Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
CASE NO.:
Appeal (crl.) 1249 of 2002
PETITIONER:
Vivek Gupta
RESPONDENT:
Central Bureau of Investigation and another
DATE OF JUDGMENT: 25/09/2003
BENCH:
N.Santosh Hegde & B.P. Singh.
JUDGMENT:
J U D G M E N T
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
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.