State through CBI New Delhi Vs Jitender Kumar Singh
PREVENTION OF CORRUPTION ACT, 1988
Section 3 - Power to appoint special Judges
Section 4 - Cases triable by special Judges
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 943 of 2008, Judgment Date: Feb 05, 2014
The Special Judge appointed under Section 3(1) could exercise the
powers under sub-section (3) to Section 4 to try non-PC offence. Therefore,
trying a case by a Special Judge under Section 3(1) is a sine-qua-non for
exercising jurisdiction by the Special Judge for trying any offence, other
than an offence specified in Section 3. “Trying any case” under Section
3(1) is, therefore, a jurisdictional fact for the Special Judge to exercise
powers to try any offence other than an offence specified in Section 3.
Exclusion of the jurisdiction of ordinary Criminal Court, so far as
offences under the PC Act are concerned, has been explicitly expressed
under Section 4(1) of the PC Act, which does not find a place in respect of
non-PC offences in sub-section (3) of Section 4 of the PC Act. Further,
it is not obligatory on the part of a Special Judge to try non-PC offences.
The expression “may also try” gives an element of discretion on the part
of the Special Judge which will depend upon the facts of each case and the
inter-relation between PC offences and non-PC offences.
A Special Judge exercising powers under the PC Act is not expected to
try non-PC offences totally unconnected with any PC offences under Section
3(1) of the PC Act and in the event of a Special Judge not trying any
offence under Section 3(1) of the PC Act, the question of the Special Judge
trying non-PC offences does not arise. As already indicated, trying of a PC
offence is a jurisdictional fact to exercise the powers under Sub-section
(3) of Section 4. Jurisdiction of the Special Judge, as such, has not been
divested, but the exercise of jurisdiction, depends upon the jurisdictional
fact of trying a PC offence. We are, therefore, concerned with the exercise
of jurisdiction and not the existence of jurisdiction of the Special Judge.
The Special Judge after framing the charge for PC and non-PC offences
posted the case for examination of prosecution witnesses, thereafter the
sole public servant died on 2.6.2003. Before that, the Special Judge, in
the instant case, has also exercised his powers under sub-section (3) of
Section 4 of the PC Act and hence cannot be divested with the jurisdiction
to proceed against the non-public servant, even if the sole public servant
dies after framing of the charges. On death, the charge against the public
servant alone abates and since the special Judge has already exercised his
jurisdiction under sub-section (3) of Section 4 of the PC Act, that
jurisdiction cannot be divested due to the death of the sole public
servant.
The trying of any case under the PC Act against a public
servant or a non-public servant, as already indicated, is a sine-qua-non
for exercising powers under sub-section (3) of Section 4 of PC Act. In the
instant case, since no PC offence has been committed by any of the non-
public servants and no charges have been framed against the public servant,
while he was alive, the Special Judge had no occasion to try any case
against any of them under the PC Act, since no charge has been framed prior
to the death of the public servant. The jurisdictional fact, as already
discussed above, does not exist so far as this appeal is concerned, so as
to exercise jurisdiction by the Special Judge to deal with non-PC offences.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.943 OF 2008
State through CBI New Delhi .. Appellant
Versus
Jitender Kumar Singh .. Respondent
WITH
CRIMINAL APPEAL NO.161 OF 2011
J U D G M E N T
K. S. RADHAKRISHNAN, J.
1. We are, in these cases, concerned with the interpretation of various
sections that appear in Chapter II read with Chapter III of the Prevention
of Corruption Act, 1988 (for short “the PC Act”), especially Sections 3, 4,
5 and other related provisions dealing with offences and penalties
appearing in Chapter III of the PC Act.
2. We are, in Criminal Appeal No. 943 of 2008, concerned with the
question whether the Special Judge, after framing charges against a Public
Servant under 13(2) read with Section 13(1)(b) falling under Section 3(1)
of the PC Act and against private persons for offences under Sections 120-
B, 420, 467, 468, 471 IPC can go ahead with the trial of the case against
the private persons for non-PC offences, even after the death of the sole
public servant. In other words, the question is whether, on the death of
the sole public servant, the Special Judge will cease to have jurisdiction
to continue with the trial against the private persons for non-PC offences.
Further question raised is that, assuming that the Special Judge has
jurisdiction under sub-section (3) of Section 4 of the PC Act to proceed
against the private persons, is the Special Judge duty bound to try any non-
PC offence, other than the offences specified under Section 3 of the PC Act
against the accused persons charged at the same trial.
3. In Criminal Appeal No. 161 of 2011, we are concerned with the
question as to whether the Special Judge has jurisdiction under Section
4(3) of the PC Act to try non-PC offences against private persons when no
charges have been framed against public servants for trying a case for
offences under Section 3(1) of the PC Act, since they died before framing
of charges under the PC Act or IPC.
