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REPORTABLE    

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION  

 CRIMINAL APPEAL NOS. 1375-1376 OF 2013  

   ASIAN RESURFACING OF ROAD AGENCY   PVT. LTD. & ANR.        …Appellants    

VERSUS    

CENTRAL BUREAU OF INVESTIGATION      …Respondent    

WITH    Criminal Appeal Nos.1383/2013, 1377/2013, 1382/2013, 1394/2013,  1384/2013, 1393/2013, 1386-1387/2013, 1385/2013, 1406/2013,  1396/2013, 1395/2013, 1391/2013, 1389/2013, 1388/2013, 1398/2013,  1397/2013, Special Leave Petition (Crl.) No.2610/2013, Criminal  Appeal Nos. 1390/2013, 1399/2013, 1402/2013, 1400/2013, 1401/2013,  1404/2013, 1403/2013, 1405/2013, Special Leave Petition (Crl.) Nos.  6835/2013, 6834/2013, 6837/2013, Criminal Appeal No.388/2014,  Special Leave Petition (Crl.) Nos.10050-10051/2013, 9652-9653/2013,  Criminal Appeal No. 234/2014, Special Leave Petition (Crl.) Nos.  5678/2014, 1451/2014, 1399/2014, 2508/2014, 2970/2014, 2507/2014,  2939/2014, 2977/2014, 4709/2014, 6372/2014, 6391/2014, 6691- 6692/2014 and 9363/2017.    

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J U D G M E N T    Adarsh Kumar Goel, J.    CRIMINAL APPEAL NOS.1375-1376 OF 2013    1. These appeals have been put up before this Bench of three  

Judges in pursuance of order of Bench of two Judges dated 9th  

September, 2013 as follows:  

“Leave granted.  

Learned counsel for the parties are agreed that  there is considerable difference of opinion  amongst different Benches of this Court as well  as all the High Courts.  Mr. Ram Jethmalani,  learned Senior Counsel appearing for petitioner  in Criminal Appeal arising out of Special Leave  Petition (Criminal)No.6470 of 2012 submits that  the subsequent decisions rendered by the two- judge Benches are per incuriam, and in conflict  with the ratio of law laid down in the  Constitution Bench decision in Mohanlal  Maganlal Thacker  v.  State of Gujarat [(1968) 2  SCR 685].    In this view of the matter, we are of the opinion  that it would be appropriate if the matters are  referred to and heard by a larger Bench.   Office is directed to place the matters before  the Hon’ble the Chief Justice of India for  appropriate orders.    In the meantime, further proceedings before  the trial Court shall remain stayed.”

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2. Since the question of law to be determined is identical in all  

cases, we have taken up for consideration this matter. In the light of  

answer to the referred question this as well as all other matters may  

be considered for disposal on merits by the appropriate Bench.  

 3. Brief facts first. F.I.R. dated 7th March, 2001 has been recorded  

with the Delhi Special Police Establishment: CBI/SIU-VIII/New Delhi  

Branch under Section 120B read with Sections 420, 467, 468, 471 and  

477A of IPC and Section 13(2) read with 13(1)(d) of the Prevention of  

Corruption Act, 1988 (the PC Act)  at the instance of Municipal  

Corporation of Delhi (MCD) against the appellant  and certain  

officers of MCD alleging causing of wrongful loss to the MCD by  

using fake invoices of Oil Companies relating to transportation of  

Bitumen for use in “Dense Carpeting Works” of roads in Delhi during  

the year 1997 and 1998.  

 4. After investigation, charge sheet was filed against the  

appellant and certain employees of MCD by the respondent-CBI  

before the Special Judge, CBI, New Delhi on 28th November, 2002.  

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The appellants filed an application for discharge with the Special  

Judge, CBI.   On 1st February, 2007, the Special Judge, CBI directed  

framing of the charges after considering the material before the  

Court.  It was held that there was a prima facie case against the  

appellant and the other accused.  The appellants filed Criminal  

Revision No. 321 of 2007 before the Delhi High Court against the  

order framing charge.  The Revision Petition was converted into Writ  

Petition (Criminal)No.352 of 2010.    

 5. Learned Single Judge referred the following question of law for  

consideration by the Division Bench:  

“Whether an order on charge framed by a  Special Judge under the provisions of  Prevention of Corruption Act, being an  interlocutory order, and when no revision  against the order or a petition under Section  482 of Cr.P.C. lies, can be assailed under Article  226/227 of the Constitution of India, whether or  not the offences committed include the  offences under Indian Penal Code apart from  offences under Prevention of Corruption Act?”  

   6. The learned Single Judge referred to the conflicting views taken  

in earlier two single Bench decisions of the High Court in Dharambir

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Khattar versus  Central Bureau of Investigation1and R.C. Sabharwal   

versus  Central Bureau of Investigation2.  It was observed :  

“However, since there are two views, one  expressed by the Bench of Justice Jain in R.C.  Sabharwal's (supra) case and one held by the  Bench of Justice Muralidhar in Dharamvir  Khattar's case (supra) and by this Bench, I  consider that it was a fit case where a Larger  Bench should set the controversy at rest.”   

    7. In Dharambir Khattar (supra), the view of learned Single Judge  

is as follows :  

“32. To conclude this part of the discussion it is  held that in the context of Section 19(3)(c) 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 V.C.  Shukla and Satya Narayan Sharma, it is held  that in terms of Section 19(3)(c) PCA, no  revision petition would be maintainable in the  High Court against order on charge or an order  framing charge passed by the Special Court.     33. Therefore, in the considered view of this  Court, the preliminary objection of the CBI to  

1     159 (2009) DLT 636  2     166(2010) DLT 362

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the maintainability of the present petitions is  required to be upheld....”  

8. In R.C. Sabharwal (supra), another learned Single Judge held  

that even though no revision may lie against an interlocutory order,  

there was no bar to the constitutional remedy under Articles 226 and  

227 of the Constitution.  At the same time, power under Section 482  

could not be exercised in derogation of express bar in the statute in  

view of decisions of this Court in CBI  versus  Ravi Shankar  

Srivastava3, Dharimal Tobacco Products Ltd. and Ors.  versus State of  

Maharashtra and Anr. 4 , Madhu Limaye  versus  The State of  

Maharashtra5, Krishnan  versus Krishnaveni6 and State  versus Navjot  

Sandhu7.   

9. It was observed :  

“37. In view of the authoritative  pronouncement of the Hon'ble Supreme Court  in the case of Navjot Sandhu (supra), coupled  with its earlier decisions in the case of Madhu  Limaye (supra), it cannot be disputed that  inherent powers of the High Court, recognized  

3     (2006)7 SCC 188  4     AIR 2009 SC 1032  5     (1977) 4 SCC 551  6     (1997) 4 SCC 241  7     (2003) 6 SCC 641

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in Section 482 of the Code of Criminal  Procedure, cannot be used when exercise of  such powers would be in derogation of an  express bar contained in a statutory  enactment, other than the Code of Criminal  Procedure. The inherent powers of the High  Court have not been limited by any other  provisions contained in the Code of Criminal  Procedure, as is evident from the use of the  words ?Nothing in this Code? in Section 482 of  the Code of Criminal Procedure, but, the  powers under Section 482 of the Code of  Criminal Procedure cannot be exercised when  exercise of such powers would be against the  legislative mandate contained in some other  statutory enactment such as Section 19(3)(c) of  Prevention of Corruption Act.”    "29. The fact that the procedural aspect as  regards the hearing of the parties has been  incorporated in Section 22 does not really  throw light on whether an order on charge  would be an interlocutory order for the  purposes of Section 19(3)(c) PCA. A collective  reading of the two provisions indicates that in  the context of order on charge an order  discharging the accused may be an order that  would be subject-matter of a revision petition  at the instance perhaps of the prosecution.  Since all provisions of the statute have to be  given meaning, a harmonious construction of  the three provisions indicates that the kinds of  orders which can be challenged by way of a  revision petition in the High Court is narrowed  down to a considerable extent as explained in  the case of Satya Narayan Sharma.”  

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Further, after referring to Nagendra Nath Bora v. Commissioner  

of Hills Division and Appeals, Assam, AIR 1958 SC 398; Nibaran  

Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC 1895;  

Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi and Anr., AIR  

1968 SC 222; Maruti Bala Raut v. Dashrath Babu Wathare and Ors.,  

(1974) 2 SCC 615; Babhutmal Raichand Oswal v. Laxmibai R. Tarte  

and Anr., AIR 1975 SC 1297; Jagir Singh v. Ranbir Singh and Anr., AIR  

1979 SC 381; Vishesh Kumar v. Shanti Prasad, AIR  1980 SC 892; Khalil  

Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwala, AIR  

1988 SC 184; M.C. Mehta v. Kamal Nath and Ors., AIR 2000 SC 1997  

and Ranjeet Singh v. Ravi Prakash, AIR 2004 SC 3892, it was observed  

:  

“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

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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 482 of Cr. P.C. would also not lie.  I am of the opinion that once this Court  holds  that a petition under Article 227 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 Article 227 of the Constitution 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 CBI, 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 Prevention of  Corruption cases, 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  Article 227 of the Constitution to re-appreciate  the evidence collected by CBI 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

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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 Article 227 of the  Constitution against an order on charge would  amount to doing indirectly the same thing  which cannot be done directly, I consider that  no petition under Article 227 can be  entertained.”  

(Emphasis added)  

10. The Division Bench in the impugned judgment8 reframed the  

questions as follows:  

“(a)  Whether an order framing charge under  the 1988 Act would be treated as an  interlocutory order thereby barring the  exercise of revisional power of this Court?  

 (b) Whether the language employed in  

Section 19 of the 1988 Act which bars the  revision would also bar the exercise of  power under Section 482 of the Cr.P.C. for  all purposes?  

8     Anur Kumar Jain versus CBI 178(2011) DLT 501

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(c) Whether the order framing charge can be  assailed under Article 227 of the  Constitution of India?”  

