published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40469
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 57 OF 2012
ESSAR TELEHOLDINGS LTD. … PETITIONER
Versus
REGISTRAR GENERAL,
DELHI HIGH COURT & ORS. … RESPONDENTS
With
WRIT PETITION (C) No. 59 OF 2012
LOOP TELECOM LTD. … PETITIONER
Versus
REGISTRAR GENERAL,
DELHI HIGH COURT & ORS. … RESPONDENTS
With
WRIT PETITION (C) No. 96 OF 2012
VIKASH SARAF … PETITIONER
Versus
REGISTRAR GENERAL,
DELHI HIGH COURT & ORS. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Feeling aggrieved by the order dated 21st
December, 2011 passed by the Special Judge, Central
1Page 2
Bureau of Investigation, New Delhi taking cognizance
against the petitioners, they have preferred these
writ petitions challenging the said order dated 21st
December, 2011, Administrative Order dated 15th March,
2011 passed by the Delhi High Court and Notification
dated 28th March, 2011 passed by the Government of
National Capital Territory of Delhi (for short ‘NCT
of Delhi’) designating Mr. Om Prakash Saini as
Special Judge to undertake the trial of cases in
relation to all matters pertaining to 2G Spectrum
case (commonly known as 2G Scam case) exclusively.
One of the writ petitions has been filed by an
individual and two other writ petitions have been
preferred by two Companies who are all accused in 2G
Scam case.
2. The factual matrix of the case is given in brief
as under:
Acting on various complaints pursuant to grant
of UAS licences in 2008, the Central Vigilance
Commission after conducting a preliminary inquiry
entrusted investigation of the case to the CBI.
After preliminary investigation, on 21.10.2009, the
CBI lodged FIR RC No. DAI2009A0045 against
“unknown officers of the Department of
2Page 3
Telecommunications and unknown private
persons/companies and others” for causing wrongful
loss to the Government by criminal misconduct and
criminal conspiracy in distribution of UAS licences
in January, 2008. Subsequently, a Public Interest
Litigation was filed before the Delhi High Court, in
Writ Petition (C) No.3522 of 2010, inter alia,
alleging that the FIR filed by the CBI on 21.10.2009
was not being investigated and thereby praying that
the CBI be directed to investigate the same. The
said writ petition was dismissed by the Delhi High
Court on 25.5.2010.
3. Against the order of dismissal, the petitioner
of the said case, Centre for Public Interest
Litigation (for short, ‘CPIL’), filed SLP(C) No.24873
of 2010, wherein this Court by order dated 16th
December, 2010 granted leave (C.A.No.10660 of 2010)
and decided to monitor the investigation, [reported
in (2011) 1 SCC 560].
4. In the said case by order dated 10.2.2011, this
Court indicated that a separate Special Court should
be established to try the case(s) relating to 2G
3Page 4
Spectrum. The said part of the above order is quoted
hereunder:
“We also indicated to the learned Attorney
General that a separate Special Court should be
established to try the case(s) relating to 2G
Spectrum. The learned Attorney General
responded to this by stating that he may be
given two weeks’ time to consult the concerned
authorities and make a statement on this
issue.”
5. Pursuant to aforesaid observation, the Delhi
High Court issued impugned Administrative order
dated 15.3.2011 nominating one Mr. Om Prakash Saini
as Special Judge to try cases of 2G Scam exclusively.
6. Another order was passed by this Court on
16.3.2011 inter alia directing;
“At the commencement of hearing, learned
Attorney General placed before the Court letter
dated 14.03.2011 sent to him by the Registrar
General of the High Court of Delhi conveying
the decision taken by the High Court to
nominate Shri O.P. Saini, an officer of Delhi
Higher Judicial Service, who is presently
posted as Special Judge (PC Act) (CBI)2, New
Delhi, Patiala House Courts as the Special
Judge to undertake the trial of cases in
relation to all matters pertaining to what has
been described as 2G Scam exclusively.
Learned Attorney General gave out that he would
ensure that two separate notifications are
issued by the Central Government in terms of
Section 3(1) of the Prevention of Corruption
Act, 1988 and Section 43(1) of the Prevention
of Money Laundering Act, 2002 for establishment
of the Special Court to exclusively try the
offences pertaining to what has been termed as
2G Scam and other related offences. Learned
Attorney General submitted that appropriate
4Page 5
notifications will be issued on or before
29.3.2011.”
7. Pursuant to the abovesaid order the Government
of N.C.T. of Delhi exercising its power under Section
3(1) of the Prevention of Corruption Act, 1988 (for
short “the PC Act”) by notification dated 28.3.2011
designated Mr. Om Prakash Saini as Special Judge to
undertake the trial of cases in relation to all
matters pertaining to 2G Scam case exclusively.
8. Administrative side of the Delhi High Court,
thereafter, issued an allocation list on 1.4.2011
whereby Mr. Om Prakash Saini (P.C. Act) (CBI4) PHC
was designated as Special Judge in a new court to
deal with matters pertaining to the 2G Scam cases
exclusively.
9. CBI initially filed a charge sheet on 2nd April,
2011 against nine accused persons and thereafter on
25th April, 2011 filed a supplementary chargesheet
against some more accused persons. No allegations
were made against the petitioners in any of the
chargesheets. Therefore, they were not shown as
accused.
5Page 6
10. In the 2G Scam case this Court vide order dated
11.4.2011 while appointing the learned Special Public
Prosecutor ordered as follows:
“We also make it clear that any
objection about the appointment of
Special Public Prosecutor or his
assistant advocates or any prayer
for staying or impeding the progress
of the Trial can be made only before
this Court and no other Court shall
entertain the same. The trial must
proceed on a dayaday basis.”
11. Subsequently, the CBI filed second supplementary
chargesheet on 12.12.2011 against the petitioner(s)
and other accused persons for the alleged commission
of offences under Section 420/120B IPC. No offences
under the PC Act have been alleged against the
petitioner(s) and other accused persons arraigned in
the second supplementary chargesheet. Based on the
same, the learned Special Judge by impugned order
dated 21.12.2011 was pleased to take cognizance of
the second supplementary chargesheet dated 12.12.2011
and the petitioner(s) and others were summoned.
12. According to the petitioner(s), the CBI in its
chargesheet dated 12.12.2011 admits that the
chargesheet is being filed “ regarding a separate
offence” under Section 420/120B IPC. In paragraphs
73 and 74 of the said chargesheet whilst admitting
6Page 7
that the offences alleged in the chargesheet 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 chargesheet read as under:
“73. This final report under Section 173(8) Cr.
P.C. 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./363367 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
7Page 8
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 & others, 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 15th March, 2011 and the Notification
dated 28th March, 2011 issued by the Government of NCT
Delhi on the following grounds:
(a) The impugned notification travels beyond the provisions of the Cr.PC.
The Cr.PC mandates that offences under the IPC ought to be tried as per its
provisions.
