How to bye-pass a Statutory Prohibition and a Supreme Court Veto; An illustrative Case
In a landmark Judgment [State of Bihar & Ors. Vs. Rajmangal Ram ] the Supreme Court yesterday re-iterated that the high Courts have no power to interdict a criminal proceeding midcourse on the basis of the legitimacy or otherwise of the order of sanction to prosecute. The Supreme Court was considering two appeals by the State of Bihar against separate orders passed by the High Court of Patna, the effect of which is that the criminal proceedings instituted against the respondents under different provisions of the Indian Penal Code as well as the Prevention of Corruption Act, 1988 have been interdicted on the ground that sanction for prosecution of the respondents in both the cases has been granted by the Law Department of the State and not by the parent department to which the respondents belong. The Supreme Court order was based on the bar contained under S.19(3)(b) of the Prevention of Corruption Act, 1988 . It is to be noted that Section 19(3)(c) of the Prevention of Corruption Act, 1988 also states that no court shall stay the proceedings under the Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. In Satya Narayan Sharma Vs. State of Rajasthan, Supreme Court held that that in view of the provisions contained in S.19(3)(c) of the Prevention of Corruption Act, 1988, the High Court cannot stay the proceedings under the Prevention of Corruption Act, 1988 in exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings or exercising its inherent powers under S.482 of the Code of Criminal Procedure. In this piece I am discussing a case which illustrates how the Kerala High Court managed to bye-pass the bar contained in S.19(3)(c) as explained by the Supreme Court in Satya Narayan Sharma case.
Section 19(3) (c) of the Prevention of Corruption Act, 1988 mandates that ‘no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. In Satya Narayan Sharma Vs. State of Rajasthan, the Supreme Court examined the scope and ambit of S.19(3)(c) of Prevention of Corruption Act, 1988 . It was a case in which the Trial Court had taken cognizance against the accused for offences punishable under S.420, 467, 468 and 471 of the I.P.C. and S.5(2) of the Prevention of Corruption Act. The accused filed a Criminal Miscellaneous Petition in the High Court under S.482 of the Criminal Procedure Code for quashing the order passed by the Trial Court taking cognizance of the offences against him. The High Court granted stay of the trial. Having obtained a stay of the trial, the Criminal Miscellaneous Petition was adjourned from time to time and by that method the accused successfully delayed the trial for seven years. Ultimately, the Criminal Miscellaneous Petition was dismissed by the High Court. Challenging the order of the High Court dismissing the Criminal Miscellaneous Petition, the accused filed Criminal, Appeal No. 981 of 2001 before the Hon’ble Supreme Court. While dismissing the Criminal Appeal, the Hon’ble Supreme Court found that what happened in the case was happening in a large number of criminal cases. The Supreme Court observed that, when public servants are sought to be prosecuted under the said Act, by filing revisions under S.397 of the Criminal Procedure Code or by filing petitions under S.482 of the Criminal Procedure Code, stay of the trial was obtained and parties successfully managed to delay the trial. The supreme Court further observed that stays were granted by courts without considering and/or in contravention of S.19(3)(c) of the Prevention of Corruption Act. According to the Supreme Court, this had an adverse effect on combating corruption amongst public servants and it had therefore become necessary to reiterate the law. After considering the provisions contained in S.19, 22, 23 and 27 of the Prevention of Corruption Act, 1988 and S.397 and 482 of the Criminal Procedure Code, it was held that in view of the provisions contained in S.19(3)(c) of the Prevention of Corruption Act, 1988, the High Court cannot stay the proceedings under the Prevention of Corruption Act, 1988 or exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
In Moideen Kutty Vs State of Kerala a division bench of Kerala High Court examined the question whether the High Court can stay the proceedings under the Prevention of Corruption Act, 1988 by invoking the powers under Art.226 or 227 of the Constitution of India. The Division bench answered the question in the affirmative by stating the following reasons. “[In Satya Narayan Sharma] their Lordships did not consider the power of the High Court under Art.226/227 of the Constitution of India to stay the proceedings under the Prevention of Corruption Act, 1988. Nor did Their Lordships hold that in view of the provisions contained in S.19(3)(c) of the Prevention of Corruption Act, 1988, the High Court has no power under Art.226/227 of the Constitution of India to stay the proceedings under the said Act. Admittedly, O.P. No. 15632 of 2000 was filed under Art.226 and 227 of the Constitution of India and C.M.P. No. 25532 of 2000 was filed under R.150 of the Rules of the High Court of Kerala, 1971. The said R.150 is in respect of proceedings under Art.226 and 227 of the Constitution of India. Thus the stay granted by the learned Single Judge was in proceedings under Art.226/227 of the Constitution and not under the provisions of the Code of Criminal Procedure. Therefore, the learned Single Judge was not right in vacating the stay and dismissing C.M.P. No. 25532 of 2000 only on the basis of the decision of the Honourable Supreme Court in Satya Narayan Sharma Vs. State of Rajasthan. Admittedly, the stay was vacated not on any other grounds. Hence, the impugned order of the learned Single Judge is illegal and liable to be set aside”.
