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High Court of Judicature at Madras
S. NAGAMUTHU
K. Selvam
Versus
State by Inspector of Police, Special Police Establishment, Central Bureau of Investigation, Chennai
Criminal Revision Case No.583 of 2007 & M.P.No.1 of 2007
Decided On :09-02-2010
(B)Code of Criminal Procedure, 1973(2 of 1974)-Sec.397, 401-Revision-Discharge-Dismissal-Nature-Interlocutory order-Order refusing to discharge the accused is not interlocutory and is therefore revisable.
The learned counsel for the petitioner would further submit that the order under challenge cannot be termed as an interlocutory order in terms of Section 397 of Cr.P.C. and therefore, this revision is maintainable. For this proposition, he relies on the judgment of the Honourable Supreme Court in Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Limited and Others reported in (2001) 7 SCC 401 wherein in paragraph 8 of the judgment, the Honourable Apex Court has dealt with the term as to what is an interlocutory order. I do agree that the impugned order is revisable as per the law laid down in the said judgment. Para 11
(C)Prevention of Corruption Act, 1988(49 of 1988)-Sec.19-Code of Criminal Procedure, 1973(2 of 1974)-Sec.248, 255-Criminal trial-Corruption-Framing of charge-Discharge- Both under Cr.P.C. and Prevention of Corruption Act, 1988, after framing of charges, the trial Court has got no power to discharge the accused.
Before the said judgment as well as after, the law stands well settled that when once charges have been framed, the question of discharging an accused does not arise at all. Para 12
It would be suffice to say that it has been well settled by the Honourable Apex Court that after framing of charges, the trial Court has got no power at all to discharge the accused. Para 13
A close reading of Section 19 of the Act would make anyone to understand that it does not empower the trial court to discharge an accused after the framing of charges. Para 16
(D)Prevention of Corruption Act, 1988(49 of 1988)-Sec.19-Code of Criminal Procedure, 1973(2 of 1974)-Sec.248, 255-Criminal trial-Corruption-Sanction-Validity-Framing of charge-Discharge-Validity of sanction cannot be considered while framing charge or for discharge.
Once it is held that the authority who issued sanction lacks jurisdiction, there can be no difficulty in holding that the sanction is bad. But, whether the sanction in this case is bad or not is a matter to be appreciated by the trial court at the stage of judgment and not at this stage.
Para 23
An interesting question as to whether an accused, who has been facing charges under the provisions of the Prevention of Corruption Act, can be discharged after the commencement of the trial on the ground that the sanction issued under Section 19 of the said Act is wholly without jurisdiction and on that score, the very order taking cognizance itself is bad, has come up for consideration in this revision.
2. The petitioner is the sole accused in C.C.No.20/2004 on the file of the Additional Special Judge for CBI Cases, Chennai. Long before, based on the materials placed before the Court and after affording sufficient opportunity to either side, the trial court framed charges against the petitioner under Sections 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988.
3. One Mr.S.S.Shetty, who was the then General Manager of the Reserve Bank of India was cited as one of the witnesses. Cognizance was taken initially, also on the basis of the sanction order issued by the said witness under Section 19 of the Act for launching prosecution. During the relevant period, the petitioner was holding the post of "Coin and Note Examiner" in Reserve Bank of India. During the trial of the case, Mr.S.S.Shetty was examined as P.W.1 on 6.6.2005. He was cross examined on 21.12.2005, during which, his very authority to issue valid sanction was challenged. Based on certain documents, an incisive cross examination was done. Though P.W.1 has withstood the said cross examination to maintain that he is the competent authority to issue sanction for the prosecution of the petitioner, it was suggested to him by the petitioner that the competent authority to issue sanction is only, the Chief General Manager and not the General Manager. According to the petitioner, P.W.1 has in a way admitted the said position also.
4. Thereafter, the petitioner filed Crl.M.P.No.15/2006 before the trial Court purportedly under Section 19 of the Prevention of Corruption Act seeking to discharge him from the case. The learned Judge by order dated 10.1.2007 dismissed the said application. Challenging the same, the petitioner is before this Court with this revision.
5. At the outset, when a question was posed as to how the trial court could discharge the accused during the trial of the case, the learned Counsel appearing for the petitioner submitted that he is supported by the law laid down by the Honourable Apex Court in State of Karnataka through CBI vs. C.Nagarajaswamy reported in 2005 (7) Supreme 121. Since such an important question has arisen for consideration, this Court requested the learned Additional Public Prosecutor Mr.N.R.Elango to assist this Court as Amicus Curiae.
6. Today, I have heard the learned Counsel for the petitioner, the learned Special Public Prosecutor for CBI Cases and Mr.N.R.Elango, learned Additional Public Prosecutor, the Amicus Curiae on behalf of the legal position.
7. The learned Counsel appearing for the petitioner would submit that in general, as per the provisions of the Criminal Procedure Code, in respect of the offences tried, a trial Judge lacks jurisdiction to pass an order of discharge after framing of charges. He would, however, contend that in so far as the cases under the Prevention of Corruption Act are concerned, the said act is both substantive as well as procedural, inasmuch as, in Section 19 of the Act there is an inbuilt provision which enables the trial court to discharge the accused, even after framing of the charges and that too, after examination of some witnesses. The learned Counsel has taken me through the judgment of the Honourable Supreme Court in Nagarajaswamys case cited supra. More particularly, the learned Counsel relied on paragraphs 16, 23 and 24 of the said judgment to substantiate his contention that the Honourable Supreme Court in the said judgment has held that the trial court has got such power to discharge an accused even after framing of charges.
8. In this regard, the learned Ami
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