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
Special Judge to deal with non-PC offences.
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.943 OF 2008
State through CBI New Delhi Vs Jitender Kumar Singh
Citation; 2014 AIR SCW 1153
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
Page 4
4
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,
Page 5
5
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.
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6
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
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7
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
Page 8
8
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
Page 9
9
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 chargesheet
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.
Page 10
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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.
Page 11
11
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.”
Page 12
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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
Page 13
13
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.
Page 14
14
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.
Page 15
15
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
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16
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
Page 17
17
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:
Page 18
18
“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
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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 subsection
(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
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20
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.
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21
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
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22
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:
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- 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
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24
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.
Page 25
25
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.
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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
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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
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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.
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29
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
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30
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
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31
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
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32
(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 chargesheet
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)
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(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
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-quanon
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.
……………………………..J.
(K. S. Radhakrishnan)
……………………………..J.
(A.K. Sikri)
New Delhi,
February 05, 2014.
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