Death Of The Sole Public Servant Does Not Enable The Special Judge Under The P.C. Act To Transmit The Case To The Regular Criminal Court For Trial Of The Surviving Non-Public Servants

FACTS LEADING TO THE APPEALS BEFORE THE SUPREME COURT

2 (A). The 2 Judge Bench in that case was considering a couple of criminal appeals, one arising from the High Court of Delhi and the other from the High Court of Bombay. In both those cases public servants together with non-public servants were charge sheeted by the Central Bureau of Investigation ("CBI" for short) for offences committed prior to 26-07-2018, i.e. before the coming into force of the Prevention of Corruption (Amendment) Act, 16 of 2018. In the case arising out of the High Court of Delhi, the appeal before the Supreme Court was numbered as Criminal Appeal No. 943/2008 and the appeal arising out of the case from the High Court of Bombay was numbered as Criminal Appeal No. 161/2011.

(B). In this article we are concerned only with the appeal which arose from the verdict of the High Court of Bombay. In the charge sheet which was filed on 14-09-2001 before the Special Court, the CBI alleged that A1 (Deputy General Manager of Bank of Maharashtra), the sole public servant, along with A2 to A8 and two others who had died before the charge sheet, had entered into a criminal conspiracy and obtained huge credit facilities to the tune of Rs. 20 crores in favor of M/s Orson Electronics Limited and M/s Nihon Electronics Limited and thereby cheated the Bank of Maharashtra to the tune of Rs. 20.64 crores and thereby committed offences under Section 5 (1) (b) punishable under Section 5 (2) of the Prevention of Corruption Act, 1947 corresponding to Section 13 (1) (d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 (Hereinafter referred to as "The PC Act" for short) read with Sections 120 B, 409 and 420 IPC.

(C). On 18-02-2005 A1, the sole public servant died before the framing of charge by the Special Court.

(D). On 05-02-2009 the Special Judge took the view that since the public servant was liable to face trial before the Special Court along with the non-public servants and also since the sole public servant had already expired even before the framing of charge by the Court, the private persons (non-public servants) alone cannot be tried before the Special Court. The case was, therefore, directed to be sent to the Court of the Chief Metropolitan Magistrate who according to the Special Judge was competent to try the offences.

(E) Aggrieved by the order passed by the Special Judge, the CBI preferred a criminal revision before the High Court of Bombay.

(F) The High Court of Bombay allowed the revision filed by the CBI holding that the jurisdiction conferred on the Special Judge is not divested on the death of the public servant, that the case against the public servant alone had abated and that the rest of the accused persons can be proceeded against by the Special Judge since, once the Court is vested with the jurisdiction to try the offenders, it cannot be divested of the said jurisdiction on the death of the public servant. The order passed by the Special Judge was set aside and the case was remitted to the Special Court for continuing the trial.

(G) Aggrieved by the above decision of the High Court of Bombay, the 2^nd accused in the case preferred Criminal Appeal No. 161/2011 before the Supreme Court of India.

The learned Senior counsel appearing for the appellant argued before the Supreme Court that with the death of the public servant before the framing of charge by the Special Judge, the Special Court ceased to have jurisdiction to try the surviving non-public servants who became liable to be tried before the regular criminal Court, namely, Chief Metropolitan Magistrate, Bombay.

In fact, the learned Senior counsel appearing for the CBI and the learned Senior counsel appointed as Amicus Curiae submitted before the Supreme Court that once jurisdiction is conferred on the Special Judge, it cannot be divested by any subsequent event including the death of the public servant and that even though with the death of the public servant the charge against him would abate, the Special Judge would continue to have jurisdiction to try the case as against the surviving non-public servants.