4. We have two conflicting judgments, one rendered by the Delhi High
Court, which is impugned in Criminal Appeal No. 943 of 2008 filed by the
State through Central Bureau of Investigation (CBI), New Delhi and the
other rendered by the Bombay High Court, which is challenged by a private
person in Criminal Appeal No. 161 of 2011.
5. Delhi High Court seems to have taken the view that when public
servants and non-public servants are arrayed as co-accused and some
offences are under the PC Act coupled with other offences under IPC, on
death of a public servant, the offences under the PC Act cannot be
proceeded with and the trial Court has to modify and/or alter and/or amend
the charges. Bombay High Court has taken the view that once the
jurisdiction is vested on a Special Judge, the same cannot be divested on
the death of a public servant and that if a private person has abetted any
offences punishable under the PC Act, he can be tried even without the
public servant, in view of the separate charge levelled against such
private person by the Special Judge.
6. We may first deal with the facts in Criminal Appeal No. 943 of 2008.
The CBI, New Delhi registered a case No. RCSIG 2000/E0001 on 16.5.2000
against one P. K. Samal (A-1), Chief Manager SBI, Jaipur Road, J. K. Singh
(A-2), Director M/s Mideast Integrated Steels Ltd. (MISL), New Delhi, Rita
Singh (A-3), Director M/s MISL, Deepak Singh (A-4) and Proprietor Kesoram
Refractory, New Delhi, under Section 120B read with Sections 420, 467, 471
IPC and Section 13(2) read with Section 13(1)(d) of the PC Act and
substantive offences under Sections 420, 467, 468 and 471 IPC and Section
13(2) read with Section 13(1)(d) of the PC Act alleging that A-1, during
1996-97, was a party to a criminal conspiracy with A-2, A-3, A-4 and others
with the object of cheating IDBI, Mumbai and in pursuance thereof, A-1
abused his official position to cause undue pecuniary advantage to the
accused persons A-2 and A-3 and corresponding loss to IDBI, to the tune of
Rs.3,52,63,550/- by negotiating forged /fictitious invoices purportedly of
M/s. Kesoram Refractories, a B.K. Birla Group Company, Calcutta, against
L.Cs opened by SBI, Jaipur Road.
7. CBI, after completing the investigation, filed charge-sheet on
1.11.2001 before the Special Judge, New Delhi and the Special Judge, on
25.3.2003, after hearing the prosecution as well as the defence counsel,
framed charges against the accused persons under Section 120B read with
Sections 467, 471 and 420 IPC and also under Sections 13(1)(d) and 13(2) of
the PC Act and substantive offences against the accused persons under
Sections 420, 467, 471 IPC and also substantive offences under Sections
13(1)(d) and 13(2) of the PC Act against A-1. All the accused persons
pleaded not guilty and claimed trial.
8. The Special Judge, later, posted the case for prosecution evidence on
10.4.2003 and, on that day, two witnesses were present, but the case was
adjourned. Meanwhile, on 20.6.2003, the sole public servant A-1 died. A-
3 then filed Criminal Revision No. 550 of 2003 before the High Court of
Delhi on 22.7.2003 challenging the order framing the charges against him.
The High Court, on 1.8.2003, directed the trial Court to record only the
examination-in-chief of the witnesses. Accordingly, the examination-in-
chief of 8 prosecution witnesses was recorded on different days. On
28.4.2004, A-2 filed an application before the Special Judge for dropping
the charges in view of the death of A-1, the sole public servant. On
12.5.2004, A-2 filed an application before the High Court as Criminal M.C.
No. 1395/2004 seeking stay of further proceedings before the trial Court,
till charges are amended. The High Court, on 14.5.2004, directed the
trial Court to dispose of the application filed by A-2 for modification,
amendment or alteration of charges on account of death of A-1 and further
directed if the Court feels it necessary, it may add, alter or amend the
charges and proceed in accordance with law.
9. CBI, however, filed objection to the above application before the
Special Judge on 20.5.2004. A-2, on 12.7.2005, filed Criminal Revision No.
535 of 2005 before the High Court for calling of the case pending before
the Special Judge, so as to consider the propriety of not passing any order
on the application for dropping the charges, despite the directions issued
by the High Court. He also prayed for setting aside the charges in view
of the death of the sole public servant. CBI questioned the
maintainability of the revision and also pointed out that there is no
statutory provision vitiating the jurisdiction of the Special Judge on
death of the public servant. The High Court, however, placing reliance on
its earlier judgement in Kartongen Kemi Ochforvaltning AB v. State through
CBI (2004) 1 JCC 218 (Bofors case) held that on the death of a public
servant, the offences under the PC Act cannot be proceeded with and
directed to modify and alter and/or amend the charges in view of the death
of A-1, the legality of which is under challenge in Criminal Appeal No. 943
of 2008.
