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CASE NO.: Appeal (crl.)  635 of 2007

PETITIONER: V.K. Puri

RESPONDENT: Central Bureau of Investigation

DATE OF JUDGMENT: 27/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.    635            OF 2007 [Arising out of SLP (Crl.) No. 5932 of 2006] WITH TRANSFER PETITION (CRL.) NO. 351 OF 2006

S.B. SINHA,  J :

       Leave granted.

                What would be the territorial jurisdiction of a Special Court within the  meaning of the provisions of the Prevention of Corruption Act, 1988 (for  short "the 1988 Act") is the question involved in this appeal which arises out  of a judgment and order dated 1.09.2006 passed by the High Court of Delhi  in Crl. Rev. Petition No. 556 of 2006.

       Appellant was an officer working in the Customs Department.   Central Bureau of Investigation registered a First Information Report against  him purported to be for commission of an offence under Section 13(2) read  with Section 13(1)(e) of the 1988 Act, viz., acquiring of assets  disproportionate to the appellant’s known sources of income for the check  period of 1.06.1988 to 22.02.2002.   Contention of the appellant is that, as he  had never been posted in Delhi during the aforementioned period, the Delhi  Court has no jurisdiction to his case.  The learned Special Judge as also the  High Court has rejected the said contention of the appellant.

       Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf  of the appellant, would submit that the ingredients of an offence involving  Section 13(1)(e) of the 1988 Act vis-‘-vis the other provisions thereof read  with the relevant provisions of the Code of Criminal Procedure, viz.,  Sections 177 and 178 thereof, would clearly go to show that the situs of the  properties which are said to have been acquired out of the income of the  employee would not confer jurisdiction upon the court.   

       It was submitted that the only fact relevant therefor would be as to  where the public servant concerned committed acts of misconduct or abused  his official position, which would be the places where he had held his  offices.  It was urged that the principal place of commission of offence will  have to be judged having regard to the area where the offence has been said  to have been completed.  Reliance in this behalf has been placed on M.  Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad [(1992)  4 SCC 45] and CBI, ADH, Patna v. Braj Bhushan Prasad and Others [(2001)  9 SCC 432].

       Drawing our attention to a judgment of Punjab and Haryana High

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Court rendered by M.M. Punchhi, J. (as the learned Chief Justice then was)  in Kamal Dev v. State of Haryana [1986 (3) Crimes 305], it was submitted  that the term "possession" would refer to the source and not the situs of the  property.

       Mr. A. Sharan, learned Additional Solicitor General appearing on  behalf of the respondent, on the other hand, would submit that as by reason  of Sub-section (3) of Section 5 of the 1988 Act, the provisions of the Code  of Criminal Procedure have been made applicable in relation to the  proceedings initiated against the 1988 Act, in a case where the offence was  committed at more than one place, any of the courts concerned will have  jurisdiction to try the offence.  Reliance in this behalf has been placed on P.  Nallammal and Another v. State Represented by Inspector of Police [(1999)  6 SCC 559].

       Before embarking on the questions involved herein, we may notice  the relevant provisions of the Code of Criminal Procedure and the 1988 Act.

       Sections 177 and 178 of the Code of Criminal Procedure read as  under: "177 - Ordinary place of inquiry and trial  Every offence shall ordinarily be inquired into and  tried by a Court within whose local jurisdiction it  was committed.

178 - Place of inquiry or trial   (a) When it is uncertain in which of several local  areas an offence was committed, or  (b) where an offence is committed partly in one  local area and partly in another, or  (c) where an offence is a continuing one, and  continues to be committed in more local areas than  one, or (d) where it consists of several acts done in  different local areas,  

it may be inquired into or tried by a Court having  jurisdiction over any of such local areas."

