Vivek
Gupta Vs. Central Bureau of Investigation & Anr [2003] Insc 473 (25 September 2003)
N.Santosh
Hegde & B.P. Singh. B.P. Singh, J.
In
this appeal by special leave the core question which arises for consideration
is whether the appellant herein can be charged and tried together with the
other two accused by the Special Judge under the provisions of the Prevention
of Corruption Act, 1988, in view of the fact that the appellant herein has been
charged only under Section 420 I.P.C. and under Section 120-B read with Section
420 I.P.C. while the other two accused have been additionally charged of the
offence under Section 13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as the "Act"). The
appellant contends that the Special Judge under the Prevention of Corruption
Act has no jurisdiction to try the appellant who is not charged of any offence
under the said Act, while the respondent contends to the contrary relying upon
the provisions of the said Act and the Code of Criminal Procedure. The High
Court of Bombay by its impugned judgment and order has answered the question in
the affirmative holding that the appellant can be tried by the Special Judge
under the Prevention of Corruption Act along with the two accused who also
stand charged of offences under the Act.
Before
adverting to the submissions urged at the Bar, we may very briefly notice the
broad facts of the case to appreciate the nature of the allegations made
against the appellant and the other two accused. Accused No.1 Sri G.B. Nande
was at the relevant time the Manager of the Commercial Branch of the State Bank
of India, Fort, Bombay, while accused No.2 Sri J.S. Kelkar
was an Accountant employed in the same branch of the State Bank of India. The appellant herein is accused
No.3 who transacted business with the said branch of the State Bank of India on
behalf of eight companies with which he was associated. There is considerable
controversy as to whether the appellant was a Director of those companies or
whether he was simply representing them as their representative.
This,
however, is not of much consequence in this appeal.
The
case of the prosecution is that the appellant entered into a conspiracy with
the aforesaid officers of the bank to cheat the bank. A clever device, rather
intricate in nature, was conceived by them whereby eight separate accounts were
opened in the name of the companies concerned and overdraft facility was
extended to the companies on the representation of the appellant and with the
assistance of the aforesaid officers of the bank. The aforesaid officers of the
bank misused their official position and in a dishonest manner the banking
business was transacted in such a manner that it caused substantial monetary
loss to the bank.
This
was achieved by the appellant and the officers of the bank acting in concert,
pursuant to the conspiracy. The aforesaid officers of the bank abused their
official position as public servant and by corrupt or illegal means obtained
pecuniary advantage for themselves and others. The Special Judge, therefore,
framed charges against all the three accused for the offence punishable under
Section 120-B read with Section 420 I.P.C. The appellant herein was
additionally charged of the offence under Section 420 I.P.C.
Accused
Nos. 1 and 2, the bank officers were also charged of the offence punishable
under Section 13 (2) read with Section 13 (1) (d) of the Act.
Sri
S.B. Sanyal, learned senior advocate appearing on behalf of the appellant
submitted that in view of the express provisions of Section 3 of the Act, the
Special Judge could only try offences which are punishable under the Act or any
conspiracy to commit or any attempt to commit or abetment of any of the
offences punishable under the Act. Sub- section (3) of Section 4 empowers the
Special Judge to try an accused at the same trial for any offence committed
under any law other than an offence punishable under the Act. He, however,
added that before an accused can be charged and tried by the Special Judge for
any offence other than an offence under the Act, the necessary pre-condition is
that the said accused must also be charged of an offence under the Act or
conspiracy to commit, attempt to commit or abetment of any offence under the
Act. He, therefore, submitted that since the appellant herein was charged only
of offences under Section 420 and Section 120-B read with Section 420 I.P.C.,
he could not be tried by the Special Judge even with the aid of sub-Section (3)
of Section 4 of the Act. He submitted that only the co-accused, who were
officers of the bank, were charged of offences under the Act and there was no
charge against the appellant of having committed any offence under the Act or
of having conspired, attempted or abetted to commit an offence under the Act.
Clearly therefore, according to him, the Special Judge had no jurisdiction to
try the appellant along with the co-accused in the same trial. He did not
dispute the position that so far as the co-accused are concerned, the Special
Judge had jurisdiction to try them for any offence under the Act and even for
the offence under Section 120-B read with Section 420 I.P.C. However, since the
appellant was not charged of any offence specified in Section 3 of the Act, the
Special Judge had no jurisdiction to try him for the offence under Section 420
I.P.C. or even under Section 120-B read with Section 420 I.P.C. treating him as
a co-conspirator of the co- accused.
