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Friday, February 7, 2014

Sections 120-B, 420, 467, 468, 471 IPC and sec. 3,4,5 of P.C. Act -Jurisdiction of Special court on the death of public servant against non-public servants- against public servant and non-public servant - after framing charges - public servant died - can the court proceed against the non public servant under P.C. Act - Apex court held that the lower court correctly forward to the Chief Metropolitan Magistrate for trying the case in accordance with law as it lacks jurisdiction due to the death of public servant = State through CBI New Delhi .. Appellant Versus Jitender Kumar Singh .. Respondent = 2014 ( Feb.part)judis.nic.in/supremecourt/filename=41202

Sections  120-B, 420, 467, 468, 471 IPC and sec. 3,4,5 of P.C. Act -Jurisdiction of Special court on the death of public servant against non-public servants-  against public servant and non-public servant - after framing charges - public servant died - can the court proceed against the non public servant under P.C. Act - Apex court held that the lower court correctly forward to the Chief Metropolitan Magistrate for trying  the case in accordance with law as it lacks jurisdiction due to the death of public servant =
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.  =

where the FIR  was
registered on 2.7.1996 and the charge-sheet was  filed  before  the  Special
Judge on 14.9.2001 for the offences under Sections 120B, 420, IPC read  with
Sections 13(2) and 13(1) of the PC Act.  
Accused 9 and 10 died  even  before the charge-sheet was sent to the Special  Judge.  
 The  charge  against  the sole public servant under the PC Act could also not be framed since he  died
on 18.2.2005.  
The Special Judge also could not  frame  any  charge  against
non-public  servants.   
As  already  indicated,  under  sub-section  (3)  of
Section 4, the special Judge could try non-PC  offences  only  when  “trying
any case” relating to PC offences.  In the instant case, no PC  offence  has
been committed by any of  the  non-public  servants  so  as  to  fall  under
Section 3(1) of the PC Act.  Consequently, there was  no  occasion  for  the
special Judge to try any case relating to offences under the PC Act  against
the Appellant.  
The trying of any case under the PC  Act  against  a  public
servant or a non-public servant, as already  indicated,  is  a  sine-qua-non
for exercising powers under sub-section (3) of Section 4 of PC Act.  In  the
instant case, since no PC offence has been committed  by  any  of  the  non-
public servants and no charges have been framed against the public  servant,
while he was alive, the Special Judge  had  no  occasion  to  try  any  case
against any of them under the PC Act, since no charge has been framed  prior
to the death of the public servant.  
The  jurisdictional  fact,  as  already
discussed above, does not exist so far as this appeal is  concerned,  so  as
to exercise jurisdiction by the Special Judge to deal with non-PC  offences.
46.   Consequently, we find no error  in  the  view  taken  by  the  Special
Judge, CBI, Greater Mumbai in forwarding the case  papers  of  Special  Case
No. 88 of 2001 in the Court of Chief Metropolitan Magistrate for trying  the
case in accordance with law.  Consequently, the order  passed  by  the  High
Court is set aside.  The competent Court to which the Special  Case  No.  88
of 2001 is forwarded, is directed to dispose of the same within a period  of
six months.  Criminal Appeal No. 161 of 2011 is allowed accordingly.   

2014 ( Feb.part)judis.nic.in/supremecourt/filename=41202
K.S. RADHAKRISHNAN, A.K. SIKRI

                                                        REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.943 OF 2008


State through CBI New Delhi             .. Appellant

                                   Versus

Jitender Kumar Singh                    .. Respondent

                                    WITH

                       CRIMINAL APPEAL NO.161 OF 2011




                               J U D G M E N T


K. S. RADHAKRISHNAN, J.



1.    We are, in these cases, concerned with the interpretation  of  various
sections that appear in Chapter II read with Chapter III of  the  Prevention
of Corruption Act, 1988 (for short “the PC Act”), especially Sections 3,  4,
5  and  other  related  provisions  dealing  with  offences  and   penalties
appearing in Chapter III of the PC Act.

2.    We are, in Criminal  Appeal  No.  943  of  2008,  concerned  with  the
question
whether the Special Judge, after framing charges against  a  Public
Servant under 13(2) read with Section 13(1)(b) falling  under  Section  3(1)
of the PC Act and against private persons for offences under  Sections  120-
B, 420, 467, 468, 471 IPC can go ahead with the trial of  the  case  against
the private persons for non-PC offences, even after the death  of  the  sole
public servant.  In other words, the question is whether, on  the  death  of
the sole public servant, the Special Judge will cease to  have  jurisdiction
to continue with the trial against the private persons for non-PC  offences.
Further question raised  is  that,  assuming  that  the  Special  Judge  has
jurisdiction under sub-section (3) of Section 4 of the  PC  Act  to  proceed
against the private persons, is the Special Judge duty bound to try any non-
PC offence, other than the offences specified under Section 3 of the PC  Act
against the accused persons charged at the same trial.


3.    In Criminal Appeal  No.  161  of  2011,  we  are  concerned  with  the
question as to whether the Special  Judge  has  jurisdiction  under  Section
4(3) of the PC Act to try non-PC offences against private  persons  when  no
charges have been framed against public  servants  for  trying  a  case  for
offences under Section 3(1) of the PC Act, since they  died  before  framing
of charges under the PC Act or IPC.

4.    We have two conflicting judgments, one  rendered  by  the  Delhi  High
Court, which is impugned in Criminal Appeal No. 943 of  2008  filed  by  the
State through Central Bureau of  Investigation  (CBI),  New  Delhi  and  the
other rendered by the Bombay High Court, which is challenged  by  a  private
person in Criminal Appeal No. 161 of 2011.