 11. After discussing the law on the point, the Bench concluded:  

“(a) An order framing charge under the  Prevention of Corruption Act, 1988 is an  interlocutory order.    (b) As Section 19(3)(c) clearly bars revision  against an interlocutory order and framing of  charge being an interlocutory order a revision  will not be maintainable.    (c) A petition under Section 482 of the Code of  Criminal Procedure and a writ petition  preferred under Article 227 of the Constitution  of India are maintainable.     (d) Even if a petition under Section 482 of the  Code of Criminal Procedure or a writ petition  under Article 227 of the Constitution of India is  entertained by the High Court under no  circumstances an order of stay should be  passed regard being had to the prohibition  contained in Section 19(3)(c) of the 1988 Act.     (e) The exercise of power either under Section  482 of the Code of Criminal Procedure or under   Article 227 of the Constitution of India should be  sparingly and in exceptional circumstances be  exercised keeping in view the law laid down in  Siya Ram Singh [(1979) 3 SCC 118], Vishesh  Kumar [AIR 1980 SC 892], Khalil Ahmed Bashir  Ahmed [AIR 1988 SC 184, Kamal Nath and Ors.

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[AIR 2000 SC 1997  Ranjeet Singh [AIR 2004 SC  3892]  and similar line of decisions in the field.    (f) It is settled law that jurisdiction under Section  482 of the Code of Criminal Procedure or under  Article 227 of the Constitution of India cannot  be exercised as a "cloak of an appeal in  disguise" or to re-appreciate evidence. The  aforesaid proceedings should be used  sparingly with great care, caution,  circumspection and only to prevent grave  miscarriage of justice.”  

12. It was held that order framing charge was an interlocutory  

order and no Revision Petition under Section 401 read with Section  

397(2) Cr.P.C. would lie to the High Court against such order.  

Reliance was mainly placed on V.C. Shukla versus State through  

CBI 9.  Therein, Section 11A of the Special Courts Act, 1979 was  

interpreted by a Bench of  four Judges of this Court.  The Bench  

applied the test in S. Kuppuswami Rao versus the King10. Reliance  

was also placed on Satya Narayan Sharma versus State of  

Rajasthan11, wherein Section 19 (3)(c) of the Prevention of Corruption  

Act, 1988 was the subject matter of consideration.   

9     (1980) Suppl. SCC 92  10     (1947) FCR 180  11     (2001) 8 SCC 607

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13. It was, however, held that a petition under Section 482 Cr.P.C.  

will lie to the High Court even when there is a bar under Section 397  

or some other provisions of the Cr.P.C.  However, inherent power  

could be exercised only when there is abuse of the process of Court  

or where interference is absolutely necessary for securing the ends of  

justice.  It must be exercised very sparingly where proceedings have  

been initiated illegally, vexatiously or without jurisdiction.  The power  

should not be exercised against express provision of law.  Even  

where inherent power is exercised in a rare case, there could be no  

stay of trial in a corruption case. Reliance in this regard was mainly  

placed on judgments of this Court in Satya Narayan Sharma (supra)  

and Navjot Sandhu (supra).  

14. As regards a petition under Article 227 of the Constitution, it was  

held that the said power was part of basic structure of the  

Constitution as held in L. Chandra Kumar  versus  Union of India and  

Ors.12 and could not be barred.  But the Court would refrain from  

passing an order which would run counter to and conflict with an  

express intendment contained in Section 19(3)(c) of the PC Act.                                                               

12    (1997) 3 SCC 261  

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Reliance was also placed on Chandrashekhar Singh  and Others  

versus  Siya Ram Singh and Others13.   

 15. Learned counsel for the appellants submitted that the High  

Court was in error in holding that the order framing charge was an  

interlocutory order.  In any case, since petition under Section 482  

Cr.P.C. and under Article 227 of the Constitution has been held to be  

maintainable, there could be no prohibition against interference by  

the High Court or the power of the High Court to grant stay in spite of  

prohibition under Section 19(3)(c) of the PC Act.    

16. Learned counsel for the CBI, however, supported the view of  

the High Court.   

17. We have given due considerations to the rival submissions and  

perused the decisions of this Court.  Though the question referred  

relates to the issue whether order framing charges is an interlocutory  

order, we have considered further question as to the approach to  

be adopted by the High Court in dealing with the challenge to the  

order framing charge.  As already noted in para 10, the impugned  

13     (1979) 3 SCC 118

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order also considered the said question.  Learned counsel for the  

parties have also addressed the Court on this question.   

18. It is not necessary to refer to all the decisions cited at the Bar.    

Suffice it to say that a Bench of three Judges in Madhu Limaye  

(supra) held that legislature has sought to check delay in final  

disposal of proceedings in criminal cases by way of a bar to  

revisional jurisdiction against an interlocutory order under sub-Section  

2 of Section 397 Cr.P.C.  At the same time, inherent power of the  

High Court is not limited or affected by any other provision.  It could  

not mean that limitation on exercise of revisional power is to be set  

at naught.   Inherent power could be used for securing ends of  

justice or to check abuse of the process of the Court.  This power has  

to be exercised very sparingly against a proceeding initiated illegally  

or vexatiously or without jurisdiction.  The label of the petition is  

immaterial.  This Court modified the view taken in Amarnath versus  

State of Haryana14  and also deviated from the test for interlocutory  

order laid down in S. Kuppuswami Rao (supra). We may quote the  

following observations in this regard:                                                              

14     (1977) 4 SCC 137

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“6. The point which falls for determination in this  appeal is squarely covered by a decision of this  Court, to which one of us (Untwalia, J.) was a  party in Amar Nath v. State of Haryana. But on  a careful consideration of the matter and on  hearing learned Counsel for the parties in this  appeal we thought it advisable to enunciate  and reiterate the view taken by two learned  Judges of this Court in Amar Nath case but in a  somewhat modified and modulated form. …..    xxxx   xxxx   xxxx  xxxx    10. As pointed out in Amar Nath case the  purpose of putting a bar on the power of  revision in relation to any interlocutory order  passed in an appeal, inquiry, trial or other  proceeding, is to bring about expeditious  disposal of the cases finally. More often than  not, the revisional power of the High Court was  resorted to in relation to interlocutory orders  delaying the final disposal of the proceedings.  The Legislature in its wisdom decided to check  this delay by introducing sub-section (2) in  Section 397. On the one hand, a bar has been   put in the way of the High Court (as also of the  Sessions Judge) for exercise of the revisional  power in relation to any interlocutory order, on  the other, the power has been conferred in  almost the same terms as it was in the 1898  Code. On a plain reading of Section 482,  however, it would follow that nothing in the  Code, which would include sub-section (2) of  Section 397 also, “shall be deemed to limit or  affect the inherent powers of the High Court”,  But, if we were to say that the said bar is not to  operate in the exercise of the inherent power

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at all, it will be setting at naught one of the  limitations imposed upon the exercise of the  revisional powers. In such a situation, what is  the harmonious way out? In our opinion, a  happy solution of this problem would be to say  that the bar provided in sub-section (2) of  Section 397 operates only in exercise of the  revisional power of the High Court, meaning  thereby that the High Court will have no power  of revision in relation to any interlocutory order.  Then in accordance with one of the other  principles enunciated above, the inherent  power will come into play, there being no other  provision in the Code for the redress of the  grievance of the aggrieved party. But then, if  the order assailed is purely of an interlocutory  character which could be corrected in  exercise of the revisional power of the High  Court under the 1898 Code, the High Court will  refuse to exercise its inherent power. But in case  the impugned order clearly brings about a  situation which is an abuse of the process of the  Court or for the purpose of securing the ends of  justice interference by the High Court is  absolutely necessary, then nothing contained  in section 397(2) can limit or affect the exercise  of the inherent power by the High Court. But  such cases would be few and far between. The  High Court must exercise the inherent power  very sparingly. One such case would be the  desirability of the quashing of, a criminal  proceeding initiated illegally, vexatiously or as  being without jurisdiction. Take for example a  case where a prosecution is launched under  the Prevention of Corruption Act without a  sanction. then the trial of the accused will be  without jurisdiction and even after his acquittal

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intention of the Legislature when it retained the  revisional power of the High Court in terms  identical to the one in the 1898 Code. In what  cases then the High Court will examine the  legality or the propriety of an order or the  legality of any proceeding of an inferior criminal  court? Is it circumscribed to examine only such  proceeding which is brought for its examination  after the final determination and wherein no  appeal lies? Such cases will be very few and far  between.          …………….    …There may be an order passed during the  course of a proceeding which may not be final  in the sense noticed in Kuppuswami case, but,  yet it may not be an interlocutory order — pure  or 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……”    

18. Referring to the judgment in Mohanlal Maganlal Thacker  v.   

State of Gujarat15, it was held that the test adopted therein that if  

reversal of impugned order results in conclusion of proceedings, such  

order may not be interlocutory but final order. It was observed :  

“15. …….In the majority decision four tests were  culled out from some English decisions. They are  found enumerated at p. 688. One of the tests is  “if the order in question is reversed would the  

15     (1968) 2 SCR 685 = AIR 1968 SC 733

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action have to go on?” Applying that test to the  facts of the instant case it would be noticed  that if the plea of the appellant succeeds and  the order of the Sessions Judge is reversed, the  criminal proceeding as initiated and instituted  against him cannot go on. If, however, he loses  on the merits of the preliminary point the  proceeding will go on. Applying the test of  Kuppuswami case such an order will not be a  final order. But applying the fourth test noted at  p. 688 in Mohan Lal case it would be a final  order. The real point of distinction, however, is to  be found at p. 693 in the judgment of Shelat, J.  The passage runs thus:  

“As observed in Ramesh v. Gendalal  Motilal Patni[(1966) 3 SCR 198 : AIR 1966  SC 1445]  the finality of that order was  not to be judged by co-relating that  order with the controversy in the  complaint viz. whether the appellant  had committed the offence charged  against him therein. The fact that that  controversy still remained alive is  irrelevant.”  

