# ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. & ANR v. CENTRAL BUREAU OF INVESTIGATION

- **Citation:** [2018] 2 S.C.R. 1045
- **Court:** Supreme Court of India
- **Decided:** 2018-03-28
- **Case number:** Criminal Appeal Nos. 1375-1376 of 2013
- **Bench:** Adarsh Kumar Goel, R. F. Nariman, Navin Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/asian-resurfacing-of-road-agency-pvt-ltd-anr-v-central-bureau-of-investigation-32862
- **Pages:** 54

## Headnote

Prevention of Corruption Act, 1988: s.19(3)(c) - Interpretation
of - Order framing charge under the 1988 Act - Challenge to -
Jurisdiction of High Court and power to grant stay in such
matters - Whether an order on charge framed under the provisions
of 1988 Act, is an interlocutory order, and thereby in view of
s.19(3)(c), exercise of revisional power of High Court u/
s.397(2),CrPC is barred - Also whether s.19(3)(c) which bars
revision would also bar exercise of inherent power of High Court
u/s.482, CrPC or u/Arts.226 and 227- Held: Per A. K. Goel, J. (for
himself and Navin Sinha, J.) Order framing charge is not purely an
interlocutory order nor a final order- Jurisdiction of High Court is
not barred either u/s.397 or u/s.482, CrPC or u/Art.227 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,
challenge to an order of charge should be entertained in a rarest of
rare case only to correct a patent error of jurisdiction and not to
re-appreciate the matter - Even where such challenge is entertained
and stay is granted, the matter must be decided on day-to-day basis
so that stay does not operate for an unduly long period - Though
no mandatory time limit may be fixed, the decision may not exceed
two-three months normally - Mandate of speedy justice applies to
the PC Act cases as well - Per R. F. Nariman, J. (Concurring)
Inherent power of a Court set up by the Constitution is a power that
inheres in such Court because it is a superior court of record, and
not because it is conferred by the Code of Criminal Procedure -
Section 19(3)(c) cannot be read as a ban on the maintainability of
a petition filed before High Court u/s.482,CrPC - Constitution of
India - Arts. 21, 215, 226 and 227 - Code of Criminal Procedure,
1973 - ss.397(2), 482 - Prevention of Corruption Act, 1947 -
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Criminal Law (Amendment) Act, 1952 - Anti-Corruption Laws
(Amendment) Act, 1964 - Stay.
Constitution of India: Art. 21 - Mandate of speedy justice in
criminal cases - Delay in trials of corruption cases, due to grant of
stay - Directions issued - Prevention of Corruption Act, 1988 -
Stay. [Per A.K. Goel, J. (for himself and Navin Sinha, J.)]
Stay: Duration of, in civil and criminal cases - Held: Where
stay against proceedings of a civil or criminal trial is operating, the
same will come to an end on expiry of six months - Administration
of justice. [Per A.K. Goel, J. (for himself and Navin Sinha, J.)]
Prevention of Corruption Act, 1988: s.19(3)(c) r/w ss.4(4)
and 22 - Cases under the Act - Disposal of - Held: S.19(3)(c) read
with ss.4(4) and 22, make it clear that cases under the Act have to
be decided with utmost despatch and without any glitches on the
way in the form of interlocutory stay orders. (Per R.F. Nariman, J.)
Code of Criminal Procedure, 1973: s. 482 - Inherent Powers
of Court - Nature of - Discussed. (Per R.F. Nariman, J.)
Interpretation of Statutes: In case of ambiguity - Held: If there
is an ambiguity, and two views are possible, the view which most
accords with the object of the Act, and which makes the Act
workable, must necessarily be the controlling view. (Per R.F.
Nariman, J.)
Prevention of Corruption Act, 1988: s.19(3)(c) - "On any
other ground" - Plea of appellants that the expression "on any
other ground" is referable only to grounds which relate to sanction
and not to all proceedings under the Act - Respondents contended
that these are grounds referable to the proceedings under the Act
and are not relatable to sanction only - Held: "On any other
ground", refers to and relates to all grounds that are available in
proceedings under the Act other than grounds which relate to
sanction granted by the authority. (Per R.F. Nariman, J.)
Answering the referred questions, the Court
HELD: Per A.K. Goel, J. (for

## Text

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ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. & ANR.
v.
CENTRAL BUREAU OF INVESTIGATION
(Criminal Appeal Nos. 1375-1376 of 2013)
MARCH 28, 2018
[ADARSH KUMAR GOEL, R. F. NARIMAN AND
NAVIN SINHA, JJ.]
