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Chattisgarh High Court
Babulal Agrawal vs Central Bureau Of Investigation on 28 August, 2025
1
2025:CGHC:43805
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 2686 of 2024
Order reserved on 24/04/2025
Order delivered on 28/08/2025
1 - Babulal Agrawal S/o Shri R.K. Agrawal Aged About 59 Years R/o
"Samarth" New Timber Market, Fafadih, Raipur, Chhattisgarh
... Petitioner(s)
versus
1 - Central Bureau Of Investigation EO - III, New Delhi
... Respondent(s)
(Cause title taken from Case Information System)
For Petitioner(s) : Mr. Chirag Madan, Advocate along with
Mr. Utsav Saxena and Mr. Krishna
Tandon, Advocates
For Respondent(s)/CBI : Mr. B. Gopa Kumar, Advocate
(through virtual mode)
Hon’ble Shri Justice Ravindra Kumar Agrawal
C.A.V. Order
1. The petitioner has filed the present petition under Section 528 of the
Bhartiya Nagarik Suraksha Sanhita, 2023 (in short “BNSS”),
impugning and challenging the order dated 06-12-2023 (Annexure
P-1) passed by the learned Special Judge, Special Court for CBI
VED
cases, Raipur, in CBI Case No. 01/2023.
PRAKASH
DEWANGAN
Digitally signed by
VED PRAKASH
DEWANGAN
Date: 2025.08.28
18:20:43 +0530
2
2. There are various parts of the order dated 06-12-2023, i.e. (i) the
application filed by the petitioner under Section 317 of the Cr.P.C., (ii)
the application filed by the petitioner under Section 207 of the Cr.P.C.
and (iii) taking the copy of the order dated 05-12-2023 passed in W.P.
(Cr.) 2877/2017, by Hon’ble Delhi High Court and relevant facts on
record, (iv) to follow the guideline issued by Hon’ble Supreme Court in
the case of “High Court Bar Association, Allahabad v. State of
Uttar Pradesh”, Cr.A. No. 3589 of 2023, order dated 01-12-2023, and
(v) framing the charge against the petitioner for the offence under
Section 120-B, 420, 467, 468, 471 read with Section 120-B of IPC
and Section 13(2) and 13 (1)(d) of the Prevention of Corruption Act,
1988. In the prayer made by the petitioner, he has not specified which
part of the impugned order he is challenging in the present petition.
3. The facts of the case in brief are that the petitioner is an accused
along with other co-accused persons, in the offence of Crime No. RC-
1(E)/2010/EOU-VII, dated 04-11-2010, registered at New Delhi. The
Special Sessions Case No. 01/2023 is pending before the learned
Special Judge, CBI, Raipur. In the year 2005-06, the petitioner was
posted as Secretary, Department of Health and Family Welfare,
Government of Chhattisgarh, Raipur. A complaint was made on
24-04-2009 by the Ministry of Health and Family Welfare,
Government of India, New Delhi, and a preliminary inquiry was taken
up by the Central Bureau of India (in short “CBI) with regard to
financial irregularities in the Malaria Control Program in the State of
Chhattisgarh. The preliminary inquiry was converted into Case No.
3
RC-221/2010/E/0001/CBI/EO-III/ New Delhi at CBI, EO-III, New Delhi,
against various officials and other accused persons. The allegations
are that the accused persons have misappropriated the amount of Rs.
2.44 Crore received from the Government of India, in the year 2005-
06, for Malaria Control in the State of Chhattisgarh. The investigation
revealed that two separate conspiracies were hatched by the accused
persons, including the petitioner, which caused huge monetary loss to
the State Government. Two separate charge sheets were filed against
the accused persons, including the petitioner.
4. It is the case of the petitioner that the CBI has registered and
investigated the FIR without the consent of the Chhattisgarh
Government, as provided under Section 6 of the Delhi Special Police
Establishment Act, 1946 (in short “DSPE Act“). During the course of
the investigation, the name of the petitioner emerged. The CBI, vide
its letter dated 10-05-2012, sought information from the State
Government about the composition of the society for the years 2004-
05 and 2005-06, who was to implement the Enhanced Malaria Control
Program (in short “EMC program”). In reply to that, the State
Government stated that the EMC program was implemented through
the State Malaria Control Society (“SMCS”) and the Secretary,
Department of Health and Family Welfare, was the Chairman of the
Society. Two separate charge sheets were filed by the CBI, with the
allegation that during the year 2005-06, the petitioner was the
Chairman of SMCS and responsible for the implementation of the
EMC program.
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5. On 19.07.2012, the State Government issued another notification No.
F-4-164/HC/2012, by which it is clarified that the letter dated
03.02.2001 was not a consent letter of the State Government under
Section 6 of the DSPE Act and the same was issued without approval
of the competent authority as required under Rule 19 of Part-VI of the
Rules of Business of Executive, Government of Chhattisgarh,
therefore, the letter dated 03.02.2001 should not be construed as a
letter of consent under Section 6 of DSPE Act. On 30.04.2014, the
GAD, State of Chhattisgarh, wrote another letter to the Department of
Health and Family Welfare and sought factual information with
respect to the allegation levelled against the petitioner. In response to
the said letter, reply was sent by the GAD on 02.07.2014, in which it
was stated that the petitioner, as Secretary, Department of Health and
Family Welfare, had no financial powers to purchase
medicines/equipment/materials under the EMC programme.
6. The State Government denied granting sanction for prosecution and
communicated to the respondent that, due to the absence of consent
under Section 6 of the DSPE Act, the registration of the FIR is invalid.
On 25.11.2014, the respondent sent a letter for sanction for
prosecution of the petitioner and then the Department of Legal Affairs,
Ministry of Law and Justice, Government of India gave an opinion that
the letter dated 03.02.2001 issued by the State Government was not
a valid consent, as the same was issued without approval of the
competent authority. It was further opined that the Department of
Personnel and Training (DoPT) may request the State Government to
5
reconsider its stand taken on 19.07.2012. The Department of Legal
Affairs had also not sanctioned the prosecution against the petitioner.
The Central Government, vide its letter dated 04.11.2015, informed
the respondent that it would not be appropriate to accord sanction for
the prosecution of the petitioner.
7. In the year 2017, the petitioner filed a WP(Crl.) No. 2877 of 2017
before the Hon’ble Delhi High Court. It is also the case of the
petitioner that, since the FIR was registered by the CBI within the
territorial jurisdiction of the Delhi High Court, the writ petition was filed
at the Delhi High Court. In the said writ petition, the petitioner sought
quashing of the FIR on the ground that the CBI had no jurisdiction to
register and investigate the FIR without the consent of the
Chhattisgarh Government, which has not given consent as required
under Section 6 of the DSPE Act. The WP(Crl.) No. 2877 of 2017 is
still pending for consideration before the Hon’ble Delhi High Court.
8. During the pendency of the said writ petition, the respondent/CBI
summoned the petitioner to be present before the learned Special
Judge, CBI, Raipur (C.G.) on 05.01.2023 in view of the filing of charge
sheet against him by the CBI. The petitioner preferred an application
bearing Crl. M.A. No. 109 of 2023 in the said WP(Crl.) No. 2877 of
2017 seeking stay of summons issued by the respondent/CBI. The
Hon’ble Delhi High Court vide order dated 04.01.2023 was pleased to
exempt the petitioner from personal appearance before the learned
Special Court, CBI and permitted him to appear through his counsel.
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9. It is also the case of the petitioner that, on 29.12.2022, two final
reports were filed against the petitioner and other accused persons,
on the basis of the same FIR, and the incorrect information was
annexed with the charge sheet that the petitioner was the chairman of
SMCS at the relevant time when the offence was committed. The
charge sheet has been filed without the consent of the Chhattisgarh
Government as required under Section 6 of the DSPE Act. During the
pendency of the WP(Crl.) No. 2877 of 2017, the learned Special
Judge (CBI), Raipur, proceeded to frame charges against the accused
persons and fixed the case on 05.04.2023. The petitioner filed his
application under Section 207 of CRPC before the learned Special
Judge (CBI) Raipur and prayed for copies of the documents, which
are illegible copies of all the documents seized during the
investigation, but not relied upon, copies of all the statements
recorded by the CBI under Section 161 of CRPC, statements of the
accused recorded under clause 14.27 and 14.28 of CBI Manual. The
petitioner has filed another application, Crl. M.A. No. 8270 of 2023 in
WP(Crl.) No. 2877 of 2017 for the grant of stay of the proceedings
before the learned Special Judge (CBI), Raipur. On 11.05.2023, the
Hon’ble Delhi High Court directed the matter to be adjourned before
the Special Judge (CBI), Raipur, to a date after the date fixed before
the Hon’ble Delhi High Court. The order dated 11.05.2023 was
extended by the orders dated 28.08.2023 and 29.08.2023.