5.    Delhi High Court seems  to  have  taken  the  view  that  when  public
servants  and  non-public  servants  are  arrayed  as  co-accused  and  some
offences are under the PC Act coupled with  other  offences  under  IPC,  on
death of a  public  servant,  the  offences  under  the  PC  Act  cannot  be
proceeded with and the trial Court has to modify and/or alter  and/or  amend
the  charges.  Bombay  High  Court  has  taken  the  view  that   once   the
jurisdiction is vested on a Special Judge, the same cannot  be  divested  on
the death of a public servant and that if a private person has  abetted  any
offences punishable under the PC Act, he  can  be  tried  even  without  the
public servant, in  view  of  the  separate  charge  levelled  against  such
private person by the Special Judge.

6.    We may first deal with the facts in Criminal Appeal No. 943  of  2008.
The CBI, New Delhi registered a  case  No.  RCSIG  2000/E0001  on  16.5.2000
against one P. K. Samal (A-1), Chief Manager SBI, Jaipur Road, J.  K.  Singh
(A-2), Director M/s Mideast Integrated Steels Ltd. (MISL), New  Delhi,  Rita
Singh (A-3), Director M/s MISL, Deepak Singh (A-4)  and  Proprietor  Kesoram
Refractory, New Delhi, under Section 120B read with Sections 420,  467,  471
IPC and Section  13(2)  read  with  Section  13(1)(d)  of  the  PC  Act  and
substantive offences under Sections 420, 467, 468 and 471  IPC  and  Section
13(2) read with Section 13(1)(d) of the PC Act  alleging  that  A-1,  during
1996-97, was a party to a criminal conspiracy with A-2, A-3, A-4 and  others
with the object of cheating IDBI,  Mumbai  and  in  pursuance  thereof,  A-1
abused his official position to  cause  undue  pecuniary  advantage  to  the
accused persons A-2 and A-3 and corresponding loss to IDBI, to the  tune  of
Rs.3,52,63,550/- by negotiating forged /fictitious invoices  purportedly  of
M/s. Kesoram Refractories, a B.K. Birla  Group  Company,  Calcutta,  against
L.Cs opened by SBI, Jaipur Road.

7.     CBI,  after  completing  the  investigation,  filed  charge-sheet  on
1.11.2001 before the Special Judge, New Delhi  and  the  Special  Judge,  on
25.3.2003, after hearing the prosecution as well  as  the  defence  counsel,
framed charges against the accused persons  under  Section  120B  read  with
Sections 467, 471 and 420 IPC and also under Sections 13(1)(d) and 13(2)  of
the PC Act and  substantive  offences  against  the  accused  persons  under
Sections 420, 467, 471 IPC and  also  substantive  offences  under  Sections
13(1)(d) and 13(2) of the PC Act against  A-1.    All  the  accused  persons
pleaded not guilty and claimed trial.

8.    The Special Judge, later, posted the case for prosecution evidence  on
10.4.2003 and, on that day, two witnesses were present,  but  the  case  was
adjourned.   Meanwhile, on 20.6.2003, the sole public servant A-1 died.   A-
3 then filed Criminal Revision No. 550 of 2003  before  the  High  Court  of
Delhi on 22.7.2003 challenging the order framing the  charges  against  him.
The High Court, on 1.8.2003, directed the trial Court  to  record  only  the
examination-in-chief of the  witnesses.   Accordingly,  the  examination-in-
chief of 8 prosecution  witnesses  was  recorded  on  different  days.    On
28.4.2004, A-2 filed an application before the Special  Judge  for  dropping
the charges in view of the death of  A-1,  the  sole  public  servant.    On
12.5.2004, A-2 filed an application before the High Court as  Criminal  M.C.
No. 1395/2004 seeking stay of further proceedings before  the  trial  Court,
till charges are amended.   The  High  Court,  on  14.5.2004,  directed  the
trial Court to dispose of the application filed  by  A-2  for  modification,
amendment or alteration of charges on account of death of  A-1  and  further
directed if the Court feels it necessary, it may add,  alter  or  amend  the
charges and proceed in accordance with law.

9.    CBI, however, filed objection to  the  above  application  before  the
Special Judge on 20.5.2004.  A-2, on 12.7.2005, filed Criminal Revision  No.
535 of 2005 before the High Court for calling of  the  case  pending  before
the Special Judge, so as to consider the propriety of not passing any  order
on the application for dropping the charges, despite the  directions  issued
by the High Court.   He also prayed for setting aside the  charges  in  view
of  the  death  of  the   sole   public   servant.    CBI   questioned   the
maintainability of the revision and  also  pointed  out  that  there  is  no
statutory provision vitiating the  jurisdiction  of  the  Special  Judge  on
death of the public servant.  The High Court, however, placing  reliance  on
its earlier judgement in Kartongen Kemi Ochforvaltning AB v.  State  through
CBI (2004) 1 JCC 218 (Bofors case) held  that  on  the  death  of  a  public
servant, the offences  under  the  PC  Act  cannot  be  proceeded  with  and
directed to modify and alter and/or amend the charges in view of  the  death
of A-1, the legality of which is under challenge in Criminal Appeal No.  943
of 2008.

