NKJ/AKJ: 04.10.

2011

JUDGMENT IN W.A.NOS.16522-24/2011 (GM-RES) AND W.A.NO.16525/2011 (GM-RES)

SBN

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 04TH DAY OF OCTOBER, 2011 PRESENT THE HONBLE MR. JUSTICE N.KUMAR AND THE HONBLE MR. JUSTICE ARAVIND KUMAR W.A.NOS.16522-24/2011 (GM-RES) AND W.A.NO.16525/2011 (GM-RES) W.A.NOS.16522-24/2011 (GM-RES) BETWEEN: Sri. Sirajin Basha, S/o. late T. Abdul Razaak, Aged about 52 years, 'Justice Lawyers', No.64/1, Krishna Block, I Main Road, Seshadripuram, Bangalore-560 020.

..APPELLANT FOR

(BY SRI.M.L.VARMA, SENIOR COUNSEL SRI.G.R.PRAKASH AND S.THEJASWINI, ADVOCATES) AND: Sri.B.S.Yediyurappa, S/o. Sri. Siddalingappa, Aged 67 years,

No.1, Race Course Road, Bangalore-560 001.

..RESPONDENT

(BY SRI.JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR SRI.SANDEEP PATIL, ADVOCATE FOR C/R1) THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NOS.32101-103/2011 DATED 30/09/2011. W.A.NO.16525/2011 (GM-RES) BETWEEN: Sri. Sirajin Basha, S/o. late T. Abdul Razaak, Aged about 52 years, 'Justice Lawyers', No.64/1, Krishna Block, I Main Road, Seshadripuram, Bangalore-560 020.

APPELLANT FOR

(BY SRI.M.L.VARMA, SENIOR COUNSEL SRI.G.R.PRAKASH AND S.THEJASWINI, ADVOCATES) AND: Sri.B.S.Yediyurappa, S/o. Sri. Siddalingappa, Aged 67 years, No.1, Race Course Road, Bangalore-560 001.

RESPONDENT

(BY SRI. RAVI B NAIK, SENIOR COUNSEL FOR SANDEEP PATIL, SMT.VIJETHA NAIK PATIL, ADVOCATE FOR C/R1)

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION

NO.37573/2011 DATED 30/09/2011.

THESE WRIT APPEALS COMING ON FOR ORDERS THIS DAY, N.KUMAR, J. DELIVERED THE FOLLOWING:

JUDGMENT

These appeals are preferred challenging the order passed by the learned Single Judge who has granted an interim order of stay of the operation of the order dated 08.08.2011 and 30.09.2011, issuing summons to the accused for their appearance in a proceedings initiated under the provisions of the Prevention of Corruption Act, 1988.

2.

As common question of law is involved in all these

appeals they are taken up for consideration together and disposed of by this common order. For the purpose of

convenience, the parties are referred to as they are referred to in the writ petitions.

The petitioner is Sri. B.S. Yediyurappa, the former

Chief Minister of Karnataka. The respondent who is common in all these writ petitions is one Sri. Sirajin Basha, a practicing Advocate at Bangalore. The petitioner was functioning as Chief Minister from 30.05.2008 to 31.07.2011. servant during the said period. He was a public

The respondent approached

the Governor of Karnataka to accord sanction to prosecute the petitioner for offences under the Prevention of Corruption Act, 1988 (for short, hereinafter referred to as the Act), as well as under the provisions of Indian Penal Code. The Governor of Karnataka accorded sanction by his order dated 20.01.2011. Thereafter the respondent filed five private complaints before the XXIII Addl.City Civil & Sessions Judge (CCH 24), Special Court for Lokayukta cases, for short, hereinafter referred to as the Special Court. The said five complaints were registered as PCR 2 to 6/2011. The said complaints were under Section 200

of the Criminal Procedure Code for offences under Section 405, 426, 420, 463, 465, 468, 471 of IPC and Section 13(1)(d), 13(I)(e) and 13(2) of the Act and Sections 3 and 4 of the Karnataka Land Restriction of Transfer Act, 1991 read with Section 120-B of IPC. The Special Court took cognizance of the said offence on 26.02.2011. Thereafter, in PCR No.3/2011 on 08.08.2011 ordered issue of summons to the accused. In PCR 4/11 on 23.08.2011, he ordered issue of summons to the accused. All accused including the petitioner appeared before the said Court. They have filed an application for grant of bail. Grant of bail is opposed by the respondent. After hearing both the parties, now the Special Court has reserved the case for pronouncing the orders on bail application and the case was listed to 03.10.2011.

