# STATE THROUGH CBI NEW DELHI v. JITENDER

- **Citation:** [2014] 2 S.C.R. 621
- **Court:** Supreme Court of India
- **Decided:** 2014-02-05
- **Case number:** Criminal Appeal No. 943 of 2008
- **Bench:** K.S. Radhakrishnan, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-through-cbi-new-delhi-v-jitender-29858
- **Pages:** 35

## Headnote

PREVENTION OF CORRUPTION ACT, 1988:
A
B
Purpose of enactment - Held: Although Indian Penal c
Code provided for punishment for the offence of bribery and
corruption even against the public servants, Parliament, in its
wisdom, noticed that the Code was not adequate to meet the
exigencies of time and a need was felt to introduce a special
legislation with a view to eradicate the evil of bribery and D
corruption from the society - Consequently, the Prevention of
Corruption Act was enacted - Penal Code, 1860.
s.3(1) - Jurisdiction of Special Judge to proceed against
a non-public servant - Held: A Special Judge appointed ul
s.3(1) of the PC Act has got jurisdiction to proceed exclusively E
against a public servant and exclusively against a non-public
servant as well, depending upon the nature of the offence
referred to in Chapter Ill of the PC Act - Junction of a public
servant is not a must for the Special Judge to proceed against
a non-public servant for any offence alleged to have been
F
committed by him under Chapter Ill of the PC Act - A conjoint
reading of s.3(1) along with ss. 4(1) and (2) would make it amply
clear that only the Special Judge has got the jurisdiction to
try the offences specified in sub-section (1) of s.3 committed
by a public servant or a non-public servant, alone or jointly.
G
s.3(1) - Non-framing of charge against the pubt;c servant
and private persons, uls.3(1), while public servant was alive -
Held: In such a situation, the Special Judge had no occasion
621
H
622
SUPREME COURT REPORTS
[2014] 2 S.C\R.
.A
to "try any case" u/s.3(1) of the PC Act, either against a public
servant or a private person, so as to try any offence other than
an offence specified in s.3, meaning thereby, non-PC
offences against private person - SRecial Judge appointed ul
s.3(1) could exercise the powers under sub-section (3) to s.4
B
to try non-PC offence - Therefore, trying a case by Special
Judge u/s.3(1) is a sine qua non for, exercising jurisdiction by
the Special Judge for trying an offence other than an offence
specified in s.3 - "Trying any case'~ u/s.3(1) is, therefore, a
jurisdictional fact for the Special Judge to exercise powers to
c try Non-PC offence .
. s.4(3) - 'Trying any case' -
/nt~rpretation of - Held: It
means trying any case relating to the offences referred to in
ss.3(1)(a) and (b) of Act for which .exclusive jurisdiction is
conferred on the Special Judge - A Special Judge, while
D
exercising, exclusive jurisdiction, thaf'is, when trying any case
relating to offences u/ss.3(1)(a) and (b) of the Act, may also
try any offence other than the offence specified in s.3, with
which the accused may, under the Code of Criminal
Procedure, 1973 be charged at the same trial - An accused
E person, either a public servant or non~public servant, who has
been charged for an offence u/s.3(1) of the PC Act, could also
be charged for an offence under /PC, in the event of which,
the Special Judge has got the jurisdiction to try such offences
against the public servant as well as against a non-public
F
servant - Code of Criminal Procedure, 1973.
ss.4(1), 4(3) - Obligation on the part of Special judge to
try Non-PC cases - Held: Exclusion of the jurisdiction of
ordinary Criminal Court, so far as offer:ices under the PC Act
G are concerned, has been explicitly expressed u/s.4(1) of the
PC Act, which does not find a place, in respect of non-PC
offences in sub-section (3) of s.4 of the PC Act - It is not
obligatory on the part of a 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
,
H
STATE THROUGH CBI NEW DELHI v. JITENDER
623
KUMAR SINGH
depend upon the facts of each case and the inter-relation
A
between PC offences and non-PC offences - A Special Judge
exercising powers under the PC Act is not expected to try nonPC offences totally unconnected with any PC offences u/s.3(1)
of the PC Act and in the event of a Special Judge not trying
··any

## Text

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(2014] 2 S.C.R. 621
STATE THROUGH CBI NEW DELHI
v:
JITENDER KUMAR SINGH
(Criminal Appeal No. 943 of 2008)
FEBRUARY 05, 2014
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
PREVENTION OF CORRUPTION ACT, 1988:
A
B
Purpose of enactment - Held: Although Indian Penal c
Code provided for punishment for the offence of bribery and
corruption even against the public servants, Parliament, in its
wisdom, noticed that the Code was not adequate to meet the
exigencies of time and a need was felt to introduce a special
legislation with a view to eradicate the evil of bribery and D
corruption from the society - Consequently, the Prevention of
Corruption Act was enacted - Penal Code, 1860.
s.3(1) - Jurisdiction of Special Judge to proceed against
a non-public servant - Held: A Special Judge appointed ul
s.3(1) of the PC Act has got jurisdiction to proceed exclusively E
against a public servant and exclusively against a non-public
servant as well, depending upon the nature of the offence
referred to in Chapter Ill of the PC Act - Junction of a public
servant is not a must for the Special Judge to proceed against
a non-public servant for any offence alleged to have been
F
committed by him under Chapter Ill of the PC Act - A conjoint
reading of s.3(1) along with ss. 4(1) and (2) would make it amply
clear that only the Special Judge has got the jurisdiction to
try the offences specified in sub-section (1) of s.3 committed
by a public servant or a non-public servant, alone or jointly.
