Sharma Vs. State of Rajasthan  Insc 506 (25 September 2001)
Variava S. N. Variava, J.
Appeal is against an Order dated 25th April, 2001. By this Order a Criminal Miscellaneous Petition, under Section
482 of the Criminal Procedure Code, for quashing an Order dated 8th July, 1994 passed by a Special Judge
constituted under the Prevention of Corruption Act (hereinafter called the said
Act) has been dismissed.
On 8th July, 1984 the Trial Court took cognizance
against the Appellant for offences punishable under Sections 420, 467, 468 and
471 of the I.P.C. and Section 5(2) of the said Act. The Appellant then
approached the High Court with Miscellaneous Petition No. 578 of 1984 and got a
stay of the trial. Having obtained a stay of the trial the Miscellaneous
Petition was got adjourned. from time to time. By this method the Appellant has
successfully delayed trial for 7 years.
find that what has happened in this case is happening in a large number of
matters. Corruption in public offices is becoming rampant. When public servants
are sought to be prosecuted under the said Act, by filing revisions under
Section 397 Criminal Procedure Code or by filing petitions under Section 482
Criminal Procedure Code, stay of the trials are obtained and parties
successfully manage to delay the trials. The stays are granted by Courts
without considering and/or in contravention of Section 19(3)(c) of the said
Act. This has an adverse effect on combating corruption amongst public
servants. It has therefore become necessary to reiterate the law. We have thus
heard this Petition only on the question of law as to whether or not trials
under the Prevention of Corruption Act could be stayed.
submitted that by virtue of Section 27 of the said Act, the High Court can
exercise all the powers of appeal and revision under the Criminal Procedure
Code as if the Court of the Special Judge were a Court of Sessions. He further
submitted that Sections 22 and 23 of the said Act make it clear that the
Criminal Procedure Code would apply to proceedings before the Special Judge in
relation to an offence punishable under the said Act.
submitted that the inherent jurisdiction of the High Court under Section 482 of
the Criminal Procedure Code was distinct from its revisional jurisdiction. He
submitted that the Special
Court (under the said
Act) was subordinate to the High Court. He submitted that the inherent power,
vested in a High Court was not circumvented by the limitations which are there
whilst exercising revisional powers. He submitted that the power to pass an
interim order, like a stay order, was part of the inherent power of the Court.
He submitted that this must necessarily be so as otherwise the Court could not
effectively exercise the jurisdiction vested in it.
support of this last submission, he relied upon the case of Income Tax Officer
vs. M.K. Mohammed Kunhi, 1969 (2) S.C.R. 65. This was a case under the Income
Tax Act. Certain amounts were imposed as penalty upon the assessee for
concealment of income and for furnishing inaccurate particulars. The assessee
preferred appeals and prayed for stay of recovery of the penalties. The
Tribunal declined to grant stay on the ground that it had no power to do so.
The High Court held that the Tribunal had the inherent power to stay and
directed the Tribunal to dispose of the application for stay in accordance with
law. In appeal by the Income Tax Officer, this Court confirmed the findings of
the High Court that the Tribunal had power to stay recovery. This Court held
that the power of stay was incidental to the appellate jurisdiction of the
Court. It must immediately be noted that there was no statutory provision
barring grant of stay.
further submitted that both the High Courts and this Court have time and again
exercised inherent jurisdiction under Section 482 Criminal Procedure Code to
quash proceedings even under the said Act. He submitted that it takes a number
of years for matters to reach hearing. He submitted that it was absolutely
necessary that, during the pendency of such proceedings, there should be a stay
of the trial. He submitted that otherwise there would an anomalous position
inasmuch as the trial may conclude before the High Court has examined the
legality of the charge itself.
next submitted that the expression "no court" in Section 19 of the
said Act would not include the High Court. He submitted that it only apply to a
Court which had revisional jurisdiction over the Special Court. He submitted that many of the Judges of the Special Court were Assistant Sessions Judges. He
submitted that the revisional power would thus be exercised by the Sessions
next submitted that Section 19(3)(c) applies only to the revisional powers as
exercised under Section 397 Criminal Procedure Code and not to the inherent
jurisdiction, which a High Court exercises under Section 482 Criminal Procedure
other hand the learned Solicitor General points out the Statement of Objects
and Reasons of the Prevention of Corruption Act, 1988. The relevant portion of
the Statement of Objects and Reasons of the Prevention of Corruption Act, 1988
reads as follows :
The Prevention of Corruption Act, 1947, was amended in 1964 based on the
recommendations of the Santhanam Committee. There are provisions in Chapter IX
of the Indian Penal Code to deal with public servants and those who abet them
by way of criminal misconduct. There are also provisions in the Criminal Law Amendment
Ordinance, 1944, to enable attachment of ill-gotton wealth obtained through
corrupt means, including from transferees of such wealth. The Act seeks to
incorporate all these provisions with modifications so as to make the
provisions more effective in combating corruption among public servants.
