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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 751  OF  2016 (ARISING OUT OF S.L.P. (CRL.) NO. 4338 OF 2015)

M/S. HCL INFOSYSTEM LTD.        …APPELLANT

VERSUS

CENTRAL BUREAU OF INVESTIGATION       ...RESPONDENT

W I T H  

CRIMINAL APPEAL NO. 752  OF  2016 (ARISING OUT OF S.L.P. (CRL.) NO.1418 OF 2016)

DR. VIJAI TRIPATHI        …APPELLANT

VERSUS

CENTRAL BUREAU OF INVESTIGATION  AND ANOTHER           ...RESPONDENTS

J U D G M E N T

ADARSH  KUMAR  GOEL,  J.

1. Leave  granted.   These  appeals  have  been  preferred

against the orders of the High Court of Judicature at Allahabad

dated 1st May, 2015 and 22nd January, 2016 in   APP No. 6623 of

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2015  and  Application  u/s  482/378/407  No.  3823  of  2014

respectively.    

2. The question for consideration relates to the jurisdiction

of the Special Judge appointed under the Prevention of Corruption

Act, 1988 (the “PC Act”) to try a person other than a public servant

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

Further question is whether the Special Judge can try a non PC

Act case when his appointment is to try all cases of the category

which covers the present case.      

3. The  Central  Bureau  of  Investigation  (the  “CBI”)

conducted  investigation  in  what  is  known  as  “National  Rural

Health  Mission  Scam”  (“NHRM  Scam”).   According  to  the  said

investigation, NRHM funds to the tune of Rs. 9,000 crores, which

were  allocated  to  the  State  of  Uttar  Pradesh  for  the  period

2005-2006  by  the  Ministry  of  Health  &  Family  Welfare,

Government of India, were diverted and allegedly misappropriated

on a large scale.  The CBI enquiry was ordered by the Lucknow

Bench of the High Court on 15th November, 2011.  It also came to

light that two Chief Medical Officers were shot dead as a result of

the said scam.  One Deputy Chief Medical Officer was arrested by

the local police, but he was found dead in jail on 22nd June, 2011.

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One Sunil Verma, who was named as one of the accused, allegedly

committed suicide on 23rd January, 2012.  One Mahender Kumar

Sharma,  who was a clerk in the office  of  Chief  Medical  Officer,

Lakhimpur  Kheri  was  found  murdered  on  15th February,  2012.

The CBI conducted searches of more than 150 places across the

State and arrested a number of accused persons suspected to be

involved in the embezzlement of NHRM funds.   

4. A  single  court  was  designated  as  the  trial  court  to

facilitate the progress of the trial vide order of the Chief Justice of

the  High Court  dated  16th May,  2012.   Vide order  of  the  State

Government  dated  28th August,  2012  the  said  notification

designated  the  Special  Judge,  CBI,  Ghaziabad  for  dealing  with

“NRHM scam matters” for whole of the Uttar Pradesh State and

was  in  addition  to  notification  dated  10th March,  2011  issued

earlier for appointment of Special Judge for trial of offences under

Section 3(1) of the PC Act.   

5. The two notifications are as follows :  

(I)                                          “  NOTIFICATION   Miscellaneous

No.U.O.-24/6-P-9-2011-167G/09TC-Nyaya-2 Lucknow : dated March 10, 2011

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In  exercise  of  the  powers  under  sub-section  (1)  of section 3 and sub-section (2) of section 4 of the Prevention of Corruption Act, 1988 (Act No. 49 of 1988) read with section 21 of the  General  Clauses  Act,  1897  (Act  no.X  of  1897)  and  in supersession of all other notifications issued in this behalf, the Governor is pleased to appoint from the date of his taking over charge the Additional District Judge mentioned in Column 2 of the Scheduled below, as Special Judge for the areas mentioned in Column 4 for trial for such offences specified in sub-section (1) of  section  3  of  the  aforesaid  Act  no.49  of  1988  in  which hereinafter charge sheet are filed in his court by Special Police Establishment of the Government of India and to direct that such other cases arising within the said areas, in which charge sheets have already been filed before any other Special Judge appointed under the said Act and also such other cases arising within the said area relating to the said Special Police Establishment which are pending before such Special Judge, shall  also be tried and disposed  off  by  him  and  his  court  shall  be  designated  as specified  in  column-3  of  said  Schedule  with  headquarters  at Ghaziabad.  

