Supreme Court of India
STATE THROUGH SPECIAL CELL, NEW DELHIversusNAVJOT SANDHU @ AFSHAN GURU AND ORS.
- Citation
- 2003 INSC 290
- Decided
- 9 May 2003
- Disposal
- Appeal(s) allowed
- Bench
- S N VARIAVA
Holding
The High Court cannot exercise its supervisory or inherent jurisdiction to interfere with an interlocutory order of a Special Court when the governing statute (POTA) expressly bars any appeal or revision, and such interference would defeat the statutory appellate scheme.
Summary
The case arose from the Parliament attack of 2001, after which the accused were charged under various statutes including the Prevention of Terrorism Act, 2002 (POTA). While the trial was pending, the accused sought an interlocutory order from the Special Judge to exclude intercepted telephone conversations as evidence under POTA. The Special Judge dismissed the application, but the Delhi High Court, invoking either Article 227 of the Constitution or Section 482 of the CrPC, set aside that order. The Supreme Court held that the High Court had no jurisdiction to interfere with an interlocutory order when Section 34 of POTA expressly bars any appeal or revision, and that neither Article 227 nor the inherent power under Section 482 could be used to circumvent the statutory scheme. Consequently, the High Court’s order was set aside and the matter was to be decided in the statutory appeal under Section 34 POTA. The appeals were allowed.
Issues considered
- Whether the Delhi High Court could entertain the interlocutory order under Article 227 of the Constitution of India.
- Whether the High Court could exercise its inherent jurisdiction under Section 482 of the Criminal Procedure Code to quash an interlocutory order when Section 34 of the Prevention of Terrorism Act, 2002 expressly bars any appeal or revision.
- Whether the High Court’s interference deprived the parties of the right to raise the point of law in the statutory appeal under Section 34 POTA.
- Whether the High Court’s exercise of power corrected a mere error of interpretation, which is not permissible under Article 227 or Section 482.
Legislation cited
- Code of Criminal Procedure, 1973s. Section 397, s. Section 482
- Constitution of Indias. Article 226, s. Article 227
- Indian Telegraph Act, 1885s. Section 5
- Prevention of Terrorism Act, 2002s. Section 34
Subjects
interlocutory orderArticle 227Section 482POTAadmissibility of intercepted communicationhigh court jurisdictioninherent powersstatutory barappeal under Section 34
Judgment
A ST ATE THROUGH SPECIAL CELL, NEW DELHI
v.
NAVJOT SANDHU @ AFSHAN GURU AND ORS.
MAY 9, 2003
B (S.N. VARIAVA AND BRIJESH KUMAR, JJ.]
Constitution of India, I950; Articles 226 and 227/Code of Criminal
Procedure, 1973; SS.397 and 482 /Prevention of Terrorism Act,2002; S.34:
C Accused filed applications objecting use of 'intercepted conversation' as an
evidence to prove charges under POTA-Dismissed by the Trial Court-
Appeals/Petitions under Sec.34 of POTAIS.482 Cr.P.C./Art.227 Constitution
of India-Reversed by the High Court-Power of High Court to interfere with
Interlocutory Order/Orders of the Courts below-Held: Since no appeal lies
against an interlocutory order under POTA, by entertaining an appeal High
D Court deprived respondent of an opportunity of canvassing on the point of law
in the statutory appeal-Since trial was not concluded, there was no miscarriage
ofjustice/palpable illegality, which warranted interference by the High Court-
High Court possess inherent power under Sec.482 Cr.P.C./Art.227 of the
Constitution to inrerfere with Orders of the Courts below but not to correct an
E error in interpretation -Interference by the High Court at the trial stage not
justified-Ends ofjustice would be served by giving effect to Sec.34 of POTA
and not to interfere with the impugned Order-Directions issued-Penal Code,
1860-Ss. I20, 120B,I2I,I2/A,/22,/24,/86,332,353,302 and 307-Explosive
Substances Acts-Ss.3,4,5-Arms Act-Ss.25,27-lnterpretation of the Statute-
The Telegraph Act-Sec.5 rlw Rule 419A.
F
Words and Phrases:
'Inherent power-Meaning of
According to the prosecution, the Investigating agencies intercepted
G the conversation between the accused-respondents and terrorists of a
banned terrorist organization which showed that the accused persons
hatched a conspiracy which had resulted in the attack on the Parliament
of India by the terrorists in which five terrorists were killed in an
encounter with the Police. A case was registered against l.he accused under
various sections of Penal Code, Arms Act and Explosive Substances Act.
H 130
STATE THROUGH SPECIAL CELL v. NA VJOT SANDHU@ AFSHAN GURU 13 J
Later, on the basis of relevant and cogent materials, relevant Sections of A
POTA were also added. On completion of the investigation, charge sheet
was filed in the Court of Special Judge. Pending trial, accused filed an
application seeking a direction that the intercepted conversation should
not be used as an evidence for proving the charges under POT A. The
Special Judge dismissed the application by an interlocutory order dated B
19th December 2001. Aggrieved, respondents filed writ petitions under
Articles 226 and 227 r/w Sec.482 Cr.P.C. and appeal u/s.34 of POTA. The
High Court reversed the order of the trial court. Hence the present
appeals.
Allowing the appeals, the Court c
HELD: I.I. Had the Special Judge followed the dictum/procedural
guidelines laid down by the Court in the case of *Bipin Shanti/al Panchal
v. State of Gujarat and Anr. no prejudice would have been caused to the
respondents inasmuch as their arguments/objections would have been
decided at the stage of final hearing. If the Court was in their favour the D
evidence could have been eschewed and not considered. Any decision given
at that stage could have been challenged in the appeal under Section 34
of POTA. Ignoring the dictum the Special Judge chose to hear detailed
arguments and dismissed the a!Jplications. (137-C, D]
*Bipin Shanti/al Panchal vs. State of Gujarat and Anr., (2001] 3 sec E
I, relied on.