(b) It has been held by this Hon’ble Court in the case of CBI v. Keshub
Mahindra reported in (2011) 6 SCC 216 that, “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.” 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.
8Page 9
(c). If the offence of Section 420 IPC, 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 reported in (1988) 2 SCC 602, 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. Mr. Harin P. Rawal, learned Additional Solicitor
of India appearing on behalf of the CBI made the
following submissions:
a). The orders of the Hon'ble Supreme Court directing the setting up
of the Special Court for 2G Scam cases were pursuant to its powers
under Articles 136 and 142 of the Constitution, which made it clear that
all the cases arising out of this Scam would be tried by the Special Court
so constituted.
b). The Administrative Order of the High Court of Delhi setting up
the Special Court is pursuant to its powers under Section 194 Cr.P.C.,
which empowers the High Court to direct, by special or general order,
an additional Sessions Judge to try certain cases. Section 194 of Cr.P.C.
is reproduced as below:-
“Section 194. Additional and
Assistant Sessions Judges to try
cases made over to them An
Additional Sessions Judge or
Assistant Sessions Judge shall try
such cases as the Sessions Judge of
9Page 10
the division may, by general or
special order, make over to him for
trial or as the High Court may, by
special order, direct him to try.”
c) Both Section 4(3) of the PC Act and Section 43(2) of the
Prevention of Money-Laundering Act 2002 empower the Special Court
to try any other offences that may be taken cognizance of under the
Cr.P.C.. In this view of events, the cognizance taken by the Special
Court of the charge-sheet filed against the accused was valid.
d) 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 IPC and not the special statutes under
which other charges are laid.
e) Higher courts can try an offence in view of Section 26 of Cr.P.C.
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 Cr.P.C. to try offence under IPC. The
Section reads as follows:
10Page 11
“26. Courts by which offences are
triable. Subject to the other
provisions of this Code,
(a) Any offence under the Indian
Penal Code (45 of 1860) may be
tried by
(i) The High Court, or
(ii) The Court of Session,
or
(iii) Any other court by
which such offence is shown
in the First Schedule to be
triable;
(b) Any offence under any other
law shall, when any Court is
mentioned in this behalf in such
law, be tried by such Court and
when no court is so mentioned,
may be tried by –
(i) The High Court, or
(ii)Any other court by which
such offence is shown in the
First Schedule to be
triable.”
16. Mr. Prashant Bhushan, learned counsel for the
CPIL, submitted that a Special Judge has the power to
try offences under the IPC 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.
17. A mere perusal of Section 3 read with Section 4
of the PC Act clearly mandates that apart from an
11Page 12
offence punishable under the PC Act, any conspiracy
to commit or any attempt to commit or any abetment of
any of the offences specified under the PC Act can
also be tried by a Special Judge. Sub section (3) of
Section 4 specifies that when trying any case, a
Special Judge can also try any offence, other than an
offence specified in Section 3, with which the
accused may, under the Cr.P.C., be charged at the
same trial. Sections 3 and 4 of the PC Act read as
under:
“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).
4. Cases triable by special Judges (1)
Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), or in
12Page 13
any other law for the time being in force, the
offences specified in subsection (1) of
section 3 shall be tried by special Judges
only.
(2) Every offence specified in subsection (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 daytoday
basis.”
18. Section 22 of PC Act provides that provisions of
the Cr.P.C., shall in their application to any
proceeding in relation to an offence punishable under
the Act to apply subject to certain modifications.
It is, therefore, apparent that provisions of the
Cr.P.C. are to be applied to trials for offence under
the PC Act, subject to certain modifications.
19. Section 220 of the Cr.P.C. relates to trial for
more than one offence, if, in one series of acts so
connected together as to form the same transaction
13Page 14
more offence than one are committed and provides as
follows:
“220 Trial for more than one offence (1)
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, he
may be charged with, and tried at one trial
for, every such offence.
(2) When a person charged with one or more
offences of criminal breach of trust or
dishonest misappropriation of properly as
provided in subsection (2) of section 212 or
in subsection (1) of section 219, is accused
of committing, for the purpose of facilitating
or concealing the commission of that offence or
those offences, one or more offences of
falsification of accounts, he may be charged
with, and tried at one trial for, every such
offence.
(3) If the acts alleged constitute an offence
falling within two or more separate definitions
of any law in force for the time being by which
offences are defined or punished, the person
accused of them may be charged with, and tried
at one trial for, each of such offences.
(4) If several acts, of which one or more than
one would by itself or themselves constitute an
offence, constitute when combined a different
offence, the person accused of them may be
charged with, and tried at one trial for the
offence constituted by such acts when combined,
and for any offence constituted by any one, or
more, or such acts.
(5) Nothing contained in this section shall
affect section 71 of the Indian Penal Code (45
of 1860).”
14Page 15
20. Persons accused of different offences committed
in the course of the same transaction may be charged
jointly as per Section 223 of the Cr.P.C., which
reads as under:
“223 What persons may be charged jointly.
The following persons may be charged and
tried together, namely:
(a) persons accused of the same offence
committed in the course of the same
transaction;
(b) persons accused of an offence and
persons accused of abetment of, or attempt
to commit, such offence;
(c) *********
(d) persons accused of different offences
committed in the course of the same
transaction;
(e) to (g) *********
Provided that where a number of persons are
charged with separate offences and such
persons do not fall within any of the
categories specified in this section,
the1[Magistrate or Court of Sessions] may, if
such persons by an application in writing,
so desire, and [if he or it is satisfied]
that such persons would not be prejudicially
affected thereby, and it is expedient so to
do, try all such persons together.”
21. The second supplementary chargesheet dated 12th
December, 2011 was filed in the FIR No. RC DAI 2009 A
15Page 16
0045 dated 21st October, 2009 wherein following
allegations have been made against the petitioners
and some others:
“Allegations
1. On 21.10.2009, the CBI registered
an FIR vide RC DAI 2009 A 0045 against
unknown officials of Department of
Telecommunications, Government of
India, unknown private
persons/companies and others for the
offences punishable under Section 120B
IPC read with Section 13(2) r/w 13(1)
(d) of Prevention of Corruption Act,
1988, on allegations of criminal
conspiracy and criminal misconduct, in
respect of allotment of Letters of
Intent, United Access Service (UAS)
Licenses and spectrum by the Department
of Telecommunication. Investigation of
the case was taken up and chargesheets
dated 02.04.2011 and first
supplementary chargesheet dated
25.04.2011 were filed before Hon’ble
Special Judge (2G Spectrum Cases),
Patiala House Courts, New Delhi, in
which in trial proceedings are going on
and are presently at the stage of
prosecution evidence.
xxx xxx xxx xxx xxx
3. The eligibility of all the
companies which were allocated letters
of Intent (LOI) on 10.01.2008 by the
DOT was also investigated by BI during
the investigation of this case. During
such investigation, allegations came to
notice that M/s Loop Telecom Ltd.,
which had applied for UAS licenses in
21 Telecom circles in September, 2007
was front company of M/s Essar Group.
