Central Bureau Of Investigation vs Shri Sham B. Bhatia & Ors
2009 Latest Caselaw 150 Bom

                                    1

PGK

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                       
                         APPELLATE SIDE
          Criminal Revision Application No.389 of 2009




                                               
Central Bureau of Investigation
Bank Securities & Fraud Cell, Mumbai
(through the Superintendent of Police)              ..       Applicant




                                              
                V/s.

    1.Shri Sham B. Bhatia & ors.             ..     ..       Respondents




                                       
Mr.D.J. Khambatta, learned Additional Solicitor General
                          
with Mr.M.S. Bhardwaj, Mr.S.K. Shinde, Mr.H.V. Mehta and
Mr.Afroze Shah for Applicant.
                         
Mr.Shirish Gupte, Senior Counsel with Mr.Nikhil Ved i/by
Mr.J.D. Ved for Res. No.1.

Mr.Rajendra Shirodkar for Res.Nos.2 & 4.
            


Mr.Yatin N. Shah for Res.No.3.
         



Mrs.P.P. Bhosale, APP for State.
    -----





                                 CORAM : SMT.ROSHAN DALVI, J.
Date of reserving the order : 8th December 2009
Date of pronouncing the order : 19th December 2009





ORDER :

1.This Application challenges the order of the learned Special Judge (CBI), Greater Mumbai, dated 5.2.2009 passed in Special Case No.88 of 2001, sending the case

papers of the aforesaid case to the learned Chief Metropolitan Magistrate for trial of the accused

according to law. The Respondents herein came to be charged along with certain other accused for offences

punishable, inter alia, under Sections 120B with Section 420 of the Indian Penal Code (IPC) and Section

5(2) read with Section 5(1)(b) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) read with Section 13(1)(d) of the Prevention of

Corruption Act, 1988.

2.The case of the prosecution is that the accused, some of whom were employees of Bank of Maharashtra and some

of whom were the customers of Bank of Maharashtra, entered into a criminal conspiracy to cheat the Bank by

obtaining for themselves a large amount of cash credit facility/overdraft facility as Directors of a newly

incorporated Company with a very low capital and to the extent of Rs.20.60 Crores which was not used for the

purpose for it was obtained but which was instead siphoned off to a private concern of the accused who are the customers of the Bank. All the employees of the State of Maharashtra have expired, some prior to

the filing of the charge and one such employee after the filing of the charge. The criminal prosecution would, therefore, continue only against the private individuals and Companies which were the customers of

the Bank (the Respondents herein) in respect of the aforesaid transaction.

3.It has been the case of the Respondents that in view of

the death of the employees of the Bank, who were public servants, the prosecution case for charges against them

under the PC Act would not survive and only the case of the prosecution for charges against the private parties under the General Criminal Law being the IPC would

survive. Since the case under the special legislation being the PC Act would not survive, the jurisdiction

vested by the special Statute in the Special Judge, CBI, would get wiped of and would come to an end .

Consequently, the case rightly filed in the Court having inherent jurisdiction under the Special Act

being the PC Act before the Special Judge would come to an end and the case would be required to be

sent /transferred to the learned Magistrate s Court for trial under the general law.

4.An Application for sending the case to the Court of the learned Metropolitan Magistrate for trying the Respondents herein for offences under the IPC, came to

be made in Special Case No.88 of 2001. The learned Judge has directed to send the case papers to the Chief Metropolitan Magistrate, as stated hereinabove. It is not shown under which provision of the procedural

law this Application is made or the order passed.

5.The CBI challenges the order on the ground that the jurisdiction of the Special Court once vested cannot

come to an end or be wiped of and the case must continue despite the death of the employee of the Bank

against whom charge under the PC Act came to be framed.

