In the present case, the Special Court in question has been
constituted not only to deal with the cases of PC Act but also other
cases relating to the NRHM scam. Procedure of Code of Criminal
Procedure is applicable to trial before Special Judge and there is no
prejudice to trial that is taking place before Special Judge duly
appointed to deal with non PC cases when the object of doing so
was to try connected cases before same court. Undoubtedly, while
Special Judge alone could deal with cases under the PC Act, non-
PC Act could also be allowed to be tried by the Special Judge under
Section 26 of the Code of Criminal Procedure. There is no legal bar
to do so, as held by this Court in M/s. Essar Teleholdings
Limited (supra).
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 751 OF 2016
(ARISING OUT OF S.L.P. (CRL.) NO. 4338 OF 2015)
M/S. HCL INFOSYSTEM LTD.
V
CENTRAL BUREAU OF INVESTIGATION
Citation: 2016 SCCONLINESC804,(2016) 9 SCC281
1. Leave granted. These appeals have been preferred
against the orders of the High Court of Judicature at Allahabad
dated 1st May, 2015 and 22nd January, 2016 in APP No. 6623 of
2015 and Application u/s 482/378/407 No. 3823 of 2014
respectively.
2. The question for consideration relates to the jurisdiction
of the Special Judge appointed under the Prevention of Corruption
Act, 1988 (the “PC Act”) to try a person other than a public servant
if the public servant dies before the commencement of the trial.
Further question is whether the Special Judge can try a non PC
Act case when his appointment is to try all cases of the category
which covers the present case.
3. The Central Bureau of Investigation (the “CBI”)
conducted investigation in what is known as “National Rural
Health Mission Scam” (“NHRM Scam”). According to the said
investigation, NRHM funds to the tune of Rs. 9,000 crores, which
were allocated to the State of Uttar Pradesh for the period
2005-2006 by the Ministry of Health & Family Welfare,
Government of India, were diverted and allegedly misappropriated
on a large scale. The CBI enquiry was ordered by the Lucknow
Bench of the High Court on 15th November, 2011. It also came to
light that two Chief Medical Officers were shot dead as a result of
the said scam. One Deputy Chief Medical Officer was arrested by
the local police, but he was found dead in jail on 22nd June, 2011.
One Sunil Verma, who was named as one of the accused, allegedly
committed suicide on 23rd January, 2012. One Mahender Kumar
Sharma, who was a clerk in the office of Chief Medical Officer,
Lakhimpur Kheri was found murdered on 15th February, 2012.
The CBI conducted searches of more than 150 places across the
State and arrested a number of accused persons suspected to be
involved in the embezzlement of NHRM funds.
4. A single court was designated as the trial court to
facilitate the progress of the trial vide order of the Chief Justice of
the High Court dated 16th May, 2012. Vide order of the State
Government dated 28th August, 2012 the said notification
designated the Special Judge, CBI, Ghaziabad for dealing with
“NRHM scam matters” for whole of the Uttar Pradesh State and
was in addition to notification dated 10th March, 2011 issued
earlier for appointment of Special Judge for trial of offences under
Section 3(1) of the PC Act.
5. The two notifications are as follows :
(I) “ NOTIFICATION
Miscellaneous
No.U.O.-24/6-P-9-2011-167G/09TC-Nyaya-2
Lucknow : dated March 10, 2011
In exercise of the powers under sub-section (1) of
section 3 and sub-section (2) of section 4 of the Prevention of
Corruption Act, 1988 (Act No. 49 of 1988) read with section 21 of
the General Clauses Act, 1897 (Act no.X of 1897) and in
supersession of all other notifications issued in this behalf, the
Governor is pleased to appoint from the date of his taking over
charge the Additional District Judge mentioned in Column 2 of
the Scheduled below, as Special Judge for the areas mentioned
in Column 4 for trial for such offences specified in sub-section (1)
of section 3 of the aforesaid Act no.49 of 1988 in which
hereinafter charge sheet are filed in his court by Special Police
Establishment of the Government of India and to direct that such
other cases arising within the said areas, in which charge sheets
have already been filed before any other Special Judge appointed
under the said Act and also such other cases arising within the
said area relating to the said Special Police Establishment which
are pending before such Special Judge, shall also be tried and
disposed off by him and his court shall be designated as
specified in column-3 of said Schedule with headquarters at
Ghaziabad.
SCHEDULE
Sl.
No
.
Name of the Judge Name of the
Court
Areas of Jurisdiction
(District)
1 2 3 4
1 Shri Shyam Lal-II,
Additional District
and Sessions Judge,
Ghaziabad
Special
Court, Anti
Corruption,
CBI,
Ghaziabad
G.B. Nagar, Meerut,
Aligarh, Rampur,
Mainpuri, Firozabad.
2 Dr. Ashok Kumar
Singh-IV, Special
Judge Anti
Corruption C.B.I.,
Ghaziabad
Special Court
C.B.I., Court
No.1,
Ghaziabad
Ghaziabad,
Moradabad,
Bulandshahar, Bijnor,
HathrasPage 5
5
3 Sri M.S. Wadhwa,
Additional District
and Sessions Judge,
Muzaffarnagar
Special Court
C.B.I., Court
No.2,
Ghaziabad
Saharanpur, Agra,
Muzaffarnagar, J.P.
Nagar, Etah,
Baghpat, Mathura.
By order
Deepak Kumar
Secretary
(II) GOVERNMENT OF UTTAR PRADESH
HOME (POLICE) SECTION-9
No. U.O.49/Six-P-12-167 G/09 T.C. Justice-2
Lucknow, Dated: 28th August, 2012
Exercising the powers conferred under section 2 of General
Clauses Act, 1897 (Act No.10 of 1897) read with sub-section (1) of
section 73 and sub-section (2) of section 4 of Prevention of
Corruption Act, 1988 (Act No.49 of 1988) and besides Notification
No.U.O.24/Six-P-9-2011-167G/09 T.C. – Justice-2, dated 10th
March, 2011 issued for this purpose, the Governor do hereby
appoint Sri Shyam Lal–Second. Special Judge, Anti
Corruption, CBI, Ghaziabad, for disposing of National Rural
Health Mission (NRHM) Scam matters of whole of Uttar
Pradesh, besides the matters mentioned in previous
Notification, with immediate effect.
