# Abhishek Srivastava v. U.O.I

- **Citation:** (2021) 11 ILRA 243
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-12-20
- **Case number:** U/S 482/378/407 No. 3465 of 2021
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-srivastava-v-u-o-i-46494
- **Pages:** 6

## Headnote

Law
-
Code
of
Criminal
Procedure,1973 - Section 313 - One accused
public
servant-rest
accused
are
private
individuals-Special judge , Anti corruption has
no jurisdiction as sole public servant died
before cognizance-Trial at the stage of section
313
Cr.P.C.-prosecution
evidence is
overSpecial Judge has no occasion to try any case
under the PC Act against the present accused
Applicant-Impugned order set aside.

Petition allowed. (E-9)

List of Cases cited:

1.St. Through CBI Vs Jitendra Kumar Singh (2014) 11
SCC 724

## Text

11 All. Abhishek Srivastava Vs. U.O.I.
243
plain paper and the learned Chief Judicial
Magistrate had merely entered the next date
fixed in the case in the blank portion of the
ready made order. Apparently the learned
Magistrate had not applied his mind to the facts
of the case before passing the order dated
20.12.2018, therefore, the impugned order
cannot be upheld.

7. Judicial orders cannot be allowed to
be passed in a mechanical manner either by
filling in blank on a printed proforma or by
affixing a ready made seal etc. of the order on a
plain paper. Such tendency must be deprecated
and cannot be allowed to perpetuate. This
reflects not only lack of application of mind to
the facts of the case but is also against the
settled judicial norms. Therefore, this practice
must be stopped forthwith."

25. In view of the above, this Court finds
and observes that the conduct of the judicial
officers concerned in passing orders on printed
proforma by filling up the blanks without
application of judicial mind is objectionable and
deserves to be deprecated. The summoning of an
accused in a criminal case is a serious matter and
the order must reflect that Magistrate had
applied his mind to the facts as well as law
applicable thereto, whereas the impugned
cognizance and summoning order was passed in
mechanical manner without application of
judicial mind and without satisfying himself as
to which offence were prima-facie being made
out against the applicant on the basis of the
allegations made by the opposite party no.2, the
impugned cognizance and summoning order
passed by the learned Magistrate is against the
settled judicial norms.

26. In light of the judgments referred to
above, it is explicitly clear that the impugned
cognizance
and
summoning
order
dated
11.09.2012 passed by the 1st Additional Civil
Judge (Junior Division)/Judicial Magistrate,
Sitapur is cryptic and does not stand the test of
the law laid down by the Hon'ble Apex Court.
Consequently, the cognizance and summoning
order dated 11.09.2012 cannot be legally
sustained, as the Magistrate failed to exercise the
jurisdiction
vested
in
him
resulting
in
miscarriage of justice.

27. Accordingly, the present Criminal
Misc. Application U/S 482 Cr.P.C succeeds and
is allowed. The impugned cognizance and
summoning order dated 11.09.2012 passed by
the 1st Additional Civil Judge (Junior Division)/
Judicial Magistrate, Sitapur, is hereby quashed
in Criminal Case No. 486 of 2012 (State Vs.
Kallu Ram and Manohar) arising out of Case
Crime No.112 of 2012, under Section 447 IPC
and section 2/3, Public Property Act, Police
Station Machharehta, District Sitapur.

28. The 1st Additional Civil Judge (Junior
Division)/Judicial
Magistrate,
Sitapur,
is
directed to decide afresh the issue for taking
cognizance and summoning the applicant and
pass appropriate orders in accordance with law
keeping in view the observations made by this
Court as well as the direction contained in the
judgments referred to above within a period of
two months from the date of production of a
copy of this order.
----------
(2021)11ILR A243
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.11.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

U/S 482/378/407 No. 3465 of 2021

Abhishek Srivastava ...Applicant
Versus
U.O.I. ...Opposite Party

Counsel for the Applicant:
244 INDIAN LAW REPORTS ALLAHABAD SERIES
Sudhanshu S. Tripathi, Abdul Ahad, Aishwarya
Saxena, Shagun Srivastava

Counsel for the Opposite Party:
Anurag Kumar Singh

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section 313 - One accused
public
servant-rest
accused
are
private
individuals-Special judge , Anti corruption has
no jurisdiction as sole public servant died
before cognizance-Trial at the stage of section
313
Cr.P.C.-prosecution
evidence is
overSpecial Judge has no occasion to try any case
under the PC Act against the present accused
Applicant-Impugned order set aside.

