Abhishek Srivastava vs U.O.I. Thru. Central Bureau Of ...
2021 Latest Caselaw 11325 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
AFR
 

 
RESERVED ON 6.10.2021
 
DELIVERED ON 16.11.2021
 

 

 
Case :- U/S 482/378/407 No. - 3465 of 2021
 

 
Applicant :- Abhishek Srivastava
 
Opposite Party :- U.O.I. Thru. Central Bureau Of Investigation
 
Counsel for Applicant :- Sudhanshu S. Tripathi,Abdul Ahad,Aishwarya Saxena,Shagun Srivastava
 
Counsel for Opposite Party :- Anurag Kumar Singh
 

 
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, Anti-Corruption 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 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:-

"वर्तमान प्रकरण में यद्यपि कि एक मात्र लोक सेवक के विरूद्ध सज्ञान के पूर्व मृत्यु हो जाना एक स्वीकृत तथ्य है परन्तु उक्त सूचना न्यायालय को प्रसंज्ञान के स्तर पर प्राप्त न होने के कारण विशेष.न्यायालय द्वारा सम्बन्धित प्रकरण में संज्ञान लिया गया तथा पत्रावली यद्यपि कि लोक सेवक के विरुद्ध आरोप विरवन नहीं किया गया परन्तु पत्रावली में सम्पूर्ण साक्ष्य इसी न्यायालय के समक्ष किया गया। यह भी उल्लेखनीय है कि सम्बन्धित विचारण के अन्य शह अभियुक्त का विचारण करते हुए इसी न्यायालय द्वारा निर्णय भी किया जा चुका है। चूंकि प्रस्तुत प्रकरण में एक मात्र अभियका अभिषेक श्रीवास्तव विचार हेतु शेष है क्योंकि अभियुक्त अभिषेक श्रीवास्तव फरार हो गया था और जिस कारण अभियुक्त अभिषेक श्रीवास्तव की पत्रावली मूल पत्रावली से प्रथक कर दी गई थी तथा अन्य सह अभियुक्त नईम खा की पत्रावली दिनांक 15.5. 2019 को इसी न्यायालय द्वारा निर्णीत की जा चुकी है। इस पत्रावली में अभियुक्त अभिषेक श्रीवास्तव के विरूद्ध अभियोजन का साक्ष्य पूर्ण हो चुका है तथा पत्रावली अभियुक्त के बयान धारा 313 द०प्र०सं० में नियत है। इसके पूर्व कभी भी सम्बन्धित अभियुक्त ने इस न्यायालय में क्षेत्राधिकार न तो प्रश्नगत किया और ल ही इस प्रकृति का पूर्व में कोई प्रार्थना पत्र ही प्रस्तुत किया। माननीय उच्चतम न्यायालय द्वारा भ्रष्टाचार के अपराध के मामलों का निस्तारण यथाशीघ्र किये जाने का दिशा निर्देश समय समय पर दिया जाता है और उनका प्रर्यवेक्षण भी किया जाता है। पत्रावली न्यायनिर्णय के अंतिम स्तर पर लम्बित है। यद्यपि कि सम्बंधित प्रकरण सह अभियुक्त लोक सेवक की मृत्यु हो चुकी है परन्तु लोक सेवक की सम्बन्धित अपराध में सलिशता रही है। जबकि (2014) - 11 एस सी सी 724 के मामले में माननीय उच्चतम न्यायालय ने पैरा-38 में यह मत व्यक्त किया गया है कि 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 सम्बन्धित प्रकरण में विवचनापरात अभियुक्त अभिषेक श्रीवास्तव पर मृतक लोक सेवक सुशील कुमार मिश्रा के साथ अपराधिक षडयंत्र में सम्मिलित होकर सम्बन्धित अपराध को कारित किये जाने का आरोप है। ऐसे में यह प्रकरण totally unconnected विचारण की श्रेणी में नहीं आता है। ऐसे में उपरोक्त विधि व्यवस्था से सम्बन्धित प्रकरण के तथ्य इस प्रकरण से भिन्न होने के कारण इस मामले में अनुकरणीय नहीं है क्योंकि पूर्व में अभियुक्त द्वारा क्षेत्राधिकार को कभी भी किसी भी स्तर पर चुनौती नहीं दी गई थी। वर्तमान में प्रकरण साक्ष्य समाप्त होने के उपरांत बयान धारा-313 द०प्र०सं० के स्तर पर लम्बित होने पर अभियुक्त ने न्यायालय के क्षेत्राधिकार को प्रश्नगत किया है, पूर्व में भी अभियुक्त विचारण के समय फरार हो गया था तथा लम्बे समय उपरांत गिरफ्तार होकर न्यायालय के समक्ष प्रस्तुत किया गया था। ऐसे में सी०बी०आई० द्वारा दिये गये इस तर्क में बल प्रतीत होता है कि अभियुक्त द्वारा विचारण को लम्बित करने के दुराशय से इस स्तर पर न्यायालय के क्षेत्राधिकार को प्रश्नगत करते हुए स्थानान्तरण प्रार्थना पत्र प्रस्तुत किया है। चूंकि प्रस्तुत मामले में अन्य सह अभियुक्त का विचारण इसी न्यायालय द्वारा पूर्व में किया जा चुका है। ऐसे में भ्रष्टाचार के मामलों के अपराधों का शीघ्र निस्तारण की विद्यायिका की अशा तथा माननीय उच्चतम न्यायालय द्वारा इस संदर्भ में दिये गये "दशा निर्देशों के अनुपालन में यह उचित प्रतीत होता है कि इस न्यायालय द्वारा सम्बन्धित मामले का निस्तारण अति शीघ्रता से किया जाय। अतः उपरोक्त विधि व्यवस्था समग्र विवेचना तथा प्रकरण के विशेष तथ्य परिस्थितियों एवं शीघ्र निस्तारण के मंशा को दृष्टिगत रखते हुए अभियुक्त द्वारा प्रस्तुत प्रार्थना पत्र इस स्तर पर स्वीकार किये जाने योग्य नहीं है।

आदेश

अभियुक्त अभिषेक श्रीवास्तव द्वारा प्रस्तुत प्रार्थना पत्र बी-33 निरस्त किया जाता है। पत्रावली वास्ते बयान धारा 313 द०प्र०स० हेतु दिनांक 10-09-2021 को पेश हो।"

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 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 Sub-Section 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 non-public servant, as already indicated, is a sine-qua-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 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. In Ramesh Chandra Sankla v. 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.

Order Date :- 16.11.2021

Madhu