Delhi High CourtDinesh Yadav vs Cbi on 15 September, 2010Author:Shiv Narayan DhingraBench:Shiv Narayan Dhingra* IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                      Date of Reserve: 8th September, 2010
                                                       Date of Order: 15th September, 2010
+ W.P.(Crl.) No. 363/2010
%                                                                            15.09.2010

       Dinesh Yadav                                                    ... Petitioner
                              Through: Mr. Anurag Jain, Advocate


               Versus

       CBI                                                 ... Respondent
                              Through: Mr. Vikas Pahwa, Standing Counsel for CBI
                              with Mr. Suchit Chandra, Advocate



JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT1.             The above petition and many more petitions have been filed by litigants
against the orders of Special Judge framing charge for the offences underPrevention of
Corruption Actcoupled with or without charges for offences underIPC.2.             Some of the petitions were filed originally under Article 226/227 of the
Constitution of India, some were filed as Revision Petitions and were converted as Writ
Petitions at the request of the parties, and some Writs were filed after dismissal of
Revision Petition.3.InDharambir Khattar v. Central Bureau of Investigation, 159 (2009)
DLT 636, the Bench of Dr. S. Muralidhar J. after considering the provisions ofSection
19(3)(c)of Prevention of Corruption Act and after considering the legal position and after
scanning through various judgments of Supreme Court had observed as under:"To conclude this part of the discussion it is held that in the context ofSection 19 (3) (c)the words "no Court shall exercise the powers of revision
       in relation to any interlocutory order passed in any inquiry, trial..." includes
       an interlocutory order in the form of an order on charge or an order framingW.P.(Crl.) No. 363/2010                                                      Page 1 of 11charge. On a collective reading of the decisions in V.C.Shukla and Satya
       Narayan Sharma, it is held that in terms ofSection 19 (3) (c)PCA, no
       revision petition would be maintainable in the High Court against order on
       charge or an order framing charge passed by the Special Court."4.            In para 24, the Bench observed that a petition under Section 482 Cr. P.C.
and underArticle 227of the Constitution of India would also be not maintainable

               "In the present petitions it was urged that notwithstanding the
       above legal position, the powers of this Court underArticle 226and227of
       the Constitution andSection 482CrPC remained untramelled. In other
       words, it was submitted that in appropriate cases, the said provisions could
       be invoked notwithstanding the statutory bar to challenge an order on
       revision passed by the Special Court.In the considered view of this Court,
       this argument although attractive also does not survive after the
       authoritative pronouncement of the Supreme Court inState v. Navjot
       Sandhu(supra). There a similar argument raised in the context of Section
       34 POTA was negatived. An order by the Special Judge POTA regarding
       call interception was challenged in the High Court by a petition underArticles 226and227of the Constitution read withSection 482CrPC. The
       Supreme Court held that the High Court ought not to have entertained the
       petition at all.It noticed the judgments in Madhu Limaye v. State of
       Maharasthra andSatya Narayan Sharma v. State of Rajasthan."5.In subsequent decision inR.C. Sabharwal Vs. Central Bureau of
Investigation, 166 (2010) DLT 362, the Bench of V.K. Jain J. re-affirmed the legal
position regarding the order on charge passed by Special Judge of CBI being an
interlocutory order and observed as under:"For the reasons given in the preceding paragraphs, I am in full agreement
       with the view taken in Dharambir Khattar‟s case as regards the
       interpretation of the expression „interlocutory order‟ used inSection
       19(3)(c)of Prevention of Corruption Act, 1988."6.            However, Justice Jain's Bench further observed that it was in full
agreement with the view taken in the case of Dharambir Khattar that inherent power of the
Court cannot be used to interfere with an order on charge or directing the framing of
charge in case attracting the provisions ofPrevention of Corruption Act, meaning thereby
that a petition under Section 482 Cr. P.C. would not be maintainable before High Court
assailing an order on charge, which was also the view of the previous bench. However,
the bench of Justice Jain took contrary view to the view of Justice Muralidhar's bench
regarding maintainability of a petition underArticle 227of Constitution of India and
observed as under:"40.In the case ofDharambir Khattar(supra), this Court also observed that
       in view of the decision of the Hon'ble Supreme Court in the case ofNayjot
       Sandhu(supra), the power of the Court underArticle 226and227of theW.P.(Crl.) No. 363/2010                                                   Page 2 of 11Constitution cannot be used to interfere with an order of this nature.I have