From a close reading of Satya Narayan Shrma (Supra) it can be under stood that in the Separate Judgments written by Hon’ble Justice K.T.Thomas and Justice S.N.Variava the Supreme Court underlined the intention of the legislature in no uncertain terms that stay cannot be granted in cases under the PC Act by exercising any power. It is evident from PARA-14 of the Judgment which states that “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”.[Emphasis by me].
The power under Art.226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ Court has not only to protect a person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being that the power is discretionary, the Court has to balance competing interests, keeping in mind that the interests of justice and public interest are coalesce generally. [Ritesh Tiwari and Another Vs State of U.P and Others]. The discretionary power vested on the High Court is not to protect or safeguard the undeserving benefits. It shall not be exercised in favour of a person to retain an undeserving benefit that he had got. It can be generally invoked when fundamental rights are breached, abuse or misuse of authority, malfeasance, misfeasance, violation of natural justice etc. It shall not be invoked merely because, it is not forbidden. Discretion is always vested with the Court to interfere in appropriate cases. It shall be exercised with circumspection. It shall not be exercised when it is revealed that by such exercise an undeserving benefit would be protected.[State of Kerala Vs Sasikala Devi and Another].
It is also true that under Art.226/227 of the Constitution of India, the High Court can exercise its power of judicial review in criminal matters and that such power of judicial review can be exercised by the High Court either to prevent abuse of the process of any Court or to secure the ends of justice and the power is wider than one under Section 482 of Code of criminal procedure. But the Court ought to have reminded itself the word of Caution given by the Supreme Court in S. Palani Velayutham & Ors. Vs. District Collector, Tirunelveli, Tamil Nadu & Ors that “The courts should avoid the temptation to become authoritarian. We have been coming across several instances, where in their anxiety to do justice, the courts have gone overboard, which results in injustice, rather than justice. It is said that all power is trust and with greater power comes greater responsibility.” It is also to be noted that the power of judicial superintendence under Art.227 could only be exercised, sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant inference under Art.227 of the Constitution, since the power of superintendence was not meant to circumvent statutory law. [Jagir Singh Vs Ranbir Singh].
In CBI and another Vs. Keshub Mahindra [the constitution bench of the Supreme Court held that “no decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code”. In Anil Kumar Jain Vs. Maya Jain, the Supreme Court held that High Courts cannot pass orders waiving the statutory period prescribed in S.13B(2) of the Hindu Marriage Act .In Laxmikant Revchand Bhojwani v. Pratapsing Mohansingh Pardeshi it is held that the High Court was not justified in extending its jurisdiction under Art.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. To the same effect is the judgment in Koyilerian Janaki v. Rent Controller (Munsiff). In State Vs Navjot Sandhu it is held that the High court cannot overlook the legal interdict contained in S.34 of POTA by exercising the power under Article 227 of the Constitution of India. The Constitution Bench in Prem Chand Garg Vs. Excise Commissioner, U.P., Allahabad, held that even the Supreme Court cannot pass an order under Article 142 inconsistent with the substantive provisions of the relevant statutory laws.
It is well known that what may not be done directly cannot be allowed to be done indirectly; that would be an evasion of the statute. It is a "well known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance" (per Abbott C. J. in Fox v. Bishop of Chester, 1824 2 B and C 635). "To carry out effectually the object of a Statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined" (Maxwell, 11th Edition, page 109).[Jagir Singh Vs Ranbir Singh].While interpreting the law, the court must be cognizant to the purpose of the law and respect the legislative animation and effectuate the law for social welfare. The legislature enacted deterrent social provisions to combat the degraded human conduct. These special provisions are to some extent harsh and are a departure from normal criminal jurisprudence. But it is not uncommon in criminal statutes. It is a special mode to tackle new situations. So it is not right to read down the law.[Krishna Lal Vs Government of Kerala]. The Courts are meant to enforce the law and therefore, are not expected to issue a direction in contravention of law. As observed by the Constitution Bench in M. H. Quareshi v. State of Bihar , (vide PARA 15): “The Court must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds”. So the crystallized judicial view is that the power under 226 or 227 cannot be used to circumvent or bye pass an express provision or prohibition imposed by a statute. If that be the position it is expedient to re-consider the Judgment of Kerala High Court in Mohammed Kutty’s case(Supra) in the interest of Justice.
M.A.Rashid is the Co-Founder and Director of LIVE LAW. He is also an Author and Editorial Consultant with LexisNexis.