Puri Vs. Central Bureau of Investigation  Insc 487 (27 April 2007)
S.B. Sinha & Markandey Katju
CRIMINAL APPEAL NO. 635 OF 2007 [Arising out of SLP (Crl.) No. 5932 of 2006]
TRANSFER PETITION (CRL.) NO. 351 OF 2006 S.B. SINHA, J :
What would be the territorial jurisdiction of a Special Court within the
meaning of the provisions of the Prevention of Corruption Act, 1988 (for short
"the 1988 Act") is the question involved in this appeal which arises
out of a judgment and order dated 1.09.2006 passed by the High Court of Delhi
in Crl. Rev. Petition No. 556 of 2006.
Appellant was an officer working in the Customs Department.
Central Bureau of Investigation registered a First Information Report
against him purported to be for commission of an offence under Section 13(2)
read with Section 13(1)(e) of the 1988 Act, viz., acquiring of assets
disproportionate to the appellant's known sources of income for the check
period of 1.06.1988 to 22.02.2002. Contention of the appellant is that, as he
had never been posted in Delhi during the aforementioned period, the Delhi
Court has no jurisdiction to his case. The learned Special Judge as also the
High Court has rejected the said contention of the appellant.
Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf of the
appellant, would submit that the ingredients of an offence involving Section
13(1)(e) of the 1988 Act vis-`-vis the other provisions thereof read with the
relevant provisions of the Code of Criminal Procedure, viz., Sections 177 and
178 thereof, would clearly go to show that the situs of the properties which
are said to have been acquired out of the income of the employee would not
confer jurisdiction upon the court.
It was submitted that the only fact relevant therefor would be as to where
the public servant concerned committed acts of misconduct or abused his
official position, which would be the places where he had held his offices. It
was urged that the principal place of commission of offence will have to be judged
having regard to the area where the offence has been said to have been
completed. Reliance in this behalf has been placed on M.
Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad [(1992) 4
SCC 45] and CBI, ADH, Patna v. Braj Bhushan Prasad and Others [(2001) 9 SCC
Drawing our attention to a judgment of Punjab and Haryana High Court
rendered by M.M. Punchhi, J. (as the learned Chief Justice then was) in Kamal
Dev v. State of Haryana [1986 (3) Crimes 305], it was submitted that the term
"possession" would refer to the source and not the situs of the
Mr. A. Sharan, learned Additional Solicitor General appearing on behalf of
the respondent, on the other hand, would submit that as by reason of
Sub-section (3) of Section 5 of the 1988 Act, the provisions of the Code of
Criminal Procedure have been made applicable in relation to the proceedings
initiated against the 1988 Act, in a case where the offence was committed at
more than one place, any of the courts concerned will have jurisdiction to try
the offence. Reliance in this behalf has been placed on P.
Nallammal and Another v. State Represented by Inspector of Police [(1999) 6
Before embarking on the questions involved herein, we may notice the
relevant provisions of the Code of Criminal Procedure and the 1988 Act.
Sections 177 and 178 of the Code of Criminal Procedure read as under:
"177 - Ordinary place of inquiry and trial Every offence shall
ordinarily be inquired into and tried by a Court within whose local jurisdiction
it was committed.