Prevention of Corruption Act, 1988: s.19(3)(c) - Interpretation
of - Order framing charge under the 1988 Act - Challenge to -
Jurisdiction of High Court and power to grant stay in such
matters - Whether an order on charge framed under the provisions
of 1988 Act, is an interlocutory order, and thereby in view of
s.19(3)(c), exercise of revisional power of High Court u/
s.397(2),CrPC is barred - Also whether s.19(3)(c) which bars
revision would also bar exercise of inherent power of High Court
u/s.482, CrPC or u/Arts.226 and 227- Held: Per A. K. Goel, J. (for
himself and Navin Sinha, J.) Order framing charge is not purely an
interlocutory order nor a final order- Jurisdiction of High Court is
not barred either u/s.397 or u/s.482, CrPC or u/Art.227 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,
challenge to an order of charge should be entertained in a rarest of
rare case only to correct a patent error of jurisdiction and not to
re-appreciate the matter - Even where such challenge is entertained
and stay is granted, the matter must be decided on day-to-day basis
so that stay does not operate for an unduly long period - Though
no mandatory time limit may be fixed, the decision may not exceed
two-three months normally - Mandate of speedy justice applies to
the PC Act cases as well - Per R. F. Nariman, J. (Concurring)
Inherent power of a Court set up by the Constitution is a power that
inheres in such Court because it is a superior court of record, and
not because it is conferred by the Code of Criminal Procedure -
Section 19(3)(c) cannot be read as a ban on the maintainability of
a petition filed before High Court u/s.482,CrPC - Constitution of
India - Arts. 21, 215, 226 and 227 - Code of Criminal Procedure,
1973 - ss.397(2), 482 - Prevention of Corruption Act, 1947 -
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Criminal Law (Amendment) Act, 1952 - Anti-Corruption Laws
(Amendment) Act, 1964 - Stay.
Constitution of India: Art. 21 - Mandate of speedy justice in
criminal cases - Delay in trials of corruption cases, due to grant of
stay - Directions issued - Prevention of Corruption Act, 1988 -
Stay. [Per A.K. Goel, J. (for himself and Navin Sinha, J.)]
Stay: Duration of, in civil and criminal cases - Held: Where
stay against proceedings of a civil or criminal trial is operating, the
same will come to an end on expiry of six months - Administration
of justice. [Per A.K. Goel, J. (for himself and Navin Sinha, J.)]
Prevention of Corruption Act, 1988: s.19(3)(c) r/w ss.4(4)
and 22 - Cases under the Act - Disposal of - Held: S.19(3)(c) read
with ss.4(4) and 22, make it clear that cases under the Act have to
be decided with utmost despatch and without any glitches on the
way in the form of interlocutory stay orders. (Per R.F. Nariman, J.)
Code of Criminal Procedure, 1973: s. 482 - Inherent Powers
of Court - Nature of - Discussed. (Per R.F. Nariman, J.)
Interpretation of Statutes: In case of ambiguity - Held: If there
is an ambiguity, and two views are possible, the view which most
accords with the object of the Act, and which makes the Act
workable, must necessarily be the controlling view. (Per R.F.
Nariman, J.)
Prevention of Corruption Act, 1988: s.19(3)(c) - "On any
other ground" - Plea of appellants that the expression "on any
other ground" is referable only to grounds which relate to sanction
and not to all proceedings under the Act - Respondents contended
that these are grounds referable to the proceedings under the Act
and are not relatable to sanction only - Held: "On any other
ground", refers to and relates to all grounds that are available in
proceedings under the Act other than grounds which relate to
sanction granted by the authority. (Per R.F. Nariman, J.)
Answering the referred questions, the Court
HELD: Per A.K. Goel, J. (for himself and Navin Sinha, J.)
1.1 Order framing charge may not be held to be purely an
interlocutory order and can in a given situation be interfered with
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under Section 397(2) Cr.P.C. or 482 Cr.P.C. or Article 227 of the
Constitution which is a constitutional provision but the power of
the High Court to interfere with an order framing charge and to
grant stay is to be exercised only in an exceptional situation.
The High Court has jurisdiction in appropriate case to consider
the challenge against an order framing charge and also to grant
stay. [Paras 26, 27] [1072-E-F]
Madhu Limaye v. The State of Maharashtra (1977) 4
SCC 551 : [1978] 1 SCR 749 - affirmed.
1.2 In the PC Act cases, the intention of legislature is
expeditious conclusion of trial on day-to-day basis without any
impediment through the stay of proceedings and this concern
must be respected. The proviso to Section 397(1) Cr.P.C. added
by Section 22(d) of the Prevention of Corruption Act, 1988 states
that a revisional court shall not ordinarily call for the record of
proceedings. If record is called, the Special Judge may not be
able to proceed with the trial which will stand indirectly stayed.
The right of the accused has to be considered vis-à-vis the interest
of the society. Even constitutional power of the High Court under
Article 226 which was very wide ought to be used with
circumspection in accordance with judicial consideration and well
established principles. The power should be exercised sparingly
in rare and extreme circumstances. It is well accepted that delay
in a criminal trial, particularly in the PC Act cases, has deleterious
effect on the administration of justice in which the society has a
vital interest. Delay in trials affects the faith in Rule of Law and
efficacy of the legal system. It affects social welfare and
development. Even in civil or tax cases it has been laid down
that power to grant stay has to be exercised with restraint. Mere
prima facie case is not enough. Party seeking stay must be put to
terms and stay should not be incentive to delay. The order granting
stay must show application of mind. The power to grant stay is
coupled with accountability. [Paras 28, 29][1072-G-H; 1073-A-D]
1.3 Wherever stay is granted, a speaking order must be
passed showing that the case was of exceptional nature and delay
on account of stay will not prejudice the interest of speedy trial in
a corruption case. Once stay is granted, proceedings should not
be adjourned and concluded within two-three months. The
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wisdom of legislature and the object of final and expeditious
disposal of a criminal proceeding cannot be ignored. In exercise
of its power the High Court is to balance the freedom of an
individual on the one hand and security of the society on the other.