10.   We may now examine the facts in Criminal Appeal No. 161 of 2011.   CBI
(Banks Securities & Fraud Cell), Mumbai registered an FIR on 2.7.1996  which
discloses that accused no. 1, the then Chairman  and  Managing  Director  of
the Bank of Maharashtra, Pune, who was working as Deputy General Manager  of
Bank of Maharashtra along with accused nos. 9 and 10, the employees  of  the
Bank of Maharashtra, entered into a criminal conspiracy with  an  intent  to
cheat the bank, with the appellant (accused no. 2) and accused  Nos.  3  and
5, who were working as the Managing Director, General Manager of  M/s  Orson
Electronics Limited respectively.   It was also alleged  in  the  FIR  that,
during 1986-88, A-2 and  other  accused  persons  entered  into  a  criminal
conspiracy with the officers of the Bank of Maharashtra  and,  in  pursuance
to the criminal conspiracy, obtained huge credit facilities to the  tune  of
Rs.20 crore in favour  of  M/s  Orson  Electronics  Limited  and  M/s  Nihon
Electronics Limited,  of  which  A-2  was  the  Managing  Director/Director,
knowing very well that both the companies were having very low  capital  and
were new.  It was also  alleged  in  the  FIR  that  those  funds  were  not
utilized for the purpose for which the same were obtained from the bank  and
were  siphoned  off  through  M/s  Orson  Electronics  Limited   and   other
fictitious firms.  Consequently, accused persons failed to repay  the  funds
of the bank, thereby the bank was cheated to the tune  of  Rs.20.64  crores.
It was also alleged in the FIR that A-1 had abused his  position  as  public
servant and granted favour to A-2 to A-8 and thereby caused wrongful  losses
to the bank.

11.   CBI completed the investigation and  the  charge-sheet  was  filed  on
14.9.2001 against the accused persons for  offences  punishable  inter  alia
under Section 120B read with Section 420 IPC  and  Section  5(2)  read  with
Section 5(1)(b) of the Prevention of Corruption Act, 1947, corresponding  to
Section 13(2) read with Section 13(1)(d) of the PC  Act,  in  the  Court  of
Special Judge, Mumbai.

12.   Accused nos. 9 and 10, though named in the charge-sheet, could not  be
sent for trial since they died before the charge-sheet came to be  filed  on
14.9.2001.   On 18.2.2005, A-1, the sole public servant also  expired.    A-
2, the appellant herein, then preferred an application  before  the  Special
Judge for sending the case to the  Metropolitan  Magistrate  at  Bombay  for
conducting the trial for offences under IPC, as the  offence  under  the  PC
Act was not attracted due to the  death  of  the  public  servant.   It  was
pointed out that, in the charge-sheet, two public servants  were  joined  as
accused persons, but only one of them was alive when  the  charge-sheet  was
filed.  Further, it was stated that when  the  charges  were  sought  to  be
framed, no public servant was alive, hence, no  charges  under  the  PC  Act
could be framed.   In the absence of any  offence  under  the  PC  Act,  the
Special Judge could  not  have  tried  the  offences  levelled  against  the
accused persons under the IPC. The application was, however, opposed by  CBI
stating that even though the sole  public  servant  had  died,  the  offence
levelled against the accused persons could be tried by the Special Judge.

13.   The Special Judge, after hearing the  parties,  passed  the  following
order:
      “9.   On going through the above ratios,  it  can  be  said  that  the
      existence of public servant for facing trial before the Special  Court
      is must and in his absence, private person cannot be tried by  Special
      Court.   In present case, the sole  public  servant  died  during  the
      pendency of this case.  The charge is not framed.  The accused Nos.  2
      to 8 are private persons facing  trial  for  the  offences  punishable
      under Section 409 r/w 120-B of IPC.   The said offences are triable by
      the Court of Chief Metropolitan Magistrate.   Therefore, the  case  is
      required to be sent to Court  of  Chief  Metropolitan  Magistrate  for
      trial as per the law.   With this, I pass the following order:-


                                    ORDER
           Misc. Application (Exh. 18) is allowed.
           Registrar (S) is directed to send case papers of Spl. Case No.88
      of  2001  to  Chief  Metropolitan  Magistrate  for  trial  of  accused
      according to law within period of four weeks from  the  date  of  this
      order.


           Misc. Application (Exh.18) stands disposed of.


                                                                 Sd/- 5.2.09
                                                               (S.P. Tavade)
                                                 Special Judge for CBI Cases
                                                            Greater Mumbai.”




14.    CBI,  aggrieved  by  the  said  order,  preferred  Criminal  Revision
Application No. 389/2009 before the Bombay High Court.  The High Court  took
the view that the  jurisdiction  conferred  on  the  Special  Judge  is  not
divested on the death of an accused.  The High Court held that, upon  death,
the case against that public servant alone abates and the rest of  them  can
be proceeded against by the Special Judge,  since  the  Court,  once  vested
with the jurisdiction, cannot be divested of it on the  death  of  a  public
servant.  Consequently, the order passed by the Special Judge was set  aside
and the Special Judge, CBI, Bombay was directed to continue with  the  trial
of the case.   Aggrieved by the same, Criminal Appeal No. 161  of  2011  has
been preferred by A-2.

15.   Shri P.P. Malhotra, learned  Additional  Solicitor  General  appearing
for CBI in Criminal Appeal No. 943 of 2008, referred to  Sections  3(1)  and
4(1) of the PC Act and submitted that irrespective of  whether  the  offence
mentioned in Section 3(1) was committed by a public  servant  or  a  private
person, individually or jointly,  trial  could  be  conducted  only  by  the
Special Judge  who  is  conferred  with  the  jurisdiction  by  the  Central
Government or the State Government, as the case may be, under  the  PC  Act.
Shri Malhotra  submitted  that  on  the  death  of  a  public  servant,  the
jurisdiction  once  vested  on  the  Special  Judge  cannot   be   divested.
Further, it was also pointed out that once  the  public  servant  dies,  the
charge against him alone would abate, but  the  jurisdiction  of  the  Court
would not be divested.  It was stated that the direction issued by the  High
Court was contrary to the statutory provisions  and  settled  principles  of
law and is liable to be set aside.