 19. The principles laid down in Madhu Limaye (supra) still hold the  

field and have not been in any manner diluted by decision of four  

Judges in V.C. Shukla  versus  State through CBI16 or by recent three  

Judge Bench decision in Girish Kumar Suneja  versus  Central Bureau  

16     (1980) Supp. SCC 92

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of Investigation 17 .  Though in V.C. Shukla (supra), order framing  

charge was held to be interlocutory order, judgment in Madhu  

Limaye  (supra) taking a contrary view was distinguished in the  

context of the statute considered therein.  The view in S.  

Kuppuswami Rao (supra), was held to have been endorsed in  

Mohanlal Maganlal Thacker  (supra) though factually in  Madhu  

Limaye  (supra), the said view was explained differently, as already  

noted.  Thus, in spite of the fact that V.C. Shukla (supra) is a  

judgment by Bench of  four Judges, it cannot be held that the  

principle of Madhu Limaye  (supra) does not hold the field.  As  

regards Girish Kumar Suneja (supra), which is by a Bench of three  

Judges, the issue considered was whether order of this Court  

directing that no Court other than this Court will stay  

investigation/trial in Manohar Lal Sharma  versus  Principal Secretary  

and ors. 18 [Coal Block allocation cases] violated right or remedies of  

the affected parties against an order framing charge. It was  

observed that the order framing charge being interlocutory order,  

17     (2017) 14 SCC 809  18     (2014) 9 SCC 516

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the same could not be interfered with under Section 397(2) nor  

under Section 482 Cr.P.C. 19   It was further held that stay of  

proceedings could not be granted in PC Act cases even under  

Section 482 Cr.P.C.20  It was further observed that though power  

under Article 227 is extremely vast, the same cannot be exercised on  

the drop of a hat as held in Shalini Shyam Shetty versus Rajendra  

Shankar Patil21 as under :  

  “37. … This reserve and exceptional power of  judicial intervention is not to be exercised just for  grant of relief in individual cases but should be  directed for promotion of public confidence in  the administration of justice in the larger public  interest whereas Article 226 of the Constitution is  meant for protection of individual grievance.  Therefore, the power under Article 227 may be  unfettered but its exercise is subject to high  degree of judicial discipline pointed out  above.”  

 20. It was observed that power under Section 482 Cr.P.C. could be  

exercised only in rarest of rare cases and not otherwise.    

38. The Criminal Procedure Code is undoubtedly  a complete code in itself. As has already been  

19     Paras 24,25, 27  20     Para 32  21     (2010) 8 SCC 329

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discussed by us, the discretionary jurisdiction  under Section 397(2) CrPC is to be exercised  only in respect of final orders and intermediate  orders. The power under Section 482 CrPC is to  be exercised only in respect of interlocutory  orders to give effect to an order passed under  the Criminal Procedure Code or to prevent  abuse of the process of any court or otherwise  to serve the ends of justice. As indicated above,  this power has to be exercised only in the rarest  of rare cases and not otherwise. If that is the  position, and we are of the view that it is so,  resort to Articles 226 and 227 of the Constitution  would be permissible perhaps only in the most  extraordinary case. To invoke the constitutional  jurisdiction of the High Court when the Criminal  Procedure Code restricts it in the interest of a  fair and expeditious trial for the benefit of the  accused person, we find it difficult to accept the  proposition that since Articles 226 and 227 of the  Constitution are available to an accused  person, these provisions should be resorted to in  cases that are not the rarest of rare but for trifling  issues.  

 21. Reliance was also placed on judgment by seven Judge Bench  

in Kartar Singh versus State of Punjab22 laying down as follows :  

“40. …If the High Courts entertain bail  applications invoking their extraordinary  jurisdiction under Article 226 and pass orders,  then the very scheme and object of the Act and  the intendment of Parliament would be  completely defeated and frustrated. But at the  

22     (1994) 3 SCC 569

24    

same time it cannot be said that the High  Courts have no jurisdiction. Therefore, we totally  agree with the view taken by this Court in Abdul  Hamid Haji Mohammed [(1994) 2 SCC 664] that  if the High Court is inclined to entertain any  application under Article 226, that power should  be exercised most sparingly and only in rare  and appropriate cases in extreme  circumstances. What those rare cases are and  what would be the circumstances that would  justify the entertaining of applications under  Article 226 cannot be put in straitjacket.”  

22. It was further observed that no stay could be granted in PC Act  

cases in view of bar contained in Section 19(3)(c).  The relevant  

observations are :  

“64. A reading of Section 19(3) of the PC Act  indicates that it deals with three situations: (i)  Clause (a) deals a situation where a final  judgment and sentence has been delivered by  the Special Judge. We are not concerned with  this situation. (ii) Clause (b) deals with a stay of  proceedings under the PC Act in the event of  any error, omission or irregularity in the grant of  sanction by the authority concerned to  prosecute the accused person. It is made clear  that no court shall grant a stay of proceedings  on such a ground except if the court is satisfied  that the error, omission or irregularity has  resulted in a failure of justice—then and only  then can the court grant a stay of proceedings  under the PC Act. (iii) Clause (c) provides for a  blanket prohibition against a stay of

25    

proceedings under the PC Act even if there is a  failure of justice [subject of course to Clause  (b)]. It mandates that no court shall stay  proceedings “on any other ground” that is to  say any ground other than a ground relatable  to the error, omission or irregularity in the  sanction resulting in a failure of justice.    65. A conjoint reading of clause (b) and clause  (c) of Section 19(3) of the PC Act makes it is  clear that a stay of proceedings could be  granted only and only if there is an error,  omission or irregularity in the sanction granted  for a prosecution and that error, omission or  irregularity has resulted in a failure of justice.  There is no other situation that is contemplated  for the grant of a stay of proceedings under the  PC Act on any other ground whatsoever, even if  there is a failure of justice. Clause (c)  additionally mandates a prohibition on the  exercise of revision jurisdiction in respect of any  interlocutory order passed in any trial such as  those that we have already referred to. In our  opinion, the provisions of clauses (b) and (c) of  Section 19(3) of the PC Act read together are  quite clear and do not admit of any ambiguity  or the need for any further interpretation.”  

23. We may also refer to the observations of the Constitution Bench  

in Ratilal Bhanji Mithani  versus  Asstt. Collector of Customs, Bombay  

and Anr.23 about the nature of inherent power of the High Court:  

23     [1967] 3 SCR 926

26    

“The inherent powers of the High Court preserved  by Section 561-A of the Code of Criminal  Procedure are thus vested in it by "law" within the  meaning of Art. 21. The procedure for invoking the  inherent powers is regulated by rules framed by  the High Court. The power to make such rules is  conferred on the High Court by the Constitution.  The rules previously in force were contained in  force by Article 372 of the Constitution.”  

24. As rightly noted in the impugned judgment, a Bench of seven  

Judges in L.Chandra Kumar (supra) held that power of the High  

Court to exercise jurisdiction under Article 227 was part of the basic  

structure of the Constitution.  

25. Thus, even though in dealing with different situations, seemingly  

conflicting observations may have been made while holding that  

the order framing charge was interlocutory order and was not liable  

to be interfered with under Section 397(2) or even under Section 482  

Cr.P.C., the principle laid down in Madhu Limaye  (supra) still holds  

the field.  Order framing charge may not be held to be purely a  

interlocutory order and can in a given situation be interfered with  

under Section 397(2) Cr.P.C. or 482 Cr.P.C. or Article 227 of the  

Constitution which is a constitutional provision but the power of the

27    

High Court to interfere with an order framing charge and to grant  

stay is to be exercised only in an exceptional situation.  

26. We have thus no hesitation in concluding that the High Court  

has jurisdiction in appropriate case to consider the challenge  

against an order framing charge and also to grant stay but how  

such power is to be exercised and when stay ought to be granted  

needs to be considered further.  

27. As observed in Girish Kumar Suneja (supra) in the PC Act cases,  

the intention of legislature is expeditious conclusion of trial on day-to-

day basis without any impediment through the stay of proceedings  

and this concern must be respected.  This Court also noted the  

proviso to Section 397(1) Cr.P.C. added by Section 22(d) of the PC  

Act that a revisional court shall not ordinarily call for the record of  

proceedings.  If record is called, the Special Judge may not be able  

to proceed with the trial which will stand indirectly stayed.   The right  

of the accused has to be considered vis-à-vis the interest of the  

society.  As already noted, the bench of seven Judges in Kartar  

Singh (supra) held that even constitutional power of the High Court  

under Article 226 which was very wide ought to be used with

28    

circumspection in accordance with judicial consideration and well  

established principles.  The power should be exercised sparingly in  

rare and extreme circumstances.    

 28. It is well accepted that delay in a criminal trial, particularly in  

the PC Act cases, has deleterious effect on the administration of  

justice in which the society has a vital interest.  Delay in trials affects  

the faith in Rule of Law and efficacy of the legal system.  It affects  

social welfare and development.  Even in civil or tax cases it has  

been laid down that power to grant stay has to be exercised with  

restraint.  Mere prima facie case is not enough. Party seeking stay  

must be put to terms and stay should not be incentive to delay.  The  

order granting stay must show application of mind.  The power to  

grant stay is coupled with accountability24.   

30. Wherever stay is granted, a speaking order must be passed  

showing that the case was of exceptional nature and delay on  

account of stay will not prejudice the interest of speedy trial in a  

24     Siliguri Municipality vs.  Amalendu Das (1984) 2 SCC 436 para 4;  Assistant  Collector of Central Excise, Chandan Nagar, West Bengal  vs.  Dunlop India Ltd. and Ors. (1985) 1 SCC 260 para 5;   Union Territory of Pondicherry and Ors.  vs.  P.V. Suresh and Ors. (1994) 2 SCC 70 para 15; and State of West  Bengal and Ors.  vs.  Calcutta Hardware Stores and Ors. (1986) 2 SCC 203 para 5

29    

corruption case. Once stay is granted, proceedings should not be  

adjourned and concluded within two-three months.  

31.  The wisdom of legislature and the object of final and  

expeditious disposal of a criminal proceeding cannot be ignored.  In  

exercise of its power the High Court is to balance the freedom of an  

individual on the one hand and security of the society on the other.   