       The relevant provisions of the 1988 Act read as under:

"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

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shall be tried byspecial 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) *** (4) *** 5 - Procedure and powers of special Judge   (1) A special Judge may take cognizance of  offences without the accused being committed to  him for trial and, in trying the accused persons,  shall follow the procedure prescribed by the Code  of Criminal Procedure, 1973 (2 of 1974), for the  trial of warrant case by Magistrates.  (2) *** (3) Save as provided in sub-section (1) or sub- section (2), the provisions of the Code of Criminal  Procedure, 1973 (2 of 1974), shall, so far as they  are not inconsistent with this Act, apply to the  proceedings before a special Judge; and for   purposes of the said provisions, the Court of the  special Judge shall be deemed to be a Court of  Session and the person conducting a prosecution  before a special Judge shall be deemed to be a  public prosecutor. (4) *** (5) ***    (6) *** ***                     ***                     *** 13 - Criminal, misconduct by a public servant   (1) A public servant is said to commit the offence  of criminal misconduct, \027 (a)  *** (b)  *** (c)  if he dishonestly or fraudulently  misappropriates or otherwise converts for his own  use any property entrusted  to him or under his  control as a public servant or allows any other  person to do so; or (d) if he,\027 (i) by corrupt or illegal means, obtains for himself  or for any other person any valuable thing or  pecuniary     advantage; or (ii) by abusing his position as a public servant,  obtains for himself or for any other person any  valuable thing or pecuniary advantage; or (iii) while holding office as a public servant,  obtains for any person any valuable thing or  pecuniary     advantage without any public,  interest; or (e) if he or any person on his behalf, is in  possession or has, at any time during the period of  his office, been in possession for which the public  servant cannot satisfactorily account, of pecuniary  resources or property disproportionate to his  known sources of income."

       The 1988 Act is a Special Act.  It over-rides the provisions of the  general law, viz., Code of Criminal Procedure.  But, then when a matter is  not covered by the 1988 Act, in view of Sub-section (3) of Section 5 of the  1988 Act, the provisions of the Code of Criminal Procedure shall clearly be  applicable.

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       A distinction exists between a case filed under Sections 13(1)(c) and  13(1)(d) of the 1988 Act, on the one hand, and Section 13(1)(e) thereof, on  the other.

       Ingredients of the offence under Section 13(1)(e) of the 1988 Act are:

(i)     The accused  is a public servant; (ii)    The nature and extent of the pecuniary resources of property found  in his possession; (iii)   His known sources of income, i.e., known to the prosecution. (iv)    Such resources or properties found in possession of the accused  were disproportionate to his known sources of income.   

       Once, however, the aforementioned ingredients are established by the  prosecution, the burden of proof  would shift on the accused to show that the  prosecution case is not correct.  [See M. Krishna Reddy (supra), para 7]

       One of the ingredients of offences, therefore, is known sources of  income.  What is material therefor is that the criminal misconduct had been  committed  during the period he held office and not the places where he had  held offices.  The fact that the appellant had bank accounts within the  jurisdiction of the Delhi Courts as also immovable properties is not in  dispute.  Respondent in the chargesheet has clearly pointed out that one of  his known sources of income was the rental received by him from his Delhi  flat.  The same had been given due credit for the purpose of arriving at a  prima facie satisfaction that the assets possessed of by him are  disproportionate to his known source of income.

       From a perusal of the chargesheet, it furthermore appears that the  appellant is said to have acquired large properties including several bank  accounts.  For the purpose of proving the offence, therefore, on the one  hand, known sources of income must be ascertained vis-‘-vis the possession  of property or resources which were disproportionate to the known sources  of income of public servant and the inability of the public servant to account  for it, on the other.  Whereas the burden to prove the first part of the offence  is on the prosecution, in the event the same is proved, it would shift to the  public servant concerned. [See P. Nallammal (supra)]

       It is not a case where the offence revolves round any conspiracy or  abetment to commit an offence to commit an offence.  It is also not a case  falling under Clauses (c) and (d) of Sub-section (1) of Section 13 of the 1988  Act as was the case in Braj Bhushan Prasad  (supra).  Appellant is not  accused of commission of such an offence.  No other person has been  charged with the offence of abetment and conspiracy.  The question of  finding out the place where the offence was completed, thus, does not arise  in this case.   

       Strong reliance has been placed by Mr. Nageshwara Rao on a Single  Judge Bench decision of the Kerala High Court in Banwarilal Jhunjhunwalla  and Others v. Union of India [AIR 1959 Kerala 311] wherein it was  observed:

"13. Taking the first offence under Section 5 (2) of  the Prevention of Corruption Act, alleged to have  been committed by Thomson, there can be little  doubt that it was committed within the State of  Kerala where he passed inferior jungle-wood as  timber of the contract quality and issued false  certificates to that effect. (Of course these  statements are as yet no more than assumptions  based on the prosecution case, in accordance with  which the question of jurisdiction has to be  determined and it is unnecessary to repeat this  caution at every stage of the discussion).

