Death Of Main Accused Doesn’t Result In Abatement Of Trial: Bombay HC [Read Judgment]

In a significant judgment, the Bombay High Court has held in a corruption case that death of the main accused does not mean abatement of the trial.

Justice PD Naik held the same while hearing a suo motu revision application which was instituted after Additional Chief Metropolitan Magistrate, Esplanade Court, wrote a letter making a reference to the high court under Section 395(2) of the Criminal Procedure Code.

Case Background

In the said letter, it was stated that the Special CBI Judge at Sessions court passed an order in 2013 forwarding the case in question to the Chief Metropolitan Magistrate (CMM) who then assigned it to an Additional Chief Metropolitan Magistrate (ACMM).

In the said case, a charge sheet was filed by the CBI ACB, Mumbai 18 years ago in 2000. In the charge sheet, the main accused Dilip Rao Kamble, a postman (public servant) was charged for offences punishable under Sections 120­B, 420, 409, 411, 467, 471 of Indian Penal Code and under Section 13(2) r/w. Section 13(1)(d) of the Prevention of Corruption Act, 1988 along with four other accused.

Before the charges were framed, the main accused died. One of the accused is still absconding, hence charges were framed against the three remaining accused.

It was the case of the prosecution that the main accused, who was a postman at Kopar Khairane post office, was entrusted with an article containing 4,500 shares of M/s Globle Tele Systems Limited by Postal Assistant of that office to the said Company, but he dishonestly handed over the same article to accused No.2 for wrongful gain for himself and others.

Thereafter, bogus share transfer deeds were prepared by forging signatures and the same was used to transfer some 3,500 shares. These shares were later sold in the market.

Submissions and Judgment

Appearing on behalf of the accused in the case, Prerak Chaudhary submitted that since the main accused had died, the special court had no jurisdiction to hear the case and should have sent it to a regular court as the case against main accused Kamble, who was the sole public servant, was abated before framing of charges.

Whereas amicus curiae Rebecca Gonsalves relied on various judgments of the Supreme Court in order to substantiate that the Special CBI Court ought not to have relegated the matter to the Chief Metropolitan Magistrate and continued with the case.

After examining submissions from both parties and judgments of the apex court, Justice Naik noted that once charges were framed, statements of witnesses were recorded and judgment was to be delivered, the special judge’s order transferring the said case to a CMM was unwarranted.

The court accepted the amicus curiae’s reliance on a recent judgment of the Supreme Court in State of Tamil Nadu Vs. Nirmala etc., wherein it was observed that death of the main accused does not result in abatement of the trial.

Thus, the reference was answered in the affirmative and the Special CBI Judge has been directed to proceed with the case and the ACMM will return the record of the case to the Special CBI Court.