IMPORTANT POINTS
Order framing charge may not be held to be purely a interlocutory order. In a given situation can be interfered with u/s 397(2) or 482 or Article 227, Constitution of India.
The order granting stay must be speaking one and conditional. Once stay is granted, proceedings should not be adjourned and concluded within two-three months.
Stay should not exceed six months, unless extension is granted by a specific speaking order. In all pending matters where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from day of the order. Trial courts may, on expiry of above period, resume proceedings without waiting for any other intimation unless express order extending stay is produced.
In order to be a public servant under PC Act, one need not be appointed by Government.
‘Any other ground’ in Section 19(3)(c), PC Act refers to any ground other than ‘sanction’.
Section 19(3)(c) PC Act is not a ban on maintainability of a petition u/s 482 CrPC.
Articles 226 and 227 are part of basic structure of Constitution.

Headnote:Per Adarsh Kumar Goel, J.
       (a) Code of Criminal Procedure, 1973 – Section 397(2) and 482 – Section 397(2) bars revision against interlocutory order – However, inherent powers u/s 482 could still be used against interlocutory orders for securing ends of justice or to check abuse of the process of the Court – This power has to be exercised very sparingly against a proceeding initiated illegally or vexatiously or without jurisdiction – Order framing charge may not be held to be purely a interlocutory order – In a given situation can be interfered with u/s 397(2) or 482 or Article 227, Constitution of India – However, power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation. (Para 18, 20, 25)
       (1977) 4 SCC 551; (2017) 14 SCC 809; (1994) 3 SCC 569; [1967] 3 SCR 926 – Relied upon
       (1977) 4 SCC 137; (1947) 2 SCR 685; (2014) 9 SCC 516; (2010) 8 SCC 329; 159 (2009) DLT 636; 166(2010) DLT 362; (2006)7 SCC 188; AIR 2009 SC 1032; (1997) 4 SCC 241; (2003) 6 SCC 641; AIR 1958 SC 398; AIR 1963 SC 1895; AIR 1968 SC 222; (1974) 2 SCC 615; AIR 1975 SC 1297; AIR 1979 SC 381; AIR 1980 SC 892; AIR 1988 SC 184; AIR 2000 SC 1997; AIR 2004 SC 3892; (1980) Suppl. SCC 92; (2001) 8 SCC 607; (1997) 3 SCC 261; (1979) 3 SCC 118 – Referred
       (b) Prevention of Corruption Act, 1988 – Section 19(3)(c) – Stay cannot be granted against order framing charges. (Para 22)
       (2017) 14 SCC 809 – Relied upon
       (1994) 3 SCC 569 – Referred
       (c) Prevention of corruption Act, 1988 – Section 19 – Grant of stay – Restraint – Order must show application of mind – Power coupled with accountability – The order granting stay must be speaking one and conditional – Once stay is granted, proceedings should not be adjourned and concluded within two-three months. (Para 29, 30, 33)
       (1984) 2 SCC 436; (1985) 1 SCC 260; (1994) 2 SCC 70; (1986) 2 SCC 203; (2014) 3 SCC 92 – Relied upon
       (d) Code of Criminal Procedure, 1973 – Section 397 and 482 r/w Article 227, Constitution of India – Declaration of law – Order framing charge not purely interlocutory order nor a final order – Jurisdiction of High Court not barred – Challenge should be entertained in rarest of rare case only to correct a patent error of jurisdiction – Not to re-appreciate – On grant of stay matter must be decided on day-to-day basis within two-three months – Stay should not exceed six months, unless extension is granted by a specific speaking order – In all pending matters where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today – Trial courts may, on expiry of above period, resume proceedings without waiting for any other intimation unless express order extending stay is produced. (Para 36)
       Per R.F. Nariman, J. (Concurring)
       (e) Prevention of Corruption Act, 1988 – Section 2(c) – Public servant – Wide definition – Explanations – In order to be a public servant, one need not be appointed by Government – De facto public servant. (Para 2)
       (f) Prevention of Corruption Act, 1988 – Section 19(3)(b) and (c) – Section 19(3)(b) permitting stay of proceedings on ground of any error, omission or irregularity in the sanction – Section 19(3)(c) prohibiting stay of proceedings on any other ground – ‘Any other ground’, held, refers to any ground other than ‘sanction’. (Para 8)
       2017 SCC Online SC 787; (1977) 4 SCC 551; (1876-77) 2 AC 743; AIR 1957 SC 628; (2017) 14 SCC 809 – Relied upon
       (g) Constitution of India – Article 215 r/w section 482, Code of Criminal Procedure, 1973 – High Court – Superior court of records – Entitled to consider questions regarding its own jurisdiction – Similarly section 482 does not confer any power over High Court but declares that nothing shall limit or affect its inherent powers – Section 19(3)(c), held, not a ban on maintainability of a petition u/s 482. (Para 9, 10, 11)
       (1965) 1 SCR 413; (1967) 3 SCR 926; (1977) 4 SCC 551; (1980) Supp. SCC 92; (2017) 14 SCC 809 – Relied upon
       (2001) 8 SCC 607 – Overruled
       (1977) 4 SCC 137; (2004) 13 SCC 269 – Referred
       (h) Constitution of India – Articles 226 and 227 – Part of basic structure of Constitution. (Para 18)
       (1997) 3 SCC 261; (1994) 3 SCC 569; (2017) 14 SCC 809 – Relied upon
       Facts of the case:
       F.I.R. has been recorded with the Delhi Special Police Establishment u/s 120B read with Sections 420, 467, 468, 471 and 477A of IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 at the instance of Municipal Corporation of Delhi (MCD) against the appellant and certain officers of MCD alleging causing of wrongful loss to the MCD by using fake invoices of Oil Companies relating to transportation of Bitumen for use in “Dense Carpeting Works” of roads in Delhi during the year 1997 and 1998.
       Charge sheet was filed against the appellant and certain employees of MCD by the respondent-CBI before the Special Judge, CBI, New Delhi. The appellants filed an application for discharge with the Special Judge, CBI. The Special Judge, CBI directed framing of the charges after considering the material before the Court. It was held that there was a prima facie case against the appellant and the other accused. The appellants filed Criminal Revision before the Delhi High Court against the order framing charge. The Revision Petition was converted into Writ Petition (Criminal).
       The Single Judge referred the question of law for consideration by the Division Bench.
       The Division Bench held that order framing charge was an interlocutory order and no Revision Petition under Section 401 read with Section 397(2) Cr.P.C. would lie to the High Court against such order.
       It was, however, held that a petition under Section 482 Cr.P.C. will lie to the High Court even when there is a bar under Section 397 or some other provisions of the Cr.P.C.
       As regards a petition under Article 227 of the Constitution, it was held that the said power was part of basic structure of the Constitution and could not be barred.
       Finding of the Court:
       High Court has jurisdiction in appropriate case to consider the challenge against an order framing charge and also to grant stay.
       Result: Appeals disposed of.

