State Of Kerala vs Joseph John
2025 Latest Caselaw 8827 Ker

Kerala High Court

State Of Kerala vs Joseph John on 17 September, 2025

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

      THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

   WEDNESDAY, THE 17TH DAY OF SEPTEMBER 2025 / 26TH

                         BHADRA, 1947

                CRL.REV.PET NO. 479 OF 2023

          CRIME NO.12/2019 OF VACB, IDUKKI, Idukki

     AGAINST       THE     ORDER      DATED    30.06.2022     IN
CRL.M.P.NO.930/2016 IN CC NO.116 OF 2016 OF COURT OF
ENQUIRY     COMMISSIONER    &      SPECIAL    JUDGE,   EKM     AT
MUVATTUPUZHA

REVISION PETITIONER/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY THE ADDITIONAL PUBLIC
           PROSECUTOR,                  HIGH COURT OF
           KERALA, ERNAKULAM, PIN - 682031.


    BY ADDL. PUBLIC PROSECUTOR
    SENIOR PUBLIC PROSECUTOR SMT.REKHA.S, FOR VACB
    SPECIAL PUBLIC PROSECUTOR SRI RAJESH.A, FOR VACB
RESPONDENT/ACCUSED NO.3:

           JOSEPH JOHN,
           S/O ANTHONY DAS, VARUN HOUSE,
           K.D.H VILLAGE, RESIDING NEAR AYYAPPA TEMPLE,
           DEVIKULAM IDUKKI, PIN - 685612.

           BY ADV SRI.N.M.VARGHESE
     THIS     CRIMINAL   REVISION      PETITION   HAVING     BEEN
FINALLY HEARD ON 10.09.2025, THE COURT ON 17.09.2025
DELIVERED THE FOLLOWING:
                                                           2025:KER:69402
Crl.R.P.No.479/2023                   :2:



                                                             "C.R"


                        A. BADHARUDEEN, J.
              ================================
                        Crl.R.P No.479 of 2023
            ================================
               Dated this the 17th day of September, 2025


                                  ORDER

This Revision Petition is at the instance of State of Kerala

represented by the Additional Public Prosecutor, High Court of Kerala,

challenging Annexure 1 order, viz. order in Crl.M.P.No.930/2016 in

C.C.No.116 of 2016, dated 30.06.2022. The respondent herein is the 3 rd

accused in the above case.

2. Heard the learned Public Prosecutor, though no

representation for the 1st respondent/3rd accused.

3. The prosecution case herein is that accused 1 to 3

committed offences punishable under Sections 409, 465, 468, 471 and

120B of the Indian Penal Code (`IPC' for short) as well as under Sections

13(1)(c) and (d) read with 13(2) of the Prevention of Corruption Act, 1988

(`PC Act, 1988' for short). Among the accused, the 1 st accused was the 2025:KER:69402

former Assistant Engineer, Block Development Office, Devikulam, the 2 nd

accused was the Assistant Executive Engineer, Poverty Alleviation Unit,

Idukki and the 3rd accused was the PTA President of Government VHSS,

Devikulam. Of them, the 1st accused had died by 03.08.2012 and sanction

to prosecute the 2nd accused under Section 19 of the PC Act, 1988 was

denied by the competent authority. Therefore, the 3rd accused alone would

face trial. On the above factual background, the Special Court considered

Crl.M.P.No.930/2016 filed under Section 239 of the Code of Criminal

Procedure (`Cr.P.C' for short) by the 3rd accused and finally without

hearing on the discharge petition on merits , the learned Special Judge

found that since no Prevention of Corruption Act offences were involved

as far as the petitioner therein/the 3 rd accused was concerned, trial of the

matter was relegated to a competent Magistrate and accordingly the case

records were ordered to be transferred to the Chief Judicial Magistrate

Court, Thodupuzha.

4. According to the learned Public Prosecutor appearing for

the revision petitioner, the order passed by the learned Special Judge is

against the settled law and it is pointed out that as per the decision reported 2025:KER:69402

in [2016 KHC 6541(SC)], HCL Infosystem Ltd. (M/s) and Another v.