16.   Shri K. Radhakrishnan, learned senior counsel appearing  for  the  CBI
in Criminal Appeal no. 161 of 2011, highlighted the objects and  reasons  of
the PC Act and submitted that once  the  jurisdiction  to  try  the  offence
under the PC Act, as well as the offence under IPC, has been conferred on  a
Special Judge, it cannot be divested by the act  of  parties,  even  on  the
death of a public servant.

17.   Shri V. Giri, learned senior  counsel  and  amicus  curiae,  submitted
that once jurisdiction is  conferred  on  a  Special  Judge,  it  cannot  be
divested by the subsequent events and on death of the  public  servant  only
the charge against him will abate,  but  the  jurisdiction  of  the  Special
Judge will not be divested.

18.   Shri Kawal Nain, learned counsel  appearing  for  the  respondents  in
Criminal Appeal No. 943 of 2008, also traced the legislative history of  the
PC Act as well as the jurisdiction of the ordinary Criminal Court under  the
Code, with specific reference to Section 3 of the PC Act read  with  Section
13(1)(d)(i)(ii) of the PC  Act  and  Section  120B  of  the  IPC.    Learned
counsel pointed out that the charge against  public  servant  under  Section
13(1)(d)(i)(ii) has abated on his  death,  consequently,  it  would  not  be
possible  for  the  Special  Judge  to  try  any  offence  as  against   the
respondents, since both  are  intrinsically  interlinked.   Learned  counsel
pointed out that to establish an offence of conspiracy, there  must  be  two
or more persons as stated in Section 120A IPC.

19.   Shri R. Basant, learned senior counsel appearing for the appellant  in
Criminal Appeal No. 161 of 2011, has taken the stand that the Special  Judge
has no jurisdiction under Section 4(3) of the PC Act  to  try  the  offences
punishable under  Section  409  read  with  Section  120B  IPC  against  the
appellant, since there  is  no  public  servant  in  the  array  of  accused
persons.  Learned senior counsel submitted, assuming that the Special  Judge
has jurisdiction under Section 4(3) of the PC Act, still the  Special  Judge
has the discretion to decide as to whether he should try any offence,  other
than the offence specified in Section 3 of the PC Act.  It was  pointed  out
that the jurisdiction of the Special Judge to try offences  specified  under
Sections 3(a) and (b) is not only in respect of  offences  punishable  under
the PC Act, but also non-PC offences in view of Section 4(3) of the PC  Act,
which is only an enabling provision.     Further, it was  also  pointed  out
that when exclusive jurisdiction is conferred on the  Special  Judge,  while
trying offences under Section 3(1)(a) and  (b)  against  public  servant  as
well as the private  persons,  the  discretion  is  also  conferred  on  the
Special Judge under Section 4(3) to try  non-PC  offences  as  well  against
private persons.  On the basis of the above legal premises,  learned  senior
counsel pointed out that, in the instant case, since no  charges  have  been
framed against the public servant under Section 3(1) of the PC Act and  that
the public servant is no more,  the  discretion  exercised  by  the  Special
Judge under Section 4(3) of the PC Act should not have been interfered  with
by the High Court.

20.   We may, before examining the rival contentions raised by the  parties,
deal with the objects and reasons for  enacting  the  PC  Act.   The  Indian
Penal Code has provided for  punishment  for  the  offence  of  bribery  and
corruption even against the public servants.   Parliament,  in  its  wisdom,
noticed that the Penal Code was not adequate to meet the exigencies of  time
and a need was felt to introduce  a  special  legislation  with  a  view  to
eradicate  the  evil  of  bribery   and   corruption   from   the   society.
Consequently, the Prevention of Corruption Act, 1947 was enacted, which  was
amended in the year 1964, based on  the  recommendations  of  the  Santhanam
Committee.    Parliament still felt that the anti-corruption laws should  be
made more effective, by widening their coverage and enhancing penalties  and
to expedite the proceedings and hence the 1988 Act was enacted.

21.   Chapter II of the PC Act deals with the appointment of Special  Judges
and Chapter III deals with the offences and penalties.  Section 3 of the  PC
Act deals with the power to  appoint  Special  Judges,  which  is  extracted
hereunder for an easy reference:
    “3. Power to appoint special Judges.-  (1) The  Central  Government  or
    the State Government may, by  notification  in  the  Official  Gazette,
    appoint as many special Judges as may be necessary  for  such  area  or
    areas or for such case or group of cases as may  be  specified  in  the
    notification to try the following offences, namely:-


        a) any offence punishable under this Act; and


        b) any conspiracy to  commit  or  any  attempt  to  commit  or  any
           abetment of any of the offences specified in clause (a).


    (2) A person shall not be qualified for appointment as a special  Judge
    under this Act unless he  is  or  has  been  a  Sessions  Judge  or  an
    Additional Sessions Judge or an Assistant Sessions Judge under the Code
    of Criminal Procedure, 1973 (2 of 1974).”



    Section 4 of the PC Act deals with the cases triable by Special Judges.
The same is also extracted below:

    “4. Cases triable by  special  Judges.-   (1) Notwithstanding  anything
    contained in the Code of Criminal Procedure, 1973 (2 of  1974),  or  in
    any other law for the time being in force, the  offences  specified  in
    sub- section (1) of section 3 shall be tried by special Judges only.


         (2) Every offence specified in sub- section (1) of section 3  shall
    be tried by the  special  Judge  for  the  area  within  which  it  was
    committed, or, as the case may be, by the special Judge  appointed  for
    the case, or where there are more special  Judges  than  one  for  such
    area, by such one of them as may be specified in  this  behalf  by  the
    Central Government.


         (3) When trying any case, a special Judge may also try any offence,
    other than an offence specified in section 3, with  which  the  accused
    may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged
    at the same trial.


