RKM Powergen Pvt Ltd v. CBI

11. Additionally, Mr. Hariharan submits that a Division Bench of the Madras High Court has already considered the preliminary objection with respect to maintainability of a lis arising out of the very same FIR. Expanding his argument, he placed reliance on the judgment dated 08.06.2022 passed in W.P. No. 24700/2021 titled as R.K.M. Powergen Private Limited Vs. The Asst. Director, ED and Anr. whereby the writ petition filed by the petitioner was entertained and disposed of notwithstanding the directions of the Hon’ble Supreme Court in Manohar Lal Sharma (supra). He further submits that the petitioner had also preferred a writ petition before the Hon’ble Supreme Court, where the Hon’ble Supreme Court while declining to interfere on merits did not preclude the petitioner from pursuing the matter before this Court.

12. Lastly, the learned Senior Counsel submits that the petitioner has no efficacious remedy in the alternative as the petitioner would be forced to approach the Hon’ble Supreme Court and will lose a valuable right of appeal in the process.

13. Per contra, Mr. R. S. Cheema, learned Senior Counsel submits that the prayer in the main petition seeking quashing of FIR as well as in the application seeking stay of the operation of the order dated 27.09.2017 passed by the learned Special Judge is not maintainable by virtue of the order of the Hon’ble Supreme Court in Manohar Lal Sharma (supra). Elaborating on this submission, he submits that the Hon’ble Supreme Court alone has exclusive jurisdiction in matters arising out of the coal block matters which are at the stage of investigation or trial. According to Mr. Cheema only remedy available in respect of an order relating to trial and investigation in a coal block allocation matters, is by way of Article 136 of the Constitution. To buttress his contention reliance has been placed by him on the decision of the Hon’ble Supreme Court in (i) Manohar Lal Sharma (supra); (ii) Girish Kumar Suneja Vs. Central Bureau of Investigation (2017) 14 SCC 809 [hereinafter referred to as ‘Girish Kumar Suneja (SC)’]; and (iii) Girish Kumar Suneja Vs. CBI (2016) SCC OnLine Del 5751 [hereinafter referred to as ‘Girish Kumar Suneja (Del)’];.

14. He submits that the reliance placed on the judgment dated 08.06.2022 delivered by the Madras High Court in W.P. No. 24700/2021 titled R.K.M. Powergen Private Limited Vs. The Asst. Director, ED and Anr. is totally misplaced. In support of his contention Mr. Cheema invited attention of the Court to para 16 of the said judgment to contend that the Madras High Court has clearly drawn the protective lines with regard to the investigation of alleged offences under PMLA qua the coal block scam cases investigated by the CBI and monitored by the Hon’ble Supreme Court. Para 16 of the judgment reads thus:

scam cases investigated by the CBI and monitored by the Supreme Court.” (emphasis supplied)

15. It is further argued by Mr. Cheema that the Hon’ble Supreme Court has entertained an SLP against the aforesaid judgment of Madras High Court and notice has been issued vide order dated 20.03.2023 and the matter is pending.

16. I have heard the learned Senior Counsel for the petitioner, as well as, the learned Senior Counsel for the respondent and have perused the record.

17. In so far as the submission of the learned Senior Counsel for the petitioner that the extraordinary writ jurisdiction of this Court is part of the basic structure of the Constitution of India, there is no dispute with regard to the said proposition as laid down by the Hon’ble Supreme Court in L. Chandra Kumar (supra) and in S.N. Mukherjee (supra). However, the submission that the mandate of the Hon’ble Supreme Court in Manohar Lal Sharma (supra) cannot restrict the power of this Court to exercise extraordinary jurisdiction under Article 226 of the Constitution need not detain this Court any longer as the issue stands already settled by the Hon’ble Supreme Court in Girish Kumar Suneja (SC) (supra).

18. In Girish Kumar Suneja (SC) (supra), the learned Special Judge appointed to hear the criminal cases arising out of the illegal allocation of coal blocks directed framing of charges in the case titled CBI vs. Jindal Steel and Power Ltd. in RC No.219/2013/E/0006 against appellant therein and others for offences punishable under Section 120B/409/420 of the Penal Code, 1860 and Section 13(1)(c) and Section 13(1)(d) of the Prevention of Corruption Act, 1988. Against the order of the learned Special Judge, appellant therein filed Criminal Misc. Case No. 3847/2016 before this Court.

19. Preliminary issue arose regarding the maintainability of the petition in view of para 10 of Manohar Lal Sharma (supra). This Court vide its judgment in Girish Kumar Suneja (Del) (supra) concluded that in view of the order passed by the Hon’ble Supreme Court in Manohar Lal Sharma (supra), the petition deserves to be dismissed as not maintainable.

20. The challenge was taken to the Hon’ble Supreme Court by Girish Kumar Suneja and the Hon’ble Supreme Court in its decision in Girish Kumar Suneja (SC) (supra) noted various contentions raised by the appellant therein in para 8 of the judgement, which reads thus:

(iv) The right to life and liberty guaranteed by Article 21 of the

(v) Article 32 and Article 142 of the Constitution oblige this

(vi) The High Court has an inherent right to grant a stay of proceedings, but this Court has precluded the High Court from granting a stay of proceedings and has thereby deprived the High Court of exercising an inherent right;

(vii) The prohibition in granting a stay under Section 19(3)© of the PC Act is not absolute and in an appropriate case, a stay of proceedings could be granted in favour of an accused person particularly when there is a failure of justice. Any restrictive reading would entail a fetter on the discretion of the High Court which itself might lead to a failure of justice.”