(H) The Apex Court was, however, inclined to accept the contentions urged on behalf of the appellant. The words "when tying any case" occurring in Section 4 (3) of the P.C. Act was interpreted to mean that for trying any offence other than an offence specified in Section 3 of the P.C. Act, the Special Judge must have commenced the "trial" of the case and the "trial", as judicially settled in Ratilal Bhanji Mithani v. State of Maharashtra (1979) 2 SCC 179 = AIR 1979 SC 94, begins only when the charge is framed by the Court. It was accordingly held that when the trial of the case had not started by framing charge against the deceased public servant, the Special Court would have no jurisdiction to try the surviving non-public servants for the offences other than those covered by the P.C. Act. On the view that "trying of a case" by framing charge is a sine qua non for exercising powers under Section 4 (3) of the P.C. Act, and since the said jurisdictional fact was absent, the Apex Court set aside the order passed by the High Court of Bombay and restored the order passed by the Special Judge.

CAN THE VIEW IN JITENDER KUMAR SINGH'S CASE STAND LEGAL SCRUTINY ?

 I am afraid that I find myself unable to agree with the above conclusion reached by the Apex Court. Before delving deeper into the matter it may be relevant to note the provisions of law having a bearing on the matter. Sections 3 and 4 of the P.C. Act to the extent they are relevant, are extracted hereinbelow:-

"3. Power to appoint Special Judges

(1) The Central Government or the State 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 the following offences, namely:--

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).

(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).

4. Cases triable by Special Judges

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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.

(2) Every offence specified 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 the 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.

(3) 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 (2 of 1974), be charged at the same trial)".

The Apex Court in the judgment in question was considering the offences under the P.C. Act, 1988 prior to 26-07-2018 i.e. the date on which the Prevention of Corruption (Amendment) Act 16 of 2018 came into force. The statements in paragraphs 26 and 27 of Jitender Kumar Singh enumerating the offences which could be committed by a public servant and a non-public servant, may not be fully correct. Prior to 26-07-2018 the offences which could be committed by a public servant were those covered by Sections 7, 8, 9, 10, 11, 13 (1) (a), 13 (1) (b), 13 (1) (c), 13 (1) (d), 13 (1) (e), 14 (a) and 15. Similarly, the offences which a non-public servant could commit prior to 26-07-2018 are those covered by Sections 8, 9, 12, 13 (1) (a), 14 (1) (a), 14 (1) (b), 15, abetment of an offence under Section 13 (1) (c) and Section 13 (1) (d) falling under Section 107 IPC and abetment of an offence under Section 13 (1) (e) falling under Section 109 IPC.

The learned Judges after referring to the various offences which could be committed by a public servant and non-public servant, rightly came to the following conclusion in para 31:-

"A conjoint reading of Section 3 (1) along with Section 4 (1) and (2) would make it amply clear that only the Special Judge has got the jurisdiction to try the offences specified in sub-section (1) of Section 3 committed by a public servant or a non-public servant, alone or jointly".

A conspiracy to commit any of the offences under the P.C. Act and covered by Section 3 (1) (b) is also triable only by a Special Judge by virtue of the mandate under Section 4 (1) of the P.C. Act. This means that if the case of the prosecution is that a non-public servant entered into a criminal conspiracy for committing any of the offences under the P.C. Act committed by a public servant or a non-public servant, the said criminal conspiracy also can be tried only by the Special Judge in view of Section 3 (1) (b) read with Section 4 (1) of the P.C. Act. In the Bombay case before the Supreme Court in Jitender Kumar Singh, the offence of criminal conspiracy punishable under Section 120 B of IPC was alleged against the accused persons. Hence, even if the public servant died, the non-public servant also could be tried only by the Special Court, whichever may be the stage at which the public servant died. Section 4 (3) of the P.C. Act deals with offences other than those covered by Section 3 (1) of the P.C. Act. Even if in a given case, the prosecution alleges that the non-public servants committed offences under the IPC independent of the public servant and not in pursuance of any conspiracy covered by Section 3 (1) (b) of P.C. Act, if those offences were committed in the course of the same transaction they are liable to be tried together in view of clause (d) of Section 223 Cr.P.C. which provision is kept intact by the P.C. Act. (vide para 15 of Vivek Gupta v. Central Bureau of Investigation (2003) 8 SCC 628; paras 17, 19,24,25, 29 and 30 of Essar Technologies Ltd. V. Delhi High Court (2013) 8 SCC 1 = AIR 2013 SC 2300; para 8 of HCL Infosystem Ltd. (M/s) and Another v. CBI (2016) 9 SCC 251 = AIR 2016 SC 3705 = 2016 KHC 6541 (SC).

