REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.      1137          OF 2017 (Arising out of S.L.P (Crl.) No.9503 of 2016)

Girish Kumar Suneja          …..Appellant

Versus

C.B.I.              …..Respondent

WITH

Criminal  Appeal  No.  1146 of  2017 (Arising out of  SLP (Crl.)  No.8392/2016), Criminal  Appeal  No.1143 of  2017 (Arising out of  SLP (Crl.)  No.  8393/2016), Criminal  Appeal  No.1139 of  2017 (Arising out of  SLP (Crl.)  No.  8391/2016), Criminal  Appeal  No.1140  of  2017  (Arising  out  of  SLP  (Crl.)  5130  CRLMP No.20298/2016),  Criminal  Appeal  No.1149-1150  of  2017 (Arising  out  of  SLP (Crl.)5134-5135 CRLMP 18909/2015), Criminal Appeal No.1144 of 2017 (Arising out of SLP (Crl) No. 8703/2016), Criminal Appeal No.1145 of 2017 (Arising out of SLP (Crl) No. 9826/2016), Criminal Appeal No.1153-1154 of 2017 (Arising out of  SLP (Crl)  Nos.  9621-9622/2016),   Criminal  Appeal  No.1151-1152  of  2017 (Arising out of SLP (Crl.)  Nos. 9620-9621/2015), Criminal Appeal No.1141 of 2017 (Arising out of SLP (Crl.) No. 9740/2015), Criminal Appeal No.1147-1148 of 2017 (Arising out of SLP (Crl.) Nos.568-569/2017), Criminal Appeal No.1142 of 2017 (Arising out of SLP (Crl.) No. 1263/2017) and Criminal Appeal No.1138 of 2017 (Arising out of SLP (Crl.) No. 1441/2017).  

J U D G M E N T  

Madan B. Lokur, J.

1. On 25th August, 2014, this Court delivered judgment in Manohar Lal

Sharma v. Principal Secretary.1  Subsequently, further orders were passed

1  (2014) 9 SCC 516               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 1 of 53

in the case on 24th September, 2014.2 These decisions are commonly referred

to as having been rendered in the Coal Block Allocation cases.

2. Much earlier, on 25th July, 2014 the following order was passed by

this  Court  in  the  Coal  Block  Allocation  cases  (the  relevant  extract  is

reproduced):

“4. In pursuance of our order dated 18.7.2014, the Registrar General, Delhi High Court has intimated to the Secretary General  of   this Court  that  the Hon'ble the Chief Justice of Delhi High Court  has been pleased to nominate Mr. Bharat  Prashar, an officer  of Delhi Higher Judicial Service for being posted as Special Judge to deal and exclusively  try  the  offences  pertaining  to  coal  block  allocation matters under the Indian Penal Code, 1860, Prevention of Corruption Act,1988,  Prevention  of  Money-Laundering  Act,  2002  and  other allied offences.

5.   We,  accordingly,  direct  the  competent  authorities  to  issue requisite notifications appointing Mr. Bharat Prashar, an officer of Delhi  Higher  Judicial  Service  as  Special  Judge  for  the  above purpose. The notifications shall be issued within two weeks from the date of communication of copy of this order.

6.  We also order that Mr. R.S. Cheema, senior advocate shall be appointed as Special Public Prosecutor by the Government of India to conduct the prosecution of the offences pertaining to coal block allocation matters  on behalf of CBI and Enforcement Directorate. On  such  appointment,  Mr.  R.S.  Cheema  may  choose  two  other advocates, who, in his opinion, will be of assistance in the matter. While doing so, Mr. R.S. Cheema may keep in view the magnitude and complexities of the case.

7.    The Special Public Prosecutor shall have access to the entire evidence/material including case diaries collected in the course of investigation.  

8.  We direct the CBI to render all necessary assistance to the Special Public Prosecutor.

2  (2014) 9 SCC 614               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 2 of 53

                              9.  All cases pending before different courts in Delhi pertaining to coal block allocation matters shall stand transferred to the court of Special Judge as afore-noted.

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.”

3. Leave granted.  

4. The issue in the present appeals concerns the interpretation and effect

of paragraph 10 of the above order which provides that any request for stay

or impeding the progress in the investigation or the trial of the coal block

allocation cases can be made only to this Court and no other Court shall

entertain any such request.    

5. As  a  result  of  orders  passed  by  this  Court  from time to  time,  the

Central Bureau of Investigation (for short ‘the CBI’) filed a charge sheet

against the appellant Girish Kumar Suneja and others. On 29th April, 2016

the learned Special Judge appointed to hear the criminal cases arising out of

the illegal allocation of coal blocks, directed framing of charges in the case

titled  CBI  v.  Jindal  Steel  and  Power  Ltd.  &  Others  in  R.C.  No.

219/2013/E/0006 against Suneja and others for offences punishable under

Sections 120-B/409/420 of the Indian Penal Code and Section 13(1)(c) and

Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short “the

PC Act”).               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 3 of 53

6. Being aggrieved by the order passed by the learned Special Judge,

Criminal Misc. Case No. 3847 of 2016 was filed in the Delhi High Court by

Girish Kumar Suneja. In the High Court, a preliminary issue arose regarding

the  maintainability  of  the  petition  in  view of  paragraph  10  of  the  order

passed by this Court on 25th July, 2014.

7. A learned Single Judge of the High Court heard elaborate submissions

of learned counsel and by a well reasoned order, after relying upon several

decisions of this Court and of the Delhi High Court, concluded that in view

of the order passed by this Court on 25th July, 2014 the petition deserves to

be dismissed as not maintainable.  Against that decision of the High Court,

the present appeal has been preferred by Suneja.

8. Appeals raising a similar issue have been preferred by other accused

persons arising out of the same order and also by others in other proceedings

before the learned Special Judge. The learned Special Public Prosecutor Mr.

R.S. Cheema placed before us a tabular statement of all appeals raising the

same substantive issue as has been raised by Suneja. With consent, we took

up all these appeals and heard learned counsel for the appellants as also the

learned Special Public Prosecutor and learned counsel for the CBI.

9. Learned counsel for the appellants raised several contentions, all of

them directed towards the conclusion that paragraph 10 of the order passed

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by  this  Court  had  prevented  them  from  exercising  certain  legal  and

constitutional rights. The general submission was that the order passed by

this Court deserves to be recalled or revisited since the appellants have been

denied access to justice in that:  

(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;  

(iii) Article 14 of the Constitution has been violated by treating the coal

block allocation cases as a separate class having a separate procedure,

thereby denying to them equal protection of the law;  

(iv) The  right  to  life  and  liberty  guaranteed  by  Article  21  of  the

Constitution has been restricted;  

(v) Article 32 and Article  142 of the Constitution oblige this Court  to

protect the fundamental rights of citizens and not curtail them;  

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(vi) The High Court has an inherent right to grant a stay of proceedings,

but this Court has precluded the High Court from granting a stay of

proceedings and has thereby deprived the High Court of exercising an

inherent right;  

(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 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.  

10. Before dealing with the submissions, we make it clear that if the order

passed by this Court needs correction, we have no hesitation in doing so.

Therefore, this issue need not detain us at all.

Right to file a revision petition

11. The submission made on behalf of the appellants was that they have a

right to file a revision petition against orders passed by the learned Special

Judge but the order passed by this Court effectively prevents the High Court

from entertaining any such petition.   

