Amendments to the Prevention of Corruption Act: Prosecuting Public Servants

The previous posts on this Blog discussed two new additions brought by the 2018 amendments to the Prevention of Corruption Act, 1988 [PC Act], namely a standalone offence punishing bribe givers, and a foundational change in how corporations can be prosecuted on corruption charges. In this post, I discuss changes made by the amendments that affect the traditional concern of Indian anticorruption legislation: prosecuting corrupt public servants.

The Existing Regime

Before moving on to the changes, it is worthwhile to spend a minute on the existing regime. The PC Act carried two main provisions to combat corruption: Sections 7 and 13. To avoid getting entangled in the technicalities, let's take a simpler version of how they worked, focusing only on the more important parts. There was Section 13(1)(e), which punished public servants caught in possession of assets disproportionate to their income. And then there was the muddling overlap between Sections 7 and 13(1)(d). The former targeted public servants accepting / obtaining anything beyond their salary (cash / property etc.) to do their job. Section 13(1)(d) only targeted them obtaining things, by corrupt means or abusing their position as a public official. The differences, then, were two: (i) according to several court decisions, Section 13(1)(d) needed a demand by public servants, and (ii) Section 13(1)(d) did not need the illegal transaction to revolve around performance of public functions. Totally different from this conundrum was the problem of Section 13(1)(d)(iii), which courts read as not requiring any demand or public function. It was seen as a strict liability offence, whose requirements were met as long as the public servant got any "valuable thing or pecuniary advantage" for another person without any public interest. 

2018 Amendments to Substantive Law: The Text

Very little of that existing regime has been left in place by the 2018 amendments. Section 13(1)(d)(iii) no longer exists. The rest of Section 13(1)(d) has been merged with Section 7 to form one composite offence. The new Section 13 only carries two offences - the erstwhile Sections 13(1)(c) and 13(1)(e). Since the bulk of changes are codified in the new Section 7, let's focus on that:

Section 7. Any public servant who, - 

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of any public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or 

(b) [ditto], as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or by another public servant; or 

(c) performs or induces another perform to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, 

shall be punishable, with imprisonment ... not less than three years but which may extend to seven years ... 

Explanation 1. - ... obtaining, accepting, or attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

...

Explanation 2. - ... (i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a [public servant], obtains or accepts or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant, or by using his personal influence over another public servant; or by any other corrupt or illegal means; ... 

I spoke earlier of overlaps between Sections 7 and 13(1)(d) in the PC Act. The legislature has chosen to resolve that issue by deleting half of Section 13(1)(d), and clubbing those parts with the scope of Section 7. This has been done through Explanation 2 to Section 7, which carries forward large chunks of the old Section 13(1)(d) PC Act. What, then, is the conduct prohibited by Section 7 after the amendments? It punishes three kinds of transactions between public servants and others involving an "undue advantage" changing hands / about to change hands:

• Section 7(a) requires that the exchange be accompanied by the public servant intending to perform / cause performance /forbear performance of a public duty either improperly or dishonestly, be it her duty or that of another public servant;      
• Section 7(b) requires that the exchange to be as reward for improper or dishonest performance / forbear performance of a public duty in the past by a public servant;
• Section 7(c) requires the improper or dishonest performance / forbearance of public duty, or inducing such conduct in another public servant, in anticipation or in consequence of accepting an undue advantage.

Substantive Amendments: Hits and Misses

The deletion of Section 13(1)(d)(iii) from the PC Act marks the end of a long saga of a fight between the bureaucracy and the government. Ever since 2010, when the Delhi High Court ruled that the offence did not require proof of any associated mental state, it became possible to prosecute public servants simply for making a bad decision. For instance, if an official in a Public Sector Bank grants a loan to X, who then defaults, technically the public servant obtained a valuable thing or pecuniary advantage for another person without any public interest. Although the Delhi High Court's decision incorporated safeguards against such a broad reading, the bureaucrats were not convinced, and had been lobbying for change. The 2018 amendments mark their victory.

Creating a broad corruption offence and reducing overlaps and resulting confusion between Sections 7 and 13(1)(d) is a good idea. But unfortunately, it suffers from poor execution, as the new Section 7 is still plagued by unnecessarily confusing text, as I illustrate below. 

• First, the confusion with 7(c). It targets two kinds of scenarios: (i) a public servant does her job dishonestly / improperly expecting to get an undue advantage for doing so, (ii) a public servant does her job dishonestly / improperly having accepted an undue advantage for doing so. Scenario (i) can easily be described as the public servant being rewarded for doing her job dishonestly / improperly - which is exactly what Section 7(b) targets. Scenario (ii) can be seen as a public servant intentionally accepting an undue advantage to do her job dishonestly / improperly - which is part of what Section 7(a) covers. Thus, arguably Section 7(c) is not really covering any extra ground. 
• Second, consider Explanation 1, which effectively says that the Section 7 offence is complete as long as a public servant gets an undue advantage, without a need for improper performance of duty. But we already knew this, since Section 7 uses the words improperly or dishonestly to describe the conduct of public servants. Why add an unnecessary explanation? 
• Lastly, consider Explanation 2(i), which makes explicit the links between the new Section 7 and the old Section 13(1)(d). Perhaps this is useful to make it clear to the police and courts that this offence also deals with what the old Section 13(1)(d) covered. But, this is simply not the case. Even though some language is carried forward, the old Section 13(1)(d) does not survive. I say this, because all that the old offence required was a public servant obtaining an undue advantage without any need to draw links between this transaction and the performance of a public duty. Basically, it criminalised a public servant extorting persons into giving bribes. But all three clauses in Section 7 hinge around the performance of a public duty, besides exchange of an undue advantage. Ultimately, Explanation 2(i) is unnecessary: since the means by which a public servant obtains the undue advantage are irrelevant for the offence, why talk about it?      

