Sh. V.K. Puri vs Cbi
2006 Latest Caselaw 1501 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This revision petition has been filed against the order dated 28.07.2006 passed by the learned Special Judge, Patiala House, New Delhi, whereby the petitioner's application for discharge on the ground of lack of territorial jurisdiction was rejected.

2. The learned Counsel for the petitioner pointed out that the charge-sheet against the petitioner has been filed invoking the provisions of Section 13(1)(e) of the Prevention of Corruption Act, 1988 which relates to the possession of assets disproportionate to the known sources of income of a public servant. He submits that the charge-sheet has been filed pertaining to the check period from 01.06.1988 to 22.02.2002 when the search was conducted. It is his submission that during this check period, the petitioner was not posted in Delhi. This fact is borne out from the charge-sheet itself. He referred to the provisions of Section 3 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the said Act) and pointed out that the Central Government or the State Government as the case may be, is empowered to appoint Special Judges for areas or for particular cases or group of cases by notification in the official Gazette for the purpose of trying two kinds of offences. The first being offences punishable under the Act and the second being conspiracy to commit or attempt to commit or abetment of any of the offences punishable under the Act. The learned Counsel then referred to the provisions of Section 4 of the said Act to indicate that it contains a non obstante clause to the effect that notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force, the offences specified in Section 3(1) shall be tried by "Special Judges only". He then referred to the provisions of Sub-section 2 of Section 4 which stipulates that 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. The learned Counsel submitted that no Special Judge for this particular case has been appointed and therefore, the present case can only be tried by the Special Judge for the area within which the alleged offence was committed.

3. He then referred to Section 13(1)(e) of the said Act which reads as under:

13. Criminal misconduct by a public servant.

(1) A public servant is said to commit the offence of criminal misconduct,-

  (a)   xxx       xxx       xxx
(b)   xxx       xxx       xxx
(c)   xxx       xxx       xxx
(d)   xxx       xxx       xxx
 

(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.
 

Explanation-  For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
 (2)  xxx       xxx       xxx
 

4. Referring to the aforesaid provisions of Section 13(1)(e), the learned Counsel submitted that the possession of resources or property disproportionate to the known sources of income of the public servant is relatable to his office. He submitted that the check period in the present case starts from 01.06.1988 and ends at 22.02.2002. Therefore, according to him, the offence under Section 13(1)(e) is relatable to this period, and during this period, the petitioner was in office in places other than Delhi. He pointed out that from the charge-sheet itself it can be ascertained that from June, 1988 to June, 1992 the petitioner was posted at Indore, from July, 1992 to May, 2001 the petitioner was posted in different capacities at Mumbai and from May, 2001 to June, 2002 the petitioner was posted at Lucknow. Therefore, according to the learned Counsel, the petitioner was admittedly not posted in Delhi at all during the check period. According to him, the offence, if any, was committed during the check period as per the charge sheet itself and therefore, the courts at Delhi would not have any jurisdiction in this matter.

5. The learned Counsel, in support of the aforesaid submissions, referred to the decision of the Supreme Court in the case of CBI v. Braj Bhushan Prasad and Oes. with particular reference to paragraphs 31 to 37 and 40 to 42 thereof. The learned Counsel submitted that the Supreme Court has clearly held that the question that needs to be addressed pertains to the determination of the area within which the offence is committed. The Supreme Court also held that the provisions of the Code of Criminal Procedure, 1973 would not apply for the purposes of determining jurisdiction in view of the non obstante clause contained in Section 4 of the said Act. The Supreme Court observed with reference to the offences under Section 13(1)(c) and 13(1)(d), that the sole determinative factor regarding the court having jurisdiction would be the place where the offence was committed. He submitted that a similar reasoning would be applicable for the offence committed under Section 13(1)(e) of the said Act. He then referred to the decision of a learned Single Judge of the Punjab and Haryana High Court in Kamal Dev v. State of Haryana 1886(3) Crimes 305. In particular, he relied upon the observations contained in paragraph 4 of the said decision which reads as under:

The commission of the offence of criminal misconduct has nexus to the period of his offence. It is so intimately interlinked that it is the place of offence 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 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.

6. Accordingly, the learned Counsel for the petitioner submitted that the impugned order rejecting the petitioner's application and holding that the Special Judge, New Delhi had territorial jurisdiction in the present matter is liable to be set aside as it is contrary to law.