12. The  Constitution  Bench  of  this  Court  considered  the  scope  of  the

revision jurisdiction of the High Court under Section 439 of the Criminal

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Procedure Code, 1898 (the old Code) in  Pranab Kumar Mitra v. State of

West  Bengal.3 The consideration was in the context of an application for

substitution filed by the son of a convict who had challenged his conviction

and sentence, but had expired during the pendency of the revision petition.

The Constitution Bench held that the revision jurisdiction of the High Court

is  a  discretionary  jurisdiction  to  be exercised  in  aid  of  justice.   What  is

significant is that a litigant does not have a right to have a revisable order set

aside. Whether the High Court chooses to exercise its revision jurisdiction in

a particular  case or  not  depends upon the facts  of  that  case -  hence,  the

reference  to  the  revision  jurisdiction  as  a  discretionary  jurisdiction.  The

revision jurisdiction of the High Court only conserves the power of the High

Court to ensure that justice is done in accordance with the recognized rules

of criminal jurisprudence and that criminal courts subordinate to the High

Court do not exceed their jurisdiction or abuse the powers vested in them by

the Criminal Procedure Code (the old Code). In view of these conclusions of

the Constitution Bench, there is no doubt that the appellants do not have any

right to the revision of a revisable order. It was held as follows:

“In  our  opinion,  in  the  absence  of  statutory  provisions,  in  terms applying to an application in revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional  jurisdiction  vested  in  it  by  Section  439  of  the  Code.

3  1959 Supp. (1) SCR 63               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 7 of 53

Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction  in  a  given  case,  must  depend  upon  the  facts  and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court  to see that  justice is  done in accordance with the recognized  rules  of  criminal  jurisprudence,  and  that  subordinate Criminal  Courts  do  not  exceed  their  jurisdiction,  or  abuse  their powers vested in them by the Code.”

13. The  decision  of  the  Constitution  Bench  has  been  subsequently

followed in a large number of cases, including somewhat more recently in

Kamlesh Kumar v. State of Jharkhand.4

14. However,  learned  counsel  for  the  appellants  go  a  step  further  and

submitted that even though the appellants have no right to have a revisable

order set aside since the power of revision is an “extraordinary discretionary

power”5 they  are  entitled to  approach the High Court  through a  revision

petition and then it is for the High Court to decide whether to entertain that

revision petition or not. According to the appellants, the order passed by this

Court  prevents  the  High  Court  from  even  considering  whether  its

extraordinary discretionary power should be exercised or not. In support of

the submission that such an order cannot be passed by this Court, various

passages from A.R. Antulay v. R.S. Nayak6 were read out to us. In other

words, it is not only the right to file a revision petition that is agitated before

4  (2013) 15 SCC 460 5  Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583 6  (1988) 2 SCC 602

             Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 8 of 53

us  but  the  right  to  be  heard  in  a  revision  petition  which might  then be

disposed of one way or the other by the High Court. The objection really is

to the finding of non-maintainability of a revision petition.   

15. To appreciate the submission, it is necessary to interpret Section 397

of the Cr.P.C. which reads as follows:

397. Calling for records to exercise of powers of revision - (1) The High Court  or  any Sessions  Judge may call  for  and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record,  direct  that  the  execution  of  any  sentence  or  order  be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.—All Magistrates,  whether Executive or Judicial,  and whether exercising original or appellate jurisdiction, shall be deemed to  be  inferior  to  the  Sessions  Judge  for  the  purposes  of  this sub-section and of Section 398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either  to  the  High  Court  or  to  the  Sessions  Judge,  no  further application by the same person shall be entertained by the other of them.

16. While the text of sub-section (1) of Section 397 of the Cr.P.C. appears

to  confer  very  wide  powers  on  the  court  in  the  exercise  of  its  revision

jurisdiction,  this  power  is  equally  severely  curtailed  by  sub-section  (2)

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thereof.  There is a complete prohibition in a court exercising its revision

jurisdiction in respect of interlocutory orders. Therefore, what is the nature

of orders in respect of which a court can exercise its revision jurisdiction?  

17. There  are  three  categories  of  orders  that  a  court  can  pass  –  final,

intermediate and interlocutory. There is no doubt that in respect of a final

order, a court can exercise its revision jurisdiction – that is in respect of a

final  order  of  acquittal  or  conviction.  There  is  equally  no  doubt  that  in

respect  of  an  interlocutory  order,  the  court  cannot  exercise  its  revision

jurisdiction.  As  far  as  an  intermediate  order  is  concerned,  the  court  can

exercise its revision jurisdiction since it is not an interlocutory order.  

18. The concept of an intermediate order first  found mention in Amar

Nath v. State of Haryana7 in which case the interpretation and impact of

Section 397(2) of the Cr.P.C. came up for consideration. This decision is

important  for  two  reasons.  Firstly  it  gives  the  historical  reason  for  the

enactment of Section 397(2) of the Cr.P.C. and secondly considering that

historical  background,  it  gives a justification for  a  restrictive meaning to

Section 482 of the Cr.P.C.  

19. As far as the historical background is concerned, it was pointed out

that the Cr.P.C. of 1898 and the 1955 amendment gave wide powers to the

7  (1977) 4 SCC 137               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 10 of 53

High  Court  to  interfere  with  orders  passed  in  criminal  cases  by  the

subordinate courts. These wide powers were restricted by the High Court

and this Court, as matter of prudence and not as a matter of law, to an order

that “suffered from any error of law or any legal infirmity causing injustice

or prejudice to the accused or was manifestly foolish or perverse.” This led

to the courts being flooded with cases challenging all kinds of orders and

thereby delaying prosecution of a case to the detriment of an accused person.

20. The Statement of Objects and Reasons of the Cr.P.C. state that the

Government kept in mind the following for  the purposes of enacting the

Cr.P.C.:

“(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;

(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and

(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.”

As regards Section 397(2) of the Cr.P.C. paragraph 5(d) of the Statement of

Objects and Reasons mentioned that:

“(5) Some of the more important changes proposed to be made with a view to speeding up the disposal of criminal cases are –  

(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; ”

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In  reply  to  the  debate  on the  subject,  it  was  stated  by Shri  Ram Niwas

Mirdha the concerned Minister that:  

“It was stated before the Select Committee that a large number of appeals against interlocutory orders are filed with the result that the appeals got delayed considerably. Some of the more notorious cases concern  big  business  persons.  So,  this  new  provision  was  also welcomed  by  most  of  the  witnesses  as  well  as  the  Select Committee. . . . This was a well-thought out measure so we do not want to delete it.”

As noted in  Amar Nath the purpose of introducing Section 397(2)  of the

Cr.P.C. was to curb delays in the decision of criminal cases and thereby to

benefit  the  accused  by  giving  him  or  her  a  fair  and  expeditious  trial.

Unfortunately, this legislative intendment is sought to be turned topsy turvy

by the appellants.   