G
s.3(1) - Non-framing of charge against the pubt;c servant
and private persons, uls.3(1), while public servant was alive -
Held: In such a situation, the Special Judge had no occasion
621
H
622
SUPREME COURT REPORTS
[2014] 2 S.C\R.
.A
to "try any case" u/s.3(1) of the PC Act, either against a public
servant or a private person, so as to try any offence other than
an offence specified in s.3, meaning thereby, non-PC
offences against private person - SRecial Judge appointed ul
s.3(1) could exercise the powers under sub-section (3) to s.4
B
to try non-PC offence - Therefore, trying a case by Special
Judge u/s.3(1) is a sine qua non for, exercising jurisdiction by
the Special Judge for trying an offence other than an offence
specified in s.3 - "Trying any case'~ u/s.3(1) is, therefore, a
jurisdictional fact for the Special Judge to exercise powers to
c try Non-PC offence .
. s.4(3) - 'Trying any case' -
/nt~rpretation of - Held: It
means trying any case relating to the offences referred to in
ss.3(1)(a) and (b) of Act for which .exclusive jurisdiction is
conferred on the Special Judge - A Special Judge, while
D
exercising, exclusive jurisdiction, thaf'is, when trying any case
relating to offences u/ss.3(1)(a) and (b) of the Act, may also
try any offence other than the offence specified in s.3, with
which the accused may, under the Code of Criminal
Procedure, 1973 be charged at the same trial - An accused
E person, either a public servant or non~public servant, who has
been charged for an offence u/s.3(1) of the PC Act, could also
be charged for an offence under /PC, in the event of which,
the Special Judge has got the jurisdiction to try such offences
against the public servant as well as against a non-public
F
servant - Code of Criminal Procedure, 1973.
ss.4(1), 4(3) - Obligation on the part of Special judge to
try Non-PC cases - Held: Exclusion of the jurisdiction of
ordinary Criminal Court, so far as offer:ices under the PC Act
G are concerned, has been explicitly expressed u/s.4(1) of the
PC Act, which does not find a place, in respect of non-PC
offences in sub-section (3) of s.4 of the PC Act - It is not
obligatory on the part of a 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
,
H
STATE THROUGH CBI NEW DELHI v. JITENDER
623
KUMAR SINGH
depend upon the facts of each case and the inter-relation
A
between PC offences and non-PC offences - A Special Judge
exercising powers under the PC Act is not expected to try nonPC offences totally unconnected with any PC offences u/s.3(1)
of the PC Act and in the event of a Special Judge not trying
··any offence uls.3(1) of the PC Act, the question of the Special
B
Judge trying non-PC offences does not arise - Trying of a PC
offence is a jurisdictional fact to exercise the powers under
sub-section (3) of s.4 - Jurisdiction of the Special Judge, as
such, has not been divested, but the exercise of jurisdiction,
depends upon the jurisdictional fact of trying a PC offence.
c
s.4(3) - .Death of public servant and charges framed
against public servant and private person - Held: Once the·
power has been exercised by the Special Judge u/sub-section
(3) of s.4 of the PC Act to proceed against non-PC offences
along with PC offences, the mere fact that the sole public
D
servant dies after the exercise of powers under sub-section
(3) of s.4, will not divest the jurisdiction of the Special Judge
or vitiate the proceedings pending before him - The trying of
any case under the PC Act against a public servant or a
private person is a sine-qua-non for exercising powers under
E
sub-section (3) of s.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
F
Act, since no charge has been framed prior to the death of
the public servant.
JURISDICTION of a Court or a Tribunal - Held:
Existence of a jurisdictional fact is thus a sine qua non or G
condition precedef]l to the assumption of jurisdiction by a
Court.
In Criminal appeal no.943 of 2008, a public servant
in conspiracy with private persons committed offence
- under PC Act. Charge sheet was filed before the Special
H
624
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A Judge. The public servant died. The Special Judge
framed charges against all the accused persons under
IPC and also under PC Act. The accused who was a
private person filed an application for modification,
amendment or alteration Qf charges on account of death
B of the public servant. When matter came up before the
High Court, it held that on the death of a public servant,
.. the offences under the PC Act cannot be proceeded with
and directed to modify and alter and or amend the
charges in view of death of the public servant.
c
In Criminal appeal no.161 of 2011, public servant died
even befo~e the framing of charge,s. The High Court held
that upon death, the case against public servants alone
abates and rest of them can be proceeded against by the
Special Judge, since the Court 'once vested with the
D jurisdiction cannot be divested of it on the death of a
public servant.