10. We may now examine the facts in Criminal Appeal No. 161 of 2011. CBI
(Banks Securities & Fraud Cell), Mumbai registered an FIR on 2.7.1996 which
discloses that accused no. 1, the then Chairman and Managing Director of
the Bank of Maharashtra, Pune, who was working as Deputy General Manager of
Bank of Maharashtra along with accused nos. 9 and 10, the employees of the
Bank of Maharashtra, entered into a criminal conspiracy with an intent to
cheat the bank, with the appellant (accused no. 2) and accused Nos. 3 and
5, who were working as the Managing Director, General Manager of M/s Orson
Electronics Limited respectively. It was also alleged in the FIR that,
during 1986-88, A-2 and other accused persons entered into a criminal
conspiracy with the officers of the Bank of Maharashtra and, in pursuance
to the criminal conspiracy, obtained huge credit facilities to the tune of
Rs.20 crore in favour of M/s Orson Electronics Limited and M/s Nihon
Electronics Limited, of which A-2 was the Managing Director/Director,
knowing very well that both the companies were having very low capital and
were new. It was also alleged in the FIR that those funds were not
utilized for the purpose for which the same were obtained from the bank and
were siphoned off through M/s Orson Electronics Limited and other
fictitious firms. Consequently, accused persons failed to repay the funds
of the bank, thereby the bank was cheated to the tune of Rs.20.64 crores.
It was also alleged in the FIR that A-1 had abused his position as public
servant and granted favour to A-2 to A-8 and thereby caused wrongful losses
to the bank.
11. CBI completed the investigation and the charge-sheet was filed on
14.9.2001 against the accused persons for offences punishable inter alia
under Section 120B read with Section 420 IPC and Section 5(2) read with
Section 5(1)(b) of the Prevention of Corruption Act, 1947, corresponding to
Section 13(2) read with Section 13(1)(d) of the PC Act, in the Court of
Special Judge, Mumbai.
12. Accused nos. 9 and 10, though named in the charge-sheet, could not be
sent for trial since they died before the charge-sheet came to be filed on
14.9.2001. On 18.2.2005, A-1, the sole public servant also expired. A-
2, the appellant herein, then preferred an application before the Special
Judge for sending the case to the Metropolitan Magistrate at Bombay for
conducting the trial for offences under IPC, as the offence under the PC
Act was not attracted due to the death of the public servant. It was
pointed out that, in the charge-sheet, two public servants were joined as
accused persons, but only one of them was alive when the charge-sheet was
filed. Further, it was stated that when the charges were sought to be
framed, no public servant was alive, hence, no charges under the PC Act
could be framed. In the absence of any offence under the PC Act, the
Special Judge could not have tried the offences levelled against the
accused persons under the IPC. The application was, however, opposed by CBI
stating that even though the sole public servant had died, the offence
levelled against the accused persons could be tried by the Special Judge.
13. The Special Judge, after hearing the parties, passed the following
order:
“9. On going through the above ratios, it can be said that the
existence of public servant for facing trial before the Special Court
is must and in his absence, private person cannot be tried by Special
Court. In present case, the sole public servant died during the
pendency of this case. The charge is not framed. The accused Nos. 2
to 8 are private persons facing trial for the offences punishable
under Section 409 r/w 120-B of IPC. The said offences are triable by
the Court of Chief Metropolitan Magistrate. Therefore, the case is
required to be sent to Court of Chief Metropolitan Magistrate for
trial as per the law. With this, I pass the following order:-
ORDER
Misc. Application (Exh. 18) is allowed.
Registrar (S) is directed to send case papers of Spl. Case No.88
of 2001 to Chief Metropolitan Magistrate for trial of accused
according to law within period of four weeks from the date of this
order.
Misc. Application (Exh.18) stands disposed of.
Sd/- 5.2.09
(S.P. Tavade)
Special Judge for CBI Cases
Greater Mumbai.”
14. CBI, aggrieved by the said order, preferred Criminal Revision
Application No. 389/2009 before the Bombay High Court. The High Court took
the view that the jurisdiction conferred on the Special Judge is not
divested on the death of an accused. The High Court held that, upon death,
the case against that public servant alone abates and the rest of them can
be proceeded against by the Special Judge, since the Court, once vested
with the jurisdiction, cannot be divested of it on the death of a public
servant. Consequently, the order passed by the Special Judge was set aside
and the Special Judge, CBI, Bombay was directed to continue with the trial
of the case. Aggrieved by the same, Criminal Appeal No. 161 of 2011 has
been preferred by A-2.
15. Shri P.P. Malhotra, learned Additional Solicitor General appearing
for CBI in Criminal Appeal No. 943 of 2008, referred to Sections 3(1) and
4(1) of the PC Act and submitted that irrespective of whether the offence
mentioned in Section 3(1) was committed by a public servant or a private
person, individually or jointly, trial could be conducted only by the
Special Judge who is conferred with the jurisdiction by the Central
Government or the State Government, as the case may be, under the PC Act.
Shri Malhotra submitted that on the death of a public servant, the
jurisdiction once vested on the Special Judge cannot be divested.
