IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 31ST DAY OF MARCH 2011/10TH CHAITHRA 1933 Crl.Rev.Pet.No. 856 of 2009 ( ) -------------------------------- AGAINST THE COURT CHARGE IN CC.98/2000 OF THE COURT OF ENUIRY COMMISSIONER. & SPECIAL JUDGE, TRIVANDRUM DATED 13-02-2009 REVISION PETITIONER/ACCUSED NO.1: ------------------------------------------------------------ GEORGE WILSON, S/O.PHILIPOSE GEORGE, KAVUTHADATHIL, KADAMPANADU P.O. PATHANAMTHITTA DISTRICT (GOVT. CONTRACTOR). BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA SMT.DHANYA P.ASHOKAN SRI.ALAN PAPALI SMT. ASHA KAIMAL COMPLAINANT/COMPLAINANT: ------------------------------------------------------ STATE OF KERALA (DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE & ANTI CORRUPTION BUREAU KOLLAM UNIT), REPRESENTED BY THE PUBLIC, PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S. SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31-03-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 856 of 200 APPENDIX PETITIONER'S EXHIBITS : ANNEXURE I - TRUE COPY OF THE PROCEEDINGS OF THE SUPERINTENDING ENGINEER BY ORDER NO. D8. 5071/85(A) DATED 16.11.1994. ANNEXURE II - TRUE COPY OF THE LETTER ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER TO THE EXECUTIVE ENGINEER DATED 24.9.2001. ANNEXURE II - TRUE COPY OF THE COMMON ORDER IN CRL.M.P. NO.408/2002 AN 409/02 IN C.C. NO.98/2000 OF THE COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM DATED 3.12.2008. ANNEXURE IV - TRUE COPY OF THE COURT CHARGE IN C.C..NO.98/2000 FRAMED AGAINST THE PETITIONER DATED 13.2.2009. RESPONDENT'S EXHIBITS : NIL // True copy // P.A. To Judge sou. K. HEMA, J -------------------------- Crl.R.P.No.856 OF 2009 --------------------------------------- Dated 31st March, 2011 O R D E R The revision petitioner, who is a contractor and nonpublic servant is charge sheeted along with two Executive Engineers, as accused 2 and 3 for offence under section 13(1)(d), 13(2) of Prevention of Corruption Act ('PC Act' for short) and 120 (B) of Indian Penal Code ('IPC' for short). Second accused died after the charge sheet was laid and the charge abated. Third accused was discharged as per annexure -III order. Now petitioner alone stands trial for offence, referred to in annexure-IV charge. 2. Charge was framed by Enquiry Commissioner and Special Judge ('The Special Judge' for short) under Prevention of Corruption Act ('PC Act' for short) as follows: “That – you A1 who was the Contractor of the work of 'KIP LBC Formation of Kulakkada Branch Canal from Ch.12777 M to 16000 M including CD works entered into a criminal conspiracy with deceased Varghese Mathew on or before 30.4.1991 with the common object of deriving undue pecuniary advantage to you and by adopting corrupt or illegal means and in pursuance of the CRRP. No.856/09 2 aforesaid conspiracy and by misutilizing Clause 31 and 32 of the LCB specifications and in excess of the powers conferred on Sri. Varghese Mathew as per PWD Manual and Code, negotiated rate on 29.4.1991 and executed supplemental agreement No.6 on 30.4.1991 for certain extra items of work such as constructions of open flume from Ch.13760 M to 13870 M, construction of an acqueduct from Ch.15700 M to 15780 M and construction of a covered flume from Ch.14955 M to 14980 M and allowed a total amount of Rs.23,18,880/- whereas the sanctioned estimate amount of the Chief Engineer for this work was Rs.6,22,500/- and thereby you the accused gained pecuniary advantage to the tune of Rs.16,96,380/- and thereby committed the offence specified in section 13(1)(d) of PC Act, 1988 which is punishable under section 13(2) of that Act. And secondly-that you on the aforesaid date, time and place for the aforesaid purpose entered into a criminal conspiracy Sri.Varghese Mathew on or about the aforesaid date and time and you agreed to do an illegal act by illegal means and you have done the said at by executing supplemental agreement and thereby committed an offence punishable under section 120B of IPC. and within my cognizance. And I hereby direct that you shall be tried by this court on the above charges.” 3. According to learned counsel for petitioner, Smt. Dhanya Ashokan, petitioner cannot be proceeded against for offence CRRP. No.856/09 3 under section 13(1)(d) read with 13(2) of PC Act, since even on a plain reading, it will be clear that only a public servant can be tried for the said offence. Revision petitioner being a non-public servant, he cannot be tried for any of the offences under PC Act and charge framed against petitioner for offence under PC Act is illegal. 4. The next limb of argument is that the petitioner being a non-public servant, he cannot be tried by Special Judge since none of the co-accused against whom offence under PC Act is facing trial before the court. It is not legal to try the petitioner alone for offence under section 120(B) of IPC, it is argued. As per allegations in the charge, petitioner entered into a criminal conspiracy with deceased Varghese Mathew, who is the Superintending Engineer and he as a public servant allegedly committed an offence under PC Act, the said person is not charge sheeted for offence under PC Act. He died prior to filing of charge sheet and prosecution has no case that late Sri.Varghese Mathew committed offence under PC Act. 5. Since there is nothing on record to show that no offence under PC Act was committed by alleged co-conspirator, Special Judge has no jurisdiction to try petitioner for offence under IPC CRRP. No.856/09 4 alone, it is argued. Learned counsel for the petitioner also submitted that in view of section 4 of PC Act, an accused can be tried for offence other than the offence specified in section 3, only when he is trying any case. Section 3 of PC Act shows that Special Judge can try only the type of offence referred to in section 3(1)(a) and (b) of the Act. But Special judge was not trying any offence under PC Act or offence specifically stated under section 3(1)(a) and 3(1)(b) against a public servant. Therefore, petitioner cannot be tried by Special Judge, in the absence of any co-accused being tried for offence under PC Act, it is strongly argued. She also relied upon the decisions reported in (1999(6) SCC 559) P. Nallammal and another Vs. State represented by inspector of police, 2001(9) SCC 432 CBI, AHD, Patna Vs. Braj Bhushan Prasad, (2003(8) SCC 628) Vivek Gupta Vs. Central Bureau of Investigation and another in support of her arguments. 