1.2. On the facts of the instant case, neither the power under Article
227 of the Constitution of India nor inherent jurisdiction under Section
482 of the Criminal Procedure Code should have been exercised, even if
such powers were available. (141-B, Cf F
1.3. Article 227 of the Constitution of India gives the High Court
the power of superintendence over all Courts and Tribunals throughout
the territories in relation to which it exercises jurisdiction. This jurisdiction
cannot be limited or fettered by any act of the State Legislature. The G
supervisory jurisdiction extends to keeping the subordinate Tribunal
within the limits of their authority and to see that they obey the law. The
powers under Article 227 are wide and can be used, to meet the ends of
justice. They can be used to interfere even with an interlocutory order.
However, the power under Article 227 is a discretionary power and it is
difficult to attribute to an order of the High Court, such a source of power, H
132 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A wh·en the High Court itself does not in terms purport to exercise any such
discretionary power. It is settled law that the power of judicial
superintendence, under Article 227, must be exercised sparingly and only
to keep subordinate Courts and Tribunal within the bounds of their
authority and not to correct mere errors. Further where the statute bans
B the exercise of revisional powers it would require very exceptional
circumstances to warrant interference under Article 227 of the
Constitution of India since the power of superintendence was not meant
to circumvent statutory law. [141-D, E; 142-C, D, E)
State of Gujarat v. V. S. Vaghe/a and Ors, (1968) 3 SCR 869; Madhu
C Limaye v. State of Maharashtra, AIR (1978) SC 47; Jagir Singh v. Ranbir
Singh and Anr., [1979) 1 SCC 560; Pepsi Foods Ltd and Anr. v. Special
Judicial Magistrates and Ors., (1998) 5 SCC 749; Industrial Credit and
Investment Corporation of India Ltd v. Grapco Industries Ltd and Ors.,
[1999) 4 SCC 710; Roy V.D. v. State of Kera/a, (2000) 8 SCC 590; Puran
v. Rambilas and Anr. (2001) 6 SCC 338; Satya Narayanan Sharma v. State
D of Rajasthan, (2001) 8 SCC 607; Ouseph Mathai and Ors. v. M Abdul
Khadir, (20021 1 SCC 319 and State of Karnataka v. M Devendrappa and
Anr., [2002) 3 SCC 89, relied on.
1.4. Section 482 of the Criminal Procedure Code starts with the
words "Nothing in this Code". Thus the inherent jurisdiction of the High
E Court under Section 482 of the Criminal Procedure Code can be exercised
even when there is a bar under Section 397 or some other provisions of
the Criminal Procedure Code. However, this power cannot be exercised
if there is a statutory bar in some other enactment. If the order assailed
is purely of an interlocutory character, which could be corrected iq
p exercise of revisional powers or appellate powers the High Court must
refuse to exercise its inherent power. The inherent power is to be used
only in cases where there is an abuse of the process of the Court or where
interference is absolutely necessary for securing the ends of justice. The
inherent power must be exercised very sparingly as cases which require
interference would be few and far between. The most common case where
G inherent jurisdiction is generally exercised is where criminal proceedings
are required to be quashed because they are initiated illegally, vexatiously
or without jurisdiction. The inherent power is not to be resorted to ifthere
is a specific provision in the Code or any other enactment for redress of
the grievance of the aggrieved party. (148-E, F, G, H; 149-A)
H
STATE THROUGH SPECIALC£LLv. NAVJOT SANDHU@AFSHAN GURU J 33
Satya Narayanan Sharma v. State of Rajasthan, 120011 8 SCC 607, A
relied on.
1.5. The order of the Trial Court was clearly an interlocutory order.
Section 34 of POTA clearly provides that no appeal or revision would lie
to any Court from an interlocutory order. One of the accused had filed
an Appeal under Section 34 of POT A. Merely because he chose to invoke B
Section 482 Cr.P.C. did not mean that his application was not an Appeal.
Clearly the High Court could not have interfered at that stage. The High
Court has not indicated that it was exercising power of superintendence
under Article 227. Such a power being a discretionary power it is difficult
to attribute to the order of the High Court such a source of power. C
1149-C, DI
1.6. The effect of the impugned order is that the statutory provision
of Section 34 of POT A have been circumvented. The correctness of the
interlocutory order could by virtue of Section 34 of POT A have been
challenged only in the appeal filed against the final judgment. The D
respondents by filing the Application/Petitions and the Court having
chosen to entertain them has resulted in a party being deprived of an
opportunity of canvassing an important point of law in the statutory
Appeal before the Division Bench. The peculiar situation is that the
Division Bench, hearing a statutory appeal (both on law and facts) is
bound/constrained by an order of a single Judge. (149-E, F, GI E
1. 7. The Special Judge had jurisdiction to decide whether the
evidence collected by interception could be used for proving i:harge under
POTA. The Special Judge was acting within the limits of his authority in
passing the impugned order. (150-Al p
1.8. Neither the power under Article 227 nor the power under Section
482 enabled the High Court to correct an error in interpretation·even if
the High Court felt that the order of the Special Judge was erroneous. If
the High Court did not agree with the correctness of that order, it should
have refused to interfere as the order could be corrected in the appeal G
under Section 34 of POT A. Even the ends of justice did not require
interference at this stage. In fact the ends of justice required that the
statutory intent of Section 34 of POTA be given effect to. The High Court
should have directed the Respondents to raise all such points in the
statutory appeal, if any required to be filed under Section 34 of POT A. If .
H
134 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A in the appeal the Division Bench felt that the order was not correct or
that it was erroneous it would set aside the order, eschew the evidence
and not take the same into consideration. Thus no prejudice was being
caused or would be caused to the respondents. Their rights were fully
protected as per the provisions of POTA. At this stage there was no
B miscarriage of justice or palpable illegality which re4uired immediate
interference. In the facts and circumstances of the case, a decision on
merits at this stage would be to perpetrate the mistake committed by the
High Court. It would result in depriving one or the other party of a
valuable right of agitating the point in the statutory appeals.
(150-B-E; 151-B]
c CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 725-
728 of 2003.