In my humble opinion, the Apex Court was not justified in holding that for trying the non-public servants for the other offences, the trial of the public servant before the Special Court should have been commenced by framing a charge against him. The expression used in Section 4 (3) is "when trying any case" and not "when trying any "offence". First of all, there is no definition of the expression "trial" in the Cr.P.C. We have only the Judge-made law as to when trial starts in a warrant or sessions case. I had occasion to articulate on this aspect by opining that the view that trial starts when the charge is framed may not be strictly correct. Even if the said view is beyond any criticism, the expression "when trying any case" occurring in Section 4 (3) of the P.C. Act means only the ordinary connotation of the said expression. The interpretation placed by the Apex Court in the verdict in question if accepted, then in cases where the public servant dies before the framing of charge by the Court, the non-public servant cannot be tried by the Special Judge even by having recourse to Section 223 Cr.P.C. But, if the public servant were to die after the framing of charge by the Court, then, according to the defense, the non-public servant can be tried along with the public servant. This, I am afraid, does not appear to be the true intendment behind Section 4 (3) of P.C. Act, 1988 which is really a provision enabling the Special Judge himself to try the non-P.C. Act offences, instead of relegating the surviving accused to the regular criminal Court for trial.

It is pertinent to note that in a subsequent decision, another Bench of the Supreme Court in HCL Infosystem Ltd. (M/s) v. Central Bureau of Investigation (2016) 9 SCC 281 = AIR 2016 SC 3705, was not inclined to follow Jitender Kumar Singh despite it was cited before the Bench. The Apex Court in HCL Infosystem Ltd., inter alia, noted with approval the following passage from the impugned order of the Allahabad High Court:-

"The offences in relation to a non-government servant which connect him with the conspiracy of misappropriation of public funds with the aid of a Government servant, would not vanish merely because the Government servant has died. This would clearly depend upon the evidence and the facts of the case that would ultimately determine the framing of the charge and its consequential trial. Not only this, the Court has ample powers to add charges even during the course of the trial".

In HCL Infosystem Ltd. also the sole Government servant had died before the framing of charge by the Special Judge. Thus, Jitender Kumar Singh which was not followed in HCL Infosystem Ltd., cannot be said to have laid down the law correctly. Since the offence punishable under Section 120 B of IPC was also alleged, the surviving non-public servants could be tried only by the Special Judge in view of Section 3 (1) (b) read with Section 4 (1) of P.C. Act.

