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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

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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

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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.

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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

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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

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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

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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.