6.Mr.Khambatta drew my attention to the development of

the law under the PC Act pursuant to the object and purpose thereunder. ig The initial PC Act, 1947 was enacted for more effective prevention of bribery and corruption and to make effective provision for

prevention of these offences in 1947. The Criminal Law Amendment Act, 1952 was enacted to amend the Indian

Penal Code, 1860 and the Code of Criminal Procedure, 1898 and to provide a more speedy trial of offences

mentioned therein. Section 6 of the PC Act enumerated the offences that are to be tried under the said Act.

The PC Act, 1988 was enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Its object was to make existing anti corruption law more effective for

widening its coverage and by strengthening the provisions. Under Section 3 of the PC Act, 1988, the offences, which could be tried, were those mentioned in sub-sections (a) and (b) thereof which are as under:-

(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).

7.Hence the following offences would come within the umbrella of the PC Act, 1988.

(i) Offences punishable under the PC Act, 1988.

(ii) Conspiracy to commit offences punishable under the PC Act, 1988.

(iii)Attempt to commit offences punishable under the PC Act, 1988.

(iv) Abetment of the offences punishable under the PC Act, 1988.

8.The charge in the above Special Case is for offences punishable under the PC Act, 1988 and for conspiracy to

commit offences punishable under the PC Act, 1988. The Bank employees are charged with both the offences punishable under the Act as also entering into conspiracy with certain outsiders (Respondents herein) to commit those offences and consequently of cheating

the Bank to the extent of Rs.20.64 Crores. The outsiders, who were customers of the Bank (the

Respondents herein), have been charged with the offence of entering into the conspiracy to commit offences

punishable under the PC Act, 1988 with the officers/employees of the Bank who are public servants

and consequently of cheating the Bank to the extent of Rs.20.64 Crores.

9.The jurisdiction of the Court vested in the Court under Section 3 of the PC Act, 1988, is undisputed.

10.Though not required, it may be mentioned, as certain

decisions have been shown to the Court, that though some of the offences, with which the accused are

charged are not enumerated under Section 6 of the Criminal Law Amendment Act, 1952, or Section 3 of the

PC Act, 1988the jurisdiction of the Special Judge cannot be challenged and non-public servants can be

tried by the Special Judge (Major E.G. Barsay vs. State of Bombay, AIR 1958 Bombay 354 and AIR 1961 SC 1762), non-public servants can be tried along with public servants (P. Nallammal & anr. vs. State, (1999) 6 SCC

559), in such a case trial can be for offence under Section 120B read with Section 420 of the IPC along with charges under the provisions of Sections 3 and 4 of the PC Act, 1988 (Vivek Gupta vs. CBI & anr., (2003)

8 SCC 628) and under the charge of abetment of the offences under the PC Act, other accused, who are not

public servants, can also be tried by the Special Court (The State of Andhra Pradesh vs. Kandimalla Subbaiah &

anr., AIR 1961 SC 1241), as a Court of Original Criminal Jurisdiction (A.R. Antulay vs. Ramdas Sriniwas

Nayak & anr., AIR 1984 SC 718).

11.It is, therefore, seen that the criminal cases that

can be tried by the Special Judge are for charges under the PC Act and for the charges under the IPC or any

other legislation. It can be for the charges under the PC Act and also for abetment to commit those charges.

It can be for charges under the PC Act and for conspiracy to commit those offences. This is because

entering into a criminal conspiracy is a separate and independent offence under Section 120B of the IPC

(Bimbadhar Pradhan vs. State of Orissa, AIR 1956 SC 469 at page 474) to which my attention has been drawn by

the learned Additional Solicitor General. In that case, it was held that even when the accused is acquitted in respect of charges of criminal breach of trust and falsification of documents, he could have been

convicted for the offence of criminal conspiracy to commit the offences of breach of trust and falsification of documents. It was held so because the offence of criminal conspiracy consisted in the very

agreement between the two or more persons to commit a criminal offence irrespective of further consideration,

whether or not those offences have actually been committed. It was observed that the very fact of

conspiracy constitutes the offences and it is immaterial whether anything has been done in pursuance

of the unlawful agreement.