The question for consideration arising out of Criminal
appeal no.943/2008 were whether the Special Judge, after
E framing charges against a Public Servant under Section
·13(2) read with Section 13(1)(b) falling under Section 3(1)
of the PC Act and against private, persons for offences
under Sections 120-B, 420, 467, 468, 471 IPC can go
ahead with the trial of the case against the private
F persons for non-PC offences, even, after the death of the
sole public servant; and that even assuming that the
Special Judge has jurisdiction under sub-section (3) of
Section 4 of the PC Act to proceed against the private
persons, is the Special Judge duty ,bound to try any nonG PC offence, other than the offences specified under
Section 3 of the PC Act against the accused persons
charged at the same trial.
The question for consideration arising out of Criminal
appeal No. 161 of 2011 was whetller the Special Judge
H has jurisdiction under Section 4(3) of the PC Act to try
STATE THROUGH CBI NEW DELHI v. JITENDER
625
KUMAR SINGH
non-PC offences against private persons whe11 no A
charges have been framed against public servants for
trying a case for offences under Section 3(1) of the PC
Act, since they died before framing of charges under the
PC Act or IPC.
Allowing both the appeals, the Court
B
HELD: 1.1. The Indian Penal Code has provided for
punishment for the offence of bribery and corruption
even against the public servants. Parliament, in its
wisdom, noticed that the Penal Code was not adequate C
to meet the exigencies of time and a need was felt to
introduce a special legislation with a view to eradicate the
evil of bribery and corruption from the society.
Consequently, the Prevention of Corruption Act, 1947
was enacted, which was amended in the year 1964, D
based on the recommendations of the Santhanam
Committee. Parliament still felt that the anti-corruption
laws should be made more effective, by widening their
coverage and enhancing penalties and to expedite the
proceedings and hence the 1988 Act was enacted. [para E
20] [642-A-C]
1.2. Chapter II of the:..PC Act deals with the
appointment of Special Judges and Chapter Ill deals with
the offences and penalties. Section 3 of the PC Act deals
with the power to appoint Special Judges. Section 5 of F
the PC Act deals with the procedure ·and powers of
Special Judge. Section 3(1) of the PC Act confers power
on the Central Government or trte State Government to
appoint as many Special Judges as may be necessary,
for such area or areas or for such cases or group of cases G
as will be specified in the notification to be issued in the
Official Gazette. The Special Judge is so empowered to
try any offence punishable under Section 3(1 )(a) of the
PC Act. The Special Judge is also empowered to try
under Section 3(1)(b) any conspiracy to commit or any H
626
SUPREME COURT REPORTS
[2014] 2 S.C.R:
A
attempt to commit or any abetment of any of the offences
specified in clause (a). Following offences would come
within the scope of Section 3(1) 'Of the PC Act: (1) Any
offence punishable under the PC Act. (2) Any conspiracy
to commit any offence punishable under the PC Act. (3)
B
Any attempt to commit any offence punishable under the
PC Act. (4) Any abetment of arw offence punishable
under the PC Act. [paras 21, 22] f642-D; 645-B-F]
1.3. Section 7 of the PC Act refers to offences dealing
with public servant taking gratification, other than the
C
legal remuneration in respect of an' official act. Section 10
deals with punishment for abetm~nt by a public servant
of offences defined in Sections 8 and 9. Section 11 of the
PC Act refers to an offence of a public servant obtaining
valuable thing, without consideration from person
D concerned in proceeding or business transacted by SJJCh
public servant. Offences under Sec,tions 7, 1 O and 11 can
be committed only by the jlublic servant, though an
offence under Section 7 can alsb be committed by a
person expected to be a public ser-Vant. An offence under
E
Section 7 or 11 could also be abetted by a non-public
servant, for which punishment has ~een prescribed under
Section 12 of the PC Act. Sections, deals with the taking
gratification, by corrupt or illegal' means, to influence
public servant. Section 9 deals with taking gratification,
F
for exercise of personal influence' with public servant.
Offences under Sections 8 and 9 can be committed by a
person who need not necessarily be a public servant. An
offence under Sections 8, 9 or 12 can be committed by a
public servant or by a private person or by combination
G of both. Section 13 deals with the criminal misconduct by
a public servant, which is exclusive'y an offence against
the public servant relating to criminal misconduct. An
offence under Sections 13 is made punishable under
Section 15 of the PC Act. These prQvisions indicate that
H a public servant as well as a non-public servant can
STATE THROUGH CBI NEW DELHI v. JITENDER
627
KUMAR SINGH
commit offences punishable under the PC Act. [para 24] A
[645-G-H; 646-A-D]
1.4. A Special Judge appointed under Section 3(1) of
the PC Act has got jurisdiction to proceed exclusively
against a public servant and exclusively against a non8
public servant as well, depending upon the nature of the
offence referred to in Chapter Ill of the PC Act. Junction
of a public servant is not a must for the Special Judge to
proceed against a non-public servant for any offence
alleged to have been committed by him under Chapter Ill
of the·PC Act. An offence under Section 8 or Section 9 C
can be committed by non-public servant and he can be
proceeded against under the PC Act without joinder of
any public servant. Thus, offences under Sections 7, 10,
11 and 13 of the PC Act can be committed by a public
servant though an offence under Section 7 can be D
committed also by a "person expected to be a public
servant". On the other hand: Section 8 .uses the words.