Only in case of patent illegality or want of jurisdiction the High Court  

may exercise its jurisdiction. The acknowledged experience is that  

where challenge to an order framing charge is entertained, the  

matter remains pending for long time which defeats the interest of  

justice.   

32. We have already quoted the judicial experience as noted in  

the earlier judgments in Para 9 above that trial of corruption cases is  

not permitted to proceed on account of challenge to the order of  

charge before the High Courts.  Once stay is granted, disposal of a  

petition before the High Court takes long time.  Consideration of the  

challenge against an order of framing charge may not require  

meticulous examination of voluminous material which may be in the

30    

nature of a mini trial.  Still, the Court is at times called upon  to do so  

inspite of law being clear that at the stage of charge the Court has  

only to see as to whether material on record reasonably connects  

the accused with the crime.  Constitution Bench of this Court in  

Hardeep Singh versus State of Punjab25 observed :  

100. However, there is a series of cases wherein  this Court while dealing with the provisions of  Sections 227, 228, 239, 240, 241, 242 and 245  CrPC, has consistently held that the court at the  stage of framing of the charge has to apply its mind  to the question whether or not there is any ground  for presuming the commission of an offence by the  accused. The court has to see as to whether the  material brought on record reasonably connect the  accused with the offence. Nothing more is required  to be enquired into. While dealing with the  aforesaid provisions, the test of prima facie case is  to be applied. The court has to find out whether the  materials offered by the prosecution to be adduced  as evidence are sufficient for the court to proceed  against the accused further. (Vide State of  Karnataka v. L. Muniswamy[(1977) 2 SCC 699], All  India Bank Officers’ Confederation v. Union of  India[(1989) 4 SCC 90] Stree Atyachar Virodhi  Parishad v. Dilip Nathumal Chordia [(1989) 1 SCC  715] State of M.P. v. Krishna Chandra Saksena  [(1996) 11 SCC 439] and State of M.P. v. Mohanlal  Soni [(2000) 6 SCC 338]     

25     (2014) 3 SCC 92

31    

101. In Dilawar Balu Kurane v. State of  Maharashtra [(2002) 2 SCC 135] this Court while  dealing with the provisions of Sections 227 and 228  CrPC, placed a very heavy reliance on the earlier  judgment of this Court in Union of India v. Prafulla  Kumar Samal [(1979) 3 SCC 4] and held that while  considering the question of framing the charges,  the court may weigh the evidence for the limited  purpose of finding out whether or not a prima facie  case against the accused has been made out and  whether the materials placed before the court  disclose grave suspicion against the accused which  has not been properly explained. In such an  eventuality, the court is justified in framing the  charges and proceeding with the trial. The court  has to consider the broad probabilities of the case,  the total effect of the evidence and the documents  produced before the court but the court should not  make a roving enquiry into the pros and cons of the  matter and weigh evidence as if it is conducting a  trial.  102. In Suresh v. State of Maharashtra[(2001) 3  SCC 703], this Court after taking note of the earlier  judgments in Niranjan Singh Karam Singh Punjabi  v. Jitendra Bhimraj Bijjaya[(1990) 4 SCC 76] and  State of Maharashtra v. Priya Sharan  Maharaj[(1997) 4 SCC 393], held as under:  (Suresh case, SCC p. 707, para 9)    

“9. … at the stage of Sections 227 and  228 the court is required to evaluate the  material and documents on record with  a view to finding out if the facts  emerging therefrom taken at their face  value disclose the existence of all the  ingredients constituting the alleged  offence. The court may, for this limited  purpose, sift the evidence as it cannot  be expected even at that initial stage to  accept all that the prosecution states as  the gospel truth even if it is opposed to  common sense or the broad probabilities  of the case. Therefore, at the stage of  framing of the charge the court has to

32    

consider the material with a view to find  out if there is ground **for presuming  that the accused has committed the  offence** or that there is not sufficient  ground for proceeding against him  and** not for the purpose of arriving at  the conclusion that it is not likely to lead  to a conviction**. (Priya Sharan case,  SCC p. 397, para 8)”  

                                (emphasis in original)  103. Similarly in State of Bihar v. Ramesh  Singh[(1997) 4 SCC 39], while dealing with the  issue, this Court held: (SCC p. 42, para 4)    

“4. … If the evidence which the  prosecutor proposes to adduce to prove  the guilt of the accused even if fully  accepted before it is challenged in cross- examination or rebutted by the defence  evidence, if any, cannot show that the  accused committed the offence, then  there will be no sufficient ground for  proceeding with the trial.”  

 33. If  contrary to the above law, at the stage of charge,   the High  

Court adopts the approach of weighing probabilities and re-

appreciate the material,  it may be certainly a time consuming  

exercise.    The legislative policy of expeditious final disposal of the  

trial is thus, hampered.  Thus, even while reiterating the view that  

there is no bar to jurisdiction of the High Court to consider a  

challenge against an order of framing charge in exceptional  

situation for correcting a patent error of lack of jurisdiction,  exercise

33    

of such jurisdiction  has  to be limited to rarest of rare cases.    Even if  

a challenge to order framing   charge is entertained, decision of  

such a petition should not be delayed.   Though no mandatory time  

limit can be fixed, normally it should not exceed two-three months.     

If stay is granted, it should not normally be unconditional or of  

indefinite duration. Appropriate conditions may be imposed so that  

the party in whose favour stay is granted is accountable if court  

finally finds no merit in the matter and the other side suffers loss and  

injustice.  To give effect to the legislative policy and the mandate of  

Article 21 for speedy justice in criminal cases,  if stay is granted,  

matter should be taken on day-to-day basis and concluded within  

two-three months. Where the matter remains pending for longer  

period,  the order of stay will stand vacated on expiry of six months,  

unless extension is granted by a speaking order showing  

extraordinary situation where continuing stay was to be preferred to  

the final disposal of trial by the trial Court.  This timeline is being fixed  

in view of the fact that such trials are expected to be concluded  

normally in one to two years.  

34    

 34. In Imtiaz Ahmad  versus  State of U.P. 26  this Court after  

considering a report noted:  

“(a) As high as 9% of the cases have  completed more than twenty years since the  date of stay order.  

(b) Roughly 21% of the cases have completed  more than ten years.  

(c) Average pendency per case (counted  from the date of stay order till 26-7-2010) works  out to be around 7.4 years.  

(d) Charge-sheet was found to be the most  prominent stage where the cases were stayed  with almost 32% of the cases falling under this  category. The next two prominent stages are  found to be ‘appearance’ and ‘summons’,  with each comprising 19% of the total number  of cases. If ‘appearance’ and ‘summons’ are  considered interchangeable, then they would  collectively account for the maximum of stay  orders.”  

After noting the above scenario, the Court directed :  

“55. Certain directions are given to the High  Courts for better maintenance of the rule of  law and better administration of justice:    

While analysing the data in aggregated  form, this Court cannot overlook the most  important factor in the administration of  

26     (2012) 2 SCC 688

35    

justice. The authority of the High Court to order  stay of investigation pursuant to lodging of FIR,  or trial in deserving cases is unquestionable. But  this Court is of the view that the exercise of this  authority carries with it the responsibility to  expeditiously dispose of the case. The power  to grant stay of investigation and trial is a very  extraordinary power given to the High Courts  and the same power is to be exercised  sparingly only to prevent an abuse of the  process and to promote the ends of justice. It is  therefore clear that:  

 (i) Such an extraordinary power has to be  exercised with due caution and  circumspection.    (ii) Once such a power is exercised, the High  Court should not lose sight of the case where it  has exercised its extraordinary power of  staying investigation and trial.    (iii) The High Court should make it a point of  finally disposing of such proceedings as early  as possible but preferably within six months  from the date the stay order is issued.    56. It is true that this Court has no power of  superintendence over the High Court as the  High Court has over District Courts under  Article 227 of the Constitution. Like this Court,  the High Court is equally a superior court of  record with plenary jurisdiction. Under our  Constitution the High Court is not a court  subordinate to this Court. This Court, however,  enjoys appellate powers over the High Court  as also some other incidental powers. But as  the last court and in exercise of this Court’s  power to do complete justice which includes

36    

within it the power to improve the  administration of justice in public interest, this  Court gives the aforesaid guidelines for  sustaining common man’s faith in the rule of  law and the justice delivery system, both being  inextricably linked.”  

35. In view of above, situation of proceedings remaining pending  

for long on account of stay needs to be remedied.  Remedy is  

required not only for corruption cases but for all civil and criminal  

cases where on account of stay, civil and criminal proceedings are  

held up.  At times, proceedings are adjourned sine die on account  

of stay.  Even after stay is vacated, intimation is not received and  

proceedings are not taken up.  In an attempt to remedy this,  

situation, we consider it appropriate to direct that in all pending  

cases where stay against proceedings of a civil or criminal trial is  

operating, the same will come to an end on expiry of six months from  

today unless in an exceptional case by a speaking order such stay is  

extended.   In cases where stay is granted in future, the same will  

end on expiry of six months from the date of such order unless similar  

extension is granted by a speaking order.  The speaking order must  

show that the case was of such exceptional nature that continuing

37    

the stay was more important than having the trial finalized.  The trial  

Court where order of stay of civil or criminal proceedings is  

produced, may fix a date not beyond six months of the order of stay  

so that on expiry of period of stay, proceedings can commence  

unless order of extension of stay is produced.    

36. Thus, we declare the law to be that order framing charge is not  

purely an interlocutory order nor a final order.  Jurisdiction of the High  

Court is not barred irrespective of the label of a petition, be it under  

Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution.   

However, the said jurisdiction is to be exercised consistent with the  

legislative policy to ensure expeditious disposal of a trial without the  

same being in any manner hampered.  Thus considered, the  

challenge to an order of charge should be entertained in a rarest of  

rare case only to correct a patent error of jurisdiction and not to re-

appreciate the matter.  Even where such challenge is entertained  

and stay is granted, the matter must be decided on day-to-day  

basis so that stay does not operate for an unduly long period.   

Though no mandatory time limit may be fixed, the decision may not

38    

exceed two-three months normally.  If it remains pending longer,  

duration of stay should not exceed six months, unless extension is  

granted by a specific speaking order, as already indicated.   

