Guest Post: A Conspectus of the Law Regarding Notice Prior to Arrest

(This is a guest post by Sudhanva S. Bedekar)

Whether the Courts are empowered to issue directions to the investigating agencies to give to the accused, a reasonable notice (example 72 hours) prior to arrest is a question which is sought to be addressed in this post. The issue becomes relevant due to a recent pronouncement of the Supreme Court in Vijaykumar Ramchandani v. Amar Sadhuram Mulchandani where the Court has frowned upon such a practice. 

The power to issue such directions could be traced to two provisions of the Code of Criminal Procedure, namely Section 438 and Section 482. While Section 438 grants to the High Court and Court of Sessions a power to direct release of a person on bail in the event of arrest, Section 482 saves the inherent powers of the High Court. 

In the context of Section 438, the said question seems to have been covered by a judgement of the Supreme Court in Union of India v. Padam Narain Aggarwal. It is argued that Padam Narain Aggarwal, insofar as its reasoning and reliance on Gurbaksh Singh Sibbia is concerned, is not decided correctly and needs a re-look.

Revisiting Padam Narain Aggarwal

It is therefore necessary to examine Padam Narain Aggarwal. The case arose from an order of the High Court of Rajasthan which directed Customs authorities to not arrest the Petitioners without ten days prior notice in case any non bailable offence was found to have been committed by them, while at the same time also holding that the Applications of Petitioners were premature. A bare perusal of the said order would reveal that the same was cryptic and did not contain any reasoning whatsoever which could justify the ten days notice period. 

While setting aside this order, the Supreme Court examined whether such an order could have been passed by the High Court in the first place. The facts of the said case reveal that notices under S. 108 of the Customs Act were issued to the Petitioners and due to their brazen non-cooperation, complaints were filed under Ss. 174 and 175 of the Indian Penal Code. Thereafter, the Application for Anticipatory Bail was disposed by the High Court with the direction as aforesaid.

In Padam Narain Aggarwal, the Supreme Court discussed the development of the law relating to grant of Anticipatory Bail in some detail and extensively relied on Sibbia's case. Paragraph 40 of the judgement in Sibbia, which is reproduced in Padam Narain Aggarwal, reads as follows;

“40... We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever." That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence….”

The Court in Sibbia ultimately came to the conclusion that no blanket order of bail can be passed while exercising power under S. 438 of the Code. Similarly, the Court in Padam Narain Aggarwal relied upon Adri Dharan Das, where the Supreme Court had held that normally direction should not be issued that the Applicant should be released on bail whenever arrested for whichever offence. 

In Das, it was also held that an interim order restraining arrest passed in an Application under S. 438 will amount to interference in investigation and will not be permissible under S. 438. After a conspectus of the case law in this regard, the Court in Padam Narain Aggarwal arrived at its final conclusions which are stated in paragraph 45:

“45. In our judgment, on the facts and in the circumstances of the present case, neither of the above directions can be said to be legal, valid or in consonance with law. Firstly, the order passed by the High Court is a blanket one as held by the Constitution Bench of this Court in Gurbaksh Singh and seeks to grant protection to respondents in respect of any non-bailable offence. Secondly, it illegally obstructs, interferes and curtails the authority of Custom Officers from exercising statutory power of arrest a person said to have committed a non-bailable offence by imposing a condition of giving ten days prior notice, a condition not warranted by law...”

The Court clearly arrived at a conclusion that the order directing grant of 10 days’ notice is a blanket one as held in Sibbia. It is submitted that the view taken by the Court is erroneous. 

Firstly, the meaning of the term blanket order has been explained by the Constitution bench in Sibbia and the same was reproduced by the Court in Padam Narain Aggarwal. The Sibbia dictum is that a direction under S. 438(1) that the accused should be released on bail whenever arrested in whichever offence would amount to a blanket order (see para 40 above). It court did not have occasion to examine whether reasonable notice prior to arrest is permissible under S. 438. The order of the High Court which was impugned in Padam Narain Aggarwal did not direct that the accused be released on bail whenever arrested for whichever offence. It merely directed that notice be given prior to arrest. Whether such a course of action would be permissible under S. 438 was the question which the Court sought to examine. 

The Court’s conclusion that such a course of action is not permissible since the same would be a blanket order granting protection in non bailable offence is clearly erroneous, as the direction impugned was not one which directed release on bail “whenever arrested for whatever offence.” What the Court in the impugned order had directed was that the authorities must give ten days’ notice prior to arrest. Such a direction, according to the Court, was necessitated since at the stage when the Application was filed, apprehension of arrest was not present. 

In Padam Narain Aggarwal, the Court failed to draw a distinction between a blanket order which directed release on bail for whatever offence and one which merely directed the prosecution machinery to grant reasonable notice prior to arrest. The settled position of law, insofar as Applications under S. 438 are concerned is that the apprehension of arrest needs to be established. 

When the Court is dealing with Applications where the apprehension is based on notices issued by authorities under special legislations such as the Customs Act or the Prevention of Money Laundering Act, it is not always possible for the accused to establish whether the agency concerned is even treating him as an accused. Thus, such Applications may be easily disposed off on the basis that the same are premature. However, if such is the position, then the provisions of S. 438 would be rendered nugatory. 