10. On 05.12.2023, due to paucity of time, the matter could not be taken
up for hearing before the Hon’ble Delhi High Court and the interim
7
order was extended till 13.02.2024. Before the learned Special Judge
(CBI), Raipur, the petitioner preferred an application on 06.12.2023 for
adjournment of the proceedings in view of the order dated
11.05.2023, 28.08.2023, 29.08.2023 and 05.12.2023, passed by the
Delhi High Court in the said writ petition. Despite the direction of the
Hon’ble Delhi High Court, the learned Special Judge (CBI), Raipur,
proceeded in the case, and the request for adjournment of the
proceedings was refused.
11. Learned counsel for the petitioner would submit that the Special
Judge (CBI), Raipur, erroneously relied upon the decision of the
Hon’ble Supreme Court in the matter of “Asian Resurfacing of Road
Agency Private Limited and Another v. Central Bureau of
Investigation” 2018 (16) SCC 299, to disobey the orders passed by
the Hon’ble Delhi High Court. Despite being brought to notice, learned
Special Judge (CBI) Raipur, that the order passed in “Asian
Resurfacing of Road Agency Private Limited” (supra) has been
referred to a five-Judge Bench in “High Court Bar Association,
Allahabad v. State of Uttar Pradesh & Others” Criminal Appeal No.
3589 of 2023, decided on 29-02-2024. He would further submit that
vide order dated 11.05.2023, 28.08.2023, 29.08.2023, the Delhi High
Court directed the Special Judge (CBI), Raipur, to adjourn the
proceedings; therefore, the period of six months would have ended
only in February 2024, but the Special Judge (CBI), Raipur, has
passed an order on 06.12.2023 prematurely. He would also submit
that the Hon’ble Constitutional Bench of the Hon’ble Supreme Court in
8
the case of “High Court Bar Association, Allahabad” (supra) vide its
order dated 29.02.2024, set-aside the directions, even in “Asian
Resurfacing of Road Agency Private Limited” (supra), but the
learned Special Judge (CBI) Raipur has relied upon the “Asian
Resurfacing of Road Agency Private Limited” case.
12. Learned counsel appearing for the petitioner would further submit that
the learned Special Judge (CBI), Raipur, without hearing the
petitioner, passed the impugned order, and no opportunity to argue on
the charge was provided. The prayer made by the petitioner for the
grant of time to address on charge, but the same is rejected without
assigning any reasons. The application of the petitioner filed under
Section 207 of CRPC was pending before him, and the said
application has also been dismissed by the order impugned. He would
further submit that the jurisdiction of the CBI to investigate the FIR is a
question of law, which goes to the root of the matter, which is pending
for adjudication before the Hon’ble Delhi High Court. Despite an
interim order passed by the Hon’ble Delhi High Court, the order
passed by the learned Special Judge (CBI) is against the judicial
discipline and hierarchy. The accused has a right to know all the
allegations against him and the material relied upon by the
investigating agency to prepare his defence. On 06.12.2023, the
matter was fixed for argument on charge, but without hearing the
petitioner, the charge has been framed that too in a mechanical
manner and without application of mind.
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13. It is also submitted by him that without there being any consent under
the DSPE Act obtained from the Chhattisgarh Government, the FIR is
illegal, which has not been considered by the learned Special Judge
(CBI), Raipur, while framing the charge. The interim orders passed by
the Hon’ble Delhi High Court is also violated by the proceedings in the
case. The question of law pending before the Hon’ble Delhi High
Court, qua the jurisdiction of the respondent/CBI to register and
investigate the FIR for the offence alleged to have been committed in
the State of Chhattisgarh, goes to the root of the matter, and the
consent of the State Government is a precondition to obtain
jurisdiction to investigate the matter. From the letter dated 11.07.2014,
issued by the Chhattisgarh Government, the position is clear that the
respondent had no jurisdiction to register the FIR or to investigate the
matter in the State of Chhattisgarh. It is also submitted that Section 6
of the DSPE Act safeguards the petitioner that the respondent will not
have the jurisdiction to investigate the offence in the territory of the
State, unless the conditions of Sections 3, 5 and 6 are satisfied. The
action of the respondent authorities is without jurisdiction and is a
nullity. It is also submitted that the Government of India, Department
of Legal Affairs, had also not granted sanction for the prosecution of
the petitioner, and without there being any valid sanction, the
petitioner cannot be prosecuted. The Central Government,
Department of Legal Affairs, has also not granted sanction for
prosecution, and in the absence of any valid sanction, the petitioner
cannot be prosecuted, and even in the absence of any consent from
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the State Government, the registration of the FIR is non-est and void
ab initio.
14. It is also submitted by him that the petitioner has preferred an
application under Section 207 of CRPC before the learned Special
Judge (CBI) for supply of the copies of the documents, which were
seized by the CBI during investigation, statement of the witnesses
recorded under Section 161 of CRPC and the statement of the
accused persons recorded under clause 14.27 and 14.28 of the CBI
Manual. Without giving an opportunity of hearing, the application filed
by the petitioner is rejected in a mechanical manner.
15. On 20.02.2013, the CBI sought sanction for prosecution from the
State Government to prosecute the officers of the State against whom
prima facie evidence is collected during the investigation, including
the petitioner. Vide letter dated 11.11.2013, the General Administration
Department of the State Government sought clarification on two
points, i.e. about the provision of law, under which the CBI has
registered the FIR and, whether any direction is issued to the CBI to
investigate the case for High Court or Hon’ble Supreme Court. It is
replied by the CBI that by the letter dated 03.02.2001, issued by the
Home Department of State of Chhattisgarh, the Central Government
issued a notification on 25.04.2001 while invoking the powers under
Section 5(1) read with Section 6 of DSPE Act to extend the powers
and jurisdiction of the members of DSPE to the State of Chhattisgarh
11
for the investigation of offences specified in the schedule to the said
notification.
16. It is also submitted by him that without hearing the petitioner before
framing of charge, the charge has been framed, which is against the
mandate of Sections 226 to 228 of the CRPC. There is no prima facie
material to the charge sheet to frame charge to proceed with the trial
against the petitioner. The matter pertains to life and liberty as
provided under Article 21 of the Constitution of India, and statutory
provision has to be followed before proceeding in the case. Merely on
suspicion, the charge cannot be framed; therefore, the impugned
order dated 06.12.2023, passed by the learned Special Judge (CBI),
is liable to be quashed. Merely on suspicion, the charge cannot be
framed; therefore, the impugned order dated 06.12.2023, passed by
learned Special Judge (CBI), is liable to be quashed. He would rely on
the judgment passed by the Hon’ble Supreme Court in the matter of
“Asian Resurfacing of Road Agency Private Limited” (supra),
“High Court Bar Association, Allahabad” (supra) and “Amit Kapoor
v. Ramesh Chander and another” 2012 (9) SCC 460.
17. On the other hand, learned counsel appearing for the respondent/CBI
filed the reply in the case, and submitted that the FIR was registered
by the CBI on 04.01.2010 against various officers of the department
after preliminary enquiry on the complaint of the Ministry of Health
and Family Welfare, Govt. of India, dated 24.04.2009. Certain
financial irregularities were found, and then the FIR was registered.
12
During the investigation, it was revealed that the Enhanced Malaria
Control Programme (EMCP) was started in High Malaria Endemic
States under the assistance of the World Bank in 1997-98. Training
was imparted to officials of the concerned States, and necessary
equipment was provided by the Government of India. The technical
support was also provided by the National Vector Borne Disease
Control Programme (NVBDCP) under the Ministry of Health and
Family Welfare, Govt. of India. Certain guidelines were also issued for
the States by NVBDCP to implement the said program. The funds
were to be released as per the guidelines and after examination by
the Ministry of Health and Family Welfare to the State Malaria Control
Society. There are complete mechanism and various agencies to
implement the Malaria Control Programme by the concerned States.
In the State of Chhattisgarh, the State Malaria Control Society was
registered on 09.05.2001 under the Madhya Pradesh Societies
Registration Act, 1973. The Health Minister of the Chhattisgarh
Government was the Chairman of the Society along with other
members. The Secretary, Health and Family Welfare, Government of
Chhattisgarh, was the President of the Administrative Body of State
Malaria Control Society for the grant of sanction of all expenditures,
and he was also the Chairperson of the Executive Committee. All the
executive and financial powers of the Society were with the Executive
Committee.