Mandate of speedy justice applies to the PC Act cases as well as  

other cases where at trial stage proceedings are stayed by the  

higher court i.e. the High Court or a court below the High Court, as  

the case may be.  In all pending matters before the High Courts or  

other courts relating to PC Act or all other civil or criminal cases,  

where stay of proceedings in a pending trial is operating, stay will  

automatically lapse after six months from today unless extended by  

a speaking order on above parameters.  Same course may also be  

adopted by civil and criminal appellate/revisional courts under the  

jurisdiction of the High Courts.  The trial courts may, on expiry of  

above period, resume the proceedings without waiting for any other  

intimation unless express order extending stay is produced.    

37. The High Courts may also issue instructions to this effect and  

monitor the same so that civil or criminal proceedings do not remain  

pending for unduly period at the trial stage.

39    

38. The question referred stands answered.  The matter along with  

other connected matters, may now be listed before an appropriate  

Bench as first matter, subject to overnight part-heard, on  

Wednesday, the 18th April, 2018.      

A copy of this order be sent to all the High Courts for necessary  

action.  

 ………………………………..J.  

(Adarsh Kumar Goel)      

………………………………..J.  (Navin Sinha)  

New Delhi;  March 28, 2018.          Note:  Highlighting in quotations is by us

1    

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION    

CRIMINAL APPEAL NOS.1375-1376 OF 2013  

 ASIAN RESURFACING OF   ROAD AGENCY PVT. LTD. & ANR.  …APPELLANTS    

VERSUS  

 CENTRAL BUREAU OF INVESTIGATION      ...RESPONDENT  

 WITH  

 CRIMINAL APPEAL NO.1383 OF 2013  

CRIMINAL APPEAL NO.1377 OF 2013  

CRIMINAL APPEAL NO.1382 OF 2013  

CRIMINAL APPEAL NO.1394 OF 2013  

CRIMINAL APPEAL NO.1384 OF 2013  

CRIMINAL APPEAL NO.1393 OF 2013  

CRIMINAL APPEAL NO.1386-1387 OF 2013  

CRIMINAL APPEAL NO.1385 OF 2013  

CRIMINAL APPEAL NO.1406 OF 2013  

CRIMINAL APPEAL NO.1396 OF 2013  

CRIMINAL APPEAL NO.1395 OF 2013

2    

CRIMINAL APPEAL NO.1391 OF 2013  

CRIMINAL APPEAL NO.1389 OF 2013  

CRIMINAL APPEAL NO.1388 OF 2013  

CRIMINAL APPEAL NO.1398 OF 2013  

CRIMINAL APPEAL NO.1397 OF 2013  

SPECIAL LEAVE PETITION (CRL.) No.2610 OF 2013  

CRIMINAL APPEAL NO.1390 OF 2013  

CRIMINAL APPEAL NO.1399 OF 2013  

CRIMINAL APPEAL NO.1402 OF 2013  

CRIMINAL APPEAL NO.1400 OF 2013  

CRIMINAL APPEAL NO.1401 OF 2013  

CRIMINAL APPEAL NO.1404 OF 2013  

CRIMINAL APPEAL NO.1403 OF 2013  

CRIMINAL APPEAL NO.1405 OF 2013  

SPECIAL LEAVE PETITION (CRL.) No.6835 OF 2013  

SPECIAL LEAVE PETITION (CRL.)  No.6834 OF 2013  

SPECIAL LEAVE PETITION (CRL.) No.6837 OF 2013  

CRIMINAL APPEAL NO.388 OF 2014  

SPECIAL LEAVE PETITION (CRL.) NOS.10050-10051 OF 2013    

SPECIAL LEAVE PETITION (CRL.) NOS.9652-9653 OF 2013

3    

CRIMINAL APPEAL NO.234 OF 2014  

SPECIAL LEAVE PETITION (CRL.) No.5678 OF 2014  

SPECIAL LEAVE PETITION (CRL.)  No.1451 OF 2014  

SPECIAL LEAVE PETITION (CRL.) No.1399 OF 2014  

SPECIAL LEAVE PETITION (CRL.)  No.2508 OF 2014  

SPECIAL LEAVE PETITION (CRL.)  No.2970 OF 2014  

SPECIAL LEAVE PETITION (CRL.) No.2507 OF 2014  

SPECIAL LEAVE PETITION (CRL.)  No.2939 OF 2014  

SPECIAL LEAVE PETITION (CRL.)  No.2977 OF 2014  

SPECIAL LEAVE PETITION (CRL.)  No.4709 OF 2014  

SPECIAL LEAVE PETITION (CRL.) No.6372 OF 2014  

SPECIAL LEAVE PETITION (CRL.) No.6391 OF 2014  

SPECIAL LEAVE PETITION (CRL.) NOS.6691-6692 OF 2014    

SPECIAL LEAVE PETITION (CRL.) No.9363 OF 2017           J U D G M E N T     

R.F. Nariman, J. (Concurring)  

1. The cancer of corruption has, as we all know, eaten into  

the vital organs of the State.  Cancer is a dreaded disease  

which, if not nipped in the bud in time, causes death.  In British

4    

India, the Penal Code dealt with the cancer of corruption by  

public servants in Chapter IX thereof.  Even before  

independence, these provisions were found to be inadequate to  

deal with the rapid onset of this disease as a result of which the  

Prevention of Corruption Act, 1947, was enacted. This Act was  

amended twice – once by the Criminal Law (Amendment) Act,  

1952 and a second time by the Anti-Corruption Laws  

(Amendment) Act, 1964, based on the recommendations of the  

Santhanam Committee.  A working of the 1947 Act showed that  

it was found to be inadequate to deal with the disease of  

corruption effectively enough.  For this reason, the Prevention  

of Corruption Act, 1988 was enacted (hereinafter referred to as  

“the Act”).  The Statement of Objects and Reasons for the Act  

is revealing and is set out hereinbelow:  

“STATEMENT OF OBJECTS AND REASONS  

1. The Bill is intended to make the existing anti- corruption laws more effective by widening their  coverage and by strengthening the provisions.  

2. The Prevention of Corruption Act, 1947, was  amended in 1964 based on the recommendations of  the Santhanam Committee. There are provisions in  Chapter IX of the Indian Penal Code to deal with  public servants and those who abet them by way of  criminal misconduct. There are also provisions in  the Criminal Law Amendment Ordinance, 1944, to

5    

enable attachment of ill-gotten wealth obtained  through corrupt means, including from transferees  of such wealth. The Bill seeks to incorporate all  these provisions with modifications so as to make  the provisions more effective in combating  corruption among public servants.  

3. The Bill, inter alia, envisages widening the  scope of the definition of the expression “public  servant”, incorporation of offences under Sections  161 to 165-A of the Indian Penal Code,  enhancement of penalties provided for these  offences and incorporation of a provision that the  order of the trial court upholding the grant of  sanction for prosecution would be final if it has not  already been challenged and the trial has  commenced. In order to expedite the proceedings,  provisions for day-to-day trial of cases and  prohibitory provisions with regard to grant of stay  and exercise of powers of revision on interlocutory  orders have also been included.  

4. Since the provisions of Sections 161 to 165-A  are incorporated in the proposed legislation with an  enhanced punishment, it is not necessary to retain  those sections in the Indian Penal Code.  Consequently, it is proposed to delete those  sections with the necessary saving provision.  

5. The notes on clauses explain in detail the  provisions of the Bill.”  

(Emphasis Supplied)  

2. Section 2(c) defines “public servant”.  The definition is  

extremely wide and includes within its ken even arbitrators or  

other persons to whom any cause or matter has been referred  

for decision or report by a court of justice or by a competent

6    

public authority – (See Section 2(c)(vi)). Also included are office  

bearers of registered co-operative societies engaged in  

agriculture, industry, trade or banking, who receive financial aid  

from the Government – (See Section 2(c)(ix)). Office bearers or  

employees of educational, scientific, social, cultural or other  

institutions in whatever manner established, receiving financial  

assistance from the Government or local or other public  

authorities are also included (see Section 2(c)(xii)).  The two  

explanations to Section 2(c) are also revealing - whereas  

Explanation 1 states that in order to be a public servant, one  

need not be appointed by Government, Explanation 2 refers to  

a de facto, as opposed to a de jure, public servant, discounting  

whatever legal defect there may be in his right to hold that  

“situation”.    

3. Section 4(4) is of great importance in deciding these  

appeals, and is set out hereinbelow:  

“4. Cases triable by special Judges.—   (1) - (3) xxx xxx xxx  (4) Notwithstanding anything contained in the Code  of Criminal Procedure, 1973, a special Judge shall,  as far as practicable, hold the trial of an offence on  day-to-day basis.”

7    

Section 22 applies the Code of Criminal Procedure, 1973,  

subject to modifications which ensure timely disposal of cases,  

under this special Act.  Section 22 reads as under:  

“22. The Code of Criminal Procedure, 1973 to  apply subject to certain modifications.—   

The provisions of the Code of Criminal Procedure  1973, shall in their application to any proceeding in  relation to an offence punishable under this Act  have effect as if,—   

(a) in sub-section (1) of Section 243, for the words  “The accused shall then be called upon,” the words  “The accused shall then be required to give in  writing at once or within such time as the court may  allow, a list of the persons (if any) whom he  proposes to examine as his witnesses and of the  documents (if any) on which he proposes to rely  and he shall then be called upon” had been  substituted;   

(b) in sub-section (2) of Section 309, after the third  proviso, the following proviso had been inserted,  namely: —   

“Provided also that the proceeding shall not be  adjourned or postponed merely on the ground that  an application under Section 397 has been made by  a party to the proceeding.”;   

(c) after sub-section (2) of Section 317, the following  sub-section had been inserted, namely:—   

“(3) Notwithstanding anything contained in sub- section (1) or sub-section (2), the Judge may, if he  thinks fit and for reasons to be recorded by him,  proceed with inquiry or trial in the absence of the  accused or his pleader and record the evidence of

8    

any witness subject to the right of the accused to  recall the witness for cross-examination.”;   

(d) in sub-section (1) of Section 397, before the  Explanation, the following proviso had been  inserted, namely:—   

“Provided that where the powers under this section  are exercised by a court on an application made by  a party to such proceedings, the court shall not  ordinarily call for the record of the proceedings—   

(a) without giving the other party an opportunity of  showing cause why the record should not be called  for; or   

(b) if it is satisfied that an examination of the record  of the proceedings may be made from the certified  copies.”  