178 - Place of inquiry or trial (a) When it is uncertain in which of several
local areas an offence was committed, or (b) where an offence is committed
partly in one local area and partly in another, or (c) where an offence is a
continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be
inquired into or tried by a Court having jurisdiction over any of such local
The relevant provisions of the 1988 Act read as under:
"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 byspecial 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) *** (4) *** 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) *** (3) Save as provided in sub-section (1) or sub- section (2), the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far
as they are not inconsistent with this Act, apply to the proceedings before a
special Judge; and for purposes of the said provisions, the Court of the
special Judge shall be deemed to be a Court of Session and the person
conducting a prosecution before a special Judge shall be deemed to be a public
(4) *** (5) *** (6) *** *** *** *** 13 - Criminal, misconduct by a public
servant (1) A public servant is said to commit the offence of criminal
misconduct, (a) *** (b) *** (c) if he dishonestly or fraudulently
misappropriates or otherwise converts for his own use any property entrusted to
him or under his control as a public servant or allows any other person to do
so; or (d) if he, (i) by corrupt or illegal means, obtains for himself or for
any other person any valuable thing or pecuniary advantage; or (ii) by abusing
his position as a public servant, obtains for himself or for any other person
any valuable thing or pecuniary advantage; or (iii) while holding office as a
public servant, obtains for any person any valuable thing or pecuniary
advantage without any public, interest; or (e) if he or any person on his
behalf, is in possession or has, at any time during the period of his office,
been in possession for which the public servant cannot satisfactorily account,
of pecuniary resources or property disproportionate to his known sources of
The 1988 Act is a Special Act. It over-rides the provisions of the general
law, viz., Code of Criminal Procedure. But, then when a matter is not covered
by the 1988 Act, in view of Sub-section (3) of Section 5 of the 1988 Act, the
provisions of the Code of Criminal Procedure shall clearly be applicable.
A distinction exists between a case filed under Sections 13(1)(c) and
13(1)(d) of the 1988 Act, on the one hand, and Section 13(1)(e) thereof, on the
Ingredients of the offence under Section 13(1)(e) of the 1988 Act are:
(i) The accused is a public servant;
(ii) The nature and extent of the pecuniary resources of property found in
(iii) His known sources of income, i.e., known to the prosecution.
(iv) Such resources or properties found in possession of the accused were disproportionate
to his known sources of income.
Once, however, the aforementioned ingredients are established by the
prosecution, the burden of proof would shift on the accused to show that the
prosecution case is not correct. [See M. Krishna Reddy (supra), para 7] One of
the ingredients of offences, therefore, is known sources of income. What is
material therefor is that the criminal misconduct had been committed during the
period he held office and not the places where he had held offices. The fact
that the appellant had bank accounts within the jurisdiction of the Delhi
Courts as also immovable properties is not in dispute. Respondent in the
chargesheet has clearly pointed out that one of his known sources of income was
the rental received by him from his Delhi flat. The same had been given due
credit for the purpose of arriving at a prima facie satisfaction that the
assets possessed of by him are disproportionate to his known source of income.
From a perusal of the chargesheet, it furthermore appears that the appellant
is said to have acquired large properties including several bank accounts. For
the purpose of proving the offence, therefore, on the one hand, known sources
of income must be ascertained vis-`-vis the possession of property or resources
which were disproportionate to the known sources of income of public servant
and the inability of the public servant to account for it, on the other.
Whereas the burden to prove the first part of the offence is on the
prosecution, in the event the same is proved, it would shift to the public
servant concerned. [See P. Nallammal (supra)] It is not a case where the
offence revolves round any conspiracy or abetment to commit an offence to
commit an offence. It is also not a case falling under Clauses (c) and (d) of
Sub-section (1) of Section 13 of the 1988 Act as was the case in Braj Bhushan
Prasad (supra). Appellant is not accused of commission of such an offence. No
other person has been charged with the offence of abetment and conspiracy. The
question of finding out the place where the offence was completed, thus, does
not arise in this case.
Strong reliance has been placed by Mr. Nageshwara Rao on a Single Judge
Bench decision of the Kerala High Court in Banwarilal Jhunjhunwalla and Others
v. Union of India [AIR 1959 Kerala 311] wherein it was observed:
"13. Taking the first offence under Section 5 (2) of the Prevention of
Corruption Act, alleged to have been committed by Thomson, there can be little
doubt that it was committed within the State of Kerala where he passed inferior
jungle-wood as timber of the contract quality and issued false certificates to
that effect. (Of course these statements are as yet no more than assumptions
based on the prosecution case, in accordance with which the question of jurisdiction
has to be determined and it is unnecessary to repeat this caution at every
stage of the discussion).