18. The State of Chhattisgarh submitted the annual implementation plan
dated 23.04.2005 for an amount of Rs. 889.14 lakhs to the Ministry of
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Health and Family Welfare, Govt. of India, for assistance from the
World Bank in enhanced EMCP for the year 2005-06. An amount of
Rs. 488.84 lakhs was approved by the Ministry of Health and Family
Welfare, Govt. of India and an amount of Rs. 2,44,42,000/- was
released to SMCS, Raipur, Chhattisgarh on 20.07.2005. The present
petitioner was the Secretary, Health and Family Welfare, Chhattisgarh
Government and Chairman of SMCS, Raipur. Certain
equipment/medicines/stationery were purchased by the petitioner and
other accused persons, through tender after hatching a criminal
conspiracy, and payment has been released in their favour. The
investigation revealed that two separate criminal conspiracies were
hatched by the accused persons, including the petitioner, causing
huge loss to the Govt. of Chhattisgarh, and accordingly, two separate
charge sheets were filed against the accused persons, including the
petitioner.
19. After completion of the investigation, vide letter dated 20.02.2013, the
CBI requested the State Government for sanction of prosecution
against the petitioner and other accused persons. Since the petitioner
was an IAS officer of the 1988 batch, and sanction for the prosecution
under Section 19 of the Prevention of Corruption Act, 1988 was to be
given by DoPT, being the cadre controlling and competent authority
for removing him from office. The DoPT, Govt. of India, through its
letter dated 21.01.2014, asked CBI to call the comments of the Govt.
of Chhattisgarh, and then the Govt. of Chhattisgarh vide letter dated
11.07.2014 stated that the letter dated 03.02.2001 conveying the
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State Government’s consent under Section 6 of DSPE Act, is not to
be construed as consent. The registration of the case by the CBI was
beyond its jurisdiction. The letter addressed to the Govt. of
Chhattisgarh further mentions that the State Government would
examine the issue for taking appropriate action against the Court
Officers and requested the CBI to send the documents to the
Chhattisgarh Government.
20. After bifurcation of State of Madhya Pradesh and Chhattisgarh, the
DoPT, Govt. of India issued a letter dated 20.12.2000 for granting
consent for extending jurisdiction of DSPE Act stating therein that
since the general consent accorded by the parent State of Madhya
Pradesh is no longer applicable after existence of the new State of
Chhattisgarh, therefore, the Chhattisgarh Government vide its letter
dated 03.02.2001 had granted general consent under Section 6 of the
DSPE Act and subsequently, the DoPT, Govt. of India issued a letter
dated 25.04.2001 for investigation of the offences specified in the
schedule under Section 5 of DSPE Act within the State of
Chhattisgarh. Vide notification dated 19.07.2012, the Chhattisgarh
Government stated that the letter dated 03.02.2001 was not a
consent, as the same was issued without consent of the competent
authority as required under Rule 19 of Part-IV of Rules of the
Executive Government of Chhattisgarh made by the Hon’ble
Governor of the Chhattisgarh in exercise of the powers conferred by
clause 2 and 3 of Article 166 of the Constitution of India and therefore,
the letter dated 03.02.2001 is not to be construed or treated as a letter
15
of consent under Section 6 of DSPE Act. On the request letters dated
24.11.2014, issued by the DoPT, Govt. of India and 18.05.2015,
issued by the CBI for sanction of the prosecution of the petitioner, the
Chhattisgarh Government vide its letter dated 23.06.2015 informed
the CBI that they have already communicated their comments on
11.07.2014 to the DoPT.
21. The petitioner has challenged the notification dated 25.04.2001,
issued by the DoPT, by which the powers and jurisdiction were sought
to be extended to the Chhattisgarh Government by filing the WP No.
8052 of 2011. The letter dated 11.05.2016 issued by the DoPT reveals
that the notification dated 24.05.2001 had a prospective application
and the cases registered pursuant to the said notification must
continue, and only after 14.07.2012, the consent of the State
Government will be required on case to case basis. The Central
Vigilance Commission vide its letter dated 05.04.2017 observed that
the letter dated 03.02.2001 issued by the Chhattisgarh Government is
a consent letter under Section 6 of the DSPE Act, and accordingly, the
notification dated 25.04.2001 was issued by the DoPT. The said
notification was withdrawn by a corrigendum dated 19.07.2012, and
therefore, the CBI is not empowered to take action on cases w.e.f.
19.07.2012, based on the earlier notification dated 25.04.2001. In the
instant case, since the FIR was registered on 04.01.2010, and on that
day, the notification dated 25.04.2001 was in existence, it cannot be
said that the action of the CBI was without jurisdiction. He would also
16
submit that these are the factual matters of the case and matters of
record.
22. The CBI vide letter dated 21.12.2018 further requested the DoPT for
the grant of sanction of prosecution of the petitioner, mentioning that
the Chhattisgarh Government declined to sanction for prosecution on
the ground that no consent was accorded to CBI under Section 6 of
the DSPE Act for registering the case within the territory of the State
of Chhattisgarh. The DoPT vide its letter dated 19.12.2019 advised
the CBI to approach the Ministry of Health and Family Welfare,
Government of Chhattisgarh, and the comments of the Ministry of
Health and Family Welfare received vide letter dated 07.07.2020 and
the same was forwarded to DoPT. The Ministry of Public Grievances
and Pension, Govt. of India accorded sanction for prosecution dated
30.11.2021 under Section 19 of the Prevention of Corruption Act,
1988 (amended in 2018) against the petitioner and then two separate
charge sheets have been filed against the accused persons including
the petitioner and the learned Special Judge (CBI) Raipur took
cognizance of the offence and charges have been framed on
06.12.2023.
23. The petitioner had filed a WP(Crl.) No. 2877 of 2017 before the
Hon’ble Delhi High Court for quashing of the FIR No.
RC-01/E/2010/EOU-VII, dated 04.01.2010 and all the proceedings
emanating therefrom qua the petitioner, which is still pending before
the Hon’ble Delhi High Court.
17
24. He would further submit that the application under Section 207 of
CRPC filed by the petitioner for the supply of copies of the charge
sheet and documents filed by the CBI. Learned Special Judge (CBI)
in its order dated 06.12.2023 has observed that the document, which
has been filed along with the charge sheet, the copies of the same
have already been supplied to the petitioner, and the document has
been filed in its original form under its legibility, under which it has
been seized. No new document can be created to make it legible. The
documents, on which the CBI is not rely and are not part of the charge
sheet, cannot be provided to the petitioner and have rightly rejected
the application filed by the petitioner under Section 207 of the CRPC.
It is further submitted that before framing the charge against the
petitioner, his counsel was heard on the point of charge, and then the
charge has been framed against the petitioner. The order sheet dated
06.12.2023 clearly reveals that the counsel of the petitioner was
heard before the framing of the charge. There is sufficient prima facie
material available in the charge sheet against the petitioner for
framing of charge and to proceed with the trial of the case, which has
rightly been done by the learned Special Judge (CBI), and therefore,
there is no merit in the petition and the same is liable to be dismissed.
25. I have heard learned counsel for the parties and perused the material
annexed with the petition by the respective parties.
26. Three main issues have been raised by the petitioner in the present
petition i.e. (i) the application of Section 207 of CRPC has wrongly
18
been rejected by the learned trial Court, (ii) before framing of charge,
no proper opportunity of hearing was provided to the petitioner as
provided under Sections 226 to 228 of the CRPC, and (iii) despite the
interim order passed by the Hon’ble Delhi High Court, the learned trial
Court proceeded in the matter by erroneously applying the principles
laid down in the case of “Asian Resurfacing of Road Agency
Private Limited” (supra).
27. So far as the rejection of the application under Section 207 of CRPC
is concerned, the petitioner has filed the application for the supply of
certain documents on 05.04.2023. In the application dated 05.04.2023
(Annexure P/25), the petitioner averred that after perusal of the
charge sheet, it was noticed that the copies of some vital documents
had not been supplied to the petitioner, and he claimed the following
documents, by way of his application dated 05.04.2023:-
“4. That by means of the present application, the
Accused is seeking the supply of the following
documents, which has not been provided to him
along with the charge-sheet:
a. Copy of the letter from the CBI to the State
of Chhattisgarh seeking consent to
investigate the present FIR in the State of
Chhattisgarh under section 6 of the Delhi
Special Police Establishment Act, 1946.
b. Copy of the consent letter from the State
of Chhattisgarh to the CBI under the Delhi
Special Police Establishment Act, 1946 to
investigate the present FIR.
