@JUDGMENTTAG-ORDER
Ashok B. Hinchigeri, J.@mdashThese petitions are filed seeking, inter alia, the quashing of the proceedings in Crime Nos. 28 of 2008, 22 of 2008 and 23 of 2008 respectively. The said cases are registered against the petitioners complaining of the violations of the provisions of Section 13(1)(e) of the Prevention of Corruption Act, 1988 (''P.C. Act'' for short), which are punishable u/s 13(2) of the said Act. In all the three cases, the interim orders of stay were granted for a limited period. Subsequently they are continued from time to time.
2. Sri B.V. Acharya, the learned Senior Counsel appearing for Sri Belliappa, appearing for the respondent has raised a threshold bar for the granting and/or continuation of the interim orders of stay. He has made the following submissions:
(i)(a) There is a total ban on granting interim order staying the investigation proceedings. He submits that this Court, in exercise of the power, conferred by Section 482 of the Code of Criminal Procedure, 1973 (''the Code'' for short) may quash the investigation report or the charge-sheet, but it cannot stay the investigation proceedings. This argument is based on Section 19(3)(c) of the Prevention of Corruption Act, the provisions of which are extracted hereinbelow:
19. x x x x x x
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):
X X X X
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(i)(b) In support of his submissions, Sri B.V. Acharya has relied upon a judgment of the Hon''ble Supreme Court in the case of
11. ... Section 482 of the Criminal Procedure Code saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in
20. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or, during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in Court u/s 173(2) of the Criminal Procedure Code, this field being exclusively reserved for the investigating agency.
This being the settled legal position, the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 of the Criminal Procedure Code when the matter was still at the investigation stage.
(i)(c) The learned Senior Counsel has also relied upon a judgment of the Hon''ble Supreme Court in the case of
1. ... When Parliament imposed an undiluted ban against granting stay of any proceedings involving an offence under the Prevention of Corruption Act, 1988 (for short ''the Act'') on any ground whatsoever, no Court shall circumvent the said ban through any means. The reasons which prompted the Parliament to divest all the Courts in India of the power to stay the proceedings in the Trial Courts involving any such offence, is to foreclose even the possible chance of delaying such trials on account of any party to such proceedings raising any question before the High Court during the pendency of trial proceedings.
6. It is in Clause (c) of the sub-section that the prohibition is couched in unexceptional terms. It reads thus:
No Court shall stay the proceedings under this Act on any other ground.
24. There is another reason also why the submission that Section 19 of the Prevention of Corruption Act would not apply to the inherent jurisdiction of the High Court, cannot be accepted. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent power can be exercised even if there was a contrary provision in the Criminal Procedure Code. Section 482 of the Criminal Procedure Code does not provide that inherent jurisdiction can be exercised notwithstanding any other provision contained in any other enactment. Thus if an enactment contains a specific bar then inherent jurisdiction cannot be exercised to get over that bar.
(i)(d) Based on paragraph 24 of the afore-extracted judgment, the learned Senior Counsel submits that non obstante clause contained in Section 482 is only vis-a-vis the provisions contained in the said Code only. But the same does not have any overriding effect on the provisions contained in Section 19(3)(c) of the P.C. Act. On the other hand, the provisions contained in Section 19(3) of the P.C. Act have primacy over the provisions of the Code.
(ii) Section 482 of the Code can be invoked to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. If the investigation takes place into the allegation of amassing the property, which is not proportionate to a public servant''s known sources of income, the same does not lead to any miscarriage of justice.
(iii) Assuming that there are some irregularities or defects in the initiation of the proceedings by the respondent, the same cannot be used to stall the investigation proceedings. If the investigations proceedings are stayed, the ends of justice would suffer, the materials available at the time of the raid and immediately thereafter, may disappear. If ultimately this Court holds that the investigation report is bad, materials or evidence collected in the course of investigation may be eschewed. Such a course would not put the petitioners to any prejudice. On the other hand, if the investigation is stayed and finally these criminal petitions are dismissed, the resumption of investigation proceedings may not lead to the same collection of materials. If there is any gap between the stay of the investigation proceedings and their resumption, the interregnum period may be used by the public servants to cause the disappearance of the materials and also to create documents to regularise their disproportionate acquisition of properties. Thus, the balance of convenience is also in favour of discontinuation of the interim order of stay. The parties cannot be emboldened to use the technicalities to defeat the ends of justice.
3. Advancing these contentions, Sri Acharya makes a prayer to this Court not to continue the interim order of stay.
4. Sri C.V. Nagesh, the learned Counsel appearing for the petitioners urges the following contentions:
(i)(a) This Court''s jurisdiction to grant the interim orders in a deserving case cannot be taken away. Section 482 of the Code is in pari materia with Articles 226 and 227 of the Constitution of India, which can be invoked wherever illegality or injustice takes place.