4.

The

five

accused

filed

Criminal

Petition

Nos.2083/11 c/w 2161-2164/11 for quashing of the order dated 26.02.2011 passed by the Special Court, taking

cognizance of various offences alleged in the respective

complaints

and

also

sought

for

quashing

of

further After

consequential proceedings in the respective cases.

hearing all the parties, by an order dated 21.07.2011, the said criminal petitions were dismissed by this Court with a direction that investigation ordered by the Special Judge in PCR 2/2011 shall proceed and in PCR Nos. 3 to 6/2011, the Special Judge shall proceed further.

5 240/11

The petitioner filed W.P.Nos.25915/11 and 26236challenging the order passed by the Governor

sanctioning his prosecution. The prayers made in these writ petitions are as follows:

(a) Issue a writ in the nature of certiorari or any other writ or order quashing the impugned sanction dated 21.01.2011 vide No.GS 275 EST 2010 issued by His Excellency the Governor of Karnataka, according sanction to prosecute the petitioner under Section 19 of Prevention of Corruption Act and under Section 197 of Cr.P.C. (Vide Annexure A);

(b) Declare that the impugned sanction order dated 21.01.2011 vide No.GS 275 EST 2010 issued by His Excellency the Governor of Karnataka according sanction to prosecute the petitioner under Section 19 of Prevention of Corruption Act, 1988 and under Section 197 of Code of Criminal Procedure as illegal, invalid and unenforceable in law (vide Annexure A);

(c) Be

pleased

to

quash

all

consequential

proceedings pursuant to the impugned order of sanction including the proceedings pending before the XXIII Addl. City Civil & Sessions Judge, Bangalore City, in PCR Nos. 2/2001, PCR No.3/2011, PCR No.4/2011, PCR

No.5/2011 & PCR No.6/2011 (vide Annexure AG to AG4);

(d) Issue a writ of certiorari and quash the proceedings in PCR Nos. 2/2011, PCR No. 3/2011, PCR No.4/2011, PCR No.5/2011 & PCR No.6/2011 pending before XXIII Addl. City Civil & Session Judge, Bangalore City (vide Annexure AG to AG4);

(e) Grant such other and further reliefs as this Honble Court deems fit in the facts and circumstances of the case, in the interest of justice and equity.

The learned Single Judge before whom the said

matter was listed, in exercise of the power conferred on him under Section 8 and 9 of the High Court Act, 1961, wanted the said writ petitions to be considered by a Bench consisting of larger number of Honble Judges than one and thus referred the matter to the Honble Chief Justice to take a decision in the matter. Thereafter, the Honble Chief Justice constituted a

Bench consisting of two Judges to decide the said writ petitions. Before the Division Bench, a request was made for interim order for suspending the proceedings before the Special Court, till the disposal of the writ petition on merits. The

Division Bench after hearing both the parties at length, declined to grant the interim order sought for, for the following reasons:

Indeed we have not reached the stage of Sub-Section (3)(c) of the Act. Insofar as Sub-clause (b) of Section 13 is concerned, we have also not reached the stage. We are yet to see whether there is any error, omission or irregularity in granting the sanction and which has occasioned in the failure of justice. This is a question, which is required to be thrashed out when the matter is heard finally. But however, there is a clear embargo on Stay of the further proceedings. Indeed the decision of the

Apex Court in the case of Sathya Narayan Sharma V/S. State of Rajasthan reported in AIR 2001 SC 2856 wherein a similar, if not identical question fell for consideration and the Apex Court was of the view that when a sanction is sought to be questioned elsewhere, the question of

suspending the proceedings would not arise. The Apex Court has observed thus: Thus 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 S.482 of the Criminal Procedure Code cannot be adapted. In

appropriate cases proceedings under S.482,

10

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. However 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.

Hence, in the circumstances, interim order as sought for by the petitioner, for suspending the proceedings would not arise.

On the day the said order was passed, the Special

Court had passed orders issuing summons to the accused. The petitioner had filed a petition challenging the order issuing summons. They had also filed an application for grant of Taking note of the said proceedings, the

anticipatory bail.

