Case: State through CBI New Delhi Vs. Jitender Kumar Singh

6. We may first deal with the facts in Criminal Appeal No. 943 of 2008. The CBI, New Delhi registered a case No. RCSIG 2000/E0001 on 16.5.2000 against one P. K. Samal (A-1), Chief Manager SBI, Jaipur Road, J. K. Singh (A-2), Director M/s Mideast Integrated Steels Ltd. (MISL), New Delhi, Rita Singh (A-3), Director M/s MISL, Deepak Singh (A-4) and Proprietor Kesoram Refractory, New Delhi, under Section 120B read with Sections 420, 467, 471 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act and substantive offences under Sections 420, 467, 468 and 471 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act alleging that A-1, during 1996-97, was a party to a criminal conspiracy with A-2, A-3, A-4 and others with the object of cheating IDBI, Mumbai and in pursuance thereof, A-1 abused his official position to cause undue pecuniary advantage to the accused persons A-2 and A-3 and corresponding loss to IDBI, to the tune of Rs.3,52,63,550/- by negotiating forged /fictitious invoices purportedly of M/s. Kesoram Refractories, a B.K. Birla Group Company, Calcutta, against L.Cs opened by SBI, Jaipur Road.7. CBI, after completing the investigation, filed charge-sheet on 1.11.2001 before the Special Judge, New Delhi and the Special Judge, on 25.3.2003, after hearing the prosecution as well as the defence counsel, framed charges against the accused persons under Section 120B read with Sections 467, 471 and 420 IPC and also under Sections 13(1)(d) and 13(2) of the PC Act and substantive offences against the accused persons under Sections 420, 467, 471 IPC and also substantive offences under Sections 13(1)(d) and 13(2) of the 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 necessary, it may add, alter or amend the charges and proceed in accordance with law.9. CBI, however, filed objection to the above application before the Special Judge on 20.5.2004. A-2, on 12.7.2005, filed Criminal Revision No. 535 of 2005 before the High Court for calling of the case pending before the Special Judge, so as to consider the propriety of not passing any order on the application for dropping the charges, despite the directions issued by the High Court. He also prayed for setting aside the charges in view of the death of the sole public servant. CBI questioned the maintainability of the revision and also pointed out that there is no statutory provision vitiating the jurisdiction of the Special Judge on death of the public servant. The High Court, however, placing reliance on its earlier judgement in Kartongen Kemi Ochforvaltning AB v. State through CBI (2004) 1 JCC 218 (Bofors case) held that on the death of a public servant, the offences under the PC Act cannot be proceeded with and directed to modify and alter and/or amend the charges in view of the death of A-1, the legality of which is under challenge in Criminal Appeal No. 943 of 2008.10. We may now examine the facts in Criminal Appeal No. 161 of 2011. CBI (Banks Securities & Fraud Cell), Mumbai registered an FIR on 2.7.1996 which discloses that accused no. 1, the then Chairman and Managing Director of the Bank of Maharashtra, Pune, who was working as Deputy General Manager of Bank of Maharashtra along with accused nos. 9 and 10, the employees of the Bank of Maharashtra, entered into a criminal conspiracy with an intent to cheat the bank, with the appellant (accused no. 2) and accused Nos. 3 and 5, who were working as the Managing Director, General Manager of M/s Orson Electronics Limited respectively. It was also alleged in the FIR that, during 1986-88, A-2 and other accused persons entered into a criminal conspiracy with the officers of the Bank of Maharashtra and, in pursuance to the criminal conspiracy, obtained huge credit facilities to the tune of Rs.20 crore in favour of M/s Orson Electronics Limited and M/s Nihon Electronics Limited, of which A-2 was the Managing Director/Director, knowing very well that both the companies were having very low capital and were new. It was also alleged in the FIR that those funds were not utilized for the purpose for which the same 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 Rs.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 IPC 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 the trial for offences under IPC, as the offence under the PC Act was not attracted due to the death of the public servant. It was pointed out that, in the charge-sheet, two public servants were joined as accused persons, but only one of them was alive when the charge-sheet was filed. Further, it was stated that when the charges were sought to be framed, no public servant was alive, hence, no charges under the PC Act could be framed. In the absence of any offence under the PC Act, the Special Judge could not have tried the offences levelled against the accused persons under the IPC. The application was, however, opposed by CBI stating that even though the sole public servant had died, the offence levelled against the accused persons could be tried by the Special Judge.13. The Special Judge, after hearing the parties, passed the followingOn going through the above ratios, it can be said that the existence of public servant for facing trial before the Special Court is must and in his absence, private person cannot be tried by Special Court. In present case, the sole public servant died during the pendency of this case. The charge is not framed. The accused Nos. 2 to 8 are private persons facing trial for the offences punishable under Section 409 r/w 120-B of IPC. The said offences are triable by the Court of Chief Metropolitan Magistrate. Therefore, the case is required to be sent to Court of Chief Metropolitan Magistrate for trial as per the law. With this, I pass the following order:-ORDERMisc. Application (Exh. 18) is allowed.Registrar (S) is directed to send case papers of Spl. Case No.88 of 2001 to Chief Metropolitan Magistrate for trial of accused according to law within period of four weeks from the date of this order.Misc. Application (Exh.18) stands disposed of.Sd/- 5.2.09(S.P. Tavade)Special Judge for CBI CasesGreater Mumbai.CBI, aggrieved by the said order, preferred Criminal Revision Application No. 389/2009 before the Bombay High Court. The High Court took the view that the jurisdiction conferred on the Special Judge is not divested on the death of an accused. The High Court held that, upon death, the case against that public servant alone abates and the rest of them can be proceeded against by the Special Judge, since the Court, once vested with the 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.