Shri
P.P. Malhotra, senior advocate appearing for the respondent- CBI, however,
contended that the appellant being a co-conspirator, and the Special Judge
having jurisdiction to try the co-accused for the offence under Section 120-B
read with 420 I.P.C., the jurisdiction of the Special Judge to try the
appellant was not in doubt. He submitted that it would be rather incongruous
that on a charge of conspiracy some of the conspirators may be tried by the
Special Judge while others must be tried by the Courts under the Code of
Criminal Procedure. He placed strong reliance on two decisions of this Court
namely, Kadiri Kunhahammad vs. The State of Madras : AIR 1960 SC 661 and Union
of India vs. I.C. Lala : A.I.R. 1973 S.C. 2294 and submitted that applying the
principles laid down by this Court, the High Court was right in holding that
the appellant could be tried along with the co-accused by the Special Judge in
the same trial even for the offences not specified under Section 3 of the Act,
but forming a part of the same transaction which led to the commission of an
offence under the Act, for which the public servants concerned were charged in
addition to the offence of conspiracy under the I.P.C.
To
appreciate the force of the rival submissions, it is necessary to notice the
relevant provisions of the Act and the Code of Criminal Procedure. Section 3
and Section 4 of the Act read as follows :- "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.
(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
22 of the Act provides that the provisions of the Code of Criminal Procedure,
1973 shall, in their application to any proceeding in relation to an offence
punishable under the Act, have effect subject to certain modifications
specified therein. The modifications of the provisions of the Code of Criminal
Procedure in their application to offences punishable under the Act do not
modify the provisions of Chapter XVII of the Code of Criminal Procedure with
which we are concerned in the instant appeal. It is, therefore, apparent that
the provisions of the Code of Criminal Procedure do apply to trials for
offences under the Act subject to certain modifications as provided in Section
22 of the Act unless the application of any provision of the Code is excluded
either expressly or by necessary implication.
Section
220 of the Code of Criminal Procedure provides as follows :-
"220.
Trial for more than one offence.-
(1), If,
in one series of acts so connected together as to form the same transaction,
more offences than one are committed by the same person, he may be charged
with, and tried at one trial for, every such offence.
(2)
When a person charged with one or more offences of criminal breach of trust or
dishonest misappropriation of property as provided in sub-section (2) of
section 212 or in sub-section (1) of section 219, is accused of committing, for
the purpose of facilitating or concealing the commission of that offence or
those offences, one or more offences of falsification of accounts, he may be
charged with, and tried at one trial for, every such offence.
(3) If
the acts alleged constitute an offence falling within two or more separate
definitions of any law in force for the time being by which offences are defined
or punished, the person accused of them may be charged with, and tried at one
trial for, each of such offences.
(4) If
several acts, of which one or more than one would by itself or themselves
constitute an offence, constitute when combined a different offence, the person
accused of them may be charged with, and tried at one trial for the offence
constituted by such acts when combined, and for any offence constituted by any
one, or more, or such acts.
(5)
Nothing contained in this section shall affect section 71 of the Indian Penal
Code (45 of 1860).
The
relevant provisions of Section 223 of the Code read as under:-
"223.
What persons may be charged jointly. - The following persons may be charged and
tried together, namely :-
(a) persons
accused of the same offence committed in the course of the same transaction ;
(b) persons
accused of an offence and persons accused of abetment of, or attempt to commit,
such offence ;
(c)
... ... ...
(d) persons
accused of difference offences committed in the course of the same transaction
;
(e)
... ... ...
(f)
... ... ...
(g)
... ... ...
A mere
perusal of Section 4 of the Act clearly mandates that as specified in Section
3, offences punishable under the Act or any conspiracy, attempt or abetment to
commit an offence under the Act shall be tried by a Special Judge appointed in
accordance with Section 3 of the Act.
Sub-section
(3) of Section 4 also lays down clearly that while trying any case for an
offence specified in Section 3 of the Act, a Special Judge may also try any
offence other than offences specified in Section 3 with which the accused may
under the Code of Criminal Procedure, 1973 be charged at the same trial. It
therefore follows that a Special Judge trying a case relating to an offence
specified in Section 3 of the Act may also try any offence under any other law
for which, under the provisions of the Code of Criminal Procedure, the accused
may be charged at the same trial.
Thus
in cases within the contemplation of Section 4 (3) of the Act, the Special
Judge is not precluded from trying an offence other than an offence specified
in Section 3 of the Act.
We
have earlier reproduced the provisions of Section 220 of the Code. The
aforesaid Section will clearly apply to the case of co-accused who undoubtedly
must be tried by the Special Judge for the offence under Section 120-B read
with Section 420 I.P.C., apart from the offence under the provisions of the
Act. This is so because in the facts of this case there is no doubt that the
offence under the Act and the offence under the I.P.C of which they have been
charged were committed in the course of the same transaction. Even Mr. Sanyal,
learned senior advocate appearing for the appellant did not dispute this
position. His submission is that since the co-accused have been charged of
offences under the Act, they can be tried by the Special Judge for other
offences as well if such other offences have been committed in the course of
the same transaction. He submitted that "accused" in Sub-section (3)
of Section 4 refers to an accused who is charged of offences specified in
Section 3 of the Act. Therefore, he contends that since the appellant is not
charged of any offence specified in Section 3 of the Act, his case will not be
covered by sub-section (3) of Section 4.
