Keywords : power of superintendence
The powers under Article 227 are wide and can be used, meet the ends of justice. They can be used interfere even with an interlocury order.
(SUPREME COURT OF INDIA)
State, through Special Cell, New Delhi Versus Navjot Sandhu @ Afshan Guru and ors
(Before : S. N. Variava and Brijesh Kumar, JJ.)
Criminal Appeal Nos. 725-728 of 2003; Decided On: 09-05-2003
Penal Code, 1860—Sections 120, 120B, 121, 121A, 122, 124, 186, 332, 353, 302, and 307—Explosive Substances Act, 1884—Sections 3, 4 and 5—Arms Act, 1959—Sections 25 and 27—Criminal Procedure Code, 1973—Sections 482 and 397(3)—Constitution of India 1950—Articles 226 and 227—Narcotics Drugs and Psychotropic Substances Act, 1985—Sections 41 and 42.
JUDGMENT
S.N. Variava, J—Leave granted.
2. Heard parties.
3. Briefly stated the facts are as follows:
On 13th December, 2001 five terrorist attacked the Parliament of India. After an encounter, with the security forces, the five terrorists were shot dead. A F.I.R. was lodged by the Station House Officer, Police Station, Parliament Street. A case under Sections 120, 120B, 121, 121A, 122, 124, 186, 332, 353, 302, and 307 IPC, Sections 3, 4 and 5 of the Explosive Substances Act and Sections 25 and 27 of the Arms Act was registered. Investigation was then initiated. From the slain terrorists apart from arms, ammunitions and other items, three mobile phones, 6 sim cards and slips of paper containing five mobile telephone numbers and other two telephone numbers were recovered. It is the case of the prosecution that due urgency authorisation intercept was granted by the Joint Direcr of Intelligence Bureau, who was associated with the investigation. It is the case of the prosecution that this authorisation was as per the provisions of the Telegraph Act i.e.5 of the Telegraph Act read with Rule 419A. It is the case of the prosecution that the interception disclosed the involvement of the respondents in the conspiracy attack the Parliament of India. It is the case of the prosecution that as a result of the interceptions and the interrogations of the respondents, it was disclosed that the slain terrorists and the respondents were in uch with one Ghazi Baba, who is a Pakistani national and the supreme commander of Jaish-e-Mohammed which is a notified and banned terrorist organisation under 18 of Prevention of Terrorist Act, 2002 and the schedule there (the Prevention of Terrorism Act will hereinafter be referred as POTA). It is the case of the prosecution that after the investigation officers had, in the course of the investigation, collected the relevant and cogent material it was found that a case under POTA was made out. It is the case of the prosecution that relevant sections of POTA were added on 19 th December, 2001 only after it was ensured that offences under POTA were made out. It is the case of the prosecution that this was done in view of the well established law laid down by this Court, in the context of TADA, that there must be due application of mind and cogent material before the special rigorous regime is added. It is the case of the prosecution that on 31st December, 2001 and 19 th January, 2002 the Home Secretary approved the interception.
4. It is the case of the prosecution that after the investigation was completed the charge-sheet was filed on 14th May, 2002. It is the case of the prosecution that copy of the transcripts of the intercepted conversation were given the accused along with the charge sheet. On 8th July, 2002 the respondents applied before the Special Judge seeking a direction that the intercepted conversation not be used as evidence in the trial for proving the charge/s under POTA. The procedure which the Special Judge should have followed is an laid down by this Court in the case of Bipin Shantilal Panchal v. State of Gujarat and Anr. 2001 CriLJ 1254 . In this case it has been held as follows:
“12. As pointed out earlier, on different occasions the trial Judge has chosen decide questions of admissibility of documents or other items of evidence, as and when objections there were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the parties concerned go before the higher courts for the purpose of challenging such interlocury orders.
13. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice in this : Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have send the case back the trial court for recording that evidence and then dispose of the case afresh. Why should be trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period the hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded give way for better substitutes which would help acceleration of trial proceedings.
14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material of item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject such objections be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates deficiency of stamp duty of a document the court has decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue examine the witnesses. The witnesses need not wait for long hours, if no days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering remit the case the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice the parties the litigation and would not add their misery or expenses.