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c. Copy of the letter by the CBI seeking
prosecution sanction against Mr. Babulal
Agrawal under the Prevention of Corruption
Act, 1988 from the State of Chhattisgarh.
d. Copy of the letter by the CBI seeking
prosecution sanction against Mr. Babulal
Agrawal under the Prevention of Corruption
Act, 1988 from the Government of India,
DOPT.
e. Copy of the letter by the CBI seeking
prosecution sanction against Mr. D.K Sen
under the Prevention of Corruption Act, 1988
from the State of Chhattisgarh.
f. Copy of the letter by the CBI seeking
prosecution sanction against Dr. Pramod
Singh under the Prevention of Corruption
Act, 1988 from the State of Chhattisgarh.
g. Copy of the letter by the CBI seeking
prosecution sanction against Mr. S.L Patel
under the Prevention of Corruption Act, 1988
from the State of Chhattisgarh.
h. Copy of the letter by the CBI seeking
prosecution sanction against Mr. OP Verma
under the Prevention of Corruption Act, 1988
from the State of Chhattisgarh.
i.. Copy of the Guidelines issued by the National Vecter Borne Disease Control Programme (NVBDCP) to the State of Chhattisgarh implement the Enhances Malaria Control Program.
j. Copy of the current registration status of
the State Malaria Control Society
(registration No. 305).
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k. Copy of the revised Guidelines (2004)
issued by the National Vecter Borne Disease
Control Programme (NVBDCP) to the State of
Chhattisgarh implement the Enhances
Malaria Control Program.
l. Copy of the letter No. SN/MAL/2005/264
dated 23.04.2005 by the State of
Chhattisgarh.
m. Copy of the Document reflecting
disbursement of Rs. 2,44,42,000/- to SMCS
Raipur.
n. Complaint by Dr. Krishnan Murti Bandhi
against Mr. Babulal Agrawal for fraudulently
obtaining approval.
o. Letter by Mr. Babulal Agrawal seeking
administrative approval from Dr. Krishnan
Murti Bandhi for expenditure under the
Enhances Malaria Control Program.
p. Copy of the Document reflecting Mr.
Babulal Agrawal as the Chairman of SMCS
Raipur in the year 2005-06.
q. Copy of the Annual Action Plan prepared
by SMCS Raipur under the chairmanship of
Mr. Babulal Agrawal.
r. Copies of the supply orders signed by Mr.
Babulal Agrawal under the Enhances Malaria
Control Program.
s. Copy of the letter sent to the registrar of
firms by the CBI seeking information of the
private firms.
21
t. Copy of the Documents seized vide search
list dated 14.01.2010 from the premises of
Shri Ashok Kumar Nihichlani.
u. List of Documents recovered from the
Hard Disk recovered from the premises of
Shri Ashok Kumar Nihichlanı.
v. Copies of Documents seized vide search
dated 14.01.2010 from the premises of Mr.
Sunil Nihichlani.
5. That the Accused has been provided with some
documents which are not legible and therefore the
Accused in order to be able to put up his case
requires the legible copies of the following
documents:
a. Legible copy of Document No. 12 from the
List of Documents in the 1 Chargesheet
namely, One file titled “Anil Medical 2005-06,
outstanding” containing pages 1 to 161.
b. Legible copy of Document No. 25 from the
List of Documents in the 1″ Chargesheet
namely, One file containing pages 1 to 46 M/s
Anil Medical Agency.
c. Legible copy of Document No. 51 from the
List of Documents in the 1 Chargesheet
namely, One original file no. M-
14014/40/2005-MAL containing Note sheet
Page No. 1 to 13 and correspondence pages
1 to 188.
d. Legible copy of Document No. 55 from the
List of Documents in the 1 Chargesheet
namely, One file in original containing pages
01-33/C in R/o International Scientific
Services, 24A, Dawa Bazaar, Raipur.
22
e. Legible copy of Document No. 57 from the
List of Documents in the 1 Chargesheet
namely, Original file 0/0 CTO Circle III,
bearing No. 403/2005-06 TIN-2251130788
containing pages 01-06 Note sheet page and
attached page 01-41/C in R/o Ahuja Trading
Co. 54A, Sadani Nagar, Mana Road, Raipur.
f. Legible copy of Document No. 66 from the
List of Documents in the 1st Chargesheet
namely, Original A/c opening form of M/s Fair
Enterprises, Ahuja Trading Co., M/s Ashoka
Advertiser, Sunil Agarwal, Santosh Kumar
and Muskan Medical Agency received from
IDBI Bank Ltd., Raipur. (Relevant AOF are M/s
Ahuja Trading Co., M/s Ashoka advertiser,
Fair Enterprises.
g. Legible copy of Document No. 85 from the
List of Documents in the 1″ Chargesheet
namely, Letter No. D C (enft.)/CT/N/2011/474
dated 09.08.2011 of Sh. Manish Mishra,
Commercial Tax Officer, Raipur.
6. That the Accused must be supplied with a copy of
all the statements of witnesses recorded by the
Prosecution:
a. That a very valuable right has been
provided to the Accused under the proviso to
Section 162 (1) of the Cr.P.C. and the
Accused can exercise this right only if the
copies of the statements made by the
witnesses during the investigation, whether
recorded under Section 161(3) of Cr.P.C. or in
the police diary maintained under Section
172 Cr.P.C., are supplied to him.
b. That it follows that the Accused is entitled
to the copies of statement of persons whom
the prosecution proposes to examine as
23
witnesses even though those statements are
recorded in the police diary maintained
under Section 172 of Cr.P.C.
c. That moreover, if the Investigating Officer
has recorded more than one statement of a
witness, then all the statements are required
to be supplied to the Accused, as the same
shall enable the Accused to avail his rights
under Section 162 Cr.P.C. In this regard,
reliance is placed upon S. J. Chowdhary Vs.
State 1984 CRI.L. J. 864.
d. That in case the prosecution is permitted
to withhold what might be vital evidence for
an Accused to establish his
innocence/defence, then the unscrupulous
investigating agency would, with utmost
ease, be able to keep the Hon’ble Court in the
dark.
e. That therefore, the Accused humbly
submits before this Hon’ble Court for the
supply of all the statements recorded under
Section 161 Cr.P.C. of witnesses, even which
have not been relied upon by the
Prosecution in the present matter.
f. That the Hon’ble High Court of Delhi in the
matter of Ashutosh Verma Vs. CBI: Crl. M.C.
No. 79/2014 dated 04.12.2014 has held that:
“24. At this juncture, it is relevant to mention
that Section 172 (1A) of Cr.P.C. has been
amended w.e.f. 31.12.2009 to expressly state
that all the statements recorded under
Section 161 Cr.P.C. have to be necessarily
recorded in the case diary.
25. The words ‘such statement or any record
thereof, whether in a police diary or
24otherwise, or any part of such statement or
record in sub-section (1) of Section 162 of
Cr.P.C. make it abundantly clear that the
statement of witnesses recorded during
investigation even if taken down in police.
diary maintained under Section 172 of
Cr.P.C., can be used by the’ accused for the
purposes specified in proviso to Section
162(1) of Cr.P.C. A very valuable right is given
to the accused under proviso to Section
162(1) of Cr.P.C. and he can exercise this
right only if the copies of the statements
made by the witnesses during the
investigation, whether recorded under
Section 161(3) of Cr.P.C. or in the police diary
maintained under Section 172 of Cr.P.C. are
supplied to him. It follows that the accused is
entitled to the copies of statement of persons
whom the prosecution proposes to examine
as witnesses even though those statements
are recorded in the police diary maintained
under Section 172 of Cr.P.C.
8. That the Prosecution therefore is liable to
supply the copy of the statements of thewitnesses to the Applicant/Accused.”
28. Section 207 of CRPC provided the supply to the accused of copy of
police report and other documents, which reads as under:-
“207. Supply to the accused of copy of police report
and other documents.–In any case where the
proceeding has been instituted on a police report, the
Magistrate shall without delay furnish to the accused,
free of cost, a copy of each of the following:–
(i) the police report;
25
(ii) the first information report recorded under
section 154;
(iii) the statements recorded under sub-section
(3) of section 161 of all persons whom the
prosecution proposes to examine as its
witnesses, excluding therefrom any part in
regard to which a request for such exclusion has
been made by the police officer under sub-
section (6) of section 173;
(iv) the confessions and statements, if any,
recorded under section 164;
(v) any other document or relevant extract
thereof forwarded to the Magistrate with the
police report under sub-section (5) of section
173:
Provided that the Magistrate may, after perusing any
such part of a statement as is referred to in clause (iii)
and considering the reasons given by the police officer
for the request, direct that a copy of that part of the
statement or of such portion thereof as the Magistrate
thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that
any document refer red to in clause (v) is voluminous,
he shall, instead of furnishing the accused with a copy
thereof, direct that he will only be allowed to inspect it
either personally or through pleader in Court.”
