Telangana High Court
A. Revanth Reddy vs The State Of Telangana on 1 June, 2021
Bench: K.Lakshman
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT: HYDERABAD
CORAM:
* THE HON'BLE SRI JUSTICE K. LAKSHMAN
+ CRIMINAL REVISION CASE No.133 OF 2021
% Delivered on: 01-06-2021
Between:
# A. Revanth Reddy .. Petitioners/
Accused No.1
Vs.
$ The State of Telangana through
ACB, CIU, Hyderabad. .. Respondents
! For Petitioner : Mr. Mahmood Ali
Learned counsel
^ For Respondent : Mr. V. Ravi Kiran Rao,
Learned Special Counsel for ACB
< Gist :
> Head Note :
? Cases Referred :
1. (2006) 7 SCC (1)
2. (2014) 11 SCC 724
3. (2007) 8 SCC 559
4. (2013) 10 SCC 1
5. 1989 JLJ 710
6. MANU/MH/2028/2019
7. (1998) 4 SCC 626
8. Crl.A. No.451 of 2019
9. (1988) 2 SCC 602
10. (1993) 2 SCC 507
11. (2012) 9 SCC 460
12. (2010) 12 SCC 146
13. (2020) 10 SCC 92
14. W.P. (Civil) No.699 of 2016, dated 04.11.2020
2 KL,J
Crl.R.C. No.133 of 2021
HON'BLE SRI JUSTICE K.LAKSHMAN
CRIMINAL REVISION CASE No.133 OF 2021
ORDER:
This Criminal Revision Case is filed under Sections 397 and
401 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking to set
aside the order dated 29.01.2021 passed in Crl.M.P.No.804 of 2020
in C.C.No.15 of 2016 by the Principal Special Judge for trial of SPE
and ACB Cases, Hyderabad.
2. The petitioner herein is Accused No.1 in C.C.No.15 of 2016.
The offences alleged against him are under Section 12 of the
Prevention of Corruption Act, 1988 (for short "P.C. Act"), and under
Section 120-B read with Section 34 of the Indian Penal Code, 1860
(for short 'IPC').
3. The allegations against the petitioner, as per the contents of the
charge sheet in C.C.No.15 of 2016, are as follows:
i) The petitioner is a member of the Telangana Legislative
Assembly. Biennial MLC Elections for Legislative Council were
scheduled to be held on 1.6.2015. LW1 was also a nominated MLA.
Accused No.4 approached LW1 and offered an amount of Rs.2.00
Crores either to vote in favour of Telugu Desham Party (TDP)
Candidate or to boycott or to abstain from voting by leaving the
Country at that relevant point of time. Accused No.2 contacted LW1
with the said proposal and offered bribe of Rs.5.00 Crores for the said
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purpose. The entire transaction would be dealt with by Accused No.1
personally.
ii) The de facto complainant has addressed a letter to the DSP,
A.C.B, City Range-1, Hyderabad, complaining the same who in turn,
took approval from the Director General, ACB. Thereafter, on receipt
of information, DSP, ACB, that on 30.05.2012, accused Nos.1 and 2
were going to the house of the complainant, for talks on the said deal,
he has arranged an Apple Phone without a SIM in the sitting room of
the house of the complainant for Video and Audio recording of the
transactions as part of verification. The ACB Officials have seized
the said amount of Rs.50.00 Lakhs paid by Accused No.1 to the de
facto complainant for the said purpose from the house of the de facto
complainant. Thereafter, after completion of investigation, they have
laid charge sheet against the petitioner and other accused for the
aforesaid offences. The same was taken on file vide C.C.No.15 of
2016.
iii) The petitioner herein filed a petition under Section 3(1) of
the P.C. Act to determine the issue of existence/non-existence of
'jurisdictional fact' and to determine whether the Principal Special
Judge for trial of SPE and ACB Cases, lacks jurisdiction to try
C.C.No.15 of 2016 on the ground of non-existence of jurisdiction.
The petitioner has filed the said petition vide Crl.M.P.No.804 of 2020
in C.C.No.15 of 2016 with the following contentions.
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(a) Exercise of vote in an ex-officio capacity by a public
servant and exercise of vote is an ex-officio right and not an exercise
of a public function/duty as a Member of Legislative Assembly. In
support of his contention, learned counsel for the petitioner has relied
on the principle laid down by the Hon'ble Apex Court in Kuldip
Nayyar v. Union of India1.
