My photo




Saturday, October 3, 2015

We find that the Special Judge, vide the order dated 2.9.2013, has given cogent reasons for not exercising his discretion to order a joint trial. He stated that the evidence in the main case has almost reached the end and as many as 146 witnesses in the main case and 71 witnesses in the second supplementary charge sheet have already been examined, clubbing the two cases together would result in the wastage of the effort already gone into and would lead to a failure of justice. The learned Judge concluded as follows:- In the end I may add that it is not obligatory on the Court to hold a joint trial and provisions of these sections are only enabling provisions. An accused cannot insist with ulterior purpose or otherwise that he be tried as co-accused with other accused, that too in a different case. It is only a discretionary power and Court may allow it in a particular case if the interest of justice so demands to prevent miscarriage of justice. In the instant case, neither the facts and allegations are common, nor evidence is common nor the accused were acting with a commonality of purpose and, as such, there is no ground for holding a joint trial. I may also add that holding a joint trial at this stage may lead to miscarriage of justice. 48) In my humble view, a Court may not deem it desirable to conduct a joint trial, even if conditions of these Sections are satisfied, though not satisfied in the instant case, that is: a) when joint trial would prolong the trial; b) cause unnecessary wastage of judicial time; and c) confuse or cause prejudice to the accused, who had taken part only in some minor offence. We find no infirmity in the impugned judgment. As a result, the appeal and the writ petitions are, therefore, dismissed.


                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL APPEAL NO. 1273 OF 2015
               [ARISING OUT OF SLP (CRIMINAL) NO.2978 OF 2014)





                   WRIT PETITION (CRIMINAL) NO.36 OF 2014

                   WRIT PETITION (CRIMINAL) NO.39 OF 2014

                        J U D G M E N T

R.F. Nariman, J.

Leave granted in SLP (Crl.) No.2978 of 2014.

2.    These matters arise as a sequel to  the  judgment  delivered  by  this
Court on 1.7.2013 by which three writ petitions filed by Essar  Teleholdings
Limited, Loop Telecom Limited and Vikash Saraf were dismissed by a  Division
Bench of this Court.
3.    The brief facts necessary to  appreciate  how  the  controversy  arose
before this Court are as follows.

4.    CBI registered an FIR RC No.DAI 2009 A 0045 dated 21.10.2009  alleging
offences  under  the  Prevention  of  Corruption  Act,  1988  and   criminal
conspiracy in respect of the grant of 122 UAS  licenses  in  the  year  2008
against various unknown Government officials, persons  and  companies.   The
gist of the offence was set out in the penultimate  paragraph  of  the  said
FIR, which is set out as follows:

“Thus, the  concerned  officials  of  Department  of  Telecommunications  in
criminal  conspiracy  with  private  persons/companies  by   abusing   their
official position granted Unified Access Service Licenses to a few  selected
companies at nominal rate by rejecting the applications  of  others  without
any valid reason thereby causing wrongful loss to the  Government  of  India
and a corresponding wrongful loss to private persons/companies estimated  to
be more than Rs.22,000 Crores.

The aforesaid facts disclose commission  of  offence  under  sections  120-B
IPC, r/w section 13(2) r/w  13  (1)(d)  of  PC  Act,  1988  against  certain
unknown officials of Department of Telecommunications, Government of  India,
unknown private persons/companies and others”

5.    On 16.12.2010, this Court passed  an  order  reported  in  Centre  for
Public Interest Litigation v. Union of India, (2011) 1  SCC  560,  directing
the CBI to investigate the said FIR.  On  10.2.2011,  while  monitoring  the
CBI investigation, this Court passed an order directing that no other  Court
shall pass any order which may in any manner impede the investigation  being
carried out by the CBI and Directorate of  Enforcement.   On  2.4.2011,  and
25.4.2011, CBI filed a chargesheet and  a  first  supplementary  chargesheet
against 12 accused persons for offences  committed  both  under  the  Indian
Penal Code and the Prevention of Corruption Act. It is  common  ground  that
none of the petitioners before us were  named  or  mentioned  in  these  two

6.    The present case arises out  of  a  second  supplementary  chargesheet
dated 12.12.2011 naming  8  persons  as  accused,  alleging  offences  under
Section 120B read with Section 420 IPC.  It  is  relevant  to  mention  that
this second  supplementary  chargesheet  which  implicated  the  petitioners
before us did not contain any offences under the  Prevention  of  Corruption
Act.  The CBI mentioned in the said chargesheet that separate offences  came
to their notice during the investigation of FIR RC No.DAI 2009 A 0045, as  a
result of which the second supplementary chargesheet was being filed.   They
further went on to state that these charges are triable by a  Magistrate  of
the First Class but may be endorsed to any appropriate court as  deemed  fit
after which  process  may  be  issued  to  the  accused  persons  for  their
appearance and to face trial as per law.

