Karnataka High Court
Syed Ifthekar Ahmed vs State By Karnataka Lokayuktha on 10 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1214
Bench: Raghvendra S.Chauhan, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER 2018
PRESENT
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
CRIMINAL PETITION No.2721/2017
C/W.
CRIMINAL PETITION Nos.2320/2017, 4527/2017,
4526/2017 AND 4528/2017
IN CRIMINAL PETITION No.2721/2017:
BETWEEN :
SYED IFTHEKAR AHMED
S/O LATE SYED SHAFIQ AHMED,
AGED ABOUT 56 YEARS,
RESIDING AT: NO.88, 2ND CROSS,
3RD STAGE, J. P. NAGAR,
BANGALORE - 560 078. ... PETITIONER
(BY SRI NAGENDRA NAIK R., ADV.)
AND:
1. STATE BY KARNATAKA LOKAYUKTHA
CITY DIVISION, M. S. BUILDING,
BANGALORE,
REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
2. SRI SHANMUGAM
S/O. LATE K. DORAI SWAMY,
AGED ABOUT 52 YEARS,
2
RESIDING AT OLD NO.10, NEW NO.06,
4TH CROSS, 'B' MAIN, MUNESHWARA BLOCK,
PALACE GUTTALLI,
BANGALORE - 560 003. ... RESPONDENTS
(BY SRI V. S. ARBATTI, ADV. FOR R-1;
SRI SANDESH J. CHOUTA, AAG A/W
SRI I. S. PRAMOD CHANDRA, SPP-II FOR STATE
R-2 SERVED)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE ORDER DATED 24.01.2017 IN
SPL.C.C.NO.59/2013 ON THE FILE OF LXXVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR
PREVENTION OF CORRUPTION ACT, BENGALURU AND TO
DISCHARGE THE ACCUSED IN SPL.C.C.NO.59/2013 ON THE
FILE OF THE LXXVI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AND SPECIAL JUDGE FOR PREVENTION OF
CORRUPTION ACT.
IN CRIMINAL PETITION No.2320/2017:
BETWEEN:
SMT. L. J. HAMSAVENI
W/O. S. SURESH,
RESIDING AT NO. 373,
1ST 'E' CROSS, 2ND STAGE,
LIC COLONY, SRIRAMPURA,
MYSURU-570 001. ... PETITIONER
(BY SRI L. SRINIVASA BABU, ADV.)
AND:
STATE BY LOKAYUKTHA POLICE
MYSORE-570 001. ... RESPONDENT
(BY SRI V. S. ARBATTI, Spl. P.P. FOR RESPONDENT
SRI SANDESH J. CHOUTA, AAG A/W
SRI I. S. PRAMOD CHANDRA, SPP-II FOR STATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE FIR IN CR.NO.6/2014 AND
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CHARGE SHEET IN SPL.C.C.NO.63/2014 ON THE FILE OF THE
III ADDITIONAL SESSIONS AND SPECIAL JUDGE, MYSURU AND
ETC.
IN CRIMINAL PETITION No.4527/2017:
BETWEEN:
M/S. SHRI LAL MAHAL LIMITED
A COMPANY REGISTERED UNDER THE
COMPANIES ACT, HAVING ITS
REGISTERED OFFICE AT NO.B-16
BHAGWANDAS NAGAR, NEW DELHI-110 026
REPRESENTED BY ITS AUTHORISED REPRESENTATIVE
SRI KHAJA ALI. ... PETITIONER
(BY SRI MURTHY DAYANAND NAIK, ADV.)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BUREAU, BANGALORE,
NO.36, BELLARY ROAD, GANGANAGAR,
BANGALORE-560 032,
REPRESENTED BY THE ADDL. SP,
CBI:BS & FC: BANGALORE. ... RESPONDENT
(BY SRI P. PRASANNA KUMAR, Spl. P.P. FOR RESPONDENT
SRI SANDESH J. CHOUTA, AAG A/W
SRI I. S. PRAMOD CHANDRA, SPP-II FOR STATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED
10.11.2016 BY THE XXXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES AT
BANGALORE (CCH 34) IN SPL.C.C.NO.54/2014 DISMISSING THE
APPLICATION FILED BY THE PETITIONER SEEKING HIS
DISCHARGE AND ETC.
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IN CRIMINAL PETITION No.4526/2017:
BETWEEN:
SRI PREM CHAND GRAG
AGED ABOUT 53 YEARS,
S/O SHRI HARNARAIN AGGARWAL,
B-16, BHAGAWAN DAS NAGAR,
NEW DELHI-110 026. ... PETITIONER
(BY SRI MURTHY DAYANAND NAIK, ADV.)
AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BUREAU, BANGALORE,
NO.36, BELLARY ROAD, GANGANAGAR,
BANGALORE-560 032,
REPRESENTED BY THE ADDL. SP,
CBI:BS & FC: BANGALORE. ... RESPONDENT
(BY SRI P. PRASANNA KUMAR, Spl. P.P. FOR RESPONDENT
SRI SANDESH J. CHOUTA, AAG A/W
SRI I. S. PRAMOD CHANDRA, SPP-II FOR STATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED
10.11.2016 BY THE XXXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES AT
BANGALORE (CCH-34) IN SPL.C.C.NO.54/2014 DISMISSING THE
APPLICATION FILED BY THE PETITIONER SEEKING HIS
DISCHARGE AND ETC.
IN CRIMINAL PETITION No.4528/2017:
BETWEEN:
SRI SUSHIL KUMAR VALECHA
AGED ABOUT 65 YEARS,
S/O LATE K. C. VALECHA,
DIRECTOR, M/S. SHRI LAL MAHAL LIMITED,
NO.B-16, BHAGAWANDAS NAGAR,
NEW DELHI-110 026. ... PETITIONER
(BY SRI MURTHY DAYANAND NAIK, ADV.)
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AND:
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BUREAU, BANGALORE,
NO.36, BELLARY ROAD, GANGANAGAR,
BANGALORE-560 032,
REPRESENTED BY THE ADDL. SP,
CBI:BS & FC: BANGALORE. ... RESPONDENT
(BY SRI P. PRASANNA KUMAR, Spl. P.P. FOR RESPONDENT
SRI SANDESH J. CHOUTA, AAG A/W
SRI I. S. PRAMOD CHANDRA, SPP-II FOR STATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED
10.11.2016 BY THE XXXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES AT
BANGALORE (CCH-34) IN SPL.C.C.NO.54/2014 DISMISSING THE
APPLICATION FILED BY THE PETITIONER SEEKING HIS
DISCHARGE AND ETC.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.08.2018, AND COMING ON FOR
PRONOUNCEMENT THROUGH VIDEO CONFERENCE THIS DAY,
RAGHVENDRA S. CHAUHAN J, MADE THE FOLLOWING :
ORDER
Twelve different Criminal Miscellaneous Petitions were filed under Section 482 Cr. P. C. before a learned Single Bench of this Court. In the said petitions, the petitioners had challenged either an order framing the charges, or an order refusing to discharge the accused, or an order dismissing applications for discharging the accused. Before the learned Single Judge, the learned counsel for the 6 petitioners had raised two contentions: firstly, an order framing the charge, or the order refusing to discharge the accused, or the order dismissing an application for discharge are not interlocutory orders. Instead, such orders are intermediate orders. Thus, such orders can be challenged under the revisional jurisdiction of this court under Section 397 (1) Cr. P. C. Since they are intermediate orders, they are not hit by the bar contained in Section 397 (2) Cr.P.C. Secondly, in the alternative, since the cases deal with offences under the Prevention of Corruption Act ("the P. C. Act", for short), the impugned orders can still be challenged under Section 482 Cr.P.C., even if they cannot be challenged under the revisional jurisdiction under Section 397 (1) Cr.P.C.
2. Faced with these two contentions, the learned Single Judge was confronted with two sets of contradictory decisions pronounced by different learned Single Benches of this Court. For, in P. V. Amarnath Prasad v. State by CBI /ACB, Bangalore [(2012) 4 Kant. L. J. 483], in Smt. A. C. Kamakshi v. Union of India [Crl.R.P.No.703/2009, 7 decided on 24.02.2010] and in Sri Katta Subramanya Naidu v. State of Karnataka [Crl.R.P.No.432/2013, decided on 03.11.2016] while dealing with orders framing charge for offences under the P. C. Act, three different learned Single Benches had opined that the orders framing charge were not interlocutory orders. Hence, the said orders could be challenged under the revisional jurisdiction of this Court under Section 397 (1) Cr.P.C.
3. However, a contrary view was expressed in the case of Dr. Pervin v. State of Karnataka [Crl.R.P. No.1652/2016, decided on 06.01.2017], wherein an order dismissing an application for discharge was challenged, in the case of Revanna and Others v. State of Karnataka [Crl.R.P.No.57/2017, decided on 24.03.2017] and in the case of Sri. T. Nagaraju v. State of Karnataka [Crl.R.P.No.935/2016, decided on 31.05.2017]. In these three cases, three different learned Single Benches declared that the impugned orders framing charges, or dismissing applications for discharge are interlocutory orders. Hence, such orders cannot be challenged under the revisional 8 jurisdictions of this court under Section 397 (1) Cr.P.C. For, Section 397 (2) Cr.P.C., prohibits challenge of interlocutory order under the revisional jurisdiction of this Court.