Under Section 27, powers of appeal and revision, conferred by  

the Code of Criminal Procedure, are to be exercised “subject to  

the provisions of this Act”. Section 27 reads as follows:  

“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, on a High court  as if the Court of the special Judge were a Court of  Session trying 12 cases within the local limits of the  High Court.”  

4. The bone of contention in these appeals is the true  

interpretation of Section 19(3)(c) of the Act, and whether

9    

superior constitutional courts, namely, the High Courts in this  

country, are bound to follow Section 19(3)(c) in petitions filed  

under Articles 226 and 227 of the Constitution of India.  An  

allied question is whether the inherent powers of High Courts  

are available to stay proceedings under the Act under Section  

482 of the Code of Criminal Procedure. Section 19 reads as  

follows:  

“19. Previous sanction necessary for  prosecution.—   (1) No court shall take cognizance of an offence  punishable under Sections 7, 10, 11, 13 and 15  alleged to have been committed by a public servant,  except with the previous sanction, [save as  otherwise provided in the Lokpal and Lokayuktas  Act, 2013] —   (a) in the case of a person who is employed in  connection with the affairs of the Union and is not  removable from his office save by or with the  sanction of the Central Government, of that  Government;   (b) in the case of a person who is employed in  connection with the affairs of a State and is not  removable from his office save by or with the  sanction of the State Government, of that  Government;   (c) in the case of any other person, of the authority  competent to remove him from his office.   

(2) Where for any reason whatsoever any doubt  arises as to whether the previous sanction as  required under sub-section (1) should be given by  the Central Government or the State Government or  any 9 other authority, such sanction shall be given

10    

by that Government or authority which would have  been competent to remove the public servant from  his office at the time when the offence was alleged  to have been committed.   

(3) Notwithstanding anything contained in the Code  of Criminal Procedure, 1973 —   (a) no finding, sentence or order passed by a  Special Judge shall be reversed or altered by a  Court in appeal, confirmation or revision on the  ground of the absence of, or any error, omission,  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 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.”

11    

5. On a reference made to a 2-Judge Bench in the Delhi  

High Court, the learned Chief Justice framed, what he  

described as, “three facets which emanate for consideration”,  

as follows:  

“(a) Whether an order framing charge under the  1988 Act would be treated as an interlocutory order  thereby barring the exercise of revisional power of  this Court?  (b) Whether the language employed in Section 19 of  the 1988 Act which bars the revision would also bar  the exercise of power under Section 482 of the  Cr.P.C. for all purposes?  (c) Whether the order framing charge can be  assailed under Article 227 of the Constitution of  India?”  

Answers given to the “three facets” are in paragraph 33 as  

follows:  

“33. In view of our aforesaid discussion, we proceed  to answer the reference on following terms:  

(a) An order framing charge under the Prevention of  Corruption Act, 1988 is an interlocutory order.  

(b) As Section 19(3)(c) clearly bars revision against  an interlocutory order and framing of charge being  an interlocutory order a revision will not be  maintainable.  

(c) A petition under Section 482 of the Code of  Criminal Procedure and a writ petition preferred  under Article 227 of the Constitution of India are  maintainable.  

(d) Even if a petition under Section 482 of the Code  of Criminal Procedure or a writ petition under Article

12    

227 of the Constitution of India is entertained by the  High Court under no circumstances an order of stay  should be passed regard being had to the  prohibition contained in Section 19(3)(c) of the 1988  Act.  

(e) The exercise of power either under Section  482 of the Code of Criminal Procedure or  under Article 227 of the Constitution of India should  be sparingly and in exceptional circumstances be  exercised keeping in view the law laid down in Siya  Ram Singh (supra), Vishesh Kumar (supra), Khalil  Ahmed Bashir Ahmed (supra), Kamal Nath &  Others (supra) Ranjeet Singh (supra) and similar  line of decisions in the field.  

(f) It is settled law that jurisdiction under Section  482 of the Code of Criminal Procedure or  under Article 227 of the Constitution of India cannot  be exercised as a "cloak of an appeal in disguise" or  to re- appreciate evidence. The aforesaid  proceedings should be used sparingly with great  care, caution, circumspection and only to prevent  grave miscarriage of justice.”  

6. The arguments on both sides have been set out in the  

judgment of brother Goel, J. and need not be reiterated.   

7. A perusal of Section 19(3) of the Act would show that the  

interdict against stay of proceedings under this Act on the  

ground of any error, omission or irregularity in the sanction  

granted by the authority is lifted if the Court is satisfied that the  

error, omission or irregularity has resulted in a failure of justice.  

13    

Having said this in clause (b) of Section 19(3), clause (c) says  

that no Court shall stay proceedings under this Act on any other  

ground.  The contention on behalf of the Appellants before us is  

that the expression “on any other ground” is referable only to  

grounds which relate to sanction and not generally to all  

proceedings under the Act.  Whereas learned counsel for the  

Respondents argues that these are grounds referable to the  

proceedings under this Act and there is no warrant to add  

words not found in sub-section (c), namely, that these grounds  

should be relatable to sanction only.   

8. We are of the view that the Respondents are correct in  

this submission for the following reasons:   

(i) Section 19(3)(b) subsumes all grounds which are  

relatable to sanction granted.  This is clear from the  

word “any” making it clear that whatever be the  

error, omission or irregularity in sanction granted, all  

grounds relatable thereto are covered.   

(ii) This is further made clear by Explanation (a), which  

defines an “error” as including competency of the  

authority to grant sanction.  

14    

(iii) The words “in the sanction granted by the authority”  

contained in sub-clause (b) are conspicuous by their  

absence in sub-clause(c), showing thereby that it is  

the proceedings under the Act that are referred to.   

(iv) The expression “on any other ground”, therefore,  

refers to and relates to all grounds that are available  

in proceedings under the Act other than grounds  

which relate to sanction granted by the authority.  

(v) On the assumption that there is an ambiguity, and  

that there are two views possible, the view which  

most accords with the object of the Act, and which  

makes the Act workable, must necessarily be the  

controlling view. It is settled law that even penal  

statutes are governed not only by their literal  

language, but also by the object sought to be  

achieved by Parliament. (See Ms. Eera through  

Dr. Manjula Krippendorf v. State (Govt. of NCT  

of Delhi) and Anr., 2017 SCC Online SC 787 at  

paragraphs 134-140).  

15    

(vi) In Madhu Limaye v. State of Maharashtra, (1977)  

4 SCC 551 at 558, this Court held,  “It has been  

pointed out repeatedly, vide for example, The River  

Wear Commissioners v. William Adamson (1876-

77) 2 AC 743 and R.M.D. Chamarbaugwalla v. The  

Union of India, AIR 1957 SC 628, that although the  

words occurring in a particular statute are plain and  

unambiguous, they have to be interpreted in a  

manner which would fit in the context of the other  

provisions of the statute and bring about the real  

intention of the Legislature”.  As the Statement of  

Objects and Reasons extracted hereinabove makes  

it clear, Section 19(3)(c) is to be read with Section  

4(4) and Section 22, all of which make it clear that  

cases under the Act have to be decided with utmost  

despatch and without any glitches on the way in the  

form of interlocutory stay orders.1   

                                                            1 Under Section 22(a), Section 243(1) of the Code of Criminal Procedure is tightened up  by requiring the accused to give in writing, at once or within such time as the Court may  allow, a  list of persons whom he proposes to examine as witnesses and documents on  which  he  proposes  to  rely,  so  as  to  continue  with  the  trial  with  utmost  despatch.  Similarly, in sub‐clause (b) of Section 22, under Section 309 a fourth proviso is inserted

16    

(vii) It has been argued on behalf of the Appellants that  

sub-section (4) of Section 19 would make it clear  

that the subject matter of Section 19, including sub-

section (3), is sanction and sanction alone.  This  

argument is fallacious for the simple reason that the  

subject matter of sub-section (4) is only in the  

nature of a proviso to Section 19(3)(a) and (b),  

making it clear that the ground for stay qua sanction  

having occasioned or resulted in a failure of justice  

                                                                                                                                                                                                ensuring that there shall be no adjournment merely on the ground that an application  under Section 397 has been made by a party to the proceedings.   Under sub‐clause (c)  of Section 22, a  Judge may, notwithstanding anything contained  in Section 317(1) and  (2), if he thinks fit and for good reason, proceed with the enquiry or trial in the absence  of  the accused or his pleader and  record  the evidence of any witness,  subject  to  the  right of the accused to recall the witness for cross‐examination.  This again can be done  so that there is no delay in either the enquiry or trial proceedings under the Act.  Insofar  as sub‐clause (d) is concerned, this Court in Girish Kumar Suneja v. C.B.I., (2017) 14 SCC  809 at 847 has held:  

“By adding the proviso to Section 397(1) CrPC, Parliament has made  it  clear that it would be appropriate not to call for the records of the case  before the Special Judge even when the High Court exercises its revision  jurisdiction. The reason for this quite clearly is that once the records are  called for, the Special Judge cannot proceed with the trial. With a view  to ensure that the accused who has  invoked the revision jurisdiction of  the High Court  is not prejudiced and at  the  same  time  the  trial  is not  indirectly  stayed  or  otherwise  impeded,  Parliament  has made  it  clear  that  the  examination  of  the  record  of  the  Special  Judge may  also  be  made on  the basis of  certified  copies of  the  record. Quite  clearly,  the  intention of Parliament  is  that  there should not be any  impediment  in  the trial of a case under the PC Act.”  

17    

should be taken at the earliest, and if not so taken,  

would be rejected on this ground alone.   