16. We, therefore, make the above as a procedure be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.”
5. Had the Special Judge followed the above dictum no prejudice would have been caused the respondents inasmuch as their arguments/objections would have been decide at the stage of final hearing. If the Court was in their the evidence could have been eschewed and not considered. Any decision given at that stage could then have been challenged in the appeal under34, POTA. Ignoring the above dictum the Special Judge chose hear detailed arguments and by his order dated 11th July, 2002, dismissed the applications. The Special Judge held that the evidence collected by various police officials when the case was registered under different provisions of law cannot be washed away merely because the provisions of POTA were added on 19th December, 2001. The Special Judge held that the provisions of POTA had be followed only if the investigation was done under the provisions of the POTA. By dictating an order and passing the interlocury Order the Special Judge enabled the respondents adopt the course that they have. This has resulted in a peculiar situation where two judges of the High Court, hearing the statury appeal under34, POTA, may be precluded from deciding an important point of law by an order passed by a Single Judge of the High Court.
6. Thereafter the trial proceeded. The evidence was recorded/taken.
7. The respondent Ms. Navjot Sandhu filed Criminal Writ Petition No. 774 of 2002. On 22nd July, 2002 the following order was passed therein:
“Learned counsel for the petitioner wishes withdraw this petition in order take appropriate action in accordance wit law. Leave as prayed is granted.
Crl.W.774/2002 and Crl.M.588/2002 are accordingly disposed of.”
8. Respondent Ms. Navjot Sandhu then filed Criminal Misc. No. 2331 of 2002 under 482 Criminal Procedure Code read with Articles 226 and 227 of the Constitution of India seeking quashing of the order dated 11th July, 2002 of the Special Judge.
9. Respondent Syed Abdul Rehman Geelani filed Criminal Appeal the title of which reads as under:
“IN THE HIGH COURT OF DELHI AT NEW DELHI
Criminal Appeal No……of 2002
In the matter of:
Syed Abdul Rehman Geelani,
S/o Syed Abdul Wali Geelani,
R/o 535, IInd Floor,
Mukherjee Nagar, Delhi
Appellant/accused
Versus
State (NCT of Delhi)
IN THE MATTER OF:-
FIR No. 417/02
U/S 3/4/5 POTA 2002
R/w 120-B/121/121A/122
IPC, AND SEC 3/5 of
Explosive Substances Act
PS: Parliament Street
Pending before the court of Sh. S.N. Dhingra,
Special Judge (POTA), New Delhi
Next Date of Hearing- 25-7-2002.
APPEAL, UNDER 34 OF THE PREVENTION OF TERRORISM ACT, 2002 READ ‘WITH 482 OF THE CODE OF CRIMINAL PROCEDURE AGAINST THE ORDER DATED 11-7-2002, WHEREBY THE APPLICATION MADE ON BEHALF OF APPELLANT/ACCUSED FOR ESCHEWING/EXCLUSION OF EVIDENCE RELATING ALLEGED INTERCEPTED COMMUNICATION WAS DISMISSED.”
10. The affidavit in support of the Appeal, inter-alia, read as follows:
“2. That the accompanying memorandum of appeal has been drafted by the counsel under my instructions. I have read and undersod the contents thereof and the same are true and correct my knowledge.”
11. Thus Respondent Geelani had not invoked Article 227 of the Constitution of India. He had filed an appeal under 34, POTA against the order dated 11th July, 2002. As 482 Criminal Procedure Code was invoked the petition was numbered as a Criminal Misc. Petition and was placed before a single Judge of the High Court. It nevertheless remained an Appeal under34, POTA.
12. It would be appropriate set out, at this stage,34, POTA. It reads as follows:
“34. (1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocury order, of a Special Court the High Court both on facts and on law.
Explanation- For the purposes of this section, “High Court” means a High Court within whose jurisdiction, a Special Court which passed the judgment, sentence or order, is situated.
(2) Every appeal under Sub-section (1) shall be heard by a bench of two judges of the High Court.
(3) Except as aforesaid, no appeal or revision shall lie any court from any judgment, sentence or order including an interlocury order of a Special Court.
(4) Notwithstanding anything contained in Sub-section (3) of 378 of the Code, an appeal shall lie the High Court against an order of the Special Court granting or refusing bail.
(5) Every appeal under thisshall be preferred within a period of thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days.”
13. A plain reading of 34 shows that no appeal would lie against an interlocury order. It could not be denied that the order dated 11th July, 2002 was an interlocury order. It must also be noted that the Appeal must be heard by a bench of two judges of the High Court.
14. It must be mentioned that Respondent Shaukat Hussain had also filed a Criminal Misc. Application No. 2484 of 2002 praying that the order dated 11th July, 2002 be quashed.