Further, it was also pointed out that once the public servant dies, the
charge against him alone would abate, but the jurisdiction of the Court
would not be divested. It was stated that the direction issued by the High
Court was contrary to the statutory provisions and settled principles of
law and is liable to be set aside.
16. Shri K. Radhakrishnan, learned senior counsel appearing for the CBI
in Criminal Appeal no. 161 of 2011, highlighted the objects and reasons of
the PC Act and submitted that once the jurisdiction to try the offence
under the PC Act, as well as the offence under IPC, has been conferred on a
Special Judge, it cannot be divested by the act of parties, even on the
death of a public servant.
17. Shri V. Giri, learned senior counsel and amicus curiae, submitted
that once jurisdiction is conferred on a Special Judge, it cannot be
divested by the subsequent events and on death of the public servant only
the charge against him will abate, but the jurisdiction of the Special
Judge will not be divested.
18. Shri Kawal Nain, learned counsel appearing for the respondents in
Criminal Appeal No. 943 of 2008, also traced the legislative history of the
PC Act as well as the jurisdiction of the ordinary Criminal Court under the
Code, with specific reference to Section 3 of the PC Act read with Section
13(1)(d)(i)(ii) of the PC Act and Section 120B of the IPC. Learned
counsel pointed out that the charge against public servant under Section
13(1)(d)(i)(ii) has abated on his death, consequently, it would not be
possible for the Special Judge to try any offence as against the
respondents, since both are intrinsically interlinked. Learned counsel
pointed out that to establish an offence of conspiracy, there must be two
or more persons as stated in Section 120A IPC.
19. Shri R. Basant, learned senior counsel appearing for the appellant in
Criminal Appeal No. 161 of 2011, has taken the stand that the Special Judge
has no jurisdiction under Section 4(3) of the PC Act to try the offences
punishable under Section 409 read with Section 120B IPC against the
appellant, since there is no public servant in the array of accused
persons. Learned senior counsel submitted, assuming that the Special Judge
has jurisdiction under Section 4(3) of the PC Act, still the Special Judge
has the discretion to decide as to whether he should try any offence, other
than the offence specified in Section 3 of the PC Act. It was pointed out
that the jurisdiction of the Special Judge to try offences specified under
Sections 3(a) and (b) is not only in respect of offences punishable under
the PC Act, but also non-PC offences in view of Section 4(3) of the PC Act,
which is only an enabling provision. Further, it was also pointed out
that when exclusive jurisdiction is conferred on the Special Judge, while
trying offences under Section 3(1)(a) and (b) against public servant as
well as the private persons, the discretion is also conferred on the
Special Judge under Section 4(3) to try non-PC offences as well against
private persons. On the basis of the above legal premises, learned senior
counsel pointed out that, in the instant case, since no charges have been
framed against the public servant under Section 3(1) of the PC Act and that
the public servant is no more, the discretion exercised by the Special
Judge under Section 4(3) of the PC Act should not have been interfered with
by the High Court.
20. We may, before examining the rival contentions raised by the parties,
deal with the objects and reasons for enacting the PC Act. The Indian
Penal Code has provided for punishment for the offence of bribery and
corruption even against the public servants. Parliament, in its wisdom,
noticed that the Penal Code was not adequate to meet the exigencies of time
and a need was felt to introduce a special legislation with a view to
eradicate the evil of bribery and corruption from the society.
Consequently, the Prevention of Corruption Act, 1947 was enacted, which was
amended in the year 1964, based on the recommendations of the Santhanam
Committee. Parliament still felt that the anti-corruption laws should be
made more effective, by widening their coverage and enhancing penalties and
to expedite the proceedings and hence the 1988 Act was enacted.
21. Chapter II of the PC Act deals with the appointment of Special Judges
and Chapter III deals with the offences and penalties. Section 3 of the PC
Act deals with the power to appoint Special Judges, which is extracted
hereunder for an easy reference:
“3. Power to appoint special Judges.- (1) The Central Government or
the State Government may, by notification in the Official Gazette,
appoint as many special Judges as may be necessary for such area or
areas or for such case or group of cases as may be specified in the
notification to try the following offences, namely:-
a) any offence punishable under this Act; and
b) any conspiracy to commit or any attempt to commit or any
abetment of any of the offences specified in clause (a).
(2) A person shall not be qualified for appointment as a special Judge
under this Act unless he is or has been a Sessions Judge or an
Additional Sessions Judge or an Assistant Sessions Judge under the Code
of Criminal Procedure, 1973 (2 of 1974).”
Section 4 of the PC Act deals with the cases triable by Special Judges.
The same is also extracted below:
“4. Cases triable by special Judges.- (1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in
any other law for the time being in force, the offences specified in
sub- section (1) of section 3 shall be tried by special Judges only.
(2) Every offence specified in sub- section (1) of section 3 shall
be tried by the special Judge for the area within which it was
committed, or, as the case may be, by the special Judge appointed for
the case, or where there are more special Judges than one for such
area, by such one of them as may be specified in this behalf by the
Central Government.