         (4) Notwithstanding anything contained  in  the  Code  of  Criminal
    Procedure, 1973  (2  of  1974),  a  special  Judge  shall,  as  far  as
    practicable, hold the trial of an offence on day- to- day basis.”



    Section 5 of the PC Act deals with the procedure and powers of  Special
Judge.  The same also has some relevance and is extracted below for an easy
reference:

    “5. Procedure and powers of special Judge.-  (1) A  special  Judge  may
    take cognizance of offences without the accused being committed to  him
    for trial  and,  in  trying  the  accused  persons,  shall  follow  the
    procedure prescribed by the Code of  Criminal  Procedure,  1973  (2  of
    1974), for the trial of warrant case by Magistrates.


         (2) A special Judge may, with a view to obtaining the  evidence  of
    any person supposed to have been directly or indirectly  concerned  in,
    or privy to, an offence, tender a pardon to such person on condition of
    his making a full and true disclosure of the whole circumstances within
    his knowledge relating  to  the  offence  and  to  every  other  person
    concerned, whether as principal or abettor, in the  commission  thereof
    and any pardon so tendered shall, for the purposes of sub- sections (1)
    to (5) of section 308 of the Code of Criminal  Procedure,  1973  (2  of
    1974), be deemed to have been tendered under section 307 of that Code.


         (3) Save as provided in sub- section (1) or sub- section  (2),  the
    provisions of the Code of Criminal  Procedure,  1973  (2  of  1974  .),
    shall, so far as they are not inconsistent with this Act, apply to  the
    proceedings before a special Judge; and for the purposes  of  the  said
    provisions, the Court of the special Judge shall  be  deemed  to  be  a
    Court of Session and the  person  conducting  a  prosecution  before  a
    special Judge shall be deemed to be a public prosecutor.


         (4) In particular and without prejudice to the  generality  of  the
    provisions contained in sub- section (3), the  provisions  of  sections
    326 and 457 of the Code of Criminal Procedure, 1973 (2 of 1974), shall,
    so far as may be, apply to the proceedings before a special  Judge  and
    for the purposes of the said  provisions,  a  special  Judge  shall  be
    deemed to be a Magistrate.


         (5) A special Judge may pass upon any person convicted by  him  any
    sentence authorised by law for the punishment of the offence  of  which
    such person is convicted.


         (6) A special Judge, while trying an offence punishable, under this
    Act, shall exercise all the  powers  and  functions  exercisable  by  a
    District Judge under the Criminal Law Amendment Ordinance,  1944  (Ord.
    38 of 1944).”




22.   Section 3(1) of the PC Act confers power on the Central Government  or
the State Government to appoint as many Special Judges as may be  necessary,
for such area or areas or for such cases  or  group  of  cases  as  will  be
specified in the notification to be issued in the  Official  Gazette.    The
Special Judge is so empowered to try any offence  punishable  under  Section
3(1)(a) of the PC Act.   The Special Judge is also empowered  to  try  under
Section 3(1)(b) any conspiracy to commit or any attempt  to  commit  or  any
abetment of any of the offences specified in clause (a).  To  make  it  more
precise, following offences would come within the scope of Section  3(1)  of
the PC Act:
    (1)    Any offence punishable under the PC Act.
    (2)    Any conspiracy to commit any offence  punishable  under  the  PC
           Act.
    (3)    Any attempt to commit any offence punishable under the PC Act.
    (4)    Any abetment of any offence punishable under the PC Act.
23.   Let us examine what are  the  offences  specified  in  Clause  (a)  of
Section 3(1) of the PC Act, for which reference  has to be made  to  Chapter
III of the PC Act.

24.   Section 7 of the  PC  Act  refers  to  offences  dealing  with  public
servant taking gratification, other than the legal remuneration  in  respect
of an official act. Section 10 deals  with  punishment  for  abetment  by  a
public servant of offences defined in Sections 8 and 9.  Section 11  of  the
PC Act refers to an offence of a public servant  obtaining  valuable  thing,
without consideration  from  person  concerned  in  proceeding  or  business
transacted by such public servant.  Offences under Sections  7,  10  and  11
can be committed only  by  the  public  servant,  though  an  offence  under
Section 7 can also be  committed  by  a  person  expected  to  be  a  public
servant. An offence under Section 7 or 11 could also be abetted  by  a  non-
public servant, for which punishment has been prescribed  under  Section  12
of the PC Act.  Section 8 deals with the taking  gratification,  by  corrupt
or illegal means, to influence public servant.  Section 9 deals with  taking
gratification, for exercise  of  personal  influence  with  public  servant.
Offences under Sections 8 and 9 can be committed by a person  who  need  not
necessarily be a public servant.   An offence under Sections 8, 9 or 12  can
be committed by a public servant or by a private person  or  by  combination
of both.   Section 13  deals  with  the  criminal  misconduct  by  a  public
servant,  which  is  exclusively  an  offence  against  the  public  servant
relating to criminal misconduct.  An  offence  under  Sections  13  is  made
punishable under Section 15 of  the  PC  Act.  The  above  discussion  would
indicate that a public servant as well as a non-public  servant  can  commit
offences punishable under the PC Act.

25.   A Special Judge appointed under Section 3(1) of the  PC  Act  has  got
jurisdiction  to  proceed  exclusively  against   a   public   servant   and
exclusively against a non-public servant as well, depending upon the  nature
of the offence referred to in Chapter III of the  PC  Act.   Junction  of  a
public servant is not a must for the Special Judge to proceed against a non-
public servant for any offence alleged to have been committed by  him  under
Chapter III of the  PC  Act.     As  already  indicated,  an  offence  under
Section 8 or Section 9 can be committed by non-public servant and he can  be
proceeded against under the PC Act without joinder of  any  public  servant.
For example:
     - Section 7 of the Act uses the words “Whoever, being, or expecting to
       be a public servant….”
     - Sections 10 and 11 of the Act use the words “Whoever, being a public
       servant….”.
     - Section 13 uses the words “A public servant is said to commit…..”.