SCHEDULE

Sl. No .

Name of the Judge Name of the Court

Areas of Jurisdiction (District)

1 2 3 4 1 Shri Shyam Lal-II,

Additional  District and Sessions Judge, Ghaziabad

Special Court,  Anti Corruption, CBI, Ghaziabad

G.B. Nagar, Meerut,  Aligarh, Rampur,  Mainpuri, Firozabad.

2 Dr.  Ashok  Kumar Singh-IV,  Special Judge  Anti Corruption  C.B.I., Ghaziabad

Special Court C.B.I.,  Court No.1, Ghaziabad

Ghaziabad,  Moradabad,  Bulandshahar, Bijnor, Hathras

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3 Sri  M.S.  Wadhwa, Additional  District and Sessions Judge, Muzaffarnagar

Special Court C.B.I.,  Court No.2, Ghaziabad

Saharanpur, Agra,  Muzaffarnagar, J.P.  Nagar, Etah,  Baghpat, Mathura.

By order  Deepak Kumar Secretary

(II) GOVERNMENT OF UTTAR PRADESH HOME (POLICE) SECTION-9

No. U.O.49/Six-P-12-167 G/09 T.C. Justice-2 Lucknow, Dated: 28th August, 2012

Exercising  the  powers  conferred  under  section  2  of  General Clauses Act, 1897 (Act No.10 of 1897) read with sub-section (1) of section  73  and  sub-section  (2)  of  section  4  of  Prevention  of Corruption Act, 1988 (Act No.49 of 1988) and besides Notification No.U.O.24/Six-P-9-2011-167G/09  T.C.  –  Justice-2,  dated  10th

March,  2011  issued  for  this  purpose,  the  Governor  do  hereby appoint Sri Shyam             Lal–Second.  Special Judge, Anti Corruption, CBI, Ghaziabad, for disposing of National Rural Health  Mission (NRHM) Scam matters of  whole of  Uttar Pradesh,  besides  the  matters  mentioned  in  previous Notification, with immediate effect.  

By the order  Kamal Saxena Secretary    ”        (emphasis added)

6. The CBI filed several charge sheets, including a charge

sheet in respect of offences not covered by the PC Act in the case of

Dr.  Vijai  Tripathi  (appellant  in  SLP (Crl.)  No.1418 of  2016)  and

others.   Since  the  Special  Judge  declined  to  entertain  the  said

charge sheet, on application of the CBI, the High Court held that

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the Special Judge was to deal with “all cases relating to the scam”,

even though the offences were not under the PC Act.1   

7. Vide notification dated 29th May, 2014 in place of Shri Shyam

Lal-II,  Shri  Atul  Kumar  Gupta  was  posted  for  CBI  Court,

Ghaziabad.  He was to look after all  cases of  NRHM as notified

earlier,  as  the  notification  dated  28th August,  2012  was  not

rescinded, even though.  The notification dated 29th May, 2014 was

in supersession of all other notifications.  This aspect, as noted in

the impugned judgment of  the High Court,  was clarified on the

administrative side of the High Court.  Cases of the appellants are

being dealt with by the said court.  Charge is yet to be framed.