Central Bureau of Investigation and Another the Apex Court held in

paragraphs 14 to 16 as under:

"14.While we do find that the observations of this Court in Jitender Kumar Singh (supra) in paragraphs 46 and 47 quoted above support the contention of Shri. Singh that the Special Judge, under S.4(3), could not try an offence other than that specified under S.3. The public servant was no more and the trial had not commenced. In view of the relied upon judgment in absence of PC Act charge, the appellants may not be liable to be tried before the Special Judge. However, we find two difficulties in accepting the submission of Shri. Singh as follows;

(i) As observed by the High Court, the charge is yet to be framed and the framing of charge under the PC Act from the material placed on record was not ruled out. Thus, the argument at this stage is pre-mature; and

(ii) The Special Judge was authorized not only to deal with the cases under the PC Act as was the position in the case before this Court in Jitender Kumar Singh (supra) but also for other offences. This course was permissible in view of law laid down by this Court in M/s. Essar Teleholdings Limited (supra).

15. In the present case, the Special Court in question has been constituted not only to deal with the cases of PC Act but also other cases relating to the NRHM scam. Procedure of Code of 2025:KER:69402

Criminal Procedure is applicable to trial before Special Judge and there is no prejudice to trial that is taking place before Special Judge duly appointed to deal with non- PC cases when the object of doing so was to try connected cases before same Court.

Undoubtedly, while Special Judge alone could deal with cases under the PC Act, non- PC Act could also be allowed to be tried by the Special Judge under S.26 of the Code of Criminal Procedure. There is no legal bar to do so, as held by this Court in M/s.Essar Teleholdings Limited (supra).

16. In view of above distinguishing feature in the present case from the case of Jitender Kumar Singh (supra), we do not find any merit in these appeals and the same are dismissed.

5. Thus it is pointed out that, the Special Judge, appointed

under the PC Act, 1988, is empowered to try a person other than a public

servant if the public servant dies before the commencement of the trial.

Therefore, the order impugned transmitting the case records to the Chief

Judicial Magistrate Court is erroneous. According to the learned Public

Prosecutor the Special Judge could not have relied on the decision of the

Apex Court reported in [AIR 2014 SC 1169], State through CBI, New

Delhi v. Jitender Kumar Singh.

6. Thus the question to be decided is whether on the death

of a public servant, against whom offences under the PC Act as well as 2025:KER:69402

under the IPC are alleged, the Special Court under the PC Act has

jurisdiction to try the IPC offences against a co-accused, against whom no

PC Act offences are alleged?

7. As submitted by the learned Public Prosecutor, the

Special Court relied on the decision of the State through CBI, New Delhi

v. Jitender Kumar Singh's case (supra) to hold that the Special Court has

no jurisdiction to try the 3rd accused and it is the competent Magistrate to

do the same. On perusal of State through CBI, New Delhi v. Jitender

Kumar Singh's case (supra), it could be gathered that in the said judgment

the Apex Court considered 2 conflicting judgments, one rendered by the

Delhi High Court and the other rendered by the Bombay High Court. The

Delhi High Court took the view that when public servants and non public

servants are arrayed as co-accused and some offences under the PC Act,

1988 coupled with other offences were incorporated, on death of a public

servant trial under the PC Act could not be proceeded with and trial court

had to modify or alter or amend the charge. But the Bombay High Court

took the view that once the jurisdiction is vested with the Special Judge, it

could not be divested on the death of a public servant and that if the public 2025:KER:69402

servant dies, the co-accused can be tried even without the public servant

in view of the separate charge levelled against the private person by

Special Judge. The Apex Court adverted to both views on its own facts.

The Apex Court held in paragraph 45 as under:

"45. We may now examine Criminal Appeal No. 161 of 2011, where the FIR was registered on 2.7.1996 and the charge-sheet was filed before the Special Judge on 14.9.2001 for the offences under Sections 120B, 420, Indian Penal Code read with Sections 13(2) and 13(1) of the PC Act. 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 also not be framed since he died on 18.2.2005. The Special Judge also could not frame any charge against non-public servants. As already indicated, under Sub-section (3) of Section 4, the special Judge could try non-PC offences only when "trying any case" relating to PC offences. In the instant case, 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. Consequently, there was no occasion for the special Judge to try any case relating to offences under the PC Act against the Appellant. 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. 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 2025:KER:69402

PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non-PC offences."