6. Learned public prosecutor argued that none of the arguments raised by learned defence counsel is sustainable. When offences are committed in course of the same transaction, the accused involved in such offences can be tried together, as stated in section 220 of the Code, it is argued. It is also submitted CRRP. No.856/09 5 that though the second accused died after filing of the charge sheet and charge against him abated, it does not mean that no offence under the provisions of PC Act is committed. 7. This is not a case where no offence under PC Act is involved. For the mere reason that co-accused who is a public servant is not standing trial or that he is not before the court, Special Judge does not lose jurisdiction to try him for offence under 120(B) of IPC, it is argued. If one of the accused is absconding and case is split, it cannot be said that non public servant cannot be proceeded against, since the main offender who committed offence under PC Act is not before the court, it is strongly argued. 8. On hearing both sides and on going through the documents produced, I would perfectly agree with learned counsel for petitioner that petitioner cannot be tried for offence under 13(1) (d) read with section 13(2) of PC Act, he being not a public servant. Offences under section 13(1) read with section 13 (2) will lie only against a public servant and not against a non- public servant. Therefore, petitioner cannot be proceeded against for offence under PC Act, which is referred to in the charge. So, the next question to be decided in this case is whether petitioner, CRRP. No.856/09 6 against whom allegations are made that he hatched a criminal conspiracy with late Sri.Varghese Mathew, the Superintending Engineer to commit offence under section 120(B) IPC can be tried by Special Judge or not. 9. First of all, a reading of the charge will reveal that charge is not correctly framed in respect of offence under section 120(B) of IPC. The allegations made in the charge will not constitute offence under section 120(B) of IPC. Learned public prosecutor pointed out that in the first limb of the charge all the relevant facts are stated so as to give notice to the petitioner about the offence. A reading of the charge reveals that the relevant particulars of offence under section 120(B) IPC are not referred to in the charge, as required as per law. Section 212 of the Code shows that it is mandatory to state particulars as to time and place of offence in the charge. 10. The petitioner is alleged to have hatched a criminal conspiracy with deceased Varghese Mathew to cause him commit offence under section 13(2) of the Act. So the allegations against petitioner in short is that he allegedly hatched a criminal conspiracy with late Varghese Mathew to cause the latter to commit offence under PC Act. Such act is an offence punishable CRRP. No.856/09 7 under Section 120(B) of IPC, it is submitted. 11. The next question, which is most important is, which court will try petitioner, who is the sole conspirator, in the absence of other conspirator being not standing trial. Learned public prosecutor pointed out that Section 26 of the Code is relevant in this context. Section 26 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 Hight 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 Curt, or (ii) any other court by which such offence is shown in the First Schedule to be triable.” 12. A reading of Section 26 of the Code makes it abundantly clear that offence under Section 120(B) IPC can be tried by the High Court or a Court of Sessions or any other court by which such CRRP. No.856/09 8 offence is shown in the first Schedule to be triable. Schedule 1, which refers to classification of offence, lays down that offence under section 120 B IPC is triable by the “Court by which abetment of offence which is the object of conspiracy is triable.” 13. Offence under section 120(B) is described under first Schedule in Column no.2 thus: “Criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards.” Punishment for offence under Section 120(B) is referred as “same as for abetment of the offence which is the object of the conspiracy”. There can be no doubt that the description in column no.3 and 6 which includes the expression “abetment”, “conspiracy” etc. are confusing, because section 120(A) IPC which defines “criminal conspiracy”, does not speak about abetment or even the expression “conspiracy” (“criminal conspiracy” is defined under section 120 A and not mere “conspiracy”). Apart from this, abetment is defined under Section 107 of IPC. 14. However, the explanatory note (1) makes the position clear. It is stated in the said note that in regard to offences under the Indian Penal Code, the entries in the second and third columns against a section, the number of which is given in the CRRP. No.856/09 9 first column