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2001 DIGILAW 1389 (MAD)

Udayakumar v. Superintendent of Police

2001-11-22

K.PADMANABHAN NAIR

body2001
ORDER: All these Crl.R.Ps. are directed against a common order passed by the Enquiry Commissioner and Special Judge, Kozhikode, dismissing as many as 28 Crl.M.P. filed by some of the accused in C.C. Nos.11 of 1992 to 22 of 1992 pending before that Court. The common petitioner in all these Crl.R.Ps. is 2nd accused in C.C. No. 12 of 1992, 20 of 1992, 21 of 1992 and 22 of 1992, 3rd accused in C.C. No. 16 of 1992, 18 of 1992 and 19 of 1992, 4th accused in C.C. Nos.11 of 1992, 14 of 1992 and 17 of 1992, 5th accused in C.C. No. 13 of 1992 and 6th accused in C.C.No.15 of 1992. 2. The petitioner along with other accused are chargesheeted by the respondent alleging that they committed the offences punishable under Secs. 5(2) read with 5(1)(d) of the Prevention of Corruption Act, 1947 and Secs.109 and 120-B of the Indian Penal Code. Charges in the abovesaid cases were framed in the year 1989 and trials are not yet over. 3. The revision petitioner and some other accused filed petitions for closing the prosecution evidence on the ground that the time fixed by the Supreme Court for completion of the trial in accordance with principle laid down in Raj Deo Sharma v. State of Bihar, A.I.R. 1996 S.C. 3281 was over long back. It is admitted that trial of all these cases were stayed by this Court from 20.8.1996 to 10.7.2001 but according to the petitioner even if the period under stay is excluded, the period fixed by the Supreme Court in Raj Deo Sharma’s case is over and hence the prosecution evidence has to be closed. The prayer was opposed. The learned Special Judge rejected the prayer for closing evidence and granted time till 31.3.2002 for prosecution to complete the evidence. Those orders are under challenge in these criminal revision petitions. 4. I shall first consider the maintainability of these criminal revision petitions. The Supreme Court in Satya Narayana Sharma v. State of Rajasthan, (2001)3 K.L.T. 559 (S.C.), has held that no Court shall exercise the power of revision in relation to any interlocutory order passed in any enquiry or trial under the Prevention of Corruption Act. 4. I shall first consider the maintainability of these criminal revision petitions. The Supreme Court in Satya Narayana Sharma v. State of Rajasthan, (2001)3 K.L.T. 559 (S.C.), has held that no Court shall exercise the power of revision in relation to any interlocutory order passed in any enquiry or trial under the Prevention of Corruption Act. The learned counsel for the revision petitioner in all these criminal revision petitions has argued that the directions issued by the Apex Court in Satya Narayana Sharma’s case are not applicable to these cases, as cognizance was taken in these cases while the Prevention of Corruption Act, 1947 was in force. It is argued that the principles laid down in Satya Narayana Sharma’s case are applicable to cases registered under the provisions of Prevention of Corruption Act, 1988, only as the Apex Court has considered the effect of the bar contained in Sec.19(3)(b) of 1988 Act. It is argued that there is no corresponding provision in the 1947 Act and hence the directions issued by the Supreme Court after interpreting Sec. 19(3)(c) of the 1988 Act, cannot be applied to these cases which were initiated prior to 9.9.1988. It is also submitted that these cases were filed before the Court of Special Judge, Thrissur and transferred to the Court of Special Judge, Kozhikode in the year 1992. The Apex Court in Satya Narayana Sharma v. State of Rajasthan, (2001)3 K.L.T. 559 (S.C.) held as follows: "It is thus to be seen that Sec. 19(3) provides: (a) that no Court should stay the proceedings under the Act on any ground, and (b) that no Court shall exercise the powers of revision relating to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. To be noted that (b) above is identical to Sec. 397(2) of the Criminal Procedure Code which deals with revisional power of the Court. If Sec. 19 was only to deal with revisional powers then the portion set out in (b) above, would have been sufficient. The Legislature has, therefore, by adding the words “no Court shall stay the proceedings under this Act on any other ground” clearly indicated that no stay could be granted by use of any power on any ground. This therefore would apply even where a Court is exercising inherent jurisdiction under Sec.482 of the Criminal Procedure Code. The Legislature has, therefore, by adding the words “no Court shall stay the proceedings under this Act on any other ground” clearly indicated that no stay could be granted by use of any power on any ground. This therefore would apply even where a Court is exercising inherent jurisdiction under Sec.482 of the Criminal Procedure Code. We see no substance in the submission that Sec. 19 would not apply to a High Court. Sec. 5(3) of the said Act shows that the special Court under the said Act is a Court of session. Therefore, the power of revision and/or the inherent jurisdiction can only be exercised by the High Court. Thus in cases under the Prevention of Corruption Act there can be no stay of trials“. 5. It is true that in the Prevention of Corruption Act, 1947 there was no provision corresponding to Sub-secs.(3) and (4) Sec. 19 of the Prevention of Corruption Act, 1988. But in Satya Narayana Sharma’s case, (2001)3 K.L. T. 559, the Supreme Court has not made any distinction between the cases arising under the 1947 Act and 1988 Act. In para 17 of the decision, it is stated that”Thus in cases under the Prevention of Corruption Act, there can be no stay of trials“. 