4. Therefore, the learned Single Judge referred twin issues to a Division Bench under Section 8 of the Karnataka High Court Act, 1961 ("the High Court Act", for short). The twin issues are as under:
Whether an order passed by a Special Court rejecting the application filed under Section 239 Cr.P.C., r/w 227 Cr.P.C., by an accused for discharge, who is being prosecuted for offences punishable under the Prevention of Corruption Act, 1988, would be amenable to revisional jurisdiction under Section 397 (1) Cr.P.C. ?
OR Whether an order rejecting the application for discharge filed by the accused or an order passed to proceed to frame the charge against the accused under the provisions of the Prevention of Corruption Act, 1988, is an interlocutory order and as such the bar contained in Section 397 (2) Cr.P.C., would be attracted ?
5. Since only legal issues have been referred to this Bench, the narration of facts of each case is clearly unnecessary. However, few essential facts need to be pointed out: firstly, four of the Criminal Miscellaneous 9 Petitions, namely Crl. Misc. Petition No.3217/2017, Crl. Mis. Petition No.4526/2017, Crl. Misc. Petition 4527/2017, and Crl. Mis. Petition No.4528/2017, deal with offences falling under the Indian Penal Code. Meanwhile, the other eight Criminal Miscellaneous Petitions deal with cases where the offences are both under the Indian Penal Code and the Prevention of Corruption Act ("the P. C. Act", for short).
Secondly, Crl. Misc. Petition No.3308/2017, Crl. Misc. Petition No.3567/2017 were earlier filed as Crl. R. P. No.1547/106 and Crl. R. P. No.1512/2016, respectively. Both these Criminal Revision Petitions were subsequently converted into Criminal Miscellaneous Petitions by two orders, both dated 24.03.2017, by this court.
Thirdly, prior to filing Crl. Misc. Petition No.4527/2017, Crl.R.P.No.1595/2016 was filed, which was withdrawn on 07.04.2017 with the liberty to file a Criminal Miscellaneous Petition. Subsequently, Criminal Misc. Petition No.4527/2017 was filed. Similarly, prior to filing of Crl. Mis. Petition No.4528/2017, Crl.R.P.No.1591/2016 was 10 filed. However, the same was withdrawn on 10.04.2017, while seeking the permission to file a Criminal Miscellaneous Petition before this court. Subsequently, Crl. Mis. Petition No.4528/2017 was filed before this court.
6. Mr. Venkatesh S. Arbatti, the learned counsel for the Lokayukta, has raised a preliminary objection with regard to the maintainability of this reference under Section 8 of the High Court Act. According to the learned counsel, Section 8 of the High Court Act bestows a power upon a learned Single Judge to dispose of the revision petition himself, or to refer the same to a Bench of two Judges. However, in the present case, the learned Single Judge was not seized with revision petitions. Instead, the learned Single Judge was dealing with Criminal Miscellaneous Petitions under Section 482 Cr.P.C. Therefore, the learned Single Judge could not have referred the twin issues to a Bench of two Judges under Section 8 of the High Court Act. Therefore, this reference is bad in law. Hence, the reference need not even be decided by this Bench.
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7. Interestingly in this case, all the arguments, both on preliminary objection, and the legal issues have been submitted by Mr. Sandesh T. Chouta, the learned Additional Advocate General appearing for the learned Special Public Prosecutor for the State. His arguments have been echoed by Mr. Nagendra R. Naik, the learned counsel for petitioners.
8. On the other hand, Mr. Sandesh T. Chouta, the learned AAG, has pleaded that mere mentioning of a wrong provision of law would not vitiate the reference. In order to buttress the said plea, the learned counsel has relied upon the cases of State of Karnataka v Muniyalla [(1985) 1 SCC 196], N. Mani v Sangitha Theatre and Others [(2004) 12 SCC 278], and T. Nagappa v. Y. R. Muralidhar [(2008) 5 SCC 633]. According to the learned counsel, the power to make a reference to a Bench of two judges while dealing with a Criminal Miscellaneous Petition under Section 482 Cr. P. C. does exist under Section 9 of the High Court Act. For, Section 9 of the High Court Act prescribes "other powers of a Single Judge". Under Section 9 of the High Court Act a Single Judge is empowered to adjourn a case for being 12 heard, and to be determined by a Bench of two Judges. Under Section 9 (iii) of the High Court Act such a power of reference can be exercised when the learned Single Judge is exercising his powers "of original jurisdiction under any law for the time being in force". Or under Section 9 (vi) of the High Court Act, when the learned Single Judge is exercising his powers in "any matter of an interlocutory character in appeals and other proceedings". According to the learned counsel, while exercising the inherent jurisdiction under Section 482 Cr.P.C., a learned Single Judge exercises an original jurisdiction. Since the learned Single Judge was dealing with petitions under Section 482 Cr.P.C., he was sufficiently empowered to make a reference to a Division Bench under Section 9 (iii) of the High Court Act. Furthermore, Section 9
(vi) of the High Court Act uses the words "other proceedings". Therefore, a proceeding under Section 482 Cr.P.C., would fall within the ambit of the words "other proceedings".
