TaxTMI 
TaxTMI 
2014 (2) TMI 1401
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.... 13(2) read with Section 13(1)(b) falling under Section 3(1) of the PC Act and against private persons for offences under Sections 120-B, 420, 467, 468, 471 Indian Penal Code can go ahead with the trial of the case against the private persons for non-PC offences, even after the death of the sole public servant. In other words, the question is whether, on the death of the sole public servant, the Special Judge will cease to have jurisdiction to continue with the trial against the private persons for non-PC offences. Further question raised is that, assuming that the Special Judge has jurisdiction under Sub-section (3) of Section 4 of the PC Act to proceed against the private persons, is the Special Judge duty bound to try any non-PC offence, other than the offences specified under Section 3 of the PC Act against the accused persons charged at the same trial. 3. In Criminal Appeal No. 161 of 2011, we are concerned with the question as to whether the Special Judge has jurisdiction under Section 4(3) of the PC Act to try non-PC offences against private persons when no charges have been framed against public servants for trying a case for offences under Section 3(1) of the PC Act, sinc....
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....re 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 Indian Penal Code 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 Indian Penal Code 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 d....
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....ith 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 Indian Penal Code and Section 5(2) read with Section 5(1)(b) of the Prevention of Corruption Act, 1947, corresponding to Section 13(2) read....
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.... 14. 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. 15. Shri P.P. Malhotra, learned Additional Solicitor General appearing for CBI in Criminal Appeal No. 943 of 2008, referred to Sections 3(1) and 4(1) of the PC Act and submitted that irrespective of whether the offence mentioned in Section 3(1) was committed by a public servant or a private person, individually or jointly, trial could be conducted only by the Special Judge who is conferred with the jurisdiction by the Central Government or the....
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....cused persons. Learned senior counsel submitted, assuming that the Special Judge has jurisdiction under Section 4(3) of the PC Act, still the Special Judge has the discretion to decide as to whether he should try any offence, other than the offence specified in Section 3 of the PC Act. It was pointed out that the jurisdiction of the Special Judge to try offences specified under Sections 3(a) and (b) is not only in respect of offences punishable under the PC Act, but also non-PC offences in view of Section 4(3) of the PC Act, which is only an enabling provision. Further, it was also pointed out that when exclusive jurisdiction is conferred on the Special Judge, while trying offences under Section 3(1)(a) and (b) against public servant as well as the private persons, the discretion is also conferred on the Special Judge under Section 4(3) to try non-PC offences as well against private persons. On the basis of the above legal premises, learned senior counsel pointed out that, in the instant case, since no charges have been framed against the public servant under Section 3(1) of the PC Act and that the public servant is no more, the discretion exercised by the Special Judge under Secti....
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....l 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. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis. Section 5 of the PC Act deals with the procedure and powers of Special Judge. The same also has some relevance and is extracted below for an easy reference: 5. Procedure and powers of special Judge.-(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant case by Magistrates. (2) A special Judge may, with a ....
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....following offences would come within the scope of Section 3(1) of the PC Act: (1) Any offence punishable under the PC Act. (2) Any conspiracy to commit any offence punishable under the PC Act. (3) Any attempt to commit any offence punishable under the PC Act. (4) Any abetment of any offence punishable under the PC Act. 23. Let us examine what are the offences specified in Clause (a) of Section 3(1) of the PC Act, for which reference has to be made to Chapter III of the PC Act. 24. Section 7 of the PC Act refers to offences dealing with public servant taking gratification, other than the legal remuneration in respect of an official act. Section 10 deals with punishment for abetment by a public servant of offences defined in Sections 8 and 9. Section 11 of the PC Act refers to an offence of a public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant. Offences under Sections 7, 10 and 11 can be committed only by the public servant, though an offence under Section 7 can also be committed by a person expected to be a public servant. An offence under Section 7 or 11 could also be abetted by a....
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....y a public servant or by a private person or by a combination of the two. It is thus clear that an offence under the PC Act can be committed by either a public servant or a private person or a combination of both and in view of the mandate of Section 4(1) of the PC Act, read with Section 3(1) thereof, such offences can be tried only by a Special Judge. For example: * A private person offering a bribe to a public servant commits an offence under Section 12 of Act. This offence can be tried only by the Special Judge, notwithstanding the fact that only a private person is the accused in the case and that there is no public servant named as an accused in that case. * A private person can be the only accused person in an offence under Section 8 or Section 9 of the said Act. And it is not necessary that a public servant should also be specifically named as an accused in the same case. Notwithstanding the fact that a private person is the only accused in an offence under Section 8 or Section 9, it can be tried only by a Special Judge. 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 A....
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....rred on the Special Judge. A Special Judge, while exercising, exclusive jurisdiction, that is, when trying any case relating to offences under Sections 3(1)(a) and (b) of the PC Act, may also try any offence other than the offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 be charged at the same trial. An accused, in a given case, may be charged under the Code of Criminal Procedure on an offence being committed under the Indian Penal Code and the offence specified in Section 3 of the PC Act. Criminal cases that can be tried by a Special Judge are under the PC Act and also for the charges under Indian Penal Code or any other legislation. Conspiracy to commit any offence either under the PC Act or under the Indian Penal Code is a separate offence, has to be separately charged and tried. For example, the conspiracy to commit offence punishable under the PC Act itself is an offence to be tried only by a Special Judge. In Ajay Aggarwal v. Union of India (1993) 3 SCC 609, the Court held as follows: ...Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the consp....
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....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 expression "may also try" gives 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 juris....
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....heet on 1.11.2001 for the offences against A-1, who is a public servant, as well as against non-public servants. Learned Special Judge had, on 25.3.2003, framed the charges against the accused persons under Section 120B read Sections with 467, 471 and 420 Indian Penal Code and also under Sections 13(1)(d) and 13(2) of the PC Act and substantive offences under Sections 420, 467 and 471 Indian Penal Code and also substantive offences under Sections 13(1)(d) and 13(2) of the PC Act against the public servants. Therefore, charges have been framed against the public servants as well as non-public servants after hearing the prosecution and defence counsel, by the special Judge on 25.3.2003 in respect of PC offences as well as non-PC offences. As already indicated, under Sub-section (3) of Section 4, when trying any case, a Special Judge may also try any offence other than the offence specified in Section 3 and be charged in the same trial. The Special Judge, in the instant case, has framed charges against the public servant as well as against the non-public servant for offences punishable under Section 3(1) of PC Act as well as for the offences punishable under Section 120B read with Sec....