6. The fundamental rule of construction is that no penal statute shall be construed so as to have retrospective operation. There are well recognised principles which govern retrospective operation of statutes. But those principles can have no application to enactments which deal with procedure. It is also well settled that no one has a vested right to any particular form of procedure. 7. In Ajith Kumar Palit v. The State, A.I.R. 1961 Cal. 560, the Full Bench of the Calcutta High Court held as follows: "The law is not in doubt, that amended law relating to procedure operates retrospectively. But it only means that pending cases although instituted under the old Act but still pending are governed by the new procedure under the amended law." xxx xxx xxx xxx xxx xxx xxx xxx "Thus, where the amendment is only of procedure, even pending cases are governed by the amended law of procedure, but only in respect of those stages of procedure that remain to be applied after the amendment comes into force". 8. 8. There cannot be any dispute that the provisions contained in Sec. 19(3) and (4.) are matters regarding procedure. 9. Sec. 30 of the 1988 Act reads as follows: "Repeal and saving: (1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed. (2) Notwithstanding such repeal, but without prejudice to the application of Sec. 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act." 10. In Central Bureau of Investigation v. Subodh Kumar Dutta and another, 1997 Crl.L.J. 1173, the Apex Court held that,”a bare look at the provisions of Sub-sec.(2) of Sec. 30 shows that anything done or any action taken or purported to have been taken under or in pursuance to the Prevention of Corruption Act, 1947 shall be deemed to have been taken under or in pursuance of the corresponding provision of the Prevention of Corruption Act, 1988. 11. In Central Bureau of Investigation v. V.K. Sehgal and another, J.T. (1999)6 S.C. 170, the Supreme Court considered the applicability of Sec.19(3) of the 1988 Act to the causes initiated under the repealed Act. It is held as follows: “Under Sub-sec.(2) of Sec. 30 of the 1988 Act any action taken under or in pursuance of the repealed Act such action will be deemed to have been taken under the corresponding provisions of the new Act. Under Sec. 19(3)(a) no order of conviction and sentence can be reversed or altered by a Court of appeal or revision even”on the ground of the absence of sanction“unless in the opinion of that Court a failure of justice has been occasioned thereby. By adding the Explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional Courts are debarred from interfering with the conviction and sentence merely on that ground”. 12. By adding the Explanation the said embargo is further widened to the effect that even if the sanction was granted by an authority who was not strictly competent to accord such sanction, then also the appellate as well as revisional Courts are debarred from interfering with the conviction and sentence merely on that ground”. 12. The learned counsel appearing for the revision petitioner has argued that in V.K. Seghal’s case, J.T. (1999) 6 S.C. 170, the question which arose for consideration was whether the conviction and sentence imposed on an accused under the repealed Act by the special Court can be reversed on the ground of impropriety or irregularity in according sanction and not regarding the stay of trials. It is argued that provision contained in Sec.6(1) and (2) of the Prevention of Corruption Act, 1947 and 19(1) and (2) of the 1988 Act are one and the same and Sec. 19(3)(a) of 1988 Act deals with impropriety or irregularity of the sanction accorded. According to the counsel the provisions contained in Sec. 19(3)(c) stands on different footing and hence the principle laid down in V.K. Seghal’s case is also not applicable to these cases. It is true that the Apex Court was considering the legality of the judgment passed by the High Court setting aside the conviction and sentence imposed by the Special Judge and acquitting the accused. But the Supreme Court has not made any distinction between the provisions contained in Sec. 19(3) and (c) of the Act. The principle laid down in V.K. Seghal’s case is not confined to Sec. 19(3)(a) alone. It applies to Sub-secs.(b) and (c) of Sec. 19(3) of that Act also. In view of the principle laid down in V.K. Seghal’s case, it is idle to contend that the provisions contained in Sec. 19(3)(b) and (c) of Prevention of Corruption Act, 1988, cannot be invoked by the High Court in respect of a case in which cognizance was taken before 9.9.1988. Since Sec.19(3) deals with procedure alone, provisions contained in Sub-secs.(a), (b) and (c) of Sec. 19(3) are applicable to the cases registered prior to 9.9.1988 also. 13. The relief sought for in these petitions is to close the evidence of the case and proceed to the next stage. Even if the petitions were allowed it will not have the effect of terminating the proceeding. 13. The relief sought for in these petitions is to close the evidence of the case and proceed to the next stage. Even if the petitions were allowed it will not have the effect of terminating the proceeding. So, the petitions filed in all these cases are purely interlocutory and hence the criminal revision petitions are barred under Sec. 19(3)(c) of the Prevention of Corruption Act, 1988. 