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Asian Resurfacing Of Road Agency v/s Central Bureau Of Investigation

Facts of the case.
That an F.I.R. dated 7th March 2001 had been recorded with the Delhi Special Police Establishment against the appellant and certain officers of MCD for allegedly causing of wrongful loss to the MCD by using fake invoices of Oil Companies relating to transportation of Bitumen for use in Dense Carpeting Works of roads in Delhi during the years 1997 and 1998.

After investigation, a charge sheet was filed against the appellant and certain employees of MCD by the respondent-CBI before the Special Judge, CBI, New Delhi on 28th November 2002. Thereafter, the appellants filed a discharge application with the Special Judge, CBI. The Special Judge, CBI, on 1st February 2007 directed framing of the charges against the appellants holding that there was a prima facie case against the appellants.

The appellants filed Criminal Revision No. 321 of 2007 before the Delhi High Court against the order framing charge. The Revision Petition was converted into Writ Petition (Criminal)No.352 of 2010.

The question of law framed by the Single Judge for consideration of the Division Bench.
The Hon'ble Single Judge of the Delhi High Court had framed one question of law after referring to the two earlier views of the High Court in Dharambir Khattar v. Central Bureau of Investigation [i] and R.C. Sabharwal v. Central Bureau of Investigation [ii]

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

In Dharambir Khattar (supra) the court had held that the order framing charges was an interlocutory order and in the context of Section 19 (3) (c) of the Prevention of Corruption Act, no revision petition would be maintainable in the High Court against such order passed by the Special Court. In R.C. Sabharwal (supra) the court had held that even though no revision could lie against an interlocutory order and at the same time, powers under Section 482 Cr.P.C. could not be exercised in derogation of the express bar in the statute, there was no bar to the constitutional remedy under Articles 226 and 227 of the Constitution.

In view of the two conflicting opinions in the abovementioned cases, the Single Judge of the Delhi High Court referred the same to the division bench to set the controversy at rest.

Questions of law framed by the Division Bench in the impugned judgment
  1. Whether an order framing charge under the 1988 Act would be treated as an interlocutory order thereby barring the exercise of the revisional power of this Court?
  2. Whether the language employed in Section 19 of the 1988 Act which bars the revision would also bar the exercise of power under Section 482 of the Cr.P.C. for all purposes?
  3. Whether the order framing charge can be assailed under Article 227 of the Constitution of India?

Discussions by the Hon'ble Supreme Court of India
The Supreme Court after referring to various judgments held that the order of framing of charge is an interlocutory order and therefore no revision petition u/s 401 Cr.P.C read with section 397 (2) Cr.P.C would lie against such order. The intent of the legislature behind such a specific bar of revision, against the interlocutory orders u/s 397 (2) Cr.P.C., was to check the delay in the final disposal of proceedings in criminal cases.[iii]

In Amarnath v. State of Haryana [iv] the court had held that the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial, or other proceedings, was to bring about expeditious disposal of the cases finally. It was because the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of proceedings.

The bar u/s 397 (2) Cr.P.C. would operate in the exercise of the revisional powers of the High Court. Thereby the courts would have no power of revision in cases of any interlocutory orders. Therefore, in the case of grievances of the aggrieved party against such interlocutory orders, the only remedy available would be the inherent powers of the High Court u/s 482 Cr.P.C.

But if the orders passed are purely interlocutory, which could be corrected only by revision petition u/s 397 (2) Cr.P.C, the High Court may refuse to exercise its inherent power.
But considering a situation that an interlocutory order brings out abuse of process of court or for the purpose of securing the ends of justice the interference by the courts is absolutely necessary, then nothing contained in section 397 (2) Cr.P.C would limit or affect the exercise of the inherent power of the High Court.

Therefore, 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 an abuse of the process of the 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 the express provision of law.

That regarding the petition under Article 227 of the Constitution of India, the powers under Article 227 are part of the basic structure of the Constitution and thus such powers could not be barred.[v] But it is also important that the powers under article 227 of the Constitution of India would only be used in consonance with the object that is sought to be achieved by the impugned act. Thus, the courts would refrain themselves from passing any order that would run counter to or would conflict with the express intendment contained in section 19 (3) (c) of the PC Act.[vi]

Therefore, the powers under section 482 Cr.P.C. and Article 227 of the Constitution can be exercised to grant stay against the order of frame of charge, but only in exceptional circumstances and in view of the intendment contained in section (3) (c) of the PC Act. The object of the aforesaid section is the expeditious conclusion of the trail on a day-to-day basis without any impediment through the stay of proceedings.

Earlier, the party against whom the order of charge was passed filed a revision challenging such order, which in turn would stay the entire proceedings against the accused and would cause a delay. Therefore, to check such a delay, the parliament in its wisdom introduced section 397 (2). The trial of the corruption cases is not permitted to proceed on account of a challenge to the order of frame of charge before the High Courts. And the High courts at the stage of challenge against the order of frame of charge, adopts the approach of weighing probabilities and reappreciating the material, which may certainly be a time-consuming exercise. The legislative policy of expeditious final disposal of the trial is thus, hampered. The correct approach is that the court only has to see whether the material on record reasonably connects the accused with the crime.[vii]

That even when the challenge to the order of charge is entertained, the decision of such a petition is not to be delayed. And when a stay is granted, the stay should not be an unconditional stay or an indefinite stay. To give effect to the legislative policy and the mandate of Article 21 for speedy justice in criminal cases, if a stay is granted, the matter should be taken on a day-to-day basis and concluded within two-three months.

And by virtue of this judgment, the court, in order to achieve an object which is set out in section 19 (3) (c) of the PC Act and the mandate of speedy trial, has held that matters which remain pending for a longer period, the order of stay will stand vacated on expiry of six months unless an extension is granted by a speaking order showing an extraordinary situation where the 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.

That order framing charge is not purely an interlocutory order nor a final order. The exercise of powers of the High Court is not barred under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution but must be exercised inconsistently 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 the rare case only to correct a patent error of jurisdiction and not to reappreciate the matter.

Even where such a challenge is entertained and stay is granted, the matter must be decided on a 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, the duration of stay should not exceed six months, unless an extension is granted by a specific speaking order, as already indicated.

In all pending matters before the High Courts or other courts relating to the PC Act or all other civil or criminal cases, where a 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 the above parameters. The 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 the above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced.

  1. 159 (2009) DLT 636
  2. 166(2010) DLT 362
  3. Madhu Limaye v. the State of Maharashtra, (1977) 4 SCC 551
  4. (1997) 4 SCC 137
  5. L. Chandra Kumar v. Union of India and Ors. (1997) 3 SCC 261
  6. Chandrashekhar Singh and Others v. Siya Ram Singh and Others (1979) 3 SCC 118
  7. Hardeep Singh versus State of Punjab (2014) 3 SCC 92

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