are not intended as the definition of and the punishment prescribed for the offence in the Indian Penal Code, but merely as indication of the substance of the section. Therefore, it is clear that reference made to abetment, conspiracy etc. are only indication of section 120(B) IPC. But, those are not intended as definition of and punishment prescribed for offence under section 120(B) IPC. 15. It is also evident from a reading of section 120(B) IPC read with First Schedule to the Code that offence under Section 120(B) IPC is triable by court by which abetment of offence which is the object of conspiracy is triable. By giving plain meaning to the said words used in column no.3 read with column no.5, it is evident that if a Criminal Conspiracy is hatched to commit a particular offence, the court which can try such offence can try offence under section 120(B) IPC. In this case, the criminal conspiracy is allegedly hatched to commit offence under section 13(2) of PC Act, which is an offence exclusively triable by Special Judge. Hence the court which can try the offence of criminal conspiracy to commit the offence under PC Act is Special Judge. 16. In this context, the argument raised in respect of section 3 and 4 of PC Act is worthy of consideration. Learned CRRP. No.856/09 10 counsel for petitioner strenuously argued that Special Judge can try offence under IPC only, if he is trying any case as stated in Section 4 and 3 of PC Act. Section 3 lays down that 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 offences which are referred to in clause (a) and (b) of Sub Section 1 of Section 3 of PC Act. 17. One of the sets of offences is, any offence punishable under PC Act which is referred to in Section 3(a). Other set of offences referred to in clause (b) is any conspiracy or any attempt to commit any abetment of any of the offence specified in clause (a). In this case, petitioner is alleged to have committed “criminal conspiracy” under Section 120(B) IPC to cause late Varghese Mathew to commit offence under PC Act ie., offence referred to in clause (a) of section 3(1). If the criminal conspiracy under section 120(B) can be treated as any “conspiracy”, on the facts of this case, offence may fall under section 3(1) (a) of PC Act. Special Judge may have power to try the petitioner for offence under section 120(B). 18. However, according to me, offence of “criminal CRRP. No.856/09 11 conspiracy” which is specifically defined in Section 120(A) of IPC cannot be said to be “conspiracy” to commit any offence. Section 120(A) IPC defines “Criminal Conspiracy” and from language of the said provision it is clear that even the word “conspiracy” is not used in the section. The acts to be committed, under section 120(A) are of various nature and word “conspiracy” to commit offencne is not even mentioned in the body of definition. 19. “Criminal conspiracy” is only the name given to the offence under Section 120(A) of IPC which the court may refer to, while framing charge and this fact can be seen from a reading of Section 211 and other provisions in Chapter XVII of the Code. A reading of Section 211 read with section 213 makes it clear that If the law which creates the offence gives it any specific name, the charge shall contain that name only, but in case in which the nature of offence is such that particulars must be mentioned, so as to give notice of the fact of the case, such facts must be stated in the charge. 20. On the facts of this case, it is necessary that particulars are made known to the accused and brought to the notice of the accused to defend himself effectively. At any rate, the mere fact CRRP. No.856/09 12 that expression “conspiracy” is seen referred to in section 3(1)(b), is not sufficient for the court to jump to a conclusion that it come under section 120(B) of IPC. In this context, it is also pertinent to note that as per Section 3(1)(b) not only “conspiracy”, but any attempt to commit any abetment or any offence punishable under PC Act also can be tried by Special Judge. 21. By Section 12 of the PC Act, abetment of certain offence under PC Act is specifically made offence. Section 15 makes punishable, attempt to commit certain offences under PC Act. So also, Section 10 referred to the punishment for abetting certain offence. Therefore, “abetment” and “attempt” to commit offence under PC ACT are specifically made offences under Section 10, 12 and 15. But no where in the Act, conspiracy to commit an offence under PC Act is made punishable. Therefore, conspiracy to commit offence under PC Act is not an offence under PC Act. 22. In such circumstances, going by Section 26 of the Code read with first schedule of the Code, the offence under Section 120(B) IPC allegedly committed by petitioner along with deceased Varghese Mathew is triable by Special Judge, since criminal conspiracy was hatched to commit offence under PC Act. According to me in the light of Section 26 read with first Schedule CRRP. No.856/09 13 of the Code, especially, in the absence of any provision in the P.C Act which is inconsistent with those provisions in the Code, an offence of “criminal conspiracy” defined under Section 120(A) IPC which is punishable under section 120(B) of IPC to commit offence under PC Act is triable by Special Judge and who alone can try an offence falling under PC Act. In the light of the said provision no other court than the Special court can try if two or more persons hatched criminal conspiracy to commit an offence under PC Act. Therefore, if the case diary reveals that petitioner has committed offence under section 120(B) to commit offence under the PC Act, Special judge alone can try the offence. 