By the order
Kamal Saxena
Secretary ”
(emphasis added)
6. The CBI filed several charge sheets, including a charge
sheet in respect of offences not covered by the PC Act in the case of
Dr. Vijai Tripathi (appellant in SLP (Crl.) No.1418 of 2016) and
others. Since the Special Judge declined to entertain the said
charge sheet, on application of the CBI, the High Court held thatPage 6
6
the Special Judge was to deal with “all cases relating to the scam”,
even though the offences were not under the PC Act.1
7. Vide notification dated 29th May, 2014 in place of Shri Shyam
Lal-II, Shri Atul Kumar Gupta was posted for CBI Court,
Ghaziabad. He was to look after all cases of NRHM as notified
earlier, as the notification dated 28th August, 2012 was not
rescinded, even though. The notification dated 29th May, 2014 was
in supersession of all other notifications. This aspect, as noted in
the impugned judgment of the High Court, was clarified on the
administrative side of the High Court. Cases of the appellants are
being dealt with by the said court. Charge is yet to be framed.
8. The appellant in SLP (Crl.) No.4338 of 2015 is named as
co-accused inter alia for offence of conspiracy along with a public
servant who was charged under the PC Act. It approached the
High Court with the plea of lack of jurisdiction of the Special Judge
to deal with the case against it after the death of the public
servant. The High Court repelled the said contention and
dismissed the petition. The High Court relied upon the judgment
of this Court in M/s. Essar Teleholdings Limited Vs. Registrar
General, Delhi High Court and Others2 wherein it was held that
1 Order dated 23.09.2013 in Criminal Misc. Application U/s 482 No.33050 of 2013
2 2013 (8) SCC 1
the Special Judge having been appointed to deal with “all 2G scam”
cases, could also deal with cases involving other offences under the
PC Act. This is clear from the following discussion in the
judgment :
xxx
xxx
11. Subsequently, the CBI filed second supplementary charge
sheet on 12.12.2011 against the Petitioner(s) and other accused
persons for the alleged commission of offences under Section
420/ 120-B Indian Penal Code. No offences under the PC Act have
been alleged against the Petitioner(s) and other accused persons
arraigned in the second supplementary charge sheet. Based on
the same, the learned Special Judge by impugned order dated
21.12.2011 was pleased to take cognizance of the second
supplementary charge sheet dated 12.12.2011 and the
Petitioner(s) and others were summoned.
12. According to the Petitioner(s), the CBI in its charge sheet
dated 12.12.2011 admits that the charge sheet is being filed "
regarding a separate offence" under Section 420/ 120-B Indian
Penal Code. In paragraphs 73 and 74 of the said charge sheet
whilst admitting that the offences alleged in the charge sheet are
triable by a Magistrate, the CBI relying on the notification dated
28.3.2011 requested the Special Judge to take cognizance of the
matter. Paragraphs 73 and 74 of the charge sheet read as under:
73. This final report under Section 173(8) Code of
Criminal Procedure is being filed regarding a separate
offence which came to notice during investigation of the
FIR No. RC DAI 2009 A 0045 (2G Spectrum Case), which
is pending before Hon'ble Special Judge (2G Spectrum
Cases), Patiala House Courts, New Delhi and a final
report dated 02.04.2011 and supplementary final report
dated 25.04.2011 were earlier filed in the same FIR.
74. In terms of the Notification No.
6/05/2011-Judl./363-367 dated 28.03.2011 issued by
Govt. of NCT of Delhi this Hon'ble Court has been
designated to undertake the trial of cases in relation to
all matters pertaining to 2G Scam exclusively in
pursuance of the orders of the Supreme Court, although
offences alleged to have been committed by accused
persons sent up for trial are triable by the Magistrate of
first class. It is, therefore, prayed that cognizance of the
aforesaid offences may be taken or the final report may
be endorsed to any other appropriate court as deemed
fit and thereafter process may be issued to the accused
persons for their appearance and to face the trial as per
Law.
13. The learned Special Judge, thereafter, took cognizance vide
impugned order dated 21.12.2011. The relevant portion of the
said impugned order reads as under:
“2. Ld. Spl. PP further submits that the accused have
been charged with the commission of offence, which are
triable, by the Court of Metropolitan Magistrate. It is
further submitted that this second supplementary
charge sheet also arises from the aforesaid RC bearing
No. DAI2009A0045/CBI/ACB/ND, titled as CBI v. A. Raja
and Ors., arose and is pending trial. He further submits
that since this case also arises from the same FIR, it is to
be tried by this Court alone. He has further invited my
attention to an order dated 15.03.2011, passed by the
Hon'ble High Court, whereby the undersigned was
nominated as Special Judge by the Hon'ble High Court to
exclusively try cases of 2G Scam.
3. Accordingly, the trial of this second supplementary
charge sheet shall be held in this Court. A copy of the
order dated 15.03.2011 be placed on the file.”
14. Learned Counsel for the Petitioner(s) assailed the impugned
Administrative Order passed by the Delhi High Court dated
15.3.2011 and the Notification dated 28.3.2011 issued by the
Government of NCT Delhi on the following grounds:
14.1 The impugned notification travels beyond the
provisions of the Code of Criminal Procedure. The Code
of Criminal Procedure mandates that offences under the
Indian Penal Code ought to be tried as per its provisions.
14.2 It has been held by this Hon'ble Court in the case of CBI v.
Keshub Mahindra that: (SCC p. 219, para 11)
“No decision by any court, this Court not
excluded, can be read in a manner as to nullify the
express provisions of an Act or the Code..."
(emphasis in original)
Thus, the Administrative order and Notification are
contrary to the well-settled provisions of law and ought to be setPage 10
10
aside in so far as they confer jurisdiction on a Special Judge to
take cognizance and hold trial of matters not pertaining to PC Act
offences.
14.3 If the offence of Section 420 Indian Penal Code, which ought
to be tried by a Magistrate, is to be tried by a Court of Sessions,
a variety of valuable rights of the Petitioner would be
jeopardised. This would be contrary to the decision of the
Constitutional Bench of the Hon'ble Supreme Court in the case of
A.R. Antulay v. R.S. Nayak, wherein it was acknowledged that the
right to appeal is a valuable right and the loss of such a right is
violative of Article 14 of the Constitution of India.
15.4 The Second Supplementary charge-sheet which makes out
offences against the present accused arises out of FIR No. RC DAI
2009 A 0045 registered by the CBI on 21.10.2009, out of which
the earlier charge-sheets have been filed, and cognizance taken
by the Special Court. An anomalous situation would be created if
various accused charged with offences arising out of the same
FIR were to be tried by different courts on the flimsy ground that
some of them are only charged of offences arising out of the
Indian Penal Code and not the special statutes under which other
charges are laid.