(b) Chapter IXA of IPC deals with electoral malpractices and
the provisions of the P.C Act are wholly inapplicable as the specific
field is covered by the Indian Penal Code on this issue, which results
in finding that ACB of Telangana State does not have jurisdiction to
register an FIR. Offering of a bribe simpliciter does not attract any
offence for punishment under Section 12 of the P.C. Act.
(c) The Court below being a Special Court designated under
Section 3 (1) of the P.C. Act for trying the offences under the
provisions of the P.C. Act and the jurisdiction of the said Court is
governed by Section 4 of the P.C. Act. In view of the same, the Court
below while exercising jurisdiction over offences under the P.C Act is
not generally empowered to deal with non-P.C. Act offences and its
jurisdiction over non-P.C. Act offences is circumscribed by Section 4
(3) of the P.C. Act which requires existence of an offence under the
P.C Act. In support of the same, learned counsel relied on the
principle laid down by the Hon'ble Apex Court in State v. Jitender
. (2006) 7 SCC 1
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Kumar Singh2 wherein it was held that trying any case under Section
3 (1) of the P.C. Act is a sine qua non for a Special Judge to exercise
jurisdiction over the offences not specified therein. Thus, trying any
case under the P.C. Act is a 'jurisdictional fact' for a Special Judge to
exercise jurisdiction. Learned counsel also placed reliance on the
principle laid down by the Apex Court in Corona Ltd. v. Parvathy
Swaminathan and Sons3, wherein it was held that existence of a
"jurisdictional fact" i.e., the existence of a condition precedent is for
the exercise of jurisdiction by a Court is a preliminary issue.
(d) The right to vote of an MLA in Legislative Council is akin
to that of the right to vote of Graduates or Teachers. The offence of
bribery in relation to elections is defined in Section 171-B of IPC
punishable under Section 171-E of IPC.
(e) Right to vote of an elector is a statutory right and the
manner of its exercise is governed by the Representation of People
Act, 1951. An MLA in exercise of his right to vote is acting in his
capacity as an elector and cannot be conflated with exercise of his
public duties in his capacity as a public servant, which offences
governed by Chapter IXA of IPC, but not by the provisions of P.C.
Act. The ACB has erroneously assumed the jurisdiction to investigate
into election related offences and filed charge sheet erroneously.
. (2014) 11 SCC 724
. (2007) 8 SCC 559
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(f) The contents of the charge sheet lacks the ingredients of the
offences under sections 7 or 11 of the P.C. Act and the offence of
Section 12 of P.C. Act is not made out against the petitioner herein
and therefore, the 'jurisdictional fact' under Section 3(1) of the P.C
Act is absent. Learned Counsel relied on the principle laid down by
the Hon'ble Apex Court in People's Union of Civil Liberties v.
Union of India4, Durga Singh Tomer v. State of M.P.5 and Kishore
Khanchand Wadhwani v. State of Maharashtra6.
iv) With the said contentions, learned counsel for the petitioner
would submit that the Court below has not considered the said
contentions in a proper perspective and dismissed the application filed
by the petitioner vide order dated 29.1.2021 erroneously.
4. Contentions of ACB in Crl.M.P.No.804/2020 in C.C.15/2016:
(a) The Apex Court directed all criminal cases pending against
the former and present legislators shall be disposed of as expeditiously
as possible. Even then, the calendar case of the year 2016 is pending.
The accused are filing one application or the other only to drag on the
proceedings in C.C.No.15 of 2016.
(b) Accused Nos.2, 3 and 5 have already filed discharge
applications, which were dismissed by the trial Court and the said
. (2013) 10 SCC 1
. 1989 JLJ 710
. MANU/MH/2028/2019.
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orders were confirmed by this Court in the revision petitions filed by
the said accused.
(c) Accused Nos2, 3 and 5 have also taken the very same
pleadings including the ground of jurisdictional fact in the said
applications and this Court held that it is having jurisdiction to try the
offences under the provisions of the P.C. Act. Even then, with the
very same contentions, the petitioner/A-1 has filed the present
application. Therefore, the Special Court cannot review its own
finding/order on the very same issue.