2018 Amendments to Procedural Law  

Section 19 of the PC Act creates a need for prior sanction to prosecute public servants on corruption charges; i.e., prior government approval before judicial proceedings can begin. This provision has a cousin in the general law on criminal procedure - Section 197 of the Criminal Procedure Code 1973 [Cr.P.C.]. There used to be two points of difference between these provisions. First, Section 19 PC Act only applied to active public servants, while Section 197 Cr.P.C. covered both active and retired public servants. Second, Section 19 PC Act applied in almost all cases under that law, while Section 197 Cr.P.C. applied to all kinds of cases, but only if the allegations concerned acts / omissions of the public servant in discharge / purported discharge of official duties [for a discussion of the judicial treatment of this test, see here]. The 2018 amendments to Section 19 PC Act have eliminated the first distinction; now sanction to prosecute cases under the PC Act will also apply to public servants employed "at the time of commission of the alleged offence". Section 19 PC Act will now also carry different rules on sanction in cases that are not instituted by law enforcement, giving public servants more opportunities to stop proceedings at the outset. While the amendments codify Supreme Court directions for a 3 month time-limit on sanction, there is no rule that failure to comply with that limit will result in sanction being deemed to have been granted.      

Far more significant than this expansion, though, is the insertion of Section 17-A into the PC Act. This provides that investigations regarding "any recommendation made or decision taken by [a] public servant in discharge of his official functions or duties" also need prior government sanction. Thus, police cannot even start corruption investigations without prior approval, a process that can take up to three months, although there is an exception for cases where a public servant is caught red-handed while obtaining / accepting an undue advantage [Provisos to Section 17-A]. Note, though, that while Section 17-A applies to PC Act offences, its structure is akin to Section 197 Cr.P.C. - prior sanction is needed only if allegations concern any recommendation / decision in discharge of official functions or duties. 

Section 17-A And Sanction: Old Wine in New Bottles

While prior sanction for investigations are not as common as prior sanction for prosecution, there is a legacy of laws protecting public servants against investigations too. The most famous being Section 6-A of the Delhi Special Police Establishment Act, 1946 [DSPE], which only shielded senior bureaucrats in cases pursued by the CBI, and was struck down as unconstitutional in 2014 primarily because of this selectivity in scope. In the years since, there have been selective attempts to revive that protection, most recently in the State of Rajasthan. Section 17-A marks a re-introduction of such protections at the federal level, this time without any rank-based logic. Though one suspects that it will be more common for this protections to be claimed in allegations against senior bureaucrats who occupy decision-making roles.

Are such protections for public servants legal? The Supreme Court considered the constitutionality of Section 197 Cr.P.C. in 1956, when one Matajog Dobey argued that this violated the equal protection clause of Article 14. Why, Dobey argued, should public servants not be taken to court like the rest of us? The Court disagreed, finding merit in the colonial logic that public servants needed this rule to protect them against vexatious litigation. As I mentioned above, the Supreme Court took up the issue of requiring prior sanctions for investigations in 2014 when it considered the legality of Section 6-A of the DSPE Act. But it did not rule that such protections from investigations were bad per se, and instead chose to tackle the arbitrariness of only protecting certain kinds of public servants and not the entire set. That is where the law stands today: public servants are certainly in a different class, but the extent of their privileges remains unsettled.

While discussing amendments passed by the State of Rajasthan in 2017 here, which introduced very similar rules for that state, I suggested that this temerity of the Supreme Court might render it difficult for any court to now turn around and say that requiring prior sanction for investigation, when applied to all public servants, is unconstitutional. In that post, I also described how, rather than condemn the idea of sanction outright, the judiciary used the "official duties" language in Section 197 Cr.P.C. to regulate what kinds of conduct could require prior sanction (An entire monograph can be dedicated to the unprincipled way in which it has done this). Since 1997, when the judiciary went beyond mere regulation to hold an earlier avatar of Section 6-A of the DSPE was unconstitutional, there has been a constant tussle between judiciary and executive. Courts would nullify protections from investigations, only for governments to reinstate it in new ways. Section 17-A appears to be the central government's response to the judicial nullification of Section 6-A of the DSPE Act. I suspect that the cyclical trend will send the ball back to the judiciary, as the legality of Section 17-A will certainly be challenged before the Supreme Court. Once and for all, the Court can then set the record straight and tell us what it thinks about laws shielding public servants from investigations, putting them truly in a class of their own above the rest of us plebeians.  

Conclusions and Next Post

As this post discussed, not only do the 2018 amendments to the PC Act introduce brand new areas to the law, they also make substantial changes to the core concern of Indian anticorruption legislation: the prosecution of corrupt public servants. By streamlining the substantive offences, the amendments have taken a step in the right direction. Sadly, these progressive steps suffer from familiar flaws in terms of poor legal drafting. But equally important, if not more, are the changes brought about to the law on requiring prior sanctions to prosecute public servants for corruption. Not only have existing shields against prosecutions been fortified, but an entirely new protection against investigations has been introduced. This provision cements just how big a shift has been made from the old regime: not only did is Section 13(1)(d)(iii) deleted from the PC Act, but conduct which was earlier a basis for prosecution is now the subject of additional protections through the amendments. Perhaps because of this, it is difficult to avoid a sense that the PC Act will now carry lesser bite while going after public servants. In the next and final post of this series, I will look at the addition of a forfeiture regime to the PC Act, an area where more bite has seemingly been added to the law. 

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.   

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.