      carefully gone through the decision of the Hon'ble Supreme Court in the
      case ofNayjot Sandhu(supra) and I find that in this case, the Hon'ble
      Supreme Court did not rule out invoking of writ jurisdiction of the High
      Court, in appropriate cases, even in respect of interlocutory orders. The
      Hon'ble Supreme Court noticed that the order of this Court challenged
      before it did not indicate as to whether the Court was exercising its power
      of superintendence underArticle 226of the Constitution or its inherent
      powers underSection 482of the Code of Criminal Procedure. It was noted
      that the respondent Geelani had not invokedArticle 227of the Constitution
      and it was contended by Dr. Dhawan that the order was passed in exercise
      of inherent jurisdiction underSection 482of the Code of Criminal
      Procedure. The Hon'ble Supreme Court found it difficult to accept the
      submission of Mr. Shanti Bhushan that the order of this Court was underArticle 227of the Constitution. Thus, Court felt, on the facts of the case
      before it, that neither the power underArticle 227of the Constitution nor
      inherent jurisdiction underSection 482of the Code of Criminal Procedure
      should have been exercised, even if such powers were available. In para
      28 of the judgment, the Hon'ble Supreme Court held as under:"Thus the law is thatArticle 227of 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 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 underArticle 227are wide and can be used, to
              meet the ends of justice. They can be used to interfere even
              with an interlocutory order...It is settled law that this power of judicial superintendence,
              underArticle 227, must be exercised sparingly and only to keep
              subordinate Courts 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 underArticle 227of the Constitution of India since the power of
              superintendence was not meant to circumvent statutory law. It
              is settled law that the jurisdiction underArticle 227could not be
              exercised 'as the cloak of an appeal in disguise'."41. Thus, in the case ofNayjot Sandhu(supra) the Hon'ble Supreme Court
      expressly recognized the powers of the High Court to interfere even with
      an interlocutory order in exercise of jurisdiction underArticle 227of the
      Constitution though it cautioned that such powers should be exercised
      sparingly and only with a view to keep subordinate Courts within the limits
      of their authority and only in very exception circumstances, warranting
      interference in exercise of these extraordinary powers.Therefore, the
      judgment of the Hon'ble Supreme Court in the case ofNayjot
      Sandhu(supra) does not rule out invoking and exercise of constitutional
      powers of this Court in appropriate cases."W.P.(Crl.) No. 363/2010                                                     Page 3 of 117.             Ultimately, the bench of Justice Jain was of the view that the constitutional
remedy underArticle 226, 227of the Constitution cannot be shut out on the ground that
the petitions underArticle 226, 227of the Constitution, if entertained against interlocutory
orders on framing charge, the revision petitions challenging such order may be re-filed as
Writ Petitions. According to R.C. Sabharwal‟s case (Supra), the remedy does not lie in
denying writ jurisdiction of the High Court, but, lies in exercising a self restrain by the High
Court in exercising jurisdiction underArticle 226, 227of the Constitution in accordance
with authoritative pronouncements of the Supreme Court, sparingly and in exceptional
circumstances.8.             This Court is of the view that the very purpose of the statutory provisions
enacted by legislature underSection 19(3)(c)of the Prevention of Corruption Act stand
defeated if the petitions underArticle 227are entertained against the order on charge.9.             In R.C. Sabharwal‟s case the Single Bench gave the reasons as to why the
Legislature was forced to enactSection 19(3) (c)of Prevention of Corruption Act and why
expression 'interlocutory order' needs to be interpreted differently from the interpretation
given to it in the context ofSection 397of CPC in following manner:12. One main object behind replacingPrevention of Corruption Act, 1947by a new Act in the year 1988 was to expedite the proceedings initiated
       underPrevention of Corruption Actby providing for day to day trial of
       cases and incorporating prohibitory provisions with regard to grant of stay
       and exercise of powers of revision on interlocutory order. It has been
       experienced that those who are arraigned for trial under the provisions of
       Prevention of Corruption Act, try to delay the trial, using one or the other
       method and availing all possible remedies available to them in law,
       presumably in the hope that with the passage of time, the evidence that
       can be used against them during trial may not remain available, if they are
       able to delay the progress of the case, to the extent they can possibly do.Not only final or intermediate orders even interlocutory orders used to be
       and are still challenged despite the accused knowing it fully well that such
       orders cannot be subject matter of challenge in revisional jurisdiction.