M/s Loop Mobile India Ltd. had been
operating a UAS license since 2005 in
the Mumbai Service Area. It was
alleged that M/s Essar Group which
16Page 17
already had a stake of 33% in M/s
Vodafone Essar Ltd., a telecom operator
in all the 22 telecom circles, was
controlling substantial stake in the
aforesaid 2 companies in violation of
the UAS guidelines dated 14.12.2005and
UAS license agreements signed by M/s
Vodafone Essar Ltd. with DOT. It was
further alleged that the accused
persons belonging to M/s Loop Telecom
Ltd. M/s Loop Mobile India Ltd and
Essar Group of companies, fraudulently
suppressed the facts of association of
the two Loop Companies with M/s Essar
Group of Companies while applying for
new licenses DoT, in order the DoT
considers these companies as entitles
which are not substantially controlled
by Essar Group. The said accused
persons therefore, dishonestly or
fraudulently got the 21 new UAS
licenses and continue to operate the
Mumbai License of Loop in contravention
of the applicable guidelines.
4. Investigation has been carried out
on the allegations that M/s Loop
Telecom Ltd., and associated persons
including Essar Group
persons/Companies, cheated the
Department of Telecommunication,
Government of India by concealing the
actual stake holders of M/s Loop
Telecom Ltd. behind a corporate veil,
while applying for and getting 21 new
UAS Licenses and got the 21 UAS
Licenses and valuable spectrum for this
Company.”
Following facts also emerge from the background
of the matter:
“70. That after the accused persons had
cheated the DoT and fraudulently
obtained the Letters of Intent/UAS
Licenses/valuable spectrum in
furtherance of a conspiracy among
themselves, several complaints were
received by the Department of
17Page 18
Telecommunications during 20082010
alleging that M/s Loop Telecom Ltd. was
an Essar group company under a
corporate veil and was thereby
violating the clause 8 of UASL
Guidelines dated 14.12.2005. In one
such matter Dot referred the matter to
Ministry of Corporate Affairs seeking
to examine the matter and open whether
the given facts and circumstances made
out a violation of the clause 8 of UASL
Guidelines. Investigation has revealed
that the Deputy Director (Inspection),
Ministry of Corporate Affairs, who
examined the matter in detail,
concluded that the clause 8 of the UASL
Guidelines had been violated. .....
71. The investigation has, therefore,
revealed that M/s. Loop Telecom Ltd.
made fraudulent UASL applications for
21 circles on 3.9.2007 by
misrepresenting the fact that they met
all the eligibility criteria including
clause 8 of UASL guidelines. These
fraudulent applications were
accompanied by false certificates to
the effect that the company met the
conditions prescribed under clause 8 of
UASL guidelines, thereby falsely
claiming that the applicant company was
not under any control influence of any
existing licensee and that competition
would not be compromised if 21 licenses
applied for are issued to it.......
72. The aforesaid facts and
circumstances constitute commission of
offences, during 200708, punishable
u/s 120B IPC r/w 420 IPC, and
substantive offence u/s 420 IPC,
against accused persons, viz. Ravi N.
Ruia, Anshuman Ruia, Vikash Saraf, I.P.
Khaitan, Ms. Kiran Khaitan, M/s. Loop
Telecom Ltd. (erstwhile M/s.
Shippingstop Dot Com India Pvt.Ltd.),
M/s. Loop Mobile India Ltd. (BPL M/s.
Mobile Communications Limited) and M/s.
Teleholdings Ltd. Accused persons were
not arrested during investigation.”
18Page 19
From the aforesaid second chargesheet 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 coaccused of 2G Scam case
charged under the provisions of Prevention of
Corruption Act can be tried only by the Special
Judge. The petitioners are coaccused in the said 2G
Scam case. In this background Section 220 of Cr.P.C.
will apply and the petitioners though accused of
different offences i.e. under Section 420/120B IPC,
which alleged to have been committed in the course of
2G Spectrum transactions, under Section 223 of Cr.
P.C. they may be charged and can be tried together
with the other coaccused of 2G Scam cases.
22. In A.R. Antulay v. Ramdas Sriniwas Nayak.,
(1984) 2 SCC 500, this Court came across a question
whether a Court of a Special Judge for certain
purposes is a Court of Magistrate or a Court of
Session and held as follows:
19Page 20
“23. Once Section 5A is out of the way in
the matter of taking cognizance of offences
committed by public servants by a Special
Judge, the power of the Special Judge to
take cognizance of such offences conferred
by Section 8(1) with only one limitation, in
any one of the known methods of taking
cognizance of offences by courts of original
jurisdiction remains undented. One such
statutorily recognised wellknown method of
taking cognizance of offences by a court
competent to take cognizance is upon
receiving a complaint of facts which
constitutes the offence. And Section 8(1)
says that the Special Judge has the power to
take cognizance of offences enumerated in
Section 6(1)(a) and (b) and the only mode of
taking cognizance excluded by the provision
is upon commitment. It therefore, follows
that the Special Judge can take cognizance
of offences committed by public servants
upon receiving a complaint of facts
constituting such offences.
28. Section 9 of the 1952 Act would equally
be helpful in this behalf. Once Court of a
Special Judge is a Court of original
criminal jurisdiction, it became necessary
to provide whether it is subordinate to the
High Court, whether appeal and revision
against its judgments and orders would lie
to the High Court and whether the High Court
would have general superintendence over a
Court of Special Judge as it has over all
criminal courts as enumerated in Section 6
of the Code of Criminal Procedure. The Court
of a Special Judge, once created by an
independent statute, has been brought as a
Court of original criminal jurisdiction
under the High Court because Section 9
confers on the High Court all the powers
conferred by Chapters XXXI and XXXIII of the
Code of Criminal Procedure, 1898 on a High
Court as if the Court of Special Judge were
a Court of Session trying cases without a
jury within the local limit of the
jurisdiction of the High Court. Therefore,
there is no gainsaying the fact that a new
criminal court with a name, designation and
qualification of the officer eligible to
20Page 21
preside over it with powers specified and
the particular procedure which it must
follow has been set up under the 1952 Act.
The court has to be treated as a Court of
original criminal jurisdiction and shall
have all the powers as any Court of original
criminal jurisdiction has under the Code of
Criminal Procedure, except those
specifically excluded.
29. Once the position and power of the Court
of a Special Judge in the hierarchy of
criminal courts under the High Court is
clearly and unambiguously established, it is
unnecessary to roam into an enquiry
examining large number of decisions laying
down in the context of each case that the
Court of a Special Judge is a Court of
Session and the contrary view taken in some
other decisions. Reference to those
judgments would be merely adding to the
length of this judgment without achieving
any useful purpose.”
23. In Gangula Ashok v. State of A.P., (2000) 2 SCC
504 this Court dealing with Section 193 of the Cr.PC
observed:
“10. Section 193 of the Code has to be
understood in the aforesaid backdrop. The
section imposes an interdict on all Courts
of Session against taking cognizance of any
offence as a court of original jurisdiction.