26.   Thus, offences under Sections 7, 10, 11 and 13 of the PC  Act  can  be
committed by a public servant though an  offence  under  Section  7  can  be
committed also by a “person expected to be a public servant”.  On the  other
hand:
      - Section 8 uses the words “whoever…”, simpliciter, without using  any
        other qualifying words.
      -  Likewise,  Sections  9  and  12  also  use  the  words   “whoever…”
        simpliciter.

27.   Thus, an offence under Sections 8, 9 or 12 can  be  committed  by  any
person, who need not necessarily be a public servant. Such an  offence  can,
therefore, be committed by a public servant or by a private person or  by  a
combination of the two.  It is thus clear that an offence under the  PC  Act
can be committed by either a  public  servant  or  a  private  person  or  a
combination of both and in view of the mandate of Section  4(1)  of  the  PC
Act, read with Section 3(1) thereof, such offences can be tried  only  by  a
Special Judge.
For example:
     - A private person offering a bribe to a  public  servant  commits  an
       offence under Section 12 of Act.  This offence can be tried only  by
       the Special Judge, notwithstanding the  fact  that  only  a  private
       person is the accused in the  case  and  that  there  is  no  public
       servant named as an accused in that case.
     - A private person can be the only accused person in an offence  under
       Section 8 or Section 9 of the said Act. And it is not necessary that
       a public servant should also be specifically named as an accused  in
       the same case.   Notwithstanding the fact that a private  person  is
       the only accused in an offence under Section 8 or Section 9, it  can
       be tried only by a Special Judge.

28.   Thus, the scheme of the PC Act  makes  it  quite  clear  that  even  a
private person who is involved in an offence mentioned in  Section  3(1)  of
the PC Act, is required to be tried only by  a  Special  Judge,  and  by  no
other Court.  Moreover, it is not necessary that in every offence under  the
PC Act, a public servant must necessarily be an accused.   In  other  words,
the existence of a public servant for facing the trial  before  the  Special
Court is not a must and even in his absence, private persons  can  be  tried
for PC as well as non-PC offences, depending upon the facts of the case.

29.   We, therefore, make it clear that it is not the law  that  only  along
with the junction of a public servant  in  array  of  parties,  the  Special
Judge can proceed  against  private  persons  who  have  committed  offences
punishable under the PC Act.

30.   Sections 3(1)(a) and  (b),  it  may  be  noted,  deal  with  only  the
offences punishable under the PC Act and not any  offence  punishable  under
IPC or any other law and     Section 4(1)  of  the  PC  Act  makes  it  more
explicit.

31.   Section 4(1) of the PC Act has used a non-abstante clause.   It  says,
“notwithstanding anything contained in the Code of Criminal Procedure,  1973
(2 of 1974) or in any other law for the time being in  force,  the  offences
specified in sub-section (1) of Section 3 shall be tried by  special  Judges
only”.  Consequently, the offences referred to in  Section  3(1)  cannot  be
tried  by  the  ordinary  criminal  court,  since  jurisdiction   has   been
specifically conferred on a Special Judge appointed under  Section  3(1)  of
the PC Act.  Sub-section (2) of Section 4 also makes it  clear,  which  says
that every offence specified in sub-section (1) of Section 3 shall be  tried
by the special Judge for the area within which it was committed, or, as  the
case may be, by the special Judge appointed for the case,  or,  where  there
are more special Judges than one for such area, by such one of them  as  may
be specified in this behalf by the Central Government.  A  conjoint  reading
of Section 3(1) along with Sections 4(1) and (2) would make it  amply  clear
that only the Special Judge has got the jurisdiction  to  try  the  offences
specified in sub-section (1) of Section 3 committed by a public  servant  or
a non-public servant, alone or jointly.

32    We may now examine the scope of sub-section (3) of Section  4  of  the
PC Act, which indicates that “when trying any case”, which means trying  any
case relating to the offences referred to in Section 3(1)(a) and (b) of  the
PC Act for which exclusive jurisdiction is conferred on the  Special  Judge.
A Special Judge, while exercising, exclusive  jurisdiction,  that  is,  when
trying any case relating to offences under Sections 3(1)(a) and (b)  of  the
PC Act, may also try  any  offence  other  than  the  offence  specified  in
Section  3,  with  which  the  accused  may,  under  the  Code  of  Criminal
Procedure, 1973 be charged at the same trial.  An accused, in a given  case,
may be charged under the Code of Criminal  Procedure  on  an  offence  being
committed under the IPC and the offence specified in Section  3  of  the  PC
Act.   Criminal cases that can be tried by a Special Judge are under the  PC
Act  and  also  for  the  charges  under  IPC  or  any  other   legislation.
Conspiracy to commit any offence either under the PC Act or  under  the  IPC
is a separate  offence,  has  to  be  separately  charged  and  tried.   For
example, the conspiracy to  commit  offence  punishable  under  the  PC  Act
itself is an offence to be tried only by a Special Judge.  In Ajay  Aggarwal
v. Union of India (1993) 3 SCC 609, the Court held as follows:
           “….Conspiracy to commit  a  crime  itself  is  punishable  as  a
      substantive offence and every individual offence committed pursuant to
      the conspiracy is separate and distinct offence  to  which  individual
      offenders are liable to punishment, independent of the conspiracy. ….”