(d) Crl.P.No.5520 of 2015 filed by Accused No.5 was
dismissed. The discharge petition filed by A-5 was also dismissed by
the Court below, and A5 has filed revision vide Crl.R.C.No.541 of
2020 and the same was also dismissed by this Court. In the said
order, this Court has held that there is no defect or error in jurisdiction
of law. Even then, the petitioner has filed the present application with
the very same grounds and with the very same contentions. LW1 is a
nominated MLA and therefore, he has to exercise his vote freely and
while doing so, he is discharging public function. However, the said
issue is a triable issue and the petitioner has to take the said defence
during trial in C.C.No.15 of 2016. Instead of doing so, he has filed
the present application only to drag on the proceedings and trial in the
said C.C.No.15 of 2016.
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5. Finding of the Trial Court in the impugned order dated
29.01.2021 in Crl.M.P.No.804 of 2020 in C.C.No.15 of 2016.
The Court below has dismissed the said application filed by the
petitioner on the following grounds:
(a) The principle laid down by the Apex Court in P.V.
Narasimha Rao v. State (CBI/SPE)7 is not overruled and the
reference is with regard to wide ramifications of the question that has
arisen. The doubts raised and the issue being a matter of substantial
public importance, but not with regard to the finding that a Member of
Parliament is a public servant. The judgments relied on by the
petitioner shows that act of casting of vote by the de facto
complainant is merely exercise of franchise and not proceedings of
legislative. The principle laid down in P.V. Narasimha Rao7,
though referred to a larger bench in Sita Soren v. Union of India8, it
is not overruled, and therefore, it is binding.
(b) The petitioner did not raise objection about the jurisdiction
soon after his arrest or at the time of arguments during bail.
(c) Accused Nos.3 and 5 have filed discharge applications with
the very same grounds and the same were dismissed by the trial Court
and the revisions filed by them were also dismissed by this Court. He
has relied on the findings of this Court in Crl.R.C.No.541 of 2020,
dated 8.12.2020 filed by Accused No.5 with regard to amendment
which came into force on 26.7.2018, the Court below has relied on the
. (1998) 4 SCC 626
. Crl.A. No.451 of 2019
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principle laid down by the Apex Court in Kuldip Nayyar1 and
Kishore Khanchand Wadhwani6. The petitioner did not choose to
raise the said objections at the earliest point of time. The Court below
dismissed the discharge applications filed by the other accused
wherein the same issue of jurisdictional fact was raised and it has
dismissed the said applications by holding that it is having
jurisdiction.
(d) Therefore, the Court below is not having ample power to
review its own order. Though there are several triable issues and the
petitioner herein instead of facing trial, filed the present application
with a prayer to decide the 'jurisdictional fact' as a preliminary issue.
6. The Contentions of the petitioner in the present revision:
i) The Court below having accepted the submissions of the
petitioner held that it is true in the light of the judgments relied by the
petitioner, the act of casting vote by de facto complainant is merely an
exercise of franchise and not proceedings of legislature, ignoring his
own finding on the ground that the petitioner did not question the
jurisdiction earlier and the citations relied on were not brought to its
notice earlier while deciding the discharge petitions of other accused
and therefore, the Court below erred in dismissing the application
filed by the petitioner.
ii) The Court below ignored the finding that the alleged offence
against the petitioner was not an offence under Section 12 of the P.C.
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Act, on the sole ground that the petitioner did not bring citation to the
notice of the Court at the time of disposing the discharge petitions of
co-accused. Therefore, the impugned order is illegal.
iii) The Court below erred while making observations of this
Court in Crl.R.C.No.541 of 2020. The learned Judge having found
that voting in MLC elections is in an ex-officio capacity, held that
necessary jurisdictional fact is absent, should have transferred the
matter to the Court having competent jurisdiction. Learned Special
Judge failed to cure the defect of jurisdiction on the ground that the
petitioner has not challenged jurisdiction at an earliest stage. The P.C.
Act is a Special Enactment which covers all aspects pertaining to
exercise of public duties/official acts of public servants and the
learned Judge having found that vote by an MLA in MLC elections is
an ex-officio capacity and merely an exercise of franchise, must have
transferred the case to Court having competent jurisdiction. The defect
of jurisdiction strike at the very authority of the Court and cannot be
cured even by consent or wavier of the parties and the said principle
was also laid down by the Apex Court in A.R. Antulay v. R.S.