From the Judgment and Order dated 30. I0.200 I of the Delhi High
Court in Crl. Misc. (M). P. Nos. 2331, 2332, 2484 and 2581 of 2002.
D
Gopal Subramanium, Dayan Krishnan, Siddharth Aggarwal, Mrs. Mukta
Gupta and D.S. Mahra for the Appellant.
Dr. Rajeev Dhavan, Shanti Bhushan, Nikhil Nayyar, Ms. Nitya
Ramakrishnan, Ms. Anitha Shenoy and Sanjay Pathak, for the Respondents.
E
The Judgment of the Court was delivered by
S.N. VARIA VA, .J. Leave granted.
Heard parties.
F Briefly stated the facts are as follows:
On 13th December, 200 I five terrorists attacked the Parliament of India.
After an encounter, with the security forces, the five terrorists were shot
dead. A F.l.R was lodged by the Station House Officer, Police Station,
G Parliament Street. A case under Sections 120,1208, 121, 121A, 122, 124,
186, 332, 353, 302, and 307 IPC, Sections 3, 4 and 5 of the Explosive
Substances Act and Sections 25 and 27 of the Arms Act was registered.
Investigation was then initiated. From the slain terrorists apart from arms,
ammunitions and other items, three mobile phones, 6 sim cards and slips of
paper containing five mobile telephone numbers and other two telephone
H numbers were recovered. It is the case of the prosecution that due to urgency
STA TE THROUGH SPECIAL CELL v. NA VJOT SANDHU @AFSHAN GURU [VARIA VA ,J] J 35
authorisation to intercept was granted by the Joint Director of Intelligence A
Bureau, who was associated with the investigation. It is the case of the
prosecution that this authorisation was as per the provisions of the Telegraph
Act i.e. Section 5 of the Telegraph Act read with Rule 4 l 9A. It is the case
of the prosecution that the interception disclosed the involvement of the
respondents in the conspiracy to attack the Parliament of India. It is the case B
of the prosecution that as a result of the interceptions and the interrogation
of the respondents, it was disclosed that the slain terrorists and the respondents
were in touch with one Ghazi Baba, who is a Pakistani national and the
supreme commander of Jaish-e-Mohammed which is a notified and banned
terrorist organisation under Section 18 of Prevention of Terrorism Act, 2002
and the schedule thereto (the Prevention of Terrorism Act will hereinafter be C
referred to as POTA). It is the case of the prosecution that after the investigating
officers had, in the course of the investigation, collected the relevant and
cogent material it was found that a case under POTA was made out. It is the
case of the prosecution that relevant sections of POTA were added on 19th
December, 200 I only after it was ensured that offences under POTA were
made out. It is the case of the prosecution that this was done in view of the D
well established law laid down by this Court, in the context of TADA, that
there must be due application of mind and cogent material before the special
rigorous regime is added. It is the case of the prosecution that on 3 I st
December, 2001 and 19th January, 2002 the Home Secretary approved the
interception. E
It is the case of the prosecution that after the investigation was completed
the charge-sheet was filed on 14th May, 2002. It is the case of the prosecution
that copy of the transcripts of the intercepted conversation were given to the
accused along with the charge sheet. On 8th July, 2002 the respondents
applied before the Special Judge seeking a direction that the intercepted F
conversation not be used as evidence in the trial for proving the charge/s
under POTA. The procedure which the Special Judge should have followed
is as laid down by this Court in the case of Bipin Shanti/a/ Panchal v. State
of Gujarat and Anr., reported in [2001] 3 SCC I. In this case it has been held
as follows:
G
"12. As pointed out earlier, on different occasions the trial Judge
has chosen to decide questions of admissibility of documents or other
items of evidence, as and when objections thereto were raised and
then detailed orders were passed either upholding or overruling such
objections. The worse part is that after passing the orders the trial H
136 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.
A court waited for days and weeks for the parties concerned to go
before the higher courts for the purpose of challenging such
interlocutory orders.
13. It is an archaic practice that during the evidence-collecting stage,
whenever any objection is raised regarding admissibility of any
B material in evidence the court does not proceed further without passing
order on such objection. But the fallout of the above practice is this
: Suppose the trial court, in a case, upholds a particular objection and
excludes the material from being admitted in evidence and then
proceeds with the trial and disposes of the case finally. If the appellate
or the revisional court, when the same question is recanvassed, could
c take a different view on the admissibility of that material in such
cases the appellate court would be deprived of the benefit of that
evidence, because that was not put on record by the trial court. In
such a situation the higher court may have to send the case back to
the trial court for recording that evidence and then to dispose of the
D case afresh. Why should the trial prolong like that unnecessarily on
account of practices created by ourselves. Such practices, when realised
through the course of long period to be hindrances which impede
steady and swift progress of trial proceedings, must be recast or
remoulded to give way for better substitutes which would help
acceleration of trial proceedings.
E
14. When so recast, the practice which can be a better substitute is
this: Whenever an objection is raised during evidence-taking stage
regarding the admissibility of any material or item of oral evidence
the trial court can make a note of such objection and mark the objected
document tentatively as an exhibit in the case (or record the objected
F part of the oral evidence) subject to such objections to be decided at
the last stage in the final judgment. If the court finds at the final stage
that the objection so raised is sustainable the Judge or Magistrate can
keep such evidence excluded from consideration. In our view there
is no illegality in adopting such a course. (However, we make it clear
G that if the objection relates to deficiency of stamp duty of a document
the court has to decide the objection before proceeding further. For
all other objections the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two advantages. First
is that the time in the trial court, during evidence-taking stage, would
H not be wasted on account of raising such objections and the court can
STATETHROUGH SPECIAL CELL"· NA VJOT SANDHU @AFSHAN GURU [VARIA VA ,J] J37
continue to examine the witnesses. The witnesses need not wait for A
long hours, if not days. Second is that the superior court, when the
same objection is recanvassed and reconsidered in appeal or revision
against the final judgment of the trial court, can determine the
correctness of the view taken by the trial court regarding that objection,
without bothering to remit the case to the trial court again for fresh B
disposal. We may also point out that this measure would not cause
any prejudice to the parties to the litigation ;:nd would not add to
their misery or expenses.