Judgement Key Points

The document states that to be considered a public servant under the relevant Act, one need not be appointed by the Government. It emphasizes that the definition is very broad and includes de facto public servants, meaning individuals who may not have a formal appointment but are functioning in a capacity that qualifies them as public servants. The scope of the definition also covers office bearers of registered co-operative societies engaged in various sectors such as agriculture, industry, trade, or banking, especially those receiving financial aid from the Government. Additionally, it includes office bearers or employees of educational, scientific, social, cultural, or other institutions that are established in a manner recognized by law and receive financial assistance from the Government or local or other public authorities. The explanations attached to the definition clarify that a person can be a public servant even if not legally appointed, and the concept of de facto public servants is recognized, thereby discarding any legal defects in their right to hold such a position.

JUDGMENT :

Adarsh Kumar Goel, J.

CRIMINAL APPEAL NOS.1375-1376 OF 2013

1. These appeals have been put up before this Bench of three Judges in pursuance of order of Bench of two Judges dated 9th September, 2013 as follows:

“Leave granted.
Learned counsel for the parties are agreed that there is considerable difference of opinion amongst different Benches of this Court as well as all the High Courts. Mr. Ram Jethmalani, learned Senior Counsel appearing for petitioner in Criminal Appeal arising out of Special Leave Petition (Criminal)No.6470 of 2012 submits that the subsequent decisions rendered by the two-judge Benches are per incuriam, and in conflict with the ratio of law laid down in the Constitution Bench decision in Mohanlal Maganlal Thacker v. State of Gujarat [(1968) 2 SCR 685].
In this view of the matter, we are of the opinion that it would be appropriate if the matters are referred to and heard by a larger Bench. Office is directed to place the matters before the Hon’ble the Chief Justice of India for appropriate orders.
In the meantime, further proceedings before the trial Court shall remain stayed.”

2. Since the question of law to be determined is identical in all cases, we have taken up for consideration this matter. In the light of answer to the referred question this as well as all other matters may be considered for disposal on merits by the appropriate Bench.

3. Brief facts first. F.I.R. dated 7th March, 2001 has been recorded with the Delhi Special Police Establishment: CBI/SIU-VIII/New Delhi Branch under Section 120B read with Sections 420, 467, 468, 471 and 477A of IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (the PC Act) at the instance of Municipal Corporation of Delhi (MCD) against the appellant and certain officers of MCD alleging causing of wrongful loss to the MCD by using fake invoices of Oil Companies relating to transportation of Bitumen for use in “Dense Carpeting Works” of roads in Delhi during the year 1997 and 1998.

4. After investigation, charge sheet was filed against the appellant and certain employees of MCD by the respondent-CBI before the Special Judge, CBI, New Delhi on 28th November, 2002. The appellants filed an application for discharge with the Special Judge, CBI. On 1st February, 2007, the Special Judge, CBI directed framing of the charges after considering the material before the Court. It was held that there was a prima facie case against the appellant and the other accused. The appellants filed Criminal Revision No. 321 of 2007 before the Delhi High Court against the order framing charge. The Revision Petition was converted into Writ Petition (Criminal)No.352 of 2010.

5. Learned Single Judge referred the following question of law for consideration by the Division Bench:

“Whether an order on charge framed by a Special Judge under the provisions of Prevention of Corruption Act, being an interlocutory order, and when no revision against the order or a petition under Section 482 of Cr.P.C. lies, can be assailed under Article 226/227 of the Constitution of India, whether or not the offences committed include the offences under Indian Penal Code apart from offences under Prevention of Corruption Act?”

6. The learned Single Judge referred to the conflicting views taken in earlier two single Bench decisions of the High Court in Dharambir Khattar versus Central Bureau of Investigation, 159 (2009) DLT 636, and R.C. Sabharwal versus Central Bureau of Investigation, 166(2010) DLT 362. It was observed

“However, since there are two views, one expressed by the Bench of Justice Jain in R.C. Sabharwal's (supra) case and one held by the Bench of Justice Muralidhar in Dharamvir Khattar's case (supra) and by this Bench, I consider that it was a fit case where a Larger Bench should set the controversy at rest.”

7. In Dharambir Khattar (supra), the view of learned Single Judge is as follows :

“32. To conclude this part of the discussion it is held that in the context

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2018 Supreme(SC) 266

Cases Referred (44)