21. The  concept  of  an  intermediate  order  was  further  elucidated  in

Madhu Limaye v. State  of  Maharashtra8 by contradistinguishing a  final

order and an interlocutory order. This decision lays down the principle that

an  intermediate  order  is  one  which  is  interlocutory  in  nature  but  when

reversed,  it  has  the  effect  of  terminating  the  proceedings  and  thereby

resulting in a final order. Two such intermediate orders immediately come to

mind – an order taking cognizance of an offence and summoning an accused

and an order for framing charges. Prima facie these orders are interlocutory

8  (1977) 4 SCC 551               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 12 of 53

in nature, but when an order taking cognizance and summoning an accused

is  reversed,  it  has  the  effect  of  terminating  the  proceedings  against  that

person resulting in a final order in his or her favour. Similarly, an order for

framing  of  charges  if  reversed has  the  effect  of  discharging the  accused

person  and resulting  in  a  final  order  in  his  or  her  favour. Therefore,  an

intermediate order is one which if passed in a certain way, the proceedings

would  terminate  but  if  passed  in  another  way,  the  proceedings  would

continue.

22. The view expressed in Amar Nath and Madhu Limaye was followed

in K.K.  Patel  v.  State  of  Gujarat9 wherein  a  revision  petition  was  filed

challenging the taking of cognizance and issuance of a process. It was said:

“It  is  now  well-nigh  settled  that  in  deciding  whether  an  order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra,  V.C. Shukla v.  State through CBI10 and  Rajendra Kumar Sitaram Pande v. Uttam11). The feasible test is whether by upholding the objections raised by a party, it  would result  in culminating  the  proceedings,  if  so  any  order  passed  on  such objections  would  not  be  merely  interlocutory  in  nature  as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.” (Emphasis supplied by us).  

9  (2000) 6 SCC 195 10  1980 Supp SCC 92 11  (1999) 3 SCC 134

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23. We may note that in different cases, different expressions are used for

the same category of orders – sometimes it is called an intermediate order,

sometimes a quasi-final order and sometimes it is called an order that is a

matter of moment. Our preference is for the expression ‘intermediate order’

since that brings out the nature of the order more explicitly.  

24. The second reason why Amar Nath is important is that it invokes the

principle, in the context of criminal law, that what cannot be done directly

cannot  be done indirectly. Therefore,  when Section 397(2) of  the Cr.P.C.

prohibits interference in respect of interlocutory orders, Section 482 of the

Cr.P.C. cannot be availed of to achieve the same objective. In other words,

since Section 397(2) of the Cr.P.C. prohibits interference with interlocutory

orders, it would not be permissible to resort to Section 482 of the Cr.P.C. to

set aside an interlocutory order. This is what this Court held:

“While we fully agree with the view taken by the learned Judge that where  a  revision  to  the  High  Court  against  the  order  of  the Subordinate  Judge  is  expressly  barred  under  sub-section  (2)  of Section  397  of  the  1973  Code  the  inherent  powers  contained  in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers  of  the  Court  and  does  not  confer  any  new  powers  but preserves  the  powers  which the  High Court  already possessed.  A harmonious construction of Sections 397 and 482 would lead to the irresistible  conclusion  that  where  a  particular  order  is  expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court  can  ordinarily  be  exercised  when  there  is  no  express provision  on  the  subject-matter.  Where  there  is  an  express

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provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.” (Emphasis supplied by us).

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.

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.

26. In this context, reliance on  Antulay  is completely misplaced. In that

case,  this  Court  was  concerned  with  Section  9  of  the  Criminal  Law

Amendment Act of 1952 which reads as follows:

9. Appeal and revision -The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (5 of 1898) on a High Court  as  if  the Court  of the Special  Judge were a Court  of Session  trying cases  without  a  jury  within  the  local  limits  of  the jurisdiction of the High Court.

It is quite obvious that the Section is with reference to the Cr.P.C. of 1898

and not the Cr.P.C. of 1973. The law as it stood with reference to the Cr.P.C.

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of 1898 is radically different from the law with reference to the Cr.P.C. of

1973.  Moreover  and  quite  obviously,  since  this  Court  had  directed  in

Antulay that the trial would have to be conducted not by the Special Judge

but by the High Court, no revision would lie to the High Court from its own

order. Therefore,  we  are  of  opinion that  the  appellants  cannot  draw any

support for their submissions from Antulay.  

27. Our conclusion on this subject is that while the appellants might have

an entitlement (not a right) to file a revision petition in the High Court but

that entitlement can be taken away and in any event, the High Court is under

no obligation to entertain a revision petition – such a petition can be rejected

at the threshold. If the High Court is inclined to accept the revision petition

it can do so only against a final order or an intermediate order, namely, an

order which if set aside would result in the culmination of the proceedings.

As we see it, there appear to be only two such eventualities of a revisable

order and in any case only one such eventuality is before us. Consequently

the  result  of  paragraph 10 of  the  order  passed  by  this  Court  is  that  the

entitlement of the appellants to file a revision petition in the High Court is

taken  away  and  thereby  the  High  Court  is  deprived  of  exercising  its

extraordinary discretionary power available under Section 397 of the Cr.P.C.

             Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 16 of 53

28. However,  this  does  not  mean  that  the  appellants  have  no  remedy

available to them - paragraph 10 of the order does not prohibit the appellants

from approaching this Court under Article 136 of the Constitution. Therefore

all that has happened is that the forum for ventilating the grievance of the

appellants has shifted from the High Court to this Court. It was submitted by

one of the learned counsel that this is not good enough for the appellants

since  this  Court  is  not  obliged  to  give  reasons  while  dismissing  such  a

petition unlike the High Court which would necessarily have to give reasons

if it rejected a revision petition. In our opinion, the mere fact that this Court

could dismiss the petition filed by the appellants under Article 136 of the

Constitution  without  giving  reasons  does  not  necessarily  lead  to  the

conclusion that reasons will not be given or that some equitable order will

not be passed. The submission of learned counsel has no basis and is only a

presumption of what this Court might do. We cannot accept a submission

that has its foundation on a hypothesis.

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

             Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 17 of 53

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  of  the  Cr.P.C.?  This  was

considered and explained in Madhu Limaye which noticed the prohibition in

Section 397(2) of the Cr.P.C. and at the same time the expansive text of

Section 482 of the Cr.P.C. 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:

“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.”

31. The expanse of Section 482 of the Cr.P.C. was also discussed in great

detail in State of Haryana v. Bhajan Lal12 in the context of quashing a first

12  1992 Supp (1) SCC 335               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 18 of 53

information  report  or  a  complaint.  After  giving  several  illustrations,  this

Court cautioned that the power available under Section 482 of the Cr.P.C.

should be exercised in the “rarest of rare” cases. It was said:

“We also  give  a  note  of  caution  to  the  effect  that  the  power  of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

32. In  Satya  Narayan  Sharma  v.  State  of  Rajasthan13 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.

13  (2001) 8 SCC 607               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 19 of 53

33. Proceeding  on  this  basis,  what  is  the  nature  of  cases  that  we  are

presently dealing with? While  in  some appeals  the order  summoning the

appellant or the order for framing charges is in question (we have already

dealt  with  these  issues),  in  other  appeals  the  grievance  is  in  respect  of:

admission and denial of documents under Section 294  of the Cr.P.C. [SLP

(Crl)  No. 6912 of 2016 – Ashok Daga v. CBI and  SLP (Crl)  No. 7477 of

2016 – Mukesh Gupta v. CBI]; alteration of charge under Section 216 of the

Cr.P.C. [SLP (Crl) No. 8391 of 2016 – Mukesh Gupta v. CBI]; joint or single

trial under Sections 219 and 220 of the Cr.P.C. [SLP (Crl) No. 8703 of 2016

– Manoj K. Jayaswal v. CBI]; summoning additional accused persons [SLP

(Crl) No. 1441 of 2017 – Devendra Darda v. CBI]. A challenge to orders of

this non-substantive nature that can be agitated in a regular appeal is nothing

but an abuse of the process of the court.

