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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.