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Thursday, August 11, 2016

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 that the Special Judge was to deal with “all cases relating to the scam”, even though the offences were not under the PC Act.[1] = 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: 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 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). 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.                     …APPELLANT

                                   VERSUS

central bureau of investigation       ...RESPONDENT

                                   w i t h

                      criminal APPEAL NO. 752  OF  2016
               (arising out of S.l.p. (crl.) no.1418 of 2016)

Dr. Vijai tripathi                                …APPELLANT

                                   VERSUS

central bureau of investigation
and another                            ...RESPONDENTS


                               J U D G M E N T


ADARSH  KUMAR  GOEL,  J.


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 :

                                         “  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.|Name of the Judge  |Name of the |Areas of           |
|No.|                   |Court       |Jurisdiction       |
|   |                   |            |(District)         |
|1  |2                  |3           |4                  |
|1  |Shri Shyam Lal-II, |Special     |G.B. Nagar, Meerut,|
|   |Additional District|Court, Anti |Aligarh, Rampur,   |
|   |and Sessions Judge,|Corruption, |Mainpuri,          |
|   |Ghaziabad          |CBI,        |Firozabad.         |
|   |                   |Ghaziabad   |                   |
|2  |Dr. Ashok Kumar    |Special     |Ghaziabad,         |
|   |Singh-IV, Special  |Court       |Moradabad,         |
|   |Judge Anti         |C.B.I.,     |Bulandshahar,      |
|   |Corruption C.B.I., |Court No.1, |Bijnor, Hathras    |
|   |Ghaziabad          |Ghaziabad   |                   |
|3  |Sri M.S. Wadhwa,   |Special     |Saharanpur, Agra,  |
|   |Additional District|Court       |Muzaffarnagar, J.P.|
|   |and Sessions Judge,|C.B.I.,     |Nagar, Etah,       |
|   |Muzaffarnagar      |Court No.2, |Baghpat, Mathura.  |
|   |                   |Ghaziabad   |                   |


By order
Deepak Kumar
Secretary

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 that 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  Others[2]  wherein  it  was  held  that  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  set  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:


“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  2G
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 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  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,  the
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
extra 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 not 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.   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
Singh[3]. Particular reliance was placed on 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-public 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, 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:
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

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.


1B-FOR JUDGMENT       COURT NO.13           SECTION II

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

CRL.A. No.751/2016
(@ Petition(s) for Special Leave to Appeal (Crl.)  No(s). 4338/2015)

M/S HCL INFOSYSTEM LTD                   Appellant(s)

                                VERSUS

CENTRAL BUREAU OF INVESTIGATION          Respondent(s)


WITH
CRL.A. No.752/2016
(@ SLP(Crl) No. 1418/2016)


Date :  09/08/2016  These  appeals  were  called  on  for  pronouncement  of
JUDGMENT today.

For Petitioner(s)
                     Mr. P. V. Dinesh,Adv.

                     Mr. Sibo Sankar Mishra,Adv.
                        Mr. Uma Kant Mishra, Adv.
                        Mr. Niranjan Sahu, Adv.

For Respondent(s)
                        Mr. M. Rambabu, Adv.
                     Mukesh Kumar Maroria,Adv.


            Hon'ble Mr. Justice Adarsh Kumar Goel  pronounced  the  judgment
of the Bench  comprising  Hon'ble  Mr.  Justice  V.  Gopala  Gowda  and  His
Lordship.
            Leave granted.

            The appeals are dismissed in  terms  of  the  signed  Reportable
Judgment.

            VINOD KUMAR JHA                   SUMAN JAIN
                  AR-CUM-PS                                COURT      MASTER

|                                       | |                                      |


      (Signed Reportable judgment is placed on the file)

-----------------------
[1]   [2] Order dated 23.09.2013 in Criminal Misc. Application U/s 482
No.33050 of 2013
[3]   [4] 2013 (8) SCC 1
[5]   [6] (2014) 11 SCC 724

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