(3) When trying any case, a special Judge may also try any offence,
other than an offence specified in section 3, with which the accused
may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged
at the same trial.
(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), a special Judge shall, as far as
practicable, hold the trial of an offence on day- to- day basis.”
Section 5 of the PC Act deals with the procedure and powers of Special
Judge. The same also has some relevance and is extracted below for an easy
reference:
“5. Procedure and powers of special Judge.- (1) A special Judge may
take cognizance of offences without the accused being committed to him
for trial and, in trying the accused persons, shall follow the
procedure prescribed by the Code of Criminal Procedure, 1973 (2 of
1974), for the trial of warrant case by Magistrates.
(2) A special Judge may, with a view to obtaining the evidence of
any person supposed to have been directly or indirectly concerned in,
or privy to, an offence, tender a pardon to such person on condition of
his making a full and true disclosure of the whole circumstances within
his knowledge relating to the offence and to every other person
concerned, whether as principal or abettor, in the commission thereof
and any pardon so tendered shall, for the purposes of sub- sections (1)
to (5) of section 308 of the Code of Criminal Procedure, 1973 (2 of
1974), be deemed to have been tendered under section 307 of that Code.
(3) Save as provided in sub- section (1) or sub- section (2), the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974 .),
shall, so far as they are not inconsistent with this Act, apply to the
proceedings before a special Judge; and for the purposes of the said
provisions, the Court of the special Judge shall be deemed to be a
Court of Session and the person conducting a prosecution before a
special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the
provisions contained in sub- section (3), the provisions of sections
326 and 457 of the Code of Criminal Procedure, 1973 (2 of 1974), shall,
so far as may be, apply to the proceedings before a special Judge and
for the purposes of the said provisions, a special Judge shall be
deemed to be a Magistrate.
(5) A special Judge may pass upon any person convicted by him any
sentence authorised by law for the punishment of the offence of which
such person is convicted.
(6) A special Judge, while trying an offence punishable, under this
Act, shall exercise all the powers and functions exercisable by a
District Judge under the Criminal Law Amendment Ordinance, 1944 (Ord.
38 of 1944).”
22. Section 3(1) of the PC Act confers power on the Central Government or
the State Government to appoint as many Special Judges as may be necessary,
for such area or areas or for such cases or group of cases as will be
specified in the notification to be issued in the Official Gazette. The
Special Judge is so empowered to try any offence punishable under Section
3(1)(a) of the PC Act. The Special Judge is also empowered to try under
Section 3(1)(b) any conspiracy to commit or any attempt to commit or any
abetment of any of the offences specified in clause (a). To make it more
precise, following offences would come within the scope of Section 3(1) of
the PC Act:
(1) Any offence punishable under the PC Act.
(2) Any conspiracy to commit any offence punishable under the PC
Act.
(3) Any attempt to commit any offence punishable under the PC Act.
(4) Any abetment of any offence punishable under the PC Act.
23. Let us examine what are the offences specified in Clause (a) of
Section 3(1) of the PC Act, for which reference has to be made to Chapter
III of the PC Act.
24. Section 7 of the PC Act refers to offences dealing with public
servant taking gratification, other than the legal remuneration in respect
of an official act. Section 10 deals with punishment for abetment by a
public servant of offences defined in Sections 8 and 9. Section 11 of the
PC Act refers to an offence of a public servant obtaining valuable thing,
without consideration from person concerned in proceeding or business
transacted by such public servant. Offences under Sections 7, 10 and 11
can be committed only by the public servant, though an offence under
Section 7 can also be committed by a person expected to be a public
servant. An offence under Section 7 or 11 could also be abetted by a non-
public servant, for which punishment has been prescribed under Section 12
of the PC Act. Section 8 deals with the taking gratification, by corrupt
or illegal means, to influence public servant. Section 9 deals with taking
gratification, for exercise of personal influence with public servant.
Offences under Sections 8 and 9 can be committed by a person who need not
necessarily be a public servant. An offence under Sections 8, 9 or 12 can
be committed by a public servant or by a private person or by combination
of both. Section 13 deals with the criminal misconduct by a public
servant, which is exclusively an offence against the public servant
relating to criminal misconduct. An offence under Sections 13 is made
punishable under Section 15 of the PC Act. The above discussion would
indicate that a public servant as well as a non-public servant can commit
offences punishable under the PC Act.
25. A Special Judge appointed under Section 3(1) of the PC Act has got
jurisdiction to proceed exclusively against a public servant and
exclusively against a non-public servant as well, depending upon the nature
of the offence referred to in Chapter III of the PC Act. Junction of a
public servant is not a must for the Special Judge to proceed against a non-
public servant for any offence alleged to have been committed by him under
Chapter III of the PC Act. As already indicated, an offence under
Section 8 or Section 9 can be committed by non-public servant and he can be
proceeded against under the PC Act without joinder of any public servant.
For example:
- Section 7 of the Act uses the words “Whoever, being, or expecting to
be a public servant….”