7. Mr. Tiwari, the learned Counsel appearing on behalf of the CBI supported the impugned judgment and order passed by the learned Special Judge. First of all, he submitted that the decision of the Supreme Court, relied upon by the learned Counsel for the petitioner, was not applicable to the facts and circumstances of the present case inasmuch as that decision was rendered in the context of offences punishable under section 13(1)(c) and 13(1)(d) of the said Act whereas the present case is one under Section 13(1)(e). He submits that upon reading Section 13(1)(e), the offence is committed and continues to be committed if the person is in possession of assets which are disproportionate to his known sources of income. He submits that although these assets may have been accumulated during the check period but the accused/petitioner continues to hold these assets. He submits that part of these resources and property are situated in Delhi. The petitioner owns property in Sarita Vihar as well as some movable property in the form of bank accounts which are also in Delhi. Therefore, according to Mr. Tiwari part of the cause of action has definitely arisen in Delhi and it is not just to be seen as to where and how he accumulated these assets but also as to where these assets are located.

8. Mr. Tiwari also contended with reference to Section 13(1)(e), that the expression "period of his office" does not refer to the place where the public servant is posted but relates to his tenure as a public servant. It may be at one place or at several places. Therefore, according to Mr. Tiwari, the possession of pecuniary resources and property disproportionate to the known sources of income of a public servant are relatable to the period of his office as a public servant and not to the place where he was posted. He submits that in the present case it is an admitted position that during the check period and even today the accused is a public servant and the allegation is with regard to his accumulating such assets during his tenure as a public servant. Therefore, the Special Judge at Delhi would have territorial jurisdiction to entertain the present case inasmuch as the accused is in possession of these resources and property, part of which are situated in Delhi.

9. Mr. Tiwari concluded by saying that the learned Special Judge has correctly appreciated the position in law and has come to the conclusion that she had territorial jurisdiction in the present matter. Accordingly, he prayed that the revision petition be dismissed.

10. First of all, let me examine the decision of the Supreme Court in Braj Bhushan Prasad's case (supra). That was a case wherein Section 13(1)(c) and 13(1)(d) of the said Act were involved. The Supreme Court considered the provisions of Section 4 of the said Act in the context of ascertaining the territorial jurisdiction of the Court for trial of offence under the said Act. After examining the provisions of Section 3 and 4 of the said Act, the Supreme Court came to the definitive conclusion that "the only court which has jurisdiction to try the offences under the PC Act is the Court of Special Judge appointed for the areas within which such offences were committed." As observed by the Supreme Court, "the pivot of the matter is to determine the area within which the offence was committed." With reference to the offence under Section 13(1)(c) and 13(1)(d) of the said Act, the Supreme Court observed as sunder:

35. We have no doubt in our mind that the hub of the act envisaged in the first of those two offences is "dishonestly or fraudulently misappropriates". Similarly the hinge of the act envisaged in the second section is "obtains" for himself or for any other person, any valuable thing or pecuniary advantage by corrupt or illegal means.

A reading of the above extract indicates that the Supreme Court was of the view that the offence under Section 13(1)(c) is complete when the public servant " dishonestly or fraudulently misappropriates". And, the offence under Section 13(1)(d) of the said Act is complete when the public servant "obtains" for himself or for any other persons, any valuable thing or pecuniary advantage by corrupt or illegal means. The misappropriation and obtaining constitute the terminii of the offences under Section 13(1)(c) and 13(1)(d) of the Act. It is in this context that the territorial jurisdiction of the courts were decided on the basis of where the money had gone out of the treasury. The Supreme Court observed:

36. The above acts were completed in the present cases when the money has gone out of the public treasuries and reached the hands of any one of the persons involved. Hence, so far as the offences under Section 13(1)(c) and Section 13(1)(d) are concerned the place where the offences were committed could easily be identified as the place where the treasury concerned was situated. It is an undisputed fact that in all these cases the treasuries were situated within the territories of Jharkhand State.

11. The Supreme Court in Braj Bhushan Prasad's case (supra) further compared the provisions of Section 181 of the Code of Criminal Procedure, 1973 with that of Section 4(2) of the said Act. It observed that under Section 181(4) of the Code, which pertains to place of trial in case of the offence of criminal misappropriation or criminal breach of trust, at least four different courts have been envisaged as having jurisdiction for trial of the said offences and any one of which could be chosen. The Courts are (1) the court within whose local jurisdiction the offence was committed; (2) the court within whose local jurisdiction any part of the property which is the subject of the offence was received; (3) the court within whose local jurisdiction any part of the property which is the subject of the offence was retained; and (4) the court within whose local jurisdiction any part of the property which is the subject of the offence was required to be returned or accounted for, by the accused. Drawing a distinction between Section 181(4) of the Code and Section 4(2) of the said Act, the Court observed as under:

39. Now, observe the distinction between Section 181(4) of the Code and Section 4(2) of the PC Act. When the former provision envisaged at least four courts having jurisdiction to try a case involving misappropriation the latter provision of the PC Act has restricted it to one court i.e. the Court of the Special Judge for the area "within which the offence was committed". No other court is envisaged for trial of that offence. We pointed out above that when the charge contains the offence or offences punishable under the PC Act as well as the offence of conspiracy to commit or attempt to commit or any abetment of any such offence, the court within whose local jurisdiction the main offence was committed alone has jurisdiction.