15.5 Higher courts can try an offence in view of Section 26 of
Code of Criminal Procedure and no prejudice should be caused if
the case is tried by a Special Judge. By virtue of Administrative
Order passed by the Delhi High court and Notification issued by
the Government of NCT, Delhi, the learned Special Judge is not
divested of his jurisdiction which he otherwise possesses under
Section 26 of the Code of Criminal Procedure to try offence under
Indian Penal Code. The Section reads as follows:Page 11
11
“26. Courts by which offences are triable.- Subject to the
other provisions of this Code,-
(a) Any offence under the Indian Penal Code (45 of 1860)
may be tried by-
(i) The High Court, or
(ii) The Court of Session, or
(iii) Any other court by which such offence is shown in
the First Schedule to be triable;
(b) Any offence under any other law shall, when any
Court is mentioned in this behalf in such law, be tried by
such Court and when no court is so mentioned, may be
tried by-
(i) The High Court, or
(ii) Any other court by which such offence is shown in the
First Schedule to be triable.”
16. Mr. Prashant Bhushan, learned Counsel for the CPIL,
submitted that a Special Judge has the power to try offences
under the Indian Penal Code and no challenge can be made
against this power. It was further submitted that in view of the
order passed by this Court in 2G Scam case, it is not open to the
Petitioners to approach any other Court to commence the trial.
xxx
xxx
24. From the aforesaid second charge-sheet it is clear that the
offence alleged to have been committed by the Petitioners in the
course of 2G Scam Cases. For the said reason they have been
made accused in the 2G Scam Case.
25. Admittedly, the co-accused of 2G Scam case charged under
the provisions of Prevention of Corruption Act can be tried only
by the Special Judge. The Petitioners are co-accused in the said
2G Scam case. In this background Section 220 of Code of
Criminal Procedure will apply and the Petitioners though accused
of different offences i.e. under Section 420/ 120-B Indian Penal
Code, which alleged to have been committed in the course of 2GPage 12
12
Spectrum transactions, under Section 223 of Code of Criminal
Procedure they may be charged and can be tried together with
the other co-accused of 2G Scam cases.
30. On the question of validity of the Notification dated 28th
March, 2011 issued by the NCT of Delhi and Administrative Order
dated 15th March, 2011 passed by the Delhi High Court, we hold
as follows:
30.1. Under Sub-section (1) of Section 3 of the PC Act 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 any offence punishable under the PC Act.
In the present case, as admittedly, co-accused have been
charged under the provisions of the PC Act, and such offence
punishable under the PC Act, the NCT of Delhi is well within its
jurisdiction to issue Notification(s) appointing Special Judge(s) to
try the 2G Scam case(s).
30.2. Article 233 and 234 of the Constitution are attracted in
cases where appointments of persons to be Special Judges or
their postings to a particular Special Court are involved. The
control of High Court is comprehensive, exclusive and effective
and it is to subserve a basic feature of the Constitution i.e.,
independence of judiciary. [See High Court of Judicature for
Rajasthan v. Ramesh Chand Paliwal and High Court of Orissa v.
Sisir Kanta Satapathy. The power to appoint or promote or post a
District Judge of a State is vested with the Governor of the State
under Article 233 of the Constitution which can be exercised only
in consultation with the High Court. Therefore, it is well within
the jurisdiction of the High Court to nominate officer(s) of thePage 13
13
rank of the District Judge for appointment and posting as Special
Judge(s) under Sub-section (1) of Section 3 of the PC Act.
30.3. In the present case, the Petitioners have not challenged the
nomination made by the High Court of Delhi to the NCT of Delhi.
They have challenged the letter dated 15th March, 2011 written
by the Registrar General, High Court of Delhi, New Delhi to the
District Judge-I-cum-Sessions Judge, Tis Hazari Courts, Delhi and
the District Judge-IV-cum-Addl. Sessions Judge, I/C, New Delhi
District, Patiala House Courts, New Delhi whereby the High Court
intimated the officers about nomination of Mr. O.P. Saini, an
officer of Delhi Higher Judicial Service for his appointment as
Special Judge for 2G Scam Cases.
31. In the present case there is nothing on the record to suggest
that the Petitioners will not get fair trial and may face
miscarriage of justice. In absence of any such threat &
miscarriage of justice, no interference is called for against the
impugned order taking cognizance of the offence against the
Petitioners.
9. In the impugned judgment, the High Court dealing with the
powers of the Chief Justice of the High Court to permit non-PC Act
cases also being dealt with by the Special Judge observed:
“ The powers of the Chief Justice to do so are unquestionable
keeping in view the provisions of Rule 4(A) of Chapter III of the
Allahabad High Court Rules which includes the powers of the
Chief Justice in matters of Mid-term posting and transfers and all
residuary matters not allotted to any Committee or
Administrative Judges. This being the legal position and there
being no indication of any prejudice or failure of justice, thePage 14
14
notification dated 29.5.2014 read with the notification dated
28.8.2012/ 1.9.2012 and the order of the Chief Justice mentioned
hereinabove dated 13.2.2014 clearly continues the authority of
Sri Atul Kumar Gupta to exercise powers exclusively over NRHM
cases at Ghaziabad. From the administrative file of the High
Court relating to the issuance of such notifications it also
appears that steps have been initiated and the Government has
already been communicated with the approval of Hon’ble the
Chief Justice, that the said omission in the notifications dated
29.5.2014 specifically about NRHM cases be rectified. There is,
therefore, a substantial compliance of procedure in relation to
the conferment of the posting and jurisdiction of Sri Atul Kumar
Gupta as successor in office of Sri Shyam Lal-II who was already
notified to exclusively try NRHM cases. In the light of the above,
a ministerial omission either by the registry of the High Court or
by the State Government will not dissolve the conferment of
authority on the successor in office.