16. We, therefore, make the above as a procedure to be followed by
the trial courts whenever an objection is raised regarding the C
admissibility of any material or any item of oral evidence."
Had the Special Judge followed the above dictum no prejudice would have
been caused to the respondents inasmuch as their arguments/objections would
have been decided at the stage of final hearing. If the Court was in their
favour the evidence cou Id have been eschewed and not considered. Any D
decision given at that stage could then have been challenged in the appeal
under Section 34, POTA. Ignoring the above dictum the Special Judge chose
to hear detailed arguments and by his order dated I Ith July, 2002, dismissed
the applications. The Special Judge held that the evidence collected by various
police officials when the case was registered under different provisions of
law cannot be washed away merely because the provisions of POTA were E
added on 19th December, 2001. The Special Judge held that the provisions
of POTA had to be followed only if the investigation was done under the
provisions of the POTA. By dictating an order and passing the interlocutory
Order the Special Judge enabled the respondents to adopt the course that they
have. This has resulted in a peculiar situation where two judges of the High F
Court, hearing the statutory appeal under Section 34, POTA, may be precluded
from deciding an important point of law by an order passed by a Single
Judge of the High Court.
Thereafter the trial proceeded. The evidence was recorded/taken.
G
The respondent Ms. Navjot Sandhu .filed Criminal Writ Petition No 774
of 2002. On 22nd July, 2002 the following order was passed therein:
"Learned counsel for the petitioner wishes to withdraw this petition
in order to take appropriate action in accordance with law. Leave as
prayed is granted. H
138 SUPREME COURT REPORTS [2003) SUPP. I S.C.R.
A Crl. W. 774/2002 and Crl. M. 588/2002 are accordingly disposed of."
Respondent Ms. Navjot Sandhu then filed Criminal Misc. No 2331 of
2002 under Section 482 Criminal Procedure Code read with Articles 226 and
227 of the Constitution of India seeking quashing of the order dated 11th
July, 2002 of the Special Judge. Respondent Syed Abdul Rehman Geelani
B filed Criminal Appeal the title of which reads as under:
"IN THE HIGH COURT OF DELHI AT NEW DELHI
Criminal Appeal No ................... of 2002
In the matter of :
C Syed Abdul Rehman Geelani
S/o Syed Abdul Wali Geelani,
Rio 535, llnd Floor,
Mukherje Nagar, Delhi ..
Appellant/accused
D
Versus
State (NCT of Delhi)
IN THE MATTER OF:-FIR
No. 417/02 UIS 3/4/5 POTA
E 2002 R/w 120-B/121/12 !A/
122 IPC, AND SEC 3/5 of
Explosive Substances Act PS:
Parliament Street
Pending before the court of Sh. S. N.Dhingra,
F Special Judge (POTA), New Delhi Next
Date of Hearing:- 25-7-2002
APPEAL, U/S 34 OF THE PREVENTION OF TERRORISM ACT,
2002 READ 'WITH SECTION 482 OF THE CODE OF CRIMINAL
PROCEDURE AGAINST THE ORDER DATED 11-7-2002,
G WHEREBY THE APPLICATION MADE ON BEHALF OF
APPELLANT/ACCUSED FOR ESCHEWING/EXCLUSION OF
EVIDENCE RELATING TO ALLEGED INTERCEPTED
COMMUNICATION WAS DISMISSED."
H The affidavit in support of the Appeal, inter-alia, reads as follows:
STA TE THROUGH SPECIAL CELL v. NA VJOT SANDllU@ AFSHAN GURU [VARIA VA, l] J39
"2. That the accompanying memorandum of appeal has been drafted A
by the counsel under my instructions. l have read and understood the
contents thereof and the same are true and correct to my knowledge."
Thus Respondent Geelani had not invoked Article 227 of the Constitution of
India. He had filed an appeal under Section 34, POTA against the order dated
I Ith July, 2002. As Section 482 Criminal Procedure Code was invoked the B
petition was numbered as a Criminal Misc. Petition and was placed before a
single Judge of the High Court. It nevertheless rema:neC! an Appeal under
Section 34, POT A.
It would be appropriate to set out, at this stage, Section 34, POTA. It
reads as follows: c
"34. ( l) Notwithstanding anything contained in the Code, an appeal
shall lie from any judgment, sentence or order, not being an
interlocutory order, of a Special Court to the High Court both on
facts and on law.
D
Explanation.- For the purposes of this section, "High Court" means
a High Court within whose jurisdiction, a Special Court which passed
the judgment, sentence or order, is situated.
(2) Every appeal under sub-section (I) shall be heard by a bench
of two Judges of the High Court. E
(3) Except as aforesaid, no appeal or revision shall lie to any
court from any judgment, sentence or order including an interlocutory
order of a Special Court.
(4) Notwithstanding anythin; contained in sub-section (3) of F
section 378 of the Code, an appeal shall lie to the High Court against
an ordeF of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a
period of thirty days from the date of the judgment, sentence or order
appealed from: G
Provided that the High Court may entertain an appeal after the
expiry of the said period of thirty days if it is satisfied that the
appellant had sufficient cause for not preferring the appeal within the
period of thirty days."
H
140 SUPREME COURT REPORTS [2003) SUPP: I S.C.R.
A A plain reading of Section 34 shows that no appeal would lie against
an interlocutory order. It could not be denied that the order dated I Ith July,
2002 was an interlocutory order. It must also be noted that the Appeal must
be heard by a bench of two judges of the High Court.
It must be mentioned that Respondent Shaukat Hussain had also filed
B a Criminal Misc Application No. 2484 of 2002 praying that the order dated
I Ith July, 2002 be quashed.