Only in case of patent illegality or want of jurisdiction the High
Court may exercise its jurisdiction. The acknowledged experience
is that where challenge to an order framing charge is entertained,
the matter remains pending for long time which defeats the
interest of justice. The judicial experience is that trial of corruption
cases is not permitted to proceed on account of challenge to the
order of charge before the High Courts. Once stay is granted,
disposal of a petition before the High Court takes long time.
Consideration of the challenge against an order of framing charge
may not require meticulous examination of voluminous material
which may be in the nature of a mini trial. Still, the Court is at
times called upon to do so inspite of law being clear that at the
stage of charge the Court has only to see as to whether material
on record reasonably connects the accused with the crime. [Paras
30-32] [1073-E-G; 1074-A-B]
Hardeep Singh v. State of Punjab (2014) 3 SCC 92 :
[2014] 2 SCR 1 - followed.
1.4 If at the stage of charge, the High Court adopts the
approach of weighing probabilities and re-appreciate the material,
it may be certainly a time consuming exercise. The legislative
policy of expeditious final disposal of the trial is thus, hampered.
Thus, even while reiterating the view that there is no bar to
jurisdiction of the High Court to consider a challenge against an
order of framing charge in an exceptional situation for correcting
a patent error of lack of jurisdiction, exercise of such jurisdiction
has to be limited to rarest of rare cases. Even if a challenge to
order framing charge is entertained, decision of such a petition
should not be delayed. Though no mandatory time limit can be
fixed, normally it should not exceed two-three months. If stay is
granted, it should not normally be unconditional or of indefinite
duration. Appropriate conditions may be imposed so that the party
in whose favour stay is granted is accountable if court finally finds
no merit in the matter and the other side suffers loss and injustice.
To give effect to the legislative policy and the mandate of Article
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21 for speedy justice in criminal cases, if stay is granted, matter
should be taken on day-to-day basis and concluded within twothree months. Where the matter remains pending for longer
period, the order of stay will stand vacated on expiry of six
months, unless extension is granted by a speaking order showing
extraordinary situation where continuing stay was to be preferred
to the final disposal of trial by the trial Court. This timeline is
being fixed in view of the fact that such trials are expected to be
concluded normally in one to two years. In view of above, situation
of proceedings remaining pending for long on account of stay
needs to be remedied. Remedy is required not only for corruption
cases but for all civil and criminal cases where on account of stay,
civil and criminal proceedings are held up. At times, proceedings
are adjourned sine die on account of stay. Even after stay is vacated,
intimation is not received and proceedings are not taken up. In
an attempt to remedy this, situation, it is directed that in all
pending cases where stay against proceedings of a civil or criminal
trial is operating, the same will come to an end on expiry of six
months from today unless in an exceptional case by a speaking
order such stay is extended. In cases where stay is granted in
future, the same will end on expiry of six months from the date of
such order unless similar extension is granted by a speaking
order. The speaking order must show that the case was of such
exceptional nature that continuing the stay was more important
than having the trial finalized. The trial Court where order of stay
of civil or criminal proceedings is produced, may fix a date not
beyond six months of the order of stay so that on expiry of period
of stay, proceedings can commence unless order of extension of
stay is produced. [Paras 33, 35] [1076-B-F; 1078-C-F]
1.5 Thus, the law is declared 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 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 should be
entertained in a rarest of rare case only to correct a patent error
of jurisdiction and not to re-appreciate the matter. Even where
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such challenge is entertained and stay is granted, the matter must
be decided on day-to-day basis so that stay does not operate for
an unduly long period. Though no mandatory time limit may be
fixed, the decision may not exceed two-three months normally.
If it remains pending longer, duration of stay should not exceed
six months, unless extension is granted by a specific speaking
order, as already indicated. Mandate of speedy justice applies to
the PC Act cases as well as other cases where at trial stage
proceedings are stayed by the higher court i.e. the High Court
or a court below the High Court, as the case may be. In all pending
matters before the High Courts or other courts relating to PC
Act or all other civil or criminal cases, where stay of proceedings
in a pending trial is operating, stay will automatically lapse after
six months from today unless extended by a speaking order on
above parameters. Same course may also be adopted by civil and
criminal appellate/revisional courts under the jurisdiction of the
High Courts. The trial courts may, on expiry of above period,
resume the proceedings without waiting for any other intimation
unless express order extending stay is produced. The High
Courts may also issue instructions to this effect and monitor the
same so that civil or criminal proceedings do not remain pending
for unduly period at the trial stage. [Paras 36, 37] [1078-G-H;
1079-A-D]
L. Chandra Kumar v. Union of India and Ors. (1997) 3
SCC 261; Kartar Singh v. State of Punjab (1994) 3
SCC 569 : [1994] 2 SCR 375 - followed.
Imtiaz Ahmad v. State of U.P. (2012) 2 SCC 688 :
[2012] 1 SCR 779 - relied on.
Dharambir Khattar v. Central Bureau of Investigation
159 (2009) DLT 636; R. C. Sabharwal v. Central
Bureau of Investigation 166 (2010) DLT 362; CBI v.
Ravi Shankar Srivastava (2006)7 SCC 188 : [2006] 4
Suppl. SCR 450; Dharimal Tobacco Products Ltd. and
Ors. v. State of Maharashtra and Anr. AIR 2009 SC
1032 : [2008] 17 SCR 844; Krishnana v. Krishnaveni
(1997) 4 SCC 241 : [1997] 1 SCR 511; Nagendra Nath
Bora v. Commissioner of Hills Division and Appeals,
Assam AIR 1958 SC 398 : [1958] SCR 1240; Nihandra
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Bag v. Mahendra Nath Ghughu AIR 1963 SC 1895 :
[1963]
Suppl.