To prevent such a predicament, Courts some times direct a reasonable notice prior to arrest, which very often is for a period of 72 hours. Once such a notice is issued, the accused would be at liberty to approach the Court with an Application under S. 438 which can be decided on its own merits. Such orders are by no means anticipatory bail orders or blanket orders as contemplated in Sibbia for the reason that there is no direction contained therein to release the accused on bail.

The Court in Padam Narain Aggarwal could yet have set aside the impugned order directing 10 days notice prior to arrest since on facts, it is evident that the order did not contain sufficient reasons guiding the discretion of the Court. Moreover, the notice period of 10 days was perhaps otherwise excessive. However, the reliance on Sibbia was misplaced. Recently, a Constitution bench in Sushila Aggarwal has yet again relied upon the very same paragraphs of Sibbia and while summarising the principles, observed as follows;

“52.14. A blanket order under Section 438, directing the police to not arrest the Applicant, “wherever arrested and for whatever offense” should not be issued. An order based on reasonable apprehension relating to specific facts (though not spelt out with exactness) can be made. A blanket order would seriously interfere with the duties of the police to enforce the law and prevent commission of offenses in the future. (Paras 40-41, Sibbia)”

The Court has repeated the error of not appreciating the distinction between an order preventing arrest for a limited period and a blanket order to release on bail. The reliance on paragraphs 40 and 41 in Sibbia is clearly erroneous. A perusal of the above paragraph from Sushila Aggarwal reveals an inherent absurdity. The Court has stated that blanket orders to not arrest 'wherever arrested' cannot be passed. The absurdity lies in the fact that no direction to not arrest can be passed in cases where the accused is already arrested. It is only an order to release on bail that can be passed. It is thus clear that what is meant by the aforesaid direction is that the courts cannot grant orders directing blanket release wherever arrested. Furthermore, interestingly, the Court had observed, apparently in the context of blanket orders, that an order based on reasonable apprehension relating to specific facts though not spelt out with exactness can be passed.

Establishing the Case for Allowing Protective Orders under S. 438

The case of Dr. Sameer Narayanrao Paltewar v. State of Maharashtra decided by a single judge of the Bombay High Court settled a unique question relating to the fate of the accused persons who were directed to remain present for final hearing of their Applications under S. 438 and the Applications were dismissed. Section 438 of the Code of Criminal Procedure had been amended in its application to the State of Maharashtra and sub-section (4) thereof stipulates that the Sessions Court can direct the presence of the Applicant at the time of final hearing of the Application for Anticipatory Bail. 

The Bombay High Court was called upon to issue appropriate directions in order to ensure that liberties of the Applicants are protected by courts when Applications were dismissed while the Applicants are present in Court for final hearing. The High Court noticed that if the Applications under S. 438 are dismissed, the accused runs the risk of immediate arrest, thus frustrating his right to approach the High Court under S. 438 seeking the same relief. 

In this backdrop, the Court directed that the Sessions Courts must extend interim protection for a period of three to four days if Applications are rejected while the Applicant is present in Court. The said direction was issued in order to ensure that the remedy to approach the High Court is not rendered nugatory. 

It is pertinent to note that though it would appear that the order in question was passed in an entirely different context and was not any blanket order like the one impugned in Padam Narain Aggarwal, the principle of law that is applied by the High Court in this case and the principle of law applied in the other cases where prior notice before arrest was directed is one and the same. 

The principle is that by ensuring prior notice or some other protection to the accused, the right under Section 438 is not allowed to get frustrated. It is submitted that on a literal reading of S. 438 of the Code, it is possible to argue that the ruling in Paltewar is erroneous since the provision does not contemplate such a course of action. 

However, such a direction is borne out of a pragmatic and purposive interpretation of S. 438 and is therefore not erroneous. So also, directions of notice of reasonable time before arrest passed under S. 438 of the Code cannot be faulted simply on the premise that the same is not permissible under S. 438 or on the premise that such orders run contrary to the statutory powers of arrest. Such orders are necessary since it is not possible on every occasion for the Applicant to meet the threshold requirement of apprehension of arrest, particularly in cases where the investigating agency is acting under a special legislation such as the Customs Act or PMLA.

Exploring Inherent Powers to Support Notice prior to Arrest Orders

A conspectus of case law on the subject reveal that the discussion regarding orders directing notice prior to arrest has largely remained confined to the exercise of jurisdiction under S. 438 of the Code. However, whether such orders can be passed by the High Court in exercise of its inherent powers under S. 482 of the Code is a question that remains to be considered. 

Padam Narain Aggarwal reveals that the Court restricted itself to the interpretation of S. 438 of the Code and does not extend to exercise of inherent powers by the High Court under S. 482 of the Code. Further, the jurisprudence on the expanse of the powers of the High Court under S. 482 indicates that orders in the nature of notice prior to arrest could be passed in exercise of powers under S. 482. In the context of S. 438, it was possible to argue that the language of the provision does not permit any restriction on the power of arrest but only permits grant of bail in the event of arrest and that fetters cannot be imposed on statutory powers. However, when the High Court exercises its inherent powers, it is not possible to curtail its jurisdiction. The language of S. 482 is also indicative of this fact.

In Petitions for quashing of FIRs, the High Courts pass interim orders in the nature of not to take coercive steps or stay on investigation. Given the expanse of the inherent power of the High Court, an argument that curtailing statutory powers of the investigating agencies by way of interim relief is not permissible, has not been made. However, whether such relief can be granted as final relief is a question which would require some consideration. S. 482 is most commonly invoked in order to quash FIRs, chargesheets or criminal proceedings. 