There is yet another facet of the problem arising out of Jitender Kumar Singh. If the Special Court were to transmit the case to the regular criminal Court for trying the surviving non-public servants for the alleged conspiracy with the deceased public servant and for the non-P.C.Act offences, the regular criminal Court cannot take cognizance of those offences on the basis of the charge sheet filed by the CBI or by the State Vigilance Police. An offence punishable under the P.C. Act can be investigated only by an officer falling under Section 17 of the P.C. Act. In the State of Kerala as per G.O.(P) No. 65/92/Vig. Dated 12-05-1992, the Vigilance Police alone can investigate an offence falling under the P.C. Act. Likewise, in the case of employees of the Central Government, the CBI alone can investigate an offence committed by them under the provisions of the P.C. Act. Under the first proviso to Section 17 of the P.C.Act, the State government is given the power to authorize a police officer not below the rank of an Inspector of Police to investigate an offence punishable under the P.C.Act without the order of a Metropolitan Magistrate or a Magistrate of the First Class, as the case may be. In the State of Kerala, the State Government, as per Notification No.12094/C1/88/Vig. published as S.R.O No.790-93 dated 02-03-1993, has authorized police officers not below the rank of an Inspector of Police to investigate any offence punishable under the P.C.Act without the order of a Magistrate of the First Class within the area of jurisdiction of the particular police station to which the police officer is attached. A Special Judge exercising jurisdiction under the P.C. Act can take cognizance of an offence punishable under the P.C. Act only on the basis of a charge sheet submitted either by the State Vigilance Police or by the CBI or by the Inspector of Police authorized under the first proviso to Section 17 of the P.C.Act. The State Vigilance Police or the CBI or the officer authorized, after the conclusion of investigation, can file their final report under Section 173 (2) Cr.P.C. only before the Special Judge in a case involving the commission of an offence punishable under the P.C.Act, i.e., an offence falling under Section 3 (1) or Section 3 (1) read with Section 4(3) of the P.C. Act. Those Investigating Agencies cannot submit their final report involving the aforesaid offences before the regular criminal Courts and the regular criminal Courts cannot take cognizance of the aforesaid offences by acting on the final report, if any, filed by mistake by the State Vigilance or by the CBI or by the authorized Inspector of Police. Since the local jurisdiction of every Magistrate including the Chief Judicial Magistrate is defined with the approval of the respective High Courts, those Magistrates can exercise their powers only within such local limits. (vide Anil Kumar and Others v. Sindhu and Another 2009 (2) KLT 359 = 2009 (2) KHC 592 = ILR 2009 (2) Kerala 385). Consequently, the CJM can take cognizance and try an offence only on the strength of the charge sheet submitted before him by the Station House Officer of any of the Police Stations within the local limits or the CJM, unless of course, the High Court concerned passes orders under Section 407 Cr.P.C. (Incidently, the decision of the Apex Court in Trisuns Chemical Industries v. Rajesh Agarwal (1999) 8 SCC 686 = AIR 1999 SC 3499 to the effect that the power of the Magistrate of the first class to take cognizance of an offence is not impaired by territorial restrictions, being contrary to the apparent tenor of Section 170 and 173 (2) Cr.P.C. as per which the accused and the Police report are to be forwarded only to the Magistrate empowered to take cognizance and try the accused or commit him for trial, may require reconsideration by a larger Bench.) For this reason also, it is neither permissible for the Special Judge to transmit the case involving the surviving non-public servants to the regular criminal Court, nor is it permissible for the regular criminal Court to take cognizance of the offences falling under Section 3(1) or Section 3(1) read with Section 4(3) of the P.C.Act on the charge sheet filed by the State Vigilance Police or by the CBI or by the authorized Inspector of Police.

There can, however, be a situation in which, after investigation into a case alleging commission of offences falling under Section 3(1) or Section 3(1) read with Section 4(3) of the P.C.Act, what is actually revealed is only non-P.C.Act offences. Then that may be a case where the offence is not triable by the Special Court. In such a contingency, a question may arise whether the investigating agency (State Vigilance, or the CBI or the authorized Inspector of Police) can file the charge sheet before the appropriate Magistrate within whose local limits the non-P.C.Act offences were committed. I see no reason why the investigating agency cannot submit the charge sheet before the local Magistrate and why the local Magistrate cannot take cognizance of the offences and try the same or commit the same for trial to the appropriate Sessions Court. But, I hasten to emphasize here that such a course is open to the investigating agency only in a case where, after the conclusion of investigation, an offence either under Section 3(1) or under Section 3(1) read with Section 4(3) of the P.C.Act, is not disclosed. This aspect of the matter was mentioned by me only for the sake of completion and such a contingency does not arise for consideration here.

My respectful conclusion, therefore, is that Jitender Kumar Singh's case has not been decided correctly and if the same is allowed to hold the field, the same may set a bad precedent for Benches of coordinate strength in the Supreme Court itself and for the lower Courts in the country to follow. So far as the Kerala High Court is concerned it has already done the mischief. In cases of the nature covered by Section 3 (1) or Section 3(1) read with Section 4(3) of the P.C. Act, it is not permissible for the Special Judge to transmit the case to the regular criminal Court for trial in contingencies where the sole public servant dies either before or after the framing of charge by the Special Judge.

Justice V. Ramkumar is a Former Judge at  High Court of Kerala.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]