SCR 570;
Sarpanch,
Lonand
Grampanchayat v. Ramgiri Gosavi and Anr. AIR 1968
SC 222 : [1967] SCR 774; Maruti Bala Raut v. Dashrath
Babu Wathare and Ors. (1974) 2 SCC 615: [1975]
1 SCR 899; Babhutmal Raichand Oswal v. Laxmibai R.
Tarte and Anr. AIR 1975 SC 1297; Jagir Singh v. Ranbir
Singh and Anr. AIR 1979 SC 381 : [1979] 2 SCR 282;
Vishesh Kumar v. Shanti Prasad AIR 1980 SC 892:
[1980] 3 SCR 32; Khalil Ahmed Bashir Ahmed v.
Tufelhussein Samasbhai Sarangpurwala AIR 1988 SC
184: [1988] 1 SCR 1057; M.C. Mehta v. Kamal Nath
and Ors. AIR 2000 SC 1997; Ranjeet Singh v. Ravi
Prakash AIR 2004 SC 3892; Amarnath v. State of
Haryana (1977) 4 SCC 137 : [1978] 1 SCR 222;
Mohanlal Maganlal Thacker v. State of Gujarat [1968]
2 SCR 685; Manohar Lal Sharma v. Principal Secretary
and ors. (2014) 9 SCC 516 : [2014] 8 SCR 836; Shalini
Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC
329 : [2010] 8 SCR 836; State v. Navjot Sandhu (2003)
6 SCC 641 : [2003] 1 Suppl. SCR 130; V.C. Shukla v.
State through CBI (1980)
Suppl. SCC 92 :
[1980] SCR 380; Girish Kumar Suneja v. Central
Bureau of Investigation (2017) 14 SCC 809; S.
Kuppuswami Rao v. The King (1947) 9 FCR 180; Satya
Narayan Sharma v. State of Rajasthan (2001) 8 SCC
607 : [2001] 3 Suppl. SCR 268; Chander Shekhar
Singh v. Siya Ram Singh (1979) 3 SCC 118 : [1979]
1 SCR 947; Ratilal Bhanji Mithani v. Asstt. Collector
of Customs, Bombay and Anr. [1967] 3 SCR 926;
Siliguri Municipality vs. Amalendu Das (1984) 2 SCC
436 : [1984] 2 SCR 344; Assistant Collector of Central
Excise, Chandan Nagar, West Bengal vs. Dunlop India
Ltd. and Ors. (1985) 1 SCC 260 : [1985] 2 SCR 190;
Union Territory of Pondicherry and Ors. vs. P.V. Suresh
and Ors. (1994) 2 SCC 70 : [1993] 2 Suppl. SCR 487;
State of West Bengal and Ors. vs. Calcutta Hardware
Stores and Ors. (1986) 2 SCC 203 : [1986] 1 SCR
364 - referred to.
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HELD: Per R.F. Nariman, J. (Concurring):
1.1 A perusal of Section 19(3) of the Prevention of
Corruption Act, 1988 would show that the interdict against stay
of proceedings under this Act on the ground of any error, omission
or irregularity in the sanction granted by the authority is lifted if
the Court is satisfied that the error, omission or irregularity has
resulted in a failure of justice. Having said this in clause (b) of
Section 19(3), clause (c) says that no Court shall stay proceedings
under this Act on any other ground. [Para 7] [1085-G-H]
1.2 The Respondents are correct in their submission that
"on any other ground" are grounds referable to the proceedings
under this Act and not relatable to sanction only, for the following
reasons:
(i) Section 19(3)(b) subsumes all grounds which are relatable to
sanction granted. This is clear from the word "any" making it
clear that whatever be the error, omission or irregularity in
sanction granted, all grounds relatable thereto are covered.
(ii) This is further made clear by Explanation (a), which defines
an "error" as including competency of the authority to grant
sanction.
(iii) The words "in the sanction granted by the authority" contained
in sub-clause (b) are conspicuous by their absence in subclause(c), showing thereby that it is the proceedings under the
Act that are referred to.
(iv) The expression "on any other ground", therefore, refers to
and relates to all grounds that are available in proceedings under
the Act other than grounds which relate to sanction granted by
the authority.
(v) On the assumption that there is an ambiguity, and that there
are two views possible, the view which most accords with the
object of the Act, and which makes the Act workable, must
necessarily be the controlling view. It is settled law that even
penal statutes are governed not only by their literal language,
but also by the object sought to be achieved by Parliament.
(vi) The Statement of Objects and Reasons of the Prevention of
Corruption Act, 1988 makes it clear, Section 19(3)(c) is to be
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read with Section 4(4) and Section 22, all of which make it clear
that cases under the Act have to be decided with utmost despatch
and without any glitches on the way in the form of interlocutory
stay orders.
(vii) The subject matter of sub-section (4) of Section 19,
Prevention of Corruption Act, 1988 is only in the nature of a
proviso to Section 19(3)(a) and (b), making it clear that the ground
for stay qua sanction having occasioned or resulted in a failure of
justice should be taken at the earliest, and if not so taken, would
be rejected on this ground alone.