8. The appellant in SLP (Crl.) No.4338 of 2015 is named as

co-accused  inter alia for offence of conspiracy along with a public

servant who was charged under the  PC Act.  It approached the

High Court with the plea of lack of jurisdiction of the Special Judge

to  deal  with  the  case  against  it  after  the  death  of  the  public

servant.  The  High  Court  repelled  the  said  contention  and

dismissed the petition.  The High Court relied upon the judgment

of this Court in M/s. Essar Teleholdings Limited Vs. Registrar

General, Delhi High Court and Others2 wherein it was held that

1 Order dated 23.09.2013 in Criminal Misc. Application U/s 482 No.33050 of 2013 2 2013 (8) SCC 1

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the Special Judge having been appointed to deal with “all 2G scam”

cases, could also deal with cases involving other offences under the

PC  Act.  This  is  clear  from  the  following  discussion  in  the

judgment :  

xxx xxx

11.  Subsequently,  the  CBI  filed  second supplementary  charge sheet on 12.12.2011 against the Petitioner(s) and other accused persons for  the alleged commission of  offences under Section 420/ 120-B Indian Penal Code. No offences under the PC Act have been alleged against the Petitioner(s) and other accused persons arraigned in the second supplementary charge sheet. Based on the same, the learned Special Judge by impugned order dated 21.12.2011  was  pleased  to  take  cognizance  of  the  second supplementary  charge  sheet  dated  12.12.2011  and  the Petitioner(s) and others were summoned.

12.  According to the Petitioner(s),  the CBI  in  its  charge sheet dated 12.12.2011 admits that the charge sheet is being filed " regarding a separate offence" under Section 420/ 120-B Indian Penal Code. In paragraphs 73 and 74 of the said charge sheet whilst admitting that the offences alleged in the charge sheet are triable by a Magistrate, the CBI relying on the notification dated 28.3.2011 requested the Special Judge to take cognizance of the matter. Paragraphs 73 and 74 of the charge sheet read as under:

73.  This  final  report  under  Section  173(8)  Code  of Criminal  Procedure is  being filed regarding a  separate offence which came to notice during investigation of the FIR No. RC DAI 2009 A 0045 (2G Spectrum Case), which

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is  pending before Hon'ble Special  Judge (2G Spectrum Cases),  Patiala  House  Courts,  New  Delhi  and  a  final report dated 02.04.2011 and supplementary final report dated 25.04.2011 were earlier filed in the same FIR.

74.  In  terms  of  the  Notification  No. 6/05/2011-Judl./363-367  dated  28.03.2011  issued  by Govt.  of  NCT  of  Delhi  this  Hon'ble  Court  has  been designated to undertake the trial of cases in relation to all  matters  pertaining  to  2G  Scam  exclusively  in pursuance of the orders of the Supreme Court, although offences  alleged to  have  been  committed  by  accused persons sent up for trial are triable by the Magistrate of first class. It is, therefore, prayed that cognizance of the aforesaid offences may be taken or the final report may be endorsed to any other appropriate court as deemed fit and thereafter process may be issued to the accused persons for their appearance and to face the trial as per Law.

13. The learned Special Judge, thereafter, took cognizance vide impugned order dated 21.12.2011. The relevant portion of the said impugned order reads as under:

“2.  Ld.  Spl.  PP further submits  that  the accused have been charged with the commission of offence, which are triable,  by  the  Court  of  Metropolitan  Magistrate.  It  is further  submitted  that  this  second  supplementary charge sheet also arises from the aforesaid RC bearing No. DAI2009A0045/CBI/ACB/ND, titled as CBI v.  A. Raja and Ors., arose and is pending trial. He further submits that since this case also arises from the same FIR, it is to

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be tried by this Court alone. He has further invited my attention to an order dated 15.03.2011, passed by the Hon'ble  High  Court,  whereby  the  undersigned  was nominated as Special Judge by the Hon'ble High Court to exclusively try cases of 2G Scam.

3.  Accordingly,  the  trial  of  this  second supplementary charge sheet shall be held in this Court. A copy of the order dated 15.03.2011 be placed on the file.”