It is also invoked in situations where the Code does not otherwise provide any remedies to approach the High Court. It remains to be seen whether the High Court’s jurisdiction under S. 482 of the Code can be invoked seeking relief of notice prior to arrest. There has never been an occasion for any accused to apply to the High Court seeking such a relief since such Applications were usually filed under S. 438. However, if it is to be held that the language of S. 438 does not permit such a relief, in the future it is likely that the jurisdiction of the High Court under S. 482 may be invoked.

In Petitions filed for quashing of FIRs, High Courts in fit cases pass interim orders staying investigations or directing the investigating agencies to not take any coercive action. However, such orders are interim orders where the final relief claimed is that of quashing of the FIR or proceedings concerned. In the case of Neeharika Infrastructure Private Ltd. v. State of Maharashtra the Supreme Court held that such interim orders directing no coercive steps cannot be passed if the High Court is dismissing the Petition for quashing of the FIR. However, no fetters have been imposed on the High Court’s power to direct no coercive steps as an interim order, provided that the High Court gives adequate reasons for arriving at the conclusion that such an interim order needs to be passed. 

The judgement of the Calcutta High Court in Ram Chandra Panda and Anr. v. State of West Bengal decided in January, 2023, presents yet another peculiar circumstance where the police were issuing notices under S. 160 of the Code to persons who were not named as accused in the FIR and were thereafter arresting these persons. Thus, a Petition was filed challenging few notices issued under S. 160 of the Code. S. 160 grants to the police making an investigation, the power to require the attendance of any person who may be acquainted with the facts of a case. 

The peculiar facts of the case before the High Court prompted it to ask the question as to why the police were resorting to this indirect method of arrest when they had the power to arrest at any time. The High Court held that such conduct was only to ensure that the accused does not get the chance of approaching the Court by filing an Anticipatory Bail Application or seek other protective orders. It further held that if this be the intention of the police, the situation required the court to invoke its inherent jurisdiction. It held that if a criminal case is to be initiated against the Petitioner, he shall not be arrested for a period of ten days so as to enable him to avail his remedies. 

It is apparent that the said order too has not been passed in exercise of powers under S. 438 but in exercise of inherent powers under S. 482. However, it appears that insofar as grant of relief of pre-arrest bail is concerned, there appears to be a fundamental flaw in the reasoning of the Court where it holds that the police were trying to ensure that the accused does not get a chance to avail anticipatory bail. It is noteworthy that in order to seek pre-arrest bail, it is not material as to under which provision of the Code a notice has been served. What is material for the said purpose is as to whether there is any apprehension of arrest.

Conclusion

To conclude with, it is submitted that a purposive interpretation of S. 438 would entail that the no fetters can be imposed on the power of the High Court or Court of Sessions from directing notice prior to arrest. Such orders are issued in situations where it is not possible to highlight the apprehension of arrest. In cases involving legislations such as the PMLA, such orders would be necessary so as to not render futile the mandate of S. 438. As an illustration, such orders could be necessary in situations where multiple FIRs are being registered on the basis of the same set of allegations. 

Further, the term “blanket order” as interpreted in Gurbaksh Singh’s case refers to orders directing release on bail in whatever offence and does not refer to orders directing notice prior to arrest. Hence, the rulings in Padam Narain Aggarwal and Vijaykumar Ramchandani require reconsideration.

Guest Post: End of Justice? The Supreme Court's Order in Hitesh Verma v State of Uttarakhand

(This is a guest post by Prannv Dhawan & Ishwar Singh)

The Supreme Court’s recent judgment in Hitesh Verma v. State of Uttarakhand [decided on 05.11.2020] reversed an order of the Uttarakhand High Court and quashed the case with respect to allegations under SC/ST (Prevention of Atrocities) Act 1989 (‘the Act’). The Court held that insulting or intimidating a person belonging to a Scheduled Caste or Scheduled Tribe (SC/ST) community will not be counted as offence under the Act unless such insult or intimidation is on account of the victim belonging to SC/ST community. We argue that the decision has gone against the settled principles of invoking the power of quashing under section 482 and can act as a major hurdle for criminal trials to take place under the Act.

Factual Background

Before commenting on the reasoning and outcome of this decision, it is important to discuss the factual context and the impugned judgment of the High Court. The petition of the accused for quashing of the chargesheet and summoning order under the Act was dismissed by the High Court as it observed that the offence of insulting was prima facie made out and that the accused had failed to demonstrate any dereliction of duty or irregularity in the police investigation to merit the exceptional remedy under section 482 of CrPC. 

The complainant, a woman belonging to a scheduled caste, got lodged a First Information Report on 11.12.2019 regarding an incident that allegedly happened on her fields where the construction of her house was going on. She alleged that the accused (along with his family members) "entered illegally in to four walls of her building and started hurling abuses on myself and my labourers and gave death threats and used castes’ remarks/abuses and took away the construction material such as Cement, Iron, Rod, Bricks… said that you are persons of bad caste and that we will not let you live in this mohalla/vicinity." She also alleged that the accused (along with his family members) since "past 6 months, [was] not allowing the applicant to work…[gave] death threats and [used] caste coloured abuses". 

