Sharma Vs. State of Rajasthan  Insc 504 (25 September 2001)
Thomas Thomas, J.
in respectful agreement with the judgment drafted by brother Variava J. When
Parliament imposed an undiluted ban against granting stay of any proceedings
involving an offence under Prevention of Corruption Act 1988 (for short the
Act) on any ground whatsoever, no court shall circumvent the said ban through
any means. The reasons which prompted the Parliament to divest all the courts
in India of the power to stay the proceedings in the trial courts involving any
such offence, is to foreclose even the possible chance of delaying such trials
on account of any party to such proceedings raising any question before the
High Court during the pendency of trial proceedings.
Objects and Reasons for bringing the Act with new measures the law-makers
declared it in abundantly clear terms that a provision prohibiting the grant of
stay is included in the statute for speeding up the proceedings.
can be discerned from the following words:
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.
prohibition is couched in a language admitting of no exception whatsoever,
which is clear from the provision itself. The prohibition is incorporated in
sub-section (3) of Section 19 of the Act. The sub-section consists of three
clauses. For all the three clauses the controlling non-obstante words are set
out in the commencing portion as:
anything contained in the Code of Criminal procedure 1973.
none of the provisions in the Code could be invoked for circumventing any one
of the bans enumerated in the sub-section.
(a) of the sub-section prohibits reversal or alteration of any finding or
sentence or order passed by a Special Judge on the ground of absence of, or any
error, omission or irregularity in the sanction required for taking cognizance
of an offence punishable in the Act, unless in the opinion of the appellate or revisional
court a failure of justice has in fact occasioned thereby.
(b) contains the prohibition against stay of proceedings under this Act, but it
is restricted to sanction aspect alone. No error, omission or irregularity in
the sanction shall be a ground for staying the proceedings under this Act
unless it is satisfied that such error, omission or irregularity has resulted
in a failure of justice. In determining whether there was any such failure of
justice it is mandated that the court shall have regard to the fact whether the
objection regarding that aspect could or should have been raised at any earlier
stage in the proceedings. We may now point out that merely because objection
regarding sanction was raised at the early stage is not a ground for holding
that there was failure of justice. If the special judge has overruled the
objection raised regarding that aspect it is normally inconceivable that there
could be any failure of justice even if such objections were to be upheld by
the High Court. Overruling an objection on the ground of sanction does not end
the case detrimentally to the accused. It only equips a judicial forum to
examine the allegations against a public servant judicially. Hence it is an
uphill task to show that discountenance of any objection regarding sanction has
resulted in a failure of justice. The corollary of it is this: The High Court
would not normally grant stay on that ground either.
in clause (c) of the sub-section that the prohibition is couched in
unexceptional terms. It reads thus:
court shall stay the proceedings under this Act on any other ground.
mere fact that yet another prohibition was also tagged with the above does not
mean that the legislative ban contained in clause (c) is restricted only to a
situation when the High Court exercises powers of revision.
would be a misinterpretation of the enactment if a court reads into clause ( c
) of Section 19(3) a power to grant stay in exercise of inherent powers of the
informed that several High Courts, overlooking the said ban, are granting stay
of proceedings involving offences under the Act pending before courts of
Special Judges. This might be on account of a possible chance of missing the
legislative ban contained in clause ( c ) of sub-section (3) of Section 19 of
the Act because the title to Section 19 is previous sanction necessary for
prosecution. It could have been more advisable if the prohibition contained in
sub-section (3) has been included in a separate Section by providing a separate
distinct title. Be that as it may, that is no ground for by-passing the
legislative prohibition contained in the sub-section.
fully concur with the direction indicated by Variava J. in the judgment that
the Registrar of each High Court shall list the cases in which such stay was
granted by orders happened to be passed by such High Court and to board all
such cases before the appropriate bench without further delay. This is to
enable the High Court concerned to dispose of such matters in the light of this
K.T. Thomas ] September