Division Bench observed as under: We are also informed that two proceedings are pending adjudication before this Court, one is a

11

writ petition under Article 226 of the Constitution of India seeking to quash taking of congizance as well as issue of process. A Criminal Petition under

Section 438 of the Code of Criminal Procedure seeking bail in anticipation of his likely arrest. Undoubtedly, there would be a question of

overlapping inasmuch as the petitioner has availed the remedy of filing an application seeking bail in anticipation of or likelihood of arrest. Another petition is filed to quash the issuance of the process and taking of cognizance by the Competent Court. He is required to take orders in those matters. Insofar as the proceedings before this Court are concerned, it is only referable to whether the sanction granted by the Governor to prosecute the petitioner is just and proper and is not laced with bias or malafides. question before us. That would be the vexed Insofar as the issuance of

process on the basis of the complaint is concerned, the same is required to be adjudicated elsewhere and not in this proceeding. With these

observations, we decline to grant the request of the petitioner for an interim order.

12

In the writ petition filed by the petitioner, out of

which these writ appeal arises, the prayer is as under:

"I.

Issue writ of certiorari and quash the private bearing PCR No.3/2011 in

complaint

Spl.C.C.No.156/2011 filed by the Respondent before the XXIII Additional City Civil and Sessions Judge, Bangalore City (vide Annexure-A)

II. issue a writ of certiorari and quash the order of taking cognizance dated 26.02.2011 passed in PCR No.3/2011 by XXIII Addl. City Civil and Sessions Judge, Bangalore city (vide Annexure-B);

III. issue a writ of certiorari and quash the order dated 08.08.2011 passed in PCR No.3/2011 by XXIII Addl. City Civil & Sessions Judge, Bangalore city wherein the learned Judge has ordered to issue summons to the Accused persons 1 to 15 for the offences punishable under Sections 13(1)(d), 13(1)(e) R/w 13(2) of P.C. Act and under Sections 405, 406, 420, 463, 465, 468, 471 of Indian Penal Code and Sections 3 and 4 R/w section 9 of the

13

Karnataka Land (Restriction and Transfer) Act, 1991 R/w Section 120B of IPC (vide Annexure-C);"

The petitioner filed a memo on 26.09.2011.

It

reads as under : "MEMO In the above matter, the petitioner has sought for quashing of complaint in PCR No.3/2011, order of taking cognizance dated 26.02.2011 and order of issuance of process dated 08.08.2011. It is

submitted that the petitioner does not wish to press the prayer in respect of quashing of complaint and so also in respect of order of taking cognizance. The petitioner will restrict the prayer only in so far as it pertains to order of issuance of process against the accused persons.

The Hon'ble Court may be pleased to permit the petitioner to restrict the relief as sought for in prayer III and give liberty to seek other relief's sought in prayed I and II in appropriate

proceedings in the interest of justice and equity".

14

10.

The impugned order in this appeal reveals that

initially the writ petitions were heard on merits. Thereafter the hearing was confined to interim order sought in the said writ petitions, namely, stay of operation of order dated 08.08.2011, by which the Special Court had issued summons to the accused. The learned Single Judge after hearing both the

parties has granted interim order of stay of operation of the order dated 08.08.2011, which is impugned in the writ petitions. The reasons assigned for granting the interim order are contained in paragraph 19, 21, 22, 23, 33:

19.The order of sanction to prosecute the petitioner given by the Governor makes it prima facie clear that after examining all the documents and the allegations made, sanction under Section 19 of PC Act and under Section 197 Cr.P.C. to prosecute the petitioner for the offences under Section 405 IPC and Section 13(1)(b) & 13(1)(e) of PC Act was accorded after considering the facts stated in the proposed complaint. Though in the private complaint enclosed to the representation

15

made to the Governor, the complainant had made allegations and had invoked several other offences, sanction was not granted under Section 97 Cr.P.C. to prosecute the petitioner for those offences. Despite the same, petitioner has filed PCR

No.3/2011 invoking several offences and while issuing process, the Court below has not looked into the said aspects.

21. On a bare perusal of the averments made in the complaint and the order under challenge, I prima facie find that if only the Court below had applied its mind to the ingredients of the offences enumerated under Sections 420, 463, 466, 468, 471 IPC & Sections 3 & 4 of the Karnataka Land (Restriction on Transfer) Act, 1981, the Court below probably would not have come to the conclusion that it was a case fit for issue of process in respect of those offences. It is prima facie demonstrated before me that the ingredients of these offences are woefully lacking for arriving at such a satisfaction as required in law before directing issue of process.