(viii) Section 19(3)(c) became necessary to make it clear that
proceedings under the Act can be stayed only in the eventuality
of an error, omission or irregularity in sanction granted, resulting
in failure of justice, and for no other reason. It was for this reason
that it was also necessary to reiterate in the language of Section
397(2) of the Code of Criminal Procedure, that in all cases, other
than those covered by Section 19(3)(b), no court shall exercise
the power of revision in relation to interlocutory orders that may
be passed. It is also significant to note that the reach of this part
of Section 19(3)(c) is at every stage of the proceeding, that is
inquiry, trial, appeal or otherwise, making it clear that, in
consonance with the object sought to be achieved, prevention of
corruption trials are not only to be heard by courts other than
ordinary courts, but disposed of as expeditiously as possible, as
otherwise corrupt public servants would continue to remain in
office and be cancerous to society at large, eating away at the
fabric of the nation. [Para 8] [1086-B-H; 1087-A-D; 1088-A-E]
Madhu Limaye v. The State of Maharashtra (1977) 4
SCC 551 : [1978] 1 SCR 749 - affirmed.
Ms. Eera through Dr. Manjula Krippendorf v. State
(Govt. of NCT of Delhi) and Anr. 2017 SCC Online SC
787 - referred to.
1.3 The High Courts are established by the Constitution
and are courts of record which will have all powers of such courts,
including the power to punish contempt of themselves (Article
215). The High Court, being a superior court of record, is entitled
to consider questions regarding its own jurisdiction when raised
before it. [Para 9] [1088-F-G]
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1.4 It is thus clear that the inherent power of a Court set
up by the Constitution is a power that inheres in such Court
because it is a superior court of record, and not because it is
conferred by the Code of Criminal Procedure. This is a power
vested by the Constitution itself, inter alia, under Article 215 as
aforestated. Also, as such High Courts have the power, nay, the
duty to protect the fundamental rights of citizens under Article
226 of the Constitution, the inherent power to do justice in cases
involving the liberty of the citizen would also sound in Article 21
of the Constitution. This being the constitutional position, it is
clear that Section 19(3)(c) cannot be read as a ban on the
maintainability of a petition filed before the High Court under
Section 482 of the Code of Criminal Procedure, the non-obstante
clause in Section 19(3) applying only to the Code of Criminal
Procedure. Insofar as petitions under Articles 226 and 227 are
concerned, they form part of the basic structure of the
Constitution. [Paras 11, 18] [1089-H; 1090-A-C; 1097-E-F]
Satya Narayan Sharma v. State of Rajasthan (2001) 8
SCC 607 : [2001] 3 Suppl. SCR 268 - overruled.
In re Special Reference 1 of 1964 [1965] 1 SCR 413;
Ratilal Bhanji Mithani v. Assistant Collector of Customs
[1967] SCR 3 926; L. Chandra Kumar v. Union of India
and Ors. (1997) 3 SCC 261 : [1997] 2 SCR 1186;
Kartar Singh v. State of Punjab (1994) 3 SCC
569 : [1994] 2 SCR 375 - followed.
Girish Kumar Suneja v. C.B.I. (2017) 14 SCC 809 -
relied on.
V. C. Shukla v. State through C.B.I. (1980) Supp. SCC
92 : [1980] SCR 380;
Poonam Chand Jain and
another v. Fazru (2004) 13 SCC 269 : [2004] 5 Suppl.
 SCR 525; Amar Nath v. State of Haryana (1977) 4 SCC
137 : [1978] 1 SCR 222 - referred to.
Case Law Reference
In the Judgment of Adarsh Kumar Goel, J.:
159 (2009) DLT 636
referred to
Para 6
166 (2010) DLT 362
referred to
Para 6
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[2006] 4 Suppl. SCR 450
referred to
Para 8
[2008] 17 SCR 844
referred to
Para 8
[1978] 1 SCR 749
affirmed
Para 8
[1997] 1 SCR 511
referred to
Para 8
[2003] 1 Suppl. SCR 130
referred to
Para 8
[1958] SCR 1240
referred to
Para 9
[1963] Suppl. SCR 570
referred to
Para 9
[1967] SCR 774
referred to
Para 9
[1975] 1 SCR 899
referred to
Para 9
AIR 1975 SC 1297
referred to
Para 9
[1979] 2 SCR 282
referred to
Para 9
[1980] 3 SCR 32
referred to
Para 9
[1988] 1 SCR 1057
referred to
Para 9
AIR 2000 SC 1997
referred to
Para 9
AIR 2004 SC 3892
referred to
Para 9
[1980] SCR 380
referred to
Para 12
[2001] 3 Suppl. SCR 268
referred to
Para 12
(1997) 3 SCC 261
followed
Para 14
[1979] 1 SCR 947
referred to
Para 14
[1978] 1 SCR 222
referred to
Para 18
[1968] 2 SCR 685
referred to
Para 19
(2017) 14 SCC 809
referred to
Para 20
[2014] 8 SCR 446
referred to
Para 20
[2010] 8 SCR 836
referred to
Para 20
[1994] 2 SCR 375
followed
Para 22
[1967] 3 SCR 926
referred to
Para 24
[1984] 2 SCR 344
referred to
Para 29
[1985] 2 SCR 190
referred to
Para 29
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[1993] 2 Suppl. SCR 487
referred to
Para 29
[1986] 1 SCR 364
referred to
Para 29
[2014] 2 SCR 1
followed
Para 32
[2012] 1 SCR 779
relied on
Para 34
In the Judgment of R. F. Nariman, J.:
[1978] 1 SCR 749
affirmed
Para 8
[1965] 1 SCR 413
followed
Para 9
[1967] SCR 3 926
followed
Para 10
[2001] 3 Suppl. SCR 268
overruled
Para 11
[1978] 1 SCR 222
referred to
Para 12
[1980] SCR 380
referred to
Para 14
[2004] 5 Suppl. SCR 525
referred to
Para 14
(2017) 14 SCC 809
relied on
Para 16
[1997] 2 SCR 1186
followed
Para 18
[1994] 2 SCR 375
followed
Para 18
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1375-1376 of 2013.