9. In the alternative, the learned counsel has also pleaded that in case the proceeding under Section 482 Cr.P.C., does not fall under Section 9 (iii), or under Section 13 9 (vi) of the High Court Act, then the omission needs to be supplied so as to include a proceeding under Section 482 Cr.P.C., within the words "other proceedings". In order to buttress this plea, the learned counsel has drawn the attention of this Court to other sub-sections of Section 9 of the High Court Act. Specifically, the learned counsel has drawn the attention of this court to Section 9 (xii) of the High Court Act, which deals with the power of a learned Single Judge while hearing a writ petition under Articles 226, 227, and 228 of the Constitution of India. According to the learned counsel, the power under Section 482 Cr. P. C., is akin to the power exercised by this court under Articles 226 and 227 of the Constitution of India. For, all the three provisions deal with the original jurisdiction of this court; they are aimed at doing substantive justice to the litigants. Therefore, a proceeding under Section 482 Cr. P. C., stands on a similar footing as a proceeding under Articles 226 and 227 of the Constitution of India. If the Casus Omissus were not supplied by this Court, then an anomalous situation would arise: while Section 9 of the High Court Act permits a 14 learned Single Judge to make a reference to two Judges or to a Larger Bench, while exercising his power under Arts. 226 and 227 of the Constitution of India, yet no reference can be made while exercising the power under Section 482 Cr. P. C. Such an omission could not be intended by the legislature while enacting the High Court Act. Thus, the omission left in Section 9 of the High Court Act should be filled in by this Court.
10. Heard the learned counsel for the parties on the preliminary objections with regard to the validity of the reference made by the learned Single Judge to the Division Bench.
11. In the case of N. Mani (supra), the Hon'ble Supreme Court has clearly opined that "it is well settled that if an authority has power under the law merely because while exercising the power the source of power is not specifically referred to, or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as 15 the power does exist and can be traced to a source available in law."
Thus, the question before this court is whether a learned Single Judge has the power to make a reference to a learned Division Bench, when the learned Single Judge is exercising the inherent jurisdiction under Section 482 Cr.P.C., or not ?
12. In order to answer this issue, it is pertinent to reproduce the relevant provisions of the High Court Act, which are as under:-
7. Reference to Full Bench - (1) Where in any proceeding pending before it, any question of law or usage having the force of law arises, a Bench consisting of not less than two Judge of the High Court may, if it thinks fit, and shall, if it differs from the view taken by a similar Bench of the high Court on the said question, refer to a Full Bench of the High Court the question of law or usage having the force of law.
(2) The decision of the majority of Judges comprising a Full Bench of the High Court shall be the decision of the High Court.
8. Powers of Single Judge to dispose of revision cases himself or refer the same to a Bench. - (1) any Judge of the High Court sitting 16 alone, shall have power to hear and dispose of civil and criminal revision cases in exercise of the revisional jurisdiction vested in the High Court under any law for the time being in force, except cases relating to quashing of orders of commitment.
Provided that in exercise of such revisional jurisdiction in respect of proceedings of any criminal court such single Judge shall not impose a sentence of death or imprisonment for life or sentence of imprisonment exceeding seven years.
(2) The decision or order of a single Judge in cases under sub-section (1) shall be final:
Provided that such Judge may, if he thinks fit, instead of disposing of any case as aforesaid refer such case to a Bench of two Judges for hearing and disposal.
9. Other powers of a single Judge.- The powers of the High Court in relation to the following matters shall be exercised by a single Judge, provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judges -
(i) determining in which of several courts having jurisdiction a suit shall be heard;
(ii) admission of an appeal in forma pauperis;
(iii) exercise of original jurisdiction under any law for the time being in force;
(iv) appeals under rule 1 of Order XLIII of the First Schedule to the Code of Civil Procedure, 1908;
(v) appeals in which the subject matter is as to costs only;
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(vi) any matter of an interlocutory character in appeals and other proceedings;
(vii) admission of an appeal presented after the expiry of the period allowed by the law of limitation;
(viii) exercise of powers conferred by section 389, section 439 and section 440 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)
(ix) exercise of powers under section 24 of the Code of Civil Procedure, 1908, or under Section 407 of the Code of Criminal Procedure 1973 (Central Act 2 of 1974)
(xi) appeals from interlocutory orders, where such appeals are allowed by law.