23. Summing up my discussion, I hold that the petitioner can be tried independently for offence under section 120B IPC in the absence of co-conspirators being tried. He can be tried by Special Judge for offence under section 120B IPC, even in the absence of any trial being held against a public servant who alone can commit offence under PC Act. Since the “criminal conspiracy” is allegedly hatched to commit an offence under PC Act, Special Judge alone has jurisdiction to try the petitioner as a conspirator. At any rate, the Court of Sessions or Magistrate Court will not have jurisdiction to try petitioner for hatching criminal conspiracy CRRP. No.856/09 14 to commit offence under PC Act, since section 26 lays down that only such court as referred to in First Schedule alone can try the particular offence. 24. However, I am satisfied that trial court has not looked into the relevant aspects which are necessary to constitute offence under section 120(B) of IPC. To frame a charge under section 120(B) there must be materials before the court to presume that ingredients of section 120(A) are made out. Particulars of offence also must be available from the case diary which will enable the court to frame charge in accordance with the provisions contained in section 211 and 212 of the Code. “Criminal conspiracy” being offence which may be committed in a particular manner, it is also necessary that the accused must be given notice to the fact regarding the manner in which such offence is committed as required under section 213 of the Code. 25. A contention is raised that “criminal conspiracy” being the offence committed in secrecy the particulars of offence will not be available. I am unable to accept this argument. There are even so many offences which are committed in secrecy. Even murders are committed in secrecy. But, investigating officer investigates into the relevant particulars and submit the report as CRRP. No.856/09 15 to when, where and in which manner the particular offence is committed. So, in the same manner “criminal conspiracy” is also to be investigated into and the investigator has to place the relevant facts before the court. 26. There must be materials in the case diary to indicate the particulars of offence which are referred to in section 212 of the Code. Unless the court knows in what manner the criminal conspiracy is committed, how it is hatched, during which probable period or on which date it was committed, a fair trial cannot be ensured to accused. It is clear from section 101 of Evidence Act that prosecution has to assert existence of facts which will constitute the alleged offence and also prove the same. 27. Therefore, the argument that criminal conspiracy is committed in secrecy is not an answer to omission to state particulars of the offence in the charge, as required under section 212 of the Code. To frame charge, materials before the court must reveal necessary details. It is only if those details are available, the court can prosecute the accused for committing offence under section 120 B IPC. In the absence of any such materials in the case diary, the court cannot frame charge for any offence. CRRP. No.856/09 16 28. The proof and evidence comes only subsequently. It will be unjust and improper to frame charge, without any materials on record and then waiting for the materials to come, to convict a person. The court must at least understand before the trial commences as to what are the allegations made against a particular person. The court must identify the act or omission committed by accused which constitutes the offence and then confirm that said act or omission constitute the offence alleged against him. 29. Learned public prosecutor pointed out in this context that revision petitioner has not challenged the order by which he was refused to be discharged by Special Judge though petition for discharge was dismissed. Therefore, the issue cannot be reopened, since it has become final. 30. A charge can be framed against a person, only in accordance with the provisions contained in chapter XVII of the Code. A reading of section 211 to section 213 makes it abundantly clear that court must know that whether there are materials to constitute ingredients of offence. Those must be stated in the charge and in cases in which the manner in which offence is committed is to be stated in the charge, said facts are CRRP. No.856/09 17 also to be stated in accordance with section 213 of the Code. 31. A look at section 212 shows a particulars of offence such as time and place also has to be mentioned. These are inevitable facts and provisions contained in section 212 are mandatory. Therefore, in cases in which the case diary does not reveal the particulars of offence, the charge cannot be framed in accordance with Chapter XVII. It is not uncommon that charge framed by court is quashed provided that charge does not disclose the ingredients of offence and in cases in which charge is quashed, accused cannot be proceeded against also. 32. I am satisfied that the trial will be an abuse of process of court and it will only be a farce, if on the basis of a charge of the nature framed int his case, accused is proceeded against. It will only be a mere waste of time to conduct a trial, without even knowing when and where the alleged overt acts were committed by him. 33. Therefore, to secure ends of justice and to prevent abuse of process of court, the charge is to be quashed and I do so. Nothing limits inherent powers of the court to do it. The trial court shall look into the materials before court and find out whether the charge can be framed against the