"whoever •.. ", simpliciter, without using any other
qualifying words. Likewise, Sections 9 and 12 also use
the words "whoever ... " simpliciter. Thus, an offence E
under Sections 8, 9 or 12 can be committed by any
person, who need not necessarily be a public servant. .
Such an offence can, therefore, be committed by a public
servant or by a private person or by a combination of the
two. It is thus clear that an offence under the PC Act can
F
be committed by either a public servant or a private
person or a combination of both and in view of the
mandate of Section 4(1) of the PC Act, read with Section
3(1) thereof, such offences can be tried only by a Special
Judge. Thus, the scheme of the PC Act makes it quite G
clear that even a private person who is involved in an
offence mentioned in Section 3(1) of the PC Act, is
required to be tried only by a Special Judge, and by no
other Court. Moreover, it is not necessary that in every
offence under the PC Act, a public servant must H
628
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
'!ecessarily be an accused. In other words, the existence
of a public servant for facing the trial before the Special
Court is not a must and even ln his absence, private
persons can be tried for PC as well as non-PC offences,
depending upon the facts of the case. Therefore, it is not
B the law that only along with t~e junction of a public
servant in array of parties, the Special Judge can proceed
against private persons who have committed offences
punishable under the PC Act. [para 25- 29] [646-E-G; 647B-E; 648-B-D]
c
1.5. Sections 3(1 )(a) and (b) deal with only the
offences punishable under the PC Act and not any
offence punishable under IPC ,or any other law and
Section 4(1) of the PC Act makes it more explicit. Section
4(1) of the PC Act has used a non-abstante clause. It
D says, "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". Consequently, the offences referred to in
E Section 3(1) cannot be tried by the ordinary criminal
court, since jurisdiction has been specifically conferred
on a Special Judge appointed under Section 3(1) of the
PC Act. Sub-section (2) of Section. 4 also makes it clear,
which says that every offence specified in sub-section (1)
F 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
G the Central Government. A conjoi'nt reading of Section
3(1) along with Sections 4(1) and (2) would make it amply
clear that only the Special Judge has got the jurisdiction
to try the offences specified in sub•section (1) of Section
3 committed by a public servant or, a non-public servant,
H alone or jointly. [Paras 30, 31] [648-E-H; 649-A-B]
STATE THROUGH CBI NEW DELHJ v. JITENDER
629
KUMAR SINGH
1.6. Sub-section (3) of Section.. 4 of the PC Act,
A
indicates that "when trying any cas,e", which means
tryi11g any case relating to the offences referred to in
Section 3(1 )(a) and (b) of the PC Act for which exclusive
jurisdiction is conferred on the Special Judge. A Special
Judge, while exercising, exclusive jurisdiction, that is,
when trying any case relating to offences under Sections
3(1)(a) and (b) of the PC Act, may als9 try any offence
other than the offence specified in Section 3, with which
B
the accused may, under the Code of Criminal Procedure,
1973 be charged at the same trial. An accused, in a given c
case, may be charged under the Code of Criminal
Procedure on an offence being committed under the IPC
and the offence specified in Section 3 of the PC Act.
Criminal cases that can be tried by a Special Judge are
under the PC Act and also for the charges under IPC or 0
any other legislation. Conspiracy to commit any offence
either under the PC Act or under the IPC is a separate
offence, has to be separately charged and tried. In other
words, an accused person, either a public servant or
non-public servant, who has been charged for an offence
under Section 3(1f of the PC Act, could also be charged
E
for an offence under IPC, in the event of which, the
Special Judge has got the jurisdiction to try such
offences against the public servant as well as against a
non-public servant. [Para 32, 34] [649-B-E; 650-A-B]
2.1. In Criminal Appeal No.161 of 2011, no charge was
framed against the public servant, while he was alive,
under Section 3(1) nor any charge was framed against a
private person for any offence under Section 3(1) of the
F
PC Act. The Special Judge, therefore, had no occasion
G
to "try any case" under Section 3(1) of the PC Act, either
against a public servant or a private person, so as to try
any offence other than an offence specified in Section 3,
meaning thereby, non-PC offences against private
person, like the appellant. The Special Judge appointed
H
630
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A under Section 3(1) could exercise, the powers under subsection (3) to Section 4 to try non-PC offence. Therefore,
trying a case _by a Special Judge ,under Section 3(1) is a
sine-qua-non for exercising juri~diction by the Special
Judge for trying any offence, other than an offence
B specified in Section 3. "Trying any case" under Section
3(1) is, therefore, a jurisdictional fact for the Special Judge
to exercise powers to ~ry any offence other than an
offence specified in Section 3. [paras 35, 36] [650-E-H;
651-A]
c
2.2. Exclusion of the jurisdictiei>n of ordinary Criminal
Court, so far as offences under the',PC Act are concerned,
has been explicitly expressed under Section 4(1) of the
PC Act, which does not find a place in respect of nonPC offences in sub-section (3) of Section 4 of the PC Act.