29. From perusal of the impugned order dated 06.12.2023 (Annexure
P/1), it reveals that the petitioner prayed for 22 new documents from
(a) to (v) mentioned in para 4 of the application, 7 legible documents
from (a) to (g) mentioned in para 5 of the application and all the
documents, sealed/seized during the investigation and all the
26
statements recorded under Section 161 of CRPC. Learned Special
Judge (CBI) has observed in its order that the documents mentioned
in serial No. (a) to (h) are their internal communication between CBI,
Chhattisgarh Government, Govt. of India and DoPT and it is not
relevant in the trial of the present case and related to the official
proceeding and not required to be supplied to the petitioner. The
prosecution sanction order issued by the Govt. of India, DoPT, has
been filed as document No. D-132 and D-133, and the copies of the
same have already been supplied to the petitioner/ accused. The
desired documents mentioned in serial No. (i) to (s) are the listed
documents of the charge sheet, and the copies of the same have
already been supplied to the petitioner/ accused. The desired
documents mentioned in serial No. (t), (u) and (v) are the documents
of serial No. D-39, D-100 and D-44 and the copies of all these
documents have already been supplied to the petitioner/accused. It is
also observed by the learned trial Court that the claim of the petitioner
in para 5 of the application for providing legible copies of the
documents, but the documents seized by the CBI in the condition or
its legibility, the copies of the same have been annexed with the
charge sheet in its true form and to make it legible, no new document
can be created or prepared. It is further observed that, as per the
submission of the CBI, there is no provision to supply copies of the
statements of the co-accused persons under clauses 14.27 and 14.28
of the CBI Manual, and the copies of the statements recorded under
Section 161 of CRPC have already been supplied to the
27
petitioner/accused. It is further observed in the order impugned that
the documents on which the CBI is not relying have also been
disclosed in Annexure-A and Annexure-B, which are annexed with the
charge sheet and the copies of the same have also been provided
and supplied to the petitioner/accused.
30. In the matter of “In Re: To issue certain guidelines Regarding
Inadequacies and Deficiencies in Criminal Trial v. State of Andhra
Pradesh”, Live Law 2021 SC 224, the Hon’ble Supreme Court has
observed that:-
“11. The amici pointed out that at the
commencement of trial, accused are only furnished
with list of documents and statements which the
prosecution relies on and are kept in the dark about
other material, which the police or the prosecution
may have in their possession, which may be
exculpatory in nature, or absolve or help the
accused. This court is of the opinion that while
furnishing the list of statements, documents and
material objects under Sections 207/208, Cr. PC, the
magistrate should also ensure that a list of other
materials, (such as statements, or objects/
documents seized, but not relied on) should be
furnished to the accused. This is to ensure that in
case the accused is of the view that such materials
are necessary to be produced for a proper and just
trial, she or he may seek appropriate orders, under
the Cr. PC. 3 for their production during the trial, in
the interests of justice. It is directed accordingly;
the draft rules have been accordingly modified.
[Rule 4(i)] ”
28
31. The language of Section 207 of CRPC makes it clear that the
documents, which were annexed with the charge sheet, a copy of the
same shall be supplied to the accused, so that he may go through the
documents supplied to him and understand the charge levelled
against him and then to plead on such a charge. Once the cognizance
of the offence has been taken by the Magistrate, the necessary police
papers as referred to in Section 207 of the CRPC are presumed to be
before him. Section 173(5) of CRPC provides that:-
“173. Report of police officer on completion of
investigation.–
(5) When such report is in respect of a case to
which section 170 applies, the police officer shall
forward to the Magistrate along with the report–
(a) all documents or relevant extracts thereof on
which the prosecution proposes to rely other
than those already sent to the Magistrate during
investigation;
(b) the statements recorded under section 161 of
all the persons whom the prosecution proposes
to examine as its witnesses.”
32. While considering the application of the petitioner/accused, the
learned trial Court comes to the conclusion that the copies of all the
documents, which have been annexed with the charge sheet, have
already been supplied to the petitioner/accused and certain
documents, which he sought for, are seized/collected from the office
and residence of co-accused persons, which are related to routine
official works, which are not relevant in the present case and the
29
prosecution has not annexed those documents in the charge sheet.
Even if the petitioner/accused considers it to be proper for his
defence, he may have obtained its true copy under the Right to
Information Act from the concerned department, and thus, rejected
the application, in which this Court does not find any perversity or
illegality in rejecting the application of Section 207 of CRPC filed by
the petitioner/accused.
33. Further, Clauses 14.27 and 14.28 of the CBI Manual provided for the
mode of investigation that if the suspect appears before the
investigating officer, he should record his statement, which is in the
garb of Section 27 of the Indian Evidence Act, 1872. The issue here is
the claim of supply of the document as claimed by the
petitioner/accused in his application filed under Section 207 of the
CRPC. The documents, which were shown in the charge sheet,
copies of which have been supplied to the petitioner/accused. For
reference, the provisions of Clauses 14.27 and 14.28 is reproduced
below, which have been averred in the application of the
petitioner/accused filed under Section 207 of CRPC:-
“14.27 When a suspect appears before the
Investigating Officer, he should be examined
thoroughly on all points. His statement should be
carefully recorded with a view to ascertain his
defense and to find out the cases from which the
evidence could be gathered to verify his defense
and to prove the charges against him during the
course of further investigation. The accused may be
informed of the charge against him and questioned
thoroughly to seek his explanation. If the accused
30makes any specific disclosure of material objects
used in the commission of offence, his disclosure
statement should be recorded in the presence of
witnesses and recovery of the articles, weapons etc.
so disclosed by him should be made as per the
provisions of Section 27 of the Evidence Act. All the
points or arguments advanced by the accused
should be looked into and thoroughly verified by
the Investigating Officer. It should be ensured that
complete statement of the accused is recorded and
the points arising there from are looked into during
the course of investigation, so that the prosecution
is fully prepared to meet the defense of the
accused/suspect.
14.28 The 1.0. shall, in all important cases, prepare
questionnaires for examining the accused and shall
record his statement initially in the narrative form
and then in the form questionnaire, which should
cover all important points. The record of the
answers given by the accused should then be read
over to him. To prepare the questionnaire in
important and/or complicated cases, guidance of
the Senior Officers should be taken.”
34. So far as the second issue raised by the petitioner that he has not
been heard before framing of charge as required under Sections 226
and 228 of CRPC is concerned, from perusal of the order impugned, it
has clearly been mentioned that although learned counsel appearing
for the petitioner/accused, sought adjournment for preparation for
argument on charge, but after rejecting the prayer made by learned
counsel for the petitioner/accused, Mr. D.S. Rajput, Advocate who
was representing the petitioner/accused before the learned trial Court,
was heard on the point of charge and then the learned trial Court has
considered the material/evidence available in the charge sheet
31
against the petitioner/accused and has framed charge against him.
