Paragraph numbers below are the court’s original numbering, recovered from the source text.
63. We are not in agreement with the over-broad interpretation given by learned counsel for the appellants to Section 19(3)(c) of the PC Act.
64. A reading of Section 19(3) of the PC Act.indicates that it G deals with three situations: (i) Sub-clause (a) deals a situation where a final judgment and sentence has been delivered by the Special Judge. We are not concerned with this situation. (ii) Sub-clause (b) deals with a · stay of proceedings under the PC Act in the event of any error, omission or irregularity in the grant of sanction by the concerned authority to A prosecute the accused person. It is made clear that no court shall grant a stay of proceedings on such a ground except if the court is satisfied that the error, omis_sion or irregularity has resulted in a failure of justice – then and only then ca'n the court grant a stay of proceedings under the PC Act. (iii) Sub-clause ( c) provides for a blanket prohibition against a B stay of proceedings under the PC Act even ifthere is a failure of justice [subject of course to sub-clause (b)]. It mandates that no court shall stay proceedings "on any other ground" that is to say any ground other than a ground relatable to the error, omission or irregularity in the sanction resulting in a failure of justice.
65. A conjoint reading of sub-clause (b) and sub-clause (c) of C Section 1.9(3) of the PC Act makes it is clear that a stay of proceedings could be granted only and only ifthere is an error, omission or irregularity in the sanction granted for a prosecution and that error, omission or irregularity has resulted in a failure of justice. There is no other situation that is contemplated for the grant of a stay of proceedings under the PC D -Act on any other ground whatsoever, even ifthere is a failure of justice. Clause ( c) additionally mandates a prohibition on the exercise ofrevision jurisdiction in respect of any interlocutory order passed in any trial such as those that we have already referred to. In our opinion, the provisions of clauses (b) and (c) of Section 19(3) of the PC Act read together are quite clear and do not admit of any ambiguity or the need for any further E interpretation.
66. Sub-section (4) of Section 19 of the PC Act is also important in this context inasmuch as the time lapse in challenging an error, omission or irregularity in the sanction resulting in a failure of justice is of considerable significance. Unless the challenge is made at the initial F stages of a trial and within a reasonable period of time, the court would not be obliged to consider the absence of, or any error, omission or irregularity in the sanction for prosecution. Therefore, it is not as ifthe accused can, after an unreasonable delay, raise an issue. about the sanction; but ifthat accused does so, the court may not decide that issue G both at the appellate stage as well as for the purposes of stay of the proceedings.
67. In Central Bureau of Investigation v. V.K. Sehgal28 it was held that for determining whether the absence of or any error, omission " (1999) s sec so 1 GIRISH KUMAR SUNEJA v. C.B.l. [MADAN B. LOKUR, J.] or irregularity in the grant of sanction has occasioned or resulted in a A failure of justice, the court has a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if it had been raised at the trial and early enough, it would not be sufficient to conclude that there was a failure of justice. Whether in fact and in law there was a failure of justice would differ from case to case but it was made clear that if such an objection was not raised in the trial, it certainly cannot be raised in appeal or in revision. It was explained that a trial involves judicial scrutiny of the entire material before the Special Judge. Therefore, ifon a judicial scrutiny of the evidence on record the Special Judge comes to a conclusion that there was sufficient reason to convict the accused person, the absence or error or omission or irregularity would actually become a surplusage. The necessity of a sanction is only as a filter to safekuard public servants from frivolous or ma la fide or vindictive prosecution. However, after judicial scrutiny is complete and a conviction is made out through the filtration process, the issue of a sanction really would become inconsequential. Jt was held in paragraphs I 0 and 11 of D the Report as under: "A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even ifhe had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial ·stage cannot possibly sustain such a plea made for the first time in the appellate court …… In a case where the accused failed to raise the question of valid . sanction the trial would normally proceed to its logical end by G making a judfoial scrutiny of the entire materials. Jfthat case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant becau~e the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive· prosecution on the allegation that they have committed offence in the discharge of their official duties. But · once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle lipon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure."
68. In enacting Section 19 of the PC Act in the manner which it did, Parliament has made it abundantly clear that it is extremely concerned about ensuring that trials under the PC Act are concluded expeditiously not only in the interest of the accused but also in public interest. This C concern of Parliament must be respected.
