(2018)1 SCeJ 688

 

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Apex court vacates Stay In all pending matters, civlil or criminal, before the High Courts or other courts, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from 28.3.18 unless extended by a speaking order.

 

 

(i) Stay - 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 - 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.                                                                                       [Para 36]

(ii) Stay – Stay against proceedings of a civil or criminal trial is operating will end on expiry of six months from 28.3.2018,  the date of this order or 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  - 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 -  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 - 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 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.                                                                                                  [Para 35]

 

(iii) Stay - 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 corruption case -  Once stay is granted, proceedings should not be adjourned and concluded within two-three months - 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 accountability.                                                                                                             [Para 28, 30]

 

(iv) CrPC, Section 482 - Challenge against an order of framing charge  - Reiterate 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 of such jurisdiction has to be limited to rarest of rare cases.                    [Para 33]

 

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(V) CrPC, Section 482 - Challenge against an order of framing charge  - Principles  laid down -  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 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.                                                 [Para 33]

 

(vi) Cr.P.C. , Section 482 - 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, (2001) 8 SCC 607  and Navjot Sandhu (2003) 6 SCC 641.                                                                 [Para 13]

 

(vii) Constitution of India, Article 227  - As rightly noted, a Bench of seven Judges in L.Chandra Kumar, (1997) 3 SCC 261 held that power of the High Court to exercise jurisdiction under Article 227 was part of the basic structure of the Constitution.                     [Para 24]

 

(viii) Cr.P.C, Section 397(2) or 482 Cr.P.C. - Constitution of India, Article 227  - Order framing charge  - interlocutory order -  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 High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation - 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 - 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, (1977) 4 SCC 551 still holds the field -               [Para 25, 26]

 

(ix) Order  -  Framing of charge - Order of framing charge   - Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. [Para 36]

 

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(x) Cr.P.C. , Section 397 or 482 - Constitution  of India, Article 227 - Challenge to an order of framing of charge – Where stay is granted, the matter must be decided on day-to-day basis - 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 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 (28th March, 2018) 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.

                                                                                                                                                          [Para 36]

 

(xi) Prevention of Corruption Act, 1988, Section 2(c) - “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 public authority, office bearers of registered co-operative societies engaged in agriculture, industry, trade or banking, who receive financial aid from the Government, 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 - 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”. [Para 40]

 

(xii) Prevention of Corruption Act, 1988 Section 19(3)  - A perusal of Section 19(3) of the Act would show that the interdict against stay of proceedings under the 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 - 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 – 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 –

Held,

We are of the view this is correct view 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.

(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.

 (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.

(vii) Argument 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 is fallacious -  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  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, 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.

 

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(xiii) CrPC , Section 482 - Inherent power of a High Court to stay a trial under the Act - 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  - The High Court, being a superior court of record, is entitled to consider questions regarding its own jurisdiction when raised before it - 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 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 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 - 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 -  Stands overruled.                                                                       [Para 47, 49]

 

(xiv) Ratio in Girish Kumar Suneja v. C.B.I., (2017) 14 SCC 809 - 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 bench strength -  We 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.                                                        [Para 55]

 

 

(xv) Quote  - “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” .
                                                                                                                                                                   [Para 31]

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