34. How ridiculous a challenge can become was illustrated in Centre for

Public Interest Litigation v. Union of India14 wherein this Court cautioned

against challenging the appointment of the Special Public Prosecutor or his

assistant  advocates!  Quite  obviously,  these  are  tactics  employed  by  the

accused to delay the trial while the endeavour of Parliament is to expedite all

trials to prevent harassment to the accused. This has led to odd situations in

14  (2012) 3 SCC 117                Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 20 of 53

which some accused are desirous of continuing their harassment by delaying

the trial and then complaining about it. In any event, such orders cannot fall

in the “rarest of rare” category and can always be made a ground for appeal,

if necessary, after the final order is made since in respect of such orders even

a petition under Section 482 of the Cr.P.C. would not be maintainable.

Article 226 and Article 227 of the Constitution

35. It was submitted on behalf of the appellants that paragraph 10 of the

order passed by this  Court  prohibits  the appellants from approaching the

High Court under Articles 226 and 227 of the Constitution. In this context, it

was submitted that it is now well settled that judicial review by the High

Court and by this Court is a part of the basic structure of the Constitution

and this has been recognized in L. Chandra Kumar v. Union of India.15   

36. It was submitted by relying upon Shalini Shyam Shetty v. Rajendra

Shankar Patil16 that the jurisdiction of the High Court under Articles 226

and 227 of the Constitution is very vast and the principles for the exercise of

jurisdiction have been culled out in that decision by this Court on an analysis

of several earlier decisions.  The principles have been stated in paragraph 49

of the Report and are not repeated here.

15  (1997) 3 SCC 261 16  (2010) 8 SCC 329

             Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 21 of 53

37. There is no doubt that the power of superintendence available to the

High Court under Article 227 is extremely vast but at the same time as held

in  Shalini  Shyam Shetty  the  High  Court  cannot  exercise  that  power  of

superintendence on the drop of a hat.   In addition, in exercise of its power of

superintendence the High Court cannot correct mere errors of law or fact

only  because  another  view  is  possible.   What  is  more  important  is  the

following principle that has been culled out:  

“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.”   

38. The  Cr.P.C. 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

             Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 22 of 53

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.

39. In any event, if such a one in a million case does arise, the appellants

can  certainly  approach  this  Court  for  relief  under  Article  136  of  the

Constitution.

40. While  there can be no doubt  that  the jurisdiction  of  a  High Court

under Articles 226 and 227 cannot be curtailed, yet extraordinary situations

could  arise  where  it  would  be  advisable  for  a  High  Court  to  decline  to

interfere.  In Kartar Singh v. State of  Punjab17 this  Court  considered the

“nagging question” whether an accused could approach the High Court for

the grant of bail under Article 226 of the Constitution in a case arising out of

an offence under the Terrorist and Disruptive Activities (Prevention) Act of

1985 and 1987 or the TADA Act. In that context, this Court took the view

that given the special nature of the statute, if a High Court entertains a bail

17  (1994) 3 SCC 569               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 23 of 53

application  invoking  its  extraordinary  jurisdiction  under  Article  226  and

passes  orders,  the  very  scheme  and  object  of  the  TADA  Act  and  the

intendment of the Parliament would be completely defeated and frustrated. It

was held that a High Court would interfere, if at all, only in extreme and rare

cases and additionally, judicial discipline and comity of courts require that

High Courts should refrain from exercising their jurisdiction in entertaining

bail applications, more particularly since this Court could grant relief in an

appropriate case under Article 136 of the Constitution.  It was held:

“Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order (not being  an  interlocutory  order)  of  a  Designated  Court  etc.  The overriding  effect  of  the  provisions  of  the  Act  (i.e.  Section  25  of TADA Act)  and the  Rules  made thereunder  and the  non-obstante clause  in  Section  20(7)  reading,  “Notwithstanding  anything contained in the Code….” clearly postulate that in granting of bail, the special provisions alone should be made applicable. If any party is  aggrieved  by  the  order,  the  only  remedy  under  the  Act  is  to approach the Supreme Court by way of an appeal. 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 the Parliament would be completely defeated and frustrated. But at the 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 Mohammed18 that if the High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only

18  (1994) 2 SCC 664               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 24 of 53

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  strait-jacket.  However,  we  would  like  to  emphasise  and re-emphasise that the judicial discipline and comity of courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail  applications in respect of  an accused indicted under the special Act since this Court has jurisdiction to interfere and correct  the  orders  of  the  High  Courts  under  Article  136  of  the Constitution.”

This was reaffirmed subsequently in the decision in the following words:

“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, 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.”

41. There is therefore nothing extraordinary if this Court were to pass an

order that in a certain identified category of cases, the High Court ought not

to interfere and leave it to this Court to take a decision in the matter in larger

public interest, which this Court has already seen and explained.  

Violation of Article 14 of the Constitution

42. According to learned counsel for the appellants, paragraph 10 of the

order violates the provisions of Article 14 of the Constitution inasmuch as

the appellants are denied equal protection of the law by being singled out to

have their case dealt with by a special procedure not provided for by law.  In

this regard, reliance is placed on paragraph 81 and the discussion following               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 25 of 53

that  paragraph  in  Antulay.  Reliance  was  also  placed  on  State  of  West

Bengal v. Anwar Ali Sarkar.19

43. In our opinion, it is not as if one single case has been taken up for

allegedly discriminatory treatment out of an entire gamut of cases.  All the

cases relating to the allocation of coal blocks have been compartmentalized

and are required to be treated and dealt with in the same manner.  The coal

block  allocation  cases  form  one  identifiable  category  of  cases  that  are

distinct from other cases since they have had a massive impact on public

interest  and  there  have  been  large  scale  illegalities  associated  with  the

allocation  of  coal  blocks.   It  is  therefore  necessary  to  treat  these  cases

differentially since they form a unique identifiable category.  The treatment

of these cases is certainly not arbitrary – on the contrary, the classification is

in public interest and for the public good with a view to bring persons who

have allegedly committed corrupt activities,  within the rule of law.  It  is

hence not possible to accept the submission that by treating the entire batch

of coal block allocation cases in a particular manner different from the usual

cases  that  flood  the  Courts,  there  is  a  violation  of  Article  14  of  the

Constitution.

19  1952 SCR 284               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 26 of 53

44. In Kedar Nath Bajoria v. State of West Bengal20 this Court explained

Anwar Ali Sarkar and held that it proceeded on the basis that no identifiable

principle was laid down for the trial of a case by the Special Court except

that it was for the “speedier trial of certain offences”. However, where there

is  a  definite  objective  that  furnishes  a  tangible  and  rational  basis  of

classification,  then  there  would  be  no  violation  of  Article  14  of  the

Constitution. A distinction was drawn between discrimination with reason

and discrimination without reason. No general rule can be laid down and it

would  depend  on  the  relevant  facts  in  each  situation  and  a  practical

assessment of the law. In this context, it was said:

“Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of Article 14 must be determined in each case as it arises, for, no general rule applicable  to  all  cases  can  safely  be  laid  down.  A  practical assessment  of  the  operation  of  the  law  in  the  particular circumstances is necessary. There are to be found cases on each side of the line:  Anwar Ali Sarkar case is an authority on one side; the Saurashtra case21 is on the other. Apart from dicta here and there in the  course  of  the  judgments  delivered  in  these  cases  and  the decisions  based  on  them,  there  is  no  real  conflict  of  principle involved in them. The majority decision in  Anwar Ali Sarkar case proceeded  on  the  view  that  no  standard  was  laid  down  and  no principle or policy was disclosed in the legislation challenged in that case,  to  guide  the  exercise  of  discretion  by  the  Government  in selecting a “case” for reference to the Special Court for trial under the special procedure provided in the Act. All that was relied on as indicative  of  a  guiding  principle  for  selection  was  the  object,  as disclosed in the preamble of the West Bengal Act, of providing for the  “speedier  trial  of  certain  offences”,  but  the  majority  of  the

20  1954 SCR 30 21  1952 SCR 435

             Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 27 of 53

learned Judges  brushed  that  aside  as  too  indefinite  and vague  to constitute a reasonable basis for classification.”