xxx
xxx
In my considered opinion as well, the aforesaid approach
of getting the scam tried in one particular court does not suffer
from any administrative or judicial infirmity and rather the same
would advance the cause of justice with the entire scam being
looked into by one particular court instead of a variety of courts
spread over differently as it would result in a likelihood of conflict
of appreciation of evidence and obviously might result in a
conflict of opinion. The nature of the offences being tried
simultaneously by one court relate to the diversion,
misappropriation and misutilization of the funds of the National
Rural Health Mission that according to the charge sheet and the
FIRs as well as the evidence collected indicate a concerted effort
through a deep-routed conspiracy to siphon off the funds of the
NRHM scam. In such a situation it would not be inappropriate to
invoke the principle “extraordinary situations require extraPage 15
15
ordinary remedies” for retaining the jurisdiction with the learned
Special Judge in the facts of the present case. “
10. As already stated, the High Court held that the Special Judge
could continue proceedings against the appellants even after the
death of public servant and even if there was no charge under the
PC Act. The High Court duly considered the effect of death of the
sole public servant. The contention raised by the appellant in the
first case was that the charges against it were under Section 120B
read with Sections 409 and 420 IPC and Section 13(1)(d) read with
Section 13(2) of the PC Act. There is no independent PC Act charge
against it. Thus, only for non PC Act charges, proceedings could
not continue before the Special Judge. On this aspect, it was
observed that the charge could be amended and challenge was
pre-mature apart from the fact the Special Judge was competent to
deal with non PC Act cases relating to NRHM scam. The relevant
observations in this regard are :
“ There is one thing which deserves mention at this very stage is
that the possibility of amendment in the charges and addition
thereto keeping in view the nature of the allegations cannot be
ruled out in future. This, therefore, would be a premature stage
to presume that no other offence can be tried by the Special
Court. The offences in relation to a non-government servant
which connect him with the conspiracy of misappropriation of
public funds with the aid of a government servant, would notPage 16
16
vanish merely because the government servant has died. This
would clearly depend upon the evidence and the facts of the
case that would ultimately determine the framing of the charge
and its consequential trial. Not only this, the Court has ample
powers to add charges even during the course of the trial.
From a perusal of the FIR, charge sheet and cognizance order, it
may not be said at this stage that no offence under the
Prevention of Corruption Act has been committed by the
applicant. The cognizance is taken of the offence and not of the
person. The charges are framed in relation to the offence
committed which are tried. The question is of the link of a
non-government servant to such an offence which may be
relatable to the Prevention of Corruption Act, 1988. In the
instant case the material on record does indicate prima facie
such connection whereas in the case of State Vs. Jitender Kumar
Singh (supra) which has been relied upon by the learned counsel
for the applicant, the Apex Court came to a conclusion that there
was no offence under the Prevention of Corruption Act for being
tried as against the non-government servants involved therein
that arose out of the Bombay case as discussed in the said
judgment. In the circumstances, it would be absolutely
premature to presume on the facts of the present case of there
being no evidence or linkage as suggested by the learned
counsel for the petitioner when prima facie a charge sheet and
the cognizance order do disclose such links.
xxx
xxx
Applying the aforesaid principles on the facts of the present
case, it is clear that there are clear allegations and also evidence
prima facie collected to indicate conspiracy that connect the acts
and omissions of Late Sri G.K. Batra, the government servant,
with the applicant-company and its officials and agents who got
themselves introduced in the manner indicated in the charge
sheet along with the active aid of Late Sri G.K. Batra.Page 17
17
Consequently, all arguments that have been advanced by Sri
Chaturvedi on the strength of the judgment in the case of State
Vs. Jitender Kumar Singh (supra) do not come to his aid as the
facts of the present case are not identical except for the
similarity of the death of the government servant.
Consequently, the second argument also does not hold water.
In view of the conclusions drawn hereinabove, the order
impugned dated 28.2.2015 is upheld and the proceedings before
Sri Atul Kumar Gupta are treated to be well within his jurisdiction
in all NRHM cases. In order to remove any doubt in this regard it
is further directed that Sri Atul Kumar Gupta would continue to
have jurisdiction over such cases till his successor joins on the
said post. It may also be put on record that according to the
annual list of transfer and posting Sri Atul Kumar Gupta is under
orders of transfer, but on account of no fresh notification for the
court occupied by him, his transfer order is under abeyance till
his successor joins. “
11. The only contention raised by Shri C.U. Singh, learned senior
counsel for the appellant is that public servant having died before
framing of the charge, the appellant could not be tried by the
Special Judge. He did not challenge any other finding in the
impugned order except those relevant to this contention. Shri
Singh submits that the case of the appellant-M/s. HCL Infosystem
Limited is fully covered by the judgment of this Court in State
through Central Bureau of Investigation, New Delhi Vs.
Jitender Kumar Singh3
. Particular reliance was placed on
3 (2014) 11 SCC 724Page 18
18
paragraph 46 of the judgment. It was submitted that the trial in a
warrant case commenced on framing of the charge which has not
yet happened and the public servant had died. The appellant
could be tried only during the lifetime of the public servant.
Having regard to the fact that the public servant has died before
the framing of the charge, this Court upheld the view of the High
Court in forwarding the papers of the case to the Chief Judicial
Magistrate.
12. His main reliance is on paragraphs 46 and 47 of the
judgment which are as follows :
“ xxx
46. 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 120-B, 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 the offences
under the PC Act against the appellant. The trying of any case
under the PC Act against a public servant or a non-publicPage 19
19
servant, as already indicated, is a sine qua non for exercising
powers under sub-section (3) of Section 4 of the 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.
47. 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 the 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 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.”
13. Learned counsel for the CBI supports the impugned order by
submitting that the cognizance had already been taken and the
matter should be allowed to proceed before the Special Judge in
view of the impugned order of the High Court.
14. While we do find that the observations of this Court in
Jitender Kumar Singh (supra) in paragraphs 46 and 47 quoted
above support the contention of Shri Singh that the Special Judge,Page 20
20
under Section 4(3), could not try an offence other than that
specified under Section 3. The public servant was no more and the
trial had not commenced. In view of the relied upon judgment in
absence of PC Act charge, the appellants may not be liable to be
tried before the Special Judge. However, we find two difficulties in
accepting the submission of Shri Singh as follows:
(i) As observed by the High Court, the charge is yet to be
framed and the framing of charge under the PC Act
from the material placed on record was not ruled out.
Thus, the argument at this stage is pre-mature; and
(ii) The Special Judge was authorized not only to deal
with the cases under the PC Act as was the position
in the case before this Court in Jitender Kumar
Singh (supra) but also for other offences. This
course was permissible in view of law laid down by
this Court in M/s. Essar Teleholdings Limited
(supra).
15. In the present case, the Special Court in question has been
constituted not only to deal with the cases of PC Act but also other
cases relating to the NRHM scam. Procedure of Code of Criminal
Procedure is applicable to trial before Special Judge and there is no
prejudice to trial that is taking place before Special Judge duly
appointed to deal with non PC cases when the object of doing so
was to try connected cases before same court. Undoubtedly, while
Special Judge alone could deal with cases under the PC Act, non-
PC Act could also be allowed to be tried by the Special Judge under
Section 26 of the Code of Criminal Procedure. There is no legal bar
to do so, as held by this Court in M/s. Essar Teleholdings
Limited (supra).
16. In view of above distinguishing feature in the present case
from the case of Jitender Kumar Singh (supra), we do not find
any merit in these appeals and the same are dismissed.
………………………………………………J.
( V. GOPALA GOWDA )
………………………………………………J.
( ADARSH KUMAR GOEL )
NEW DELHI;
AUGUST 09 , 2016.