The FIR was filed under section 3(1)(e) and section 3(1)(r) but the chargesheet was filed only under section 3(1)(x) [3(1)(x) post-amendments corresponds to 3(1)(r)]. Section 3(1)(e) deals with any act derogatory to human dignity like removal of moustache etc. The constant threats, and forcible taking away of construction material could be covered under the same. However, the legal proceedings were limited to the question of casteist remarks which the police reported to be covered under sub clause (r) that deals with ‘intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view.’

The Supreme Court's Reasoning

The Court held that because the remedy under section 482 has been provided for in and applied in cases under the Act, it should be applied in this case as well. Precedents, however, require exceptional circumstances, grave error in investigation or the necessity to meet ends of justice, to justify the grant of this remedy. A three judge bench of the Supreme Court had, in Girish Kumar Suneja v. CBI (2017) 14 SCC 809, clarified the scope of these appeals. In the context of the appeals for revision (s 397, CrPC) and plenary jurisdiction (s 482, CrPC), the Supreme Court held that the revisionary jurisdiction is a discretionary jurisdiction (para 11) for the aid of justice. It also reiterated the principles laid down in Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551 that the power under section 482 of the CrPC should be exercised only in the rarest of the rare cases (Paras 34, 38). Another two judge bench of the Supreme Court, in State of UP v. Banne alias Baijnath, (2009) 4 SCC 271 reiterated the principles on the scope of interference in appeal held in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 to conclude that there must be “very substantial and compelling reasons” to discard the High Court's decision. These principles state that the Court must be extremely reluctant while reversing concurrent findings of lower courts and must intervene only if the impugned order is manifestly unjust and unfair based on erroneous law and facts leading to grave miscarriage of justice (Paras 27-28).

Another aspect which is of paramount importance is the explicit bar to use the power under Section 482 when a prima facie offence is made out from the FIR and other additional material present before the court as held in J P Sharma v. Vinod Kumar Jain, 1986 (3) SCC 67 (Para 51). This is important especially at the stage when the charge-sheet is laid before the trial court and only duty of the court exercising powers under Section 482 is to "prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial" as per State of HP v. Prithi Chand, 1996 (2) SCC 37 (Para 12). Even if the accused is successful in showing some suspicion or doubt, the allegations are to be believed at their face value [Rajiv Thapar and others v. Madan Lal Kapoor, 2013 (3) SCC 330 at Para 28 and Subrata Das v. State of Jharkhand, 2010 (10) SCC 798 at Para 6] and any enquiry as such to ‘probability, reliability, genuineness’ [Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995 (6) SCC 194 at Para 23] or ‘truthfulness, sufficiency and acceptability’ [State of Maharashtra v. Salman Salim Khan, 2004 (1) SCC 525 at Para 12] of the material produced should necessarily be relegated to stage of trial. Interestingly, a recent decision by the Court in Arnab Manoranjan Goswami v. State of Maharashtra (Criminal Appeal No. 742 of 2020, delivered after Hitesh Verma) has seemed to clarify the position that the powers under Section 482 must necessarily be exercised to evaluate to find out whether offence has been made out as per the allegations especially in cases where the accused has prima facie been able to establish instance of abuse of process such as ‘weaponized’ use of instrumentality of state (Paras 61 and 62).

The only exception to this bar is when continuity of the criminal proceeding constitutes an ‘abuse of process’ such as when a complaint has been initiated with malice or to cause harm or where allegations are absurd and inherently improbable [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 at Paras 102-103]. The Court, in Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 also states that the cases can be quashed in ‘exceptional circumstances’ when misuse of provisions is established. In this case, there is no evidence for the misapplication of the section, irregularity in investigation or any other infirmity. 

The Court also reasoned that the offence was in relation to a property dispute and not relating to 'indignities, humiliations and harassment’ faced by vulnerable sections of society. Para 13 of judgment states that, "[T]he assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste." However it is trite that the mere existence of prior civil dispute or availability of simultaneous civil remedy alone is not a sufficient ground for quashing as held in Indian Oil Corporation v. NPEC India Ltd, 2006 (6) SCC 736 (Para 12). 

In fact, the Court has in Kailas v. State of Maharashtra, 2011 (1) SCC 793 explicitly noted the historical stigmatisation of scheduled communities and also has recently acknowledged in Union of India v. State of Maharashtra, (2020) 4 SCC 761 that SC/ST informants face various difficulties in getting cases filed. In the present case, the court disregarded the testimony regarding death threats, insult regarding lower caste status and intimidation to pass a judicial remedy enforcing caste amnesia. The Court also presumed that the offence was not on account of the informant’s caste despite the existing complaint and testimony. It is also stated that section 482 is an exceptional revisionary remedy that exists in case a misuse is demonstrated. Hence, a clear problem with this judgement is the low threshold applied in application of section 482. Hence, the Uttarakhand HC dismissal should have been upheld.

In light of the above analysis, the Court’s intervention at the pre-trial stage in a criminal investigation leaves much to be desired. It is hardly surprising that the National Coalition for Strengthening SCs & STs PoA has called for a review of the judgment. The coalition has further pointed out the failure of the police to invoke 3 (1) (u) and 3 (2) (va) of the Act in this case. Considering the ‘abysmally low’ rate of conviction under this social protection legislation, the Court ought to have considered the impact of its judgment on how the law will be interpreted by police and subordinate courts. The grant of the exceptional relief, thus leads to an ‘end of justice’ when no ends of justice were being achieved by the intervention at this stage.