It was then said:

“It will be seen that the main reasoning of the majority Judges in Anwar Ali Sarkar case as disclosed in the passages extracted above is hardly applicable to the statute here in question which is based on a  classification  which,  in  the  context  of  the  abnormal  post-war economic and social conditions is readily intelligible and obviously calculated  to  subserve  the  legislative  purpose.  The  case,  in  our opinion, falls on the same side of the line as the  Saurashtra ruling where  Anwar Ali  Sarkar’s case was distinguished by three of the learned  Judges  who  were  parties  to  the  majority  decision  in  the earlier  case.  Fazl  Ali,  J.  observed:  “There  is  however  one  very important difference between the West Bengal Act and the present Ordinance which, in my opinion, does afford such justification (for upholding the Ordinance), and I shall try to refer to it as briefly as possible.  I  think  that  a  distinction  should  be  drawn  between discrimination without reason and discrimination with reason…. The main  objection  to  the  West  Bengal  Act  was  that  it  permitted discrimination without reason or without any rational basis....  The mere mention of “speedier trial” as the object  of  the Act did not “cure the defect”, as the expression “afforded no help in determining what  cases  required  speedier  trial  ...  The  clear  recital  (in  the Saurashtra  Ordinance)  of  a  definite  objective  furnishes  a  tangible and rational basis of classification to the State Government for the purpose  of  applying  the  provisions  of  the  Ordinance  and  for choosing  only  such  offences  or  cases  as  affect  public  safety, maintenance  of  public  order  and  the  preservation  of  peace  and tranquillity…..”

45. Insofar as the present appeals are concerned, the cases fall in a class

apart, arising as they do out of the illegal and unlawful allocation of coal

blocks.  It  is  only in respect  of  these cases that  this  Court  monitored the

investigations and it  is  only  in  respect  of  these cases  that  the order  was

passed by this Court on 25th July, 2014. The cases are concerned with large

             Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 28 of 53

scale corruption that polluted the allocation of coal blocks and they form a

clear and distinct class that need to be treated in a manner different from the

cases that our justice delivery system usually deals with.  The classification

being identifiable and clear, we do not see any violation of Article 14 of the

Constitution.  

46. Learned counsel for the appellants then submitted that in effect, this

Court has legislated and that it was not permissible to do so. In our opinion,

it is not that this Court has legislated, otherwise every order passed by this

Court giving special  treatment to a case (such as an out of turn hearing)

would amount to legislation. Learned counsel have mixed up legislation in

the classical sense and giving special treatment to an identifiable class of

cases. The order passed by this Court does not amount to legislating in the

classical mould but according special treatment to a class of cases for good

and clear reason and in larger public interest as well as in the interest of the

accused.    

Violation of Article 21 of the Constitution

47. It was submitted that the right to life and liberty guaranteed by Article

21 of the Constitution has also been restricted by paragraph 10 of the order

passed by this Court.  The submission made in this regard was that there are

certain  procedural  safeguards  provided  by  statutes  and  these  have  been

             Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 29 of 53

denied to the appellants or in any event restricted or constricted by a judicial

order and therefore the procedure established by law has been compromised.

It is further submitted that the procedure which the appellants are subjected

to is not just, fair and reasonable.

48. This contention of learned counsel  for  the appellants also deserves

rejection.  No procedural safeguard has been denied to the appellants and it

is a complete misnomer to say that any statutory right has been restricted or

constricted by a judicial  order.  The remedies available  to the appellants

continue to be available to them except that the forum has been shifted from

the High Court to this Court in larger public interest.   

49. It must not be forgotten that the cases arising out of the coal block

allocations are not ordinary cases but fall under a special or distinct category

which  requires  special  attention  given  the  magnitude  of  the  illegalities

allegedly committed including some with criminal intent.  It is in this view

of  the  matter  that  this  Court  had  no  option  but  to  hand  over  the

investigations to the CBI and to monitor the investigations so that they reach

their  logical  conclusion,  without any interference from any quarter.  The

magnitude of the illegalities is such that it appears that even the integrity of

the Director of the CBI was prima facie compromised, and this Court had to

intervene and direct investigations into the conduct of the Director of the

             Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 30 of 53

CBI.  That being so, it can hardly be said with any degree of seriousness that

the procedure adopted by this Court, in the facts and circumstances of the

case, violate any right to the life and liberty of any of the appellants or any

other  persons  allegedly  involved  in  the  criminality  associated  with  the

allocation of coal blocks.

Article 32 and Article 142 of the Constitution

50. It  was  submitted  that  paragraph  10  of  the  order  contravenes  the

fundamental right of the appellants to access justice and an accused person

cannot  be  deprived  of  this  fundamental  right  even  by  a  judicial  order.

Reliance  was  placed  on  Naresh  Shridhar  Mirajkar  &  Ors  v.  State  of

Maharashtra.22  It was further submitted that in the garb of doing complete

justice, this Court could not deprive the appellants of their right to access

justice.

51. It  is  no  doubt  true  that  the  words  ‘complete  justice’ appearing  in

Article 142 of the Constitution enable this Court to exercise extremely wide

powers but there is also no doubt that the power is ancillary and can be made

use of only when it is not in conflict with the substantive provisions of any

law.  This has been the view expressed by several larger Benches of this

Court including in  Mirajkar and Antulay and was also settled in Supreme 22   (1966) 3 SCR 744

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Court Bar Association v. Union of India.23  It is not necessary for us to

further elucidate this position or to elaborate on it.

52. While it is true that the fundamental rights of a citizen cannot be taken

away even by an order of the court except where a restriction is placed by

the statute such as remanding an accused to judicial custody, no right of the

appellants has been curtailed by this Court by the order under consideration.

As repeatedly emphasized, it is only the forum in which the right to seek

relief  has  been  varied,  and  not  denied.   We  do  not  see  how  this  is

impermissible  or  contrary  to  any  law  or  any  fundamental  right  of  the

appellants.

53. This Court is undoubtedly obliged to protect the fundamental rights of

the  people  in  the  country  in  accordance  with  the  Constitution,  but  it  is

equally true that while doing so public interest cannot be flung out of the

window. It is now time for all of us including the courts to balance the right

of an accused person vis-à-vis the rights and interests of individual victims

of a crime and society.  Very often,  public interest  is  lost  sight  of while

dealing with an accused person and the rights of an accused person are given

far greater importance than societal interests and more often than not greater

importance than the rights of individual victims.  This is a delicate balance 23  (1998) 4 SCC 409

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to be struck and we do not see any curtailment of any fundamental right of

the appellants or any violation of any substantive law if there is a change in

the forum in the exercise of the rights of the appellants given the nature of

the allegations against them and the wide impact on society.  It is not as if

the appellants have been denuded of their rights.  It is only that their rights

have been placed in the proper perspective and they have been enabled to

exercise their rights before another forum.