8. While disposing the case the Apex Court found in

paragraph 43 with regard to Crl.Appeal No.943/2008 rendered by the

Delhi High Court with reference to the facts therein and found in

paragraph 41 as under:

"41. We may now examine whether, in both these appeals, the above test has been satisfied. First, we may deal with Criminal Appeal No. 943 of 2008. CBI, in this appeal, as already indicated, submitted the charge-sheet on 1.11.2001 for the offences against A-1, who is a public servant, as well as against non-public servants. Learned Special Judge had, on 25.3.2003, framed the charges against the accused persons under Section 120B read Sections with 467, 471 and 420 Indian Penal Code and also under Sections 13(1)(d) and 13(2) of the PC Act and substantive offences under Sections 420, 467 and 471 Indian Penal Code and also substantive offences under Sections 13(1)(d) and 13(2) of the PC Act against the public servants. Therefore, charges have been framed against the public servants as well as non-public servants after hearing the prosecution and defence counsel, by the special Judge on 25.3.2003 in respect of PC offences as well as non-PC offences.

2025:KER:69402

As already indicated, under Sub-section (3) of Section 4, when trying any case, a Special Judge may also try any offence other than the offence specified in Section 3 and be charged in the same trial. The Special Judge, in the instant case, has framed charges against the public servant as well as against the non- public servant for offences punishable under Section 3(1) of PC Act as well as for the offences punishable under Section 120B read with Sections 467, 471 and 420 Indian Penal Code and, therefore, the existence of jurisdictional fact that is "trying a case" under the PC Act has been satisfied."

9. In paragraph 45 extracted herein above the Apex Court

considered Crl.Appeal No.161/2011 by the Bombay High Court where the

facts are different from the facts dealt by the Delhi High Court in

Crl.Appeal No.943/2008. Thus as per the decision State through CBI,

New Delhi v. Jitender Kumar Singh's case (supra) the Apex Court held

that after framing charge if the public servant dies, then the Special Court

has to complete the trial and when charge not framed inclusive of the

public servant, after death of the public servant, the case of the co-accused,

who alleged to have committed IPC offences alone in exclusion of the

offences under the PC Act, the competent Magistrate is competent to try

offences under the IPC against the co-accused.

10. After State through CBI, New Delhi v. Jitender Kumar 2025:KER:69402

Singh's case (supra), in 2016 the Apex Court considered a case where

CBI filed several charge-sheets including a charge-sheet in respect of

offences not covered by the PC Act, 1988 in the case of certain accused

persons before the Special Judge appointed to enquire into the National

Rural Health Mission Scam (`NHRM Scam' for short) for the whole of the

State. The Special Judge declined to entertain the said charge-sheet. When

the matter was challenged before the High Court, the High Court held that

the Special Judge was to deal with all cases relating to the scam even

though no offences under the PC Act, 1988 were involved. The Hon'ble

Supreme Court considered the said case after referring HCL Infosystem Ltd.

(M/s) and Another v. Central Bureau of Investigation and Another (supra)

and distinguished the ratio in State through CBI, New Delhi v. Jitender

Kumar Singh's case (supra) and held that the Special Court in the said

case was constituted not only to deal with cases of PC Act, but also other

cases relating to NHRM scam and, therefore, the Special Judge had to try

the said offences. In fact, HCL Infosystem Ltd. (M/s) and Another v.

Central Bureau of Investigation and Another (supra) doesn't lay down a

ratio that when a public servant, against whom PC Act offences alleged, 2025:KER:69402

dies, the Special Court alone has the jurisdiction to try the co-accused

against whom only IPC offences are alleged to be committed. In such

cases, the ratio in State through CBI, New Delhi v. Jitender Kumar

Singh's case (supra) to be followed.

11. Coming to the facts of this case, no charge has been

framed so far against the respondent/co-accused, against whom IPC

offences alone were alleged to be committed and in such a case, following

the ratio in State through CBI, New Delhi v. Jitender Kumar Singh's

case (supra), the order of the learned Special Judge holding the view that a

competent Magistrate can try and dispose of the case is only to be justified.

In the result, this petition is found to be meritless and is

accordingly dismissed.

Sd/-

A. BADHARUDEEN, JUDGE

rtr/ 2025:KER:69402

APPENDIX OF CRL.REV.PET 479/2023

REVISION PETITIONER's ANNEXURES

Annexure1 ANNEXURE A - THE CERTIFIED COPY OF CRL.M.P NO.930/2016 DATED 30.06.2022 IN C.C NO.116/2016 ON THE FILE OF THE COURT OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, MUVATTUPUZHA.