The Supreme Court Decision in Asian Resurfacing of Road Agency

Yesterday, a Three-Justices' Bench of the Indian Supreme Court decided a batch of forty-six petitions referred to it, with the lead petition being Asian Resurfacing of Road Agency P. Ltd. v. Central Bureau of Investigation [Crl. Appeal Nos. 1375-76 of 2013, (Asian Resurfacing)]. The decision carries two separate opinions - one by Justice Goel for himself and Justice Sinha, and a concurrence by Justice Nariman. The issues common to these petitions (which date back to 2013), were (i) what is the scope of Section 19(3)(c) of the Prevention of Corruption Act, 1988 [PC Act] (which places some prohibitions on granting of stays in corruption trials), and (ii) whether an order on charge in trials for PC Act offences can be challenged in Revision proceedings before a High Court under Section 397 Cr.P.C. The Court answered these questions as follows: (i) Section 19(3)(c) of the PC Act prohibits granting of stays for any reason, but does not take away the inherent powers of High Courts to grant stays under Section 482 Cr.P.C., and (ii) an order an charge in PC Act cases can be challenged via Revision proceedings before the High Court, as it is not a purely interlocutory order [orders on charge being the judicial stamp on the allegations by the prosecution, where the judge concludes there is enough basis to start taking evidence in the case]. 

Neither opinion answers both issues - Justice Goel mainly addresses the Revision petition problem [Paragraphs 25, 35], and Justice Nariman engages with the issue of stays [Paragraphs 8-11]. If one was to be a purist, these parts of the opinions are what form the ratio, or that part which should be followed in later cases. But such fine lines are hardly ever drawn with Supreme Court decisions, especially so with those by three Justices. And Asian Resurfacing might well prove more important for the large parts of obiter in Justice Goel's opinion, for he created new rules for how stay orders will be granted by courts - "stay orders" here being orders by which the proceedings can be halted by a superior court while it decides a petition brought before it. Now, stay orders shall lapse in all civil or criminal cases upon the expiry of six months unless "in an exceptional case" the presiding judge passes a "speaking order" explaining why continuing the stay was more important than proceeding with the trial [Paragraphs 35-36, Goel J.]. Having explained the effect of the decision, let me now turn to the reasoning adopted for deciding the two questions, before addressing the other remarkable parts in both opinions.

What Was The Problem?

The problem arose because of a decision by a two judges' bench of the Delhi High Court delivered by the current CJI in Anur Kumar Jain [2011) 178 DLT 501 (DB)] (previously discussed here and here). In that case, the Delhi High Court had held that (i) there can be no revision proceeding against orders on charge in PC Act cases, and (ii) while proceedings under Section 482 Cr.P.C. or under Article 226 / 227 of the Constitution were not barred, no order staying the trial could be passed because it was barred by Section 19(3)(c). The practical effect of this was that litigants challenged orders on charge through petitions under Section 482 Cr.P.C. but without getting a stay of proceedings. It should be clear why stay orders were so sought after - if the trial kept proceeding, then any order from the High Court on the point of charge could potentially be useless. Since the High Court could not grant a stay, litigants turned to request the trial court to defer recording of evidence until the High Court decided the petition. Now, High Courts have clogged dockets, and without extremely reputed counsel one is unlikely to get a petition disposed fast enough, and even then most petitions would eventually prove futile. This legal position made it unfairly prohibitive for litigants (both with means and without) to challenge orders on charge despite having good bases to do so.

The legal basis of the Delhi High Court's opinion was tenuous on both issues. It had decided that the order on charge in PC Act cases was an "interlocutory" order, and so could not be challenged through a Revision petition because of the specific bar against this under Section 397(2) Cr.P.C. But it had come to this conclusion by attempting to distinguish earlier Supreme Court precedent in Madhu Limaye [(1977) 4 SCC 551], by suggesting it had been modified by another Supreme Court decision in V.C. Shukla [1980 (Supp) SCC 92] (discussed previously here). With respect to the ban on stay orders, the High Court relied on the Supreme Court decision in Satya Narayan Sharma [(2001) 8 SCC 607] which had held that Section 19(3)(c) of the PC Act completely prohibits granting any stay orders by any court, including by the High Court under Section 482 Cr.P.C. The Supreme Court had arrived at this conclusion in Satya Narayan Sharma without discussing the nature of inherent powers under Section 482, and how several decisions including Madhu Limaye had interpreted the scope of these powers being untrammelled as they were intended to do justice and prevent abuse of process.

How did the Supreme Court Decide the Issues?

The Court held that the Delhi High Court in Anur Kumar Jain was wrong on both counts, while it did correctly hold that exclusion of Revision petitions did not control the scope of a High Court's inherent powers or constitutional jurisdiction. The issue on the nature of orders on charge was straightforward enough - the Court approved the legal position in Madhu Limaye, which had held that "interlocutory" for purposes of Section 397(2) Cr.P.C. was not to be seen as referring to everything except the final judgment. In doing so, it relegated the decision in V.C. Shukla to historical insignificance by holding that that the decision was purely limited to the special statute it was concerned with, and did not affect the position of law. So, the position of law governing PC Act cases remained what the Court had held in Madhu Limaye, and by that standard, orders on charge were not "interlocutory" and remained open to challenge through Revision petitions under Section 397 Cr.P.C. [Paragraphs 24-25, Goel J.].