7.    On 21.12.2011, the  Special  Judge  took  cognizance  of  this  second
supplementary chargesheet dated 12.12.2011 and stated that he was  satisfied
that there is enough incriminating material on  record  to  proceed  against
the accused persons.

8.    Meanwhile, pursuant to an  observation  made  in  this  Court’s  order
dated 10.2.2011, two important  things  happened.   First,  the  Delhi  High
Court passed an administrative order dated 15.3.2011  appointing  Shri  O.P.
Saini as Special Judge to undertake  trial  of  cases  in  relation  to  all
matters pertaining to the 2G Scam, and the Government of NCT of  Delhi  also
promulgated  a  notification  dated  28.3.2011  under  the   Prevention   of
Corruption Act nominating the self-same Shri O.P. Saini a Special  Judge  to
undertake trial of cases in relation to all matters  pertaining  to  the  2G
Scam. Three writ petitions were filed as has been stated above,  challenging
inter alia the order dated 21.12.2011  passed  by  the  Special  Judge,  CBI
taking  cognizance  of  the  matters  stated  in  the  second  supplementary
chargesheet against the petitioners before us.   The  prayers  contained  in
these writ petitions are set out hereunder:

a)  a Writ of  Certiorari  or  an  order  or  direction  in  the  nature  of
certiorari quashing the Administrative Order dated 15.03.2011 issued by  the
Respondent No. 1 in so far as it seeks to confer upon the Ld. Special  Judge
Shri O.P. Saini jurisdiction to inquire into and try all cases  arising  out
of 2G Spectrum scam, which  are  otherwise  exclusively  inquired  into  and
triable by a Magistrate  under  the  relevant  statutes  and  to  quash  all
consequential actions/orders passed thereupon;
b)   a Writ of Certiorari or any other order or direction in the  nature  of
certiorari quashing  the  Notification  bearing  No.  6/05/2011-Judl.  dated
28.03.2011 in so far as it seeks to confer upon the Ld. Special  Judge  Shri
O.P. Saini jurisdiction to inquire into and try all  cases  arising  out  of
the 2G Spectrum scam, including those which are not within the scope of  his
jurisdiction under the relevant  statutes  read  with  the  Constitution  of
India and to quash all consequential actions/orders thereupon;

c)  a writ to quash and set aside order dated 21.12.2011 passed by  the  Ld.
Special Judge Shri O.P. Saini taking cognizance  in  CC  No.  1(B)  of  2011
titled ‘CBI v Ravikant Ruia & Ors’ and all proceedings emanating therefrom;

d)  Pass such other further orders, which may be required  in  the  interest
of justice equity and good conscience.

9.    It will thus be seen that prayers (a) and (b) concern themselves  with
quashing the administrative order dated 15.3.2011 of the High Court and  the
notification dated 28.3.2011  of  the  Government  of  NCT  of  Delhi,  both
appointing and conferring jurisdiction on the Special Judge to enquire  into
and try all cases arising out of the 2G Scam.  Prayer  (c)  was  devoted  to
setting aside the order dated  21.12.2011  passed  by  the  learned  Special
Judge taking cognizance.

10.   In a detailed judgment, this  Court  set  out  the  arguments  of  the
petitioners as follows:
“The  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  of  Delhi  on
the following grounds:

14.1. The impugned notification travels beyond the provisions of CrPC.  CrPC
mandates that offences under IPC ought to be tried as per its provisions.

14.2. It  has   been   held   by   this   Hon'ble   Court   in CBI v. Keshub
Mahindra [(2011) 6 SCC 216 : (2011) 2 SCC (Cri)  863]  that:  (SCC  p.  219,
para 11)

“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 the  notification  are  contrary  to  the
well-settled provisions of law and ought to be set  aside  insofar  as  they
confer jurisdiction on a Special Judge to take cognizance and hold trial  of
matters not pertaining to the PC Act offences.