By the impugned judgment the High Court has disposed of all the
above Petitions/Applications. The High Court has not mentioned whether it
was exercising its power of superintendence under Article 227 of the
C Constitution oflndia or its inherent power under Section 482 of the Criminal
Procedure Code. The question thus arises as to what power or jurisdiction the
High Court has exercised. The only source of power which might have been
used/invoked was either under Article 227 of the Constitution of India or the
inherent power under Section 482 Criminal Procedure Code. The further
D question which then arises is whether, on the facts of this case, the High
Court could or should have exercised power under Article 227 or jurisdiction
under Section 482.
For a consideration of these questions it is first necessary to note the
stage at which the trial was when the impugned judgment was delivered. This
E is best indicated by reproducing herein a relevant paragraph from the impugned
judgment. The paragraph reads as follows:
"I am told that in the meantime the prosecution evidence has
been completed and the trial of the case is at its fag end. Therefore,
it will be appropriate that this court restricts the decision on the legal
F points which are absolutely necessary to decide leaving all other
objections raised in these petitions to be canvassed before the trial
court for consideration at the time of the final decision."
As is being set out hereafter there is no legal point which was "absolutely
G necessary" to be decided at that stage.
Mr Shanti Bhushan submitted that the High Court had exercised power
under Article 227 of the Constitution of India. As stated above the High
Court does not state that it is exercising power of superintendence under
Article 227 of the Constitution of India. To be remembered that Respondent
H Geelani had not invoked Article 227 of the Constitution of India. Thus Dr.
STA TE THROUGH SPECIAL CELL v. NAVJOTSANDHU@AFSHAN GURU [VARIAVA ,J} J4 J
Dhavan submitted that the order was passed in exercise of inherent jurisdiction A
under Section 482 of the Criminal Procedure Code. The impugned order is
a common order passed in all the Applications/Petitions. It therefore follows
that the impugned order cannot be in exercise of the power of superintendence
under Article 227 of the Constitution of India. For this reason it is difficult
to accept the submission of Mr Shanti Bhushan that the order is under Article B
227 of the Constitution of India.
We however are not required to go into the controversy whether the
impugned order is under Article 227 of the Constitution of India or passed
in exercise of inherent jurisdiction under Section 482 of the Criminal Procedure
Code. It appears to us that, on facts of this case, neither the power under C
Article 227 of the Constitution of India nor inherent jurisdiction under Section
482 of the Criminal Procedure Code should have been exercised, even if such
powers were available.
The law on the subject is clear. It is now necessary to look at the law.
D
In the case of State of Gujarat v. V.S. Vaghela and Ors. reported in
[1968] 3 SCR 869 it is held that Article 227 of the Constitution of India gives
the High Court the power of superintendence over all Courts and Tribunals
throughout the territories in relation to which it exercises jurisdiction. It is
held that this jurisdiction cannot be limited or fettered by any act of the State
Legislature. It is held that the supervisory jurisdiction extends to keeping the E
subordinate Tribunal's within the limits of the authority and to seeing that
they obey the law.
In the case of Madhu Limaye v. State of Maharashtra reported in AIR
(I 978) SC 47 the question was whether the High Court can exercise its
inherent power under Section 482 of the Criminal Procedure Code to quash F
an interlocutory order. In this judgment the provision of Section 397 (2) of
the Criminal Procedure Code, which barred a revision against an interlocutory
order, were also considered. It was held that the purpose of putting a bar on
the power of revision in relation to any interlocutory order passed in an
appeal, inquiry, trial or other proceeding is to bring about expeditious disposal G
of cases finally. It was held that more often than not the revisional power of
the High Court was resorted to in relation to interlocutory orders for delaying
the final disposal of the proceeding it was held that the Legislature in its
wisdom decided to check this delay by introducing Section 397 (2). It was
heid that Section 482 provided that "Nothing in the Code" shall be deemed
to limit or affect the inherent powers of the High Court. It was held that the H
142 SUPREME COURT REPORTS 120031 SUPP. I S.C.R.
A term "Nothing in the Code" would include Section 397 (2). It was held that
Section 397 (2) could not prevent the High Court from exercising its inherent
powers under Section 482. It was held that in exercising power under Section
482 the High Court must adhere to the following principles viz (a) that the
power is not to be resorted to if there is a specific provision in the Code for
B redress of grievance of the aggrieved party; (b) that it should be exercised
very sparingly to prevent abuse of process of any Court or otherwise to
secure the ends of justice; (c) that it should not be exercised as against the
express bar of law engrafted in any other provision of the Code.
In the case of Jagir Singh v. Ranbir Singh and Anr., reported in (1979]
C I SCC 560 it is held as follows:
"6. If the revision application to the High Court could noi be
r.rnintained under the provisions of the Criminal Procedure Code,
could the order of the High Court be sustained under Article 227 of
the Constitution, as now suggested by the respondent? In the first
D place the High Court did not purport to exercise its power of
superintendence under Article 227. The power under Article 227 is a
discretionary power and it is difficult to attribute to the order of the
High Court such a source of power when the High Court itself did
not, in terms, purport to exercise any such discretionary power. In the
second place the power of judicial superintendence under Article 227
E could only be exercised sparingly, to keep subordinate Courts and
Tribunals within the bounds of their authority and not to correct mere
errors. Where the statute banned the exercise of revisional powers by
the High Court, it would indeed require very exceptional circumstances
to warrant interference under Article 227 of the Constitution since the
p power of superintendence was not meant to circumvent statutory law."
In the case of Krishnan versus Krishnaveni reported in [I 997] 4 SCC
24I it is held that even though a second revision to the High Court is prohibited
by Section 397(3) of the Criminal Procedure Code, the inherent power is still
available under Section 482 of the Criminal Procedure Code. It was held that
G the object of criminal trial is to render public justice, to punish the criminal
and to see that the trial is concluded expeditiously before the memory of the
witness fades out. It is held that :he recent trend is to delay the trial and
threaten the witnesses or to win even the witnesses by promise or inducement.
It is held that these malpractices need to be curbed and that public justice can
be ensured only if trial is allowed to be conducted expeditiously. It is held
H that even though the power under Section 482 is very wide it must be exercised
STATE THROUGH SPECIAL CELL r. NA VJOT SANDHU @AFSHAN GURU [VARIA VA, !.] 14 3
sparingly and cautiously and only to prevent abuse of process or miscarriage A
of justice.