- Sections 10 and 11 of the Act use the words “Whoever, being a public
servant….”.
- Section 13 uses the words “A public servant is said to commit…..”.
26. Thus, offences under Sections 7, 10, 11 and 13 of the PC Act can be
committed by a public servant though an offence under Section 7 can be
committed also by a “person expected to be a public servant”. On the other
hand:
- Section 8 uses the words “whoever…”, simpliciter, without using any
other qualifying words.
- Likewise, Sections 9 and 12 also use the words “whoever…”
simpliciter.
27. Thus, an offence under Sections 8, 9 or 12 can be committed by any
person, who need not necessarily be a public servant. Such an offence can,
therefore, be committed by a public servant or by a private person or by a
combination of the two. It is thus clear that an offence under the PC Act
can be committed by either a public servant or a private person or a
combination of both and in view of the mandate of Section 4(1) of the PC
Act, read with Section 3(1) thereof, such offences can be tried only by a
Special Judge.
For example:
- A private person offering a bribe to a public servant commits an
offence under Section 12 of Act. This offence can be tried only by
the Special Judge, notwithstanding the fact that only a private
person is the accused in the case and that there is no public
servant named as an accused in that case.
- A private person can be the only accused person in an offence under
Section 8 or Section 9 of the said Act. And it is not necessary that
a public servant should also be specifically named as an accused in
the same case. Notwithstanding the fact that a private person is
the only accused in an offence under Section 8 or Section 9, it can
be tried only by a Special Judge.
28. Thus, the scheme of the PC Act makes it quite clear that even a
private person who is involved in an offence mentioned in Section 3(1) of
the PC Act, is required to be tried only by a Special Judge, and by no
other Court. Moreover, it is not necessary that in every offence under the
PC Act, a public servant must necessarily be an accused. In other words,
the existence of a public servant for facing the trial before the Special
Court is not a must and even in his absence, private persons can be tried
for PC as well as non-PC offences, depending upon the facts of the case.
29. We, therefore, make it clear that it is not the law that only along
with the junction of a public servant in array of parties, the Special
Judge can proceed against private persons who have committed offences
punishable under the PC Act.
30. Sections 3(1)(a) and (b), it may be noted, deal with only the
offences punishable under the PC Act and not any offence punishable under
IPC or any other law and Section 4(1) of the PC Act makes it more
explicit.
31. Section 4(1) of the PC Act has used a non-abstante clause. It says,
“notwithstanding anything contained in the Code of Criminal Procedure, 1973
(2 of 1974) or in any other law for the time being in force, the offences
specified in sub-section (1) of Section 3 shall be tried by special Judges
only”. Consequently, the offences referred to in Section 3(1) cannot be
tried by the ordinary criminal court, since jurisdiction has been
specifically conferred on a Special Judge appointed under Section 3(1) of
the PC Act. Sub-section (2) of Section 4 also makes it clear, which says
that every offence specified in sub-section (1) of Section 3 shall be tried
by the special Judge for the area within which it was committed, or, as the
case may be, by the special Judge appointed for the case, or, where there
are more special Judges than one for such area, by such one of them as may
be specified in this behalf by the Central Government. A conjoint reading
of Section 3(1) along with Sections 4(1) and (2) would make it amply clear
that only the Special Judge has got the jurisdiction to try the offences
specified in sub-section (1) of Section 3 committed by a public servant or
a non-public servant, alone or jointly.
32 We may now examine the scope of sub-section (3) of Section 4 of the
PC Act, which indicates that “when trying any case”, which means trying any
case relating to the offences referred to in Section 3(1)(a) and (b) of the
PC Act for which exclusive jurisdiction is conferred on the Special Judge.
A Special Judge, while exercising, exclusive jurisdiction, that is, when
trying any case relating to offences under Sections 3(1)(a) and (b) of the
PC Act, may also try any offence other than the offence specified in
Section 3, with which the accused may, under the Code of Criminal
Procedure, 1973 be charged at the same trial. An accused, in a given case,
may be charged under the Code of Criminal Procedure on an offence being
committed under the IPC and the offence specified in Section 3 of the PC
Act. Criminal cases that can be tried by a Special Judge are under the PC
Act and also for the charges under IPC or any other legislation.
Conspiracy to commit any offence either under the PC Act or under the IPC
is a separate offence, has to be separately charged and tried. For
example, the conspiracy to commit offence punishable under the PC Act
itself is an offence to be tried only by a Special Judge. In Ajay Aggarwal
v. Union of India (1993) 3 SCC 609, the Court held as follows:
“….Conspiracy to commit a crime itself is punishable as a
substantive offence and every individual offence committed pursuant to
the conspiracy is separate and distinct offence to which individual
offenders are liable to punishment, independent of the conspiracy. ….”
33. Reference may also be made to the judgments of this Court in Sanichar
Sahni v. State of Bihar (2009) 7 SCC 198 and Mohd. Arif v. State (NCT of
Delhi) (2011) 13 SCC 621.