Nayak9 and Chiranjilal Shrilal Goenka v. Jasjit Singh10. The case
of the petitioner squarely falls within the ambit of word election
/public duty/pubic servant and offering bribe to a public servant is a
clear case of abetment. Therefore, the Court below failed to
appreciate the same on the ground that the petitioner herein has not
. (1988) 2 SCC 602
. (1993) 2 SCC 507
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raised the said ground at the earliest point of time. Thus, the Court
below failed to appreciate the contention of the petitioner that the
criminal proceedings are in personam i.e., the Court must adjudicate
on the criminal liability of an accused based on the defence advanced
by him and he cannot be penalized for the action/inaction of other
accused persons. Learned Judge failed to appreciate the contention of
the petitioner that Accused No.4 has filed Crl.P.No.5520 of 2015
under Section 482 Cr.P.C seeking to quash the proceedings under the
ground of maintainability. The Court below, without appreciating the
contention of the petitioner that each case depends on its facts and
circumstances and without appreciating the same, dismissed the
application filed by the petitioner vide impugned order.
iv) With the said contentions, leaned counsel for the petitioner
would submit that the impugned order is contrary to law and the
principle laid down by the Apex Court in the above referred
judgments.
7. On the other hand, Sri V. Ravi Kiran Rao, learned Senior
Counsel appearing for TS ACB would submit that the Court below
has considered the contentions raised, the judgments cited by the
petitioner in the impugned order. It is a reasoned order and there is no
error in it. He has referred to several Articles of the Constitution of
India and P.C. Act and would submit that there is no error in the
impugned order. The petitioner herein and other accused have been
filing petitions one or the other with an intention to drag on the
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proceedings in C.C.No.15 of 2016. Several revisions filed by the
accused in the said C.C. No.15 of 2016 were dismissed by this Court
confirming the orders passed by the Court below. The petitioner
herein has already taken the said ground of jurisdictional fact and the
Court below negatived the same and therefore, the Court below
cannot review its own order.
i) Learned Senior counsel has also relied upon the judgment of
the Apex Court in P.V.Nrasimha Rao7 and also various other
judgments.
ii) With the said submissions, leaned Senior Counsel sought to
dismiss the present revision.
8. FINDINGS AND ANALYSIS OF THE COURT:
i) Though this Court is dealing with a Criminal Revision Case
in revisional jurisdiction under Sections 397 and 401 Cr.P.C, since
this case is commonly known as 'Vote for Note', various Articles of
the Constitution of India, the principle laid down by the Apex Court
were referred and relied upon, therefore, this Court thought it relevant
to extract relevant debates of the members of the Constituent
Assembly and Drafting Committee while drafting Constitution of
India. As Chairman of the Drafting Committee, Dr. B.R. Ambedkar
contended that "voting was essential to citizenship and equal moral
membership of the polity. Voting would serve as a means of political
education of those who had been denied any part of political and
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social life for all these years and as a tool to remove the evil
conditions that existed. It was there two principles that formed the
backbone of universal adult franchise becoming part of the
Constitution".
ii) As Chairman of the Drafting Committee, it was Dr.B.R.
Ambedkar, who proposed to insert Article 326 into Constitution of
India, which provided that elections would be held on the basis of
universal adult franchise. Dr. B. R. Ambedkar had voiced that
ultimately, democratic Government was inseparable from the right to
vote, and it was voting that would prove to be the one of the harbinger
(s) of political education.
iii) Sri H.V. Kamath, a Member of Constituent Assembly,
expressed the view that in a country with such huge levels of
illiteracy, Universal franchise was a dangerous thing and ought to be
restricted. Other members supported him.
iv) Sri Alladi Kuppu Swamy Ayyar, another Member of
Drafting Committee, contended that "in spite of the ignorance and
illiteracy of the large mass of the Indian people, the Assembly has
adopted the principle of adult franchise with an abundant faith in
common man and the ultimate success of democratic rule and in the
full belief that the introduction of democratic Government on the basis
of adult sufferage will bring enlightenment and promote the well
being, the standard of life, the comfort and the decent living of the
common man. This assembly deserves to be congratulated on
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adopting the principle of adult sufferage and it may be stated that
never before in the history of the world has such an experiment been
so boldly undertaken."
v) The Apex Court had an occasion to deal with 'Right to
Vote' and 'Right not to Vote' in People's Union of Civil Liberties4.