From the Judgment and Order dated 29.03.2011 by the Division
Bench of the High Court of Delhi at New Delhi in W.P. (Crl.) No. 352/2010.
WITH
Crl. A. Nos. 1383, 1377, 1394, 1384, 1393, 1386-1387, 1385, 1406,
1396, 1395, 1391, 1389, 1388, 1398, 1397, 1390, 1399, 1402, 1400, 1401,
1404, 1403 and 1405 of 2013.
SLP (Crl.) Nos. 2610, 6835, 6834, 6837, 10050-10051 and 96529653 of 2013.
Crl. A. Nos. 388 and 234 of 2014.
SLP (Crl.) Nos. 5678, 1451, 1399, 2508, 2970, 2507, 2939, 2977,
4709, 6372, 6391 and 6691-6692 of 2014.
Crl. A. No. 9363 of 2017.
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Ms. Pinky Anand, ASG, Kapil Sibal, Mukul Rohatgi, Ms. Madhavi
Divan, Sr. Advs., Arunabh Chowdhury, Anupam Lal Das, Sidharth Dave,
Sarvesh Singh Baghel, Aditya Pujari, Raghav Tankha, Bhanoo Sood,
Ms. Kalyani Lal, Tatni Basu, Siddhartha Dave, Ms. Jentiben Ao, Aditya
Ranjan, Anuj Chauhan, Zulfiqar Ali Khan, Aamir Naseem, Anuj Chauhan,
Mohd. Farhan Khan, Farhan Hashmi, Md. Shahid Anwar, Amar Dave,
Mrs. Nandini Gore, Mohit Mudgal, Akarsha Sahay, Sushil Jethmalani,
Mrs. Manik Karanjawala (For M/s. Karanjawala), Anupam Lal Das,
Anirudh Singh, Krishanu Barua, Rishi Malhotra, Bhavtosh Sharma, Gopal
Jha, Sibo Sankar Mishra, S. P. Mehta, Mohit D. Ram, Ms. Monisha
Handa, Amjid Maqbool, Kush Chatuvedi, Rohit Bhatt, Somay Kapoor,
Priyashree Ph., Sushil Gupta, Manan Verma, Mridula Ray Bharadwaj,
Yoginder Handoo, Nishant Kumar, Harish Pandey, Harsh Khanna, Amit
T., Abhishek Tyagi, Nikhil Jain, R. P. Shukla, Vijay K. Jain, H. S. Bhullar,
Ashwani Kumar, Ms. Iti Sharma, Ms. Shivali Chaudhary, Abhinav
Sharma, Ms. Sneha B., Kamal Mohan Gupta, Santosh Kumar - I,
Ms. Binu Tamta, Ms. Kiran Bhardwaj, S. S. Shamshery, V. V. Pattabhi
Ram, Ms. Rukmani Bobde, Hemant Arya, Sumit T., Mukesh Kumar
Maroria, P. Vinay Kumar, Ms. Prerna Mehta, V. N. Raghupathy, Ashok
K. Mahajan, Siddharth Aggarwal, Senthil Jagadeesan, Ms. Ruoali Samuel,
Amarjit Singh Bedi, B. V. Balaram Das, Arunabh Chowdhury, Anupam
Lal Das, Sidharth Dave, Advs. for the appearing parties.
The Judgments of the Court were delivered by
ADARSH KUMAR GOEL, J.
Criminal Appeal Nos.1375-1376 OF 2013
1. These appeals have been put up before this Bench of three
Judges in pursuance of order of Bench of two Judges dated 9th
September, 2013 as follows:
"Leave granted.
Learned counsel for the parties are agreed that there is
considerable difference of opinion amongst different
Benches of this Court as well as all the High Courts. Mr.
Ram Jethmalani, learned Senior Counsel appearing for
petitioner in Criminal Appeal arising out of Special Leave
Petition (Criminal)No.6470 of 2012 submits that the
subsequent decisions rendered by the two-judge Benches are
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per incuriam, and in conflict with the ratio of law laid down
in the Constitution Bench decision in Mohanlal Maganlal
Thacker v. State of Gujarat [(1968) 2 SCR 685].
In this view of the matter, we are of the opinion that it would
be appropriate if the matters are referred to and heard by a
larger Bench. Office is directed to place the matters before
the Hon'ble the Chief Justice of India for appropriate orders.
In the meantime, further proceedings before the trial Court
shall remain stayed."
2. Since the question of law to be determined is identical in all
cases, we have taken up for consideration this matter. In the light of
answer to the referred question this as well as all other matters may be
considered for disposal on merits by the appropriate Bench.