12. A reading of the observations of the Supreme Court reaffirms the conclusion that although under the Code under similar circumstances of misappropriation or breach of trust different courts may have jurisdiction, but, under the Prevention of Corruption Act, in respect of the offences under Section 13(1)(c) and 13(1)(d) thereof, only the court of the Special Judge for the areas within which the offence was committed would have jurisdiction. The Supreme Court, therefore, held that the jurisdiction was restricted under the Prevention of Corruption Act. The Supreme Court further went on to hold that even the absence of a non obstante clause linked with Section 4(2) of the PC Act does not lead to a conclusion that the sub-section is subject to the provisions of the Code of Criminal Procedure, 1973. On the contrary, the Supreme Court held that if the Prevention of Corruption Act has stipulated any place for trial of the offence under the Act the provisions of the Code would stand displaced "to that extent" in regard to the place of trial. And, it, therefore, concluded that when the offence is under Section 13(1)(c) or 13(1)(d) of the said Act, the sole determinative factor regarding the court having jurisdiction is the place where the offence was committed. The exact words used by the Supreme Court for arriving at this conclusion are as under:

41. Absence of a non obstante clause linked with Section 4(2) of the PC Act does snot lead to a conclusion that the sub-section is subject to the provisions of the Code. A reading of Section 4(2) of the Code (not the PC Act) gives the definite indication that the legal position is the other way round. Section 4 of the Code is regarding trial of offences under the Indian Penal Code and other laws. Sub-section (1) of it relates only to offences under the Indian Penal Code. Sub-section (2) relates to "all offences under any other law". It is useful to read the said sub-section at this stage.

4. (2) All offences under any other law shall be investigated, inquired into tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

42. Thus, if the PC Act has stipulated any place for trial of the offence under that Act the provisions of the Code would stand displaced to that extent in regard to the place of trial. We have, therefore, no doubt that when the offence is under Section 13(1)(c) or Section 13(1)(d) of the PC Act the sole determinative factor regarding the court having jurisdiction is the place where the offence was committed.

13. A discussion of the said Supreme Court decision in Braj Bhushan's case (supra), therefore, makes it clear that the jurisdiction of the Special Judge to try the case is inextricably linked with the place of commission of the offence under the Act. If the offence is committed within the area of the Special Judge then he shall have jurisdiction to try the same. The question that arises at this stage is where was the offence under Section 13(1)(e) of the said Act committed? The ingredients of Section 13(1)(e) are:

(1) the public servant by himself or through any person at his behalf must be in possession of or must have been, at any time during the period of his office, in possession of;

(2) pecuniary resources or property;

(3) disproportionate to his known sources of income;

(4) for which the public servant cannot satisfactorily account.

If any of the aforesaid ingredients is missing then the offence under Section 13(1)(e) is not made out. In other words, possession of pecuniary resources of property at present or at any time during the period of public servant's period of office is an essential ingredient of the commission of the offence. Possession of pecuniary resources or property is linked with the places where such pecuniary resources or property are held. In the present case, the allegation is with regard to, inter alia, immovable properties held by the petitioner in Delhi as well as movable properties in the shape of bank accounts in banks in Delhi. Therefore, in a case under Section 13(1)(e), where possession of pecuniary resources of property is an integral part of the offence it is quite possible that the offence is committed at more places than one. If the person possesses such pecuniary resources or property at different places, and it is disproportionate to his known sources of income which he may derive at different places then all those places would be places where the offence was committed in part. Therefore, the provisions of Section 13(1)(e) are quite different and distinct from those of Section 13(1)(c) and 13(1)(d) where it was easy to locate the place of misappropriation and the place of obtaining through corrupt or illegal means any valuable thing or pecuniary advantage.

14. In P. Nallammal v. State : the Supreme Court held:

14. It may be remembered that this Court has held in M. Krishna Reddy v. State Dy. Supdt. of Police4 thus: (SCC p. 47, para 6)

6. An analysis of Section 5(1)(e) of the Act, 1947 which corresponds to Section 13(1)(e) of the new Act of 1988 shows that it is not the mere acquisition of property that constitutes an offence under the provisions of the Act but it is the failure to satisfactorily account for such possession that makes the possession objectionable as offending the law.