22.

It is also prima facie demonstrated by the

learned Senior Counsel appearing for the petitioner

16

that the mandatory provision contained under Section 202 Cr.P.C. as inserted by Act No.25/2005 with effect from 23.06.2006 in Cr.P.C. is not complied with. The said provision requires the

Magistrate to postpone the issue of process to the accused, in case if the accused resided outside his jurisdiction and in such event either inquire into the case himself or direct an investigation to be made by the Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there was sufficient ground to proceed.

23.

In the instant case, the private complaint is Out of them, Accused

filed against 15 persons.

Nos.2, 3 & 8 are not residing within the jurisdiction of the Court below. The contention of the petitioner is that if only there was application of mind by the Court below to this aspect and to the provisions contained under Section 202 Cr.P.C. particularly the mandatory requirement requiring the

Magistrate to postpone the issue of process and to inquire into the case, in cases where accused were residing at a place beyond his jurisdiction, the impugned order could not have been passed. This

17

aspect which goes to the root of the matter requires examination.

33Since it is demonstrated by the conduct of the respondent private complainant that he is not prepared to argue the case on merits and intends to only protract these proceedings and as prima facie case is made out for intervening in the matter, there shall be an interim order of stay ofo the operation of the order dated 08-08-2011 impugned in this writ petition. ordered accordingly.

11.

Sri. M.L. Verma, learned Senior Counsel appearing

for the respondents contended that the interim order of stay granted by the Special court in the teeth of Section 19(3) of the Act as well as judgment of the Apex Court in the case of SATHAYNARAYAN SHARMA, is illegal and liable to be set aside. In the Criminal Revision Petition filed by the other accused challenging the order of taking cognizance by the Special Court, this Court has declined to interfere. Thus, once there is sanction under Section 19 of the Act, as well as under Section

18

197 of Code of Criminal Procedure, no Court shall grant stay of further proceedings. In so far as invoking Section 202 of

Cr.P.C by the learned Single Judge is concerned, the opening words of Section 19(3) is emphatic that, that cannot be a ground for grant of stay of further proceedings. Therefore he submits that the impugned order is ex facie illegal and requires to be set aside.

12.

Per contra, Sri Jayakumar S Patil, learned Senior

Counsel appearing for the petitioner relied on the judgment of the Apex Court in the case of PEPSI FOODS LIMITED and contended that summoning of the accused in a criminal case is a serious matter. Criminal Law cannot be said set into motion as a matter of course and if the procedure adopted by the Special Court in issuing summons is prima facie illegal, then a duty is cast on this Court to interfere with such illegal exercise of power. In SATYANARAYANAs case, Section 482 of Cr.P.C was under consideration, a statutory power, and not Article 226 of the Constitution which is a constitutional power.

19

Therefore neither Section 19(3) of the Act nor the judgment of the Apex Court would come in the way of High Court exercising its power under Article 226 and 227 of the Constitution. He also submitted that before the Special Court, the case is listed on 15.10.2011 and before the learned Single Judge the case is listed on 14.10.2011 and the impugned order is only an interim order and therefore no case is made out for entertaining the appeal. In so far as the judgment of the Criminal Revision

Petition is concerned, that was rendered prior to the issue of summons and therefore the said judgment has no relevance in deciding the issues involved in the writ petitions. In fact, the Division Bench of this Court while considering the interim order has made it very clear that the petitioner can agitate his rights in the pending writ petitions. Therefore the learned

Single Judge took up the matter for consideration and passed the impugned order, which is in accordance with law.

13.

Sri. Ravi B Naik, learned Senior Counsel appearing

for the petitioner, in the connected writ petitions, submitted

20

that, in paragraph 26 of the judgment in SATHYANARAYANs case, the Apex Court has held that, there can be no stay of trials. In the instant case, the trial is not stayed. What is

stayed is only an order issuing summons. Therefore the said judgment has no application.

14.

In the light of the aforesaid facts and rival

contentions, the point that arise for our consideration in these appeals is as under:

"Whether the learned Single Judge in the facts and circumstances of the case was justified in granting stay of operation of order dated 08.08.2011 and 23.08.2011 by which summons was ordered to the accused?"

15.