It can take cognizance only if “the case has
been committed to it by a Magistrate”, as
provided in the Code. Two segments have been
indicated in Section 193 as exceptions to
the aforesaid interdict. One is, when the
Code itself has provided differently in
express language regarding taking of
cognizance, and the second is when any other
law has provided differently in express
language regarding taking cognizance of
offences under such law. The word
“expressly” which is employed in Section 193
denoting those exceptions is indicative of
the legislative mandate that a Court of
21Page 22
Session can depart from the interdict
contained in the section only if it is
provided differently in clear and
unambiguous terms. In other words, unless it
is positively and specifically provided
differently no Court of Session can take
cognizance of any offence directly, without
the case being committed to it by a
Magistrate.
11. Neither in the Code nor in the Act is
there any provision whatsoever, not even by
implication, that the specified Court of
Session (Special Court) can take cognizance
of the offence under the Act as a court of
original jurisdiction without the case being
committed to it by a Magistrate. If that be
so, there is no reason to think that the
chargesheet or a complaint can straight
away be filed before such Special Court for
offences under the Act. It can be discerned
from the hierarchical settings of criminal
courts that the Court of Session is given a
superior and special status. Hence we think
that the legislature would have thoughtfully
relieved the Court of Session from the work
of performing all the preliminary
formalities which Magistrates have to do
until the case is committed to the Court of
Session.
12. We have noticed from some of the
decisions rendered by various High Courts
that contentions were advanced based on
Sections 4 and 5 of the Code as suggesting
that a departure from Section 193 of the
Code is permissible under special
enactments.
Section 4 of the Code contains
two subsections of which the first sub
section is of no relevance since it deals
only with offences under the Indian Penal
Code. However, subsection (2) deals with
offences under other laws and hence the same
can be looked into. Subsection (2) of
Section 4 is extracted below:
“4. (2) All offences under any other
law shall be investigated, inquired
into, tried, and otherwise dealt with
according to the same provisions, but
subject to any enactment for the time
being in force regulating the manner
22Page 23
or place of investigating, inquiring
into, trying or otherwise dealing with
such offences.”
24. Similar question came for consideration before
this Court
in Vivek Gupta v. Central Bureau of
Investigation, (2003) 8 SCC 628.
In the said case
the coaccused were charged by Special Judge under
the provisions of the PC Act whereas the appellant
before this Court had been charged only under Section
420 IPC and under Section 120B of the IPC, as in the
present case. Having noticed the provisions of the
PC Act and Cr. PC as referred to above, this Court
held:
“15. This is because the coaccused of the
appellant who have been also charged of
offences specified in Section 3 of the Act
must be tried by the Special Judge, who in
view of the provisions of subsection (3) of
Section 4 and Section 220 of the Code may
also try them of the charge under Section
120B read with Section 420 IPC. All the
three accused, including the appellant, have
been charged of the offence under Section
120B read with Section 420 IPC. If the
Special Judge has jurisdiction to try the
coaccused for the offence under Section
120B read with Section 420 IPC, the
provisions of Section 223 are attracted.
Therefore, it follows that the appellant who
is also charged of having committed the same
offence in the course of the same
transaction may also be tried with them.
Otherwise it appears rather incongruous that
some of the conspirators charged of having
committed the same offence may be tried by
the Special Judge while the remaining
conspirators who are also charged of the
same offence will be tried by another court,
23Page 24
because they are not charged of any offence
specified in Section 3 of the Act.
17. We are, therefore, of the view that in
the facts and circumstances of this case,
the Special Judge while trying the co
accused of an offence punishable under the
provisions of the Act as also an offence
punishable under Section 120B read with
Section 420 IPC has the jurisdiction to try
the appellant also for the offence
punishable under Section 120B read with
Section 420 IPC applying the principles
incorporated in Section 223 of the Code. We,
therefore, affirm the finding of the High
Court and dismiss this appeal.”
25. Admittedly, 2G Scam case is triable by the
Special Judge against the persons accused of offences
punishable under the PC Act in view of subSection
(1) of Section 4. The Special Judge alone can take
the cognizance of the offence specified in sub
Section (1) of Section 3 and conspiracy in relation
to them. While trying any case, the Special Judge
may also try an offence other than the offence
specified in subSection (1) of Section 3, in view of
subSection (3) of Section 4. A magistrate cannot
take cognizance of offence as specified in Section
3(1) of the PC Act. In this background, as the
petitioners have been shown as coaccused in second
supplementary chargesheet filed in 2G Scam case, it
is open to the Special Judge to take cognizance of
the offence under Section 120B and Section 420 IPC.
24Page 25
26. 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:
(i) Under subSection (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, coaccused 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).
(ii) 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
25Page 26
judiciary.
[See High Court of Judicature for
Rajasthan v. Ramesh Chand Paliwal (1998) 3 SCC
72 and Registrar (Admn.) High Court of Orissa v.
Sisir Kanta Satapathy (1999) 7 SCC 725].
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
subSection (1) of Section 3 of the PC Act.
(iii) 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 JudgeIcum
Sessions Judge, Tis Hazari Courts, Delhi and the
District JudgeIVcumAddl. 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
26Page 27
officer of Delhi Higher Judicial Service for his
appointment as Special Judge for 2G Scam Cases.
27. 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.
On 11th April, 2001, when the 2G Scam Case was
taken up by this Court, this Court, inter alia,
observed as follows:
“Acting on such basis, this Court has given
directions for establishing a separate
Special Court to try this case and pursuant
to such direction, a Special Court has been
constituted after following the due
procedure.
We also make it clear that any objection
about appointment of Special Public
Prosecutor or his assistant advocates or any
prayer for staying or impeding the progress
of the Trial can be made only before this
Court and no other court shall entertain the
same.
The trial must proceed on a day to day basis.
All these directions are given by this Court
in exercise of its power under Article 136
read with Article 142 of the Constitution
and in the interest of holding a fair
prosecution of the case.”
27Page 28
28. From the aforesaid order it is clear that this
Court passed the order under Article 136 read with
Article 142 of the Constitution, in the interest of
holding a fair prosecution of the case.
29. In Rupa Asbhok Hurra v. Ashok Hurra and another,
(2002) 4 SCC 388,
this Court held that
a final
judgment or order passed by this Court cannot be
assailed in an application under Article 32 of the
Constitution by an aggrieved person, whether he was a
party to the case or not.
For the said reason also,
it is not open to the petitioner to indirectly assail
the order passed by this Court in 2G Scam case.
30. We find no merit in these writ petitions, they
are accordingly dismissed. The Special Court is
expected to proceed with the trial on daytoday
basis to ensure early disposal of the trial. There
shall be no order as to costs.
….......…………………………………………….J.
(G.S. SINGHVI)
…………………………………………….......….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 1 , 2013.