3. Brief facts first. F.I.R. dated 7th March, 2001 has been recorded
with the Delhi Special Police Establishment: CBI/SIU-VIII/New Delhi
Branch under Section 120B read with Sections 420, 467, 468, 471 and
477A of IPC and Section 13(2) read with 13(1)(d) of the Prevention of
Corruption Act, 1988 (the PC Act) at the instance of Municipal
Corporation of Delhi (MCD) against the appellant and certain officers
of MCD alleging causing of wrongful loss to the MCD by using fake
invoices of Oil Companies relating to transportation of Bitumen for use in
"Dense Carpeting Works" of roads in Delhi during the year 1997 and 1998.
4. After investigation, charge sheet was filed against the appellant
and certain employees of MCD by the respondent-CBI before the Special
Judge, CBI, New Delhi on 28th November, 2002. The appellants filed an
application for discharge with the Special Judge, CBI. On 1st February,
2007, the Special Judge, CBI directed framing of the charges after
considering the material before the Court. It was held that there was a
prima facie case against the appellant and the other accused. The
appellants filed Criminal Revision No. 321 of 2007 before the Delhi High
Court against the order framing charge. The Revision Petition was
converted into Writ Petition (Criminal)No.352 of 2010.
5. Learned Single Judge referred the following question of law
for consideration by the Division Bench:
"Whether an order on charge framed by a Special Judge
under the provisions of Prevention of Corruption Act, being
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an interlocutory order, and when no revision against the
order or a petition under Section 482 of Cr.P.C. lies, can be
assailed under Article 226/227 of the Constitution of India,
whether or not the offences committed include the offences
under Indian Penal Code apart from offences under
Prevention of Corruption Act?"
6. The learned Single Judge referred to the conflicting views taken
in earlier two single Bench decisions of the High Court in Dharambir
Khattar versus Central Bureau of Investigation1and R.C. Sabharwal
versus Central Bureau of Investigation2. It was observed :
"However, since there are two views, one expressed by the
Bench of Justice Jain in R.C. Sabharwal's (supra) case and
one held by the Bench of Justice Muralidhar in Dharamvir
Khattar's case (supra) and by this Bench, I consider that it
was a fit case where a Larger Bench should set the
controversy at rest."
7. In Dharambir Khattar (supra), the view of learned Single
Judge is as follows :
"32. To conclude this part of the discussion it is held that in
the context of Section 19(3)(c) the words "no Court shall
exercise the powers of revision in relation to any interlocutory
order passed in any inquiry, trial..." includes an interlocutory
order in the form of an order on charge or an order framing
charge. On a collective reading of the decisions in V.C.
Shukla and Satya Narayan Sharma, it is held that in terms
of Section 19(3)(c) PCA, no revision petition would be
maintainable in the High Court against order on charge or
an order framing charge passed by the Special Court.
33. Therefore, in the considered view of this Court, the
preliminary objection of the CBI to the maintainability of
the present petitions is required to be upheld...."
8. In R.C. Sabharwal (supra), another learned Single Judge held
that even though no revision may lie against an interlocutory order, there
was no bar to the constitutional remedy under Articles 226 and 227 of
the Constitution. At the same time, power under Section 482 could not
1 159 (2009) DLT 636
2 166(2010) DLT 362
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be exercised in derogation of express bar in the statute in view of
decisions of this Court in CBI versus Ravi Shankar Srivastava3,
Dharimal Tobacco Products Ltd. and Ors. versus State of
Maharashtra and Anr.4, Madhu Limaye versus The State of
Maharashtra5, Krishnan versus Krishnaveni6 and State versus
Navjot Sandhu7.
9. It was observed :
"37. In view of the authoritative pronouncement of the
Hon'ble Supreme Court in the case of Navjot Sandhu (supra),
coupled with its earlier decisions in the case of Madhu
Limaye (supra), it cannot be disputed that inherent powers
of the High Court, recognized in Section 482 of the Code of
Criminal Procedure, cannot be used when exercise of such
powers would be in derogation of an express bar contained
in a statutory enactment, other than the Code of Criminal
Procedure. The inherent powers of the High Court have not
been limited by any other provisions contained in the Code
of Criminal Procedure, as is evident from the use of the words
?Nothing in this Code? in Section 482 of the Code of
Criminal Procedure, but, the powers under Section 482 of
the Code of Criminal Procedure cannot be exercised when
exercise of such powers would be against the legislative
mandate contained in some other statutory enactment such
as Section 19(3)(c) of Prevention of Corruption Act."
"29. The fact that the procedural aspect as regards the
hearing of the parties has been incorporated in Section 22
does not really throw light on whether an order on charge
would be an interlocutory order for the purposes of Section
19(3)(c) PCA. A collective reading of the two provisions
indicates that in the context of order on charge an order
discharging the accused may be an order that would be
subject-matter of a revision petition at the instance perhaps
of the prosecution. Since all provisions of the statute have
to be given meaning, a harmonious construction of the three
3 (2006)7 SCC 188
4 AIR 2009 SC 1032
5 (1977) 4 SCC 551
6 (1997) 4 SCC 241
7 (2003) 6 SCC 641
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provisions indicates that the kinds of orders which can be
challenged by way of a revision petition in the High Court is
narrowed down to a considerable extent as explained in the
case of Satya Narayan Sharma."