34. In other words, an accused person, either a public servant or non-
public servant, who has been charged for an offence under Section 3(1) of
the PC Act, could also be charged for an offence under IPC, in the event of
which, the Special Judge has got the jurisdiction to try such offences
against the public servant as well as against a non-public servant. The
legal position is also settled by the Judgment of this Court in Vivek Gupta
v. CBI and another (2003) 8 SCC 628, wherein this Court held that a public
servant who is charged of an offence under the provisions of the PC Act
may also be charged by the Special Judge at the same trial of any offence
under IPC if the same is committed in a manner contemplated under Section
220 of the Code. This Court also held, even if a non-public servant,
though charged only of offences under Section 420 and Section 120B read
with Section 420 IPC, he could also be tried by the Special Judge with the
aid of sub-section (3) of Section 4 of the PC Act. We fully endorse that
view.
35. We are, however, in Criminal Appeal No.161 of 2011, concerned with a
situation where no charge has been framed against the public servant, while
he was alive, under Section 3(1) nor any charge was framed against a
private person for any offence under Section 3(1) of the PC Act. The
Special Judge, therefore, had no occasion to “try any case” under Section
3(1) of the PC Act, either against a public servant or a private person, so
as to try any offence other than an offence specified in Section 3, meaning
thereby, non-PC offences against private person, like the appellant.
36. The Special Judge appointed under Section 3(1) could exercise the
powers under sub-section (3) to Section 4 to try non-PC offence. Therefore,
trying a case by a Special Judge under Section 3(1) is a sine-qua-non for
exercising jurisdiction by the Special Judge for trying any offence, other
than an offence specified in Section 3. “Trying any case” under Section
3(1) is, therefore, a jurisdictional fact for the Special Judge to exercise
powers to try any offence other than an offence specified in Section 3.
37. Exclusion of the jurisdiction of ordinary Criminal Court, so far as
offences under the PC Act are concerned, has been explicitly expressed
under Section 4(1) of the PC Act, which does not find a place in respect of
non-PC offences in sub-section (3) of Section 4 of the PC Act. Further,
it is not obligatory on the part of a Special Judge to try non-PC offences.
The expression “may also try” gives an element of discretion on the part
of the Special Judge which will depend upon the facts of each case and the
inter-relation between PC offences and non-PC offences.
38. A Special Judge exercising powers under the PC Act is not expected to
try non-PC offences totally unconnected with any PC offences under Section
3(1) of the PC Act and in the event of a Special Judge not trying any
offence under Section 3(1) of the PC Act, the question of the Special Judge
trying non-PC offences does not arise. As already indicated, trying of a PC
offence is a jurisdictional fact to exercise the powers under Sub-section
(3) of Section 4. Jurisdiction of the Special Judge, as such, has not been
divested, but the exercise of jurisdiction, depends upon the jurisdictional
fact of trying a PC offence. We are, therefore, concerned with the exercise
of jurisdiction and not the existence of jurisdiction of the Special Judge.
39. The meaning and content of the expression “jurisdictional fact” has
been considered by this Court in Carona Ltd. v. Parvathy Swaminathan & Sons
(2007) 8 SCC 559, and noticed that where the jurisdiction of a Court or a
Tribunal is dependent on the existence of a particular state of affairs,
that state of affairs may be described as preliminary to, or collective to
the merits of the issue. Existence of a jurisdictional fact is thus a sine
qua non or condition precedent to the assumption of jurisdiction by a
Court. In Ramesh Chandra Sankla v. Vikram Cement & Ors. (2008) 14 SCC 58,
this Court held that by erroneously assuming existence of the
jurisdictional fact, a Court cannot confer upon itself jurisdiction which
otherwise it does not possess.
40. We have already indicated that the jurisdictional fact so as to try
non-PC offences is “trying any case” under the PC Act. As noticed by this
Court in Ratilal Bhanji Mithani v. State of Maharashtra (1979) 2 SCC 179,
the trial of a warrant case starts with the framing of charge. Prior to
that the proceedings are only an inquiry. The Court held as follows:-
“Once a charge is framed, the Magistrate has no power under Section
227 or any other provision of the Code to cancel the charge, and
reverse the proceedings to the stage of Section 253 and discharge the
accused. The trial in a warrant case starts with the framing of
charge; prior to it, the proceedings are only an inquiry. After the
framing of the charge if the accused pleads not guilty, the Magistrate
is required to proceed with the trial in the manner provided in
Sections 254 to 258 to a logical end. Once a charge is framed in a
warrant case, instituted either on complaint or a police report, the
Magistrate has no power under the Code to discharge the accused, and
thereafter, he can either acquit or convict the accused unless he
decides to proceed under Section 349 and 562 of the Code of 1898
(which correspond to Sections 325 and 360 of the Code of 1973).”
41. We may now examine whether, in both these appeals, the above test has
been satisfied. First, we may deal with Criminal Appeal No. 943 of 2008.
