TMI Blog2014 (2) TMI 1401X X X X Extracts X X X X X X X X Extracts X X X X ..... e scope of Sub-section (3) of Section 4 of the PC Act, which indicates that when trying any case , which means trying any case relating to the offences referred to in Section 3(1)(a) and (b) of the PC Act for which exclusive jurisdiction is conferred on the Special Judge. A Special Judge, while exercising, exclusive jurisdiction, that is, when trying any case relating to offences under Sections 3(1)(a) and (b) of the PC Act, may also try any offence other than the offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. An accused, in a given case, may be charged under the Code of Criminal Procedure on an offence being committed under the Indian Penal Code and the offence specified in Section 3 of the PC Act. Criminal cases that can be tried by a Special Judge are under the PC Act and also for the charges under Indian Penal Code or any other legislation. Conspiracy to commit any offence either under the PC Act or under the Indian Penal Code is a separate offence, has to be separately charged and tried. The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate persons for non-PC offences. Further question raised is that, assuming that the Special Judge has jurisdiction under Sub-section (3) of Section 4 of the PC Act to proceed against the private persons, is the Special Judge duty bound to try any non-PC offence, other than the offences specified under Section 3 of the PC Act against the accused persons charged at the same trial. 3. In Criminal Appeal No. 161 of 2011, we are concerned with the question as to whether the Special Judge has jurisdiction under Section 4(3) of the PC Act to try non-PC offences against private persons when no charges have been framed against public servants for trying a case for offences under Section 3(1) of the PC Act, since they died before framing of charges under the PC Act or Indian Penal Code. 4. We have two conflicting judgments, one rendered by the Delhi High Court, which is impugned in Criminal Appeal No. 943 of 2008 filed by the State through Central Bureau of Investigation (CBI), New Delhi and the other rendered by the Bombay High Court, which is challenged by a private person in Criminal Appeal No. 161 of 2011. 5. Delhi High Court seems to have taken the view that when public servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PC Act against A-1. All the accused persons pleaded not guilty and claimed trial. 8. The Special Judge, later, posted the case for prosecution evidence on 10.4.2003 and, on that day, two witnesses were present, but the case was adjourned. Meanwhile, on 20.6.2003, the sole public servant A-1 died. A-3 then filed Criminal Revision No. 550 of 2003 before the High Court of Delhi on 22.7.2003 challenging the order framing the charges against him. The High Court, on 1.8.2003, directed the trial Court to record only the examination-in-chief of the witnesses. Accordingly, the examination-in-chief of 8 prosecution witnesses was recorded on different days. On 28.4.2004, A-2 filed an application before the Special Judge for dropping the charges in view of the death of A-1, the sole public servant. On 12.5.2004, A-2 filed an application before the High Court as Criminal M.C. No. 1395/2004 seeking stay of further proceedings before the trial Court, till charges are amended. The High Court, on 14.5.2004, directed the trial Court to dispose of the application filed by A-2 for modification, amendment or alteration of charges on account of death of A-1 and further directed if the Court feels it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were obtained from the bank and were siphoned off through M/s. Orson Electronics Limited and other fictitious firms. Consequently, accused persons failed to repay the funds of the bank, thereby the bank was cheated to the tune of ₹ 20.64 crores. It was also alleged in the FIR that A-1 had abused his position as public servant and granted favour to A-2 to A-8 and thereby caused wrongful losses to the bank. 11. CBI completed the investigation and the charge-sheet was filed on 14.9.2001 against the accused persons for offences punishable inter alia under Section 120B read with Section 420 Indian Penal Code and Section 5(2) read with Section 5(1)(b) of the Prevention of Corruption Act, 1947, corresponding to Section 13(2) read with Section 13(1)(d) of the PC Act, in the Court of Special Judge, Mumbai. 12. Accused Nos. 9 and 10, though named in the charge-sheet, could not be sent for trial since they died before the charge-sheet came to be filed on 14.9.2001. On 18.2.2005, A-1, the sole public servant also expired. A-2, the Appellant herein, then preferred an application before the Special Judge for sending the case to the Metropolitan Magistrate at Bombay for conducting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he jurisdiction, cannot be divested of it on the death of a public servant. Consequently, the order passed by the Special Judge was set aside and the Special Judge, CBI, Bombay was directed to continue with the trial of the case. Aggrieved by the same, Criminal Appeal No. 161 of 2011 has been preferred by A-2. 15. Shri P.P. Malhotra, learned Additional Solicitor General appearing for CBI in Criminal Appeal No. 943 of 2008, referred to Sections 3(1) and 4(1) of the PC Act and submitted that irrespective of whether the offence mentioned in Section 3(1) was committed by a public servant or a private person, individually or jointly, trial could be conducted only by the Special Judge who is conferred with the jurisdiction by the Central Government or the State Government, as the case may be, under the PC Act. Shri Malhotra submitted that on the death of a public servant, the jurisdiction once vested on the Special Judge cannot be divested. Further, it was also pointed out that once the public servant dies, the charge against him alone would abate, but the jurisdiction of the Court would not be divested. It was stated that the direction issued by the High Court was contrary to the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffences punishable under the PC Act, but also non-PC offences in view of Section 4(3) of the PC Act, which is only an enabling provision. Further, it was also pointed out that when exclusive jurisdiction is conferred on the Special Judge, while trying offences under Section 3(1)(a) and (b) against public servant as well as the private persons, the discretion is also conferred on the Special Judge under Section 4(3) to try non-PC offences as well against private persons. On the basis of the above legal premises, learned senior counsel pointed out that, in the instant case, since no charges have been framed against the public servant under Section 3(1) of the PC Act and that the public servant is no more, the discretion exercised by the Special Judge under Section 4(3) of the PC Act should not have been interfered with by the High Court. 20. We may, before examining the rival contentions raised by the parties, deal with the objects and reasons for enacting the PC Act. The Indian Penal Code has provided for punishment for the offence of bribery and corruption even against the public servants. Parliament, in its wisdom, noticed that the Penal Code was not adequate to meet the exigen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis. Section 5 of the PC Act deals with the procedure and powers of Special Judge. The same also has some relevance and is extracted below for an easy reference: 5. Procedure and powers of special Judge.