The relevant part of the order in this respect is reproduced
hereinbelow:-
“अतः आवेदक / आरोपी बाबूलाल अग्रवाल की ओर से आरोप पूर्व
तर्क प्रस्तुत करने का निर्देश दिया गया। आवेदक / आरोपी
बाबूलाल अग्रवाल की ओर से उसके अधिवक्तागणों ने आरोप पूर्व
तर्क की तैयारी नहीं होना बताते हुये समय दिये जाने का निवेदन
किया। प्रकरण दिनांक 15.03.2023 के पश्चात् से आरोपी
बी.एल.अग्रवाल के संबंध में आरोप पूर्व तर्क हेतु बढ़ाया जाता रहा
है। इसी बीच आरोपी की ओर से धारा 207 दं.प्र.सं. का आवेदन
पेश किया गया, जिसके जवाब/तर्क की कार्यवाही भी साथ ही
चलती रही है, अतः आरोप पूर्व तर्क की तैयारी के लिये पर्याप्त से
अधिक समय दिया जा चुका है। पुनः समय दिये जाने की
आवश्यकता दर्शित नहीं होने के कारण निवेदन अस्वीकृ त किया
गया।
तत्पश्चात् आरोपी बाबूलाल अग्रवाल की ओर से अधिवक्ता श्री
डी.एस. राजपूत ने आरोप पूर्व तर्क करते हुये यह व्यक्त किया कि
इस न्यायालय को आरोपी बाबूलाल अग्रवाल के विरूद्ध आरोप
निर्धारण करने एवं प्रकरण का विचारण करने का क्षेत्राधिकार ही
नहीं है, क्योंकि छ०१० राज्य शासन ने इस राज्य के लिये धारा 06
डी.एस. पी. ई. एक्ट के तहत सीबीआई को किसी भी प्रकरण में
जांच एवं अभियोग पत्र प्रस्तुति की अनुमति नहीं दी है। यह तर्क भी
किया गया कि क्षेत्राधिकार ना होने के संबंध में ही माननीय उच्च
न्यायालय नई दिल्ली के समक्ष पूर्वोक्त उल्लेखित रिट पिटिशन पेश
की गई है. अतः इस न्यायालय को इस प्रकरण में क्षेत्राधिकार ना
होने से आरोपी को उन्मोचित किया जाये।
विचार किया गया। इस न्यायालय द्वारा प्रथम दृष्ट्या क्षेत्राधिकार
होने के आधार पर आरोपी बाबूलाल अग्रवाल के विरुद्ध अपराध
का संज्ञान लिया जा चुका है एवं आपराधिक प्रकरण पंजीकृ त
किया जा चुका है। आरोप स्तर पर अभियोग पत्र तथा संलग्न
दस्तावेजों के सत्य होने की विधिक उपधारणा अपेक्षित है, प्रकरण
के गुणदोषों पर विचार आवश्यक नहीं है।
अतः आरोपी बाबूलाल अग्रवाल के विरूद्ध प्रथम दृष्ट्या भादसं
1850 की धारा 120 बी, धारा 420, 467, 468, 471, सहपठित
धारा 120-बी एवं भ्रष्टाचार निवारण अधिनियम 1988 की धारा 13
32(2) एवं 13 (1) (डी) के तहत आरोप निर्धारित किये जाने के लिये
पर्याप्त आधार दर्शित होने के कारण उक्त धाराओं के तहत
विधिवत् आरोप पत्र विरचित कर आरोपी को पढ़कर सुनाया व
‘समझाया गया, उत्सने आरोप अस्वीकार किये। आरोपी का
अभिवाकु उसी के शब्दों में दर्ज किया गया।”.
35. The learned trial Court, after hearing the petitioner/accused and the
prosecution, framed the charge against the petitioner/accused on the
basis of the evidence available in the charge sheet and allegations
levelled against him. In the matter of “State (NCT of Delhi) v. Shiv
Charan Bansal and others” 2020 (2) SCC 290, the Hon’ble Supreme
Court has held that, at the stage of framing of charge, the trial Court is
not required to conduct a meticulous appreciation of evidence or a
roving inquiry into the same and has the power to shift and weigh the
evidence for the limited purpose of finding out, whether or not, a prima
facie case has been made out against the accused. Further, the
charge was framed against the petitioner/accused on 06.12.2023 and
denying the charges levelled against him, he signed the charge memo
on 06.12.2023 itself, but he has not challenged the order framing
charge immediately and has challenged the same by way of this
petition, which has been filed on 18.09.2024 along with other issues.
Therefore, the ground raised by the petitioner that he was not
provided any opportunity of hearing before framing of the charge is
not tenable, and no illegality is found in the impugned order on this
issue.
36. The third issue raised by the petitioner is that he has filed a WP(Crl.)
No. 2877 of 2017 before the Hon’ble Delhi High Court, in which on
33
11.05.2023, the Hon’ble Delhi High Court had directed for
adjournment of the hearing of the trial Court till after the next date
before the Delhi High Court and the matter was fixed for 28.08.2023.
Para 4 of the order dated 11.05.2023 (Annexure P/27) is reproduced
hereinbelow:-
“4 Since the matter is listed before the learned trial
court on 12.05.2023, the hearing be adjourned till
after the next date before this Court.”
37. On 28.08.2023, the Delhi High Court extended the interim order dated
28.03.2023 to continue till the next date of hearing. It has also been
observed in para 5 of the order dated 28.08.2023 that learned counsel
appearing for CBI before the Delhi High Court raised an objection that
the Delhi High Court has no jurisdiction to pass any order, much less
an interim order staying the proceedings before the Special Judge
(CBI) Raipur. Para 4 and 5 of the order dated 28.08.2023 is
reproduced hereinbelow:-
“4. In the meanwhile, the interim orders as directed
vide order dated 28.03.2023 to continue till the next
date of hearing.
5. Mr. Kartik Kaushal, learned counsel submits that
there is a preliminary objection raised on behalf of
the respondent that this Court would not have any
jurisdiction to pass any order much less an interim
order staying the proceedings before the Special
Judge, CBI Court, Raipur Chhattisgarh.”
34
38. Thereafter, on 29.08.2023, the order dated 28.08.2023 stands
corrected in the following manner, which has been given in para 2
that:-
“2. Para 4 of the order dated 28.08.2023 stands
corrected and shall now be read as under :-
“In the meanwhile, the interim orders as
directed vide order dated 28.03.2023 and
11.05.2023 to continue till the next date of
hearing.””
39. Again on 05.12.2023, the interim order was continued.
40. On 06.12.2023, the learned counsel appearing for the CBI prayed for
further proceedings in the matter relying upon the case of “Asian
Resurfacing of Road Agency Private Limited” (supra), order dated
28.03.2018, which was objected by the petitioner/accused in view of
the judgment passed by Hon’ble Supreme Court in the matter of
“High Court Bar Association, Allahabad” (supra) and would submit
that the ratio in “Asian Resurfacing of Road Agency Private
Limited” (supra) is considering by the Constitutional Bench and
therefore, till the decision of the Constitutional Bench of Hon’ble
Supreme Court, the judgment of “Asian Resurfacing of Road
Agency Private Limited” (supra) is not binding. Since the order
dated 05.12.2023, passed in WP(Crl.) No. 2877 of 2017 is a one-line
order of continuation of the interim order, and the same is not in
accordance with the observation made by Hon’ble Supreme Court in
“Asian Resurfacing of Road Agency Private Limited” (supra) and
35
not the speaking order, and therefore, after expiration of six months, it
cannot be said to be effective, as the same has not been extended by
any speaking order and has proceeded in the case.
41. In the matter of “Asian Resurfacing of Road Agency Private
Limited” (supra), 2018 (16) SCC 299, in para 52 to 64, the Hon’ble
Supreme Court has held that:-
“52. The question as to whether the inherent power
of a High Court would be available to stay a trial
under the Act necessarily leads us to an inquiry as
to whether such inherent power sounds in
constitutional, as opposed to statutory law. First
and foremost, it must be appreciated that the High
Courts are established by the Constitution and are
courts of record which will have all powers of such
courts, including the power to punish contempt of
themselves (See Article 215). The High Court, being
a superior court of record, is entitled to consider
questions regarding its own jurisdiction when
raised before it. In an instructive passage by a
Constitution Bench of this Court in In re Special
Reference 1 of 1964, (1965) 1 SCR 413 at 499,
Gajendragadkar, C.J. held:
“138. Besides, in the case of a superior Court
of Record, it is for the court to consider
whether any matter falls within its
jurisdiction or not. Unlike a Court of limited
jurisdiction, the superior Court is entitled to
determine for itself questions about its own
jurisdiction. “Prima facie”, says Halsbury,
“no matter is deemed to be beyond the
jurisdiction of a superior court unless it is
expressly shown to be so, while nothing is
within the jurisdiction of an inferior court
unless it is expressly shown on the face of
36the proceedings that the particular matter is
within the cognizance of the particular court”
[Halsbury’s Law of England, Vol. 9, p. 349].”
53. Also, in Ratilal Bhanji Mithani v. Assistant
Collector of Customs, 1967 SCR (3) 926 at 930-931,
this Court had occasion to deal with the inherent
power of the High Court under Section 561-A of the
Code of Criminal Procedure, 1898, which is
equivalent to Section 482 of the Code of Criminal
Procedure, 1973. It was held that the said Section
did not confer any power, but only declared that
nothing in the Code shall be deemed to limit or
affect the existing inherent powers of the High
Court. The Court then went on to hold:
“10. The proviso to the article is not material
and need not be read. The article enacts that
the jurisdiction of the existing High Courts
and the powers of the judges thereof in
relation to administration of justice “shall
be” the same as immediately before the
commencement of the Constitution. The
Constitution confirmed and re-vested in the
High Court all its existing powers and
jurisdiction including its inherent powers,
and its power to make rules. When the
Constitution or any enacted law has
embraced and confirmed the inherent
powers and jurisdiction of the High Court
which previously existed, that power and
jurisdiction has the sanction of an enacted
“law” within the meaning of Art. 21 as
explained in A. K. Gopalan’s case (1950 SCR
88). The inherent powers of the High Court
preserved by Sec. 561-A of the Code of
Criminal Procedure are thus vested in it by
“law” within the meaning of Art. 21. The
procedure for invoking the inherent powers
is regulated by rules framed by the High
37Court. The power to make such rules is
conferred on the High Court by the
Constitution. The rules previously in force
were continued in force by Article 372 of the
Constitution. The order of the High Court
canceling the bail and depriving the
appellant of his personal liberty is according
to procedure established by law and is not
violative of Art. 21.”