In order to appreciate the aforesaid contentions,

firstly, we have to see the statutory provisions as contained in Section 19, which reads as under:

21

"19. Previous sanction necessary for prosecution-

(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by

22

the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or

23

irregularity has resulted in a failure of justice; (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.

(4) the

In determining under sub-section (3) whether absence of, or any error, omission or

irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings."

16.

This by

provision the

was

the Court

subject in the

matter case

of of

interpretation

Apex

SATHYANARAYANA SHARMA Vs. STATE OF RAJASTHAN reported in AIR 2001 SC 2856. The Supreme Court was not deciding the said case on the facts of the said case. As is clear from paragraph 14 of the judgment, the Apex Court was

24

concerned about the prevailing situation then and how provisions under Section 397 and 482 of Cr.P.C was abused and how it was having an adverse effect on combating corruption against public servant. Therefore, the Supreme

Court thought it fit to reiterate the law and therefore they formulated the question of law and answered it. This is clear from what they have said in paragraph 14 which reads thus: 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.

17.

Therefore they were laying down the law for the The The

country under Article 141 of the Constitution of India. main judgment was rendered by Justice S N Variava.

relevant portion is found in paragraphs 23, 24, 25, 26 and 29. It reads thus: 23. We have heard the parties. 19(3)(c) of the said Act reads as follows: Section

25

"(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2) of 1974)." Xxxxxx 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(a) that no Courts should stay the proceedings under the Act on any ground and

(b) that no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. To be noted that (b) above is identical to S.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

26

any power on any ground. This therefore would apply even where a Court is exercising inherent jurisdiction under S.482 of the Criminal Procedure Code.

24.

There is another reason also why the that S.19 of the Prevention of

submission

Corruption Act 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 v. State of Maharashtra reported in (1977) 4 SCC 551 : (AIR 1978 SC 47) : 1978 Cri LJ 165), Janata Dal v. H.S. Chowdhary reported in (1992) 4 SCC 305 : (1993 AIR SCW 248 : AIR 1993 SC 892 : (1993 Cri

27

LJ 600) and Indra Sawhney v. Union of India reported in (2000) 1 SCC 168 : (1999 AIR SCW 4661 : AIR 2000 SC 498 : 2000 Lab IC 277), the inherent jurisdiction cannot be resorted to if there was a specific provision or there is an express bar of law.

25.

We see 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 the revision and/or the inherent jurisdiction can only be exercised by the High Court.

26. Thus

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 S.482 of the criminal Procedure code cannot be adapted. In appropriate cases proceedings However, even if

under S.482 can be adapted.

petition under S.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

28

petition.

However merely because the concerned

Court to is not in a position to take up the petition for hearing would be no ground for staying the trial even temporarily.

29.

It has been brought to our attention that in

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. The

Registrar of this Court is directed to send a copy of this order to the Registrars of all the High Courts."

18.

Honble Justice K.T. Thomas, wrote a separate but

concurring judgment as under: I am 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

29

(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. 2. In the Objects and Reasons for

bringing the Act with new measures the lawmakers declared it in abundantly clear terms that a provision prohibiting the grant of stay is included in the statute for speeding up the proceedings. This can be discerned from the following words: In order to expedite the proceedings, cases and

provisions for day-to-day

trial of

prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.

3. The prohibition is couched in a language admitting of no exception whatsoever, which is

30

clear from the provision itself.

The prohibition is

incorporated in sub-section (3) of S.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: "Notwithstanding anything contained in the Code of Criminal Procedure 1973." Hence none of the provisions in the Code could be invoked for circumventing any one of the bans enumerated in the sub-section.

4.

Clause (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.

5.

Clause (b) contains the prohibition

against stay of proceedings under this Act, but it is restricted to sanction aspect alone. No error,

31

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 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. ground of Overruling an objection on the does not end the case

sanction

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

32

would not normally grant stay on that ground either. 6. It is in clause (c) of the sub-section that the prohibition is couched in unexceptional terms. It reads thus : "No Court shall stay the proceedings under this Act on any other ground." 19. This is the law declared by the Apex Court under It is binding on all

Article 141 of the Constitution of India.