D Further, it is not obligatory on the part of a 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 upon the facts of each case and
the inter-relation between PC offences and non-PC
E offences. A Special Judge exercising powers under the
I
PC Act is not expected to try noA-PC offences totally
unconnected with any PC offences ,under Section 3(1) of
the PC Act and in the event of a Special Judge not trying
any offence under Section 3(1) of the PC Act, the question
F of the Special Judge trying non-PC offences does not
arise. Trying of a PC offence is a jurisdictional fact to
exercise the powers under Sub-section (3) of Section 4.
Jurisdiction of the Special Judge, as such, has not been
divested, but the exercise of jurisdiction, depends upon
G the jurisdictional fact of trying a PC offence. [paras 37, 38]
[651-B-F]
2.3. When the jurisdiction of a Court or a Tribunal is
dependent on the existence of a parti,cular state of affairs,
that state of affairs may be described as preliminary to,
H or collective to the merits of the is.sue. Existence of a
STATE THROUGH CBI NEW DELHI v. JITENDER
631
KUMAR SINGH
jurisdictional fact is thus a sine qua non or condition A
precedent to the assumption of jurisdiction by a Court.
[para 39] (651-G-H]
Carona Ltd. v. Parvathy Swaminathan & Sons (2007) 8
SCC 559: 2007 (10) SCR 656; Ramesh Chandra Sank/a v.
B
Vikram Cement & Ors. (2008) 14 SCC 58: 2008 (10) SCR
243; Ratilal Bhanji Mithani v. State of Maharashtra (1979) 2
sec 179: 1979 (1) SCR 993 - relied on.
Kartongen Kemi Ochforvaltning AB v. State through CBI
(2004) 1 JCC 218; Ajay Aggarwal v. Union of India (1993) 3 C
SCC 609: 1993 (3) SCR 543; Sanichar Sahni v. State of
Bihar (2009) 7 SCC 198: 2009 (10) SCR 112; Mohd. Arif v.
State (NCT of Delhi) (2011) 13 SCC 621: 2011 (10) SCR 56
- referred to.
D
3.1. Where a public servant dies at the fag end of the
trial, by that time, several witnesses might have been
examined and to hold that the entire trial would be vitiated
due to death of a sole public servant would defeat the
entire object and purpose of the PC Act, which is enacted E
for effective combating of corruption and to expedite
cases related to corruption and bribery. The purpose of
the PC Act is to make anti-corruption laws more effective
in order to expedite the proceedings, provisions for dayto-day trial of cases, transparency with. regard to grant of F
stay and exercise of powers of revision on interlocutory
orders have also been provided under the PC Act.
Consequently, once the power has been exercised by the
Special Judge under sub'-section (3) of Section 4 of the
PC Act to proceed against non-PC offences along with
PC offences, the mere fact that the sole public servant G
dies after the exercise of powers under sub-section (3)
of Section 4, will not divest the jurisdiction of the Special
Judge or vitiate the proceedings pending before him.
Therefore in Criminal appeal no.943 of 2008, the order of
the High Court is set aside and the· Special Judge is H
632
surREME COURT REPORTS
[2014] 2 S.C.R.
A
directed to complete the trial of the cases within a period
of six months. [para 43, 44] [653-G-H; 654-A-D]
3.2. In Criminal Appeal No. 1'61 of 2011, the FIR was
registered on 2.7.1996 and the charge-sheet was filed
8
before the Special Judge on 14.'9.2001 for the offences
under Sections 1208, 420, IPC read with Sections 13(2)
and 13(1) of the PC Act. 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 also not be framed since he died on 18.2.2005.
C The Special Judge also could 'not frame any charge
against non-public servants. Under sub-section (3) of
Section 4, the special Judge could try non-PC offences
only when "trying any case" relating to PC offences. In
the instant case, no PC offence has been committed by
D ariyof the non-public servants so as to fall under Section
3fi) 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 Appellant. The trying of any
case under the PC Act against a public servant or a nonE public servant is a sine-qua-non for exercising powers
under sub-section (3) of Secti~n 4 of PC Act. In the
instant case, since no PC offenc,e has been committed
by any of the non-public servants and no charges have
I
been framed against the public ~ervant, while he was
F
alive, the Special Judge had no o~casion to try any case
against any of them under the P~ Act, since no charge
has been framed prior to the deatti of the public servant.
The jurisdictional fact does not exjst so far as this appeal
is concerned, so as to exercise jur,sdiction by the Special
G Judge to deal with non-PC offenc~s. Consequently, there
is .no error in the view taken by, the Special Judge in
forwarding the case papers t9 the Court of Chief
Metropolitan Magistrate for trying the case in accordance
with law. [Para 45, 46] [654-E-H; 655-A-C]
H
STATE THROUGH CBI NEW DELHI v. JITENDER
633
KUMAR SINGH
Case Law Reference:
(2004) 1 JCC 218
referred to·
Para 9
1993 (3) SCR 543
referred to
Para 32
2009 (10) SCR 112
referred to
Para 33
2011 (10) SCR 56
referred to
Para 33
2003 (3) Suppl. SCR 1087
relied on
Para 34
2007 (10) SCR 656
relied on
Para 39
2008 (10) SCR 243
relied on
Para 39
1979 (1) SCR 993
relied on
Para 40
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
A
B
c
No. 943 of 2008.