21. In so far as the submission of the appellant in Girish Kumar Suneja (SC) (supra) that order passed by the Hon’ble Supreme Court in Manohar Lal Sharma (supra) has taken away the right of the appellant to file a petition under Articles 226 and 227 of the Constitution and thereby judicial review, which is part of the basic structure of the Constitution, the Hon’ble Supreme Court observed as under:- “Article 226 and Article 227 of the Constitution

35. It was submitted on behalf of the appellants that para 10 of the order passed by this Court prohibits the appellants from approaching the High Court under Articles 226 and 227 of the Constitution. In this context, it was submitted that it is now well settled that judicial review by the High Court and by this Court is a part of the basic structure of the Constitution and this has been recognised in L. Chandra Kumar v. Union of India [L. Chandra Kumar v. Union of India,

36. It was submitted by relying upon Shalini Shyam Shetty v. Rajendra Shankar Patil [Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329: (2010) 3 SCC (Civ) 338] that the jurisdiction of the High Court under Articles 226 and 227 of the Constitution is very vast and the principles for the exercise of jurisdiction have been culled out in that decision by this Court on an analysis of several earlier decisions. The principles have been stated in para 49 of the Report and are not repeated here.

37. There is no doubt that the power of superintendence available to the High Court under Article 227 is extremely vast but at the same time as held in Shalini Shyam Shetty [Shalini Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329: (2010) 3 SCC (Civ) 338] the High Court cannot exercise that power of superintendence at the drop of a hat. In addition, in exercise of its power of superintendence the High Court cannot correct mere errors of law or fact only because another view is possible. What is more important is the following principle that has been culled out: (SCC p. 349, para 49)

38. The Criminal Procedure Code is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) CrPC is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 CrPC is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Criminal Procedure Code or to prevent abuse of the process of any court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Criminal Procedure Code restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues.

39. In any event, if such a one in a million case does arise, the appellants can certainly approach this Court for relief under Article 136 of the Constitution.”

22. Further, the Hon’ble Supreme Court also negated the submission of the appellant herein that the right to life and liberty granted by Article 21 of the Constitution has also been restricted by para 10 of the order passed in Manohar Lal Sharma (supra) or that there are certain procedural safeguards provided by the statutes which have been denied or in any event restricted or constricted by a judicial order, therefore, the procedure established by law has been compromised. The relevant observations read as under:

investigations so that they reach their logical conclusion, without any interference from any quarter. The magnitude of the illegalities is such that it appears that even the integrity of the Director of CBI was prima facie compromised, and this Court had to intervene and direct investigations into the conduct of the Director of CBI. That being so, it can hardly be said with any degree of seriousness that the procedure adopted by this Court, in the facts and circumstances of the case, violate any right to the life and liberty of any of the appellants or any other persons allegedly involved in the criminality associated with the allocation of coal blocks.”

23. Further, dispelling the misconception that the Hon’ble Supreme Court was in any manner monitoring the progress or supervising the trial in the coal block allocation cases, it was explained that para 10 of the Manohar Lal Sharma (supra) only results in the removal of any impediment in the progress of the trial in public interest. The relevant observations of the Court reads thus: “57. There is obviously some misconception in this regard as far as the appellants are concerned. This Court is not in any manner monitoring the progress of the trial in the Coal Block Allocation cases nor is it supervising the trial. Conducting the trial is entirely the business of the learned Special Judge. Para 10 of the order only results in the removal of any impediment in the progress of the trial. To ensure that the trial is concluded at the earliest not only in the interest of the accused persons but also in public interest, any application intended to stay or impede the trial will be subject to orders of this Court. This out of the ordinary step has been taken given the serious nature of allegations made against those believed to be involved in the illegal allocation of coal blocks and in the interest of the accused as well as in larger public interest. As mentioned above, there is a need for maintaining a balance between the rights of an accused and the rights of an individual victim and society.”

24. The Hon’ble Supreme Court also noted that similar directions were also given in 2G Spectrum cases and the same came up for consideration before the Hon’ble Supreme Court, subsequently in Shahid Balwa vs Union of India, (2014) 2 SCC 687, wherein it was clarified that such an order was permissible under the provisions of Article 136 read with Article 142 of the Constitution. It was further clarified that the parties cannot invoke the jurisdiction under Article 226 or 227 of the Constitution or under Section 482 CrPC so as to ensure the compliance with the orders passed by the Hon’ble Supreme Court, or else, the very purpose and object of such order would be defeated. The relevant observations of the Hon’ble Supreme Court reads thus:-

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 right 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 provisions 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 or under Section 482 CrPC so as to ensure compliance with the orders passed by this Court otherwise the very purpose and object of the order would be defeated. This Court held in paras 22 and 23 of the Report as follows: (SCC p. 699)

parties will move courts inferior to this Court under Article 226 or Article 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 Constitution of India.”

25. Accordingly, the Hon’ble Supreme Court, considering that a similar issue having been agitated before it in Shahid Balwa (supra) and negatived, declined to revisit or modify the order passed in Manohar Lal Sharma (supra).

26. In so far as the reliance placed by the learned Senior Counsel for the petitioner on the judgment dated 08.06.2022 passed by High Court of Judicature at Madras in W.P.No. 24700/2021 is misplaced in view of the decision of the Hon’ble Supreme Court in Girish Kumar Suneja (SC) (supra) wherein it has been expressly stated that remedy under Articles 226 and 227 of the Constitution would not be available in respect of a case registered in coal block cases. However, the remedy would still be available to the aggrieved person but only the forum will shift from the High Court to the Hon’ble Supreme Court.

27. In view of the above discussion and regard being had to the direction of the Hon’ble Supreme Court in the order passed in Manohar Lal Sharma (supra) as clarified in Girish Kumar Suneja (SC) (supra), the present petition is not maintainable and is accordingly dismissed.

VIKAS MAHAJAN, J. JULY 1, 2024/N.S. ASWAL/dss