69. To doubly ensure that there is no 'indirect' stay of proceedings by calling for the records of the Special Judge while dealing with a revision petition filed by an accused person, Section 22 of the PC Act has been enacted with reference to SeGt,ion 397(1) of the Cr.P.C. By virtue of D Section 22( d) of the PC Act, a proviso has been added to Section 397 ( 1) of the Cr.P.C. which makes it clear that the court exercising revision jurisdiction shall not ordinarily call for the record of the proceedings unless certain conditions are fulfilled. The proviso reads as follows: "Provided that where the powers under this ~, ·ti on are exercised by a court on an application made by a party to such proceedings, the court shall not ordinarily call for the record of the proceedings, – (a) without giving the other party an opportunity of showing cause why the record should not be called for; or (b) If it is satisfied that an examination of the record of the proceedings may be made from the certified copies."
70. By adding the proviso to Section 397(1) of the Cr.P.C. Parliament has made it clear that it would be appropriate not to call for the records of the case before the Special Judge even when the High G Court exercises its revision jurisdiction. The reason for this quite clearly is that once the records are called for, the Special Judge cannot proceed with the trial. With a view to ensure that the accused who has invoked the revision jurisdiction of the High Court is not prejudiced and at the same time the trial is not indirectly stayed or otherwise impeded, Parliament has made it clear that the examination of the record of the GlRISH KUMAR SUNEJA v. C.B.I. [MADAN B. LOKUR, J.] Special Judge may also be made on the basis of certified copies of the record. Quite clearly, the intention of Parliament is that there should not be any impediment in the trial of a case under the PC Act.
71. What does the expression 'failure of justice' mean? In Shamnsaheb J!!. Multani v. State of Karnataka29 it was held that the expression 'failure of justice' is too pliable or facile an expression which could be fitted in any situation. The criminal court;particularly the superior · court should make a close examination to ascertain whether there., was really a failure of justice or whether it i~ only a camouflage. It was held in paragraphs 23 and 24 of the Report as follows: "We often hear about "failure of justice" and quite often the · C submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplockin Town Investments Ltd. v. · Deptt. of the Environment30). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. One of the cardinal principles of natural justice is that no man should be condemned without being he_ard, (audi alteram partem ). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, ifthe aspect is of such a nature that non-explanation of it has contributed to 'penalising ai.J. individual, the court should say that since he was not given the o~porturiity\o explain that aspect there was failure of justice on account of non-compliance with · the principle ofnaturaljustice."
72. This decision was followed in State of M.P. v. Bhooraji3 • and also in kattiram v. State of M.P. 32:Jn the latter decision, it was held that G the expression 'failure of justice' m;ust be given its due significance otherwise every procedural lapse ot interdict could be interpreted to ,., (2001) 2 sec 577 30 1978 AC 359 " (2001J1 sec 679 "(2012) 4 sec 516 c result in a failure of justice making the criminal justice delivery system completely illusory. Rattiram dealt with non-compliance with Section 193 of the Cr.P.C. and it was held that this did not result in a failure of justice. It was held in paragraphs 65 and 66 of the Report as follows: "We may state without any fear of contradiction that if the failme of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be bome in mind that the legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial. Judged from these spectrums and· analysed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non-compliance with Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered inBhooraji lays down the c01Tect law inasmuch as there is no failure of justice or no prejudice is caused to the accused."
73. In Blworaji33 this Court concluded that in the event of a failure of justice, a de nova trial could be ordered but that should be the last resort and only when such a cmus" becomes desperately indispensable. If the "core" of the case is not affected but there are some procedural illegalities that would not be a good ground for ordering a de nova trial. G 'This is because the appellate court has plenary powers for revaluating and reappraising the evidence and even to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court." " c2001) 7 sec 679 GIRISH KUMAR SUNEJA v. C.B.l. [MADAN B. LOKUR, J.]