54. In State of Punjab v. Rafiq Masih24 this Court considered the powers

under Article 142 of the Constitution.  It was held that this Article enables

this Court to pass such an enforceable decree or order as is necessary for

doing complete justice in any case or matter.  While discussing the meaning

of the expression “complete justice”, this Court took the view that there were

several decisions that have been rendered which made it clear that though

the powers are wide, nevertheless, the power is ancillary and could be used

when not necessary in conflict with substantive provisions of law.  Article

142  of  the  Constitution  is  supplementary  in  nature  and  cannot  supplant

substantive provisions of the statute.  It is the power that gives preference to

equity over the law enabling the moulding of a relief as distinguished from a

declaration of law as contemplated under Article 141 of the Constitution.

24  (2014) 8 SCC 883               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 33 of 53

While  directions  issued  under  Article  142  of  the  Constitution  do  not

constitute a binding precedent, a declaration of law under Article 141 of the

Constitution does constitute a binding precedent.

Stay of proceedings

55. The penultimate submission of learned counsel for the appellants was

that the High Court has an inherent power to stay proceedings in a criminal

case.  Reliance  was  placed  on  Income Tax  Officer  v.  M.K.  Mohammed

Kunhi25 wherein it was categorically held by this Court that the Income Tax

Appellate  Tribunal  must  be  held  to  have  the  power  to  grant  a  stay  as

incidental or ancillary to its appellate jurisdiction.  Reference was also made

to  Satish Mehra v. State (NCT of Delhi).26 There is no doubt that a High

Court  has an inherent power to grant  a stay of proceedings and it  is  not

necessary to labour any further on this issue.                                                    

56. However, it was then submitted that in passing the order of 25 th July,

2014 this Court has prevented the grant of any interim stay by any court and

has  even otherwise  gone beyond its  remit  as  stated  in  Vineet  Narain v.

Union of India27 wherein it was specifically held that the task of monitoring

investigations by a court is over the moment a charge sheet is filed in respect

25   AIR 1969 SC 430 26   (2012) 13 SCC 614 27   (1998) 1 SCC 226

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of a particular investigation.  It was submitted that paragraph 10 of the order

permits the continuation of the monitoring process at the stage of trial as

well and therefore goes beyond the stage of investigation.  In other words, it

was submitted that  the terms of  the order  passed by this  Court  result  in

monitoring and supervising the trials by this Court, which is impermissible.

57. There is obviously some misconception in this regard as far as the

appellants are concerned.  This Court is not in any manner monitoring the

progress of the trial in the coal block allocation cases nor is it supervising

the trial.  Conducting the trial is entirely the business of the learned Special

Judge.  Paragraph  10  of  the  order  only  results  in  the  removal  of  any

impediment in the progress of the trial.  To ensure that the trial is concluded

at  the earliest  not  only in the interest  of the accused persons but  also in

public  interest, any application intended to stay or impede the trial will be

subject to orders of this Court.  This out of the ordinary step has been taken

given the serious nature of allegations made against  those believed to be

involved in the illegal allocation of coal blocks and in the interest of the

accused as well as in larger public interest. As mentioned above, there is a

need for maintaining a balance between the rights of an accused and the

rights of an individual victim and society.

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58. In Vineet Narain it was further observed by this Court that a proper

investigation must be followed by an equally effective prosecution so as not

to make the exercise completely futile.  This is an important aspect of the

rule  of  law, the  emphasis  being  on  a  strong  and  competent  prosecution

machinery and not merely a fair and competent investigation followed by an

equally fair trial. This is in the nature of an entire package and to obtain

appropriate  results  (one  way  or  the  other)  is  to  ensure  there  is  no

unnecessary impediment in a trial, in the form of a stay of proceedings or in

any other manner. The emphasis given by learned counsel on the right of the

appellants to apply for a stay of proceedings gives the impression that the

appellants are primarily concerned with an interim order of stay and not in

the conclusion of the trial. It should be clear that a stay of proceedings is not

the most important part of a trial and should not be the main or the sole

objective  of  an  accused.  We  need  to  think  beyond  a  stay  of  criminal

proceedings which has played havoc with our criminal justice delivery.    

59. The submission that paragraph 10 of the order passed by this Court

fetters the discretion of the High Court in granting a stay of proceedings

proceeds on the assumption that the High Court has an unfettered discretion

to  stay  a  trial.  This  is  simply  not  so  –  the  stay  of  a  trial  is  a  rather

extraordinary step and cannot be given for the asking.   

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60. In  this  context,  we  may  note  that  we  are  not  concerned  with  any

ordinary  criminal  trial,  but  a  trial  for  an  offence  punishable  under  the

provisions  of  the  Prevention  of  Corruption  Act,  1988.  We  may  draw

attention  to  the  Statement  and  Objects  and  Reasons  for  introducing  the

Prevention of Corruption Bill in Parliament, with which we are concerned. It

is stated, inter alia, that “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.”  Both  these  objectives  have  been  incorporated  in  the

provisions of the Prevention of Corruption Act, 1988 through Section 19 and

Section 4 thereof. For the present we are concerned with Section 4 of the

Prevention of Corruption Act, 1988 which provides in sub-Section (4) as

follows:

“Notwithstanding  anything  contained  in  the  Code  of  Criminal Procedure,  1973  (2  of  1974),  a  special  Judge  shall,  as  far  as practicable, hold the trial of an offence on day-to-day basis.”

It is clear that the intention of Parliament, which ought to be respected, is the

expeditious  conclusion  of  a  trial  on  a  day-to-day  basis  without  any

impediment and certainly not an impediment through a stay of proceedings

granted for the asking as if it were an ordinary criminal trial.  

Prevention of Corruption Act               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 37 of 53

64. A reading of Section 19(3) of the PC Act indicates that it deals with

three situations: (i) Sub-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) Sub-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 concerned authority 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) Sub-clause (c) provides for a blanket

prohibition against a stay of proceedings under the PC Act even if there is a

failure of justice [subject of course to sub-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  sub-clause  (b)  and sub-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

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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.

66. Sub-section (4) of Section 19 of the PC Act is also important in this

context  inasmuch  as  the  time  lapse  in  challenging  an  error,  omission  or

irregularity in the sanction resulting in a failure of justice is of considerable

significance. Unless the challenge is made at the initial stages of a trial and

within  a  reasonable  period  of  time,  the  court  would  not  be  obliged  to

consider the absence of, or any error, omission or irregularity in the sanction

for  prosecution.   Therefore,  it  is  not  as  if  the  accused  can,  after  an

unreasonable delay, raise an issue about the sanction; but  if  that accused

does so, the court may not decide that issue both at the appellate stage as

well as for the purposes of stay of the proceedings.