14. It is argued that the clarifications issued by the Apex Court in Raj Deo Sharma v. State of Bihar, A.I.R. 1996 S.C. 3281 were doubted in P. Ramachandra Rao v. State of Karnataka, (2000) 6 Scale 516 and the matter is referred to a Constitution Bench and hence the clarification issued by the Supreme Court in Raj Deo Sharma’s (II) case, A.I.R. 1999 S.C. 3524 shall not be followed. It is submitted that in the interest of justice, the trial of these cases are to be stayed until the matters are disposed of by the Constitution Bench. It is also argued that the time fixed in Raj Deo Sharma’s case was over long back and even though these cases are pending for more than 12 years the prosecution is not able to complete its evidence. It is submitted that there is no possibility of completing the trial of these cases in the near future and in the interest of justice, the order passed by the Special Judge granting time till 31.3.2002 is to be quashed and the petitions allowed. 15. A reading of the decision of P. Ramachandra Rao’s case, (2000) 6 Scale 516 shows that correctness of all the judgments in Common Cause v. Union of India, (1996)4 S.C.C. 33 and Raj Deo Sharma v. State of Bihar, A.I.R. 1996 S.C. 3281 is referred to a Constitution Bench. In para 4 of the judgment, it is stated as follows: “The question is whether the earlier judgment of this Court, principally, in Common Cause v. Union of India, (1996)4 S.C.C. 33 , Common Cause v. Union of India, (1996) 6 S.C.C. 775 , Raj Deo Sharma v. State of Bihar, (1998)7 S.C.C. 507 and Raj Deo Sharma (II) v. State of Bihar, (1999) 7 S.C.C. 604 would apply to prosecutions under the Prevention of Corruption Act and other economic offences”. 16. 16. If the contention of the revision petitioner is accepted the principle laid down in first judgment in Raj Deo Sharma’s case, also cannot be followed since correctness of that decision is also doubted and referred to the Constitution Bench. In view of the Art. 141 of the Constitution of India, subordinate Courts are bound to follow the principle laid down by the Apex Court in Raj Deo Sharma (II) v. State of Bihar, (1999)7 S.C.C. 604 : A.I.R. 1999 S.C. 3524. So there is no merit in these argument raised by the counsel for the revision petitioner that the learned Special Judge ought have followed the principle laid down in the first judgment in Raj Deo Sharma v. State of Bihar, A.I.R. 1996 S.C. 3281 and not the clarifications contained in the subsequent judgment. 17. It is argued in the petition that the prosecution has not filed any petition seeking further time and the Special Court has no jurisdiction to grant further time to the prosecution in a petition filed by the accused to close the evidence. If the prosecution wanted further time, the investigating officer ought to have filed petition for claiming extension of time stating the reasons for claiming further time. It is argued that the order of the Special Judge granting further time till 31.3.2002 to complete the prosecution evidence in the absence of a written application to that effect is illegal and without jurisdiction. 18. The orders under challenge show that quite a good number of witnesses were already examined and still large number of witnesses are to be examined. Voluminous documentary evidence is also to be adduced. The first accused in C.C. No. 15 of 1992 filed O.P. before this Court and this Court issued a direction in the year 1995 to dispose of the case within a period of six months which was subsequently extended. In the meanwhile this Court stayed the trial of all these cases from 20.8.1996 to 10.7.2001 in the criminal revision petitions filed by some of the accused. It is true that the Special Judge granted time till 31.3.2002 to complete evidence to the prosecution, even though no application was filed by the prosecution. In the meanwhile this Court stayed the trial of all these cases from 20.8.1996 to 10.7.2001 in the criminal revision petitions filed by some of the accused. It is true that the Special Judge granted time till 31.3.2002 to complete evidence to the prosecution, even though no application was filed by the prosecution. In Raj Deo Sharma’s case, A.I.R. 1996 S.C. 3281, it was held that, “additional period of one year can be claimed by the prosecution in respect of prosecution which were pending on the date of judgment in the main appeal, and the Court concerned would be free to grant such extension if the Court considers it necessary in the interest of administration of criminal justice”. In Raj Deo Sharma’s case, it is not stated that for getting extension, prosecution shall file written application. Even if a request is made by the prosecution orally, the Court is bound to consider the same and the Court cannot insist that a petition should be filed. It is open to the Court to consider whether the evidence should be closed or further time should be granted to the prosecution to complete the evidence even in a petition filed by the accused for closing the evidence. That order cannot to be said to be no passed without jurisdiction and the same is perfectly legal and valid. 19. The facts of these cases show that the cases were registered prior to 1989. A large number of witnesses are already examined and voluminous documents have been produced. A good number of witnesses are yet to be examined. By allowing the prosecution to adduce evidence no prejudice will be caused to the accused. If it is ultimately found that the trial Court has admitted any evidence which it ought not have admitted and a conviction is entered into based on such evidence, the admissibility of such evidence can be challenged in the appeal. No prejudice will be caused to the accused. So I do not find any ground to admit these revisions and cause any further delay in the trials of a dozen, 12 year old cases. These revisions are without any merit and they are only to be dismissed in limine. In the result, the Crl.R.P. Nos. 1245 of 2001 to 1256 of 2001 are dismissed in limine.