Petition allowed. (E-9)

List of Cases cited:

1.St. Through CBI Vs Jitendra Kumar Singh (2014) 11
SCC 724

(Delivered by Hon'ble Karunesh Singh Pawar, J.)

1. Heard Ms. Shagun Srivastava and Mr.
Sudhanshu Shekhar Tripathi, learned counsel for
the petitioner and Shri Anurag Kumar Singh,
learned counsel for the Central Bureau of
Investigation.

2. Brief facts of the case are that the First
Information Report was lodged on 23.03.2010
against the co-accused persons under sections
120B, 420, 467, 468, 471 Indian Penal Code,
who are private individuals and non-public
servants. During the course of investigation, a
public servant was arrayed as an accused and
subsequently Sections 13(1)(d) and 13 (2) of the
Prevention of Corruption Act 1988 (hereinafter
referred as 'PC Act') was added against all the
accused persons with the aid of section 120-B
Indian Penal Code. Charge-sheet was filed on
23.10.2010, however, the sole public servant
died on 15.04.2011, which is admitted fact
between the parties. Thereafter, cognizance was
taken on 10.05.2011 of the offence. An
application was filed on 16.03.2021 for the
transfer of the case to the appropriate court on
the ground that the sole public servant had died
before cognizance can be taken and therefore,
the Special Judge, Anti-Corruption has no
jurisdiction to try this case. The application was
rejected vide order dated 26.08.2021, which is
impugned in this petition.

3. Learned counsel for the applicant
submits that learned Special Judge, AntiCorruption at the time of taking cognizance on
10.5.2011 failed to consider the fact that the sole
public servant had died and even later when the
case was abated against the sole public servant
on 7.6.2011. It is submitted that the learned
Special Judge, Anti-Corruption at the time of
framing of the charges should have considered
whether it could exercise jurisdiction under the
PC Act or whether he was required to frame
charges as per the applicable sections of the
Indian Penal Code and remand the matter to the
concerned court.

4. It is submitted that in the facts and
circumstances of the present case, cognizance
could not have been taken and charges framed
by the Special Judge, Anti-Corruption merely on
the basis of invocation of Section 120-B, as the
same could not be read with any section of the
PC Act in absence of the sole public servant.

5. Learned counsel for the applicant has
placed reliance on the judgment of Hon'ble
Supreme Court in State Through CBI Vs.
Jitendra Kumar Singh (2014) 11 SCC 724. It
is submitted that in this case the applicant is
totally unconnected as he did not act as a public
servant or was holding any profile as a public
servant or bribed any public servant which are
the cases where PC Act becomes applicable
against a non-public servant. In the instant case
the law is settled by aforesaid judgment of
Hon'ble Supreme Court the trial court could not
have been proceeded against the applicant in the
11 All. Abhishek Srivastava Vs. U.O.I.
245
absence of sole public servant at the time of
framing of charges.

6. It is also contended that this irregularity
has caused grave injustice and irreparable loss to
the applicant whereby hampering his right to fair
trial, quantum of punishment, right to appeal
before the appropriate court and in consequence
thereto hampering the delivery of justice.

7. Per contra, learned counsel for the
Central Bureau Of Investigation submits that in
view of the Section 3 (1)(b) of the PC Act a
conspiracy to commit an offence under the PC
Act can only be tried by a Special Judge
appointed under the PC Act and he can try a
case for conspiracy to commit an offence under
the PC Act against the applicant who is a private
person, independently and it is not necessary
that a public servant should also be there for the
trial to be conducted by the Special Judge under
the PC Act.