In the case of Pepsi foods Ltd. and Anr. v. Special .Judicial Magistrates
and Ors., reported in [I 998] 5 SCC 749 it ha> been held as follows:
"2 I. The questions which arise for consideration are if in the B
circumstances of the case, the appellants rightly approached the
High Court under Articles 226 and 227 of the Constitution and
if so, was the High Court justified in refusing to grant any relief
to the appellants because of the view which it took of the law
and the facts of the case. We have, thus, to examine the power
of the High Court under Articles 226 and 227 of the Constitution C
and Section 482 of the Code.
22. It is settled that the High Court can exercise its power of judicial
review in criminal matters. In State of Haryana v. Bhajan Lal
this Court examined the extraordinary power under Article 226
of the Constitution and also the inherent powers under Section D
482 of the Code which it said could be exercised by the High
Court either to prevent abuse of the process of any court or
otherwise to secure the ends of justice. While laying down certain
guidelines where the court will exercise jurisdiction under these
provisions, it was also stated that these guidelines could not be E
inflexible or laying rigid formulae to be followed by the courts.
Exercise of such power would depend upon the facts and
circumstances of each case but with the sole purpose to prevent
abuse of the process of any court or otherwise to secure the ends
of justice. One of such guidelines is where the allegations made
in the first information report or the complaint, even if they are F
taken at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case against the
accused. Under Article 227 the power of superintendence by the
High Court is not only of administrative nature but is also of
judicial nature. This article confers vast powers on the High G
Court to prevent the abuse of the process of law by the inferior
courts and to see that the stream of administration of justice
remains clean and pure. The power conferred on the High Court
under Article 226 and 227 of the Constitution and under Section
482 of the Code have no limits but more the power due care and
caution is to be exercised while invoking these powers. When H
144 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A the exercise of powers could be under Article 227 or Section 482
of the Code it may not always be necessary to invoke the
provisions of Article 226. Some of the decisions of this Court
laying down principles for the exercise of powers by the High
Court under Articles 226 and 227 may be referred to.
B 23. In Waryam Singh v. Amarnath, AIR (1954) SC 215) this Court
considered the scope of Article 227. It was held that the High
Court has not only administrative superintendence over the
subordinate courts and tribunals but it has also the power of
judicial superintendence. The Court approved the decision of the
Calcutta High Court in Dalmia Jain Airways ltd. v. Sukumar
c Mukherjee, AIR (1951) Cal 193 where the High Court said that
the power of superintendence conferred by Article 227 was lo be
exercised most sparingly and only in appropriate cases in order
to keep the subordinate courts within the bounds of their authority
and not for correcting their mere errors. The Court said that it
D was, therefore, a case which called for an interference by the
Court of the Judicial Commissioner and it acted quite properly
in doing so.
24. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta, [1975) I
SCC 858 this Court again reaffirmed that the power of
E superintendence of the High Court under Article 227 being
extraordinary was to be exercised most sparingly and only in
appropriate cases. It said that the High Court could not, while
exercising jurisdiction under Article 227, interfere with the
findings of fact recorded by the subordinate court or tribunal
functioned within the limits of its authority and that it could not
F correct mere errors of fact by examining the evidence or
reappreciating it. The Court further said that the jurisdiction
under Article 227 could not be exercised, "as the cloak of an
appeal in disguise. It does not lie in order to bring up an order
or decision for rehearing of the issues raised in the proceedings".
The Court referred with approval the dictum of Morris, L.J. in
G
R. v. Northumberland Compensation Appeal Tribunal, [1952) I
All ER 122.
25. Jn Nagendra Nath Bora v. Commr. Of Hills Divisions, AIR 1958
SC 398 this Court observed as under:
H 26. "It is thus, clear that the powers of judicial interference under
STATETHROUGHSPECIALCELL1•. NAVJOTSANDHU@AFSHANGURU [VARIAVA ,J] 145
Article 227 of the Constitution with orders of judicial or quasi- A
judicial nature, are not greater than the powers under Article 226
of the Constitution. Under Article 226, the power of interference
may extend to quashing an impugned order on the ground of a
mistake apparent on the face of the record. But under Article 227
of the Constitution, the power of interference is limited to seeing B
that the tribunal functions within the limits of its authority. "
(emphasis supplied)
In the case of Industrial Credit and Investment Corporation of India
ltd, v. Grapco Industries Ltd and Ors., reported in [ 1999] 4 SCC 710 it has
been held that there is no bar on the High Court examining merits of a case C
in exercise of its jurisdiction under Article 227 of the Constitution of India
ifthe circumstances so require. It has been held that, under Article 227 of the
Constitution of India, the High Court can even interfere with interim orders
of Courts and Tribunal's if the order is made without jurisdiction.
In the case of Roy V. D. v. State of Kera/a, reported in [2000] 8 SCC D
590 the question was whether arrest and search by an officer not empowered
or authorised and therefore in violation of sections 41 and 42 of the Narcotics
Drugs and Psychotropic Substances Act, 1985 was per se illegal and would
vitiate trial. This Court held that when Criminal proceedings are initiated on
the basis of material collected on search and arrest which are per se illegal, E
power under Section 482 can be exercised to quash the proceedings as
continuance of such proceedings would amount to abuse of the process of the
Court.
In the case of Puran v. Rambilas and Anr., reported in [2001] 6 SCC
338 this Court has held that the High Court's inherent jurisdiction under F
Section 482 is not affected by the provisions of Section 397 (3) of the Code
of Criminal Procedure. It is held that the High Court can interfere even if the
order is an interlocutory order. It is held that for securing the end of justice
the High Court can interfere with an order which causes miscarriage of
justice or is palpably illegal or is unjustified. It was also noticed that the High
Court may refuse to exercise jurisdiction, under Section 482, on the basis of G
self-imposed restriction.