28
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) No. 57 OF 2012
ESSAR TELEHOLDINGS LTD. … PETITIONER
Versus
REGISTRAR GENERAL,
DELHI HIGH COURT & ORS. … RESPONDENTS
With
WRIT PETITION (C) No. 59 OF 2012
LOOP TELECOM LTD. … PETITIONER
Versus
REGISTRAR GENERAL,
DELHI HIGH COURT & ORS. … RESPONDENTS
With
WRIT PETITION (C) No. 96 OF 2012
VIKASH SARAF … PETITIONER
Versus
REGISTRAR GENERAL,
DELHI HIGH COURT & ORS. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Feeling aggrieved by the order dated 21st
December, 2011 passed by the Special Judge, Central
1Page 2
Bureau of Investigation, New Delhi taking cognizance
against the petitioners, they have preferred these
writ petitions challenging the said order dated 21st
December, 2011, Administrative Order dated 15th March,
2011 passed by the Delhi High Court and Notification
dated 28th March, 2011 passed by the Government of
National Capital Territory of Delhi (for short ‘NCT
of Delhi’) designating Mr. Om Prakash Saini as
Special Judge to undertake the trial of cases in
relation to all matters pertaining to 2G Spectrum
case (commonly known as 2G Scam case) exclusively.
One of the writ petitions has been filed by an
individual and two other writ petitions have been
preferred by two Companies who are all accused in 2G
Scam case.
2. The factual matrix of the case is given in brief
as under:
Acting on various complaints pursuant to grant
of UAS licences in 2008, the Central Vigilance
Commission after conducting a preliminary inquiry
entrusted investigation of the case to the CBI.
After preliminary investigation, on 21.10.2009, the
CBI lodged FIR RC No. DAI2009A0045 against
“unknown officers of the Department of
2Page 3
Telecommunications and unknown private
persons/companies and others” for causing wrongful
loss to the Government by criminal misconduct and
criminal conspiracy in distribution of UAS licences
in January, 2008. Subsequently, a Public Interest
Litigation was filed before the Delhi High Court, in
Writ Petition (C) No.3522 of 2010, inter alia,
alleging that the FIR filed by the CBI on 21.10.2009
was not being investigated and thereby praying that
the CBI be directed to investigate the same. The
said writ petition was dismissed by the Delhi High
Court on 25.5.2010.
3. Against the order of dismissal, the petitioner
of the said case, Centre for Public Interest
Litigation (for short, ‘CPIL’), filed SLP(C) No.24873
of 2010, wherein this Court by order dated 16th
December, 2010 granted leave (C.A.No.10660 of 2010)
and decided to monitor the investigation, [reported
in (2011) 1 SCC 560].
4. In the said case by order dated 10.2.2011, this
Court indicated that a separate Special Court should
be established to try the case(s) relating to 2G
3Page 4
Spectrum. The said part of the above order is quoted
hereunder:
“We also indicated to the learned Attorney
General that a separate Special Court should be
established to try the case(s) relating to 2G
Spectrum. The learned Attorney General
responded to this by stating that he may be
given two weeks’ time to consult the concerned
authorities and make a statement on this
issue.”
5. Pursuant to aforesaid observation, the Delhi
High Court issued impugned Administrative order
dated 15.3.2011 nominating one Mr. Om Prakash Saini
as Special Judge to try cases of 2G Scam exclusively.
6. Another order was passed by this Court on
16.3.2011 inter alia directing;
“At the commencement of hearing, learned
Attorney General placed before the Court letter
dated 14.03.2011 sent to him by the Registrar
General of the High Court of Delhi conveying
the decision taken by the High Court to
nominate Shri O.P. Saini, an officer of Delhi
Higher Judicial Service, who is presently
posted as Special Judge (PC Act) (CBI)2, New
Delhi, Patiala House Courts as the Special
Judge to undertake the trial of cases in
relation to all matters pertaining to what has
been described as 2G Scam exclusively.
Learned Attorney General gave out that he would
ensure that two separate notifications are
issued by the Central Government in terms of
Section 3(1) of the Prevention of Corruption
Act, 1988 and Section 43(1) of the Prevention
of Money Laundering Act, 2002 for establishment
of the Special Court to exclusively try the
offences pertaining to what has been termed as
2G Scam and other related offences. Learned
Attorney General submitted that appropriate
4Page 5
notifications will be issued on or before
29.3.2011.”
7. Pursuant to the abovesaid order the Government
of N.C.T. of Delhi exercising its power under Section
3(1) of the Prevention of Corruption Act, 1988 (for
short “the PC Act”) by notification dated 28.3.2011
designated Mr. Om Prakash Saini as Special Judge to
undertake the trial of cases in relation to all
matters pertaining to 2G Scam case exclusively.
8. Administrative side of the Delhi High Court,
thereafter, issued an allocation list on 1.4.2011
whereby Mr. Om Prakash Saini (P.C. Act) (CBI4) PHC
was designated as Special Judge in a new court to
deal with matters pertaining to the 2G Scam cases
exclusively.
9. CBI initially filed a charge sheet on 2nd April,
2011 against nine accused persons and thereafter on
25th April, 2011 filed a supplementary chargesheet
against some more accused persons. No allegations
were made against the petitioners in any of the
chargesheets. Therefore, they were not shown as
accused.
5Page 6
10. In the 2G Scam case this Court vide order dated
11.4.2011 while appointing the learned Special Public
Prosecutor ordered as follows:
“We also make it clear that any
objection about the appointment of
Special Public Prosecutor or his
assistant advocates or any prayer
for staying or impeding the progress
of the Trial can be made only before
this Court and no other Court shall
entertain the same. The trial must
proceed on a dayaday basis.”
11. Subsequently, the CBI filed second supplementary
chargesheet on 12.12.2011 against the petitioner(s)
and other accused persons for the alleged commission
of offences under Section 420/120B IPC. No offences
under the PC Act have been alleged against the
petitioner(s) and other accused persons arraigned in
the second supplementary chargesheet. Based on the
same, the learned Special Judge by impugned order
dated 21.12.2011 was pleased to take cognizance of
the second supplementary chargesheet dated 12.12.2011
and the petitioner(s) and others were summoned.
12. According to the petitioner(s), the CBI in its
chargesheet dated 12.12.2011 admits that the
chargesheet is being filed “ regarding a separate
offence” under Section 420/120B IPC. In paragraphs
73 and 74 of the said chargesheet whilst admitting
6Page 7
that the offences alleged in the chargesheet 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 chargesheet read as under:
“73. This final report under Section 173(8) Cr.
P.C. 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./363367 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
7Page 8
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 & others, 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 15th March, 2011 and the Notification
dated 28th March, 2011 issued by the Government of NCT
Delhi on the following grounds:
(a) The impugned notification travels beyond the provisions of the Cr.PC.
The Cr.PC mandates that offences under the IPC ought to be tried as per its
provisions.