74. Interestingly, in an Advisory Opinion given by the International– A· Court of Justice34 one of the questions referred was as follows: "Has the Tribunal (United Nations Administrative Tribunal) committed a fundamental error in procedure which has occasioned the failure of justice as c\intended in the application to the Committee for Review of Administrative Tribunal Judgements?" B
75. In the Advisory Opinion, the International Court considered Article 11 of the Statute of the United Nations Administrative Tribunal (as it then stood). The words 'which has occasioned a failure of justice' . appearing in that A1ticle were introduced at the 499•h meeting of the Fifth Committee on the proposal of the Indian delegation which stated: c "Another ground for review provided in the proposed new Articl.e 11 was the commission of a fundamental error in procedure. The use of the word 'fundamental' was illtended to preclude review on account of trivial errors irt procedure or errors that were not of a substantial nature. In order to make the intention clearer, the D Indian delegation would suggest that the phrase ~which has occasioned a failure of justice' should be inserted after the words 'fundamental error in procedure' in the text of the a~ticle." . 76. While considering the interpretation of the expression 'a fundamental error in procedure which has occasioned a failure of justice' the International Court of Justice expressed the view that to constitute a failure of justice an error in procedure is fundamental when it is of the kind where the fundamental right ofa staff member to present his case, either orally or in writing is denied. The International Cocit then proceeded to identify certain elements of the right to hearing well recognized as for. instance t!1e right to an independent andimpartial triburtal established by law; the right to have the case heard and determined within a reasonable time; the right to a reasonable opportunity to present the case to tqe tribunal and to comment up~ the opponent case; the right to equality in the proceedings vis-a-vis t~e opponent; and the right to a reasoned decision. It was stated in paragraph 92 of the Advisory Opinion as follows:- "It may not be easy to state ·exhaustively what is involved in the concept of" a fundamental error in procedure which has 34 Application for Review of Judgment No.158 of the United Nations Admjnistrative Tribunal, Advisory Opinion, ICJ Reports 1973, ~.166 c J-1 [2017) 9 S.C.R. occasioned a failure ofjustice". But the essence of it. in the cases before the Administrative Tribunal, may be found in the fundamental right of a staff member to pre~ent his case, either orally or in \VTiting, and to have it considered by the Tribunal before it determines his rights. An error in procedure is fundamental and constitutes "a failure of justice" when it is of such a kind as to violate the official's right to a fair hearing as above defined and in that sense to deprive him ofjustice. To put the matter in that way does.not provide a complete answer to the problem of determining precisely what errors in procedure are coven:d by the words of Article l I. But certain elements of the right to a fair hearing are well recognized and provide criteria helpful in identifying fundamental errors in procedure which have occasioned a failure of justice: for instance, the right to an independent and impartial tribunal established by law; the right to have the case heard and determined within a reasonable time; the right to a reasonable opportunity to present the case to the tribunal and to comment upon the opponent's case; the right to equality in the proceedings vis-a-vis the opponent; and the right to a reasoned decision." 77. An allegation of 'failure ofjustice' is a very strong allegation and use of an equally strong expression and cannot be equated with a miscarriage of Justice or a violation oflaw or an irregularity in procedure – it is much more. If the expression is to be understood as in common parlance, the result would be that seldom would a trial reach a conclusion since an irregularity could take place at any stage, inadmissible evidence could be erroneously admitted, an adjmu-nment wrongly declined etc. To conclude, therefore, Section 19( 3 )( c) of the PC Act must be given a very restricted interpretation and we cannot accept the over-broad interpretation canvassed by learned counsel for the appellants. 78. In Centre for Public lllferest Litigation r. Union oflndia35 this Court passed the following order on 11 'h April, 2011 in what is now, commonly known as the 2G Spectrum Scam cases: "We also make it clear that any objection about the appointment of Special Public Prosecutor or his assistant advocates or any prayer for staying or impeding the progress of the trial can be made only before this Court and no other court shall entertain the same. The trial must proceed on a day-to-day basis. " (2012) 3 sec 1 17 GIRJSH KUMAR SUNEJA v. C.B.l. [MADAN B. LOKUR, J.] All these directions are given by this Court in exercise of its power under Article 136 read with Article 142 of the Constitution and in the interest of holding a fair prosecution of the case." 79. The aforesaid order came up for consideration before this Court in Shahid Balwa v. Union of India. 