CBI, in this appeal, as already indicated, submitted the charge-sheet on
1.11.2001 for the offences against A-1, who is a public servant, as well as
against non-public servants. Learned Special Judge had, on 25.3.2003,
framed the charges against the accused persons under Section 120B read
Sections with 467, 471 and 420 IPC and also under Sections 13(1)(d) and
13(2) of the PC Act and substantive offences under Sections 420, 467 and
471 IPC and also substantive offences under Sections 13(1)(d) and 13(2) of
the PC Act against the public servants. Therefore, charges have been
framed against the public servants as well as non-public servants after
hearing the prosecution and defence counsel, by the special Judge on
25.3.2003 in respect of PC offences as well as non-PC offences. As already
indicated, under sub-section (3) of Section 4, when trying any case, a
Special Judge may also try any offence other than the offence specified in
Section 3 and be charged in the same trial. The Special Judge, in the
instant case, has framed charges against the public servant as well as
against the non-public servant for offences punishable under Section 3(1)
of PC Act as well as for the offences punishable under Section 120B read
with Sections 467, 471 and 420 IPC and, therefore, the existence of
jurisdictional fact that is “trying a case” under the PC Act has been
satisfied.
42. The Special Judge after framing the charge for PC and non-PC offences
posted the case for examination of prosecution witnesses, thereafter the
sole public servant died on 2.6.2003. Before that, the Special Judge, in
the instant case, has also exercised his powers under sub-section (3) of
Section 4 of the PC Act and hence cannot be divested with the jurisdiction
to proceed against the non-public servant, even if the sole public servant
dies after framing of the charges. On death, the charge against the public
servant alone abates and since the special Judge has already exercised his
jurisdiction under sub-section (3) of Section 4 of the PC Act, that
jurisdiction cannot be divested due to the death of the sole public
servant.
43. We can visualize a situation where a public servant dies at the fag
end of the trial, by that time, several witnesses might have been examined
and to hold that the entire trial would be vitiated due to death of a sole
public servant would defeat the entire object and purpose of the PC Act,
which is enacted for effective combating of corruption and to expedite
cases related to corruption and bribery. The purpose of the PC Act is to
make anti-corruption laws more effective in order to expedite the
proceedings, provisions for day-to-day trial of cases, transparency with
regard to grant of stay and exercise of powers of revision on interlocutory
orders have also been provided under the PC Act. Consequently, once the
power has been exercised by the Special Judge under sub-section (3) of
Section 4 of the PC Act to proceed against non-PC offences along with PC
offences, the mere fact that the sole public servant dies after the
exercise of powers under sub-section (3) of Section 4, will not divest the
jurisdiction of the Special Judge or vitiate the proceedings pending before
him.
44. We are, therefore, inclined to allow Criminal Appeal No. 943 of 2008
and set aside the order of the High Court and direct the Special Judge to
complete the trial of the cases within a period of six months.
45. We may now examine Criminal Appeal No. 161 of 2011, where the FIR was
registered on 2.7.1996 and the charge-sheet was filed before the Special
Judge on 14.9.2001 for the offences under Sections 120B, 420, IPC read with
Sections 13(2) and 13(1) of the PC Act. Accused 9 and 10 died even before
the charge-sheet was sent to the Special Judge. The charge against the
sole public servant under the PC Act could also not be framed since he died
on 18.2.2005. The Special Judge also could not frame any charge against
non-public servants. As already indicated, under sub-section (3) of
Section 4, the special Judge could try non-PC offences only when “trying
any case” relating to PC offences. In the instant case, no PC offence has
been committed by any of the non-public servants so as to fall under
Section 3(1) of the PC Act. Consequently, there was no occasion for the
special Judge to try any case relating to offences under the PC Act against
the Appellant. The trying of any case under the PC Act against a public
servant or a non-public servant, as already indicated, is a sine-qua-non
for exercising powers under sub-section (3) of Section 4 of PC Act. In the
instant case, since no PC offence has been committed by any of the non-
public servants and no charges have been framed against the public servant,
while he was alive, the Special Judge had no occasion to try any case
against any of them under the PC Act, since no charge has been framed prior
to the death of the public servant. The jurisdictional fact, as already
discussed above, does not exist so far as this appeal is concerned, so as
to exercise jurisdiction by the Special Judge to deal with non-PC offences.
46. Consequently, we find no error in the view taken by the Special
Judge, CBI, Greater Mumbai in forwarding the case papers of Special Case
No. 88 of 2001 in the Court of Chief Metropolitan Magistrate for trying the
case in accordance with law. Consequently, the order passed by the High
Court is set aside. The competent Court to which the Special Case No. 88
of 2001 is forwarded, is directed to dispose of the same within a period of
six months. Criminal Appeal No. 161 of 2011 is allowed accordingly.
eard Hear……………………………..J.
(K. S. Radhakrishnan)
eard Hear……………………………..J.
(A.K. Sikri)
New Delhi,
February 05, 2014.