(xii) exercise of powers under:-
(a) clause (1) of Article 226 of the Constitution of India except where such power relates to the issue of a writ in the nature of habeas corpus; and
(b) Articles 227 and 228 of the Constitution of India.
13. A bare perusal of these provisions clearly reveal that under Section 7 of the High Court Act, a Division Bench has the power to refer a question of law or usage having the force of law if it differs from the view taken by another Division Bench of the High Court on the said question. 18
14. Similarly, under Section 8 of the High Court Act, while exercising a revisional power, a Single Judge may refer the case to a Bench of two Judges for hearing or disposal.
15. Section 9 empowers a Single Judge to make a reference to a Division Bench while exercising different powers. Therefore, a reference can be made while exercising the original jurisdiction under any law for the time being in force, or dealing with any matter of an interlocutory character in appeals, and other proceedings, or exercising powers under Clause (1) of Article 226 of the Constitution of India except where such power relates to the issue of a writ in the nature of Habeas Corpus, and while exercising the power under Articles 227 and 228 of the Constitution of India.
16. Surprisingly, Section 9 of the High Court Act does not contain any direct reference to the inherent powers of the High Court under Section 482 Cr.P.C. On the first blush, such a grave omission would leave a gaping hole in Section 9 of the High Court Act which appears to be complete in itself. 19 For, the said provision deals with such varied powers as dealing with suspension of sentence, grant of bail, amount of bond and reduction thereof, and transfer of cases both under C.P.C., and under Cr.P.C. The provision also deals with the powers bestowed upon a learned Single Judge under the writ jurisdiction under Articles 226 and 227 of the Constitution of India, and the power to transfer the cases to the High Court under Article 228 of the Constitution of India. Therefore, Section 9 covers the complete range of powers from the limited powers of imposing a bond amount, to grant of bail, to transfer of cases to the unlimited power of writ jurisdiction. And yet, Section 9 of the High Court Act is prima-facie silent about the use of the inherent power by the High Court. The silence, prima-facie, presents an enigmatic situation.
17. However, a closer scrutiny reveals that Section 9 of the High Court Act bestows powers on a Single Judge to hear cases falling under different jurisdictions. Section 9 (iii) of the High Court Act empowers a Single Judge to exercise his/her power when dealing with 20 "original jurisdiction under any law for the time being in force". Considering the fact that unlike the chartered High Courts, the Karnataka High Court does not have the original jurisdiction to try the cases, considering the fact that writ jurisdiction which is covered by Articles 226 and 227 of the Constitution of India has already been mentioned Section 9
(xii) (a) and (b) of the High Court Act, the question then is what is the meaning of the words, "original jurisdiction under any law for the time being in force" ?
18. Undoubtedly, one of the original jurisdictions, although an inherent jurisdiction, is the exercise of power under Section 482 Cr.P.C. After all, the inherent power to give effect to any order under the Cr.P.C., or to prevent abuse of the process of the Court, or to secure the ends of justice, exists exclusively with the High Court. Moreover, a petition under Section 482 Cr.P.C., is filed directly in the High Court. Thus, the words "original jurisdiction under any law for the time being in force" would necessarily include the power under Section 482 Cr. P. C. Hence, a learned Single Judge can easily make a reference to a Bench of two Judges 21 while seized of a Criminal Miscellaneous Petition under Section 482 Cr. P. C.
19. The learned AAG is unjustified in claiming that the learned Single Judge could also make a reference under Section 9 (vi) of the High Court Act as the said provision uses the words "other proceedings". Such an interpretation ignores the initial words used in the sub-clause. Section 9 (vi) of the High Court Act deal with "any matter of an interlocutory character in appeals and other proceedings". Therefore, the words "other proceedings" would have to be read in context, with the words "any matter of an interlocutory character". Hence, the learned AAG is unjustified in lifting the words "other proceedings" out of its context, by ignoring the initial words of the clause. The words "other proceedings", therefore would mean either a revision, or a review, or even a Criminal Misc. Petition, provided the matter is of "an interlocutory character".
20. The learned AAG has also taken a self-defeating stand when he pleads that the power to make a reference is 22 available under Section 9 (vi) of the High Court Act. For, on the one hand, the matter has to be of "an interlocutory character", yet according to the learned AAG, an order framing a charge is not of "an interlocutory character". Thus, obviously, according to the logic of the AAG while dealing with an order framing charge, the learned Single Judge is not dealing with an order having "an interlocutory character". Thus, a reference could not be made under Section 9 (vi) of the High Court Act.