       Though there is an absolute bar on stay of proceedings, it is not
       uncommon for the accused in such cases to seek stay of proceedings on
       the ground that they are likely to be seriously prejudiced and failure of
       justice is likely to be occasioned, unless the proceedings are stayed. Even
       if the Court is not inclined to stay the proceedings, considering the
       embargo placed bySection 19(3)(b)(c), the accused persons insist upon
       the record of the trial being summoned, contending that examination of the
       record would be necessary for the purpose of deciding the petition filed by
       them.Section 22(d)of Prevention of Corruption Act, 1988 provides that
       where the powers under Section 397(1) of the Code are exercised, the
       Court shall not ordinarily call for the record of the proceedings without
       giving the other party an opportunity of showing cause why the record
       should not be called for, or if the Court is satisfied that examination of the
       record of the proceedings may be made from the certified copies. But itW.P.(Crl.) No. 363/2010                                                       Page 4 of 11has been experienced that the record is requisitioned in many cases,
      entertaining the submission of the petitioners to the effect that scrutiny of
      the original record would be necessary for the purpose of proper and
      complete appreciation of the controversy involved in the case. As a result,
      even if there is no stay of proceedings, the trial comes to be stalled on
      account of the record having been requisitioned by the Superior Court. In
      fact, Trial Court Record has actually been summoned in Crl. Rev. P. No.
      293/2006, 352/2006 and 294/2006 being disposed of this order, which
      shows that despite legislative restriction, the record of Trial Court
      continues to be summoned by the Superior Courts. Ordinarily, the accused
      in such cases command vast material resources and are in a position to
      have access to the best legal assistance for the purpose of their defence. If
      an order framing charge or directing framing of charge is not held to be an
      interlocutory order, the inevitable result would be a flood of Revision
      Petitions challenging such orders, coupled with request for either staying
      the proceedings in exercise of inherent powers of the Court or seeking
      summoning of the Trial Court record, thereby staying the trial for all
      practical purposes. This is yet another reason why the expression
      'interlocutory order' used inSection 19(3)(c)of the Prevention of
      Corruption Act needs to be interpreted differently from the interpretation
      given to it in the context ofSection 397of the Code of Criminal Procedure.13. With a view to expedite the trial of cases, involving offences underPrevention of Corruption Act1988, the Legislature has made a number of
      changes in the regular procedure prescribed in theCode of Criminal
      Procedurefor trial of criminal cases. Special Courts have been constituted
      for trial of such cases. The Special Judges are required, as far as
      practicable, to hold the trial on day to day basis. A specific provision has
      been made placing embargo upon stay of proceedings underPrevention of
      Corruption Actnot only on the ground of any error, omission or irregularity
      in the sanction unless such error, omission or irregularity has resulted in a
      failure of justice, but also on any other ground. Section 243(1) of the Code
      has been amended so as to require the accused in a corruption case, to
      give in writing, a list of the persons to whom he proposes to examine as his
      witnesses and the documents on which he proposes to rely. Another
      provision made inSection 22(b)of the Act provides that the proceedings
      shall not be adjourned or postponed merely on the ground that an
      application under Section 397 has been made by a party to the
      proceedings. This provision was necessitated since it was experienced
      that after filing a petition underSection 397of the Code of Criminal
      Procedure, the accused would seek adjournment or postponement of
      proceedings on the ground that the Revision Petition filed by him was
      pending before the superior Court, and therefore, the trial Court should
      keep its hands off the proceedings. A specific provision has been made in
      Section 317 of the Code providing that the Judge may, for reasons to be
      recorded by him and if he so thinks fit, proceed with the inquiry or trial in
      the absence of accused or his pleader and record the evidence of any
      witness subject to the right of the accused to recall the witnesses for cross-
      examination. This provision was necessitated experiencing that either
      accused or his pleader would be absent when the material witnesses are
      present and that would necessitate adjournment of the case to another
      date, thereby not only delaying the trial, but also causing inconvenience to
      the witnesses and putting pressure on them to get tired and exhausted on
      account of frequent visits to the Court. The objective behind all these
      provisions is to expedite trial of the cases instituted under Prevention ofW.P.(Crl.) No. 363/2010                                                    Page 5 of 11Corruption Act. If an order framing charge or directing framing of charge in