Courts including this Court. The Apex Court was not content with mere declaration of law and setting aside the impugned order in that case. Seriousness of the matter and the concern of the Apex court could be gathered from the direction issued by the Apex Court as contained in para 29, as affirmed in para 9 of the said judgment, where a direction was issued to the Registrar of each High Court to list all the cases in which such stay is granted by the High Court, so that, appropriate action could be taken by that Court in the light of the said declaration of law. This brings to the fore, the concern shown by

the Apex Court about rampant corruption in public office. If

33

the Apex court was concerned about this problem as far back as in the year 2001, a decade back, we do not find a proper word in the dictionary to describe the extent of corruption in the present day context. The Parliament has passed legislation to combat the evil of corruption. Investigating authorities and police authorities after investigation file cases before Courts. In cases where they do not take action, if a citizen of this Country moves the Governor, obtains sanction and files a case before the competent Court, the higher Courts were to interfere even at the stage of issuing summons to accused, it gives an impression that Courts are protecting those who are corrupt. In the present context it is the last hope for a com mon man. When the common man is shouting from the roof top against the corruption in the Country, his concern cannot be ignored.

20.

From the statement of objects and reasons of the

Act, Section 19 of the Act and the judgment of the Apex Court

34

in Satyanarayana Sharmas case, the law is clear and well settled. Corruption in public offices has become rampant. When public servants are sought to be prosecuted, the accused approached the Higher Courts, and obtained stay of the proceedings before the trial Courts. Thus successfully managed to delay the proceedings, and thus frustrated the attempt on the part of the State to bring to book the guilty. It had a very serious consequences and adverse effect on the administration and the society at large. Faced with this problems, the law makers were anxious to expedite the proceedings, by making 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. One such step in this direction was imposing an undiluted ban against granting stay of any proceedings involving an offence under the Act, on any ground whatsoever. That is how the present Section 19(3) of the Act came to be enacted. The reasons which prompted the Parliament to divest all the Courts in India of the power to stay

35

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. The intention of the Parliament is abundantly made clear by the prohibition which is couched in the language admitting of no exception whatsoever.

21.

Chapter V of the Act deals with sanction for

prosecution and other miscellaneous provisions. Section 19 of the Act declares that previous sanction is necessary for prosecution under the Act. The opening words of sub-section (1) of Section 19 are couched with negative words which manifests that the said provision is mandatory. It declares that no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction of the competent authority mentioned therein who is vested with the power to grant sanction. If there is no sanction under the Act,

36

the Court has no jurisdiction to take cognizance of any offence punishable under the Act. The object behind such sanction is to exclude possibility of frivolous complaints being filed against public servants to intimidate them. Therefore, it is a protective provision for the benefit of the public servants. It is based on public policy. But, once the authority competent to accord

sanction accords sanction to prosecute the public servant then the law should take its course. The initial protection granted to the public servant under Section 19(1) evaporates and thereafter it is in public interest that a public servant who is accused of an offence punishable under the Act should be prosecuted expeditiously without any interruption. That is the public policy underlying sub-section (3) of Section 19. This

intention of the legislature is expressed in three ways. Firstly by adopting a non-obstante clause as notwithstanding

anything contained in the Code of Criminal Procedure, 1973 which equally applies to all the three category of cases enumerated in clauses (a), (b) and (c) of sub-section (3) of Section 19. Secondly, by adopting negative words in the

37

opening words of clauses (b) and (c) viz.,

no Court shall stay

the proceedings under this Act. Thirdly, the use of the word shall. The question is what it means.

22.

The Parliament has used a non-obstante clause as

a legislative device to over ride the provisions of the Code of Criminal Procedure 1973, to the extent mentioned in SubSection (3) of Section 19 of the Act. In addition to that negative words are used in the opening part of clause (b) and (c) of SubSection (3). Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a Statute imperative. It is another mode of showing a clear intention that the provision enacted is mandatory, by clothing the command in a negative form. That apart the use of the word shall, in the opening words of the said clauses raises a presumption that the particular provision is imperative. Therefore the intention of the parliament in enacting the said provision is explicit and clear, and there is no scope for any interpretation at all. All that the Courts have to do is to give effect to the

38

intention of the legislation, the underlying principle being public interest, in as much as fight against corruption.

23.