67. In  Central Bureau of Investigation v. V.K. Sehgal28 it was held that

for determining whether the absence of or any error, omission or irregularity

28  (1999) 8 SCC 501               Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)               Page 41 of 53

in the grant of sanction has occasioned or resulted in a failure of justice, the

court has a duty to consider whether the accused had raised any objection on

that score at the trial stage.  Even if it had been raised at the trial and early

enough, it would not be sufficient to conclude that there was a failure of

justice.  Whether in fact and in law there was a failure of justice would differ

from case to case but it was made clear that if such an objection was not

raised in the trial, it certainly cannot be raised in appeal or in revision.  It

was explained that a trial  involves judicial  scrutiny of the entire material

before the Special Judge.  Therefore, if on a judicial scrutiny of the evidence

on record the Special Judge comes to a conclusion that there was sufficient

reason to convict the accused person, the absence or error or omission or

irregularity would actually become a surplusage.  The necessity of a sanction

is only as a filter to safeguard public servants from frivolous or mala fide or

vindictive prosecution.  However, after judicial scrutiny is complete and a

conviction is made out through the filtration process, the issue of a sanction

really would become inconsequential. It was held in paragraphs 10 and 11 of

the Report as under:

“A court of appeal or revision is debarred from reversing a finding (or  even an order  of  conviction and sentence)  on account  of any error or irregularity in the sanction for the prosecution, unless failure of  justice  had  been  occasioned  on  account  of  such  error  or irregularity. For determining whether want of valid sanction had in fact  occasioned  failure  of  justice  the  aforesaid  sub-section  (2)

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enjoins  on the  court  a  duty  to  consider  whether  the  accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court…...

In  a  case  where  the  accused failed  to  raise  the  question of  valid sanction  the  trial  would  normally  proceed  to  its  logical  end  by making a judicial scrutiny of the entire materials. If that case ends in conviction  there  is  no  question  of  failure  of  justice  on  the  mere premise  that  no  valid  sanction  was  accorded  for  prosecuting  the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that  they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.”

68. In enacting Section 19 of  the PC Act  in  the  manner  which it  did,

Parliament has made it abundantly clear that it is extremely concerned about

ensuring that trials under the PC Act are concluded expeditiously not only in

the  interest  of  the  accused  but  also  in  public  interest.  This  concern  of

Parliament must be respected.

69. To doubly ensure that there is no ‘indirect’ stay of proceedings by

calling for the records of the Special Judge while dealing with a revision

petition  filed  by  an  accused person,  Section  22 of  the  PC Act  has  been

enacted with reference to Section 397(1) of the Cr.P.C.  By virtue of Section

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22(d)  of  the PC Act,  a proviso has been added to Section 397(1)  of  the

Cr.P.C. which makes it clear that the court exercising revision jurisdiction

shall  not  ordinarily  call  for  the  record  of  the  proceedings  unless  certain

conditions are fulfilled.  The proviso reads as follows:

“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.”

70. By adding the proviso to Section 397(1) of the Cr.P.C. 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

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Parliament is that there should not be any impediment in the trial of a case

under the PC Act.

71. What does the expression ‘failure of justice’ mean? In  Shamnsaheb

M. Multani v. State of Karnataka29 it was held that the expression ‘failure of

justice’ is too pliable or facile an expression which could be fitted in any

situation.  The criminal court, particularly the superior court should make a

close examination to ascertain whether there was really a failure of justice or

whether it is only a camouflage.  It was held in paragraphs 23 and 24 of the

Report as follows:

“We  often  hear  about  “failure  of  justice”  and  quite  often  the submission  in  a  criminal  court  is  accentuated  with  the  said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression “failure of justice”  would  appear,  sometimes,  as  an  etymological  chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment30). The criminal court, particularly the superior court should make a close examination to ascertain whether there  was  really  a  failure  of  justice  or  whether  it  is  only  a camouflage.

One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is  of  such  a  nature  that  non-explanation  of  it  has  contributed  to penalising an individual, the court should say that since he was not given  the  opportunity  to  explain  that  aspect  there  was  failure  of justice on account of non-compliance with the principle of natural justice.”

29  (2001) 2 SCC 577 30  1978 AC 359

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72. This decision was followed in State of M.P. v. Bhooraji31 and also in

Rattiram  v.  State  of  M.P.32 In  the  latter  decision,  it  was  held  that  the

expression ‘failure of justice’ must be given its due significance otherwise

every procedural lapse or interdict could be interpreted to result in a failure

of justice making the criminal justice delivery system completely illusory.

Rattiram dealt with non-compliance with Section 193 of the Cr.P.C. and it

was  held  that  this  did  not  result  in  a  failure  of  justice.  It  was  held  in

paragraphs 65 and 66 of the Report as follows:

“We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature,  every  procedural  lapse  or  interdict  would  be  given  a privileged  place  on  the  pulpit.  It  would,  with  unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage.  It  is  to  be borne in mind that  the legislature  deliberately  obliterated  certain  rights  conferred  on  the accused at the committal stage under the new Code. The intendment of the legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

Judged  from  these  spectrums  and  analysed  on  the  aforesaid premises, we come to the irresistible conclusion that the objection relating  to  non-compliance  with  Section  193 of  the  Code,  which eventually  has  resulted  in  directly  entertaining  and  taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled  Tribes  (Prevention  of  Atrocities)  Act,  1989,  does  not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the  decision  rendered  in  Bhooraji lays  down  the  correct  law

31  (2001) 7 SCC 679 32  (2012) 4 SCC 516

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inasmuch as there is no failure of justice or no prejudice is caused to the accused.”

73. In  Bhooraji33 this Court concluded that in the event of a failure of

justice, a de novo trial could be ordered but that should be the last resort and

only when such a course becomes desperately indispensable. If the “core” of

the case is not affected but there are some procedural illegalities that would

not  be a  good ground for  ordering a  de novo trial.  “This  is  because  the

appellate  court  has  plenary  powers  for  revaluating  and  reappraising  the

evidence and even to take additional evidence by the appellate court itself or

to direct such additional evidence to be collected by the trial court.”

74. Interestingly, in an Advisory Opinion given by the International Court

of Justice34 one of the questions referred was as follows:

“Has  the  Tribunal  (United  Nations  Administrative  Tribunal) committed a fundamental error in procedure which has occasioned the  failure  of  justice  as  contended  in  the  application  to  the Committee for Review of Administrative Tribunal Judgements?”   

75. In the Advisory Opinion, the International Court considered Article 11

of  the  Statute  of  the  United  Nations  Administrative  Tribunal  (as  it  then

stood).  The words ‘which has occasioned a failure of justice’ appearing in

that Article were introduced at the 499th meeting of the Fifth Committee on

the proposal of the Indian delegation which stated:

33  (2001) 7 SCC 679 34  Application for Review of Judgment No.158 of the United Nations  Administrative Tribunal, Advisory Opinion, ICJ Reports 1973, p.166

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“Another ground for review provided in the proposed new Article 11 was the commission of a fundamental error in procedure. The use of the word ‘fundamental’ was intended to preclude review on account of trivial errors in procedure or errors that were not of a substantial nature. In order to make the intention clearer, the Indian delegation would suggest  that  the  phrase  ‘which has  occasioned a failure of justice’ should  be  inserted  after  the  words  ‘fundamental  error  in procedure’ in the text of the article.”