-(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant case by Magistrates. (2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 3(1) of the PC Act, for which reference has to be made to Chapter III of the PC Act. 24. Section 7 of the PC Act refers to offences dealing with public servant taking gratification, other than the legal remuneration in respect of an official act. Section 10 deals with punishment for abetment by a public servant of offences defined in Sections 8 and 9. Section 11 of the PC Act refers to an offence of a public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant. Offences under Sections 7, 10 and 11 can be committed only by the public servant, though an offence under Section 7 can also be committed by a person expected to be a public servant. An offence under Section 7 or 11 could also be abetted by a non-public servant, for which punishment has been prescribed under Section 12 of the PC Act. Section 8 deals with the taking gratification, by corrupt or illegal means, to influence public servant. Section 9 deals with taking gratification, for exercise of personal influence with public servant. Offences under Sections 8 and 9 can be committed by a person who need not necessarily be a public se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson offering a bribe to a public servant commits an offence under Section 12 of Act. This offence can be tried only by the Special Judge, notwithstanding the fact that only a private person is the accused in the case and that there is no public servant named as an accused in that case. A private person can be the only accused person in an offence under Section 8 or Section 9 of the said Act. And it is not necessary that a public servant should also be specifically named as an accused in the same case. Notwithstanding the fact that a private person is the only accused in an offence under Section 8 or Section 9, it can be tried only by a Special Judge. 28. Thus, the scheme of the PC Act makes it quite clear that even a private person who is involved in an offence mentioned in Section 3(1) of the PC Act, is required to be tried only by a Special Judge, and by no other Court. Moreover, it is not necessary that in every offence under the PC Act, a public servant must necessarily be an accused. In other words, the existence of a public servant for facing the trial before the Special Court is not a must and even in his absence, private persons can be tried for PC as well as non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given case, may be charged under the Code of Criminal Procedure on an offence being committed under the Indian Penal Code and the offence specified in Section 3 of the PC Act. Criminal cases that can be tried by a Special Judge are under the PC Act and also for the charges under Indian Penal Code or any other legislation. Conspiracy to commit any offence either under the PC Act or under the Indian Penal Code is a separate offence, has to be separately charged and tried. For example, the conspiracy to commit offence punishable under the PC Act itself is an offence to be tried only by a Special Judge. In Ajay Aggarwal v. Union of India (1993) 3 SCC 609, the Court held as follows: ...Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy.... 33. Reference may also be made to the judgments of this Court in Sanichar Sahni v. State of Bihar (2009) 7 SCC 198 and Mohd. Arif v. State (NCT of Delhi) (2011) 13 SCC 621. 34. In other words, an accused person, either a public servant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is not obligatory on the part of a Special Judge to try non-PC offences. The expression may also try gives an element of discretion on the part of the Special Judge which will depend upon the facts of each case and the inter-relation between PC offences and non-PC offences. 38. A Special Judge exercising powers under the PC Act is not expected to try non-PC offences totally unconnected with any PC offences under Section 3(1) of the PC Act and in the event of a Special Judge not trying any offence under Section 3(1) of the PC Act, the question of the Special Judge trying non-PC offences does not arise. As already indicated, trying of a PC offence is a jurisdictional fact to exercise the powers under Sub-section (3) of Section 4. Jurisdiction of the Special Judge, as such, has not been divested, but the exercise of jurisdiction, depends upon the jurisdictional fact of trying a PC offence. We are, therefore, concerned with the exercise of jurisdiction and not the existence of jurisdiction of the Special Judge. 39. The meaning and content of the expression jurisdictional fact has been considered by this Court in Carona Ltd. v. Parvathy Swaminathan and Sons (2007) 8 SCC 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under Sections 420, 467 and 471 Indian Penal Code and also substantive offences under Sections 13(1)(d) and 13(2) of the PC Act against the public servants. Therefore, charges have been framed against the public servants as well as non-public servants after hearing the prosecution and defence counsel, by the special Judge on 25.3.2003 in respect of PC offences as well as non-PC offences. As already indicated, under Sub-section (3) of Section 4, when trying any case, a Special Judge may also try any offence other than the offence specified in Section 3 and be charged in the same trial. The Special Judge, in the instant case, has framed charges against the public servant as well as against the non-public servant for offences punishable under Section 3(1) of PC Act as well as for the offences punishable under Section 120B read with Sections 467, 471 and 420 Indian Penal Code and, therefore, the existence of jurisdictional fact that is trying a case under the PC Act has been satisfied. 42. The Special Judge after framing the charge for PC and non-PC offences posted the case for examination of prosecution witnesses, thereafter the sole public servant died on 2.6.2003. Before tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vants. As already indicated, under Sub-section (3) of Section 4, the special Judge could try non-PC offences only when trying any case relating to PC offences. In the instant case, no PC offence has been committed by any of the non-public servants so as to fall under Section 3(1) of the PC Act. Consequently, there was no occasion for the special Judge to try any case relating to offences under the PC Act against the Appellant. The trying of any case under the PC Act against a public servant or a non-public servant, as already indicated, is a sine-qua-non for exercising powers under Sub-section (3) of Section 4 of PC Act. In the instant case, since no PC offence has been committed by any of the non-public servants and no charges have been framed against the public servant, while he was alive, the Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non-PC offences. 46. Consequently, we find no error in the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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