In the case of Satya Narayanan Sharma v. Stale of Rajasthan, reported
in (200 l] 8 SCC 607 it has been held that Section 482 of the Criminal
Procedure Code starts with the words "Nothing in the Code". It is held that H
146 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A this inherent power can be exercised even if there is a contrary provision in
the Criminal Procedure Code. It is held that 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". It
has been held that if any other enactment contains a specific bar then inherent
B jurisdiction cannot be exercised to get over that bar.
In the case of Ouseph Mathai and Ors. v. M Abdul Khadir, reported
in (2002] ! SCC 3 I 9 it has been held as follows:
"In Waryam Singh v. Amarnath, AIR (1954) SC 215 this Court held
that power of superintendence conferred by Article 227 is to be
c exercised more sparingly and only in appropriate cases in order to
keep the subordinate courts within the bounds of their authority and
not for correcting mere errors. This position of law was reiterated in
Nagendra Nath Bora v. Commr. Of Hills Division and Appeals, AIR
(1958) SC 398. In Babhutmal Raichand Oswal v. laxmibai R. Tarte,
D (1975] I SCC 858 this Court held that the High Court could not, in
the guise of exercising its jurisdiction under Article 227 convert itself
into a court of appeal when the legislature has not conferred a right
of appeal. After referring to the judgment of Lord Denning in R. v.
Northumberland Compensation Appeal Tribunal, ex p. Shaw (All ER
at p. 128) this Court in Chandavarkar Sita Raina Rao v. Asha/a/a S.
E Guram, held: SCC p. 460, para 20.
"20. It is true that in exercise of jurisdiction under Article 227
of the Constitution the High Court could go into the question of
facts or look into the evidence if justice so requires it, if there is
any misdirection in law or a view of fact taken in the teeth of
F preponderance of evidence. But the High Court should decline to
exercise its jurisdiction under Articles 226 and 227 of the
Constitution to look into the fact in the absence of clear and cut
down reasons where the question depends upon the appreciation
of evidence. The High Court also should not interfere with a
G finding within the jurisdiction of the inferior tribunal except where
the findings are perverse and not based on any material evidence
or it resulted in manifest injustice (see Trimbak Gangadhar Telang
v. Ramchandra Ganesh Bhide, (1977] 2 SCC 437. Except to the
limited extent indicated above, the High Court has no jurisdiction.
In our opinion therefore, in the facts and circumstances of this
H
STATETHROUGHSPECIALCELLv. NAVJOTSANDHU@AFSHANGURU[VARIAVA ,J.] J47
case on the question that the High Court has sought to interfere, A
it is manifest that the High Court has gone into questions which
depended upon appreciation of evidence and indeed the very fact
that the learned trial Judge came to one conclusion and the
Appellate Bench came to another conclusion is indication of the
position that two views were possible in this case. In preferring B
one view to another of factual appreciation of evidence, the High
Court transgressed its limits of jurisdiction under Article 227 of
the Constitution. On the first point, therefore, the High Court
was in error."
6. In laxmikant Revchand Bhojwani v. Pratapsing Mohansingh
Pardeshi, [1995] 6 SCC 576 this Court held that the High Court C
was not justified in extending its jurisdiction under Article 227
of the Constitution of India in a dispute regarding eviction of
tenant under the Rent Control Act, a special legislation governing
landlord-tenant relationship. To the same effect is the judgment
in Koyilerian Janaki v. Rent Controller (Munsiff), [2000] 9 sec D
406].
7. In the present appeals, the High Court appears to have assumed
the jurisdiction under Article 227 of the Constitution without
referring to the facts of the case warranting the exercise of .such
a jurisdiction. Extraordinary power appear to have been exercised E
in a routine manner as if the power under Article 227 of the
Constitution was the extension of powers conferred upon a litigant
under a specified statute. Such an approach and interpretation is
unwarranted. By adopting such an approach some High courts
have assumed jurisdiction even in matters to which the legislature
has assigned finality under the specified statutes. Liberal F
assumption of powers without reference to the facts of the case
and the corresponding hardship to be suffered by a litigant has
unnecessarily burdened the courts resulting in accumulation of
arrears adversely affecting the attention of the court to the
deserving cases pending before it." G
(emphasis supplied)
In the case of State of Karnataka v. M. Devendrappa and Anr. reported
in [2002] 3 SCC 89, this Court has held that the High Court has inherent
power under Section 482 Criminal Procedure Code to quash proceedings. It
is held that the power should be exercised to stifle a legitimate prosecution. H
148 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A It is held that the High Court should not assume the role of a trial Court and
embark upon an enquiry. It is held that the power should be exercised
sparingly, with caution and circumspection.
Thus the law is that Article 227 of the Constitution of India gives the
High Court the power of superintendence over all Courts and Tribunals
B throughout the territories in relation to which it exercises jurisdiction. This
jurisdiction cannot be limited or fettered by any act of the State Legislature.
Th.:: supervisory jurisdiction extends to keeping the subordinate Tribunal's
within the limits of their authority and to seeing that they obey the law. The
powers under Article 227 are wide and can be used, to meet the ends of
C justice. They can be used to interfere even with an interlocutory order. However
the power under Article 227 is a discretionary power and it is difficult to
attribute to an order of the High Court, such a source of power, when the
High Court itself does not in terms purport to exercise any such discretionary
power. It is settled law that this power of judicial superintendence, under
Article 227, must be exercised sparingly and only to keep subordinate Courts
D and Tribunal's within the bounds of their authority and not to correct mere
errors. Further where the statute bans the exercise of revisional powers it
would require very exceptional circumstances to warrant interference under
Article 227 of the Constitution of India since the power of superintendence
was not meant to circumvent statutory law. It is settled law that the jurisdiction
E under Article 227 could not be exercised "as the cloak of an appeal in disguise".