(b) It has been held by this Hon’ble Court in the case of CBI v. Keshub
Mahindra reported in (2011) 6 SCC 216 that, “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.” 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.
8Page 9
(c). If the offence of Section 420 IPC, 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 reported in (1988) 2 SCC 602, 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. Mr. Harin P. Rawal, learned Additional Solicitor
of India appearing on behalf of the CBI made the
following submissions:
a). The orders of the Hon'ble Supreme Court directing the setting up
of the Special Court for 2G Scam cases were pursuant to its powers
under Articles 136 and 142 of the Constitution, which made it clear that
all the cases arising out of this Scam would be tried by the Special Court
so constituted.
b). The Administrative Order of the High Court of Delhi setting up
the Special Court is pursuant to its powers under Section 194 Cr.P.C.,
which empowers the High Court to direct, by special or general order,
an additional Sessions Judge to try certain cases. Section 194 of Cr.P.C.
is reproduced as below:-
“Section 194. Additional and
Assistant Sessions Judges to try
cases made over to them An
Additional Sessions Judge or
Assistant Sessions Judge shall try
such cases as the Sessions Judge of
9Page 10
the division may, by general or
special order, make over to him for
trial or as the High Court may, by
special order, direct him to try.”
c) Both Section 4(3) of the PC Act and Section 43(2) of the
Prevention of Money-Laundering Act 2002 empower the Special Court
to try any other offences that may be taken cognizance of under the
Cr.P.C.. In this view of events, the cognizance taken by the Special
Court of the charge-sheet filed against the accused was valid.
d) 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 IPC and not the special statutes under
which other charges are laid.
e) Higher courts can try an offence in view of Section 26 of Cr.P.C.
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 Cr.P.C. to try offence under IPC. The
Section reads as follows:
10Page 11
“26. Courts by which offences are
triable. Subject to the other
provisions of this Code,
(a) Any offence under the Indian
Penal Code (45 of 1860) may be
tried by
(i) The High Court, or
(ii) The Court of Session,
or
(iii) Any other court by
which such offence is shown
in the First Schedule to be
triable;
(b) Any offence under any other
law shall, when any Court is
mentioned in this behalf in such
law, be tried by such Court and
when no court is so mentioned,
may be tried by –
(i) The High Court, or
(ii)Any other court by which
such offence is shown in the
First Schedule to be
triable.”
16. Mr. Prashant Bhushan, learned counsel for the
CPIL, submitted that a Special Judge has the power to
try offences under the IPC 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.
17. A mere perusal of Section 3 read with Section 4
of the PC Act clearly mandates that apart from an
11Page 12
offence punishable under the PC Act, any conspiracy
to commit or any attempt to commit or any abetment of
any of the offences specified under the PC Act can
also be tried by a Special Judge. Sub section (3) of
Section 4 specifies that when trying any case, a
Special Judge can also try any offence, other than an
offence specified in Section 3, with which the
accused may, under the Cr.P.C., be charged at the
same trial. Sections 3 and 4 of the PC Act read as
under:
“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).
4. Cases triable by special Judges (1)
Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), or in
12Page 13
any other law for the time being in force, the
offences specified in subsection (1) of
section 3 shall be tried by special Judges
only.
(2) Every offence specified in subsection (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 daytoday
basis.”
18. Section 22 of PC Act provides that provisions of
the Cr.P.C., shall in their application to any
proceeding in relation to an offence punishable under
the Act to apply subject to certain modifications.
It is, therefore, apparent that provisions of the
Cr.P.C. are to be applied to trials for offence under
the PC Act, subject to certain modifications.
19. Section 220 of the Cr.P.C. relates to trial for
more than one offence, if, in one series of acts so
connected together as to form the same transaction
13Page 14
more offence than one are committed and provides as
follows:
“220 Trial for more than one offence (1)
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, he
may be charged with, and tried at one trial
for, every such offence.
(2) When a person charged with one or more
offences of criminal breach of trust or
dishonest misappropriation of properly as
provided in subsection (2) of section 212 or
in subsection (1) of section 219, is accused
of committing, for the purpose of facilitating
or concealing the commission of that offence or
those offences, one or more offences of
falsification of accounts, he may be charged
with, and tried at one trial for, every such
offence.
(3) If the acts alleged constitute an offence
falling within two or more separate definitions
of any law in force for the time being by which
offences are defined or punished, the person
accused of them may be charged with, and tried
at one trial for, each of such offences.
(4) If several acts, of which one or more than
one would by itself or themselves constitute an
offence, constitute when combined a different
offence, the person accused of them may be
charged with, and tried at one trial for the
offence constituted by such acts when combined,
and for any offence constituted by any one, or
more, or such acts.
(5) Nothing contained in this section shall
affect section 71 of the Indian Penal Code (45
of 1860).”
14Page 15
20. Persons accused of different offences committed
in the course of the same transaction may be charged
jointly as per Section 223 of the Cr.P.C., which
reads as under:
“223 What persons may be charged jointly.
The following persons may be charged and
tried together, namely:
(a) persons accused of the same offence
committed in the course of the same
transaction;
(b) persons accused of an offence and
persons accused of abetment of, or attempt
to commit, such offence;
(c) *********
(d) persons accused of different offences
committed in the course of the same
transaction;
(e) to (g) *********
Provided that where a number of persons are
charged with separate offences and such
persons do not fall within any of the
categories specified in this section,
the1[Magistrate or Court of Sessions] may, if
such persons by an application in writing,
so desire, and [if he or it is satisfied]
that such persons would not be prejudicially
affected thereby, and it is expedient so to
do, try all such persons together.”
21. The second supplementary chargesheet dated 12th
December, 2011 was filed in the FIR No. RC DAI 2009 A
15Page 16
0045 dated 21st October, 2009 wherein following
allegations have been made against the petitioners
and some others:
“Allegations
1. On 21.10.2009, the CBI registered
an FIR vide RC DAI 2009 A 0045 against
unknown officials of Department of
Telecommunications, Government of
India, unknown private
persons/companies and others for the
offences punishable under Section 120B
IPC read with Section 13(2) r/w 13(1)
(d) of Prevention of Corruption Act,
1988, on allegations of criminal
conspiracy and criminal misconduct, in
respect of allotment of Letters of
Intent, United Access Service (UAS)
Licenses and spectrum by the Department
of Telecommunication. Investigation of
the case was taken up and chargesheets
dated 02.04.2011 and first
supplementary chargesheet dated
25.04.2011 were filed before Hon’ble
Special Judge (2G Spectrum Cases),
Patiala House Courts, New Delhi, in
which in trial proceedings are going on
and are presently at the stage of
prosecution evidence.
xxx xxx xxx xxx xxx
3. The eligibility of all the
companies which were allocated letters
of Intent (LOI) on 10.01.2008 by the
DOT was also investigated by BI during
the investigation of this case. During
such investigation, allegations came to
notice that M/s Loop Telecom Ltd.,
which had applied for UAS licenses in
21 Telecom circles in September, 2007
was front company of M/s Essar Group.