Print Page
constituted not only to deal with the cases of PC Act but also other
cases relating to the NRHM scam. Procedure of Code of Criminal
Procedure is applicable to trial before Special Judge and there is no
prejudice to trial that is taking place before Special Judge duly
appointed to deal with non PC cases when the object of doing so
was to try connected cases before same court. Undoubtedly, while
Special Judge alone could deal with cases under the PC Act, non-
PC Act could also be allowed to be tried by the Special Judge under
Section 26 of the Code of Criminal Procedure. There is no legal bar
to do so, as held by this Court in M/s. Essar Teleholdings
Limited (supra).
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 751 OF 2016
(ARISING OUT OF S.L.P. (CRL.) NO. 4338 OF 2015)
M/S. HCL INFOSYSTEM LTD.
V
CENTRAL BUREAU OF INVESTIGATION
Citation: 2016 SCCONLINESC804,(2016) 9 SCC281
1. Leave granted. These appeals have been preferred
against the orders of the High Court of Judicature at Allahabad
dated 1st May, 2015 and 22nd January, 2016 in APP No. 6623 of
2015 and Application u/s 482/378/407 No. 3823 of 2014
respectively.
2. The question for consideration relates to the jurisdiction
of the Special Judge appointed under the Prevention of Corruption
Act, 1988 (the “PC Act”) to try a person other than a public servant
if the public servant dies before the commencement of the trial.
Further question is whether the Special Judge can try a non PC
Act case when his appointment is to try all cases of the category
which covers the present case.
3. The Central Bureau of Investigation (the “CBI”)
conducted investigation in what is known as “National Rural
Health Mission Scam” (“NHRM Scam”). According to the said
investigation, NRHM funds to the tune of Rs. 9,000 crores, which
were allocated to the State of Uttar Pradesh for the period
2005-2006 by the Ministry of Health & Family Welfare,
Government of India, were diverted and allegedly misappropriated
on a large scale. The CBI enquiry was ordered by the Lucknow
Bench of the High Court on 15th November, 2011. It also came to
light that two Chief Medical Officers were shot dead as a result of
the said scam. One Deputy Chief Medical Officer was arrested by
the local police, but he was found dead in jail on 22nd June, 2011.
One Sunil Verma, who was named as one of the accused, allegedly
committed suicide on 23rd January, 2012. One Mahender Kumar
Sharma, who was a clerk in the office of Chief Medical Officer,
Lakhimpur Kheri was found murdered on 15th February, 2012.
The CBI conducted searches of more than 150 places across the
State and arrested a number of accused persons suspected to be
involved in the embezzlement of NHRM funds.
4. A single court was designated as the trial court to
facilitate the progress of the trial vide order of the Chief Justice of
the High Court dated 16th May, 2012. Vide order of the State
Government dated 28th August, 2012 the said notification
designated the Special Judge, CBI, Ghaziabad for dealing with
“NRHM scam matters” for whole of the Uttar Pradesh State and
was in addition to notification dated 10th March, 2011 issued
earlier for appointment of Special Judge for trial of offences under
Section 3(1) of the PC Act.
5. The two notifications are as follows :
(I) “ NOTIFICATION
Miscellaneous
No.U.O.-24/6-P-9-2011-167G/09TC-Nyaya-2
Lucknow : dated March 10, 2011
In exercise of the powers under sub-section (1) of
section 3 and sub-section (2) of section 4 of the Prevention of
Corruption Act, 1988 (Act No. 49 of 1988) read with section 21 of
the General Clauses Act, 1897 (Act no.X of 1897) and in
supersession of all other notifications issued in this behalf, the
Governor is pleased to appoint from the date of his taking over
charge the Additional District Judge mentioned in Column 2 of
the Scheduled below, as Special Judge for the areas mentioned
in Column 4 for trial for such offences specified in sub-section (1)
of section 3 of the aforesaid Act no.49 of 1988 in which
hereinafter charge sheet are filed in his court by Special Police
Establishment of the Government of India and to direct that such
other cases arising within the said areas, in which charge sheets
have already been filed before any other Special Judge appointed
under the said Act and also such other cases arising within the
said area relating to the said Special Police Establishment which
are pending before such Special Judge, shall also be tried and
disposed off by him and his court shall be designated as
specified in column-3 of said Schedule with headquarters at
Ghaziabad.
SCHEDULE
Sl.
No
.
Name of the Judge Name of the
Court
Areas of Jurisdiction
(District)
1 2 3 4
1 Shri Shyam Lal-II,
Additional District
and Sessions Judge,
Ghaziabad
Special
Court, Anti
Corruption,
CBI,
Ghaziabad
G.B. Nagar, Meerut,
Aligarh, Rampur,
Mainpuri, Firozabad.
2 Dr. Ashok Kumar
Singh-IV, Special
Judge Anti
Corruption C.B.I.,
Ghaziabad
Special Court
C.B.I., Court
No.1,
Ghaziabad
Ghaziabad,
Moradabad,
Bulandshahar, Bijnor,
HathrasPage 5
5
3 Sri M.S. Wadhwa,
Additional District
and Sessions Judge,
Muzaffarnagar
Special Court
C.B.I., Court
No.2,
Ghaziabad
Saharanpur, Agra,
Muzaffarnagar, J.P.
Nagar, Etah,
Baghpat, Mathura.
By order
Deepak Kumar
Secretary
(II) GOVERNMENT OF UTTAR PRADESH
HOME (POLICE) SECTION-9
No. U.O.49/Six-P-12-167 G/09 T.C. Justice-2
Lucknow, Dated: 28th August, 2012
Exercising the powers conferred under section 2 of General
Clauses Act, 1897 (Act No.10 of 1897) read with sub-section (1) of
section 73 and sub-section (2) of section 4 of Prevention of
Corruption Act, 1988 (Act No.49 of 1988) and besides Notification
No.U.O.24/Six-P-9-2011-167G/09 T.C. – Justice-2, dated 10th
March, 2011 issued for this purpose, the Governor do hereby
appoint Sri Shyam Lal–Second. Special Judge, Anti
Corruption, CBI, Ghaziabad, for disposing of National Rural
Health Mission (NRHM) Scam matters of whole of Uttar
Pradesh, besides the matters mentioned in previous
Notification, with immediate effect.