76. While considering the interpretation of the expression ‘a fundamental

error in procedure which has occasioned a failure of justice’ the International

Court of Justice expressed the view that to constitute a failure of justice an

error  in  procedure  is  fundamental  when  it  is  of  the  kind  where  the

fundamental right of a staff member to present his case, either orally or in

writing is denied.  The International Court then proceeded to identify certain

elements of the right to hearing well recognized as for instance the right to

an independent and impartial tribunal established by law; the right to have

the  case  heard  and  determined  within  a  reasonable  time;  the  right  to  a

reasonable opportunity to present the case to the tribunal and to comment

upon the opponent case; the right to equality in the proceedings vis-à-vis the

opponent; and the right to a reasoned decision.   It was stated in paragraph

92 of the Advisory Opinion as follows:-

“It  may not be easy to state exhaustively what is involved in the concept of “a fundamental error in procedure which has occasioned a failure of justice”. But the essence of it,  in the cases before the Administrative Tribunal, may be found in the fundamental right of a staff member to present his case, either orally or in writing, and to have it considered by the Tribunal before it determines his rights. An

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error  in  procedure  is  fundamental  and  constitutes  "a  failure  of justice” when it is of such a kind as to violate the official's right to a fair  hearing as above defined and in that sense to deprive him of justice. To put the matter in that way does not provide a complete answer  to  the  problem  of  determining  precisely  what  errors  in procedure  are  covered  by  the  words  of  Article  11.  But  certain elements  of  the  right  to  a  fair  hearing  are  well  recognized  and provide  criteria  helpful  in  identifying  fundamental  errors  in procedure which have occasioned a failure of justice: for instance, the right to an independent and impartial tribunal established by law; the right to have the case heard and determined within a reasonable time; the right to a reasonable opportunity to present the case to the tribunal  and  to  comment  upon  the  opponent's  case;  the  right  to equality in the proceedings vis-à-vis the opponent; and the right to a reasoned decision.”  

77. An allegation of ‘failure of justice’ is a very strong allegation and use

of an equally strong expression and cannot be equated with a miscarriage of

justice or a violation of law or an irregularity in procedure – it is much more.

If  the  expression  is  to  be  understood  as  in  common parlance,  the  result

would be that seldom would a trial reach a conclusion since an irregularity

could take place at any stage, inadmissible evidence could be erroneously

admitted,  an  adjournment  wrongly  declined  etc.  To conclude,  therefore,

Section 19(3)(c) of the PC Act must be given a very restricted interpretation

and we cannot  accept  the  over-broad interpretation canvassed by learned

counsel for the appellants.  

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78. In Centre for Public Interest Litigation v. Union of India35 this Court

passed the following order on 11th April, 2011 in what is now, commonly

known as the 2G Spectrum Scam cases:

“We also make it clear that any objection about the appointment of Special Public Prosecutor or his assistant advocates or any prayer for staying or impeding the progress of the trial can be made only before this Court and no other court shall entertain the same. The trial must proceed on a day-to-day basis.

All these directions are given by this Court in exercise of its power under Article 136 read with Article 142 of the Constitution and in the interest of holding a fair prosecution of the case.”

79. The aforesaid order came up for consideration before this Court in

Shahid Balwa v. Union of India.36  

80. While dealing with the submissions made in relation to the aforesaid

order (submissions that are similar to those made before us) this Court held

that considering the width and ambit of the investigation which could even

spread overseas and also considering the larger public interest, the aforesaid

order was passed reserving the right of the accused to move this Court if

there is a grievance against the order passed by the Special Judge during the

trial and that this would ensure that progress in the trial is not hampered.

Such an order was permissible under the provisions of Article 136 read with

Article  142 of  the  Constitution.   It  was  also  made clear  that  the  parties

35  (2012) 3 SCC 117 36  (2014) 2 SCC 687

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cannot invoke the jurisdiction under Article 226 or 227 of the Constitution or

under Section 482 of the Cr.P.C. so as to ensure compliance with the orders

passed by this  Court  otherwise the very purpose and object  of  the order

would be defeated.  This Court held in paragraphs 22 and 23 of the Report as

follows:

“We may,  at  the  very  outset,  point  out  that  CBI  as  well  as  the Enforcement Directorate are yet to complete the investigation of the cases relating to 2G Scam and the case which is being tried by the Special Judge is only one amongst them, wherein the charge-sheet has been filed and the trial is in progress.  This Court, taking into consideration the width and ambit of the investigation which even spreads overseas and the larger public interest involved, passed the orders impugned, reserving the right of all,  including the accused persons, to move this Court if their prayer would amount to staying or impeding the progress of the trial. In case they have any grievance against the orders passed by the Special Judge during trial, they are free to approach this Court so that the progress of the trial would not be  hampered  by  indulging  in  cumbersome  and  time-consuming proceedings in the other forums, thereby stultifying the peremptory direction given by this Court for day-to-day trial.

Article 136 read with Article 142 of the Constitution of India enables this  Court  to  pass  such  orders,  which  are  necessary  for  doing complete justice in any cause or matter pending before it and, any order so made, shall be enforceable throughout the territory of India. The  parties,  in  such  a  case,  cannot  invoke  the  jurisdiction  under Article 226 or 227 of the Constitution of India or under Section 482 CrPC so as to interfere with those orders passed by this Court, in exercise of its constitutional powers conferred under Article 136 read with Article 142 of the Constitution of India. Or, else, the parties will move courts inferior to this Court under Article 226 or Article 227 of the Constitution of India or Section 482 CrPC, so as to defeat the very purpose and object of the various orders passed by this Court in exercise of its powers conferred under Article 136 read with Article 142 of the Constitution of India.”

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81. It was further held that the order passed only facilitates the progress of

the trial by ordering that it must proceed on a day to day basis.  It was noted

that the backlog of cases is often an incentive to the litigants to take unfair

advantage of the delays and therefore, it  was necessary to pass the order

dated  11th April,  2011.   It  was  stated  as  follows  in  paragraph  31  of  the

Report:

“We also, therefore, find no basis in the contention of the petitioners that  the  orders dated 11-4-2011 and 9-11-2012 have the effect  of monitoring  the  trial  proceedings.  No  court,  other  than  the  court seized of the trial, has the power to monitor the proceedings pending before it. The order dated 11-4-2011 only facilitates the progress of the trial by ordering that the trial must proceed on a day-to-day basis. Large  backlog of  cases  in  the  courts  is  often  an  incentive  to  the litigants to misuse the courts’ system by indulging in unnecessary and fraudulent  litigation,  thereby delaying the entire  trial  process. Criminal  justice  system’s procedure  guarantees  and  elaborateness sometimes  give,  create  openings  for  abusive,  dilatory  tactics  and confer unfair advantage on better heeled litigants to cause delay to their  advantage.  Longer  the  trial,  witnesses  will  be  unavailable, memories  will  fade  and  evidence  will  be  stale.  Taking  into consideration all those aspects, this Court felt that it is in the larger public interest that the trial of 2G Scam be not hampered. Further, when larger public interest is involved, it is the bounden duty of all, including the  accused persons,  who are presumed to be innocent, until proven guilty, to cooperate with the progress of the trial. Early disposal of the trial is also to their advantage, so that their innocence could be proved, rather than remain enmeshed in criminal trial for years and unable to get on with their lives and business.”

Conclusion

82. In view of the above and the issue having already been agitated before

this  Court  and  negatived  (also  in  some  other  case)  we  do  not  think  it

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appropriate to revisit the order of 25th July, 2014 passed by this Court nor do

we think it appropriate to modify that order.  

…………………………..J                                                                ( Madan B. Lokur )

………………………….. J          ( Kurian Joseph )

                              …………………………..J New Delhi;                                                           ( A. K. Sikri ) July 13, 2017   

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