M/s Loop Mobile India Ltd. had been
operating a UAS license since 2005 in
the Mumbai Service Area. It was
alleged that M/s Essar Group which
16Page 17
already had a stake of 33% in M/s
Vodafone Essar Ltd., a telecom operator
in all the 22 telecom circles, was
controlling substantial stake in the
aforesaid 2 companies in violation of
the UAS guidelines dated 14.12.2005and
UAS license agreements signed by M/s
Vodafone Essar Ltd. with DOT. It was
further alleged that the accused
persons belonging to M/s Loop Telecom
Ltd. M/s Loop Mobile India Ltd and
Essar Group of companies, fraudulently
suppressed the facts of association of
the two Loop Companies with M/s Essar
Group of Companies while applying for
new licenses DoT, in order the DoT
considers these companies as entitles
which are not substantially controlled
by Essar Group. The said accused
persons therefore, dishonestly or
fraudulently got the 21 new UAS
licenses and continue to operate the
Mumbai License of Loop in contravention
of the applicable guidelines.
4. Investigation has been carried out
on the allegations that M/s Loop
Telecom Ltd., and associated persons
including Essar Group
persons/Companies, cheated the
Department of Telecommunication,
Government of India by concealing the
actual stake holders of M/s Loop
Telecom Ltd. behind a corporate veil,
while applying for and getting 21 new
UAS Licenses and got the 21 UAS
Licenses and valuable spectrum for this
Company.”
Following facts also emerge from the background
of the matter:
“70. That after the accused persons had
cheated the DoT and fraudulently
obtained the Letters of Intent/UAS
Licenses/valuable spectrum in
furtherance of a conspiracy among
themselves, several complaints were
received by the Department of
17Page 18
Telecommunications during 20082010
alleging that M/s Loop Telecom Ltd. was
an Essar group company under a
corporate veil and was thereby
violating the clause 8 of UASL
Guidelines dated 14.12.2005. In one
such matter Dot referred the matter to
Ministry of Corporate Affairs seeking
to examine the matter and open whether
the given facts and circumstances made
out a violation of the clause 8 of UASL
Guidelines. Investigation has revealed
that the Deputy Director (Inspection),
Ministry of Corporate Affairs, who
examined the matter in detail,
concluded that the clause 8 of the UASL
Guidelines had been violated. .....
71. The investigation has, therefore,
revealed that M/s. Loop Telecom Ltd.
made fraudulent UASL applications for
21 circles on 3.9.2007 by
misrepresenting the fact that they met
all the eligibility criteria including
clause 8 of UASL guidelines. These
fraudulent applications were
accompanied by false certificates to
the effect that the company met the
conditions prescribed under clause 8 of
UASL guidelines, thereby falsely
claiming that the applicant company was
not under any control influence of any
existing licensee and that competition
would not be compromised if 21 licenses
applied for are issued to it.......
72. The aforesaid facts and
circumstances constitute commission of
offences, during 200708, punishable
u/s 120B IPC r/w 420 IPC, and
substantive offence u/s 420 IPC,
against accused persons, viz. Ravi N.
Ruia, Anshuman Ruia, Vikash Saraf, I.P.
Khaitan, Ms. Kiran Khaitan, M/s. Loop
Telecom Ltd. (erstwhile M/s.
Shippingstop Dot Com India Pvt.Ltd.),
M/s. Loop Mobile India Ltd. (BPL M/s.
Mobile Communications Limited) and M/s.
Teleholdings Ltd. Accused persons were
not arrested during investigation.”
18Page 19
From the aforesaid second chargesheet 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 coaccused of 2G Scam case
charged under the provisions of Prevention of
Corruption Act can be tried only by the Special
Judge. The petitioners are coaccused in the said 2G
Scam case. In this background Section 220 of Cr.P.C.
will apply and the petitioners though accused of
different offences i.e. under Section 420/120B IPC,
which alleged to have been committed in the course of
2G Spectrum transactions, under Section 223 of Cr.
P.C. they may be charged and can be tried together
with the other coaccused of 2G Scam cases.
22. In A.R. Antulay v. Ramdas Sriniwas Nayak.,
(1984) 2 SCC 500, this Court came across a question
whether a Court of a Special Judge for certain
purposes is a Court of Magistrate or a Court of
Session and held as follows:
19Page 20
“23. Once Section 5A is out of the way in
the matter of taking cognizance of offences
committed by public servants by a Special
Judge, the power of the Special Judge to
take cognizance of such offences conferred
by Section 8(1) with only one limitation, in
any one of the known methods of taking
cognizance of offences by courts of original
jurisdiction remains undented. One such
statutorily recognised wellknown method of
taking cognizance of offences by a court
competent to take cognizance is upon
receiving a complaint of facts which
constitutes the offence. And Section 8(1)
says that the Special Judge has the power to
take cognizance of offences enumerated in
Section 6(1)(a) and (b) and the only mode of
taking cognizance excluded by the provision
is upon commitment. It therefore, follows
that the Special Judge can take cognizance
of offences committed by public servants
upon receiving a complaint of facts
constituting such offences.
28. Section 9 of the 1952 Act would equally
be helpful in this behalf. Once Court of a
Special Judge is a Court of original
criminal jurisdiction, it became necessary
to provide whether it is subordinate to the
High Court, whether appeal and revision
against its judgments and orders would lie
to the High Court and whether the High Court
would have general superintendence over a
Court of Special Judge as it has over all
criminal courts as enumerated in Section 6
of the Code of Criminal Procedure. The Court
of a Special Judge, once created by an
independent statute, has been brought as a
Court of original criminal jurisdiction
under the High Court because Section 9
confers on the High Court all the powers
conferred by Chapters XXXI and XXXIII of the
Code of Criminal Procedure, 1898 on a High
Court as if the Court of Special Judge were
a Court of Session trying cases without a
jury within the local limit of the
jurisdiction of the High Court. Therefore,
there is no gainsaying the fact that a new
criminal court with a name, designation and
qualification of the officer eligible to
20Page 21
preside over it with powers specified and
the particular procedure which it must
follow has been set up under the 1952 Act.
The court has to be treated as a Court of
original criminal jurisdiction and shall
have all the powers as any Court of original
criminal jurisdiction has under the Code of
Criminal Procedure, except those
specifically excluded.
29. Once the position and power of the Court
of a Special Judge in the hierarchy of
criminal courts under the High Court is
clearly and unambiguously established, it is
unnecessary to roam into an enquiry
examining large number of decisions laying
down in the context of each case that the
Court of a Special Judge is a Court of
Session and the contrary view taken in some
other decisions. Reference to those
judgments would be merely adding to the
length of this judgment without achieving
any useful purpose.”
23. In Gangula Ashok v. State of A.P., (2000) 2 SCC
504 this Court dealing with Section 193 of the Cr.PC
observed:
“10. Section 193 of the Code has to be
understood in the aforesaid backdrop. The
section imposes an interdict on all Courts
of Session against taking cognizance of any
offence as a court of original jurisdiction.
