1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 16 OF 2009 Shri Rajendra Singh Sanga s/o late Shri Mange Ram Sanga r/o 1386/21, Haffed Road, Prem Nagar, Rohtak, Haryana. ... Applicant versus State, through Public Prosecutor, C.B.I. ... Respondent Shri A. N. S. Nadkarni, Senior Advocate with Shri H. D. Naik, Advocate for the Applicant. Shri C. A. Ferreira, Public Prosecutor for the Respondent. CORAM : N. A. BRITTO, J. DATE : 26TH MARCH, 2009. O R D E R This revision is filed by accused No.2 in Special Case No.1 of 2008 and is directed against Order dated 12-12-2008 of the learned Special Judge, Panaji. 2 2. Some facts are required to be stated to dispose off this revision. 3. The accused No.1 was the Assistant Director of Khadi and Village Industries Commission, Panaji (KVIC) and was holding additional charge of Manager of Khadi Gramodyog Bhavan, Margao (KGB). One Jaibir Singh was awarded a contract for repairs and renovation of the Office of KGB at Panaji and work order was issued to him on 8-4-2006 and after completion of the work he had submitted his final bill for the sum of Rs.2,95,600/- and as Rs.1,50,000/- were paid, the said Jaibir Singh was awaiting payment of Rs.1,45,600/-. 4. The case of the prosecution is that on 8th and 9th October, 2006 accused No.1 demanded a bribe from the said Jaibir Singh, Proprietor of M/s. Saraswati Construction for clearing the said bill of the balance payment of Rs.1,45,600/- and as the said Jaibir Singh was not willing to pay the bribe, the latter complained to CBI and an offence was registered against him, and, on 11-10-2006 accused No.1 was caught red handed at Hotel Fidalgo, Panaji demanding and accepting a bribe of Rs.45,000/- i.e. Rs.25,000/- in self cheque and Rs.25,000/- in cash from the said Jaibir Singh. It was also the case of the prosecution that a cheque dated 30-6-2006 for Rs.75,600/- issued in favour of the said M/s. Saraswati Construction was recovered from the Office of accused No.1 on the same day which was falsely shown in the cash book of KGB, Margao as having been delivered to M/s. Saraswati Construction on 30-6-2006 when in fact 3 this cheque of balance payment was retained by accused No.1 with ulterior motive to demand and accept the amount of Rs.45,000/- from Jaibir Singh. 5. Further, the case of the prosecution is that after the trap the accused No.1 took the plea that the said amount of Rs.45,000/- in cash and cheque recovered from him was by way of repayment of the loan taken by Jaibir Singh from him and later on accused No.1 took another plea that the said amount belonged to his friend R. S. Sanga, CMD of M/s. Sanga Energy Pvt. Ltd., Haryana against the supply of 13 UPS by R. S. Sanga to M/s. Jyoti Enterprises, Verna, and therefore it was not a bribe. It was further the case of the prosecution that accused No.2 the said R. S. Sanga had sent 13 UPS in the name of M/s. Jyoti Enterprises at Verna Industrial Estate, Goa under Invoice dated 3-10-2006 for Rs.23,000/-, and accused No.2 had prepared another Invoice dated 3-10-2006 for Rs.45,000/- in the name of M/s. Jyoti Enterprises for supply of 13 UPS but the investigations had revealed that the said Invoices dated 3-10-2006 were fraudulently prepared in the computer of M/s. Sanga Energy Pvt. Ltd., Bahadurgarh, Haryana on 13-10-2006. It was further the case of the prosecution that accused No.2 had fraudulently prepared, a letter dated 4-10-2006 on the letter-head of his Company addressed to accused No.1 thereby authorizing him to collect Rs.45,000/- from Jaibir Singh against the supply of 13 UPS, and deposit the same in the Bank account of accused No.2. The case of the prosecution is that the hard disk of M/s. Sanga Energy Pvt. Ltd. showed that the letter dated 4-10-2006 was created on 8-12-2006 which clearly showed that accused No.2 in connivance with accused No.1 had 4 prepared the said fabricated and false invoices dated 3-10-2006, and the letter dated 4-10-2006 with ulterior motive to create false evidence to cover up the act of bribe accepted by accused No.1. It was further alleged by the prosecution that Jaibir Singh had confirmed that he had no firm by name M/s. Jyoti Enterprises and that he neither ordered nor received any UPS at any time from accused No.2, and was not to pay any amount to accused No.1 or accused No.2. 6. The accused No.1 has not challenged the Order framing charge against him under Sections 7, 13(2) r/w 13(1)(d) and Sections 109, 193, 201 and 203 I.P.C. but accused No.2 has challenged the same in the present revision. 7. The reasons for framing of charge as against accused No.1 are seen in para 5 of the impugned Order and those relating to accused No.2 are seen in para 8. As regards the Petitioner/Accused No.2, the learned Sessions Judge observed that the accused No.2 by preparing false/fraudulent invoices dated 3-10-2006 and false letter dated 4-10-2006 had engaged with accused No.1 in the conspiracy to screen accused No.1 from the legal punishment. Accused No.2 by doing so had given false information relating to the offence committed by accused No.1. Accused No.1 had fabricated false evidence for the purpose of being used in some stage of judicial proceedings, and as such the ingredients of Sections 109, 193, 201 and 203 I.P.C. were very much attracted in the present case. At this stage, it may be noted that it is not the case of the prosecution that accused No.2/Sanga abetted the offences committed by accused No.1/Kajal or entered into 5 a conspiracy to commit the same along with accused No.1. The only allegation is that accused No.2 fabricated the said invoices dated 3-10-2006 and the letter dated 4-10-2006 only on 13-10-2006 with a view to fabricate false evidence for the purpose of being used in the trial of accused No.1 i.e. in any stage of judicial proceeding and/or giving information respecting the offence which he knows or believes to be false. It is in fact not the case of the prosecution that accused No.2/Sanga abetted the offences committed by accused No.1/Kajal though otherwise Section 107 has been added to the charge. It is also not the case of the prosecution that there was conspiracy between both the accused to commit offences committed by accused No.1/Kajal and as the allegations show it appears that accused No.2/Sanga fabricated the said invoices and the letter subsequently with a view to save accused No.1/Kajal. This conspiracy is different. 