The legal aspects of the issue regarding granting stay orders in PC Act cases was addressed by Justice Nariman. He reasoned, first, that while Section 19(3)(c) of the PC Act did go beyond merely sanction issues [contrary to what the Petitioners argued (Paragraphs 7-8, Nariman J.)], it did not cast an absolute ban on granting stay orders. Rather, he read this together with Section 19(3)(b), and said that the power to grant stay orders to prevent failures of justice did exist [Paragraph 8, Nariman, J.]. The second part of his reasoning extended this power to High Courts. For this, he reasoned that inherent powers of a High Court were not granted by the Criminal Procedure Code but arose because of the High Court being a Court of Record with powers to punish for its contempt, and the origins of inherent power were thus properly traced to the Constitution itself. Section 19 of the PC Act, by overriding application of anything in the Criminal Procedure Code, therefore could not affect exercise of the constitutional authority by High Courts - under Section 482 Cr.P.C. as well as Articles 226 / 227 of the Constitution [Paragraphs 9-11, Nariman, J.]. High Courts had full powers to grant stay orders even in PC Act cases, and this conclusion meant that the Court's earlier decision in Satya Narayan Sharma was no longer good law.

Everything Else - Rules on Stay Orders and the Ghost of Suneja

Both opinions are curious things - Justice Goel says nothing about the legal issue on stays, and yet his opinion will shake up how courts across the country regulate stay orders in all sorts of cases. And then there is the ghost of Girish Kumar Suneja v. CBI [(2017) 14 SCC 809 (Suneja)] - another decision by three Justices where the Supreme Court considered the same issues. Let's take up both in order.

Limits on Stay Orders 

In recent years, several government bodies have cast a beady eye on stay orders and the delays they cause in the legal system (see here and here). The Court itself has been quite vocal about stay orders being granted too loosely and matters dragging on endlessly. In Asian Resurfacing itself, the Court notes how the FIR was registered in 2001 - seventeen years ago - and the case is still at the stage of charge (although no explicit mention of stay orders is made). Thus, a move which tightens this process can arguably be considered as a positive move for the Indian legal system. To this extent, I agree, but I maintain a cautious optimism over what this case could achieve. We must remember that this is happening in appeals where two specific legal issues regarding the PC Act were referred to a larger bench of the Supreme Court, and none of them was about delays through stay orders in the entire legal system. Thus, it remains fully possible for a subsequent bench of the Court to go ahead and remind us that these observations could not be binding. The chances of this are not remote, considering how a large part of litigation in India involves lawyers strategically using stay orders. On a related note, it should also concern us that the Court was ready to come at these sweeping conclusions without citing any recent data on the problem - it cited portions of a 2012 decision in Imtiaz Ahmed [(2012) 2 SCC 688] which had nothing to do with civil litigation either. Do we know how many cases will be affected by this ruling? Was there a better way than to issue a diktat sitting from New Delhi, that will now rumble on slowly through the vast legal system across India and cause havoc in several cases? Perhaps there was, but now, unless something changes one can expect a fair bit of turmoil as all courts across the country determine the impact of what the Supreme Court said in Asian Resurfacing.

Girish Kumar Suneja

Which brings me to Suneja - a decision that had been the subject of some criticism on this blog (see here, and here) [Full disclosure: I was involved in the litigation in a connected petition for petitioners who had challenged the impugned order, and thus lost in the Supreme Court]. Suneja also addressed both of these issues (unnecessarily, as I argued previously), and had come at diametrically opposite conclusions: the Court had held that (i) Revision proceedings against PC Act orders on charge are barred, (ii) that this prohibition also barred challenging such orders under Section 482 Cr.P.C. as this indirectly lifted the ban on Revision proceedings, and finally (iii) that Section 19(3)(c) of the PC Act completely barred stay orders from being granted. Now, since Suneja was also decided by three Justices, the Supreme Court could not overrule it in Asian Resurfacing. So we find both opinions trying to arrive at a compromise - holding that the conclusions in Suneja were incorrect without actually saying that the decision was wrong. And it makes for a sad spectacle. Justice Goel's opinion admits that "seemingly conflicting observations" were made in Suneja, but it did not displace Madhu Limaye, which remained good law through all these years [Paragraph 25, Goel J.], and strangely enough, goes ahead and favourably cites Suneja to begin his lament against delays [Paragraph 26, Goel, J.]. 

Justice Nariman tries to salvage Suneja by indirectly admitting that some parts of that decision were incorrect and conflicted with other parts which contain "an exposition of the law correctly setting out what has been held earlier in Madhu Limaye". But judgments must be read as a whole, and thus he asks that these parts be read "harmoniously" to arrive at the correct conclusion, i.e. the one that he has arrived at [Paragraph 17, Nariman, J.]. I am yet to fully wrap my head around how this happens: the parts of Suneja that are admittedly incorrect are in fact the holding of the case on two PC Act issues that we have flagged here [Paragraphs 25, 29 and 32 of Suneja]. The lone paragraph in Suneja that Justice Nariman says is "correctly setting out" the law [Paragraph 38 of Suneja], comes when the Court is deciding whether or not litigants could challenge orders on charge through Article 226 / 227 of the Constitution, after the Court has already decided that litigants cannot challenge these orders under the Cr.P.C. And even if one agrees that Paragraph 38 of Suneja should control, I struggle to understand how it controls on the issue of granting stays, which it says nothing about. 