21. But nonetheless, while examining an order framing charge, or the order refusing to discharge the accused, or the order dismissing an application for discharge under Section 482 Cr. P. C., a learned Single Judge would have ample power under Section 9 (iii) of the High Court Act, to make a reference to a Division Bench. Since the power to make a reference to a Division Bench is traceable to Section 9 (iii) of the High Court, the question of supplying the casus omissus does not arise. But merely because the learned Single Judge has made the reference under Section 8 of the High Court Act, it would not vitiate the reference to the Division Bench. 23 Thus, the reference is legally valid. Hence, the preliminary objection raised by Mr. Venkatesh S. Arbatti is unsustainable.
22. The learned counsel for the petitioners, Mr. P. Prasanna Kumar, the learned Counsel for the C. B. I., and Mr. Sandesh Chouta, the learned Additional Advocate General, have raised the same set of arguments, in unison, with regard to the twin issues referred by the learned Single Judge. According to the learned counsel, in view of the recent pronouncement of the Hon'ble Supreme Court in the case of Asian Resurfacing of Roads Agency Pvt. Ltd. & Another v. Central Bureau of Investigation [AIR 2018 SC 2039] the issues referred by the learned Single Judge no longer need to be answered by this Division Bench. According to Mr. Chouta, the learned Single Judge had referred the twin issues on 04.10.2017. But during the pendency of this reference, on 28.03.2018, dealing with the same set of issues, the Hon'ble Supreme Court has settled the controversy, once and for all, in the case of Asian Resurfacing of Roads Agency Pvt. Ltd. & Another 24 (supra). Since under Article 141 of the Constitution of India, this Court is bound by the said decision, the reference can be answered in the terms of the said decision. The learned counsel have drawn the attention of this Court to the relevant portions of the said judgment.
Secondly, relying on the cases of Madhu Limaye V. State of Maharashtra [(1977) 4 SCC 137], and Girish Kumar Suneja v. Central Bureau of Investigation [(2017) 14 SCC 809], the learned Counsel have pleaded that an order framing charges, or an order dismissing an application for discharge, or an order refusing to discharge an offender is not "an interlocutory order". In fact, it is "an intermediate order". Hence, such an order is not hit by the bar contained in Section 397 (2) Cr. P. C. Hence, it is revisable under Section 397 (1) Cr. P. C. Thus, according to the learned counsel, the reference can easily be answered in terms of the opinion expressed by the Apex Court in the case of Asian Resurfacing of Roads Agency Pvt. Ltd. (supra). 25
23. However, Mr. Venkatesh S. Arbatti, the learned counsel for the Lokayukta, has fought tooth and nail, and has pleaded that the decision rendered by the Hon'ble Supreme Court in the case of Asian Resurfacing of Roads Agency Pvt. Ltd (supra), is, in fact, per incuriam. According to the learned counsel, judicial discipline demands and dictates that the rule of precedent should be followed by every court of law. Relying on the cases of Govinda Naik v. West Patent Press [AIR 1980 KANT 92] and Mattu Lal v. Radha Las [AIR 1974 SC 1596] the learned counsel has pleaded that if there is an inconsistency between two Supreme Court decisions, one by Bench of three Judges, and the other by Bench of four Judges, the latter has to be followed. The learned counsel has further submitted that the case of V. C. Shukla v. State through CBI [(1980) Supp SCC 92] and the case of Asian Resurfacing of Roads Agency Pvt. Ltd (supra) dealt with Special Laws and dealt with the same issues, namely whether an order framing charges was an interlocutory order, or not ? Whether such an order is revisable under Section 397 (1) Cr. P. C., or not ? 26 And whether such an order is hit by the bar contained in Section 397 (2) Cr. P. C., or not ? The case of V. C. Shukla (supra) was decided by a Bench of four Judges, whereas the case of Asian Resurfacing of Roads Agency Pvt. Ltd (supra) was decided by a Bench of three Judges. According to the former decision, an order framing charges is an interlocutory order. Therefore, it is non-revisable order under Section 397 (1) Cr. P. C. However, according to the latter judgment, a contrary view has been taken, namely that the order framing charge is not an interlocutory order. Hence, it is revisable under Section 397 (1) Cr.P.C. According to the learned counsel, since the decision of V. C. Shukla (supra) is by a Larger Bench, per force, it has to be followed.