By the order
Kamal Saxena
Secretary ”
(emphasis added)
6. The CBI filed several charge sheets, including a charge
sheet in respect of offences not covered by the PC Act in the case of
Dr. Vijai Tripathi (appellant in SLP (Crl.) No.1418 of 2016) and
others. Since the Special Judge declined to entertain the said
charge sheet, on application of the CBI, the High Court held thatPage 6
6
the Special Judge was to deal with “all cases relating to the scam”,
even though the offences were not under the PC Act.1
7. Vide notification dated 29th May, 2014 in place of Shri Shyam
Lal-II, Shri Atul Kumar Gupta was posted for CBI Court,
Ghaziabad. He was to look after all cases of NRHM as notified
earlier, as the notification dated 28th August, 2012 was not
rescinded, even though. The notification dated 29th May, 2014 was
in supersession of all other notifications. This aspect, as noted in
the impugned judgment of the High Court, was clarified on the
administrative side of the High Court. Cases of the appellants are
being dealt with by the said court. Charge is yet to be framed.
8. The appellant in SLP (Crl.) No.4338 of 2015 is named as
co-accused inter alia for offence of conspiracy along with a public
servant who was charged under the PC Act. It approached the
High Court with the plea of lack of jurisdiction of the Special Judge
to deal with the case against it after the death of the public
servant. The High Court repelled the said contention and
dismissed the petition. The High Court relied upon the judgment
of this Court in M/s. Essar Teleholdings Limited Vs. Registrar
General, Delhi High Court and Others2 wherein it was held that
1 Order dated 23.09.2013 in Criminal Misc. Application U/s 482 No.33050 of 2013
2 2013 (8) SCC 1
the Special Judge having been appointed to deal with “all 2G scam”
cases, could also deal with cases involving other offences under the
PC Act. This is clear from the following discussion in the
judgment :
xxx
xxx
11. Subsequently, the CBI filed second supplementary charge
sheet on 12.12.2011 against the Petitioner(s) and other accused
persons for the alleged commission of offences under Section
420/ 120-B Indian Penal Code. No offences under the PC Act have
been alleged against the Petitioner(s) and other accused persons
arraigned in the second supplementary charge sheet. Based on
the same, the learned Special Judge by impugned order dated
21.12.2011 was pleased to take cognizance of the second
supplementary charge sheet dated 12.12.2011 and the
Petitioner(s) and others were summoned.
12. According to the Petitioner(s), the CBI in its charge sheet
dated 12.12.2011 admits that the charge sheet is being filed "
regarding a separate offence" under Section 420/ 120-B Indian
Penal Code. In paragraphs 73 and 74 of the said charge sheet
whilst admitting that the offences alleged in the charge sheet are
triable by a Magistrate, the CBI relying on the notification dated
28.3.2011 requested the Special Judge to take cognizance of the
matter. Paragraphs 73 and 74 of the charge sheet read as under:
73. This final report under Section 173(8) Code of
Criminal Procedure is being filed regarding a separate
offence which came to notice during investigation of the
FIR No. RC DAI 2009 A 0045 (2G Spectrum Case), which
is pending before Hon'ble Special Judge (2G Spectrum
Cases), Patiala House Courts, New Delhi and a final
report dated 02.04.2011 and supplementary final report
dated 25.04.2011 were earlier filed in the same FIR.
74. In terms of the Notification No.
6/05/2011-Judl./363-367 dated 28.03.2011 issued by
Govt. of NCT of Delhi this Hon'ble Court has been
designated to undertake the trial of cases in relation to
all matters pertaining to 2G Scam exclusively in
pursuance of the orders of the Supreme Court, although
offences alleged to have been committed by accused
persons sent up for trial are triable by the Magistrate of
first class. It is, therefore, prayed that cognizance of the
aforesaid offences may be taken or the final report may
be endorsed to any other appropriate court as deemed
fit and thereafter process may be issued to the accused
persons for their appearance and to face the trial as per
Law.
13. The learned Special Judge, thereafter, took cognizance vide
impugned order dated 21.12.2011. The relevant portion of the
said impugned order reads as under:
“2. Ld. Spl. PP further submits that the accused have
been charged with the commission of offence, which are
triable, by the Court of Metropolitan Magistrate. It is
further submitted that this second supplementary
charge sheet also arises from the aforesaid RC bearing
No. DAI2009A0045/CBI/ACB/ND, titled as CBI v. A. Raja
and Ors., arose and is pending trial. He further submits
that since this case also arises from the same FIR, it is to
be tried by this Court alone. He has further invited my
attention to an order dated 15.03.2011, passed by the
Hon'ble High Court, whereby the undersigned was
nominated as Special Judge by the Hon'ble High Court to
exclusively try cases of 2G Scam.
3. Accordingly, the trial of this second supplementary
charge sheet shall be held in this Court. A copy of the
order dated 15.03.2011 be placed on the file.”
14. Learned Counsel for the Petitioner(s) assailed the impugned
Administrative Order passed by the Delhi High Court dated
15.3.2011 and the Notification dated 28.3.2011 issued by the
Government of NCT Delhi on the following grounds:
14.1 The impugned notification travels beyond the
provisions of the Code of Criminal Procedure. The Code
of Criminal Procedure mandates that offences under the
Indian Penal Code ought to be tried as per its provisions.
14.2 It has been held by this Hon'ble Court in the case of CBI v.
Keshub Mahindra that: (SCC p. 219, para 11)
“No decision by any court, this Court not
excluded, can be read in a manner as to nullify the
express provisions of an Act or the Code..."
(emphasis in original)
Thus, the Administrative order and Notification are
contrary to the well-settled provisions of law and ought to be setPage 10
10
aside in so far as they confer jurisdiction on a Special Judge to
take cognizance and hold trial of matters not pertaining to PC Act
offences.
14.3 If the offence of Section 420 Indian Penal Code, which ought
to be tried by a Magistrate, is to be tried by a Court of Sessions,
a variety of valuable rights of the Petitioner would be
jeopardised. This would be contrary to the decision of the
Constitutional Bench of the Hon'ble Supreme Court in the case of
A.R. Antulay v. R.S. Nayak, wherein it was acknowledged that the
right to appeal is a valuable right and the loss of such a right is
violative of Article 14 of the Constitution of India.
15.4 The Second Supplementary charge-sheet which makes out
offences against the present accused arises out of FIR No. RC DAI
2009 A 0045 registered by the CBI on 21.10.2009, out of which
the earlier charge-sheets have been filed, and cognizance taken
by the Special Court. An anomalous situation would be created if
various accused charged with offences arising out of the same
FIR were to be tried by different courts on the flimsy ground that
some of them are only charged of offences arising out of the
Indian Penal Code and not the special statutes under which other
charges are laid.