On the
other hand Sri P.P. Malhotra, senior advocate for the respondent contends that
once it is held that the co- accused can be tried by the Special Judge of the
charge under Section 120-B read with Section 420 I.P.C., it must logically
follow that the co-conspirators must also be tried with them in the same trial,
and for this he places strong reliance on the provisions of Section 223 of the
Code of Criminal Procedure.
We
have given to the rival submissions our deep consideration and we are of the
view that the contention of the respondent must be upheld. It is worth noticing
that Sub-section (3) of Section 4 of the Act provides that 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 be charged at
the same trial. We have observed earlier that the provisions of the Code of
Criminal Procedure apply to trials under the Act subject to certain
modifications as contained in Section 22 of the Act and their exclusion either
express or by necessary implication.
Section
223 of the Code of Criminal Procedure has not been excluded either expressly or
by necessary implication nor has the same been modified in their application to
trials under the Act. The said provision therefore is applicable to the trial
of an offence punishable under the Act. The various provisions of the Act which
we have quoted earlier make it abundantly clear that under the provisions of
the Act a Special Judge is not precluded altogether from trying any other
offence, other than offences specified in Section 3 thereof. A person charged
of an offence under the Act may in view of sub-section 3 of Section 4 be
charged at the same trial of any offence under any other law with which he may,
under the Code of Criminal Procedure, be charged at the same trial. Thus a
public servant who is charged of an offence under the provisions of the Act may
be charged by the Special Judge at the same trial of any offence under I.P.C.
if the same is committed in a manner contemplated by Section 220 of the Code.
The
only narrow question which remains to be answered is whether any other person
who is also charged of the same offence with which the co-accused is charged,
but which is not an offence specified in Section 3 of the Act, can be tried
with the co-accused at the same trial by the Special Judge. We are of the view
that since sub-section (3) of Section 4 of the Act authorizes a Special Judge
to try any offence other than an offence specified in Section 3 of the Act to
which the provisions of Section 220 apply, there is no reason why the
provisions of Section 223 of the Code should not apply to such a case. Section
223 in clear terms provide that persons accused of the same offence committed
in the course of the same transaction, or persons accused of different offence
committed in the course of the same transaction may be charged and tried
together. Applying the provisions of Sections 3 and 4 of the Act and Sections
220 and 223 of the Code of Criminal Procedure it must be held that the
appellant and his co-accused may be tried by the Special Judge in the same
trial.
This
is because the co-accused of the appellant who have been also charged of
offences specified in Section 3 of the Act must be tried by the Special Judge,
who in view of the provisions of sub-section (3) of Section 4 and Section 220
of the Code may also try them of the charge under Section 120-B read with
Section 420 I.P.C. All the three accused, including the appellant, have been
charged of the offence under Section 120-B read with Section 420 I.P.C. If the
Special Judge has jurisdiction to try the co-accused for the offence under
Section 120-B read with Section 420 I.P.C., the provisions of Section 223 are
attracted.
Therefore,
it follows that the appellant who is also charged of having committed the same
offence in the course of the same transaction may also be tried with them.
Otherwise it appears rather incongruous that some of the conspirators charged
of having committed the same offence may be tried by the Special Judge while
the remaining conspirators who are also charged of the same offence will be
tried by another Court, because they are not charged of any offence specified
in Section 3 of the Act.
Reliance
was placed by the respondent on the judgment in Union of India vs. I.C. Lala :
A.I.R. 1973 S.C. 2294 but counsel for the appellant distinguished that case
submitting that the facts of that case are distinguishable in as much as in
that case apart from the two army officers, even the third appellant who was a
businessman, was charged of the offence punishable under Section 120-B I.P.C.
read with Section 5 (2) of the Act. Such being the factual position in that
case, Section 3 (1) (d) of the relevant Act was clearly attracted. In the instant
case he submitted, there was no charge against the appellant of having
conspired to commit a offence punishable under the Act.
The
aforesaid judgment refers to an earlier decision of this Court in the case of
State of Andhra Pradesh vs. Kandimalla Subbaiah and another
: AIR 1961 SC 1241.
Learned
counsel for the appellant distinguishes that case also for the same reason,
since in that case as well the respondent was charged of conspiracy to commit
an offence punishable under the Act.
We
are, therefore, of the view that in the facts and circumstances of this case,
the Special Judge while trying the co-accused of an offence punishable under
the provisions of the Act as also an offence punishable under Section 120-B
read with Section 420 I.P.C. has the jurisdiction to try the appellant also for
the offence punishable under Section 120-B read with Section 420 I.P.C.
applying the principles incorporated in Section 223 of the Code. We, therefore,
affirm the finding of the High Court and dismiss this appeal.
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