54. It is thus clear that the inherent power of a Court
set up by the Constitution is a power that inheres in
such Court because it is a superior court of record,
and not because it is conferred by the Code of
Criminal Procedure. This is a power vested by the
Constitution itself, inter alia, under Article 215 as
aforestated. Also, as such High Courts have the
power, nay, the duty to protect the fundamental
rights of citizens under Article 226 of the
Constitution, the inherent power to do justice in
cases involving the liberty of the citizen would also
sound in Article 21 of the Constitution. This being
the constitutional position, it is clear that Section
19(3)(c) cannot be read as a ban on the
maintainability of a petition filed before the High
Court under Section 482 of the Code of Criminal
Procedure, the non-obstante clause in Section 19(3)
applying only to the Code of Criminal Procedure.
The judgment of this Court in Satya Narayan
Sharma v. State of Rajasthan, (2001) 8 SCC 607 at
paragraphs 14 and 15 does not, therefore, lay down
the correct position in law. Equally, in paragraph 17
of the said judgment, despite the clarification that
proceedings can be “adapted” in appropriate cases,
the Court went on to hold that there is a blanket ban
of stay of trials and that, therefore, Section 482,
even as adapted, cannot be used for the aforesaid
purpose. This again is contrary to the position in
law as laid down hereinabove. This case, therefore,
stands overruled.
38
55. At this juncture it is important to consider the 3-
Judge bench decision in Madhu Limaye (supra). A
3-Judge bench of this Court decided that a Section
482 petition under the Code of Criminal Procedure
would be maintainable against a Sessions Judge
order framing a charge against the appellant under
Section 500 of the Penal Code, despite the
prohibition contained in Section 397(2) of the Code
of Criminal Procedure. This was held on two
grounds. First, that even if Section 397(1) was out of
the way because of the prohibition contained in
Section 397(2), the inherent power of the Court
under Section 482 of the Code of Criminal
Procedure would be available. This was held after
referring to Amar Nath v. State of Haryana, (1977) 4
SCC 137, which was a 2-Judge Bench decision,
which decided that the inherent power contained in
Section 482 would not be available to defeat the bar
contained in Section 397(2). The 3-Judge referred to
the judgment in Amar Nath (supra) and said:
“7. For the reasons stated hereinafter we
think that the statement of the law apropos
Point No. 1 is not quite accurate and needs
some modulation. But we are going to
reaffirm the decision of the Court on the
second point.” (at page 554) This Court, in an
important paragraph, then held:
“10. As pointed out in Amar Nath case 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 of the cases finally. More often than
not, the revisional power of the High Court
was resorted to in relation to interlocutory
orders delaying the final disposal of the
proceedings. The Legislature in its wisdom
decided to check this delay by introducing
39sub-section (2) in Section 397. On the one
hand, a bar has been put in the way of the
High Court (as also of the Sessions Judge)
for exercise of the revisional power in
relation to any interlocutory order, on the
other, the power has been conferred in
almost the same terms as it was in the 1898
Code. On a plain reading of Section 482,
however, it would follow that nothing in the
Code, which would include sub-section (2) of
Section 397 also, “shall be deemed to limit or
affect the inherent powers of the High
Court”, But, if we were to say that the said
bar is not to operate in the exercise of the
inherent power at all, it will be setting at
naught one of the limitations imposed upon
the exercise of the revisional powers. In such
a situation, what is the harmonious way out?
In our opinion, a happy solution of this
problem would be to say that the bar
provided in sub-section (2) of Section 397
operates only in exercise of the revisional
power of the High Court, meaning thereby
that the High Court will have no power of
revision in relation to any interlocutory order.
Then in accordance with one of the other
principles enunciated above, the inherent
power will come into play, there being no
other provision in the Code for the redress of
the grievance of the aggrieved party. But
then, if the order assailed is purely of an
interlocutory character which could be
corrected in exercise of the revisional power
of the High Court under the 1898 Code, the
High Court will refuse to exercise its inherent
power. But in case the impugned order
clearly brings about a situation which is an
abuse of the process of the Court or for the
purpose of securing the ends of justice
interference by the High Court is absolutely
40necessary, then nothing contained in Section
397(2) can limit or affect the exercise of the
inherent power by the High Court. But such
cases would be few and far between. The
High Court must exercise the inherent power
very sparingly. One such case would be the
desirability of the quashing of a criminal
proceeding initiated illegally, vexatiously or
as being without jurisdiction. Take for
example a case where a prosecution is
launched under the Prevention of Corruption
Act without a sanction, then the trial of the
accused will be without jurisdiction and even
after his acquittal a second trial, after proper
sanction will not be barred on the doctrine of
autrefois acquit. Even assuming, although
we shall presently show that it is not so, that
in such a case an order of the Court taking
cognizance or issuing processes is an
interlocutory order, does it stand to reason to
say that inherent power of the High Court
cannot be exercised for stopping the criminal
proceeding as early as possible, instead of
harassing the accused up to the end? The
answer is obvious that the bar will not
operate to prevent the abuse of the process
of the Court and/or to secure the ends of
justice. The label of the petition filed by an
aggrieved party is immaterial. The High Court
can examine the matter in an appropriate
case under its inherent powers. The present
case undoubtedly falls for exercise of the
power of the High Court in accordance with
Section 482 of the 1973 Code, even
assuming, although not accepting, that
invoking the revisional power of the High
Court is impermissible.
56. The second ground on which this case was
decided was that an order framing a charge was not
41a purely interlocutory order so as to attract the bar
of Section 392(2), but would be an “intermediate”
class of order, between a final and a purely
interlocutory order, on the application of a test laid
down by English decisions and followed by our
Courts, namely, that if the order in question is
reversed, would the action then go on or be
terminated. Applying this test, it was held that in an
order rejecting the framing of a charge, the action
would not go on and would be terminated and for
this reason also would not be covered by Section
397(2).
57. This judgment was affirmed by a 4-Judge Bench
in V.C. Shukla v. State through C.B.I. (1980) Supp.
SCC 92 at 128-129, where it was held that under
Section 11 of the Special Courts Act, 1979, the
scheme being different from the Code of Criminal
Procedure, and the Section opening with the words
“notwithstanding anything in the Code”, the
“intermediate” type of order would not obtain, and
an order framing a charge would, therefore, not be
liable to be appealed against, being purely
interlocutory in nature. While holding this, this
Court was at pains to point out:
“45. On a true construction of Section 11(1)
of the Act and taking into consideration the
natural meaning of the expression
‘interlocutory order’, there can be no doubt
that the order framing charges against the
appellant under the Act was merely an
interlocutory order which neither terminated
the proceedings nor finally decided the
rights of the parties. According to the test
laid down in Kuppuswami’s case the order
impugned was undoubtedly an interlocutory
order. Taking into consideration, therefore,
the natural meaning of interlocutory order
and applying the non obstante clause, the
42position is that the provisions of the Code of
Criminal Procedure are expressly excluded
by the non obstante clause and therefore s.
397(2) of the Code cannot be called into aid
in order to hold that the order impugned is
not an interlocutory order. As the decisions
of this Court in the cases of Madhu Limaye v.
State of Maharashtra and Amar Nath & v.
State of Haryana were given with respect to
the provisions of the Code, particularly s.
397(2), they were correctly decided and
would have no application to the
interpretation of s. 11(1) of the Act, which
expressly excludes the provisions of the
Code of Criminal Procedure by virtue of the
non obstante clause.”
58. In Poonam Chand Jain and another v. Fazru,
(2004) 13 SCC 269 at 276-279, this Court was at
pains to point out that the judgment in V.C. Shukla
(supra) was rendered in the background of the
special statute applicable (See paragraph 13).
59. It is thus clear that Madhu Limaye (supra)
continues to hold the field, as has been held in V.C.
Shukla (supra) itself. How Madhu Limaye (supra)
was understood in a subsequent judgment of this
Court is the next bone of contention between the
parties.