15. By the impugned judgment the High Court has disposed of all the above Petitions/Applications. The High Court has not mentioned whether it was exercising its power of superintendence under Article 227 of the Constitution of India or its inherent power under482 of the Criminal Procedure Code. The question thus arises as what power or jurisdiction the High Court has exercised. The only source of power which might have been used/invoked was either under Article 227 of the Constitution of India or the inherent power under 482 Criminal Procedure Code. The further question which then arises is whether, on the facts of this case, the High Court could or should have exercised power under Article 227 or jurisdiction under482.
16. For a consideration of these questions it is first necessary note the stage at which the trial was when the impugned judgment was delivered. This is best indicated by reproducing herein a relevant paragraph from the impugned judgment. The paragraph reads as follows:
“I am ld that in the meantime the prosecution evidence has been completed and the trial of the case is at its fag end. Therefore, it will be appropriate that this court restricts the decision on the legal points which are absolutely necessary decide leaving all other objections raised in these petitions be canvassed before the trial court for consideration at the time of the final decision.”
17. As a being set out hereafter there is no legal point which was “absolutely necessary” be decided at that stage.
18. Mr. Shanti Bhushan submitted that the High Court had exercised power under Article 227 of the Constitution of India. As stated above the High Court does not state that it is exercising power of superintendence under Article 227 of the Constitution of India. be remembered that Respondent Geelani had not invoked Article 227 of the Constitution of India. Thus Dr. Dhavan submitted that the order was passed in exercise of inherent jurisdiction under482 of the Criminal Procedure Code. The impugned order is a common order passed in all the Applications/Petitions. It therefore follows that the impugned order cannot be in exercise of the power of superintendence under Article 227 of the Constitution of India. For this reason it is difficult accept the submission of Mr. Shanti Bhushan that the order is under Article 227 of the Constitution of India.
19. We however are not required go in the controversy whether the impugned order is under Article 227 of the Constitution of India or passed in exercise of inherent jurisdiction under482 of the Criminal Procedure Code. It appears us that, on facts of this case, neither the power under Article 227 of the Constitution of India nor inherent jurisdiction under482 of the Criminal Procedure Code should have been exercised, even if such powers were available.
20. The law on the subject is clear. It is now necessary look at the law.
21. In the case of State of Gujarat v. V.S. Vaghela and Ors. reported in (1968) 3 SCR 692 it is held that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the terriries in relation which it exercises jurisdiction. It is held that this jurisdiction cannot be limited or fettered by any act of the State Legislature. It is held that the supervisory jurisdiction extends keeping the subordinate Tribunal’s within the limits of the authority and seeing that they obey the law.
22. In the case of Madhu Limaye v. State of Maharashtra 1978 CriLJ 165 the question was whether the High Court can exercise its inherent power under482 of the Criminal Procedure Code quash an interlocury order. In this judgment the provision of 397(2) of the Criminal Procedure Code, which barred a revision against an interlocury order, were also considered. It was held that the purpose of putting a bar on the power of revision in relation any interlocury order passed, in an appeal, trial or other proceeding is bring about expeditious disposal of cases finally. It was held that more often than not the revisional power of the High Court was resorted in relation interlocury orders for delaying the final disposal of the proceeding it was held that the Legislature in its wisdom decided check this delay by introducing397(2). It was held that482 provided that “Nothing in the Code” shall be deemed limit or affect the inherent powers of the High Court. It was held that the term “Nothing in the Code” would include397(2). It was held that397(2) could not prevent the High Court from exercising its inherent powers under482. It was held that in exercising power under482 the High Court must adhere the following principles viz. (a) that the power is not be resorted if there is a specific provision in the Code for redress of grievance of the aggrieved party; (b) that it should be exercised very sparingly prevent abuse of process of any Court or otherwise secure the end of justice; (c) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
23. In the case of Jagir Singh v. Ranbir Singh and Anr. 1979 CriLJ 318 it is held as follows:
“6. If the revision application the High court could not be maintained under the provisions of the Criminal Procedure Code, could the order of the High Court be sustained under Article 227 of the Constitution, as now suggested by the respondent? In the first place the High Court did not purport exercise its power of superintendence under Article 227. The power under Article 227 is a discretionary power and it is difficult attribute the order of the High Court such a source of power when the High Court itself did not, in terms, purport exercise any such discretionary power. In the second place the power of judicial superintendence under Article 227 could only be exercised sparingly, keep subordinate Courts and Tribunals within the bounds of their authority and not correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances warrant interference under Article 227 of the Constitution since the power of superintendence was not meant circumvent statury law.”