Section 482 of the Criminal Procedure Code starts with the words
"Nothing in this Code". Thus the inherent jurisdiction of the High Court
under Section 482 of the Criminal Procedure Code can be exercised even
when there is a bar under Section 397 or some other provisions of the Criminal
p Procedure Code. However as is set out in Satya Narayanan Sharma 's case
(supra) this power cannot be exercised if there is a statutory bar in some
other enactment. If the order assailed is purely of an interlocutory character,
which could be corrected in exercise of revisional powers or appellate powers
the High Court must refuse to exercise its inherent power. The inherent
power is to be used only in cases where there is an abuse of the process of
G the Court or where interference is absolutely necessary for securing the ends
of justice. The inherent power must be exercised very sparingly as cases
which require interference would be few and far between. The most common
case where inherent jurisdiction is generally exercised is where criminal
proceedings are required to be quashed because they are initiated illegally,
H vexatiously or without jurisdiction. Most of the cases set out herein above
STATE THROUGH SPECIAL CELL 1·. NAVJOT SANDHU@ AFSHAN GURU [VARIA VA.JI J 49
fall in this category. It must be remembered that the inherent power is not to A
be resorted to if there is a specific provision in the Code or any other enactmem
for redress of the grievance of the aggrieved party. This power should not be
exercised against an express bar of law engrafted in any other provision of
the Criminal Procedure Code. This power cannot be exercised as against an
express bar in some other enactment.
B
This being the law let us now see whether the High Court was right in
interfering at this stage. As has been set out herein above, by the time the
High Court delivered the impugned judgment the evidence, objected to, had
already been recorded. The order dated I I th July 2002 was clearly an
interlocutory order. Section 34, POT A clearly provides that no appeal or C
revision would lie to any Court from an order which was an interlocutory
order. As stated above the impugned order. is a common order in all
Applications/Petitions. Respondent Geelani had filed an Appeal under Section
34, POTA. Merely because he chose to invoke Section 482 of the Criminal
Procedure Code did not mean that his application was not an Appeal. Clearly
the High Court could not have interfered at this stage. The High Court has D
not indicated that it was exercising power of superintendence under Article
227. Such a power being a discretionary power it is difficult to attribute to
the order of the High Court such a source of power. Even otherwise in
respect of Respondent Geelani power under Article 227 could not have been
invoked or exercised. E
On facts of this case we find that the effect of the impugned order is
that the statutory provision of Section 34, POTA have been circumvented.
The impugned order has also led to the very peculiar situation set out
hereinabove. To repeat under Section 34, POTA the appeal is to be heard by
a bench of two judges of the High Court. We are informed that the appeal F
is being heard by a bench of two Judges of the High Court. An appeal under
Section 34, POTA is both on facts and on law. The correctness of the
interlocutory order could, by virtue of Section 34, POT A, have been challenged
only in the appeal filed against the final judgment. The respondents by filing
the Application/Petitions and the learned Judge having chosen to entertain G
them, has resulted in a party being deprived of an opportunity of canvassing
an important point of law in the statutory Appeal before the division bench.
The peculiar situation is that the division bench, hearing a statutory appeal
(both on law and facts) is bound/constrained by an order of a single Judge.
The order of the Special Judge is based on an interpretation of the various
provisions of POTA. The Special Judge undoubtedly had authority and H
150 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A jurisdiction to interpret the various provisions of POT A and other laws. The
Special Judge had jurisdiction to decide whether the evidence collected by
interception could be used for proving a charge under POTA. The Special
Judge was acting within the limits of his authority in passing the impugned
order. We are told that before single Judge of the High Court the arguments,
B by both sides, went on for approximately two weeks. Even before us
considerable time was taken. This is being mentioned only to indicate that
the question is not so clear. It requires interpretation of various provisions of
POTA. Neither the power under Article 227 nor the power under Section 482
enabled the High Court to correct an error in interpretation even if the High
Court felt that the order dated I Ith July 2002 was erroneous. Even if the
C High Court did not agree with the correctness of that order, the High Court
should have refused to interfere as the order could be corrected in the appeal
under Section 34, POTA. To be remembered that by the time the impugned
order was passed the evidence had already been recorded. Thus there was no
abuse of process of Court which could now be prevented. Even the end of
D justice did not require interference at this stage. In fact the ends of justice
required that the statutory intent of Section 34, POTA be given effect to. The
High Court should have directed the Respondents to raise all such points in
the statutory appeal, if any required to be filed, under Section 34, POTA. If
in the appeal the division bench felt that the order was not correct or that it
was erroneous it would set aside the order, eschew the evidence and not take
E the same into consideration. Thus no prejudice was being caused or would
be caused to the respondents. Their rights were fully protected as per the
provisions of POTA. At this stage there was no miscarriage of justice or
palpable illegality which required immediate interference. We are therefore
of the opinion that even if powers under Section 227 or under Section 482
F could have been exercised this was a case where the High Court should not
have exercised those powers.
It was submitted that the prosecution had not raised the point of
maintainability of the Applications/Petitions before the High Court. It was
submitted that the prosecution chose to argue on merits before the High
G Court and therefore they should now not be permitted to raise these contentions
before this Court. It does appear that the question of maintainability was not
argued before the High Court. However we are informed that Section 34,
POTA was brought to the notice of the High Court. The High Court was also
aware that, by the time it heard the matter, the evidence had already been
H recorded and the trial had reached the final stage. On the above-mentioned
STATE THROUGH SPECIALCELLv. NAVJOTSANDHU@AFSHANGURU [VARIAVA,J] 151
settled law the High Court should have on its own refused to interfere and A
should have left the parties to agitate their contentions in the appeal to be
filed under Section 34, POT A.
It must be mentioned that before us also arguments on merits were
made. At one stage this Court did consider giving a decision on merits ..
However on a proper consideration of the matter it appears to us that to give B
a decision on merits would be to perpetrate the mistake committed by the
High Court. It would result in depriving one or the other party of a valuable
rights of agitating the point in the statutory appeals, which are at present
going on before the division bench of the High Court. We therefore refrain
from expressing any opinion on merits. We clarify that all parties will be free C
to urge all questions in the pending appeals before the division bench of the
High Court.
In the above view we allow the appeals and set aside the impugned
order. There will be no order as to cost.
D
S.K.S. Appeals allowed.
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