       such cases is not held to be an interlocutory order, the legislative objective
       behind enactment ofPrevention of Corruption Act, 1988is likely to be
       substantially defeated. The virus of corruption continues to eat into the
       vitals of our character and strength. With Government entering into large
       commercial contract and making huge purchases with increased
       expenditure on social welfare schemes and infrastructural projects, the
       scope for corrupt practices has increased manifold as the schemes and
       projects of the Government and its instrumentalities are executed only
       through public servants which gives considerable scope for misconduct on
       their part. Misuse of powers by those who occupy posts in Government is
       capable of causing considerable damage to the image and reputation of
       our country. We, therefore, need to curb and control the growing
       temptation to make a fast buck and get rich overnight by indulging in
       corrupt practices. This is possible only if those who indulge in such
       activities are given swift and deterrent punishment, which, in turn, is
       possible only if they are tried promptly and expeditiously, unhindered by
       unnecessary interference from superior Courts. It is with this objective in
       mind,Section 19(3)(c)of Prevention of Corruption Act has been enacted
       so as to take away the revisional powers of the High Court in the cases
       involving corruption by public servants.10.             This Court and the Apex Court have been consistently of the view as to
what cannot be done directly cannot be done indirectly.            The legislative intent, as
expressed by introduction ofSection 19(3)(c)of Prevention of Corruption Act, for speedier
disposal of corruption cases cannot be allowed to be defeated by opening a back-door
entry to the litigants for assailing orders on charge underArticle 227of the Constitution. It
is evident from the fact that more than 30 petitions out of the above were initially filed as
Revision Petitions but later on converted to Writ Petitions underArticle 227of the
Constitution by the order of the Court. This itself shows that since the Revision against
order on charge was barred by statute, the Court opened another door for doing the same
act which could not have been done by the petitioners due to the statutory prohibition.11.InVishesh Kumar v. Shanti Prasad, AIR 1980 SC 892, the Supreme
Court had occasion to consider a request made by the appellant to convert a revision into
a petition underArticle 227of the Constitution and the Supreme Court made following
observations:"17. It has been urged by the appellant inVishesh Kumar v. Shanti Prasad
       Civil Appeal No.2844 of 1979 that in case this Court is of the opinion that
       a revision petition Under Section 115, Code of Civil Proceurde, is not
       maintainable, the case should be remitted to the High Court for
       consideration as a petition underArticle 227of the Constitution. We are
       unable to accept that prayer. A revision petition Under Section 115 is a
       separate and distinct proceeding from a petition underArticle 227of the
       Constitution, and one cannot be identified with the other."W.P.(Crl.) No. 363/2010                                                       Page 6 of 1112.            It would not be out of place to mention that revisional jurisdiction is part and
parcel of the appellate jurisdiction of the High Court.InNagendra Nath Dey v. Suresh
Chandra Dey, 59 I.A. 283, the Privy Council had observed that an application by party to
an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an
appeal within the ordinary acceptance of the term.Similarly, in Raja of Ramnad v.
Ramid Rowthen and Ors., 53 I.A. 74, a civil revision petition was considered to be an
appropriate form of appeal from the judgment of the subordinate Court.               Thus the
appellate jurisdiction can be exercised by High Court in both forms - in the form of
Appeals, in the form of Revisions.      Since the right to appeal and right to revision is
statutory right, if the statute has taken away this right, the question arises as to whether
this right should be permitted to the litigants underArticle 227of the Constitution or not ?13.            It is settled law that supervisory jurisdiction conferred on the High Court
underArticle 227of the Constitution is confined only to whether an inferior Court or
Tribunal, has acted within its limits and not to correct an error apparent on the face of
record, much less an error of law. In using supervisory power underArticle 227of the
Constitution, High Court does not act as an Appellate Court and it is not permissible for a
High Court, on a petition filed underArticle 227of the Constitution, to review or weigh the
evidence upon which inferior Court or Tribunal passed the order or to see if it committed
an error of law in decision. While passing an order on charge, the Special Judge has to
take a prima facie view on the basis of evidence placed on record along with the charge-
sheet and decide if the accused should be put to trial for certain offences as allegedly
committed by him or not. The accused is put to notice of the offences by framing charges
of the offences and then evidence is lead. In every revision against the order on charge
and in every petition under Section 482 Cr. P.C. or underArticle 227of the Constitution,
the only grievance raised before the High Court is that charge of the alleged offences
