminal Procedure have not been taken away by Section 19(3)(c) of Prevention of Corruption Act and in suitable cases such powers can be invoked, when an order framing charge or directing framing of charge in a corruption case is challenged, by a person aggrieved from such an order; (iii) the constitutional power of this Court under Article 226 and 227 of the Constitution have not been and cannot be taken away by a statutory enactment, including Section 19(3) (c) of Prevention of Corruption Act, 1988. This is also their contention that the observations of this Court in the case of Dharambir Khattar (supra) to the effect that neither powers under Section 482 of the Code of Criminal Procedure nor the power under Article 226 and 227 of the Constitution can be invoked in such cases are by way of obiter and do not constitute the ratio decidendi of the case. Interlocutory Order 7. The term ‗interlocutory order‘ has not been defined in the Code of Criminal Procedure. Ordinarily, the expression ‗interlocutory order‘ is taken to mean as a converse of the term Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 6 of 55 ‗final order‘. A judgment or order, which determines the principal matter in question, is generally termed as ‗final‘. Normally, an order which does not deal with the final rights of the parties, is made before the judgment, gives no final decision on the matters in dispute, but is merely on a matter of procedure, is termed as ‗interlocutory‘. Though not conclusive of the main dispute an interlocutory order may be conclusive as to the subordinate matter with which it deals. In S. Kuppuswami Rao v. The King, 1947 FCR 180: AIR 1949 FC 1, the Federal Court referred to the following observations made in Salaman vs. Warner (1891) 1 QB 734: "If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute, but, if given in the other, will allow the action to go on, then I think it is not final, but interlocutory." 8. The expression ‗interlocutory order‘ used in Section 397 of the Code of Criminal Procedure came up for consideration before the Hon‘ble Supreme Court in Amar Nath vs. State of Haryana and Anr.(1977) 4 SCC 137.The Hon‘ble Supreme Court, inter alia, observed as under: ―It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 7 of 55 temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the re-visional jurisdiction of the High Court.‖ Applying the aforesaid proposition of law, the Hon‘ble Supreme Court held that the order, whereby the appellants were summoned as accused, in the facts and circumstances of the case before it, was not an interlocutory order, since it was only with the passing of such an order that the criminal proceedings started and the question of the appellants being put up for trial arose for the first time. It was noticed by the Hon‘ble Court that a valuable right of the appellants had been taken away by the Magistrate, in passing an order prima facie in sheer mechanical fashion, without applying his mind. It was observed that had the appellants not been summoned, they would not have faced trial at all, by compelling them to face a trial without proper Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 8 of 55 application of mind, and such an order could not be held to be an interlocutory matter. In K.K. Patel & Anr. Vs. State of Gujarat & Anr. 2000 (6) SCC 195, the Hon‘ble Supreme Court, inter alia, observed as under: ―The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.‖ 9. The statement of law enunciated in the case of Amar Nath (supra)again came up for consideration before the Hon‘ble Supreme Court in Madhu Limaye vs. The State of Maharashtra’ (1977) 4 SCC 551. The Hon‘ble Supreme Court, inter alia, observed as under: ―On the one hand, the Legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the Legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but, yet it may not be an interlocutory order—pure or Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 9 of 55 simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in Sub- section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-Section (2) of Section 397. In our opinion it must be taken to be an order of the type falling in the middle course.‖ In this case, charge was made against the appellant under Section 500 of IPC. The appellant challenged the order of Sessions Judge in a Revision Petition before Bombay High Court. The Revision Petition was rejected on the ground that it was not maintainable in view of the provisions contained in sub-Section (2) of Section 397 of the Code. 10. If the interpretation given by the Hon‘ble Supreme Court to an interlocutory order in the case of Madhu Limaye is applied, an order framing charge or directing framing of charge cannot be said to be an interlocutory order. Therefore, the question Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 10 of 55 that comes up for consideration is as to whether the term ‗interlocutory order‘, as used in Section 19(3) (c) of Prevention of Corruption Act, needs to be given a meaning different from the meaning given to it by the Hon‘ble Supreme Court in the context of the Code of Criminal Procedure. 