60. In Girish Kumar Suneja v. C.B.I., (2017) 14 SCC
809, a 3-Judge Bench of this Court was asked to
revisit paragraph 10 of its earlier order dated 25th
August, 2014, passed in the coal block allocation
cases. While transferring cases pending before
different courts to the Court of a Special Judge, this
Court, in its earlier order dated 25th August, 2014,
had stated:
43
“10. We also make it clear that any prayer for
stay or impeding the progress in the
investigation/trial can be made only before
this Court and no other Court shall entertain
the same.”
Several grounds were argued before this
Court stating that paragraph 10 ought to be
recalled. We are concerned with grounds (i),
(ii) and (vii), which are set out hereinbelow:
“(i) The right to file a revision petition under
Section 397 of the Code of Criminal
Procedure, 1973 or the Cr.P.C. as well
approaching the High Court under Section
482 of the Cr.P.C. has been taken away;
(ii) The order passed by this Court has taken
away the right of the appellants to file a
petition under Articles 226 and 227 of the
Constitution and thereby judicial review,
which is a part of the basic structure of the
Constitution, has been violated which even
Parliament cannot violate;
(vii) The prohibition in granting a stay under
Section 19(3)(c) 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.”
61. This Court referred to the judgment in Amar
Nath (supra) and then to the Statement of Objects
and Reasons for introducing 397(2) of the Code of
Criminal Procedure which, inter alia, stated as
follows:
44
“19… 5(d) the powers of revision against
interlocutory orders are being taken away, as
it has been found to be one of the main
contributing factors in the delay or disposal
of criminal cases;”
62. After referring to Madhu Limaye (supra) and the
difference between interlocutory and intermediate
orders, this Court held in paragraphs 25, 29, 30 and
32 as follows:
“25. This view was reaffirmed in Madhu
Limaye when the following principles were
approved in relation to Section 482 of the
Cr.P.C. in the context of Section 397(2)
thereof. The principles are:
“(1) That the power is not to be resorted to if
there is a specific provision in the Code for
the redress of the grievance of the aggrieved
party;
(2) That it should be exercised very sparingly
to prevent abuse of process of any Court or
otherwise to secure the ends of justice;
(3) That it should not be exercised as against
the express bar of law engrafted in any other
provision of the Code.”
Therefore, it is quite clear that the prohibition
in Section 397 of the Cr.P.C. will govern
Section 482 thereof. We endorse this view.
xxx xxx xxx
29. This leads us to another facet of the
submission made by learned counsel that
even the avenue of proceeding under Section
482 of the Cr.P.C. is barred as far as the
appellants are concerned. As held in Amar
45
Nath and with which conclusion we agree, if
an interlocutory order is not revisable due to
the prohibition contained in Section 397(2) of
the Cr.P.C. that cannot be circumvented by
resort to Section 482 of the Cr.P.C. There can
hardly be any serious dispute on this
proposition.
30. What then is the utility of Section 482
CrPC? This was considered and explained in
Madhu Limaye [Madhu Limaye v. State of
Maharashtra, (1977) 4 SCC 551 : 1978 SCC
(Cri) 10] which noticed the prohibition in
Section 397(2) CrPC and at the same time the
expansive text of Section 482 CrPC and
posed the question: In such a situation, what
is the harmonious way out? This Court then
proceeded to answer the question in the
following manner: (SCC pp. 555-56, para 10)
“10. … In such a situation, what is the
harmonious way out? In our opinion, a happy
solution of this problem would be to say that
the bar provided in sub-section (2) of Section
397 operates only in exercise of the
revisional power of the High Court, meaning
thereby that the High Court will have no
power of revision in relation to any
interlocutory order. Then in accordance with
one of the other principles enunciated above,
the inherent power will come into play, there
being no other provision in the Code for the
redress of the grievance of the aggrieved
party. But then, if the order assailed is purely
of an interlocutory character which could be
corrected in exercise of the revisional power
of the High Court under the 1898 Code, the
High Court will refuse to exercise its inherent
power. But in case the impugned order
clearly brings about a situation which is an
46
abuse of the process of the Court or for the
purpose of securing the ends of justice
interference by the High Court is absolutely
necessary, then nothing contained in Section
397(2) can limit or affect the exercise of the
inherent power by the High Court. But such
cases would be few and far between. The
High Court must exercise the inherent power
very sparingly.”
xxx xxx xxx
32. In Satya Narayan Sharma v. State of
Rajasthan this Court considered the
provisions of the PC Act and held that there
could be no stay of a trial under the PC Act. It
was clarified that that does not mean that the
provisions of Section 482 of the Cr.P.C.
cannot be taken recourse to, but even if a
litigant approaches the High Court under
Section 482 of the Cr.P.C. and that petition is
entertained, the trial under the PC Act cannot
be stayed. The litigant may convince the
court to expedite the hearing of the petition
filed, but merely because the court is not in a
position to grant an early hearing would not
be a ground to stay the trial even temporarily.
With respect, we do not agree with the
proposition that for the purposes of a stay of
proceedings recourse could be had to
Section 482 of the Cr.P.C. Our discussion
above makes this quite clear.” (at pages 832-
834)
However, thereafter, this Court stated the law
thus in paragraph 38:
“38. The Criminal Procedure Code is
undoubtedly a complete code in itself. As
has already been discussed by us, the
47discretionary jurisdiction under Section
397(2) of the Cr.P.C. is to be exercised only in
respect of final orders and intermediate
orders. The power under Section 482 of the
Cr.P.C. is to be exercised only in respect of
interlocutory orders to give effect to an order
passed under the Cr.P.C. 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 Cr.P.C. 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.” (at pages 835-836)
63. According to us, despite what is stated in
paragraphs 25, 29 and 32 supra, the ratio of the
judgment is to be found in paragraph 38, which is
an exposition of the law correctly setting out what
has been held earlier in Madhu Limaye (supra). A
judgment has to be read as a whole, and if there are
conflicting parts, they have to be reconciled
harmoniously in order to yield a result that will
accord with an earlier decision of the same bench
strength. Indeed, paragraph 30 of the judgment sets
out a portion of paragraph 10 of Madhu Limaye
(supra), showing that the Court was fully aware that
Madhu Limaye (supra) did not approve Amar Nath
(supra) without a very important caveat – and the
48caveat was that nothing in Section 397(2) can limit
or affect the exercise of the inherent power by the
High Court. We, therefore, read paragraph 38 as the
correct ratio of the said judgment not only in terms
of the applicability of Section 482 of the Code of
Criminal Procedure, but also in terms of how it is to
be applied.
64. Insofar as petitions under Articles 226 and 227
are concerned, they form part of the basic structure
of the Constitution as has been held in L. Chandra
Kumar v. Union of India and others, (1997) 3 SCC
261 at 301. Here again, the judgment of a
Constitution Bench in Kartar Singh v. State of
Punjab, (1994) 3 SCC 569 at 714, puts it very well
when it says:
“368. … (17) Though it cannot be said that
the High Court has no jurisdiction to
entertain an application for bail under Article
226 of the Constitution and pass orders
either way, relating to the cases under the
Act 1987, that power should be exercised
sparingly, that too only in rare and
appropriate cases in extreme circumstances.
But the judicial discipline and comity of
courts require that the High Courts should
refrain from exercising the extraordinary
jurisdiction in such matters.”
This aspect of Kartar Singh (supra) has been
followed in Girish Kumar Suneja (supra) in
paragraph 40 thereof and we respectfully
concur with the same. In view of the
aforesaid discussion, it is clear that the Delhi
High Court judgment’s conclusions in
paragraph 33 (a), (b) and (d) must be set
aside. “
49
42. In the matter of “Asian Resurfacing of Road Agency Private
Limited and Another v. Central Bureau of Investigation“, 2018 (16)
SCC 340, in para 2, the Hon’ble Supreme Court has held that:-
“2. In view of the judgment of the three-Judge
Bench dated 28-3-2018 and after considering the
material on record, we do not find any ground to
interfere with the order framing charge.
Accordingly, the trial court is directed to proceed
with the matter pending before it. All contentions of
the parties are left open which may be gone into by
the trial court. Parties are directed to appear before
the trial court on 14-5-2018.”
43. Considering the law laid down by the Hon’ble Supreme Court, the
learned trial Court has proceeded in the case and framed the charge
against the petitioner/accused. Although subsequently the judgment
of “High Court Bar Association, Allahabad” (supra) came on
29.02.2024, till that day, the charge had already been framed, and the
learned trial Court had already proceeded. Therefore, no benefit could
be extended to the petitioner by the judgment of “High Court Bar
Association, Allahabad” (supra).
44. In view of the above, this Court is of the opinion that no good grounds
are made out by the petitioner/accused to interfere with the impugned
order dated 06.12.2023 (Annexure P/1) and to set aside the same.
Accordingly, the present CRMP is hereby dismissed.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
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