14.3. If the offence of Section 420 IPC,  which  ought  to  be  tried  by  a
Magistrate, is to be tried by a Court of  Session,  a  variety  of  valuable
rights of the petitioner would be jeopardised. This  would  be  contrary  to
the decision of the Constitution Bench of the Hon'ble Supreme Court  in A.R.
Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] ,  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.”
[at para 14]

11.   After setting out Sections 194,  26,  220  and  223  of  the  Code  of
Criminal Procedure Code (in short “CrPC”)  and  Sections  3  and  4  of  the
Prevention of Corruption Act, this Court stated:
“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.

Admittedly, the co-accused of 2G Scam case charged under the  provisions  of
the 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 CrPC will apply and the petitioners though accused of  different
offences i.e. under Sections 420/120-B  IPC,  which  alleged  to  have  been
committed in the course of 2G Spectrum transactions, under Section 223  CrPC
they may be charged and can be tried together with the other  co-accused  of
2G Scam cases.” [at paras 24 and 25]

12.   This Court went on to consider some of the earlier judgments  of  this
Court with reference to the  validity  of  the  administrative  order  dated
15.3.2011 and the notification dated 28.3.2011 and then held:
“On the question of validity of the Notification dated 28-3-2011  issued  by
the NCT of Delhi and Administrative Order  dated  15-3-2011  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. Articles 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  the  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 [(1998) 3 SCC 72 :  1998
SCC (L&S) 786] and High Court of Orissa v. Sisir Kanta  Satapathy [(1999)  7
SCC 725 : 1999 SCC (L&S) 1373] .) 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 the 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 15-3-2011  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-Additional  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.” [at para 30]

13.   In the last paragraph, namely, paragraph 35, this Court dismissed  the
writ petitions in the following terms:
“We find no merit in these writ petitions, they are  accordingly  dismissed.
The Special Court is expected to proceed with the trial on day-to-day  basis
to ensure early disposal of the  trial.  There  shall  be  no  order  as  to
costs.” [at para 35]

14.    Close  upon  the  heels  of  the  judgment  of  this   Court,   Essar
Teleholdings Ltd., one of the  petitioners  before  us,  by  an  application
dated 29.7.2013, sought for a joint trial, by praying as follows:-
Pass an order to give effect to the judgment of the  Hon’ble  Supreme  Court
dated 01.07.2013 passed in Writ Petition (Civil) No. 57  of  2012,  treating
the Accused in CC No. 1B of 2011 as ‘Co-accused’  with  the  Accused  in  CC
No.1 of 2011 and to pass all other consequential  orders,  in  this  regard;

Consider the matter afresh from the stage  of  the  receipt  of  the  report
under  Section  173(8)  CrPC,  and  frame  fresh  charges  and  also   issue
appropriate directions upon the Applicants joining the Trial  in  C.C.  No.1
of 2011, and/or

Issue appropriate directions to ensure that the proceedings i.e. CC No 1  of
2011 and CC No 1B of 2011 are  assimilated  into  one  Trial  and  for  this
purpose issue appropriate directions to rectify  the  situation  as  to  the
past, and for further proceedings, direct that the Trial being  C.C.  No.  1
of 2011 is conducted in conformity with Section 220 with 223 CrPC;and/or

Pass any other order(s) as this Hon’ble Court may deem  fit  and  proper  in
the interest of justice.

15.   The other two writ petitioners, whose petitions had been dismissed  by
this Court by the judgment dated 1.7.2013, namely, M/s Loop Telecom  Limited
and Mr. Vikash Saraf, both  filed  review  petitions  against  the  judgment
dated 1.7.2013, in which they raised the self-same grounds that were  argued
before this Court.  These review petitions were dismissed by this  Court  on
24.9.2013. It can be seen from this narration of  facts  that  the  judgment
dated 1.7.2013 has become final between all the parties to the lis.

16.   The immediate cause for filing of the present appeals  is  a  judgment
dated 2.9.2013 by which the Special Judge dismissed  the  application  filed
by Essar Teleholdings Ltd. asking for a joint trial.