Secondly, the case of V. C. Shukla (supra) dealt with charges framed under the Special Courts Act, the offences for which the appellant was charged were under Section 120-B IPC r/w Section 5 (1) (d) and Section 5 (2) of the P. C. Act, and under Section 5 (2) r/w Section 5 (1) (d) of the Special Courts Act. Similarly, in the case of Asian 27 Resurfacing of Roads Agency Pvt. Ltd (supra) the charges were framed under Section 120-B IPC r/w Sections 420, 467, 468, 471, and 477A of IPC, and Sections 13 (2) r/w Section 13 (1) (d) of the P. C. Act. Thus, both the cases dealt with charges framed under special laws. Moreover, there is a striking similarity between the Special Courts Act, and the P. C. Act. Firstly, the object of both the statutes is to ensure that the trial is completed in the shortest period possible. Therefore, hurdles which can be created, such as by challenging orders framing charges, are gotten rid off. Furthermore, both the statutes clearly state that "notwithstanding anything contained in the Code of Criminal Procedure", no revision shall lie in relation to any interlocutory order passed in a trial. Thus, the language used in both the statutes is pari materia. Therefore, in the case of Asian Resurfacing of Roads Agency Pvt. Ltd. (supra) the Hon'ble Supreme Court was duty bound to follow the ratio of V. C. Shukla (supra). However, the Apex Court has failed to do so. Hence, the decision in the case of Asian 28 Resurfacing of Roads Agency Pvt. Ltd (supra) is per incuriam.
Thirdly, although the case of Asian Resurfacing of Roads Agency Pvt. Ltd (supra) had considered the case of V. C. Shukla (supra), it has misinterpreted the ratio of V. C. Shukla (supra). Thus, it is a per incurium judgment. Hence, it is not binding on this court. Therefore, according to the learned counsel, notwithstanding the recent pronouncement of the Hon'ble Supreme Court in the case of Asian Resurfacing of Roads Agency Pvt. Ltd. (supra), this court is bound to follow the decision in the case of V. C. Shukla (supra).
24. In rejoinder, Mr. R. Nagendra Naik, the learned counsel for the petitioner, and Mr. Chouta, the learned AAG, have relied on the cases of Official Liquidator v. Dayanand and Others [(2008) 10 SCC 1], Siddharam Satlingappa Mhetre v. State of Maharashtra and Others [(2011) 1 SCC 694], and National Insurance Co. Ltd. v. Pranay Sethi [ AIR 2017 SC 5157] in order to plead that 29 the Apex Court has disapproved the conduct of the High Courts when the High Courts have ignored the law laid down by the Supreme Court without any tangible reason. Moreover, since the case of Asian Resurfacing of Roads Agency Pvt. Ltd (supra) has dealt with the case of V. C. Shukla (supra), it cannot be argued that the former judgment is per incuriam. Furthermore, the High Court will not be justified in holding that the interpretation given to the decision of V. C. Shukla (supra), in the case of Asian Resurfacing of Roads Agency Pvt. Ltd (supra), is an incorrect one. The High Court is legally bound to adhere to judicial discipline, and to respect the mandate of Article 141 of the Constitution of India. Therefore, the reference should be decided in terms of the decision rendered by the Apex Court in the case of Asian Resurfacing of Roads Agency Pvt. Ltd. (supra).
25. Heard the learned counsel for the parties and considered the case law cited at the Bar.
30
26. The doctrine of precedent emanates from the Latin phrase, Stare decisis et non quieta movere which means "to stand by that which is decided". Chancellor Kent in his Commentaries explains the said principle as under:
A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed. It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other. If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the practice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law.31
27. In England, the rules of precedent were created in order to maintain judicial discipline. If each court were permitted to interpret the law in its own peculiar ways, it would lead to judicial chaos. Moreover, uncertainty of law was frowned upon. In fact, certainty of law is a sine quo non requirement of Rule of Law. Thus, doctrine of Stare Decisis is an integral part of Rule of Law. In India, a Common Law country, we scrupulously follow the said doctrine. For, Art. 141 of the Constitution of India imbibes the said doctrine.
28. In the case of In Ganga Sugar Corpn. v. State of U.P., [(1980) 1 SCC 223], the Hon'ble Supreme Court proclaimed that, "the Judgments of this Court are decisional between litigants but declaratory for the nation." In Union of India v. Raghubir Singh, [(1989) 2 SCC 754], the Hon'ble Supreme Court opined that "The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part 32 of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."
29. Further, in the case of Waman Rao v. Union of India, (1981) 2 SCC 362 the Apex Court held as under:
For the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis.
30. Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, that 33 the courts have evolved the rule of precedents, principles of stare decisis, etc. These rules and principles are based on public policy. [Ref. to Bussa Overseas & Properrties (P) Ltd. v. Union of India (2016) 4 SCC 696].
31. Furthermore, in the case of Young v. Bristol Aeroplane Co. Ltd. [1944 KB 718] the House of Lords observed that "incuria" literally means "carelessness". In practice per incurium appears to mean per ignoratium.