was not made out and charge has been wrongly framed and the only prayer made is that
the charges framed against the accused persons should be set aside and accused should
be discharged. Once it has been authoritatively laid down by this Court that order on
charge is an interlocutory order and no revision against the charge would lie and no
petition under Section 482 Cr. P.C. would lie, entertaining a petition underArticle 227of
the Constitution against the order on charge by the High Court and then re-appreciating
the evidence collected by prosecution, and giving a finding whether charge was made out
or not, would result in deletingSection 19 (3) (c)from thePrevention of Corruption Actand what has been prohibited directly would be done indirectly.W.P.(Crl.) No. 363/2010                                                       Page 7 of 1114.InMaruti Bala Raut Vs. Dashrath Babu Wathare and Others, (1974) 2
SCC 615, Supreme Court had observed that it is not for the High Court to discuss the
evidence and come to a conclusion different from the conclusion arrived at by the
Tribunal. The High Court, while exercising its power underArticle 227of the Constitution,
was not entitled to discuss the evidence given and to come to its own conclusion on the
evidence and if this is permitted then it would clearly amount to overstepping the limits of
power underArticle 227of the Constitution. When an order on charge is assailed before
the High Court underArticle 227of the Constitution and it is stated that it was a fit case for
discharge of the accused, in fact, the prayer made to the High Court is invariably to
scrutinize the evidence collected by CBI and come to a conclusion different to the one
arrived at by the Special Court.15.InNagendra Nath Bora Vs. Commissioner, Hills Division, Assam, AIR
1958 SC 398, Supreme Court had held that the powers of High Court underArticle 227of
the Constitution are not greater than the power underArticle 226of the constitution. It
has been further laid down that power of interference underArticle 227of the Constitution
was limited to see that the subordinate Court and Tribunal function within the limits of their
authority and the High Court cannot sit in appeal against the order of Tribunal underArticle 227of the Constitution.16.InNibaran Chandra Bag, V. Bahendra Nath Ghughu, AIR 1963 SC
1895, it waslaid down bySupreme Court that jurisdiction conferred byArticle 227of the
Constitution was not by any means appellate in its nature for correcting errors in the
decisions of Subordinate Courts or Tribunals but was merely a power of superintendence
to be used to keep them within the bounds of their authority.17.InJagir Singh Vs. Ranbir Singh and another, AIR 1979 SC 381, it was
observed by the Supreme Court that power underArticle 227of the Constitution was a
discretionary power and this power could only be exercised sparingly to keep subordinate
Courts and Tribunals within the bounds of their authority and not to correct errors in their
judgments. Where theCriminal Procedure Codeitself banned the exercise of revisional
powers by the high Courts, it would indeed require very exceptional circumstances to
warrant interference underArticle 227of the Constitution, since the power of
superintendence was not meant to circumvent statutory law.18.InM.C. Mehta v. Kamal Nath and others, AIR 2000 SC 1997, the
Supreme Court while considering the scope ofArticle 142of the Constitution of India
observed that the powers underArticle 142of the Constitution cannot be construed asW.P.(Crl.) No. 363/2010                                                       Page 8 of 11powers which authorize the court to ignore the substantive rights of a litigant and this
power cannot be used to 'supplant' substantive statutory law applicable to a case or
cause under consideration of the Court. The Supreme Court further observed thatArticle
142of the Constitution even with the width of its amplitude, cannot be used to build a
new edifice where none existed earlier, by ignoring express statutory provisions dealing
with a subject and thereby achieve something indirectly which cannot be achieved
directly.19.InRanjeet Singh v. Ravi Prakash, AIR 2004, SC 3892, the Supreme
Court observed that in exercise of supervisory jurisdiction of the High Court underArticle
227of the Constitution High Court cannot indulge into re-appreciating or evaluation of
evidence or correcting the errors in drawing inferences.20.            Even if it is considered that while considering charge on the basis of
evidence collected by the prosecution two views were possible and the Trial Court had
taken one view, which was plausible view, the High Court underArticle 227of the
Constitution cannot interfere with the order of the Trial Court of framing charge, more so,
when the order is held to be an interlocutory order in view ofSection 19 (3) (c)of the
Prevention of Corruption Act.21.InKhalil   Ahmed    Bashir    Ahmed      v.   Tufelhussein      Samasbhai
Sarangpurwala, AIR 1988 SC 184, the Supreme Court had observed that High Court
should not interfere and would be in error in interfering with the Trial Court order underArticle 227of the Constitution where two views were possible and the Trial Court had
taken one view.22.InBabhutmal Raichand Oswal v. Laxmibai R. Tarteand antoher, AIR
1975 SC 1297, power of superintendence of High Court was gone into by the Supreme
Court and it was observed that this power cannot be invoked to correct the error of fact
which can only be corrected by a superior court in exercise of a statutory power of appeal.