vi) Secret Ballot System was also introduced to maintain the
secrecy of the Vote.
vii) It is also relevant to note that the Apex Court in one of the
judgments held that 'secrecy of ballot is sacrosanct'.
viii) It is also relevant to note that "while expecting his leader
to be honest, voter should be honest". "A corrupt voter cannot expect
his leader to be honest".
ix) It is a case where voter approached the ACB Officials
complaining about the bribe offered to him.
x) The allegations in the present case against the petitioner
herein are that he has offered an amount of Rs.5.00 Crores to LW1 to
cast his vote in favour of TDP Candidate or to abstain from voting by
leaving Country. The ACB Officials have also seized an amount of
Rs.50.00 Lakhs in the house of LW1 paid by accused.
xi) The ACB officials after conducting investigation laid down
charge sheet against the petitioner and other accused for the aforesaid
offences and the same was taken on file vide C.C.No.15 of 2016.
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xii) Now, the petitioner has filed the present petition to
determine the jurisdictional fact as a preliminary issue.
9. In view of the same, it is trite to refer the 'jurisdictional fact'.
i) A 'jurisdictional fact' is one on existence or non-existence of
which depends assumption or refusal to assume jurisdiction by a
Court, it is explained as a fact which must exist before a Court can
properly assume jurisdiction in respect of subject matter which the
Statute does not confer on it and if by deciding erroneously the fact on
which jurisdiction depends the Court or Tribunal exercises the
jurisdiction then the order is violated. Thus, it is clear that existence
of jurisdictional fact is sine qua non for exercise of power.
ii) A Constitution Bench of the Hon'ble Apex Court in P.V.
Nrasimha Rao7 referring to the law laid down by it in various other
judgments, categorically held that a Member of Parliament, or of a
Legislative Assembly, is a Public Servant for the purposes of the said
Act. Paragraph No.165 of the said judgment is relevant which is
extracted below:
"165. We think that the view of the Orissa
High Court that a member of a Legislative
Assembly is a public servant is correct. Judged by
the test enunciated by Lord Atkin in Mc Millan v.
Guest and adopted by Sikri J, in Kanta Kathwia's
case, the position of a member of Parliament, or of
a Legislative Assembly, is subsisting, permanent
and substantive; it has an existence independent of
the person who fills it and it is filled in succession
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by successive holders. The seat of each
constituency is permanent and substantiative. It is
filled, ordinarily for the duration of the legislative
term, by the successful candidate in the election
for the constituency. When the legislative term is
over, the seat is filled by the successful candidate
at the next election. There is, therefore, no doubt in
our minds that a Member of Parliament, or of a
Legislative Assembly, holds an office and that he
is required and authorised thereby to carry out a
public duty. In a word, a member of Parliament, or
of a Legislative Assembly, is a public servant for
the purposes of the said Act."
iii) In P.V. Nrasimha Rao7 the powers, privileges etc. of the
Houses of Parliament and of the Members of the Legislatures and
Committees thereof extended under Article 105 (2) and 194 (2) of the
Constitution of India and while dealing with immunity to be granted
to a case where bribery for making a speech or vote in a particular
manner in the house, it was held that the immunity cannot be extended
to the said cases when bribery for making a speech or vote in a
particular manner in the House. In Sita Soren8 he has accepted bribe
to vote in favour of a particular candidate in the Rajya Sabha election.
Therefore, considering the substantial public importance, the Apex
Court in Sita Soren8 referred to the matter to a Larger Bench with the
following observation:
"Para No.5: Having considered the matter we are
of the view that having regard to the wide
remification of the question that has arisen, the
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doubts raised and the issue being a matter of
substantial public importance we should be
requesting for a reference of the matter to a larger
Bench, as may be considered appropriate, to hear
and decide the issue arising. We order accordingly
and direct the Registry to place the record (s)
before the Hon'ble the Chief Justice of India on
the administrative side for appropriate orders."
iv) The principle laid down by the Apex Court in
P.V.Nrasimha Rao7 was referred to larger Bench in Sita Soren8.