8. He has further submitted that as per
paragraphs 37 and 38 of the judgment rendered
by the Hon'ble Supreme Court in the case of
Jitender Kumar Singh (supra), it is not
obligatory on the part of the 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 on the facts of
each case and the inter-relation between the PC
offences and the non-PC offences. The Special
Judge is not expected to try non-PC offences
totally unconnected with any PC offences but in
the present case the offence committed by the
applicant
cannot
be
termed
as
'totally
unconnected with any PC offences.

9. Learned counsel for the C.B.I. has next
submitted that as mentioned in paragraph 44 of
the judgment in the case of Jitender Kumar
Singh (supra), the purpose of the PC Act is to
make Anti-Corruption Laws more effective in
order to expedite the proceedings, thus in case
the applicant succeeds in his illegal design, the
trial of the present case would be delayed, and
the purpose of the Act would be frustrated.

10.

Learned
Special
Judge
while
considering the application moved by the
accused for transfer of the case and while
considering the judgment of Jitendra Kumar
Singh (supra) was of the view that since the
accused applicant is charged with the offence
which is totally unconnected with any PC
offence under Section 3(1) of the PC Act and
therefore has jurisdiction to try the offence. The
operative part of the impugned order is extracted
below:-

"ितदमान प्रकरण में यद्यवप वक एक मात्र
ल क सेिक के विरूद्ध सज्ञान के पूिद मृत्यु ह जाना
एक स्वीकृत तथ् है परन्तु उक्त सूचना न्यायालय क
प्रसोंज्ञान के स्तर पर प्राप्त न ह ने के कारण
वििेष.न्यायालय द्वारा सम्बक्तन्धत प्रकरण में सोंज्ञान
वलया गया तथा पत्रािली यद्यवप वक ल क सेिक के
विरुद्ध आर प विरिन नहीों वकया गया परन्तु पत्रािली
में सम्पूणद साक्ष्य इसी न्यायालय के समक्ष वकया गया।
यह भी उल्लेिनीय है वक सम्बक्तन्धत विचारण के अन्य
िह अवभयुक्त का विचारण करते हुए इसी न्यायालय
द्वारा वनणदय भी वकया जा चुका है। चूोंवक प्रस्तुत
प्रकरण में एक मात्र अवभयका अवभषेक श्रीिास्ति
विचार हेतु िेष है क् ोंवक अवभयुक्त अवभषेक
श्रीिास्ति फरार ह गया था और वजस कारण
अवभयुक्त अवभषेक श्रीिास्ति की पत्रािली मूल
पत्रािली से प्रथक कर र्ी गई थी तथा अन्य सह
अवभयुक्त नईम िा की पत्रािली वर्नाोंक 15.5. 2019
क इसी न्यायालय द्वारा वनणीत की जा चुकी है। इस
पत्रािली में अवभयुक्त अवभषेक श्रीिास्ति के विरूद्ध
अवभय जन का साक्ष्य पूणद ह चुका है तथा पत्रािली
अवभयुक्त के बयान र्ारा 313 र्०प्र०सों० में वनयत है।
इसके पूिद कभी भी सम्बक्तन्धत अवभयुक्त ने इस
न्यायालय में क्षेत्रावर्कार न त प्रश्नगत वकया और ल ही