Further, after referring to Nagendra Nath Bora v. Commissioner
of Hills Division and Appeals, Assam, AIR 1958 SC 398; Nibaran
Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC 1895;
Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi and Anr.,
AIR 1968 SC 222; Maruti Bala Raut v. Dashrath Babu Wathare
and Ors., (1974) 2 SCC 615; Babhutmal Raichand Oswal v.
Laxmibai R. Tarte and Anr., AIR 1975 SC 1297; Jagir Singh v.
Ranbir Singh and Anr., AIR 1979 SC 381; Vishesh Kumar v. Shanti
Prasad, AIR 1980 SC 892; Khalil Ahmed Bashir Ahmed v.
Tufelhussein Samasbhai Sarangpurwala, AIR 1988 SC 184; M.C.
Mehta v. Kamal Nath and Ors., AIR 2000 SC 1997 and Ranjeet
Singh v. Ravi Prakash, AIR 2004 SC 3892, it was observed :
"25. It is well known fact that trials of corruption cases are
not permitted to proceed further easily and a trial of
corruption case takes anything upto 20 years in completion.
One major reason for this state of affairs is that the moment
charge is framed, every trial lands into High Court and order
on charge is invariably assailed by the litigants and the High
Court having flooded itself with such revision petitions, would
take any number of years in deciding the revision petitions
on charge and the trials would remain stayed. Legislature
looking at this state of affairs, enacted provision that
interlocutory orders cannot be the subject matter of revision
petitions. This Court for reasons as stated above, in para
No. 3 & 4 had considered the state of affairs prevalent and
came to conclusion that no revision against the order of
framing of charge or order directing framing of charge
would lie. Similarly, a petition under Section 482 of Cr. P.C.
would also not lie. I am of the opinion that once this Court
holds that a petition under Article 227 would lie, the result
would be as is evident from the above petitions that every
order on charge which earlier used to be assailed by way of
revision would be assailed in a camouflaged manner under
Article 227 of the Constitution and the result would be same
that proceedings before the trial court shall not proceed.
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26. The decisions on a petition assailing charge requires
going through the voluminous evidence collected by the CBI,
analyzing the evidence against each accused and then
coming to conclusion whether the accused was liable to be
charged or not. This exercise is done by Special Judge
invariably vide a detailed speaking order. Each order on
charge of the Special Judge, under Prevention of Corruption
cases, normally runs into 40 to 50 pages where evidence is
discussed in detail and thereafter the order for framing of
charge is made. If this Court entertains petitions under Article
227 of the Constitution to re-appreciate the evidence collected
by CBI to see if charge was liable to be framed or, in fact,
the Court would be doing so contrary to the legislative intent.
No court can appreciate arguments advanced in a case on
charge without going through the entire record. The issues
of jurisdiction and perversity are raised in such petitions
only to get the petition admitted. The issue of jurisdiction is
rarely involved. The perversity of an order can be argued in
respect of any well written judgment because perversity is
such a term which has a vast meaning and an order which is
not considered by a litigant in its favour is always considered
perverse by him and his counsel. Therefore, entertaining a
petition under Article 227 of the Constitution against an order
on charge would amount to doing indirectly the same thing
which cannot be done directly, I consider that no petition
under Article 227 can be entertained."
(Emphasis added)
10.The Division Bench in the impugned judgment8 reframed the
questions as follows:
"(a) Whether an order framing charge under the 1988 Act
would be treated as an interlocutory order thereby
barring the exercise of revisional power of this Court?
(b)
Whether the language employed in Section 19 of the
1988 Act which bars the revision would also bar the
exercise of power under Section 482 of the Cr.P.C. for
all purposes?
8 Anur Kumar Jain versus CBI 178(2011) DLT 501
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(c)
Whether the order framing charge can be assailed under
Article 227 of the Constitution of India?"
11. After discussing the law on the point, the Bench concluded:
"(a) An order framing charge under the Prevention of
Corruption Act, 1988 is an interlocutory order.
(b) As Section 19(3)(c) clearly bars revision against an
interlocutory order and framing of charge being an
interlocutory order a revision will not be maintainable.
(c) A petition under Section 482 of the Code of Criminal
Procedure and a writ petition preferred under Article 227 of
the Constitution of India are maintainable.
(d) Even if a petition under Section 482 of the Code of
Criminal Procedure or a writ petition under Article 227 of
the Constitution of India is entertained by the High Court
under no circumstances an order of stay should be passed
regard being had to the prohibition contained in Section
19(3)(c) of the 1988 Act.
(e) The exercise of power either under Section 482 of the
Code of Criminal Procedure or under Article 227 of the
Constitution of India should be sparingly and in exceptional
circumstances be exercised keeping in view the law laid down
in Siya Ram Singh [(1979) 3 SCC 118], Vishesh Kumar [AIR
1980 SC 892], Khalil Ahmed Bashir Ahmed [AIR 1988 SC
184, Kamal Nath and Ors. [AIR 2000 SC 1997 Ranjeet Singh
[AIR 2004 SC 3892] and similar line of decisions in the
field.
(f) It is settled law that jurisdiction under Section 482 of the
Code of Criminal Procedure or under Article 227 of the
Constitution of India cannot be exercised as a "cloak of an
appeal in disguise" or to re-appreciate evidence. The
aforesaid proceedings should be used sparingly with great
care, caution, circumspection and only to prevent grave
miscarriage of justice."
12.