Reasoning:
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-PC offences, depending upon the facts of the case.29. We, therefore, make it clear that it is not the law that only along with the junction of a public servant in array of parties, the Special Judge can proceed against private persons who have committed offences punishable under the PC Act.In other words, an accused person, either a public servant or non-public servant, who has been charged for an offence under Section 3(1) of the PC Act, could also be charged for an offence under IPC, in the event of which, the Special Judge has got the jurisdiction to try such offences against the public servant as well as against a non-public servant. The legal position is also settled by the Judgment of this Court in Vivek Gupta v. CBI and another (2003) 8 SCC 628 , wherein this Court held that a public servant who is charged of an offence under the provisions of the PC Act may also be charged by the Special Judge at the same trial of any offence under IPC if the same is committed in a manner contemplated under Section 220 of the Code. This Court also held, even if a non-public servant, though charged only of offences under Section 420 and Section 120B read with Section 420 IPC, he could also be tried by the Special Judge with the aid of sub-section (3) of Section 4 of the PC Act. We fully endorse that view.35. We are, however, in Criminal Appeal No.161 of 2011, concerned with a situation where no charge has been framed against the public servant, while he was alive, under Section 3(1) nor any charge was framed against a private person for any offence under Section 3(1) of the PC Act. The Special Judge, therefore, had no occasion tounder Section 3(1) of the PC Act, either against a public servant or a private person, so as to try any offence other than an offence specified in Section 3, meaning thereby, non-PC offences against private person, like the appellant.36. The Special Judge appointed under Section 3(1) could exercise the powers under sub-section (3) to Section 4 to try non-PC offence. Therefore, trying a case by a Special Judge under Section 3(1) is a sine-qua-non for exercising jurisdiction by the Special Judge for trying any offence, other than an offence specified in Section 3.under Section 3(1) is, therefore, a jurisdictional fact for the Special Judge to exercise powers to try any offence other than an offence specified in Section 3.37. Exclusion of the jurisdiction of ordinary Criminal Court, so far as offences under the PC Act are concerned, has been explicitly expressed under Section 4(1) of the PC Act, which does not find a place in respect of non-PC offences in sub-section (3) of Section 4 of the PC Act. Further, it is not obligatory on the part of a Special Judge to try non-PC offences. The expressiongives 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.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 that, the Special Judge, in the instant case, has also exercised his powers under sub-section (3) of Section 4 of the PC Act and hence cannot be divested with the jurisdiction to proceed against the non-public servant, even if the sole public servant dies after framing of the charges. On death, the charge against the public servant alone abates and since the special Judge has already exercised his jurisdiction under sub-section (3) of Section 4 of the PC Act, that jurisdiction cannot be divested due to the death of the sole public servant.43. We can visualize a situation where a public servant dies at the fag end of the trial, by that time, several witnesses might have been examined and to hold that the entire trial would be vitiated due to death of a sole public servant would defeat the entire object and purpose of the PC Act, which is enacted for effective combating of corruption and to expedite cases related to corruption and bribery. The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to-day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act. Consequently, once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.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 120B, 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 whenrelating 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