इस प्रकृवत का पूिद में क ई प्राथदना पत्र ही प्रस्तुत
वकया। माननीय उच्चतम न्यायालय द्वारा भ्रष्टाचार के
246 INDIAN LAW REPORTS ALLAHABAD SERIES
अपरार् के मामल ों का वनस्तारण यथािीघ्र वकये जाने
का वर्िा वनर्ेि समय समय पर वर्या जाता है और
उनका प्रयदिेक्षण भी वकया जाता है। पत्रािली
न्यायवनणदय के अोंवतम स्तर पर लक्तम्बत है। यद्यवप वक
सम्बोंवर्त प्रकरण सह अवभयुक्त ल क सेिक की मृत्यु
ह चुकी है परन्तु ल क सेिक की सम्बक्तन्धत अपरार् में
सवलिता रही है। जबवक (2014) - 11 एस सी सी 724
के मामले में माननीय उच्चतम न्यायालय ने पैरा-38 में
यह मत व्यक्त वकया गया है वक A Speial Judge
exercising powers under the PC Act is not
expected
to
try
non-PC
offnces
totally
unconnected with any PC offences under
Section 3(1) of the PC Act, the question of the
Special Judge not trying any offence does not
arise. परन्तु सम्बक्तन्धत प्रकरण में वििचनापरात
अवभयुक्त अवभषेक श्रीिास्ति पर मृतक ल क सेिक
सुिील कुमार वमश्रा के साथ अपरावर्क षडयोंत्र में
सक्तिवलत ह कर सम्बक्तन्धत अपरार् क काररत वकये
जाने का आर प है। ऐसे में यह प्रकरण totally
unconnected विचारण की श्रेणी में नहीों आता है। ऐसे
में उपर क्त विवर् व्यिस्था से सम्बक्तन्धत प्रकरण के
तथ् इस प्रकरण से वभन्न ह ने के कारण इस मामले में
अनुकरणीय नहीों है क् ोंवक पूिद में अवभयुक्त द्वारा
क्षेत्रावर्कार क कभी भी वकसी भी स्तर पर चुनौती
नहीों र्ी गई थी। ितदमान में प्रकरण साक्ष्य समाप्त ह ने
के उपराोंत बयान र्ारा-313 र्०प्र०सों० के स्तर पर
लक्तम्बत ह ने पर अवभयुक्त ने न्यायालय के क्षेत्रावर्कार
क प्रश्नगत वकया है, पूिद में भी अवभयुक्त विचारण के
समय फरार ह गया था तथा लम्बे समय उपराोंत
वगरफ्तार ह कर न्यायालय के समक्ष प्रस्तुत वकया गया
था। ऐसे में सी०बी०आई० द्वारा वर्ये गये इस तकद में
बल प्रतीत ह ता है वक अवभयुक्त द्वारा विचारण क
लक्तम्बत करने के र्ुरािय से इस स्तर पर न्यायालय के
क्षेत्रावर्कार क प्रश्नगत करते हुए स्थानान्तरण प्राथदना
पत्र प्रस्तुत वकया है। चूोंवक प्रस्तुत मामले में अन्य सह
अवभयुक्त का विचारण इसी न्यायालय द्वारा पूिद में
वकया जा चुका है। ऐसे में भ्रष्टाचार के मामल ों के
अपरार् ों का िीघ्र वनस्तारण की विद्यावयका की अिा
तथा माननीय उच्चतम न्यायालय द्वारा इस सोंर्भद में
वर्ये गये "र्िा वनर्ेि ों के अनुपालन में यह उवचत
प्रतीत ह ता है वक इस न्यायालय द्वारा सम्बक्तन्धत मामले
का वनस्तारण अवत िीघ्रता से वकया जाय। अतः
उपर क्त विवर् व्यिस्था समग्र वििेचना तथा प्रकरण
के वििेष तथ् पररक्तस्थवतय ों एिों िीघ्र वनस्तारण के
मोंिा क दृवष्टगत रिते हुए अवभयुक्त द्वारा प्रस्तुत
प्राथदना पत्र इस स्तर पर स्वीकार वकये जाने य ग्य नहीों
है।

आर्ेि

अवभयुक्त अवभषेक श्रीिास्ति द्वारा प्रस्तुत
प्राथदना पत्र बी-33 वनरस्त वकया जाता है। पत्रािली
िास्ते बयान र्ारा 313 र्०प्र०स० हेतु वर्नाोंक 10-092021 क पेि ह ।"