Conclusions

Asian Resurfacing has already made headlines for its limits on stay orders. Those observations are of undoubted significance, but for reasons that I already expressed above, I remain wary of hailing it as a game-changer just yet. The decision is also striking for providing an insight into a peculiar problem that the Supreme Court has often faced - genuine disagreement between two sets of benches on what the law should be. The institutional dynamics of the Court have not always been conducive to neat solutions in these scenarios, and something similar has happened between Asian Resurfacing and the 2017 decision in Suneja. The Supreme Court in Asian Resurfacing has tried to remove the ground on which Suneja stood without finding it incorrect, but the reconciliation is far from satisfactory. Despite how both opinions refused to call it so, the conclusions in Asian Resurfacing are certainly in conflict with what was held by the three Justices in Suneja, which makes the conclusions arrived at in Asian Resurfacing of questionable legal force. This means that, technically, one can argue that the decision in Asian Resurfacing is little more than a bright facade with a hollow core and should not be followed by courts. Only time will tell how the decision is received.   

Exclusion of Jurisdiction and the decision in Girish Kumar Suneja

On 13 July 2017, a three-judges bench of the Supreme Court dismissed the petitions clubbed together with Girish Kumar Suneja v. CBI [SLP (Crl.) 9503 of 2016, hereafter Suneja]. The preliminary issue raised in these petitions was a challenge to the Supreme Court's order dated 25.07.2014, whereby aggrieved persons were confined to only approaching the Supreme Court with a "prayer for stay or impeding the progress in the investigation / trial", and jurisdiction of High Courts was thus excluded. This Blog, on an earlier occasion, had considered the Petitioners' case and argued that the impugned order of 25.07.2014 was bad, and readers may refer to that post for a recap. Here, I argue that the decision in Suneja does not offer any convincing justification for why the Court disagreed.

Excluding Jurisdiction: Missing the Forest for the Trees

In Suneja, the Court takes up three key arguments assailing the exclusion of jurisdiction caused by the order of 25.07.2014 and its effects - (1) Curtailment of the High Court's power to entertain petitions under Sections 397 and 482 Cr.P.C; (2) Exclusion of writ jurisdiction under Articles 226 and 227 of the Constitution; and (3) A violation of Article 14 caused by treating the 'coal-block allocation scam' cases under this special procedure. On all three counts, it disagreed with the Petitioners' claims. On closer examination, one can see how the Court does so not by engaging with the argument, but by avoiding it altogether.

Sections 397 and 482 Cr.P.C.

On the first issue of curtailing statutory powers of entertaining revision petitions [Section 397 Cr.P.C.] and quashing petitions [Section 482 Cr.P.C.], the Court reminds us that these are not rights, such as appeals, but entitlements. A High Court may refuse to entertain these petitions. This characterisation was never in doubt - the issue, was whether it was unconstitutional to deprive the High Court of even this ability to entertain such petitions. For this, the Court turns to the legislative history of Section 397(2) Cr.P.C. [which prevents revision petitions for challenging interlocutory orders] to elaborate that the scope of revision jurisdiction was restricted to prevent delay. But the Court does not conclude that the present petitions fall within this category, which renders these observations obiter. Perhaps proceeding with that assumption, the Court moves on to consider the scope of inherent jurisdiction under Section 482 Cr.P.C. Again, it talks of a 'rarest of rare' level for quashing petitions being entertained, implying that the issue must be very serious to warrant intervention. Still, no answers are offered to explain what warrants an exclusion of this jurisdiction altogether. One may then assume that the Court implies the exclusion was illegal, which is why it considers the tests for considering whether the present cases could have triggered an exercise of jurisdiction under these provisions. 

In doing so, the Court makes notable errors in law. For instance, in considering the interplay between revision and quashing the Court notes that "it is quite clear that the prohibition in Section 397 Cr.P.C. [of not proceeding against interlocutory orders] will govern Section 482 Cr.P.C. We endorse this view." This means that for Court, Section 397 applies to all final and intermediate orders, while Section 482 applies to interlocutory orders. Such a reading ignores the notwithstanding that comes at the start of Section 482, which has led the Supreme Court to conclude on several occasions that the scope of Section 482 remains untrammelled by the terms of Section 397 - most recently clarified by another bench of three judges in Prabhu Chawla [Crl. Appeal No. 844 of 2016, decided on 05.09.2016]. Remember, all this is irrelevant, because the present cases actually involved a question of why recourse to this jurisdiction could be barred. The Court only engages with that issue in its terse refusal to consider the decision in Antulay [(1988) 2 SCC 602]. Antulay was a decision by seven judges, but it is distinguished because the facts were different and it involved a trial before the High Court itself, and the impugned provision therein - Section 9 of the Criminal Law Amendment Act 1952 - in turn used the 1898 Cr.P.C. The facts, though different, led the seven judges in Antulay to consider why any court's jurisdiction could not be ousted, which would nonetheless be relevant here. That the bench in Suneja even raises the second point about the Cr.P.C. is simply shocking, since the allegations in Antulay concerned a period after 1973 and by which time the 1952 Act was being read with the new Cr.P.C. [as required by Section 8 of the General Clauses Act 1897].  

We are then left without any answers for the actual issue. For some reason the Court continues to miss the forest for the trees, and refuses to tell us why recourse to revision and quashing was made impermissible in the present batch of cases. It painfully continues to develop on the obiter by considering whether the batch of petitions met the standard of seriousness for interference under Section 482 Cr.P.C., and concludes that "challenge to orders of this non-substantive nature that can be agitated in a regular appeal is nothing but an abuse of the process of the Court." The observation is entirely misplaced. The Petitioners raised issues of law, arguing that certain findings suffer from impropriety - express grounds for interference under Section 397. But if recourse to that provision is barred, then what? Should recourse to Section 482 still remain impermissible? The Court ignores the peculiarity in the present set of facts, which have come about by its own hand. 