8. The long and short of the story of the prosecution against accused No.2/Sanga is that he fabricated the invoices dated 3-10-2006 and letter dated 4-10-2006 and this was done to support the second plea taken by accused No.1/Kajal. There are three submissions made by Shri A. N. S. Nadkarni, learned Senior Counsel appearing on behalf of accused No.2/Sanga. The first submission is that accused No.2/Sanga could not be tried for offences punishable under the Indian Penal Code by the learned Special Judge appointed under Section 3 of the Prevention of Corruption Act, 1988(Act, for short). According to him accused No.2/Sanga could be tried for offences under I.P.C. only in case he was being tried for offences under Section 3(1)(a) or (b) of the Act. The second is that there 6 is no prima facie evidence against accused No.2/Sanga to frame charges, as has been done by the learned Special Judge. Thirdly, learned Senior Counsel submits that the Petitioner/Accused No.2 could not be charged for offences punishable under the Prevention of Corruption Act, 1988(Act, for short). 9. As regards this third and last submission, Shri C. A. Ferreira, learned Public Prosecutor fairly concedes that accused No.2/Sanga could not be charged for offences punishable under the Act, and, therefore the only submission which requires consideration is whether the Petitioner/Accused No.2 could have been charged and tried by the Special Judge appointed under Section 3 of the Act and, along with accused No.1/Kajal. The entire controversy centers on sub-section(3) of Section 4 of the Act which provides that 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 be charged at the same trial. 10. Shri Nadkarni, learned Senior Counsel submits that the expression accused in sub-section(3) of Section 4 in the context of the facts of the case could refer only to accused No.1 while Shri Ferreira, learned Public Prosecutor submits that the said expression could also refer to accused No.2. Shri Nadkarni, learned Senior Counsel has placed reliance on the case of Union of India v. I.C. Lala(AIR 1973 SC 2204) but I must hasten to add that this case is of no assistance to learned Senior Counsel Shri Nadkarni to carry forward his submission. In that 7 case one charge which was common to all the three accused was that all of them had agreed to commit or cause to be committed offences under Section 5(2) of the Prevention of Corruption Act, and of cheating under Section 420 I.P.C. and these offences having been committed in pursuance of a conspiracy were punishable under Section 120-B of the I.P.C. r/w Section 5(2) of the Prevention of Corruption Act and Section 420 I.P.C. 11. The Apex Court referring to The State of Andhra Pradesh v. Kandimalla Subbaiah and another(AIR 1961 SC 1241), noted that the offence mentioned in charge no.1, in that case, was alleged to have been committed not by just one person and the question was whether all these persons can be jointly tried in respect of all those offences. To this kind of charge Section 239 would be applicable and the said Section provided that the following persons may be charged and tried together, namely: (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused of an offence and persons accused of abetement or an attempt to commit such offence; and (3) persons accused of different offences committed in the course of the same transaction. The Court ultimately held that all the accused persons could be tried together in respect of all offences which comprised charge no.1. . 12. Admittedly, the Court of Special Judge under the Act has been constituted under Section 3 thereof specially to try certain types of offences, namely:- 8 (a) any offence punishable under this Act, and (b) any conspiracy to commit or any attempt to commit or any abetement of the offences specified in clause (a). 13. Sub-section(1) of Section 4 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, the offences specified in sub-section(1) of Section 3 shall be tried by special Judges only. The word only is of some significance. Sub-Section(2) provides that every offence provided in sub-section(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 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. Sub-Section(3) of Section 4, on which the controversy rests, provides that:- 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, be charged at the same trial. Section 239 of the Code(Code of Criminal Procedure, 1973) provides that persons accused of the same offence committed in the course of the same transaction, persons accused of an offence and persons accused of abetement and persons accused of different offences committed in the course of the same transaction can be charged and tried together. 