14. Learned Counsel for the Petitioner(s) assailed the impugned Administrative  Order  passed  by  the  Delhi  High  Court  dated 15.3.2011 and the Notification dated 28.3.2011 issued by the Government of NCT Delhi on the following grounds:

14.1  The  impugned  notification  travels  beyond  the provisions of the Code of Criminal Procedure. The Code of Criminal Procedure mandates that offences under the Indian Penal Code ought to be tried as per its provisions.

14.2  It has been held by this Hon'ble Court in the case of CBI v. Keshub Mahindra that: (SCC p. 219, para 11)  

“No  decision  by  any  court,  this  Court  not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code..."   

(emphasis in original)

Thus,  the  Administrative  order  and  Notification  are contrary to the well-settled provisions of law and ought to be set

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aside in so far as they confer jurisdiction on a Special Judge to take cognizance and hold trial of matters not pertaining to PC Act offences.

14.3 If the offence of Section 420 Indian Penal Code, which ought to be tried by a Magistrate, is to be tried by a Court of Sessions, a  variety  of  valuable  rights  of  the  Petitioner  would  be jeopardised.  This  would  be  contrary  to  the  decision  of  the Constitutional Bench of the Hon'ble Supreme Court in the case of A.R. Antulay v. R.S. Nayak, wherein it was acknowledged that the right to appeal is a valuable right and the loss of such a right is violative of Article 14 of the Constitution of India.

15.4 The Second Supplementary charge-sheet which makes out offences against the present accused arises out of FIR No. RC DAI 2009 A 0045 registered by the CBI on 21.10.2009, out of which the earlier charge-sheets have been filed, and cognizance taken by the Special Court. An anomalous situation would be created if various accused charged with offences arising out of the same FIR were to be tried by different courts on the flimsy ground that some of them are only charged of offences arising out of the Indian Penal Code and not the special statutes under which other charges are laid.

15.5 Higher courts can try an offence in view of Section 26 of Code of Criminal Procedure and no prejudice should be caused if the case is tried by a Special Judge. By virtue of Administrative Order passed by the Delhi High court and Notification issued by the Government of NCT, Delhi, the learned Special Judge is not divested of his jurisdiction which he otherwise possesses under Section 26 of the Code of Criminal Procedure to try offence under Indian Penal Code. The Section reads as follows:

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“26. Courts by which offences are triable.- Subject to the other provisions of this Code,-

(a) Any offence under the Indian Penal Code (45 of 1860) may be tried by-

(i) The High Court, or (ii) The Court of Session, or (iii) Any other court by which such offence is shown in the First Schedule to be triable; (b)  Any  offence  under  any  other  law  shall,  when  any Court is mentioned in this behalf in such law, be tried by such Court and when no court is so mentioned, may be tried by- (i) The High Court, or (ii) Any other court by which such offence is shown in the First Schedule to be triable.”

16.  Mr.  Prashant  Bhushan,  learned  Counsel  for  the  CPIL, submitted that  a Special  Judge has the power to try  offences under  the  Indian  Penal  Code  and  no  challenge  can  be  made against this power. It was further submitted that in view of the order passed by this Court in 2G Scam case, it is not open to the Petitioners to approach any other Court to commence the trial.

xxx xxx

24. From the aforesaid second charge-sheet it is clear that the offence alleged to have been committed by the Petitioners in the course of 2G Scam Cases. For the said reason they have been made accused in the 2G Scam Case.

25. Admittedly, the co-accused of 2G Scam case charged under the provisions of Prevention of Corruption Act can be tried only by the Special Judge. The Petitioners are co-accused in the said 2G  Scam  case.  In  this  background  Section  220  of  Code  of Criminal Procedure will apply and the Petitioners though accused of different offences i.e. under Section 420/ 120-B Indian Penal Code, which alleged to have been committed in the course of 2G

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Spectrum transactions,  under Section 223 of Code of  Criminal Procedure they may be charged and can be tried together with the other co-accused of 2G Scam cases.