The High Court in guise of exercising its jurisdiction underArticle 227of the Constitution
cannot convert itself into a court of appeal when the legislature has not conferred a right
of appeal and made the decision of the subordinate court or tribunal final.23.            In view of these observations made by the Supreme Court in above cases,
I consider that incase ofPrevention of Corruption Act, framing of charge once having
been held as an interlocutory order and no revision maintainable under the Statute, the
High Court cannot open the doors of review of the order of Special Judge underArticleW.P.(Crl.) No. 363/2010                                                       Page 9 of 11227of the Constitution nullifying the statutory provisions. The function of High Court
underArticle 227of the Constitution is limited to see that subordinate Court or Tribunal
functions within its limit or authority and not to see whether the order passed by the Trial
Court or Tribunal was the correct order or not. UnderArticle 227of the Constitution, the
High Court cannot correct the errors in the order.24.InSarpanch, Lonand Grampanchayat v. Ramgiri Gosavi and another,
AIR 1968 SC 222, Supreme Court observed that the powers of the High Court underArticle 227of the Constitution was not greater than the powers underArticle 226of the
constitution and it was limited to see that the Tribunal functions within the limits of its
authority.     The High Court will not review the discretion of the Authority judicially
exercised, but it may interfere if the exercise of the discretion is capricious or perverse or
ultra vires.25.              It is well known fact that trials of corruption cases are not permitted to
proceed further easily and a trial of corruption case takes anything upto 20 years in
completion.     One major reason for this state of affairs is that the moment charge is
framed, every trial lands into High Court and order on charge is invariably assailed by the
litigants and the High Court having flooded itself with such revision petitions, would take
any number of years in deciding the revision petitions on charge and the trials would
remain stayed.       Legislature looking at this state of affairs, enacted provision that
interlocutory orders cannot be the subject matter of revision petitions. This Court for
reasons as stated above, in para No. 3 & 4 had considered the state of affairs prevalent
and came to conclusion that no revision against the order of framing of charge or order
directing framing of charge would lie. Similarly, a petition under Section 482 of Cr. P.C.
would also not lie. I am of the opinion that once this Court holds that a petition underArticle 227would lie, the result would be as is evident from the above petitions that every
order on charge which earlier used to be assailed by way of revision would be assailed in
a camouflaged manner underArticle 227of the Constitution and the result would be same
that proceedings before the trial court shall not proceed.26.              The decisions on a petition assailing charge requires going through the
voluminous evidence collected by the CBI, analyzing the evidence against each accused
and then coming to conclusion whether the accused was liable to be charged or not. This
exercise is done by Special Judge invariably vide a detailed speaking order. Each order
on charge of the Special Judge, under Prevention of Corruption cases, normally runs into
40 to 50 pages where evidence is discussed in detail and thereafter the order for framing
of charge is made. If this Court entertains petitions underArticle 227of the Constitution toW.P.(Crl.) No. 363/2010                                                      Page 10 of 11re-appreciate the evidence collected by CBI to see if charge was liable to be framed or, in
fact, the Court would be doing so contrary to the legislative intent.       No court can
appreciate arguments advanced in a case on charge without going through the entire
record. The issues of jurisdiction and perversity are raised in such petitions only to get
the petition admitted. The issue of jurisdiction is rarely involved. The perversity of an
order can be argued in respect of any well written judgment because perversity is such a
term which has a vast meaning and an order which is not considered by a litigant in its
favour is always considered perverse by him and his counsel. Therefore, entertaining a
petition underArticle 227of the Constitution against an order on charge would amount to
doing indirectly the same thing which cannot be done directly, I consider that no petition
underArticle 227can be entertained.27.            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 (supra) case and by this Bench, I consider that it was a
fit case where a Larger Bench should set the controversy at rest. The matter is, therefore,
referred to the Chief Justice for referring the following question:"Whether an order on charge framed by a Special Judge under the
       provisions ofPrevention of Corruption Act, being an interlocutory order,
       and when no revision against the order or a petition underSection 482of
       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 underIndian Penal Codeapart from offences underPrevention of Corruption
       Act?"to a Larger Bench.28.            The matter be listed before Hon'ble the Chief Justice for referring it to a
Larger Bench on 17th September, 2010.There is no stay of proceedings before the Trial Court. Proceedings before the
Trial Court shall continue.SHIV NARAYAN DHINGRA, J.September 15, 2010
acmW.P.(Crl.) No. 363/2010                                                   Page 11 of 11