32. Halsbury's Laws of England (4th Edn.) elucidates the meaning of "per incuriam" as under:
A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case is must decide which case to follow...or when the decision is given in ignorance of the terms of a statute or rule having statutory force.
33. In the case of Govt. of A. P. v. B. Satyanarayan Rao [(2000) 4 SCC 262] the Apex Court observed that "The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior 34 court rendered on the same issue or where a court omits to consider any statute while deciding that issue."
34. Similar views have also been expressed in the case of Siddharam Satlingappa Mhetre (supra) and recently in the case of Pranay Sethi (supra).
35. Keeping the doctrine of Stare Decisis in mind, this Court, too, is legally bound to follow the said doctrine. It is not for this Court to question the reasoning given by the Apex Court; it is for this Court to follow the principles annunciated by the Apex Court. Moreover, it is not for this Court to declare a decision of the Apex Court as being "per incurium". To do so, is to indulge in judicial indiscipline. A court of law cannot commit indiscipline, for it is the upholder of rule of law.
36. The learned Counsel for the Lokayukta has dubbed the decision of Asian Resurfacing of Roads Agency Pvt. Ltd. (supra) as per incurium. And, thus, not binding on this court. However, such arguments only need to be uttered to be rejected. For, in the said case the Hon'ble 35 Supreme Court has not only noticed the case of V. C. Shukla (supra), but has observed as under:
The principles laid down in Madhu Limaye (AIR 1978 SC 47) still hold the field and have not been in any manner diluted by decision of four Judges in V. C. Shukla v State through CBI or by recent three Judges Bench decision in Girish Kumar Suneja v Central Bureau of Investigation. Though in V. C. Shukla (supra), order framing charge was held to be interlocutory order, judgment in Madhu Limaye (supra) taking a contrary view was distinguished in the context of the statute considered therein. ...Thus, in spite of the fact that V. C. Shukla (supra) is a judgment by Bench of four Judges, it cannot be held that the principle of Madhu Limaye (supra) does not hold the field.
37. In the case of Madhu Limaye (supra) the Apex Court noticed the apparent contradiction between the revisional power bestowed upon the High Court under Section 379(1) Cr. P. C. and the limitation on the said power clamped by Section 379 (2), and yet with the use of non- obstante clause the inherent power of the High Court declared in Section 482 Cr. P. C. The issues which arose for the consideration of the Hon'ble Supreme Court were, whether an order framing a charge could be challenged under the revisional power contained in Section 379 (1) 36 Cr. P. C., or not? Whether an order framing charge was an interlocutory order or not? Whether the challenge to such an order is hit by the bar contained in Section 379 (2) Cr. P. C. or not? Whether the inherent power under Section 482 Cr. P. C. could be invoked for challenging the charge order or not? Whether invoking the inherent power under Section 482 Cr. P. C., would place the said provision in conflict with the bar contained in Section 379 (2) or not? Answering these issues, the Apex Court observed as under:
On the one hand, the Legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the Legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami's case (supra), but yet it may not be an interlocutory order--pure and simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 379 (2). It is neither advisable, nor possible to make a catalogue of orders to 37 demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first tow kinds are well-known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, (the order framing charges), even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of section 397. In our opinion it must be taken to be an order of the type falling in the middle course.
38. Dealing with the apparent contradiction between Section 397 (2) Cr. P. C., and the non-obstante clause contained in Section 482 Cr. P. C. the Supreme Court observed as under:
On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High court will have no power of 38 revision in relation to any interlocutory order. Then, in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character, which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. ...
The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers.
39. Similar views are expressed in the case of Asian Resurfacing of Roads Agency Pvt. Ltd (supra). In the said case, the Hon'ble Supreme Court has concluded as under:
Thus, we declare the law to be that 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 39 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 would be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter.
40. With the authoritative pronouncement of the Apex Court, the twin issues referred to this Bench are no longer res integra. To answer the second issue first, an order framing the charge, or the order refusing to discharge the accused, or the order dismissing an application for discharge, such an order is not an interlocutory order. In fact, such an order is an intermediate order. Therefore, such an order is not hit by the bar contained in Section 397 (2) Cr. P. C.
41. Thus, the answer to the first issue is that such an order is amenable to the revisional jurisdiction under Section 397 (1) Cr. P. C.
42. In fact, to go a step further, as pronounced by the Hon'ble Supreme Court, an order of such a nature can be challenged either under Section 397 (1), or under Section 40 482 Cr. P. C; such an order can also be challenged under Articles 226 and 227 of the Constitution of India. For, the nomenclature used to describe the petition is immaterial.
43. The Reference is answered accordingly.
44. The registry is directed to place these cases before the learned Single Bench having the proper roster.
Sd/-
JUDGE Sd/-
JUDGE Np/-