Consequently, it is seen that if there is a conspiracy to

commit any offence either under the PC Act or under the IPC, it is a separate offence. ig The offence for which the conspiracy took place may or may not have been committed. Even then, conspiracy to commit that offence, being a

separate offence, can be separately charged and tried. Since under Section 3(b) of the PC Act, 1988, conspiracy to

commit any offence punishable under the PC Act, 1988 is itself an offence, it can be separately charged and tried.

That can be tried only by the Special Judge who is appointed under Section 3 of the PC Act, 1988. The charge

that remains in this case to be tried by the Special Judge is the conspiracy to commit offences punishable under the PC Act not only by the public servants who were the officers/employees of Bank of Maharashtra, but also the

private persons (the Respondents herein). To try such offence of conspiracy, the Special Court has been vested with the special jurisdiction. No other Court can try that offence. The offence under Section 420 is yet another

offence with which the Respondents herein are charged. That offence will also have to be tried in the same Court

by the Special Judge being the Special Court as held in the case of Vivek Gupta (supra).

12.It, therefore, does not matter that one or some of the

accused have died. Upon their death, the case against them abates. Upon their death, the case against any other accused cannot abate. It has to be proceeded by

the same Special Judge in the same Special Court since the Court once vested with the jurisdiction cannot be

divested of it by the death of a particular accused. It may be mentioned that that is the specially vested

inherent jurisdiction of the Court. Hence once it is shown that the charges against the offenders are under

Sections 3(a) and 3(b), that Court alone would have and continue to have the jurisdiction until the charges are

tried and the case is disposed of. The jurisdiction of the general Criminal Courts under the general law must,

therefore, be taken to be impliedly barred for the offences under Sections 3(a) and 3(b) and such implied bar cannot be taken to be removed by the mere death of one of the accused who is to be tried under the special

jurisdiction.

13.This has been held by the learned Single Judge of the Kerala High Court in the case of N.P. Prabhu vs. Union

of India & anr., 2003 Criminal Law Journal 2261. In that case the powers of the Special Judge to try

offences committed by non-public servants under Sections 7 and 11 of the PC Act, 1988 came to be

considered. The charge in that case was of the public servant taking illegal gratification and obtaining a

valuable thing without consideration under Sections 7 and 11 of the PC Act, 1988, respectively. This offence was abetted by a non public servant. That abetment was

a separate offence punishable under Section 12 of the PC Act, 1988. The question of law, that came up in that

case, was whether the non public servant could be tried by the Special Judge, even if the offence under Section

7 or Section 11, which is abetted by him, is not committed by the public servant. That was the case of

vesting the jurisdiction of the Court at the inception itself for an offence punishable only by a non public

servant. That was an offence punishable under Section 12 of the PC Act, 1988. Observing that under Section 12

of the Act, even if an offence abetted is not committed by the public servant, the person, who abetted the offence, was liable to punishment and reasoning that if non-public servant cannot be tried before the Special

Judge, the guilty person may go unpunished, it was held that the non-public servant alone could be tried by the Special Judge; he is not required to be prosecuted only with the public servant. Considering

the Nallammal s case (supra) in which conspiracy was held to be a separate offence, it was held that if the

non-public servant was a member of a criminal conspiracy with a public servant to commit any offence

under the PC Act, or he abetted any of the offences, he could be tried alone for the offence of abetment of

conspiracy. It was observed that there was nothing in Nallammal s case (supra)to indicate that non-public servant alone cannot be tried for the offences

punishable under Sections 12 and 14(b) of the PC Act, 1988.

14.Consequently, it follows as a matter of corollary that

if the Special Judge is vested with the jurisdiction to try a private party alone for entering into the

criminal conspiracy with a public servant to commit an offence under the Act, or if a private party has

abetted any of the offences punishable under the Act, he can be tried along with and thereafter even without

the public servant in view of the separate charge against him.