33.   Reference may also be made to the judgments of this Court in Sanichar
Sahni v. State of Bihar (2009) 7 SCC 198 and Mohd. Arif v.  State  (NCT  of
Delhi) (2011) 13 SCC 621.

34.   In other words, an accused person, either a  public  servant  or  non-
public servant, who has been charged for an offence under  Section  3(1)  of
the PC Act, could also be charged for an offence under IPC, in the event  of
which, the Special Judge has got  the  jurisdiction  to  try  such  offences
against the public servant as well as against a  non-public  servant.    The
legal position is also settled by the Judgment of this Court in Vivek  Gupta
v. CBI and another (2003) 8 SCC 628, wherein this Court held that  a  public
servant who is charged of an offence under   the provisions of  the  PC  Act
may also be charged by the Special Judge at the same trial  of  any  offence
under IPC  if the same is committed in a manner contemplated  under  Section
220 of the Code.  This Court  also  held,  even  if  a  non-public  servant,
though charged only of offences under Section  420  and  Section  120B  read
with Section 420 IPC, he could also be tried by the Special Judge  with  the
aid of sub-section (3) of Section 4 of the PC Act.  We  fully  endorse  that
view.


35.   We are, however, in Criminal Appeal No.161 of 2011, concerned  with  a
situation where no charge has been framed against the public servant,  while
he was alive, under Section  3(1)  nor  any  charge  was  framed  against  a
private person for any offence under  Section  3(1)  of  the  PC  Act.   The
Special Judge, therefore, had no occasion to “try any  case”  under  Section
3(1) of the PC Act, either against a public servant or a private person,  so
as to try any offence other than an offence specified in Section 3,  meaning
thereby, non-PC offences against private person, like the appellant.


36.   The Special Judge appointed under  Section  3(1)  could  exercise  the
powers under sub-section (3) to Section 4 to try non-PC offence.  Therefore,
trying a case by a Special Judge under Section 3(1) is  a  sine-qua-non  for
exercising jurisdiction by the Special Judge for trying any  offence,  other
than an offence specified in Section 3.   “Trying any  case”  under  Section
3(1) is, therefore, a jurisdictional fact for the Special Judge to  exercise
powers to try any offence other than an offence specified in Section 3.

37.   Exclusion of the jurisdiction of ordinary Criminal Court,  so  far  as
offences under the PC Act  are  concerned,  has  been  explicitly  expressed
under Section 4(1) of the PC Act, which does not find a place in respect  of
non-PC offences in sub-section (3) of Section 4 of the  PC  Act.    Further,
it is not obligatory on the part of a Special Judge to try non-PC  offences.
 The expression “may also try” gives an element of discretion  on  the  part
of the Special Judge which will depend upon the facts of each case  and  the
inter-relation between PC offences and non-PC offences.

38.   A Special Judge exercising powers under the PC Act is not expected  to
try non-PC offences totally unconnected with any PC offences  under  Section
3(1) of the PC Act and in the event  of  a  Special  Judge  not  trying  any
offence under Section 3(1) of the PC Act, the question of the Special  Judge
trying non-PC offences does not arise. As already indicated, trying of a  PC
offence is a jurisdictional fact to exercise the  powers  under  Sub-section
(3) of Section 4.  Jurisdiction of the Special Judge, as such, has not  been
divested, but the exercise of jurisdiction, depends upon the  jurisdictional
fact of trying a PC offence. We are, therefore, concerned with the  exercise
of jurisdiction and not the existence of jurisdiction of the Special Judge.


39.   The meaning and content of the expression  “jurisdictional  fact”  has
been considered by this Court in Carona Ltd. v. Parvathy Swaminathan &  Sons
 (2007) 8 SCC 559, and noticed that where the jurisdiction of a Court  or  a
Tribunal is dependent on the existence of a  particular  state  of  affairs,
that state of affairs may be described as preliminary to, or  collective  to
the merits of the issue.  Existence of a jurisdictional fact is thus a  sine
qua non or condition precedent  to  the  assumption  of  jurisdiction  by  a
Court.  In Ramesh Chandra Sankla v. Vikram Cement & Ors.  (2008) 14 SCC  58,
this  Court  held  that   by   erroneously   assuming   existence   of   the
jurisdictional fact, a Court cannot confer upon  itself  jurisdiction  which
otherwise it does not possess.

40.   We have already indicated that the jurisdictional fact so  as  to  try
non-PC offences is “trying any case” under the PC Act.   As noticed by  this
Court in Ratilal Bhanji Mithani v. State of Maharashtra (1979)  2  SCC  179,
the trial of a warrant case starts with the framing  of  charge.   Prior  to
that the proceedings are only an inquiry.  The Court held as follows:-
      “Once a charge is framed, the Magistrate has no  power  under  Section
      227 or any other provision of the  Code  to  cancel  the  charge,  and
      reverse the proceedings to the stage of Section 253 and discharge  the
      accused. The trial in a  warrant  case  starts  with  the  framing  of
      charge; prior to it, the proceedings are only an  inquiry.  After  the
      framing of the charge if the accused pleads not guilty, the Magistrate
      is required to proceed with  the  trial  in  the  manner  provided  in
      Sections 254 to 258 to a logical end. Once a charge  is  framed  in  a
      warrant case, instituted either on complaint or a police  report,  the
      Magistrate has no power under the Code to discharge the  accused,  and
      thereafter, he can either acquit or  convict  the  accused  unless  he
      decides to proceed under Section 349 and  562  of  the  Code  of  1898
      (which correspond to Sections 325 and 360 of the Code of 1973).”