But, the larger bench was not constituted and the law laid down in
P.V.Nrasimha Rao7 was not overruled so far. Therefore, the same is
binding. Referring to the same, the Court below rightly rejected the
contention of the petitioner.
v) By referring to the principle laid down by the Apex Court in
P.V.Narsimha Rao7, learned counsel would contend that Member of
Parliament is a public servant under the P.C. Act.
vi) In P.V.Narsimha Rao7, there is a clear distinction between
a public servant and a non-public servant. In fact, the respondent-
ACB has also relied on the very same principle laid down by the Apex
Court in P.V.Narsimha Rao7. By referring to the said principle,
learned counsel for ACB would contend that LW1, Member of
Legislative Assembly, has discharged his public duty and is a public
servant while exercising his franchise in Biennial elections of MLC.
Thus, LW1 being nominated MLA while exercising his franchise in
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Biennial elections of Legislative Council scheduled on 01.6.2015 was
discharging public duty and is a public servant.
10. The petitioner would further submit that the High Court is
having power to correct error jurisdiction by invoking its power under
Section 397 of Cr.P.C. and he has placed reliance on the principle laid
down by the Apex Court in Amit Kapoor v. Ramesh Chander11. It
is relevant to note that there is no dispute with regard to the said
power of this Court under Section 397 of Cr.P.C. to correct error in
jurisdiction.
11. Learned counsel for the petitioner by referring to the principle
laid down by the Apex Court in A.R. Antulay9 and Chiranjilal
Shrilal Goenka10 would contend that defect of jurisdiction strikes the
very authority of the Court and cannot be cured even by consent or
waiver of the parties. There is no dispute with regard to the said
settled principle. The question is whether the trial Court committed
an error in dismissing the petition filed by the petitioner herein or not?
12. Learned counsel for the petitioner would further submit that the
criminal proceedings are in personam i.e., the criminal liability of an
accused must be adjudicated based on the defence advanced by him
and he cannot be penalized for the action / inaction of other accused
person. In support of his contention, he has also relied upon the
principle laid down by the Apex Court in PJ Agro Tech Limited v.
. (2012) 9 SCC 460
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Water Base Limited12. It is relevant to note that in the said case,
Apex court, while dealing with an issue of maintainability of a
complaint under Section 138 of N.I. Act, held that the appellant
company therein and its Directors cannot be made liable under
Section 138 of N.I. Act for a default committed by respondent No.11
therein. Thus, the facts in the said case are totally different to the
facts of the case on hand.
13. It is relevant to note that Section 12 of the P.C. Act prescribes
punishment for abetment of offences defended in Sections 7 or 11 of
the P.C. Act. Thus, the P.C. Act was intended to make the existing
anti-corruption Law more effective by widening the coverage and
strengthening the provisions of the Act. The facts in Kishore
Khanchand Wadhwani6 are different to the facts of the present case.
14. As stated above, a person offering bribe can be prosecuted only
under Section 12 of the P.C. Act. Thus, by virtue of Section 12 of
P.C. Act, the offering of bribe is made a substantive offence. Hence, a
person offering bribe can only be prosecuted as per the said Section.
It is the mens rea of the bribe giver that has to be considered in a case
and it should be sufficient to render him liable if his object in bribing
or attempting to bribe the public servant was to induce the public
servant to do an official act in exercise of his official function.
. (2010) 12 SCC 146
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15. It was further held by the Court below that it has already
decided the said issue of jurisdictional fact while deciding the
discharge applications filed by the other accused under Section 239 of
Cr.P.C. and the said orders were confirmed by this Court in revision
petitions filed by the other accused. Therefore, the Court below
cannot review its own decision while dealing with the miscellaneous
applications filed by other accused. According to it, there is, prima
facie, material to frame charge under Section 12 of the P.C. Act and
other Sections of IPC.
16. It is also apt to extract Section - 2 (a), (b) and (c) of the P.C.
Act, which are as follows:
"Section-2(a) "election" means any election, by
whatever means held under any law for the
purpose of selecting members of Parliament or of
any Legislature, local authority or other public
authority"
"Section-2 (b) "public duty" means a duty in the
discharge of which the State, the public or the
community at large has an interest.