15.The question relating to the transfer of a case under

a special law to the general Civil Court came up for consideration in the case of Ram Gopal Reddy vs. The Additional Custodian Evacuee Property, Hyderabad, AIR 1966 SC 1438. The Administration of Evacuee Property

Act, 1950 conferred jurisdiction upon the Authorities mentioned under the Act for determination of claims of

evacuees to evacuee property upon receipt of a notice with regard to the property under Section 7 of the Act.

It also conferred the right to appeal under Section 24 of the Act and if necessary, to go in Revision under

Section 27 of the Act. It, therefore, provided a complete machinery for adjudication of all claims with regard to evacuee property. Section 76 of that Act

barred the jurisdiction of Civil or Revenue Court to entertain and adjudicate upon any question whether any

property or right to or interest in any property is or is not the evacuee property. When the question came up

for determination with regard to a single evacuee property belonging to an evacuee and his transferee

claiming rights under the property and interest thereunder, it was held that the general jurisdiction

of the Civil or Revenue Court was barred and such jurisdiction could not be conferred upon either the

Civil or Revenue Court, even if the custodian in his order directed the transferee to go and establish his right in a competent Court.

Similarly when special jurisdiction is conferred upon the Special Court under the PC Act, 1988, the Court cannot send or transfer the papers in the case for trial to the general Criminal Court being the Court of the Metropolitan

Magistrate through the Chief Metropolitan Magistrate on the premise that the jurisdiction once vested has been divested

upon the death of one of the accused.

16.This aspect can be considered from another angle. If a charge-sheet came to be filed in the Court of the

learned Magistrate, he would have to consider whether the conspiracy stated to have been hatched under Section 120B of the IPC to commit an offence punishable

under the PC Act, 1988, could be tried by him. The learned Magistrate igwould then have to consider the offences punishable under the PC Act. He would then have to see whether the conspiracy was to commit those

offences as the Respondents herein are charged. The learned Magistrate would have no jurisdiction to decide

whether or not an offence was punishable under the PC Act, 1988. Consequently, it would not be possible for

him to decide whether there was a criminal conspiracy to commit an offence punishable under the PC Act,

1988, without taking recourse to the provisions of the Act, which only a Special Judge appointed under Section 3 of the PC Act, 1988 can do. The learned Magistrate s jurisdiction must be taken to be impliedly

barred to determine any offence under the Act and consequently, barred also to determine the conspiracy to commit any offence under this Act. Consequently, he cannot try any of the accused, whether public servant

or private individuals, for those offences whether the charge has been framed directly in his Court or upon

the charge being framed in the Court of competent jurisdiction under the PC Act, 1988, upon any later

eventuality, including the death of one of the accused, upon sending or transfer of the case to him.

17.Mr.Gupte drew my attention to the judgment in the case of Hanmant Janardhan Patil vs. The State of

Maharashtra, 1993 Criminal Law Journal 3042 in which lack of jurisdiction of the Special Court under the ig PC Act, 1988, was shown for an offence against the Chairman, Vice Chairman and Secretary of a Co-operative

Court since they are not public servants. I do not see any analogy in the want of jurisdiction of the Special

Court with regard to private residential Housing Society officials who are not public servants and the

employees of Nationalised Banks, who are admittedly public servants.

18.It is clear that the admitted special jurisdiction of the Special Court is not divested by the death of an accused. Consequently, the impugned order suffers from

a material irregularity. The impugned order is, therefore, set aside. The R & P of Special Case No.88 of 2001 shall not be sent or transferred to any other Court. The learned Special Judge, CBI, Greater Mumbai,

shall continue the trial of Special Case No.88 of 2001. Since the case is of 2001, the learned Special Judge is

requested to expedite the trial.

19.Criminal trial shall proceed against all the remaining accused, the Respondents herein, expeditiously. The

accused shall appear before the learned Special Judge initially on 25.1.2010.

20.The Criminal Revision Application is allowed and disposed of accordingly.

(SMT.ROSHAN DALVI, J.)