D
From the Judgment and Order dated 21.04.2006 of the
High Court of Delhi at New Delhi in Crl. Revn. Petition No. 535
of 2005.
WITH
Crl. Appeal No. 161 of 2011.
E
P.P. Malhotra, ASG, V. Giri (A.C), Basanth R., K.
Radhakrishnan, 'Uday U. Lalit, Guru Krishna Kumar,
Mohammed Sadique T.A. (A.C), Shivaji M. Jadhav, Anish R. F
Shah, Dr. Ashok Dhamija, T.A. Khan, Yasir Rauf, Sharika
Bhanot, Sonia Dhamija, Hari. Shankar K., Kawai Nain, Vikas
·Singh Jangra, Aditya Verma, Lakshmi, Asha G. Nair for the
Appearing Parties.
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J. 1. We are, in these cases,
concerned with the interpretation of various sections that appear
G
in Chapter II read with Chapter Ill of the Prevention of Corruption
Act, 1988 (for short "the PC Act"), especially Sections 3, 4, 5 H
634
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
and other related provisions dealing with offences and penalties
appearing in Chapter Ill of the PC Act.
2. We are, in Criminal Appeal No. 943 of 2008, concerned
with the question whether the Special Judge, after framing
8
charges against a Public Servant under 13(2) read with Section
13(1)(b) falling under Section 3(1) of the PC Act and against
private persons for offences under Sections 120-B, 420, 467,
468, 471 IPC can go ahead with th'e trial of the case against
the private persons for non-PC offences, even after the death
of the sole public servant. In oth~r words, the question is
C whether, on the death of the sole public servant, the Special
Judge will cease to have jurisdiction to continue with the trial
against the private persons for non-PC offences. Further
question raised is that, assuming that the Special Judge has
jurisdiction under sub-section (3) of Section 4 of the PC Act to
D proceed against the private persons, is the Special Judge duty
bound to try any non-PC offence,, other than the offences
specified under Section 3 of the PC Act against the accused
persons charged at the same trial.
E
3. In Criminal Appeal No. 161 of 2011, we are concerned
with the question as to whether
1the Special Judge has
jurisdiction under Section 4(3) of the PC Act to try non-PC
offences against private persons when no charges have been
framed against public servants for t!)'ing a case for offences
F
under Section 3(1) of the PC Act, sine~ they died before framing
of charges under the PC Act or IPC.
4. We have two conflicting judgments, one rendered by the
Delhi High Court, which is impugned in Criminal Appeal No.
943 of 2008 filed by the State through Central Bureau of
G Investigation (CBI), New Delhi and the other rendered by the
Bombay High Court, which is challenged by a private person
in Criminal Appeal No. 161 of 2011.'
'
5. Delhi High Court seems to have taken the view that when
H public servants and non-public servants are arrayed as co-
STATE'THROUGH CBI NEW DELHI v. JITENDER
635
KUMAR SINGH [K.S. RADHAKRISHNAN, J.]
accused and some offences are under the PC Act coupled with A
other offences under IPC, on death of a public servant, the
offences under the PC Act cannot be proceeded with and the
trial Court has to modify and/or alter and/or amend the charges.
Bombay High Court has taken the view that once the jurisdiction
is vested on a Special Judge, the same cannot be divested on B
the death of a public servant and that if a private person has
abetted any offences punishable under the PC Act, he can be
tried even without the public servant, in view of the separate
charge levelled against such private person by the Special
Judge.
c
6. We may first deal with the facts in Criminal Appeal No.
943 of 2008. The CBI, New Delhi registered a case No. RCSIG
2000/E0001 on 16.5.2000 against one P. K. Samal (A-1), Chief
Managpr SBI, Jaipur Road, J. K. Singh (A-2), Director M/s
Mideast Integrated Steels Ltd. (MISL), New Delhi, Rita Singh D
(A-3), Director M/s MISL, Deepak Singh (A-4) and Proprietor
Kesoram Refractory, New Delhi, under Section 120B read with
Sections 420, 467, 471 IPC and Section 13(2) read with
Section 13(1 )(d) of the PC Act and substantive offences under
- Sections 420, 467, 468 and 471 IPC and Section 13(2) read E
with Section 13(1 )(d) of the PC Act alleging that A-1, during
1996-97, was a party to a criminal conspiracy with A-2, A-3,
A-4 and others with the object of cheating IDBI, Mumbai and in
pursuance thereof, A-1 abused his official position to cause
undue pecuniary advantage to the accused persons A-2 and F
A-3 and corresponding loss to IDBI, to the tune of
Rs.3,52,63,550/- by negotiating forged /fictitious invoices
purportedly of M/s. Kesoram Refractories, a B.K. Birla Group
Company, Calcutta, against L.Cs opened by SBI, Jaipur Road.