15. Thus, the two postulates must combine together for crystallization into the offence, namely, possession of property or resources disproportionate to the known sources of income of public servant and the inability of the public servant to account for it. Burden of proof regarding the first limb is on the prosecution whereas the onus is on the public servant to prove the second limb. So it is contended that a non-public servant has no role in the trial of the said offence and hence he cannot conceivably be tagged with the public servant for the offence under Section 13(1)(e) of the PC Act.

The Supreme Court decision in B.C. Chaturvedi v. Union of India , may also be seen. The Court held:

9. The next question is whether the charge of being in possession of assets disproportionate to his known sources of income is a misconduct. Section 5(1)(e) of the Act [which is equivalent to Section 13(1)(e) of the Prevention of Corruption Act, 1988] defines "criminal misconduct". A public servant is said to commit the offences of criminal misconduct 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 for. Thus, pecuniary resources or property disproportionate to his known sources of income is a criminal misconduct. In the 1988 Act, an explanation has been added to Section 13(1)(e) to explain that "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provision of any law, rules or orders for the time being applicable to a public servant. The charged officer must be a public servant. He must be found to be in possession of, by himself, or through any person on his behalf, at any time during the period of his office, pecuniary resources or property disproportionate to his known sources of income. If he cannot satisfactorily account thereof, he is said to have committed criminal misconduct. No doubt it is a presumptive finding but that finding is based on three facts. Being a public servant, if at any time, during the period of his office, he is proved to have been in possession, by himself or through any person on his behalf, of pecuniary resources or property disproportionate to his known sources of income, he is enjoined to satisfactorily account for the same. If he fails to account for, he commits misconduct. Therefore, as in a prosecution laid under Section 5(1)(e) of the Act [equivalent to Section 13(1)(e) of 1988 Act], a public servant is liable to punishment. The need to make this misconduct expressly a part of enumerated items of misconduct under Central Civil Services, CCA Rules is obviated.

These decisions also indicate that possession of pecuniary resources or property constitutes an integral part of the offence under Section 13(1)(e) of the said Act. It is because of this also that I respectfully disagree with the conclusions of the Punjab & Haryana High Court in the case of Kamal Dev (supra).

15. The ratio of the Supreme Court decision in Braj Bhushan Prasad's case (supra) is that the place where the offence is committed shall give jurisdiction to the Special Judge of that area. There is no dispute with this. But the difficulty arises if the offence is committed at more places than one. When such a situation arises then a beneficial reference may be made to the provisions of Section 178 of the Code of Criminal Procedure, 1973 which reads as under:

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.

A reading of the above Section clearly indicates that where an offence is committed partly in one area and partly in another then the offence may be inquired into or tried by a Court having jurisdiction over any of such local areas. It is in this context that reliance can be placed on this provision and only to the extent of supplementing what the Supreme Court held in Braj Bhushan Prasad's case (supra) that under the Prevention of Corruption Act, the place of jurisdiction will be the place where the offence is committed. Therefore, without detracting from the ratio of the said case, it is quite clear that in a case under Section 13(1)(e), as the present case, parts of the offence may be committed at different places and, therefore, the Special Judge having jurisdiction over any one of such places would have jurisdiction. The possession of pecuniary resources or property disproportionate to the known source of income is an integral part of the offence under Section 13(1)(e). Immovable and movable properties of this nature are allegedly possessed by the petitioner in Delhi. Therefore, the Special Judge at Delhi would have jurisdiction for conducting the trial.

16. In these circumstances, I find no infirmity with the conclusion arrived at in the impugned order and the petitioner's application for discharge on the ground of lack of territorial jurisdiction was correctly dismissed by the learned Special Judge by virtue of the impugned order dated 28.7.2006.

17. Before parting with this matter, it will also be appropriate to point out that I am in agreement with the submission by Mr Tiwari that the expression "period of his office" appearing in Section 13(1)(e) of the said Act does not refer to the place where the public servant is posted but relates to his tenure as a public servant. And, Mr Tiwari is right, when he says that the possession of pecuniary resources and property disproportionate to the known sources of income of a public servant are relative to the period of his office as a public servant and not to the place where he was posted. In this context, the submission of the learned Counsel for the petitioner that during the check period which began on 1.6.1988 and ended on 22.2.2002, the petitioner did not work in Delhi and, therefore, the Special Judge at Delhi would not have jurisdiction, is not tenable.

18. In view of the foregoing discussion the Revision Petition is dismissed.