17.   Shri Harish Salve,  learned  senior  counsel  appearing  for  all  the
petitioners, submitted that as a lot of  water  had  already  flowed  and  a
large number of witnesses have already been examined, the correct course  of
action in the present case  should  be  to  send  the  second  supplementary
chargesheet filed by the CBI to a Magistrate of the First Class to  try  the
offences under Section 120B read with Section 420 of  the  Penal  Code.  His
argument was that this Court, in the judgment dated 1.7.2013, had held  that
since the present petitioners were co-accused  in  the  on-going  trial,  it
must follow that either there be a joint trial, in  which  case  the  entire
proceeding has to start de novo, or as was  suggested  by  him,  the  second
supplementary  chargesheet  should  be  sent  for  trial  separately  to   a
Magistrate of the First Class.  According to learned counsel,  it  is  clear
that under the Prevention of Corruption Act, the Special Judge can only  try
offences that arise under the said Act and not  offences  that  arise  under
the Penal Code.  It is only Section 4(3) of the said Act  that  permits,  in
the circumstances mentioned therein, the trial of Penal Code offences  which
are that when trying any case, the Special Judge may  also  try  an  offence
other than  the  offence  specified  in  Section  3  of  the  Prevention  of
Corruption Act provided that  this  can  only  be  at  the  same  trial.  He
stressed the words “same trial” and said that it is clear that  short  of  a
Penal Code offence being linked to a Prevention of  Corruption  Act  offence
and provided they are tried together, no offence under the  Penal  Code  can
be tried by the Special Judge set up  under  the  Prevention  of  Corruption

18.   These submissions were countered by Shri Anand Grover, learned  senior
advocate appearing on behalf  of  the  respondents.   According  to  learned
counsel, this Court in the judgment  dated  1.7.2013  did  not  direct  that
there be a joint trial but only observed in passing that the  special  Judge
“may” try the present case along with the main case. He further argued  that
ultimately, since this Court dismissed the writ  petitions  filed  by  these
very petitioners, and stated that the Special Court is expected  to  proceed
with the trial on a day to day basis to ensure early disposal, it  is  clear
that ultimately no joint trial  was,  in  fact,  to  take  place  under  any
alleged direction of this Court. He further went on to submit  that  in  any
case the provisions of Sections 220 and 223 of the CrPC  vest  a  discretion
in the Court, which discretion  has  been  appropriately  exercised  by  the
learned Special Judge on the facts of the present case. He went on to  argue
that if there were to be a joint trial, all the  accused  would  necessarily
have to give their consent which is not the case here.  He also went  on  to
submit, by citing Harjinder Singh v. State of  Punjab,  (1985)  1  SCC  422,
that  the  expression  “same  trial”  occurring  in  section  4(3)  of   the
Prevention of Corruption Act could also mean that the present  case  may  be
tried immediately after the trial in the main case is over.

19.   Having heard learned counsel for both the parties, we are of the  view
that the learned senior advocate for the petitioners is attempting to  raise
submissions which have already been rejected by this Court by  its  judgment
dated 1.7.2013. His main submission, that in  the  fitness  of  things,  the
second supplementary chargesheet should be tried  by  a  Magistrate  of  the
First Class would be directly contrary to the finding  of  this  Court  that
the said second supplementary chargesheet  be  tried  only  by  the  learned
Special Judge. Quite apart from this, his  submission  is  also  beyond  the
prayer made in the application filed before  the  Special  Judge.   We  have
already extracted the said prayer in paragraph 13 above. It  is  clear  that
on a reading of the prayers in the said application, only a joint trial  was
asked for in pursuance of the judgment of  this  Court  dated  1.7.2013.  In
fact, on a reading of the application and  the  arguments  made  before  the
learned Special Judge, the petitioners’ main argument was that  this  Court,
in the order dated 1.7.2013, had in fact mandated a joint trial.   This  was
correctly turned down by the learned Special Judge, regard being had to  the
fact that this Court, in paragraph 25 of the judgment dated  1.7.2013,  only
stated that a discretion was vested with the  Special  Judge  which  he  may
well exercise given the facts of the case.

20.   Read in the backdrop of Sections 220 and  223,  it  is  clear  that  a
discretion is vested with the Court to order a  joint  trial.  In  fact,  in
Chandra Bhal v. State of U.P., (1971) 3 SCC 983, this Court stated:
“Turning to the provisions of the Code, Section  233  embodies  the  general
mandatory rule providing for a separate charge for  every  distinct  offence
and for separate trial for every such charge. The  broad  object  underlying
the general rule seems to be to give to the accused a notice of the  precise
accusation and to save him from being embarrassed  in  his  defence  by  the
confusion which is likely to  result  from  lumping  together  in  a  single
charge distinct offences and from combining several charges  at  one  trial.
There are, however, exceptions to this general rule and they  are  found  in
Sections 234, 235, 236 and 239. These exceptions embrace cases in which  one
trial for more than one offence is not considered  likely  to  embarrass  or
prejudice the accused in his defence. The matter of joinder of  charges  is,
however,  in  the  general  discretion  of  the  court  and  the   principle
consideration controlling the judicial exercise of  this  discretion  should
be to avoid embarrassment to the defence  by  joinder  of  charges.  On  the
appellant's argument the only provision requiring consideration  is  Section
235(1) which lays down that if in one series of acts so  connected  together
as to form the same transaction more offences than one are committed by  the
same person then he may be charged with and tried at  one  trial  for  every
such offence. This exception like the  other  exceptions  merely  permits  a
joint trial of more offences than one. It  neither  renders  a  joint  trial
imperative nor does it bar or prohibit separate trials. Sub-section  (2)  of
Section 403 of the Code also provides that a person acquitted  or  convicted
of any offence may be afterwards tried for any distinct offence for which  a
separate charge might have been made against him on the former  trial  under
Section 235(1). No legal objection to  the  appellant's  separate  trial  is
sustainable and his counsel has advisedly not seriously pressed  any  before
us.” [at para 5]