7. CBI, after completing the investigation, filed chargesheet on 1.11.2001 before the Special Judge, New Delhi and
the Special Judge, on 25.3.2003, after hearing the prosecution
G
as well as the defence counsel, framed charges against the
accused persons under Section 120B read with Sections 467, H
636
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
471 and 420 IPC and also under Sections 13(1)(d) and 13(2)
of the PC Act and substantive offences against the accused
persons under Sections 420, 467, 47·1 IPC and also
substantive offences under Sections 13(1 )(d) and 13(2) of the
PC Act against A-1. All the accused persons pleaded not guilty
B
and claimed trial.
8. The Special Judge, later, posted the case for
prosecution evidence on 10.4.2003 and, on that day, two
witnesses were present, but the case was adjourned.
Meanwhile, on 20.6.2003, the sole public servant A-1 died. AC
3 then filed Criminal Revision No. 550 of 2003 before the High
Court of Delhi on 22.7.2003 challenging the order framing the
charges against him. The High Court, on 1.8.2003, directed the
trial Court to record only the examination-in-chief of the
witnesses. Accordingly, the examination-in-chief of 8
D prosecution witnesses was recorded on different days. On
28.4.2004, A-2 filed an application before the Special Judge
for dropping the charges in view of the death of A-1, the sole
public servant. On 12.5.2004, A-2 filed an application before
the High C9urt as Criminal M.C. No. 1395/2004 seeking stay
E
of further proceedings before the trial Court, till charges are
amended. The High Court, on 14.5.2004, directed the trial
Court to dispose of the application filed by A-2 for modification,
amendment or alteration of charges on account of death of A1 and further directed if the Court feels it necessary, it may add,
F
alter or amend the charges and proceed in accordance with
law.
9. CBI, however, filed objection to the above application
before the Special Judge on 20.5.2004. A-2, on 12.7.2005, filed
Criminal Revision No. 535 of 2005 before the High Court for
G calling of the case pending before the Special Judge, so as to
consider the propriety of not passing any order on the
application for dropping the charges, despite the directions
issued by the High Court. He also prayed for setting aside the
c;;harges in view of the death of the sole public servant. CBI
H
STATE THROUGH CBI NEW DELHI v. JITENDER
637
KUJvlAR SINGH [K.S. RADHAKRISHNAN, J.]
questioned the maintainability of the revision and also pointed
A
out that there is no statutory provision vitiating the jurisdiction
of the Special Judge on death of the public servant. The High
Court, however, placing reliance on its earlier judgement in
Kartongen Kemi Ochforvaltning. AB v. State through CBI
(2004) 1 JCC 218 (Bofors case) held that on the death of a
B
public servant, the offences under the PC Act cannot be
proceeded with and directed to modify and alter and/or amend
the charges in view of the death of A-1, the legality of which is
under challenge in Criminal Appeal No. 943 of 2008.
10. We may now examine the facts in Criminal Appeal No.
161 of 2011. CBI (Banks Securities & Fraud Cell), Mumbai
registered an FIR on 2.7.1996 which discloses that accused
no. 1, the then Chairman and Managing Director of the Bank
c
of Maharashtra, Pune, who was working as Deputy General
Manager of Bank of Maharashtra along with accused nos. 9
D
and 10, the employees of the Bank of Maharashtra, entered into
a criminal conspiracy with an intent to cheat the bank, with the
appellant (accused no. 2) and accused Nos. 3 and 5, who were
working as the Managing Director, General Manager of Mis
Orson Electronics Limited respectively. It was also alleged in
E
the FIR that, during 1986-88, A-2 and other accused persons
entered into a criminal conspiracy with the officers of the Ban_k
of Maharashtra and, in pursuance to the criminal conspiracy,
obtained huge credit facilities to the tune of Rs.20 crore in favour
of M/s Orson Electronics Limited and M/s Nihon Electronics
F
Limited, of which A-2 was the Managing Director/Director,
knowing very well that both the companies were having very low
capital and were new. It was also alleged in the FIR that those
funds were not utilized for the purpose for which the same were
obtained from the bank and were siphoned off through Mis
G
Orson Electronics Limited and other fictitious firms.
Consequently, accused persons failed to repay the funds of the
bank, thereby the bank was cheated to the tune of Rs.20.64
crores. It was also alleged in the FIR that A-1 had abused his
position as public servant and granted favour to A-2 to A-8 and
H
0
638
SUPREME COURT REPORTS
[2014) 2 S.C.R.
A thereby caused wrongful losses to the bank.
11. CBI completed the investigation and the charge-sheet
was filed on 14.9.2001 against the accused persons for
offences punishable inter alia under Section 120B read with
B Section 420 IPC and Section 5(2) read with Section 5(1)(b) of
the Prevention of Corruption Act, 194 7, corresponding to
Section 13(2) read with Section 13(1 )(d) of the PC Act, in the
Court of Special Judge, Mumbai.