11. The provisions of Section 19(3)(c) of Prevention of Corruption Act, to the extent it provides that no Court shall exercise the power of revision in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings are pari materia with Section 397 (2) of the Code of Criminal Procedure. The Prevention of Corruption Act was enacted in the year 1988, much after the Code of Criminal Procedure, 1973 came into force and the provisions of Section 19(3)(c) have been given overriding effect over the provisions contained in Code of Criminal Procedure. Had the intention of the Legislature been to give the same meaning to the term ‗interlocutory order‘ in Section 19(3)(c) of Prevention of Corruption Act, as had been given to this term in the context of Section 397 (2) of the Code, there would have been no necessity of incorporating a specific provision to this effect in Prevention of Corruption Act. Even in the absence of such a provision in Prevention of Corruption Act, revisional powers could not have been used in respect of an interlocutory order, in view of the embargo placed by Section 397(2) of the Code. The Acts of the Legislature are not intended to be superfluous, and the Legislature is presumed to be aware Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 11 of 55 and conscious of all other statutory enactments when it passes a particular legislation. Hence, if the Legislature, despite pre- existence of similar provision in the Code of Criminal Procedure, chose to make a specific provision in Prevention of Corruption Act so as to take interlocutory orders out of the purview of revisional jurisdiction of the Court, it could not have intended to give same meaning to the expression ‗interlocutory order‘ as had been given to this term in the context of the Section 397(2) of the Code. It would also be pertinent to note here that the decision of the Hon‘ble Supreme Court in the case of Madhu Limaye (supra), interpreting the expression ‗interlocutory order‘ in the context of Section 397(2) of the Code, had come many years before Prevention of Corruption Act was enacted in the year 1988. Therefore, the legislative intent obviously was to give a different meaning to this expression in the context of Prevention of Corruption Act and that is why the provisions of Section 19(3)(c) were given overriding effect over the provision of the Code of Criminal Procedure. Therefore, I am of the considered view that the term ‗interlocutory order‘, as used in Section 19(3)(c) of Prevention of Corruption Act, cannot be given the same meaning as was given to it by the Hon‘ble Supreme Court in the case of Amar Nath (supra) and Madhu Limaye (supra). The meaning to be assigned to the expression ‗interlocutory order‘ in the context of Section 19(3)(c) of Prevention of Corruption Act has to be derived considering the Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 12 of 55 objective behind enactment of Prevention of Corruption Act, 1988, including the mischief which the Legislature intended to do away with by this enactment. This rule, known as ‗purposive construction‘, enables consideration of the following matter while construing an Act (i) what was the law before making of the Act; (ii) what was the mischief for which the earlier law did not provide; (iii) what is the remedy the Act has provided; (iv) what is the reason of the remedy. This rule requires the Court to adopt a construction which will suppress the mischief and advance the remedy. Before enactment of Prevention of Corruption Act, 1988, orders such as order framing charge or directing framing of charge having been held to be intermediate orders came within the purview of revisional jurisdiction of the High Court and resulted in delay of trial by filing revision petitions or petitions under Section 482 of the Code of Criminal Procedure, obtaining stay orders, summoning the Trial Court Record and thereby thwarting progress of the trial. This defect in the law was sought to be remedied by taking away the revisional jurisdiction of the High Court in respect of interlocutory orders and by prohibiting stay of proceedings on any ground whatsoever. The Court must, therefore, give such a construction as would advance the legislative intent, instead of perpetuating the defect which existed in the law before enactment of Prevention of Corruption Act, 1988. Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 13 of 55 12. One main object behind replacing Prevention of Corruption Act, 1947 by a new Act in the year 1988 was to expedite the proceedings initiated under Prevention of Corruption 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 Prevention of Corruption 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 19(3)(b)(c), the accused persons insist upon the record of the trial being summoned, contending that examination of the record would be necessary for the Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 14 of 55 purpose of deciding the petition filed by them. Section 22(d) of Prevention of Corruption Act, 1988 provides that where the powers under Section 397(1) 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 Crl.Rev.P. No. 293/2006, 352/2006 and 294/2006 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 held to be an interlocutory order, the inevitable result would be a flood of Revision Petitions challenging such orders, coupled with request Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 15 of 55 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 19(3)(c) of the Prevention of Corruption Act needs to be interpreted differently from the interpretation given to it in the context of Section 397 of the Code of Criminal Procedure. 13. With a view to expedite the trial of cases, involving offences under Prevention of Corruption Act 1988, the Legislature has made a number of changes in the regular procedure prescribed in the Code of Criminal Procedure 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 Prevention of Corruption 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 243(1) 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 22(b) of the Act provides that the proceedings shall not be adjourned or postponed merely on the ground that an Crl.Rev.P. 293,294,352,580 of 2006 and W.P.(Crl.) 1419/2009 Page 16 of 55 application under Section 397 has been made by a party to the proceedings. This provision was necessitated since it was experienced that after filing a petition under Section 397 of the Code of Criminal Procedure, 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 317 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