24. In the case of Krishnan v. Krishnavenii 1997 CriLJ 1519 it is held that even though a second revision the High Court is prohibited by397(3) of the Criminal Procedure Code, the inherent power is still available under482 of the Criminal Procedure Code. It was held that the object of criminal trial is render public justice, punish the criminal and see that the trial is concluded expeditiously before the memory of the witness fades out. It is held that the recent trend is delay the trial and threaten the witness or win even the witnesses by promise or inducement. It is held that these malpractices need be curbed and that public justice can be ensured only if trial is allowed be conducted expeditiously. It is held that even though the power under482 is very wide it must be exercised sparingly and cautiously and only prevent abuse of process or miscarriage of justice.
25. In the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrates and Ors. 1998 CriLJ 1 it has been held as follows:
“21. The question which arise for consideration are if in the circumstances of the case, the appellants rightly approached the High Court under Articles 226 and 227 of the Constitution and if so, was the High Court justified in refusing grant any relief the appellants because of the view which it ok of the law and the facts of the case. We have, thus, examine the power of the High Court under Article 226 and 227 of the Constitution and 482 of the Code.
22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal 1993 CriLJ 1042 this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under482 of the Code which it said could be exercised by the High Court either prevent abuse of the process of any court or otherwise secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose prevent abuse of the process of any court or otherwise secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High court prevent the abuse of the process of law by the inferior courts and see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Article 226 and 227 of the Constitution and under 482 of the Code have no limits but more the power due care and caution is be exercised while invoking these powers. When the exercise of powers could be under Article 227 or 482 of the Code it may not always be necessary invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Article 226 and 227 may be referred .
23. In Waryam Singh v. Amarnath (1954) 1 SCR 565 this Court considered the scope of Article 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee AIR 1951 Cal 193 where the High Court said that the power of superintendence conferred by Article 227 was be exercised most sparingly and only in appropriate cases in order keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.
24. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta AIR 1975 SC 1297 this Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was be exercised most sparingly and only in appropriate cases. It said that the High Court could not, while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or re-appreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, “as the cloak of an appeal in disguise. It does not lie in order bring up an order or decision for rehearing of the issues raised in the proceedings”. The Court referred with approval the dictum of Morris, L.J. in R. v. Northumberland Compensation Appeal Tribunal (1952) 1 All E.R. 122.
25. In Nagendra Nath Bora v. Commr. Of Hills Divisions (1958) 1 SCR 1240 this Court observed as under:
26. “It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution the power of interference is limited seeing that the tribunal functions within the limits of its authority.”
(emphasis supplied)
26. In the case of Industrial Credit and Investment Corporation of India Ltd. v. Grapco Industries Ltd. and Ors. (1999) 3 SCR 759 it has been held that there is no bar on the High Court examining merits of a case in exercise of its jurisdiction under Article 227 of the Constitution of India if the circumstances so require. It has been held that, under Article 227 of the Constitution of India, the High Court can even interfere with interim orders of Courts and Tribunal’s if the order is made without jurisdiction.
27. In the case of Roy V.D. v. State of Kerala, reported in 2001 CriLJ 165 the question was whether arrest and search by an officer not empowered or authorised and therefore in violation of 41 and 42 of the Narcotics Drugs and Psychotropic Substances Act, 1985 was per se illegal and would vitiate trial. This Court held that when Criminal proceedings are initiated on the basis of material collected on search and arrest which are per se illegal, power under482 can be exercised quash the proceedings as continuance of such proceedings would amount abuse of the process of the Court.
28. In the Case of Puran v. Rambilas and Anr. 2001 CriLJ 2566 this Court has held that the High Court’s inherent jurisdiction under482 is not affected by the provisions of 397(3) of the Code of Criminal Procedure. It is held that the High Court can interference even if the order is an interlocury order. It is held that for securing the end of justice the High Court can interfere with an order which causes miscarriage of justice or is palpably illegal or is unjustified. It was also noticed that the High Court may refuse exercise jurisdiction, under482, on the basis of self-imposed restriction.
29. In the case of Satya Narayan Sharma v. State of Rajasthan 2001 CriLJ 4640 it has been held that 482 of the Criminal Procedure Code starts with the words “Nothing in the Code”. It is held that this inherent power can be exercised even if there is a contrary provision in the Criminal Procedure Code. It is held that482 of the Criminal Procedure Code does not provide that inherent jurisdiction can be exercised “notwithstanding any other provision contained in any other enactment”. It has been held that if any other enactment contains a specific bar then inherent jurisdiction cannot be exercised get over that bar.