12. Ac~sed nos. 9 and 10, though named in the chargeC sheet, could not be sent for trial since they died before the
charge-sheet came to be filed on 14.9.2001. On 18.2.2005, A1, the sole public servantalso expiroo. A-2, the appellant herein,
then preferred an application before the Special Judge for
sending the case to the Metropolitan Magistrate at Bombay for
D conducting the trial for offences under IPC, as the offence under
the PC Act was not attracted due to the death of the public
. servant. It was pointed out that, in the charge-sheet, two public
servants were joined as accused persons, but only one of them
was alive when the charge-sheet was filed. Further, it was stated
• E that when the charges were sought to be framed, no publlc
servant was alive, hence, no'l;narges under the PC Act could
be framed. In the absence of any offence under the PC Act,
the Special Judge could not have tried the offences levelled
against the accused persons under the IPC. The application
F was, however, opposed by CBI stating that even though the sole
public servant had died, the offence levelled against the
accused persons could be tried by the Special Judge.
G
13. The Special Judge, after hearing the parties, passed
the following order:
"9. On going through the above ratios, it can be said that
the existence of public servant for facing trial before the
Special Court is must and in his absence, private person
cannot be tried by Special Court. In present case, the sole
H
public servant died during the pendency of this case. The
. .
>
_..,.
STATE THROUGH CBI NEW DELHI v. JITENDER
639
KUMAR SINGH [K.S. RADHAKRISHNAN, J.]
charge is not framed. The accused Nos. 2 to 8 are private A
persons facing trial for the offences punishable under
Section 409 r/w 120-B of IPC. The said offences are
triable by the Court of Chief Metropolitan. Magistrate.
Therefore, the case is required to be sent to Court of Chief
Metropolitan Magistrate for trial as per the law. With this, t s
pass the following order:-
ORDER
Misc. Application (Exh. 18) is allowed.
Registrar (S} is directed to send case papers of Spl.
Case No.88 of 2001 to Chief Metropolitan Magistrate for
trial of accused according to law within period of four
weeks from the date of this order.
Misc. Application (Exh.18) stands disposed of.
c
D
Sd/- 5.2.09
(S.P. Tavade}
Special Judge for CBI Cases
Greater Mumbai."
E
14. CBI, aggrieved by the said order, preferred Criminal
Revision Application No. 389/2009 before the Bombay High
Court. The High Court took the view that the jurisdiction
conferred on the Special Judge is not divested on the death of F
an accused. The High Court held that, upon death, the case
against that public servant alone abates and the rest of them ·
can be proceeded against by the Special Judge, since the'·
Court, once vested with the jurisdiction, cannot be divested of
it on the death of a public servant. Consequently, the order G
passed by the Special Judge was set aside and the Special
Judge, CBI, Bombay was directed to continue with the trial of
the case. Aggrieved by the same, Criminal Appeal No. 161 of
2011 has been preferred by A-2.
15. Shri P.P. Malhotra. learned Additional Solicitor General
H
640
SUPREME COURT REPORTS
[2014] 2 S.C.R.
A
appearing for CBI in Criminal Appeal No. 943 of 2008, referred
to Sections 3(1) and 4(1) of the PC Act and submitted that
irrespective of whether the offence mentioned in Section 3(1)
was committed by a public servant or a private person,
individually or jointly, trial could be conducted only by the
B
Special Judge who is conferred with the jurisdiction by the
Central Government or the State Government, as the case may
be, under the PC Act. Shri Malhotra submitted that on the death
of a public servant, the jurisdiction once vested on the Special
Judge cannot be divested. Further, it was also pointed out that
c once the public servant dies, the charge against him alone would
abate, but the jurisdiction of the Court would not be divested. It
was stated that the direction issued by the High Court was
contrary to the statutory provisions and settled principles of law
and is liable to be set aside.
D
. 16. Shri K. Radhakrishnan, learned senior counsel
appearing for the CBI in Criminal Appeal no. 161 of 2011,
highlighted the objects and reasons of the PC Act and
submitted that once the jurisdiction to try the offence under the
PC Act, as well as the offence under IPC, has been conferred
E
on a Special Judge, it cannot be divested by the act of parties,
even on the death of a public servant.
17. Shri V. Giri, learned senior counsel and amicus curiae,
submitted that once jurisdiction is conferred on a Special
F
Judge, it cannot be divested by the subsequent events and on
death of the public servant only the charge against him will
abate, but the jurisdiction of the Special Judge will not be
divested.
18. Shri Kawai Nain, learned counsel appearing for the
G respondents in Criminal Appeal No. 943 of 2008, also traced
the legislative history of the PC Act as well as the jurisdiction
of the ordinary Criminal Court under the Code, with specific
reference to Section 3 of the PC Act read with Section
13(1 )(d)(i)(ii) of the PC Act and Section 120B of the IPC.
H Learned counsel pointed out that the charge against public
STATE THROUGH CBI NEW DELHI v. JITENDER
641
KUMAR SINGH [K.S. RADHAKRISHNAN, J.]
servant under Section 13(1)(d)(i)(ii) has abated on his death, A
consequently, it would not be possible for the Special Judge
to try any offence as against the respondents, since both are
intrinsically interlinked. Learned counsel pointed out that to
establish an bffence of conspiracy, there must be two or more
persons as stated in Section 120A IPC.
B
19. Shri R. Basant, learned senior counsel appearing for
the appellant in Criminal Appeal No.