When Thomson did this, he was undoubtedly abusing his position as a public
servant, and it is a legitimate inference that he thereby obtained for himself
or at least for the contractors, a pecuniary advantage. The act of abusing his
position as a public servant certainly took place within the Kerala State where
the false certificates were issued, and even if the consequence of obtaining a
pecuniary advantage for himself or for the contractors which consequence makes
that act an offence took place elsewhere, under Section 179, Criminal Procedure
Code, the special judge for Kerala would have jurisdiction to try the offence.
That the special judge has jurisdiction to try Thomson for the offence under
Section 5 (2) of the Prevention of Corruption Act is, in fact, not
However, therein the factual matrix was absolutely different. In a case of
this nature, the question of completion of any offence does not arise.
In a case involving Section 13(1)(e) of the 1988 Act, what is necessary is
as to whether keeping in view the period in question, commonly known as check
period, the public servant has acquired wealth which is disproportionate to his
known sources of income. It has nothing to do with individual case of bribery.
It has nothing to do with a series of acts culminated into an offence.
Each Court, where a part of the offence has been committed, would,
therefore, be entitled to try an accused. The 1988 Act does not bar application
of Section 178 of the Code of Criminal Procedure. If application of the
provision of Section 178 of the Code of Criminal Procedure is not barred, the
fact that the appellant has a part of his known source of income at Delhi, in
our opinion, would confer jurisdiction upon the Delhi Courts. It is one thing
to say that only the Special Courts will have jurisdiction to try the offence,
but for the purpose of arriving at a decision as to the Special Judge of which
place shall have the requisite jurisdiction, the situs of the property may or
may not have any relevance. Once the situs of the property is held to have
relevance for the purpose of ascertaining his known source of income and
consequent acquisition of disproportionate assets, in our opinion, the Special
Judge concerned will also have the requisite jurisdiction to try the case. For
the said purpose, purport and object for which the 1988 Act has been enacted
must be taken into consideration. The doctrine of purposive construction
therefor must be taken recourse to.
With respect, Punchhi, J. (as the learned Chief Justice then was) in Kamal
Dev (supra) was not concerned with such a question and in that view of the
matter, the following observations made in paragraph 4 may not have strict
"4. The commission of the offence of criminal misconduct has nexus to
the period of his office. It is so intimately interlinked that it is the place
of office which would determine the place of commission of his misconduct. It
is through his office alone that one can determine his known source of income
and if his property which is presently in his possession or in possession of
someone on his behalf, or has at any time during the period of his office been
in his possession or of someone on his behalf, then it is relatively to be
viewed with the period of his office. In this context, the place of office
assumes importance, for that would determine the jurisdiction in which the
offence of criminal misconduct would be triable. Thus, in the instant case, I
am of the view that it was the Special Judge at Chandigarh who had the
jurisdiction to try the offence against the petitioner."
In any event, as would appear from paragraph 5 of the said judgment itself,
the learned Judge did not intend to determine the said question finally as
ultimately the doctrine of forum conveniens had been taken recourse to for
holding that although more than one Special Judge may have jurisdiction to try
the offence, the Special Judge at Chandigarh would be the appropriate authority
to have the case tried before it in the interest of justice.
For the reasons aforementioned, we, albeit for different reasons, do not
find merit in this appeal which is dismissed accordingly.
TRANSFER PETITION (CRL.) NO. 351 OF 2006 An application for transfer has
been filed wherein one of the principal questions raised was the absence of
territorial jurisdiction of the Special Judge, Delhi.
The matter is pending for a long time before the Delhi Court. Charges have
already been framed. It may be that many of the prosecution witnesses do not
hail from Delhi. It may further be that Accused No. 3 is a resident of Indore
but as the offence is said to have been committed in the year 2002 and
chargesheet has also been submitted in that year, we are of the opinion that
the transfer petition at this stage should not be entertained. It is dismissed