It can take cognizance only if “the case has
been committed to it by a Magistrate”, as
provided in the Code. Two segments have been
indicated in Section 193 as exceptions to
the aforesaid interdict. One is, when the
Code itself has provided differently in
express language regarding taking of
cognizance, and the second is when any other
law has provided differently in express
language regarding taking cognizance of
offences under such law. The word
“expressly” which is employed in Section 193
denoting those exceptions is indicative of
the legislative mandate that a Court of
21Page 22
Session can depart from the interdict
contained in the section only if it is
provided differently in clear and
unambiguous terms. In other words, unless it
is positively and specifically provided
differently no Court of Session can take
cognizance of any offence directly, without
the case being committed to it by a
Magistrate.
11. Neither in the Code nor in the Act is
there any provision whatsoever, not even by
implication, that the specified Court of
Session (Special Court) can take cognizance
of the offence under the Act as a court of
original jurisdiction without the case being
committed to it by a Magistrate. If that be
so, there is no reason to think that the
chargesheet or a complaint can straight
away be filed before such Special Court for
offences under the Act. It can be discerned
from the hierarchical settings of criminal
courts that the Court of Session is given a
superior and special status. Hence we think
that the legislature would have thoughtfully
relieved the Court of Session from the work
of performing all the preliminary
formalities which Magistrates have to do
until the case is committed to the Court of
Session.
12. We have noticed from some of the
decisions rendered by various High Courts
that contentions were advanced based on
Sections 4 and 5 of the Code as suggesting
that a departure from Section 193 of the
Code is permissible under special
enactments.
Section 4 of the Code contains
two subsections of which the first sub
section is of no relevance since it deals
only with offences under the Indian Penal
Code. However, subsection (2) deals with
offences under other laws and hence the same
can be looked into. Subsection (2) of
Section 4 is extracted below:
“4. (2) All offences under any other
law shall be investigated, inquired
into, tried, and otherwise dealt with
according to the same provisions, but
subject to any enactment for the time
being in force regulating the manner
22Page 23
or place of investigating, inquiring
into, trying or otherwise dealing with
such offences.”
24. Similar question came for consideration before
this Court
in Vivek Gupta v. Central Bureau of
Investigation, (2003) 8 SCC 628.
In the said case
the coaccused were charged by Special Judge under
the provisions of the PC Act whereas the appellant
before this Court had been charged only under Section
420 IPC and under Section 120B of the IPC, as in the
present case. Having noticed the provisions of the
PC Act and Cr. PC as referred to above, this Court
held:
“15. This is because the coaccused of the
appellant who have been also charged of
offences specified in Section 3 of the Act
must be tried by the Special Judge, who in
view of the provisions of subsection (3) of
Section 4 and Section 220 of the Code may
also try them of the charge under Section
120B read with Section 420 IPC. All the
three accused, including the appellant, have
been charged of the offence under Section
120B read with Section 420 IPC. If the
Special Judge has jurisdiction to try the
coaccused for the offence under Section
120B read with Section 420 IPC, the
provisions of Section 223 are attracted.
Therefore, it follows that the appellant who
is also charged of having committed the same
offence in the course of the same
transaction may also be tried with them.
Otherwise it appears rather incongruous that
some of the conspirators charged of having
committed the same offence may be tried by
the Special Judge while the remaining
conspirators who are also charged of the
same offence will be tried by another court,
23Page 24
because they are not charged of any offence
specified in Section 3 of the Act.
17. We are, therefore, of the view that in
the facts and circumstances of this case,
the Special Judge while trying the co
accused of an offence punishable under the
provisions of the Act as also an offence
punishable under Section 120B read with
Section 420 IPC has the jurisdiction to try
the appellant also for the offence
punishable under Section 120B read with
Section 420 IPC applying the principles
incorporated in Section 223 of the Code. We,
therefore, affirm the finding of the High
Court and dismiss this appeal.”
25. Admittedly, 2G Scam case is triable by the
Special Judge against the persons accused of offences
punishable under the PC Act in view of subSection
(1) of Section 4. The Special Judge alone can take
the cognizance of the offence specified in sub
Section (1) of Section 3 and conspiracy in relation
to them. While trying any case, the Special Judge
may also try an offence other than the offence
specified in subSection (1) of Section 3, in view of
subSection (3) of Section 4. A magistrate cannot
take cognizance of offence as specified in Section
3(1) of the PC Act. In this background, as the
petitioners have been shown as coaccused in second
supplementary chargesheet filed in 2G Scam case, it
is open to the Special Judge to take cognizance of
the offence under Section 120B and Section 420 IPC.
24Page 25
26. 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:
(i) Under subSection (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, coaccused 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).
(ii) 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
25Page 26
judiciary.
[See High Court of Judicature for
Rajasthan v. Ramesh Chand Paliwal (1998) 3 SCC
72 and Registrar (Admn.) High Court of Orissa v.
Sisir Kanta Satapathy (1999) 7 SCC 725].
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
subSection (1) of Section 3 of the PC Act.
(iii) 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 JudgeIcum
Sessions Judge, Tis Hazari Courts, Delhi and the
District JudgeIVcumAddl. 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
26Page 27
officer of Delhi Higher Judicial Service for his
appointment as Special Judge for 2G Scam Cases.
27. 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.
On 11th April, 2001, when the 2G Scam Case was
taken up by this Court, this Court, inter alia,
observed as follows:
“Acting on such basis, this Court has given
directions for establishing a separate
Special Court to try this case and pursuant
to such direction, a Special Court has been
constituted after following the due
procedure.
We also make it clear that any objection
about appointment of Special Public
Prosecutor or his assistant advocates or any
prayer for staying or impeding the progress
of the Trial can be made only before this
Court and no other court shall entertain the
same.
The trial must proceed on a day to day basis.
All these directions are given by this Court
in exercise of its power under Article 136
read with Article 142 of the Constitution
and in the interest of holding a fair
prosecution of the case.”
27Page 28
28. From the aforesaid order it is clear that this
Court passed the order under Article 136 read with
Article 142 of the Constitution, in the interest of
holding a fair prosecution of the case.
29. In Rupa Asbhok Hurra v. Ashok Hurra and another,
(2002) 4 SCC 388,
this Court held that
a final
judgment or order passed by this Court cannot be
assailed in an application under Article 32 of the
Constitution by an aggrieved person, whether he was a
party to the case or not.
For the said reason also,
it is not open to the petitioner to indirectly assail
the order passed by this Court in 2G Scam case.
30. We find no merit in these writ petitions, they
are accordingly dismissed. The Special Court is
expected to proceed with the trial on daytoday
basis to ensure early disposal of the trial. There
shall be no order as to costs.
….......…………………………………………….J.
(G.S. SINGHVI)
…………………………………………….......….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JULY 1 , 2013.
28