Act inter alia, envisages widening the scope of the definition of the
expression "public servant", incorporation of offences under sections
161 to 165A of the Indian Penal Code, enhancement of penalties provided for
these offences and incorporation of a provision that the order of the trial
court upholding the grant of sanction for prosecution would be final if it has
not already been challenged and the trial has commenced. In order to expedite
the proceedings, provisions for day-to-day trial of cases and prohibitory
provisions with regard to grant of say and exercise of powers of a revision on
interlocutory orders have also been included." (emphasis supplied) The
learned Solicitor General Salve submitted that inherent jurisdiction of a Court
could not be exercised if there was a specific provision for redressal of the
grievances of the aggrieved party or against an express bar of law engrafted in
any other provision. He further submitted that inherent jurisdiction had to be
very sparingly exercised only to prevent abuse of process of any Court or to
secure the ends of justice. In support of this submission he relied upon the
cases of Madhu Limaye vs. The State of Maharashtra reported in 1977 (4) S.C.C.
551, Janata Deal vs. H.S. Chowdhary & others reported in 1992 (4) S.C.C.
305 and Indra Sawhney vs. Union of India and others reported in 2000 (1) S.C.C.
have heard the parties. Section 19(3)(c) of the said Act reads as follows :
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974). - xxx xxx xxx (c) no court shall stay the proceedings under this Act
on any other ground and no court shall exercise the powers of revision in
relation to any interlocutory order passed in any inquiry, trial, appeal or
other proceedings." It is thus to be seen that this Section provides:
no court should stay the proceedings under the Act on any ground and
no court shall exercise the powers of revision in relation to any interlocutory
order passed in any inquiry, trial, appeal or other proceedings.
noted that (b) above is identical to Section 397(2) of the Criminal Procedure
Code which deals with revisional power of the Court. If Section 19 was only to
deal with revisional powers then the portion set out in (b) above, would have
been sufficient. The legislature has, therefore, by adding the words no court
shall stay the proceedings under this Act on any other ground clearly indicated
that no stay could be granted by use of any power on any ground. This therefore
would apply even where a Court is exercising inherent jurisdiction under
Section 482 of the Criminal Procedure Code.
is another reason also why the submission that, Section 19 of the Prevention of
Corruption would not apply to the inherent jurisdiction of the High Court,
cannot be accepted. Section 482 of the Criminal Procedure Code starts with the
words Notwithstanding anything contained in the Code. Thus the inherent power
can be exercised even if there was a contrary provision in the Criminal
Procedure Code. Section 482 of the Criminal Procedure Code does not provide
that inherent jurisdiction can be exercised notwithstanding any other provision
contained in any other enactment. Thus if an enactment contains a specific bar
then inherent jurisdiction cannot be exercised to get over that bar. As has
been pointed out in the cases of Madhu Limaye vs. The State of Maharashtra
reported in 1977 (4) S.C.C. 551, Janata Deal vs. H.S. Chowdhary & others,
reported in 1992 (4) S.C.C. 305 and Indra Sawhney vs. Union of India and others
reported in 2000 (1) S.C.C. 168, the inherent jurisdiction cannot be resorted
to if there was a specific provision or there is an express bar of law.
no substance in the submission that Section 19 would not apply to a High Court.
Section 5(3) of the said Act shows that the Special Court under the said Act is a Court of Session. Therefore the
power of revision and/or the inherent jurisdiction can only be exercised by the
in cases under the Prevention of Corruption Act there can be no stay of trials.
We clarify that we are not saying that proceedings under Section 482 of the
Criminal Procedure Code cannot be adapted. In appropriate cases proceedings
under Section 482 can be adapted. However, even if petition under Section 482
Criminal Procedure Code is entertained there can be no stay of trials under the
said Act. It is then for the party to convince the concerned Court to expedite
the hearing of that petition.
merely because the concerned Court is not in a position to take up the petition
for hearing would be no ground for staying the trial even temporarily.
this Appeal we see no reason to interfere with the impugned Order.
Appeal stands dismissed. We clarify that merits of the case have not been
argued before us. We are thus not expressing any opinion on the merits of the
trial has already been delayed, we direct that now the trial be taken up for
hearing on a day to day basis and the same be concluded within a period of 6
months from today.
been brought to our attention that in a large number of cases stays have been
granted by the High Courts in matters under the Prevention of Corruption Act,
even though there is a specific bar against the grant of any stay. We therefore
direct the Registrars of all the High Courts to list all cases in which such
stay is granted before the Court concerned so that appropriate action can be
taken by that Court in the light of this decision.
Registrar of this Court is directed to send a copy of this order to the
Registrars of all the High Courts.
shall be no Order as to costs.
VARIAVA) September 25, 2001.