11. On due consideration to the arguments
advanced by the parties' counsel and perusal of
the record, it is evident that the applicant is
accused in Criminal Case No.1113 of 2018
under Section 120B, 406, 419, 420, 467, 468,
471 Indian Penal Code and Section 13(2) read
with 13 (1)(d) of the PC Act arising out of RC
No.4 (S) of 2010 at Police Station C.B.I./SCB
Lucknow and the trial is pending before the
Court of Special Judge, Anti Corruption, C.B.I.
(West) Lucknow whereas it is alleged that the
accused applicant along with co-accused persons
out of one who was a public servant hatched the
criminal conspiracy with each other cheated
Allahabad Bank, Hussainganj Branch, Lucknow
by obtaining various loans totaling Rs. 71.03
lacs by preparing forged Kisan Vikas Patras
(KVP) for the purpose of cheating and using
them as genuine to get the monetary benefit in
their favour. It is not disputed that the sole
public servant involved in the aforesaid case has
died before the cognizance could be taken in the
matter. Consequently, the charges have also
been framed against the accused persons after
the death of the sole public servant. The trial is
at the stage of Section 313 Cr.P.C.. Prosecution
evidence is over.

12. Hon'ble Supreme Court in the case of
Jitender Kumar Singh (supra) was engaged
11 All. Abhishek Srivastava Vs. U.O.I.
247
with two conflicting judgments. One rendered
by Delhi High Court which was impugned
Criminal Appeal No.943 of 2008 filed by CBI
New Delhi and other rendered by Bombay High
Court which was challenged by a private person
in Criminal Appeal No.161 of 2011. After
interpreting various provisions of Prevention of
Corruption Act, particularly Sections 3,4 and 5
and other related provisions dealing with offence
and penalties under PC Act, in Criminal Appeal
No.943 of 2008 the Special Judge had framed
charges against the public servant as well as
against the non-public servant for the offences
punishable under Section 3(1) of the PC Act as
well as for the offences punishable under
Section 120B read with Section 467, 471 and
420 Indian Penal Code and therefore held that
existence of the jurisdictional fact i.e. "trying a
case" under the PC Act was satisfied. In the
aforesaid case, Special Judge after framing of
charges for PC and non PC offence posted the
case for cross examination and after that sole
public servant died on 2.6.2003 and therefore
held that on death the charge against the public
servant alone abates and since the Special Judge
has already exercised his jurisdiction under SubSection 3 of Section 4 of the PC Act that
jurisdiction cannot be divested due to the death
of the sole public servant whereas in Crime
No.161 of 2011, where accused 9 and 10 died
even before the charge-sheet was sent to the
Special Judge. The charge against the sole
public servant under the PC Act could not be
framed since he died before taking of the
cognizance. The special Judge could not frame
any charge against non-public servants. It is held
that Special Judge could try non-PC offences
only when "trying any case" relating to PC
offences. In Crime No. 161 of 2011 no PC
offence was committed by any of the non-public
servants so as to fall under Section 3(1) of the
PC Act. Consequently, there was no occasion for
the special Judge to try any case relating to
offences under the PC Act against the accused
persons. It was held that trying of any case under
the PC Act against a public servant or a nonpublic servant, as already indicated, is a sinequa-non for exercising powers under sub-section
(3) of Section 4 of PC Act. In the instant case,
since no PC offence has been committed by any
of the non- public servants and no charges have
been framed against the public servant, while he
was alive, the Special Judge had no occasion to
try any case against any of them under the PC
Act, since no charge has been framed prior to
the death of the public servant. In Criminal
Appeal No. 161 of 2011 no PC offence has been
committed by any of the non-public servants so
as to fall under Section 3(1) of the PC Act and
therefore held that there was no occasion for the
Special Judge to try any case relating to the case
under PC Act against the accused persons. It was
held that the trying of any case under the PC Act
against a public servant or a non-public servant,
as already indicated, is a sine-qua-non for
exercising powers under sub-section (3) of
Section 4 of PC Act. Since, in this case no PC
offence was committed by any of the non-
public servants and no charges have been framed
against the public servant, while he was alive, it
was held that the Special Judge could not try any
case against any of them under the PC Act. In
the present case also the sole public servant died
before the cognizance could be taken.