30.  On the question of  validity  of  the Notification dated 28th March, 2011 issued by the NCT of Delhi and Administrative Order dated 15th March, 2011 passed by the Delhi High Court, we hold as follows:

30.1. Under Sub-section (1) of Section 3 of the PC Act the State Government may, by notification in the Official Gazette, appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try any offence punishable under the PC Act. In  the  present  case,  as  admittedly,  co-accused  have  been charged under the provisions of the PC Act,  and such offence punishable under the PC Act, the NCT of Delhi is well within its jurisdiction to issue Notification(s) appointing Special Judge(s) to try the 2G Scam case(s).

30.2.  Article  233 and 234 of  the Constitution are  attracted in cases where appointments of  persons to be Special  Judges or their  postings  to  a  particular  Special  Court  are  involved.  The control of High Court is comprehensive, exclusive and effective and  it  is  to  subserve  a  basic  feature  of  the  Constitution  i.e., independence  of  judiciary.  [See  High  Court  of  Judicature  for Rajasthan v. Ramesh Chand Paliwal and High Court of Orissa v. Sisir Kanta Satapathy. The power to appoint or promote or post a District Judge of a State is vested with the Governor of the State under Article 233 of the Constitution which can be exercised only in consultation with the High Court. Therefore, it is well within the jurisdiction of the High Court to nominate officer(s) of the

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rank of the District Judge for appointment and posting as Special Judge(s) under Sub-section (1) of Section 3 of the PC Act.

30.3. In the present case, the Petitioners have not challenged the nomination made by the High Court of Delhi to the NCT of Delhi. They have challenged the letter dated 15th March, 2011 written by the Registrar General, High Court of Delhi, New Delhi to the District Judge-I-cum-Sessions Judge, Tis Hazari Courts, Delhi and the  District  Judge-IV-cum-Addl.  Sessions  Judge,  I/C,  New  Delhi District, Patiala House Courts, New Delhi whereby the High Court intimated  the  officers  about  nomination  of  Mr.  O.P.  Saini,  an officer  of  Delhi  Higher  Judicial  Service  for  his  appointment  as Special Judge for 2G Scam Cases.

31. In the present case there is nothing on the record to suggest that  the  Petitioners  will  not  get  fair  trial  and  may  face miscarriage  of  justice.  In  absence  of  any  such  threat  & miscarriage of justice, no interference is called for against the impugned order  taking  cognizance  of  the  offence  against  the Petitioners.

9. In the impugned judgment, the High Court dealing with the

powers of the Chief Justice of the High Court to permit non-PC Act

cases also being dealt with by the Special Judge observed:  

“  The powers of the Chief Justice to do so are unquestionable keeping in view the provisions of Rule 4(A) of Chapter III of the Allahabad High  Court  Rules  which includes the powers  of  the Chief Justice in matters of Mid-term posting and transfers and all residuary  matters  not  allotted  to  any  Committee  or Administrative Judges.  This being the legal position and there being  no  indication  of  any  prejudice  or  failure  of  justice,  the

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notification  dated  29.5.2014  read  with  the  notification  dated 28.8.2012/ 1.9.2012 and the order of the Chief Justice mentioned hereinabove dated 13.2.2014 clearly continues the authority of Sri Atul Kumar Gupta to exercise powers exclusively over NRHM cases at  Ghaziabad.   From the administrative file  of  the High Court  relating  to  the  issuance  of  such  notifications  it  also appears that steps have been initiated and the Government has already been communicated with  the approval  of  Hon’ble  the Chief  Justice,  that  the said omission in the notifications dated 29.5.2014 specifically about NRHM cases be rectified.  There is, therefore, a substantial  compliance of procedure in relation to the conferment of the posting and jurisdiction of Sri Atul Kumar Gupta as successor in office of Sri Shyam Lal-II who was already notified to exclusively try NRHM cases.  In the light of the above, a ministerial omission either by the registry of the High Court or by  the  State  Government  will  not  dissolve  the  conferment  of authority on the successor in office.   