36 80. While dealing with the submissions made in relation to the aforesaid order (submissions that are similar to those made before us) this Court held that considering the width and ambit of the investigation which could even spread overseas and also .considering the larger public interest, the aforesaid order was passed reserving the tight of the accused to move this Court if there is a grievance against the order passed by the Special Judge during the trial and that this would ensure that progress in the trial is not hampered. Such an order was permissible under the_ provision:, of Article 136 read with Article 142 of the Constitution. It was also made clear that the parties cannot invoke the jurisdiction under Article 226 or 227 of the Constitution orunder Section 482 of the Cr.P.C. so as to ensure compliance with the orders passed by this Court othe1wise D the very purpose and object of the order would be defeated. This Court held in paragraphs 22 and 23 of the Report as follows: "We may, at the very outset, point out that CBI as well as the Enforcement Directorate are yet to complete the investigation of the cases relating to 2G Scam and the case which is being tried by the Special Judge is only one amongst them, wherein the charge- sheet has been filed and the trial is in progress. This Court, taking into consideration the width and ambit of the investigation which even spreads overseas and the larger public interest involved, passed the orders impugnyd, reserving the right of all, including the accused persons, to move this Court if their prayer would amount to staying or impeding the progress of the trial. In case . they have any grievance against the orders passed by the Special Judge during trial, they are free to approach this Court so that the progress of the trial would not be hampered by indulging in cumbersome and time-Consuming_ proceedings in the other forums, thereby stultifying the peremptory direction given by this Court . for day-to-day triat Article 136 read with Article 142 of the Constitution of India enables this Court to pass such orders, which are necessary for "(2014) 2 sec 687 c doing complete justice in any cause or matter pending before it and, any order so made, shall be enforceable throughout the territory of India. The parties, in such a case, cannot invoke the jurisdiction under Article 226 or 227 of the Constih1tion of India or under Section 482 CrPC so as to interfere with those orders passed by this Court, in exercise of its constitutional powers conferred under Article 136 read with Article 142 of the Constitution of India. Or, else, the parties will move courts inferior to this Court under Article 226 or A11icle 227 of the Constitution of India or Section 482 CrPC, so as to defeat the very purpose and object of the various orders passed by this Court in exercise of its powers conferred under Article 136 read with Article 142 of the Constimtion of India." 81. It was further held that the order passed only facilitates the progress of the trial by ordering that it must proceed on a day to day basis. It was noted that the backlog of cases is often an incentive to the D litigants to take unfair advantage of the delays and therefore, it was necessary to pass the order dated 11 <h April, 20 I l. It was stated as follows in paragraph 31 of the Report: "We also, therefore, find no basis in the contention of the pe.titioners that the orders dated 11-4-2011and9-11-2012 have the effect of monitoring the trial proceedings. No court, other than the court seized of the trial, h~s the power to monitor the proceedings pending before it. The order dated 11-4-2011 only facilitates the progress of the trial by ordering that the trial must proceed on a day-to-day basis. Large backlog of cases in the courts is often an incentive to the litigants to misuse the courts' system by indulging in unnecessary and fraudulent litigation, thereby delaying the entire trial process. Criminal justice system 's·procedure guarantees and elaborateness sometimes give, create openings for abusive, dilatory tactics and confer unfair advantage on better heeled litigants to cause defay to their advantage. Longer the trial, witnesses will be unavailable, memories will fade and evidence will be stale. Taking into consideration all those aspects, this Court felt that it is in the larger public interest that the trial of2G Scam be not hampered. Further, when larger public interest is involved, it is the bounden duty of all, including the accused persons, who are presumed to be innocent, until proven guilty, to cooperate with the progress of the trial. GIRISI-i KUMAR SUNEJA v .. C.B.l. [MADAN B. LOKUR, J.] Early disposal of the trial is also to their advantage, so that their A innocence could be proved, rather than remain enmeshed in criminal trial for years and unable. to get on with their lives and business." Conclusion 82. ln view of the above and the issue having already been agitated before this Court and negatived (also in some other case) we do not think it appropriate to revisit the order of25'" July, 2014 passed by this Court nor do we think it appropriate to modify that order. Nidhi Jain Appeal disposed of