(viii) Section 19(3)(c)  became  necessary   to  make it  

clear that proceedings under the Act can be stayed  

only in the eventuality of an error, omission or  

irregularity in sanction granted, resulting in  failure  

of justice, and for no other reason. It was for this  

reason that it was also necessary to reiterate in     

the language of Section 397(2) of the Code of  

Criminal Procedure, that in all cases, other than  

those covered by Section 19(3)(b), no court shall  

exercise the power of revision in relation to  

interlocutory orders that may be passed.  It is also  

significant to note that the reach of this part of  

Section 19(3)(c) is at every stage of the proceeding,  

that is inquiry, trial, appeal or otherwise, making it  

clear that, in consonance with the object sought to  

be achieved, prevention of corruption trials are not  

only to be heard by courts other than ordinary  

courts, but disposed of as expeditiously as possible,

18    

as otherwise corrupt public servants would continue  

to remain in office and be cancerous to society at  

large, eating away at the fabric of the nation.   

9. The question as to whether the inherent power of a High  

Court would be available to stay a trial under the Act  

necessarily leads us to an inquiry as to whether such inherent  

power sounds in constitutional, as opposed to statutory law.   

First and foremost, it must be appreciated that the High Courts  

are established by the Constitution and are courts of record  

which will have all powers of such courts, including the power to  

punish contempt of themselves (See Article 215). The High  

Court, being a superior court of record, is entitled to consider  

questions regarding its own jurisdiction when raised before it.   

In an instructive passage by a Constitution Bench of this Court  

in In re Special Reference 1 of 1964, (1965) 1 SCR 413 at  

499, Gajendragadkar, C.J. held:  

“Besides, in the case of a superior Court of Record,  it is for the court to consider whether any matter  falls within its jurisdiction or not. Unlike a Court of  limited jurisdiction, the superior Court is entitled to  determine for itself questions about its own  jurisdiction. “Prima facie”, says Halsbury, “no matter

19    

is deemed to be beyond the jurisdiction of a  superior court unless it is expressly shown to be so,  while nothing is within the jurisdiction of an inferior  court unless it is expressly shown on the face of the  proceedings that the particular matter is within the  cognizance of the particular court” [Halsbury's Law  of England, Vol. 9, p. 349].”  

10. Also, in Ratilal Bhanji Mithani v. Assistant Collector of  

Customs, 1967 SCR (3) 926 at 930-931, this Court had  

occasion to deal with the inherent power of the High Court  

under Section 561-A of the Code of Criminal Procedure, 1898,  

which is equivalent to Section 482 of the Code of Criminal  

Procedure, 1973.  It was held that the said Section did not  

confer any power, but only declared that nothing in the Code  

shall be deemed to limit or affect the existing inherent powers of  

the High Court.  The Court then went on to hold:  

“The proviso to the article is not material and need  not be read. The article enacts that the jurisdiction  of the existing High Courts and the powers of the  judges thereof in relation to administration of justice  “shall be” the same as immediately before the  commencement of the Constitution. The  Constitution confirmed and re-vested in the High  Court all its existing powers and jurisdiction  including its inherent powers, and its power to make  rules. When the Constitution or any enacted law has  embraced and confirmed the inherent powers and  jurisdiction of the High Court which previously  existed, that power and jurisdiction has the sanction

20    

of an enacted “law” within the meaning of Art. 21 as  explained in A. K. Gopalan’s case (1950 SCR 88).  The inherent powers of the High Court preserved by  Sec. 561-A of the Code of Criminal Procedure are  thus vested in it by “law” within the meaning of Art.  21. The procedure for invoking the inherent powers  is regulated by rules framed by the High Court. The  power to make such rules is conferred on the High  Court by the Constitution. The rules previously in  force were continued in force by Article 372 of the  Constitution. The order of the High Court canceling  the bail and depriving the appellant of his personal  liberty is according to procedure established by law  and is not violative of Art. 21.”  

11. It is thus clear that the inherent power of a Court set up by  

the Constitution is a power that inheres in such Court because  

it is a superior court of record, and not because it is conferred  

by the Code of Criminal Procedure. This is a power vested by  

the Constitution itself, inter alia, under Article 215 as  

aforestated.  Also, as such High Courts have the power, nay,  

the duty to protect the fundamental rights of citizens under  

Article 226 of the Constitution, the inherent power to do justice  

in cases involving the liberty of the citizen would also sound in  

Article 21 of the Constitution.  This being the constitutional  

position, it is clear that Section 19(3)(c) cannot be read as a  

ban on the maintainability of a petition filed before the High

21    

Court under Section 482 of the Code of Criminal Procedure, the  

non-obstante clause in Section 19(3) applying only to the Code  

of Criminal Procedure. The judgment of this Court in Satya  

Narayan Sharma v. State of Rajasthan, (2001) 8 SCC 607 at  

paragraphs 14 and 15 does not, therefore, lay down the correct  

position in law.  Equally, in paragraph 17 of the said judgment,  

despite the clarification that proceedings can be “adapted” in  

appropriate cases, the Court went on to hold that there is a  

blanket ban of stay of trials and that, therefore, Section 482,  

even as adapted, cannot be used for the aforesaid purpose.   

This again is contrary to the position in law as laid down  

hereinabove. This case, therefore, stands overruled.    

12. At this juncture it is important to consider the 3-Judge  

bench decision in Madhu Limaye (supra).  A 3-Judge bench of  

this Court decided that a Section 482 petition under the Code of  

Criminal Procedure   would   be  maintainable against   a  

Sessions Judge order framing a charge  against  the  appellant   

under   Section 500 of the Penal Code, despite the prohibition  

contained in Section 397(2) of the Code of Criminal Procedure.   

This was held on two grounds.  First, that even if Section 397(1)

22    

was out of the way because of the prohibition contained in  

Section 397(2), the inherent power of the Court under Section  

482 of the Code of Criminal Procedure would be available.   

This was held after referring to Amar Nath v. State of  

Haryana, (1977) 4 SCC 137, which was a 2-Judge Bench  

decision, which decided that the inherent power contained in  

Section 482 would not be available to defeat the bar contained  

in Section 397(2).  The 3-Judge referred to the judgment in  

Amar Nath (supra) and said:  

“7. For the reasons stated hereinafter we think that  the statement of the law apropos Point No. 1 is not  quite accurate and needs some modulation. But we  are going to reaffirm the decision of the Court on the  second point.”  

(at page 554)  

This Court, in an important paragraph, then held:  

“10. As pointed out in Amar Nath case the purpose  of putting a bar on the power of revision in relation  to any interlocutory order passed in an appeal,  inquiry, trial or other proceeding, is to bring about  expeditious disposal of the cases finally. More often  than not, the revisional power of the High Court was  resorted to in relation to interlocutory orders  delaying the final disposal of the proceedings. The  Legislature in its wisdom decided to check this  delay by introducing sub-section (2) in Section 397.  On the one hand, a bar has been put in the way of  the High Court (as also of the Sessions Judge) for  exercise of the revisional power in relation to any

23    

interlocutory order, on the other, the power has  been conferred in almost the same terms as it was  in the 1898 Code. On a plain reading of Section  482, however, it would follow that nothing in the  Code, which would include sub-section (2) of  Section 397 also, “shall be deemed to limit or affect  the inherent powers of the High Court”, But, if we  were to say that the said bar is not to operate in the  exercise of the inherent power at all, it will be setting  at naught one of the limitations imposed upon the  exercise of the revisional powers. In such a  situation, what is the harmonious way out? In our  opinion, a happy solution of this problem would be  to say that the bar provided in sub-section (2) of  Section 397 operates only in exercise of the  revisional power of the High Court, meaning thereby  that the High Court will have no power of revision in  relation to any interlocutory order. Then in  accordance with one of the other principles  enunciated above, the inherent power will come into  play, there being no other provision in the Code for  the redress of the grievance of the aggrieved party.  But then, if the order assailed is purely of an  interlocutory character which could be corrected in  exercise of the revisional power of the High Court  under the 1898 Code, the High Court will refuse to  exercise its inherent power. But in case the  impugned order clearly brings about a situation  which is an abuse of the process of the Court or for  the purpose of securing the ends of justice  interference by the High Court is absolutely  necessary, then nothing contained in Section 397(2)  can limit or affect the exercise of the inherent power  by the High Court. But such cases would be few  and far between. The High Court must exercise the  inherent power very sparingly. One such case  would be the desirability of the quashing of a  criminal proceeding initiated illegally, vexatiously or  as being without jurisdiction. Take for example a  case where a prosecution is launched under the

24    

Prevention of Corruption Act without a sanction,  then the trial of the accused will be without  jurisdiction and even after his acquittal a second  trial, after proper sanction will not be barred on the  doctrine of autrefois acquit. Even assuming,  although we shall presently show that it is not so,  that in such a case an order of the Court taking  cognizance or issuing processes is an interlocutory  order, does it stand to reason to say that inherent  power of the High Court cannot be exercised for  stopping the criminal proceeding as early as  possible, instead of harassing the accused up to the  end? The answer is obvious that the bar will not  operate to prevent the abuse of the process of the  Court and/or to secure the ends of justice. The label  of the petition filed by an aggrieved party is  immaterial. The High Court can examine the matter  in an appropriate case under its inherent powers.  The present case undoubtedly falls for exercise of  the power of the High Court in accordance with  Section 482 of the 1973 Code, even assuming,  although not accepting, that invoking the revisional  power of the High Court is impermissible.  

(at pages 555-556)  

13. The second ground on which this case was decided was  

that an order framing a charge was not a purely interlocutory  

order so as to attract the bar of Section 392(2), but would be an  

“intermediate” class of order, between a final and a purely  

interlocutory order, on the application of a test laid down by  

English decisions and followed by our Courts, namely, that if  

the order in question is reversed, would the action then go on or

25    

be terminated. Applying this test, it was held that in an order  

rejecting the framing of a charge, the action would not go on  

and would be terminated and for this reason also would not be  

covered by Section 397(2).    