41.   We may now examine whether, in both these appeals, the above test  has
been satisfied.  First, we may deal with Criminal Appeal No.  943  of  2008.
CBI, in this appeal, as already indicated,  submitted  the  charge-sheet  on
1.11.2001 for the offences against A-1, who is a public servant, as well  as
against non-public servants.   Learned  Special  Judge  had,  on  25.3.2003,
framed the charges against the  accused  persons  under  Section  120B  read
Sections with 467, 471 and 420 IPC and  also  under  Sections  13(1)(d)  and
13(2) of the PC Act and substantive offences under  Sections  420,  467  and
471 IPC and also substantive offences under Sections 13(1)(d) and  13(2)  of
the PC Act against the  public  servants.    Therefore,  charges  have  been
framed against the public servants as  well  as  non-public  servants  after
hearing the prosecution  and  defence  counsel,  by  the  special  Judge  on
25.3.2003 in respect of PC offences as well as non-PC offences.  As  already
indicated, under sub-section (3) of Section  4,  when  trying  any  case,  a
Special Judge may also try any offence other than the offence  specified  in
Section 3 and be charged in the same  trial.   The  Special  Judge,  in  the
instant case, has framed charges against  the  public  servant  as  well  as
against the non-public servant for offences punishable  under  Section  3(1)
of PC Act as well as for the offences punishable  under  Section  120B  read
with Sections 467,  471  and  420  IPC  and,  therefore,  the  existence  of
jurisdictional fact that is “trying a  case”  under  the  PC  Act  has  been
satisfied.

42.   The Special Judge after framing the charge for PC and non-PC  offences
posted the case for examination of  prosecution  witnesses,  thereafter  the
sole public servant died on 2.6.2003. Before that,  the  Special  Judge,  in
the instant case, has also exercised his powers  under  sub-section  (3)  of
Section 4 of the PC Act and hence cannot be divested with  the  jurisdiction
to proceed against the non-public servant, even if the sole  public  servant
dies after framing of the charges.  On death, the charge against the  public
servant alone abates and since the special Judge has already  exercised  his
jurisdiction under sub-section  (3)  of  Section  4  of  the  PC  Act,  that
jurisdiction cannot be  divested  due  to  the  death  of  the  sole  public
servant.

43.   We can visualize a situation where a public servant dies  at  the  fag
end of the trial, by that time, several witnesses might have  been  examined
and to hold that the entire trial would be vitiated due to death of  a  sole
public servant would defeat the entire object and purpose  of  the  PC  Act,
which is enacted for effective  combating  of  corruption  and  to  expedite
cases related to corruption and bribery. The purpose of the  PC  Act  is  to
make  anti-corruption  laws  more  effective  in  order  to   expedite   the
proceedings, provisions for day-to-day trial  of  cases,  transparency  with
regard to grant of stay and exercise of powers of revision on  interlocutory
orders have also been provided under the PC Act.    Consequently,  once  the
power has been exercised by the  Special  Judge  under  sub-section  (3)  of
Section 4 of the PC Act to proceed against non-PC  offences  along  with  PC
offences, the mere  fact  that  the  sole  public  servant  dies  after  the
exercise of powers under sub-section (3) of Section 4, will not  divest  the
jurisdiction of the Special Judge or vitiate the proceedings pending  before
him.


44.   We are, therefore, inclined to allow Criminal Appeal No. 943  of  2008
and set aside the order of the High Court and direct the  Special  Judge  to
complete the trial of the cases within a period of six months.

45.   We may now examine Criminal Appeal No. 161 of 2011,
where the FIR  was
registered on 2.7.1996 and the charge-sheet was  filed  before  the  Special
Judge on 14.9.2001 for the offences under Sections 120B, 420, IPC read  with
Sections 13(2) and 13(1) of the PC Act.  
Accused 9 and 10 died  even  before the charge-sheet was sent to the Special  Judge.  
 The  charge  against  the sole public servant under the PC Act could also not be framed since he  died
on 18.2.2005.  
The Special Judge also could not  frame  any  charge  against
non-public  servants.   
As  already  indicated,  under  sub-section  (3)  of
Section 4, the special Judge could try non-PC  offences  only  when  “trying
any case” relating to PC offences.  In the instant case, no PC  offence  has
been committed by any of  the  non-public  servants  so  as  to  fall  under
Section 3(1) of the PC Act.  Consequently, there was  no  occasion  for  the
special Judge to try any case relating to offences under the PC Act  against
the Appellant.  
The trying of any case under the PC  Act  against  a  public
servant or a non-public servant, as already  indicated,  is  a  sine-qua-non
for exercising powers under sub-section (3) of Section 4 of PC Act.  In  the
instant case, since no PC offence has been committed  by  any  of  the  non-
public servants and no charges have been framed against the public  servant,
while he was alive, the Special Judge  had  no  occasion  to  try  any  case
against any of them under the PC Act, since no charge has been framed  prior
to the death of the public servant.  
The  jurisdictional  fact,  as  already
discussed above, does not exist so far as this appeal is  concerned,  so  as
to exercise jurisdiction by the Special Judge to deal with non-PC  offences.


46.   Consequently, we find no error  in  the  view  taken  by  the  Special
Judge, CBI, Greater Mumbai in forwarding the case  papers  of  Special  Case
No. 88 of 2001 in the Court of Chief Metropolitan Magistrate for trying  the
case in accordance with law.  Consequently, the order  passed  by  the  High
Court is set aside.  The competent Court to which the Special  Case  No.  88
of 2001 is forwarded, is directed to dispose of the same within a period  of
six months.  Criminal Appeal No. 161 of 2011 is allowed accordingly.






                                  eard Hear……………………………..J.
                                  (K. S. Radhakrishnan)




                                  eard Hear……………………………..J.
                                  (A.K. Sikri)
New Delhi,
February 05, 2014.

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