Monday, December 14, 2015

Special Offences Part III - Curbing Appellate Jurisdiction

I was recently made aware of a peculiar feature of offences under the Prevention of Corruption Act, 1988. An order framing charge and refusing to discharge an accused, I was informed, could not be challenged by way of a revision under Section 397 Cr.P.C. The reason behind this lay in Section 19(3)(c) of the 1988 Act, and the Supreme Court's decision in V.C. Shukla v. State (through CBI) [1980 (Supp) SCC 92]. Today, this has been supplemented by High Court decisions [see e.g. Anur Kumar Jain v. CBI, (2011) 178 DLT 501 (DB)] holding that no revision against such orders on charge can be filed by an accused - you either move the High Court under Section 482, Cr.P.C. or the Supreme Court under Article 136. 

V.C. Shukla v. Delhi Administration 
Since this decision is the basis of the law today, it makes sense to start here. Before that, a little word on the actors in this case. Both Vidya Charan Shukla and Sanjay Gandhi had been convicted by a Sessions Court in Delhi for alleged offences committed by them/at their behest in the Emergency. They moved the Delhi High Court by filing appeals against their conviction. In the meanwhile, the Special Courts Act, 1979 was passed by operation of which their appeals were transferred to the Supreme Court. They subsequently also challenged the legality of the Special Courts Act. Cynics would argue that the chances of the Supreme Court striking down legislation introduced to do deal with Emergency cases by those seemingly at the helm of those atrocities was minimal, to say the least. All I would say is that the political nature of the decision cannot be ignored.  

The issue I am concerned with appears in another appeal filed only by V.C. Shukla, challenging the order framing charges against him. He preferred an appeal under Section 11 of the Special Courts Act. Sub-clause (1) of which read "notwithstanding anything contained in the Code, an appeal shall lie as of right from any judgment, sentence or order, not being interlocutory order, of a Special Court to the Supreme Court on both facts and law." Sub-clause (2) read "except as aforesaid, no appeal or revision shall lie to any court from any judgment, sentence or order of a Special Court." The State naturally challenged this appeal on a preliminary basis, arguing that an order framing charge was interlocutory. Three separate opinions were delivered, and the Court by a majority of 3-1 agreed with the State. By and large, the reasons for this were that (a) the Object of the Special Courts Act was to speed up the trial, and (b) the fact that Section 397(2) Cr.P.C. already excluded revisions against interlocutory orders meant that the scope of 'interlocutory order' for the 1979 Act had to be different and in tune with its larger object of speedy trials. An order on charge, though 'a matter of moment', did not finally decide the trial and was therefore interlocutory

Importing V.C. Shukla to Other Laws
Today, a vast majority of special offences place restrictions on the scope of appellate and revisional jurisdiction. These restrictions can be found, for instance, in (i) Section 19, Prevention of Corruption Act 1988, (ii) Section 47, Prevention of Money Laundering Act 2002, (iii) Section 12, Maharashtra Control of Organised Crime Act 1999, (iv) Section 19 of the erstwhile Terrorist and Disruptive Activities (Prevention) Act 1988, (v) Section 21 of the National Investigation Agency Act 2008. Cases on the interpretation of these provisions either dismiss challenges by simply invoking the authority of the decision in V.C. Shukla, or liken the circumstances of the special offence to the logic of that case to justify the restrictions on appellate/revisional jurisdiction. 

Questions and a Different Explanation
V.C. Shukla and subsequent cases did restrict one way to challenge orders on charge, but made clear that they did not completely close down the possibility of challenging such orders. Today, petitions continue to be filed before High Courts under Section 482, Cr.P.C. which makes one question the efficacy of the argument restricting revisional jurisdiction to curb challenges to such orders. The majority didn't adequately consider that the changes to revisional jurisdiction in the Cr.P.C. (barring revisions against interlocutory orders) were also made to speedily dispose cases. Despite this, the Supreme Court repeatedly had found fit to not curb its scope to simply exclude everything barring final orders. The Court insufficiently explained why this further restriction was justified for special offences but not the Cr.P.C. itself [all that is said is that the Code deals with so many offences that it should be broader]. Further, none of these decisions consider whether any differences exist between appellate and revisional jurisdiction. While appeals are statutory rights, what about revisions? What if V.C. Shukla had filed a revision instead of an appeal? 

Finally, what if the Court got it all wrong in V.C. Shukla to start with? Consider this for a moment. The Special Courts Act, along with the other statutes mentioned above, create a completely separate procedure for trial of offences. Special Courts/Judges/Tribunals are set up, and their procedure is then delineated. In the Special Courts Act 1979, the 'Special Court' consisted of sitting High Court judges, which meant any supervisory jurisdiction would be to the Supreme Court. Since this procedure was present nowhere under existing law, the Act created it through Section 11. However, as every little detail of trial could not be defined the Act imported provisions of the Cr.P.C. in case of any gaps.The Supreme Court reasoned that the Legislature would not simply have been restating the provisions of the Cr.P.C. on revision while inserting them in the Special Courts Act, requiring one meaning to be different. But incorporating the Cr.P.C. might have been exactly what the Legislature was doing [this is nicely explained in A.R. Antulay v. R.S. Nayak, (1984) 2 SCC 500]. It could not simply apply the provisions of the Cr.P.C. on revisions and appeals as the trial here was conducted at the level of the High Court. Therefore, it did so with necessary tweaks. After all, what would be more speedy than ensuring the judges continue to follow well-established procedures?

Comments would be lovely. 


  1. Very well done, once again Abhinav Jee. Just a small point : I couldn't find the corresponding provision in PMLA that abridges the remedy of revision/appeal.

  2. Dear Sir. Section 47 of the PMLA is not copying the language of Section 19. I argue that using the logic in VC Shukla revisions have been dismissed against orders on charge in the context of the PMLA.

  3. Oh. Alright ! Any PMLA specific orders that you can lead me to ?

  4. Sorry, don't have reported orders on me Sir! Will send if anything comes.

  5. No Problem, brother :) Thanks, anway. Keep writing.