Article 226 and 227 of the Constitution

The conclusions on Article 226 and 227 also proceed on an assumption that the issues raised in the batch of petitions are 'trifling' and therefore would not warrant interference under writ jurisdiction. With due apologies for sounding repetitive, the bench again fails to explain how this jurisdiction can be ousted entirely. In fact, here, the bench expressly says "there can be no doubt that the jurisdiction of a High Court under Articles 226 and 227 cannot be curtailed, yet extraordinary situations may arise where it may be advisable for a High Court to decline to interfere." This volte-face is completed at the end of this part of the decision, where the bench says that "there is nothing extraordinary if the High Court ought not to interfere and leave it to this Court to take a decision in the matter in larger public interest". But this is not what has happened in the present case! In unequivocal terms, the High Court was barred from entertaining petitions. The Supreme Court is now attempting to portray the scenario as a willing refusal by High Court's to entertain cases, when it is actually an exclusion of jurisdiction by the Supreme Court itself. It is fair to say that nobody is fooled. 

Article 14 and Judicial Legislation

The argument under Article 14 in Suneja was twofold - the 'coal block' cases do not constitute an identifiable class, and even if they do this differentiation must be created through statute. The Court, expectedly, whips up the rhetoric to justify why the cases are an identifiable class in themselves. But the decision does not engage at all with the more pressing issue of how such classes can be created. It says that "the order passed by this Court does not amount to legislation in the classical mould but according special treatment to a class of cases for good and clear reason and in larger public interest as well as in the interest of the accused." There are obvious legal issues in judicially created classes for perpetrating discrimination. Judicial orders are imprecise, are creations of un-elected persons thus unrepresentative of the democratic process, and finally cannot be subjected to a challenge under Part III leaving no recourse for those aggrieved. The Supreme Court attempts to conveniently sidestep all of this by resorting to verbiage. Since nobody really knows what the 'classical mould' of legislation is, this is doublespeak for "the Supreme Court can do whatever it wants" - a highlight of the Court's White-Knight tendency in this arena of economic offences [previously discussed here].

Public Interest and the Rights of Accused Persons

There are three other heads of argument that are considered in Suneja - (1) violation of Article 21 by the procedure created by the impugned order, which is not established by 'law'; (2) illegal use of Article 142 of the Constitution to curtail both Statutory and Fundamental Rights of the Petitioners, and; (3) Illegally preventing a stay of proceedings. Rather than consider each of these in turn, it is easier to attack the common thread underlying these strands - the idea that public interest is a satisfactory justification to proscribe rights of accused persons. With great vigour the bench notes that "it is now time for all of us including courts to balance the right of an accused person vis-a-vis the rights and interests of individual victims of a crime and society. Very often, public interest is lost sight of while dealing with an accused person and the rights of accused persons are given far greater importance than societal interests and more often than not greater importance than the rights of individual victims. ... It is not as if the appellants have been denuded of their rights. It is only that their rights have been placed in the proper perspective and they have been enabled to exercise their rights before another forum." 

While the Court merely makes a cursory reference to Shahid Balwa [(2014) 2 SCC 687], the same issue reared its head on that occasion. Here, again, it uses the arguments of the Petitioners against them in observing that in pressing for a stay of proceedings it seems that the conclusion of the trial is not an objective for them. These are serious cases of corruption, the Court notes, and so a stay order cannot be given for the asking. Such logic is fit for the pulpit, not for the Supreme Court. At the most basic level, the bench ignores the practical realities that plague the judiciary. The present petitions were filed sometime around winter 2016, and have been decided in July 2017. For whatever it is worth, the Petitioners did allege severe illegalities in the trial, and by refusing to consider the issue of stay at the earliest the Court allowed a potentially illegal trial to continue for six months. Within that time most of the evidence has been completed in two sets of petitions [Y. Harish Chandra Prasad v. CBI (Crl. Appeal No. 1145 of 2017) and P. Trivikrama Prasad v. CBI (Crl. Appeal No. 1153-54 of 2017]. How is that fair, and how is that a correct utilisation of judicial time? At a deeper level, the Court is effectively denouncing a class of persons from seeking an enforcement of their fundamental rights for no better reason in law than because it thinks it is against public interest. It does not realise that such rhetoric ultimately trickles down to trial courts, where an accused is then painted as guilty simply for choosing to remain silent [a fundamental right] and is thus subjected to lengthy pre-trial detention.

Conclusion

On all counts, Suneja is a bad decision. We get no further answers to why is it fair to exclude the High Court as a forum for jurisdiction beyond the bench re-iterating that this is in public interest. For this, it could have merely expressed agreement with the previous decision of Shahid Balwa and saved time. When the bench does try to engage with the legal issues, it fails to grasp what was at stake and flounders. Ultimately, the decision may result only in compounding uncertainty by using previously unheard of tests and expressions to explain what is, essentially, another instance of abusing the vast discretion vested with the unelected judges of our Supreme Court. 

(Disclaimer: The Author was engaged as a part of the team arguing for the Petitioners in Crl. Appeal No. 1145 of 2017)

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.