Clauses (a) and (b) read with sub-section (4) deals That is error, omission or irregularity in

with sanction.

sanction. Unless there is failure of justice, no Court shall stay the proceedings under the Act or no higher Court shall reverse or alter in appeal or revision the findings, sentences, orders passed by a Special Judge. Curiously when it comes to clause (c) the bar is absolute because the word failure of justice is conspicuously missing in the said provision. On the contrary, the language employed is so wide that no Court shall stay the proceedings under the Act on any other ground. Therefore, if the case falls under clause (a) and (b), if a case of failure of justice is not made out, in so far as any error, omission or irregularity in the sanction, the Court shall not exercise power either in respect of final order or interim order. But in the case falling under clause (c), on any ground, no Court shall stay the proceedings under the Act. Therefore, the legislative intent

39

behind this provision is very clear. No Court shall circumvent the said ban through any means. None of the provisions in the Code of Criminal Procedure, 1973 could be invoked for circumventing any of the bans enumerated in the sub-section. In clause (c) of sub-section (3), the prohibition is in

unexceptionable terms. No Court shall by-pass the legislative prohibition contained in sub-section. No stay can be granted by use of any power on any ground.

24.

The learned Counsel for the petitioner relied on the

judgment of the Apex Court in the case of PEPSI FOODS LIMITED AND ANOTHER Vs. SPECIAL JUDICIAL

MAGISTRATE AND OTHERS reported in (1988) 5 SCC 749, where it has been held as under:

28.

Summoning

of

an

accused

in

criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. it is not that the complainant has to bring only two witnesses to support his allegations in the

40

complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

30.

It is no comfortable thought for the

appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under

41

Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them.

The said case arose under the provisions of Prevention of Food Adulteration Act, 1954, where the identical provision as contained in Section 19 of the Act is not found. Therefore the said judgment has no application to the facts of this case.

25.

No

doubt

in

para

26

of

the

judgment

in

Satyanarayanas case, it is held that in cases under the Prevention of Corruption Act, there can be no stay of trials. It

was contended the case has not reached the stage of trial and therefore what the Supreme Court has said is that no Court shall stay trial which has no application to the facts of this case. It is true in para 26 of the judgment the Supreme Court has said there should not be stay of trial of a case. Merely because, the word trial is used in para 26 of the judgment, it cannot be said that the proceedings anterior to trial can be

42

stayed.

It is well settled law that a word in the judgment

cannot be construed as a word in a statutory provision. The word used in Section 19 (c) is no order of stay shall be passed in a proceedings. The proceedings commence the moment

the Court takes cognizance, the next step is issue of summons. What they meant by the word trial in para 26 is, the proceedings under the Act and therefore, we do not see any merit in the said submission.

26.

It is true that in the aforesaid judgment, the Apex

Court was dealing with statutory powers as contained under Section 482 of Cr.P.C or revisional power under Section 397 of Cr.P.C. Section 19 of the Act cannot take away a constitutional power conferred on the High Court under Article 226 and 227 of the Constitution. Judicial review is an integral part of the Constitutional scheme. The jurisdiction conferred on the High Court under Article 226 and 227 is part of inviolable basic structure of the Constitution of India. However, the said power is meant to be exercised to up hold the rule of law, to do justice

43

between the parties and to interfere when there is failure of justice. When the Parliament has passed the legislation to

combat corruption in public life, which is eating into vital organs of this Country, when it expressly imposes ban on power to be exercised by the Higher Courts to stay proceedings arising under the Act and when the said provisions have been up held by the Apex Court reiterating the principles underlying the said statutory provisions, the power under Article 226 cannot be exercised to scuttle the said statutory provision nor the Apex Court. law declared by the

27.

The Nine

Judges

Constitution Bench of the

Supreme Court in the case of MAFATLAL INDUSTRIES LTD., V. UNION OF INDIA, (1997) 5 SCC held as under:-

(i) the ground

Where a refund of tax/duty is claiming on that it has been collected from the

petitioner/plaintiff whether before the commencement of the Central Excise and Customs Laws (Amendment) Act,

44

1991 or thereafter by misinterpreting or misapplying the provisions of the Central Excises and Salt Act, 1944 read with Central Excise Tariff Act, 1985 or Customs Act, 1962 read with Customs Tariff Act or by misinterpreting or misapplying any of the rules, regulations or notifications issued under the said enactments, such a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. No suit is maintainable in that behalf. While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it.

45

28.

Therefore, it is clear that exercise of power by the

Court either under Section 397 or 482 of the Code of Criminal Procedure or under Article 226 and 227 of the Constitution, should be in aid of the said legislative policy and in public interest. It has to be exercised having due regard to the legislative intent evidenced by the statutory provisions and consistent with the provisions of the Act. The said plenary

power has to be exercised to effectuate the rule of law and not for abrogating it. Otherwise it would be a case of improper

exercise of power, against the public interest, and would defeat the object of law and frustrate the legislate attempt of fight against corruption in public office.