30. In the case of Ouseph Mathai and Ors. v. M. Abdul Khadir AIR 2002 SC 110 it has been held as follows:
“In Waryam Singh v. Amarnath (1954) 1 SCR 565 this Court held that power of superintendence conferred by Article 227 is be exercised more sparingly and only in appropriate cases in order keep the subordinate courts within the bounds of their authority and not for correcting mere errors. This position of law was reiterated in Nagendra Nath Bora v. Commr. Of Hills Division and Appeals (1958) 1 SCR 1240 . In Babhutmal Raichand Oswal v. Laxmibai R. Tarte AIR 1975 SC 1297 this Court held that the High Court not, in the guise of exercising its jurisdiction under Article 227 convert itself in a court of appeal when the legislature has not conferred a right of appeal. After referring the judgment of Lord Denning in R. v. Northumberland Compensation Appeal Tribunal, ex. p. Shaw (All ER at p. 128) this Court in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram held:
“20. It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go in the question of facts or look in the evidence if justice so required it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline exercise its jurisdiction under Articles 226 and 227 of the Constitution look in the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings are perverse and not based on any material evidence or it refuted in manifest injustice (see Trimbak Gangadhar Telang v. Ramchandra Ganesh Bihde, AIR 1977 SC 1222 . Except the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought interfere it is manifest that the High Court has gone in questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came one conclusion and the Appellate Bench came another conclusion is indication of the position that two views were possible in this case. In preferring one view another of factual appreciation of evidence, the High court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error.”
6. In Laxmikant Revchand Bhojwani v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576 this Court held that the High Court was not justified in extending its jurisdiction under Article 227 of the Constitution of India in a dispute regarding eviction of tenant under the Rent Control Act, a special legislation governing landlord-tenant relationship. the same effect is the judgment in Koyilerian Janaki v. Rent Controller (Munsiff) (2000) 9 SCC 406 .
7. In the present appeals, the High court appears have assumed the jurisdiction under Article 227 of the Constitution without referring the facts of the case warranting the exercise of such a jurisdiction. Extraordinary power appear have been exercised in a routine manner as if the power under Article 227 of the Constitution was the extension of powers conferred upon a litigant under a specified statute. Such an approach and interpretation is unwarranted. By adopting such an approach some High Courts have assumed jurisdiction even in matters which the legislature has assigned finality under the specified statues. liberal assumption of powers without reference the facts of the case and the corresponding hardship be suffered by a litigant has unnecessary burdened the courts resulting in accumulation of arrears adversely affecting the attention of the court the deserving cases pending before it.”
(emphasis supplied)
31. In the case of State of Karnataka v. M. Devendrappa and Anr. 2002 CriLJ 998 , this Court has held that the High Court has inherent power under482 Criminal Procedure Code quash proceedings. It is held that the power should be exercised stifle a legitimate prosecution. It is held that the High court should not assume the role of a trial Court and embark upon an enquiry. It is held that the power should be exercised sparingly, with caution and circumspection.
32. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the terriries in relation which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends keeping the subordinate Tribunal’s within the limits of their authority and seeing that they obey the law. The powers under Article 227 are wide and can be used, meet the ends of justice. They can be used interfere even with an interlocury order. However, the power under Article 227 is a discretionary power and it is a difficult attribute an order of the High Court, such a source of power, when the High Court itself does not in terms purport exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only keep subordinate Courts and Tribunal’s within the bounds of their authority and not correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant circumvent statury law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.
33.482 of the Criminal Procedure Code starts with the words “Nothing in this Code”. Thus the inherent jurisdiction of the High Court under482 of the Criminal Procedure Code can be exercised even when there is a bar under397 or some other provisions of the Criminal Procedure Code. However as is set out in Satya Narayanan Sharma’s case (supra) this power cannot be exercised if there is a statury bar in some other enactment. If the order assailed is purely of an interlocury character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse exercise its inherent power. The inherent power is be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not be resorted if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment.