14. This judgment was affirmed by a 4-Judge Bench in V.C.  

Shukla v. State through C.B.I. (1980) Supp. SCC 92 at 128-

129, where it was held that under Section 11 of the Special  

Courts Act, 1979, the scheme being different from the Code of  

Criminal Procedure, and the Section opening with the words  

“notwithstanding anything in the Code”, the “intermediate” type  

of order would not obtain, and an order framing a charge would,  

therefore, not be liable to be appealed against, being purely  

interlocutory in nature. While holding this, this Court was at  

pains to point out:  

“On a true construction of Section 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 the order  impugned was undoubtedly an interlocutory order.  Taking into consideration, therefore, the natural  meaning of interlocutory order and applying the non

26    

obstante clause, the position is that the  provisions of the Code of Criminal Procedure are  expressly excluded by the non obstante clause and  therefore s. 397(2) of the Code cannot be called into  aid in order to hold that the order impugned is not  an interlocutory order. As the decisions of this Court  in the cases of Madhu Limaye v. State of  Maharashtra and Amar Nath & 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.”  

In Poonam Chand Jain and another v. Fazru, (2004) 13 SCC  

269 at 276-279, this Court was at pains to point out that the  

judgment in V.C. Shukla (supra) was rendered in the  

background of the special statute applicable (See paragraph  

13).    

15. It is thus clear that Madhu Limaye (supra) continues to  

hold the field, as has been held in V.C. Shukla (supra) itself.  

How Madhu Limaye (supra) was understood in a subsequent  

judgment of this Court is the next bone of contention between  

the parties.  

27    

16. In Girish Kumar Suneja v. C.B.I., (2017) 14 SCC 809, a  

3-Judge Bench of this Court was asked to revisit paragraph 10  

of its earlier order dated 25th August, 2014, passed in the coal  

block allocation cases. While transferring cases pending before  

different courts to the Court of a Special Judge, this Court, in its  

earlier order dated 25th August, 2014, had stated:  

“10. We also make it clear that any prayer for stay  or impeding the progress in the investigation/trial  can be made only before this Court and no other  Court shall entertain the same.”  

Several grounds were argued before this Court stating that  

paragraph 10 ought to be recalled.  We are concerned with  

grounds (i), (ii) and (vii), which are set out hereinbelow:  

“(i) The right to file a revision petition under Section  397 of the Code of Criminal Procedure, 1973 or  the Cr.P.C. as well approaching the High Court  under Section 482 of the Cr.P.C. has been taken  away;  

(ii) The order passed by this Court has taken away  the right of the appellants to file a petition under  Articles 226 and 227 of the Constitution and thereby  judicial review, which is a part of the basic structure  of the Constitution, has been violated which even  Parliament cannot violate;  

(vii) The prohibition in granting a stay under Section  19(3)(c) of the PC Act is not absolute and in an  appropriate case, a stay of proceedings could be  granted in favour of an accused person particularly

28    

when there is a failure of justice. Any restrictive  reading would entail a fetter on the discretion of the  High Court which itself might lead to a failure of  justice.”  

This Court referred to the judgment in Amar Nath (supra) and  

then to the Statement of Objects and Reasons for introducing  

397(2) of the Code of Criminal Procedure which, inter alia,  

stated as follows:  

“(d) the powers of revision against interlocutory  orders are being taken away, as it has been found  to be one of the main contributing factors in the  delay or disposal of criminal cases;”   

After referring to Madhu Limaye (supra) and the difference  

between interlocutory and intermediate orders, this Court held  

in paragraphs 25, 29, 30 and 32 as follows:  

“25. This view was reaffirmed in Madhu Limaye  when the following principles were approved in  relation to Section 482 of the Cr.P.C. in the context  of Section 397(2) thereof. The principles are:  

“(1) That the power is not to be resorted  to if there is a specific provision in the  Code for the redress of the grievance of  the aggrieved party;  (2) That it should be exercised very  sparingly to prevent abuse of process of  any Court or otherwise to secure the  ends of justice;  (3) That it should not be exercised as  against the express bar of law engrafted  in any other provision of the Code.”

29    

Therefore, it is quite clear that the prohibition  in Section 397 of the Cr.P.C. will govern Section  482 thereof. We endorse this view.  

xxx xxx xxx  

29. This leads us to another facet of the submission  made by learned counsel that even the avenue of  proceeding under Section 482 of the Cr.P.C. is  barred as far as the appellants are concerned. As  held in Amar Nath and with which conclusion we  agree, if an interlocutory order is not revisable due  to the prohibition contained in Section 397(2) of the  Cr.P.C. that cannot be circumvented by resort  to Section 482 of the Cr.P.C. There can hardly be  any serious dispute on this proposition.  

30. What then is the utility of Section 482 CrPC?  This was considered and explained in Madhu  Limaye [Madhu Limaye v. State of Maharashtra,  (1977) 4 SCC 551 : 1978 SCC (Cri) 10] which  noticed the prohibition in Section 397(2) CrPC and  at the same time the expansive text of Section 482  CrPC and posed the question: In such a situation,  what is the harmonious way out? This Court then  proceeded to answer the question in the following  manner: (SCC pp. 555-56, para 10)  

“10. … In such a situation, what is the  harmonious way out? In our opinion, a happy  solution of this problem would be to say that  the bar provided in sub-section (2) of Section  397 operates only in exercise of the revisional  power of the High Court, meaning thereby that  the High Court will have no power of revision  in relation to any interlocutory order. Then in  accordance with one of the other principles  enunciated above, the inherent power will  come into play, there being no other provision  in the Code for the redress of the grievance of  the aggrieved party. But then, if the order

30    

assailed is purely of an interlocutory character  which could be corrected in exercise of the  revisional power of the High Court under the  1898 Code, the High Court will refuse to  exercise its inherent power. But in case the  impugned order clearly brings about a  situation which is an abuse of the process of  the Court or for the purpose of securing the  ends of justice interference by the High Court  is absolutely necessary, then nothing  contained in Section 397(2) can limit or affect  the exercise of the inherent power by the High  Court. But such cases would be few and far  between. The High Court must exercise the  inherent power very sparingly.”  

xxx xxx xxx  

32. In Satya Narayan Sharma v. State of Rajasthan  this Court considered the provisions of the PC Act  and held that there could be no stay of a trial under  the PC Act. It was clarified that that does not mean  that the provisions of Section 482 of the Cr.P.C.  cannot be taken recourse to, but even if a litigant  approaches the High Court under Section 482 of the  Cr.P.C. and that petition is entertained, the trial  under the PC Act cannot be stayed. The litigant may  convince the court to expedite the hearing of the  petition filed, but merely because the court is not in  a position to grant an early hearing would not be a  ground to stay the trial even temporarily. With  respect, we do not agree with the proposition that  for the purposes of a stay of proceedings recourse  could be had to Section 482 of the Cr.P.C. Our  discussion above makes this quite clear.”  

(at pages 832-834)  

However, thereafter, this Court stated the law thus in paragraph  

38:

31    

“38. The Criminal Procedure Code is undoubtedly a  complete code in itself. As has already been  discussed by us, the discretionary jurisdiction  under Section 397(2) of the Cr.P.C. is to be  exercised only in respect of final orders and  intermediate orders. The power under Section  482 of the Cr.P.C. is to be exercised only in respect  of interlocutory orders to give effect to an order  passed under the Cr.P.C. or to prevent abuse of the  process of any Court or otherwise to serve the ends  of justice. As indicated above, this power has to be  exercised only in the rarest of rare cases and not  otherwise. If that is the position, and we are of the  view that it is so, resort to Articles 226 and 227 of  the Constitution would be permissible perhaps only  in the most extraordinary case. To invoke the  constitutional jurisdiction of the High Court when  the Cr.P.C. restricts it in the interest of a fair and  expeditious trial for the benefit of the accused  person, we find it difficult to accept the proposition  that since Articles 226 and 227 of the Constitution  are available to an accused person, these  provisions should be resorted to in cases that are  not the rarest of rare but for trifling issues.”  

(at pages 835-836)    

17. According to us, despite what is stated in paragraphs 25,  

29 and 32 supra, the ratio of the judgment is to be found in  

paragraph 38, which is an exposition of the law correctly setting  

out what has been held earlier in Madhu Limaye (supra).  A  

judgment has to be read as a whole, and if there are conflicting  

parts, they have to be reconciled harmoniously in order to yield  

a result that will accord with an earlier decision of the same

32    

bench strength.  Indeed, paragraph 30 of the judgment sets out  

a portion of paragraph 10 of Madhu Limaye (supra), showing  

that the Court was fully aware that Madhu Limaye (supra) did  

not approve Amar Nath (supra) without a very important caveat  

– and the caveat was that nothing in Section 397(2) can limit or  

affect the exercise of the inherent power by the High Court. We,  

therefore, read paragraph 38 as the correct ratio of the said  

judgment not only in terms of the applicability of Section 482 of  

the Code of Criminal Procedure, but also in terms of how it is to  

be applied.   

18. Insofar as petitions under Articles 226 and 227 are  

concerned, they form part of the basic structure of the  

Constitution as has been held in L. Chandra Kumar v. Union  

of India and others, (1997) 3 SCC 261 at 301. Here again, the  

judgment of a Constitution Bench in Kartar Singh v. State of  

Punjab, (1994) 3 SCC 569 at 714, puts it very well when it  

says:  

“Though it cannot be said that the High Court has  no jurisdiction to entertain an application for bail  under Article 226 of the Constitution and pass  orders either way, relating to the cases under the  Act 1987, that power should be exercised sparingly,

33    

that too only in rare and appropriate cases in  extreme circumstances. But the judicial discipline  and comity of courts require that the High Courts  should refrain from exercising the extraordinary  jurisdiction in such matters.”  

This aspect of Kartar Singh (supra) has been followed in  

Girish Kumar Suneja (supra) in paragraph 40 thereof and we  

respectfully concur with the same.  In view of the aforesaid  

discussion, it is clear that the Delhi High Court judgment’s  

conclusions in paragraph 33 (a), (b) and (d) must be set aside.   

19. I agree with Goel, J. that the appeals be disposed of in  

accordance with his judgment.   

                 ………………………J.             (R.F. Nariman)    New Delhi;  March 28, 2018.