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When Thomson did this, he was undoubtedly  abusing his position as a public servant, and it is a  legitimate inference that he thereby obtained for  himself or at least for the contractors, a pecuniary  advantage. The act of abusing his position as a  public servant certainly took place within the  Kerala State where the false certificates were  issued, and even if the consequence of obtaining a  pecuniary advantage for himself or for the  contractors which consequence makes that act an  offence took place elsewhere, under Section 179,  Criminal Procedure Code, the special judge for  Kerala would have jurisdiction to try the offence.  That the special judge has jurisdiction to try  Thomson for the offence under Section 5 (2) of the  Prevention of Corruption Act is, in fact, not  disputed."

       However, therein the factual matrix was absolutely different.  In a  case of this nature, the question of completion of any offence does not arise.

       In a case involving Section 13(1)(e) of the 1988 Act, what is  necessary is as to whether keeping in view the period in question, commonly  known as check period, the public servant has acquired wealth which is  disproportionate to his known sources of income.  It has nothing to do with  individual case of bribery.  It has nothing to do with a series of acts  culminated into an offence.

       Each Court, where a part of the offence has been committed, would,  therefore, be entitled to try an accused.  The 1988 Act does not bar  application of Section 178 of the Code of Criminal Procedure.  If application  of the provision of Section 178 of the Code of Criminal Procedure is not  barred, the fact that the appellant has a part of his known source of income at  Delhi, in our opinion, would confer jurisdiction upon the Delhi Courts.  It is  one thing to say that only the Special Courts will have jurisdiction to try the  offence, but for the purpose of arriving at a decision as to the Special Judge  of which place shall have the requisite jurisdiction, the situs of the property  may or may not have any relevance.  Once the situs of the property is held to  have relevance for the purpose of ascertaining his known source of income  and consequent acquisition of disproportionate assets, in our opinion, the  Special Judge concerned will also have the requisite jurisdiction to try the  case.  For the said purpose, purport and object for which the 1988 Act has  been enacted must be taken into consideration.  The doctrine of purposive  construction therefor must be taken recourse to.

       With respect, Punchhi, J. (as the learned Chief Justice then was) in  Kamal Dev (supra) was not concerned with such a question and in that view  of the matter, the following observations made in paragraph 4 may not have  strict application: "4. The commission of the offence of criminal  misconduct has nexus to the period of his office.  It  is so intimately interlinked that it is the place of  office which would determine the place of  commission of his misconduct.  It is through his  office alone that one can determine his known  source of income and if his property which is  presently in his possession or in possession of  someone on his behalf, or has at any time during  the period of his office been in his possession or of  someone on his behalf, then it is relatively to be  viewed with the period of his office.  In this  context, the place of office assumes importance,  for that would determine the jurisdiction in which  the offence of criminal misconduct would be

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triable.  Thus, in the instant case, I am of the view  that it was the Special Judge at Chandigarh who  had the jurisdiction to try the offence against the  petitioner."

       In any event, as would appear from paragraph 5 of the said judgment  itself, the learned Judge did not intend to determine the said question finally  as ultimately the doctrine of forum conveniens had been taken recourse to  for holding that although more than one Special Judge may have jurisdiction  to try the offence, the Special Judge at Chandigarh would be the appropriate  authority to have the case tried before it in the interest of justice.

       For the reasons aforementioned, we, albeit for different reasons, do  not find merit in this appeal which is dismissed accordingly.

TRANSFER PETITION (CRL.) NO. 351 OF 2006

       An application for transfer has been filed wherein one of the principal  questions raised was the absence of territorial jurisdiction of the Special  Judge, Delhi.

       The matter is pending for a long time before the Delhi Court.  Charges  have already been framed.  It may be that many of the prosecution witnesses  do not hail from Delhi.  It may further be that Accused No. 3 is a resident of  Indore but as the offence is said to have been committed in the year 2002  and chargesheet has also been submitted in that year, we are of the opinion  that the transfer petition at this stage should not be entertained.  It is  dismissed accordingly.