34. This being the law let us now see whether the High Court was right in interfering at this stage. as has been set out herein above, by the time the High court delivered the impugned judgment the evidence, objected , had already been recorded. The order dated 11th July, 2002 was clearly an interlocury order.34, POTA clearly provides that no appeal or revision would lie any Court from an order which was an interlocury order. As stated above the impugned order is a common order in all Applications/Petitions. Respondent Geelani had filed an Appeal under34, POTA. Merely because he chose invoke482 of the Criminal Procedure code did not mean that his application was not an Appeal. Clearly the High Court could not have interfered at this stage. The High Court has not indicated that it was exercising power of superintendence under Article 227. Such a power being a discretionary power it is difficult attribute the order of the High Court such a source of power. Even otherwise in respect of Respondent Geelani power under Article 227 could not have been invoked or exercised.
35. On facts of this case we find that the effect of the impugned order is that the statury provision of34, POTA have been circumvented. The impugned order has also led the very peculiar situation set out hereinabove. repeal under34, POTA the appeals is be heard by a bench of two judges of the High Court. We are informed that the appeal is being heard by a bench of two Judges of the High Court. An appeal under34, POTA is both on facts and on law. The correctness of the interlocury order could, by virtue of34, POTA, have been challenged only in the appeal filed against the final judgment. The respondents by filing the Application/Petitions and the learned Judge having chosen entertain them, has resulted in a party being deprived of an opportunity of canvassing an important point of law in the statury Appeal before the division bench. The peculiar situation is that the division bench, hearing a statury appeal (both on law and facts) is bound/constrained by an order of a single Judge. The order of the Special Judge is based on an interpretation of the various provisions of POTA. The Special Judge undoubtedly had authority and jurisdiction interpret the various provisions of POTA and other laws. The Special Judge had jurisdiction decide whether the evidence collected by interception could be used for proving a charge under POTA. The Special Judge was acting within the limits of his authority in passing the impugned order. We are ld that before single Judge of the High Court the arguments, by both sides, went on for approximately two weeks. Even before us considerable time was taken. This is being mentioned only indicate that the question is not so clear. It requires interpretation of various provisions of POTA. Neither the power under Article 227 nor the power under482 enabled the High Court correct an error in interpretation even if the High Court felt that the order dated 11th July 2002 was erroneous. Even if the High Court did not agree with the correctness of that order, the High Court should have refused interfere as the order could be corrected in the appeal under34, POTA. be remembered that by the time the impugned order was passed the evidence had already been recorded. Thus there was no abuse of process of Court which could now be prevented. Even the end of justice did not require interference at this stage. In fact the ends of justice required that the statury intent of34, POTA be given effect . The High court should have directed the Respondents raise all such points in the statury appeal, if any required be filed under34, POTA. If in the appeal the division bench felt that the order was not correct or that it was erroneous it would set aside the order, eschew the evidence and not take the same in consideration. Thus no prejudice was being caused or would be caused the respondents. Their rights were fully protected as per the provisions of POTA. At this stage there was no miscarriage of justice or palpable illegality which required immediate interference. We are therefore of the opinion that even if powers under227 or under482 could have been exercised this was a case where the High Court should not have exercised those powers.
36. It was submitted that the prosecution had not raised the point of maintainability of the Applications/Petitions before the High Court. It was submitted that the prosecution chose argue on merits before the High Court and therefore they should now not be permitted raise these contentions before this Court. It does appear that the question of maintainability was not argued the High Court. However we are informed that34, POTA was brought the notice of the High Court. The High court was also aware that, by the time it heard the matter, the evidence had already been recorded and the trial had reached the final stage. On the above-mentioned settled law the High Court should have on its refused interfere and should have left the parties agitate their contentions in the appeal be filed under34, POTA.
37. It must be mentioned that before us also arguments on merits were made. At one stage this Court did consider giving a decision of merits. However on a proper consideration of the matter it appears us that give a decision on merits would be perpetrate the mistake committed by the High Court. It would result in depriving one or the other party of a valuable rights of agitating the point in the statury appeals, which are at present going on before the division bench of the High Court. We, therefore refrain from expressing any opinion on merits. We clarify that all parties will be free urge all questions in the pending appeals before the division bench of the High Court.
38. In the above view we allow the appeals and set aside the impugned order. There will be no order as cost.
Counsel for Parties: Gopal Subramanium, Sr. Adv., Dayan Krishnan, Siddharth Aggarwal, Mukta Gupta and D.S. Mahra, Advs
Rajeev Dhavan and Shanti Bhushan, Sr. Advs., Nikhil Nayyar, Nitya Ramakrishnan, Anitha Shenoy and Sanjay Pathak, Advs.
Alternative citation : JT 2003 (4) SC 605 : (2003) 4 SCALE 629 : (2003) 6 SCC 641 : (2003) 1 Suppl. SCR 130