13. In the present case, the Special Judge was
not trying any offence under Section 3(1) of the
PC Act. The question of trying non PC offence by
Special Judge will also not arise. Trying of the PC
offence is jurisdictional fact to exercise the duty
under Sub-section 3 of Section 4 PC Act. The
exercise of very jurisdiction of the Special Judge
depends upon the jurisdictional fact of trying a PC
offence. Jurisdictional fact and the existence of
jurisdiction by the Special Judge are two different
ends. Para 39 of the judgment of Jitender Kumar
Singh (supra) is extracted below: -

"39.The meaning and content of the
expression
"jurisdictional
fact"
has
been
248 INDIAN LAW REPORTS ALLAHABAD SERIES
considered
by
this
Court
in
Carona
Ltd.v.Parvathy Swaminathan & Sons[(2007) 8
SCC 559] , and noticed that where the
jurisdiction of a court or a tribunal is dependent
on the existence of a particular state of affairs,
that state of affairs may be described as
preliminary to, or collateral to the merits of the
issue. The existence of a jurisdictional fact is
thus a sine qua non or condition precedent to the
assumption of jurisdiction by a court. InRamesh
Chandra Sanklav.Vikram Cement[(2008) 14
SCC 58 : (2009) 1 SCC (L&S) 706] , this Court
held that by erroneously assuming existence of
the jurisdictional fact, a court cannot confer
upon itself jurisdiction which otherwise it does
not possess."

14. The trial in a warrant case starts with
the framing of charge. Before framing of charge
it cannot be said that Special Judge was trying of
any offence under Section 3(1) of PC Act. The
trial starts from framing of charges. Since, it is
admitted fact in this case that the sole accused
person died before the charges could be framed
and even before taking of cognizance, therefore,
the stage of trying any offence under Section
3(1) of the PC Act did not arise as has been held
in the aforesaid judgement of Jitendra Kumar
Singh. Trying of PC offence is a jurisdictional
fact to the exercise of power under Sub section 3
of Section 4. Since, learned Special Judge was
not trying any offence as the trial did not
commence. The sole public servant in this case
already died before framing of charges,
therefore, the trial did not start. The Special
Judge had no occasion to try any case against the
present accused applicant under the PC Act as
no charge was framed prior to the death of the
public servant, hence, the jurisdictional fact did
not exist so as to enable the Special Judge to
exercise jurisdiction with regard to non-PC
offence.

15. In view of the above, the petition
succeeds. The impugned order dated 26.8.2021
passed by the Special Judge Anti-Corruption,
CBI (West), Lucknow in the Case No.1113 of
2018 is set aside and learned Special Judge is
directed to send the papers of the case to the
competent court for trial of accused in
accordance with law within a period of four
weeks' from the date of receipt of a certified
copy of this order. Office is directed to send
copy of this order to learned Special Judge
concerned for compliance.
----------
(2021)11ILR A248
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.11.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

U/S 482/378/407 No. 3589 of 2018

Nitesh Kumar Verma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sushil Kumar Singh

Counsel for the Opposite Parties:
Govt. Advocate, Priyanka Singh, Umesh Chandra

Trial and cognizance cannot be set aside
unless
illegality
in
investigation
bring
micarriage
of
justice-invalidity
of
investigation
has
no
relevanceto
the
competence of Court.

Petition dismissed. (E-9)

List of Cases cited:

1. St. of Har. Vs Bhajan Lal & ors. 1992 Supp (1)
Supreme Court Cases 335

2. R.A.H. Siguran Vs Shankara Gowda @Shankara
reported in (2017) 16 SCC 126

3. H.N. Rishbud & anr. Vs St. of Delhi reported in
1955 Cr.L.J. 526