21.   The other contention of learned senior  counsel  for  the  petitioners
before us has already been answered by this  Court  by  upholding  both  the
administrative  order  dated  15.3.2011  and  the  NCT  notification   dated
28.3.2011.  This Court having  held  that  the  administrative  order  dated
15.3.2011 of the High court was valid, it is clear that even  a  Penal  Code
offence by itself – that is, such offence which is not to be  tried  with  a
Prevention of Corruption Act offence - would be within the  Special  Judge’s
jurisdiction inasmuch as the administrative order of the  High  Court  gives
power to the Special Court to decide  all  offences  pertaining  to  the  2G
Scam.  In fact, once this order is upheld,  the  learned  senior  advocate’s
argument based on Section 4(3) of the Prevention  of  Corruption  Act  pales
into insignificance.  This is for the reason  that  independent  of  Section
4(3) of the Prevention of Corruption  Act  and  of  the  notification  dated
28.3.2011, the Special Judge  has  been  vested  with  the  jurisdiction  to
undertake the trial of all cases in relation to all  matters  pertaining  to
the 2G  Scam  exclusively,  which  would  include  Penal  Code  offences  by
themselves, so long as they pertain to the 2G Scam. Shri Salve  cited  State
(through CBI, New Delhi) v. Jitender Kumar Singh, (2014)  11  SCC  724,  and
paragraph 38 in particular to submit that a Special Judge appointed  to  try
Prevention of Corruption Act cases, cannot try non Prevention of  Corruption
Act cases unless  there  is  a  causal  link  between  such  cases  and  the
Prevention of Corruption Act  cases,  in  which  case  they  must  be  tried
together. As has been held by us, once the challenge to  the  administrative
order dated 15.3.2011, is specifically rejected, the  offences  arising  out
of the second supplementary chargesheet,  being  offences  under  the  Penal
Code relatable to the 2G scam, can be tried separately only by  the  Special

22.   We find that the Special Judge, vide the  order  dated  2.9.2013,  has
given cogent reasons for not exercising his  discretion  to  order  a  joint
trial. He stated that the evidence in the main case has almost  reached  the
end and as many as 146 witnesses in the main case and 71  witnesses  in  the
second supplementary charge sheet have already been  examined,  clubbing  the
two cases together would result in the wastage of the  effort  already  gone
into and would lead to a failure of justice.  The  learned  Judge  concluded
as follows:-
47)         In the end I may add that it is not obligatory on the  Court  to
hold a joint trial and  provisions  of  these  sections  are  only  enabling
provisions.  An accused cannot insist with  ulterior  purpose  or  otherwise
that he be tried as co-accused with other accused, that too in  a  different
case.  It is only a  discretionary  power  and  Court  may  allow  it  in  a
particular  case  if  the  interest  of  justice  so  demands   to   prevent
miscarriage of  justice.   In  the  instant  case,  neither  the  facts  and
allegations are common, nor evidence is common nor the accused  were  acting
with a commonality of purpose and, as such, there is no ground  for  holding
a joint trial.  I may also add that holding a joint trial at this stage  may
lead to miscarriage of justice.
48)   In my humble view, a Court may not deem  it  desirable  to  conduct  a
joint trial, even if conditions of these Sections are satisfied, though  not
satisfied in the instant case, that is:
a)  when joint trial would prolong the trial;
b)  cause unnecessary wastage of judicial time; and
c)  confuse or cause prejudice to the accused, who had taken  part  only  in
some minor offence.

23.   We find no infirmity in  the  impugned  judgment.  As  a  result,  the
appeal and the writ petitions are, therefore, dismissed.

                                       (H.L. Dattu)


                                       (A.K. Sikri)


                                       (R.F. Nariman)

New Delhi;

September 29, 2015.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.