Explanation.--In this clause "State" includes a
corporation established by or under a Central,
Provincial or State Act, or an authority or a body
owned or controlled or aided by the Government
or a Government company as defined in section
617 of the Companies Act, 1956 (1 of 1956)"
"Section - 2(c) "public servant" means,--
(i) xxxxx;
(ii) xxxxx;
(iii) xxxxx;
(iv) xxxxx;
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(v) xxxxxx;
(vi) xxxxxx;
(vii) xxxxxx;
(viii)xxxxxx;
(ix) any person who is the president, secretary or
other office-bearer of a registered co-operative
society engaged in agriculture, industry, trade or
banking, receiving or having received any
financial aid from the Central Government or a
State Government or from any corporation
established by or under a Central, Provincial or
State Act, or any authority or body owned or
controlled or aided by the Government or a
Government company as defined in section 617 of
the Companies Act, 1956 (1 of 1956);
(x) xxxxx;
(xi) xxxxx;"
i) There is specific mention about composition of Legislative
Council and voting pattern in Constitution of India.
17. In view of the above contentions, it is relevant to mention that a
Three-Judge Bench of the Apex Court in Kaushik Chatterjee v.
State of Haryana13 had an occasion to deal with the jurisdiction issue
including territorial jurisdiction of Criminal Courts in inquiries and
trials and determination of principles and factors that need to be kept
in mind, and held that the issue of jurisdiction of a Court to try an
"offence" or "offender" as well as the issue of territorial jurisdiction,
depend upon facts established through evidence. That if the issue is
one of territorial jurisdiction, the same has to be decided with respect
. (2020) 10 SCC 92
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Crl.R.C. No.133 of 2021
to the various rules enunciated in Sections 177 to 184 of Cr.P.C.
These questions may have to be raised before the Court trying the
offence and such Court is bound to consider the same.
18. The Hon'ble Supreme Court considered the category of
criminal cases and civil cases and also discussed the jurisdiction issue
and held in paragraphs 38.1 to 38.3, which are relevant to extract
hereunder.
38.1. That the issue of jurisdiction of a
Court to try an "offence" or "offender" as well as
the issue of territorial jurisdiction, depend upon
facts established through evidence.
38.2. That if the issue is one of territorial
jurisdiction, the same has to be decided with
respect to the various rules enunciated in Sections
177 to 184 of the Code.
38.3 That these questions may have to be
raised before the Court trying the offence and such
court is bound to consider the same.
19. In view of the above said Law laid down by the Apex Court, the
jurisdictional issue has to be taken by the accused during trial in a
calendar case itself. The Trial Court has to decide the same with
respect to various rules enunciated in Sections 177 to 184 of the Code.
The trial Court is bound to consider the same.
20. In view of the authoritative law laid down by the Three-Judge
Bench of the Apex Court in Kaushik Chatterjee13, coming to the
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Crl.R.C. No.133 of 2021
facts of the case on hand, as discussed above, the jurisdictional issue
has to be decided by the trial Court during trial, the accused has to
take the said contention/defence during the trial in C.C and the trial
Court is bound to consider the same. The petitioner instead of taking
the said plea of defence during trial, filed the present application to
decide the said jurisdictional fact as a preliminary issue.
21. It is relevant to note that the Court below after referring to
several judgments and contentions, dismissed the said application
filed by the petitioner- Accused No.1 vide impugned order. It is a
reasoned order and there is no error in it. It is relevant to note that
charge sheet was filed on 07.07.2015, it was taken on file vide C.C.
No.15 of 2016. The discharge petitions filed by other accused were
dismissed and the said orders were confirmed by this Court in
revisions filed by them. The petitioner herein filed Crl.M.P. No.804
of 2020 in December, 2020 and the same was dismissed on
29.01.20201. It is relevant to note that the Apex Court had issued
directions with regard to expeditious disposal of criminal cases relate
to present and former Legislators in Ashwini Kumar Upadhyay v.
Union of India14.
22. Therefore, in view of the above said discussion, according to
this Court, the petitioner herein failed to make out any case to
interfere with the impugned order by this Court in exercise of its
revisional jurisdiction under Sections 397 and 401 of Cr.P.C.
. W.P. (Civil) No.699 of 2016, dated 04.11.2020
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Crl.R.C. No.133 of 2021
Therefore, the present Criminal Revision Case is liable to be
dismissed.
23. Accordingly, the Criminal Revision Case is dismissed.
As a sequel, miscellaneous petitions, if any, pending in the
revision shall stand closed.
_______________________
JUSTICE K. LAKSHMAN
Date:01.06.2021.
Note: L.R. Copy to be marked
(B/O.) Rkk