15.5 Higher courts can try an offence in view of Section 26 of
Code of Criminal Procedure and no prejudice should be caused if
the case is tried by a Special Judge. By virtue of Administrative
Order passed by the Delhi High court and Notification issued by
the Government of NCT, Delhi, the learned Special Judge is not
divested of his jurisdiction which he otherwise possesses under
Section 26 of the Code of Criminal Procedure to try offence under
Indian Penal Code. The Section reads as follows:Page 11
11
“26. Courts by which offences are triable.- Subject to the
other provisions of this Code,-
(a) Any offence under the Indian Penal Code (45 of 1860)
may be tried by-
(i) The High Court, or
(ii) The Court of Session, or
(iii) Any other court by which such offence is shown in
the First Schedule to be triable;
(b) Any offence under any other law shall, when any
Court is mentioned in this behalf in such law, be tried by
such Court and when no court is so mentioned, may be
tried by-
(i) The High Court, or
(ii) Any other court by which such offence is shown in the
First Schedule to be triable.”
16. Mr. Prashant Bhushan, learned Counsel for the CPIL,
submitted that a Special Judge has the power to try offences
under the Indian Penal Code and no challenge can be made
against this power. It was further submitted that in view of the
order passed by this Court in 2G Scam case, it is not open to the
Petitioners to approach any other Court to commence the trial.
xxx
xxx
24. From the aforesaid second charge-sheet it is clear that the
offence alleged to have been committed by the Petitioners in the
course of 2G Scam Cases. For the said reason they have been
made accused in the 2G Scam Case.
25. Admittedly, the co-accused of 2G Scam case charged under
the provisions of Prevention of Corruption Act can be tried only
by the Special Judge. The Petitioners are co-accused in the said
2G Scam case. In this background Section 220 of Code of
Criminal Procedure will apply and the Petitioners though accused
of different offences i.e. under Section 420/ 120-B Indian Penal
Code, which alleged to have been committed in the course of 2GPage 12
12
Spectrum transactions, under Section 223 of Code of Criminal
Procedure they may be charged and can be tried together with
the other co-accused of 2G Scam cases.
30. On the question of validity of the Notification dated 28th
March, 2011 issued by the NCT of Delhi and Administrative Order
dated 15th March, 2011 passed by the Delhi High Court, we hold
as follows:
30.1. Under Sub-section (1) of Section 3 of the PC Act 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 any offence punishable under the PC Act.
In the present case, as admittedly, co-accused have been
charged under the provisions of the PC Act, and such offence
punishable under the PC Act, the NCT of Delhi is well within its
jurisdiction to issue Notification(s) appointing Special Judge(s) to
try the 2G Scam case(s).
30.2. Article 233 and 234 of the Constitution are attracted in
cases where appointments of persons to be Special Judges or
their postings to a particular Special Court are involved. The
control of High Court is comprehensive, exclusive and effective
and it is to subserve a basic feature of the Constitution i.e.,
independence of judiciary. [See High Court of Judicature for
Rajasthan v. Ramesh Chand Paliwal and High Court of Orissa v.
Sisir Kanta Satapathy. The power to appoint or promote or post a
District Judge of a State is vested with the Governor of the State
under Article 233 of the Constitution which can be exercised only
in consultation with the High Court. Therefore, it is well within
the jurisdiction of the High Court to nominate officer(s) of thePage 13
13
rank of the District Judge for appointment and posting as Special
Judge(s) under Sub-section (1) of Section 3 of the PC Act.
30.3. In the present case, the Petitioners have not challenged the
nomination made by the High Court of Delhi to the NCT of Delhi.
They have challenged the letter dated 15th March, 2011 written
by the Registrar General, High Court of Delhi, New Delhi to the
District Judge-I-cum-Sessions Judge, Tis Hazari Courts, Delhi and
the District Judge-IV-cum-Addl. Sessions Judge, I/C, New Delhi
District, Patiala House Courts, New Delhi whereby the High Court
intimated the officers about nomination of Mr. O.P. Saini, an
officer of Delhi Higher Judicial Service for his appointment as
Special Judge for 2G Scam Cases.
31. In the present case there is nothing on the record to suggest
that the Petitioners will not get fair trial and may face
miscarriage of justice. In absence of any such threat &
miscarriage of justice, no interference is called for against the
impugned order taking cognizance of the offence against the
Petitioners.
9. In the impugned judgment, the High Court dealing with the
powers of the Chief Justice of the High Court to permit non-PC Act
cases also being dealt with by the Special Judge observed:
“ The powers of the Chief Justice to do so are unquestionable
keeping in view the provisions of Rule 4(A) of Chapter III of the
Allahabad High Court Rules which includes the powers of the
Chief Justice in matters of Mid-term posting and transfers and all
residuary matters not allotted to any Committee or
Administrative Judges. This being the legal position and there
being no indication of any prejudice or failure of justice, thePage 14
14
notification dated 29.5.2014 read with the notification dated
28.8.2012/ 1.9.2012 and the order of the Chief Justice mentioned
hereinabove dated 13.2.2014 clearly continues the authority of
Sri Atul Kumar Gupta to exercise powers exclusively over NRHM
cases at Ghaziabad. From the administrative file of the High
Court relating to the issuance of such notifications it also
appears that steps have been initiated and the Government has
already been communicated with the approval of Hon’ble the
Chief Justice, that the said omission in the notifications dated
29.5.2014 specifically about NRHM cases be rectified. There is,
therefore, a substantial compliance of procedure in relation to
the conferment of the posting and jurisdiction of Sri Atul Kumar
Gupta as successor in office of Sri Shyam Lal-II who was already
notified to exclusively try NRHM cases. In the light of the above,
a ministerial omission either by the registry of the High Court or
by the State Government will not dissolve the conferment of
authority on the successor in office.
xxx
xxx
In my considered opinion as well, the aforesaid approach
of getting the scam tried in one particular court does not suffer
from any administrative or judicial infirmity and rather the same
would advance the cause of justice with the entire scam being
looked into by one particular court instead of a variety of courts
spread over differently as it would result in a likelihood of conflict
of appreciation of evidence and obviously might result in a
conflict of opinion. The nature of the offences being tried
simultaneously by one court relate to the diversion,
misappropriation and misutilization of the funds of the National
Rural Health Mission that according to the charge sheet and the
FIRs as well as the evidence collected indicate a concerted effort
through a deep-routed conspiracy to siphon off the funds of the
NRHM scam. In such a situation it would not be inappropriate to
invoke the principle “extraordinary situations require extraPage 15
15
ordinary remedies” for retaining the jurisdiction with the learned
Special Judge in the facts of the present case. “
10. As already stated, the High Court held that the Special Judge
could continue proceedings against the appellants even after the
death of public servant and even if there was no charge under the
PC Act. The High Court duly considered the effect of death of the
sole public servant. The contention raised by the appellant in the
first case was that the charges against it were under Section 120B
read with Sections 409 and 420 IPC and Section 13(1)(d) read with
Section 13(2) of the PC Act. There is no independent PC Act charge
against it. Thus, only for non PC Act charges, proceedings could
not continue before the Special Judge. On this aspect, it was
observed that the charge could be amended and challenge was
pre-mature apart from the fact the Special Judge was competent to
deal with non PC Act cases relating to NRHM scam. The relevant
observations in this regard are :
“ There is one thing which deserves mention at this very stage is
that the possibility of amendment in the charges and addition
thereto keeping in view the nature of the allegations cannot be
ruled out in future. This, therefore, would be a premature stage
to presume that no other offence can be tried by the Special
Court. The offences in relation to a non-government servant
which connect him with the conspiracy of misappropriation of
public funds with the aid of a government servant, would notPage 16
16
vanish merely because the government servant has died. This
would clearly depend upon the evidence and the facts of the
case that would ultimately determine the framing of the charge
and its consequential trial. Not only this, the Court has ample
powers to add charges even during the course of the trial.