29.

It is in this background let us look at the facts of

this case and the reasons given by the learned Single Judge for exercising the power to stay further proceedings under the Act. In paragraph 5 of the impugned order, the learned Single Judge has taken note of the memo filed on 26.09.2011 restricting the relief in the writ petition only to the order dated

46

08.08.2011 directing issue of summons to the accused.

In

other words, the validity of sanction and validity of the complaint was not the subject matter before the learned Single Judge. The subject matter was only the validity of issuing of summons to the accused. If that is so, the observations in

paragraph 19 refers to omission to grant sanction in respect of offence in the complaint which squarely falls under Section 19(3)(a) and (b) which is the subject matter of the writ petitions before the Division Bench. In so far as the grounds made out in paragraph 21 is concerned, it refers to the validity of the private complaint which is again the subject matter of the writ petition before the Division Bench in respect of which a memo was filed. Even otherwise, learned Single Judge has not stated what is the error found in the order passed by the learned trial Judge. Merely saying that it is prima facie demonstrated before him that the ingredients of these offences are woefully lacking for arriving at such a satisfaction before directing issue of process, is not sufficient to find fault with the order passed by the Special Court. Learned Single Judge has not given any

47

reasons for arriving at such a conclusion. As a rule, the High Court should not interfere with the proceedings before the trial Court at the interlocutory stage in the light of Section 19(3) of the Act. If it has to interfere, it should by be by way of exception and then the Court owes a duty to set out reasons why it has exercised its power and how it constitutes an exception to general rule. Merely by saying that he is not

satisfied with the ingredients of the offences mentioned in the complaint, which are not forthcoming, he could not have interfered with the said order. As stated earlier, that was not the subject matter of that writ petition at all and by filing a memo the said prayer had not been pressed, as it was the subject matter before the Division Bench (vide prayer No.3).

30.

In so far as, the non-compliance of the mandatory

provisions contained in Section 202 of Cr.P.C. is concerned, that is not a ground on which the learned Single Judge could have interfered in the teeth of the opening words of sub-section (3). It makes it abundantly clear that notwithstanding

48

anything contained in the Code of Criminal Procedure, 1973, where Section 202 finds a place, which according to the learned Single Judge was not complied with, he could not have exercised his power to grant the stay on that ground.

31.

The last ground made out was the conduct of the In a matter of this nature, in a

respondent-complainant.

proceedings under the Act, in view of the statutory prohibition contained in Section 19(3) of the Act, the conduct of the party cannot be a ground for granting stay of the proceedings under the Act. That too by exercising power under Article 226 and 227 of the Constitution.

32.

Therefore, from the aforesaid discussion it is clear

that, the impugned order cannot be sustained on any ground. It is a case of improper exercise of power and a case of Court exceeding its jurisdiction. When such a power is exercised in the teeth of the aforesaid statutory provision and the judgment of the Apex Court which is brought to the notice of the learned

49

Single Judge and also the fact that the Division Bench of this Court in the proceedings initiated by the very same petitioner, declined to grant stay on the aforesaid grounds, the learned Single Judge could not have exercised his power under Article 226 and 227 of the Constitution to grant stay on the grounds which are set out above. Thus, as an Appellate Court, this

Court cannot be silent spectator. When the law declared by the Apex Court is not obeyed, when the express statutory provision inserted by the Parliament with the object of combating rampant corruption in public life is ignored, then it becomes the duty of this Court to step in and set right the abrasion in the administration of justice, as otherwise the confidence of common man in this institution would be impaired,

33.

The learned Single Judge while passing the interim

order of stay in the connected writ petition has relied on the reasons set out in the impugned order in this writ petition. In view of what we have stated above, no order of stay much less, an exparte order of stay of proceedings under the Act could be

50

granted.

Therefore the impugned order passed in the For the aforesaid

connected writ petition also is set aside. reasons, we pass the following order:

Appeals are allowed.

Orders dated 30.09.2011 passed in W.P.No.32101103/2011 and W.P.NO.37573/2011 are hereby set aside.

(N. KUMAR) JUDGE

(ARAVIND KUMAR) JUDGE ksp/-