9 14. Admittedly, it is accused No.1 who is a public servant who has been charged with offences punishable under the Act and he could be tried with any other offence only in case such offences were committed by him in the course of the same transaction. He is not sought to be charged with any other offence. It is not the case of the prosecution that the accused No.2/Sanga abetted the commission of offences under the Act by accused No.1/Kajal nor it is the case of the prosecution that both conspired together to commit the offences punishable under the Act. Concisely put, the offences punishable under the Act were committed by accused No.1/Kajal a public servant on or about 11-10-2006 and it is not the case of prosecution that the accused No.2/Sanga either attempted, conspired or abetted the commission of the said offences as contemplated by Section 3(1)(b). The offences punishable under I.P.C. were committed by accused No.2/Sanga on or after 13-10-2006 and in that there might have been a conspiracy between both. Now, the Court of the Special Judge is established to try the offences under Section 3(1) only and if whilst trying a case, the Special Judge may try any other offence, other than an offence specified under Section 3 of the Act. The first requirement for the Special Judge to try a case is that the accused must have committed offences under the Act, either those specified under clause (a) or clause (b) of sub-section(1) to Section 3 of the Act. Now, as per concession made, accused No.2/Sanga has not committed any offence under the Act and therefore, he could not be tried along with other accused i.e. accused No.1/Kajal for offences punishable under I.P.C. He could have been tried only in case he was also being tried under clause (b) of sub-section(1) of Section 3. In other words, 10 either of the accused No.1/Kajal or accused No.2/Sanga could have been tried for other offences, other than those specified under clauses (a) and (b) of sub- section(1) of Section 3 in case they were being tried for the said offences but I must hasten to add that it is only accused No.1/Kajal who has committed offences under the Act and he has not committed any other offences while on the contrary accused No.2/Sanga did not commit any offence punishable under the Act or for that matter was not part of a conspiracy or attempt or abettement to commit any of the said offences committed by accused No.1/Kajal and as such the learned Special Judge had no jurisdiction to try accused No.2/Sanga for the offences punishable under the Indian Penal Code as he had not committed any offences enumerated in clause (b) of sub-section(1) of Section 3 of the Act. It is to be noted that the Special Court is a Court of limited jurisdiction which has been conferred limited jurisdiction to try only offences enumerated therein and along with them those offences which are enumerated in sub-section(3) of Section 4 of the Act but only when such offences are to be tried along with the offences punishable under the Act or in respect of the conspiracy, attempt or abetement to commit the same. Since accused No.2/Sanga according to the prosecution has committed offences only under the Indian Penal Code and is not being tried as a non public servant who has committed offences mentioned in clause (b) of sub-section(1) of Section 3, in my view, accused No.2/Sanga could not have been tried by the learned Special Judge which is a Court of limited jurisdiction which has been expressly conferred under the Act. To sum up, accused No.2/Sanga not having been prosecuted for offences under Section 3(1)(b) of the Act could not be prosecuted 11 before the Special Judge for other offences i.e. under the I.P.C. The expression “whilst trying a case” contemplates that the case will have only two types of accused i.e. those who have committed the offences punishable under the Act in terms of Section 3(1)(a) or those who attempted, conspired, or abetted the commission thereof in terms of Section 3(1)(b) of the Act and it is only then that they can be tried for other offences as contemplated by Section 4(3) of the Act since accused No.2/Sanga has not committed any offences categorized either by clause (a) or (b) of sub-section(1) of Section 3, the Special Judge will have no jurisdiction to try him. Moreover, the offences alleged to have been committed by accused No.2/Sanga, prima facie do not appear to have been committed in the course of same transaction in which the offences under the Act were committed by accused No.1/Kajal. The expression “transaction” has not been defined under the Code of Criminal Procedure, 1973, and indeed it is incapable of exact definition and it must be decided on facts of a particular case. The real and substantial test which is generally applied to find out whether the series of acts were done in the course of the same transaction is to see whether there was continuity of action, unity of time and place and community of purpose or design running through the acts. The normal rule under the Cr. P. C. is to try each accused separately when offence committed by him is distinct and separate. Joint trial is an exception. Distinct means not identical and two offences are distinct when they are not interrelated. By way of example, we may refer to Ranjana v. State of U.P.(1983 All L.J. 322) where a girl, a boarder of hostel was abducted and raped, the matron long after the initial action brought the girl to hostel and confined her in a room 12 she removed her wearing apparel to destroy the evidence of rape and compelled her to name the rapist in her statement. It was held that the test of continuity of action did not make it in course of same transaction. By continuity of action is meant the following some initial act through all its consequences and incidents until the series of acts or group of connected acts comes to an end either by attainment of the object or by being abandoned. 15. In the light of the above finding, it is not necessary to give a finding whether there was prima facie material to frame a charge against accused No.2/Sanga for offences under the Indian Penal Code. This is a case where not only accused No.2/Sanga could not be charged along with accused No.1/Kajal in the absence of any allegation that he had conspired, attempted or abetted the offences committed by the main accused who is a public servant but the offences committed by accused No.2/Sanga prima facie could not also be said to have been committed in the course of the same transaction. 16. Consequently, this revision succeeds, the impugned Order as regards accused No.2/Sanga is set aside and accused No.2/Sanga is hereby discharged for offences he is charged. N. A. BRITTO, J. RD