From a perusal of the FIR, charge sheet and cognizance order, it
may not be said at this stage that no offence under the
Prevention of Corruption Act has been committed by the
applicant. The cognizance is taken of the offence and not of the
person. The charges are framed in relation to the offence
committed which are tried. The question is of the link of a
non-government servant to such an offence which may be
relatable to the Prevention of Corruption Act, 1988. In the
instant case the material on record does indicate prima facie
such connection whereas in the case of State Vs. Jitender Kumar
Singh (supra) which has been relied upon by the learned counsel
for the applicant, the Apex Court came to a conclusion that there
was no offence under the Prevention of Corruption Act for being
tried as against the non-government servants involved therein
that arose out of the Bombay case as discussed in the said
judgment. In the circumstances, it would be absolutely
premature to presume on the facts of the present case of there
being no evidence or linkage as suggested by the learned
counsel for the petitioner when prima facie a charge sheet and
the cognizance order do disclose such links.
xxx
xxx
Applying the aforesaid principles on the facts of the present
case, it is clear that there are clear allegations and also evidence
prima facie collected to indicate conspiracy that connect the acts
and omissions of Late Sri G.K. Batra, the government servant,
with the applicant-company and its officials and agents who got
themselves introduced in the manner indicated in the charge
sheet along with the active aid of Late Sri G.K. Batra.Page 17
17
Consequently, all arguments that have been advanced by Sri
Chaturvedi on the strength of the judgment in the case of State
Vs. Jitender Kumar Singh (supra) do not come to his aid as the
facts of the present case are not identical except for the
similarity of the death of the government servant.
Consequently, the second argument also does not hold water.
In view of the conclusions drawn hereinabove, the order
impugned dated 28.2.2015 is upheld and the proceedings before
Sri Atul Kumar Gupta are treated to be well within his jurisdiction
in all NRHM cases. In order to remove any doubt in this regard it
is further directed that Sri Atul Kumar Gupta would continue to
have jurisdiction over such cases till his successor joins on the
said post. It may also be put on record that according to the
annual list of transfer and posting Sri Atul Kumar Gupta is under
orders of transfer, but on account of no fresh notification for the
court occupied by him, his transfer order is under abeyance till
his successor joins. “
11. The only contention raised by Shri C.U. Singh, learned senior
counsel for the appellant is that public servant having died before
framing of the charge, the appellant could not be tried by the
Special Judge. He did not challenge any other finding in the
impugned order except those relevant to this contention. Shri
Singh submits that the case of the appellant-M/s. HCL Infosystem
Limited is fully covered by the judgment of this Court in State
through Central Bureau of Investigation, New Delhi Vs.
Jitender Kumar Singh3
. Particular reliance was placed on
3 (2014) 11 SCC 724Page 18
18
paragraph 46 of the judgment. It was submitted that the trial in a
warrant case commenced on framing of the charge which has not
yet happened and the public servant had died. The appellant
could be tried only during the lifetime of the public servant.
Having regard to the fact that the public servant has died before
the framing of the charge, this Court upheld the view of the High
Court in forwarding the papers of the case to the Chief Judicial
Magistrate.
12. His main reliance is on paragraphs 46 and 47 of the
judgment which are as follows :
“ xxx
46. 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 120-B, 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 the offences
under the PC Act against the appellant. The trying of any case
under the PC Act against a public servant or a non-publicPage 19
19
servant, as already indicated, is a sine qua non for exercising
powers under sub-section (3) of Section 4 of the 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.
47. 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 the 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 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.”
13. Learned counsel for the CBI supports the impugned order by
submitting that the cognizance had already been taken and the
matter should be allowed to proceed before the Special Judge in
view of the impugned order of the High Court.
14. While we do find that the observations of this Court in
Jitender Kumar Singh (supra) in paragraphs 46 and 47 quoted
above support the contention of Shri Singh that the Special Judge,Page 20
20
under Section 4(3), could not try an offence other than that
specified under Section 3. The public servant was no more and the
trial had not commenced. In view of the relied upon judgment in
absence of PC Act charge, the appellants may not be liable to be
tried before the Special Judge. However, we find two difficulties in
accepting the submission of Shri Singh as follows:
(i) As observed by the High Court, the charge is yet to be
framed and the framing of charge under the PC Act
from the material placed on record was not ruled out.
Thus, the argument at this stage is pre-mature; and
(ii) The Special Judge was authorized not only to deal
with the cases under the PC Act as was the position
in the case before this Court in Jitender Kumar
Singh (supra) but also for other offences. This
course was permissible in view of law laid down by
this Court in M/s. Essar Teleholdings Limited
(supra).
15. In the present case, the Special Court in question has been
constituted not only to deal with the cases of PC Act but also other
cases relating to the NRHM scam. Procedure of Code of Criminal
Procedure is applicable to trial before Special Judge and there is no
prejudice to trial that is taking place before Special Judge duly
appointed to deal with non PC cases when the object of doing so
was to try connected cases before same court. Undoubtedly, while
Special Judge alone could deal with cases under the PC Act, non-
PC Act could also be allowed to be tried by the Special Judge under
Section 26 of the Code of Criminal Procedure. There is no legal bar
to do so, as held by this Court in M/s. Essar Teleholdings
Limited (supra).
16. In view of above distinguishing feature in the present case
from the case of Jitender Kumar Singh (supra), we do not find
any merit in these appeals and the same are dismissed.
………………………………………………J.
( V. GOPALA GOWDA )
………………………………………………J.
( ADARSH KUMAR GOEL )
NEW DELHI;
AUGUST 09 , 2016.
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