(i)(b) He submits that the Hon''ble Supreme Court''s judgment in the case of Pastor P. Raju, is in a different context. The case was registered against the said Pastor P. Raju u/s 153-B of the Indian Penal Code, 1860. He further submits that the Hon''ble Supreme Court has only observed in the said case that the power u/s 482 of the Code cannot be exercised to interfere with the statutory power of police to conduct investigation in a cognizable case. But what the Hon''ble Supreme Court has said cannot be stretched to mean that this Court cannot grant stay order u/s 482 of the Code. His submission is that the judgments relied upon by Sri B.V. Acharya only state that it is the trial which cannot be stayed. But the same thing cannot be said of the investigation.
(i)(c) Sri Nagesh submits that some of the circumstances for the interference by this Court u/s 482 of the Code, as illustratively enumerated by the Hon''ble Supreme Court in the case of
(i)(d) Sri Nagesh has also relied upon the judgment of the Hon''ble Supreme Court in the case of Priya Vrat Singh and Ors. v. Shyam Ji Sahai AIR 2008 SCW 5712. The relevant paragraph of the said judgment is extracted hereinbelow:
6. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction.
(i)(e) Nextly, Sri Nagesh sought to draw support from the Hon''ble Supreme Court''s judgment in the case of Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. (2008) 1 SCC 259 to buttress his submission that it may not be possible to lay down any precise, clearly defined, sufficiently channelised or inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such powers should be exercised. He has more specifically relied on paragraph 45 of the said judgment, which is extracted hereinbelow:
45. Even if all the averments made in the FIR are taken to be correct, the case for prosecution under Sections 420 and 467 of the Indian Penal Code is not made out against the appellants. To prevent abuse of the process and to secure the ends of justice, it becomes imperative to quash the FIR and any further proceedings emanating therefrom.
(ii) The chief contention urged on behalf of the petitioners is that the very investigation is by unauthorised persons. As the grounds urged on behalf of the petitioners go to the root of the matter, it has to be decided whether the Investigation Officer is authorised to hold the investigation in the matter.
5. The submissions of the learned Counsel have received my anxious consideration. It may be worthwhile to refer to the statement of objects and reasons appended to the Prevention of Corruption Bill, 1987 (Bill No. 36 of 1987), which subsequently got enacted into the present Act, i.e., the P.C. Act, which inter alia, states:
x x x x
(3) ... In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.
6. The Legislature has by adding the words "no Court shall stay the proceedings under this Act on any other ground u/s 19(3) of the P.C. Act" unequivocally indicated that no say could be granted by use of any power on any ground. This legal position is amplified by the Hon''ble Supreme Court in the case of Pastor P. Raju, where the considered view taken is that the power u/s 482 of the Code can be exercised to quash the criminal proceedings pending in any Court. But the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in cognizable offences. In the said case the High Court''s quashing the proceedings at the investigation stage itself was disapproved by the Hon''ble Supreme Court.
7. In the case of Satya Narayan Sharma, the Hon''ble Supreme Court has held that when the Parliament imposed an undiluted ban against granting stay in proceedings involving offences under the P.C. Act on any ground whatsoever, no Court shall circumvent the said ban through any means.
8. The Hon''ble Supreme Court has clearly expressed itself against missing or bypassing the legislative prohibition contained in Section 19(3)(c) of the P.C. Act.
9. I also see considerable force in the submission of Sri B.V. Acharya that the balance of convenience is also in favour of discontinuation of the interim orders of stay. The apprehension of the respondent, that the petitioners may cause the disappearance of the materials if the investigation is delayed, cannot be said to be unfounded. If the petitioners ultimately succeed and the petitions are allowed by quashing the proceedings in crime numbers in question, this Court can always direct that the evidence collected by the Investigation Officer be eschewed. I do not see any justification for stalling the investigating proceedings at this stage. The investigation proceedings, needless to observe, are always subject to the outcome of these petitions.
10. The legislative intentment, prescription and prohibition and the law laid down by the Hon''ble Supreme Court in the cases of Satya Narayan Sharma and Pastor P. Raju disentitle the petitioners to the continuation of the interim order of stay.
11. The submission of Sri Nagesh that the inherent power conferred upon this Court by Section 482 of the Code are not taken away even in the wake of the embargo contained in Section 19(3)(c) of the P.C. Act, does not commend itself to me. Section 482 of the Code starts with the words "nothing in this Code". But its non obstante clause does not say and include the words ''notwithstanding anything contained in any other law''. Therefore I have no hesitation in holding that the provisions contained in Section 482 of the Code can have no primacy over the provisions contained in Section 19(3)(c) of the P.C. Act. If an enactment contains a specific bar, then inherent jurisdiction cannot be exercised to get over that bar.
12. For all the aforesaid reasons, I refuse to continue the interim orders of stay. The interim orders of stay stand vacated with effect from today.
I direct that the hearing of these cases be expedited. The office is directed to list all these three cases for final disposal on 20th October, 2008.
