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
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