xxx xxx

In my considered opinion as well, the aforesaid approach of getting the scam tried in one particular court does not suffer from any administrative or judicial infirmity and rather the same would advance the cause of justice with the entire scam being looked into by one particular court instead of a variety of courts spread over differently as it would result in a likelihood of conflict of  appreciation  of  evidence  and  obviously  might  result  in  a conflict  of  opinion.   The  nature  of  the  offences  being  tried simultaneously  by  one  court  relate  to  the  diversion, misappropriation and misutilization of the funds of the National Rural Health Mission that according to the charge sheet and the FIRs as well as the evidence collected indicate a concerted effort through a deep-routed conspiracy to siphon off the funds of the NRHM scam.  In such a situation it would not be inappropriate to invoke  the  principle  “extraordinary  situations  require  extra

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ordinary remedies” for retaining the jurisdiction with the learned Special Judge in the facts of the present case.  “   

10. As already stated, the High Court held that the Special Judge

could continue proceedings against the appellants even after the

death of public servant and even if there was no charge under the

PC Act.  The High Court  duly considered the effect of death of the

sole public servant.  The contention raised by the appellant in the

first case was that the charges against it were under Section 120B

read with Sections 409 and 420 IPC and Section 13(1)(d) read with

Section 13(2) of the PC Act. There is no independent PC Act charge

against it.  Thus, only for non PC Act charges, proceedings could

not  continue  before  the  Special  Judge.   On this  aspect,  it  was

observed  that  the  charge  could  be amended and challenge  was

pre-mature apart from the fact the Special Judge was competent to

deal with non PC Act cases relating to NRHM scam. The relevant

observations in this regard are :

“ There is one thing which deserves mention at this very stage is that the possibility of amendment in the charges and addition thereto keeping in view the nature of the allegations cannot be ruled out in future.  This, therefore, would be a premature stage to presume that no other offence can be tried by the Special Court.   The  offences  in  relation  to  a  non-government servant which connect  him with the conspiracy of  misappropriation of public funds with the aid of a government servant,  would not

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vanish merely because the government servant has died.  This would clearly depend upon the evidence and the facts of  the case that would ultimately determine the framing of the charge and its consequential trial.  Not only this, the Court has ample powers to add charges even during the course of the trial.   From a perusal of the FIR, charge sheet and cognizance order, it may  not  be  said  at  this  stage  that  no  offence  under  the Prevention  of  Corruption  Act  has  been  committed  by  the applicant.  The cognizance is taken of the offence and not of the person.   The  charges  are  framed  in  relation  to  the  offence committed  which  are  tried.   The  question  is  of  the  link  of  a non-government  servant  to  such  an  offence  which  may  be relatable  to  the  Prevention  of  Corruption  Act,  1988.   In  the instant  case the material  on record does indicate  prima facie such connection whereas in the case of State Vs. Jitender Kumar Singh (supra) which has been relied upon by the learned counsel for the applicant, the Apex Court came to a conclusion that there was no offence under the Prevention of Corruption Act for being tried as against the non-government servants involved therein that  arose  out  of  the  Bombay  case  as  discussed  in  the  said judgment.   In  the  circumstances,  it  would  be  absolutely premature to presume on the facts of the present case of there being  no  evidence  or  linkage  as  suggested  by  the  learned counsel for the petitioner when prima facie a charge sheet and the cognizance order do disclose such links.    

xxx xxx

Applying  the  aforesaid  principles  on  the  facts  of  the  present case, it is clear that there are clear allegations and also evidence prima facie collected to indicate conspiracy that connect the acts and omissions of Late Sri  G.K. Batra, the government servant, with the applicant-company and its officials and agents who got themselves  introduced in  the  manner  indicated  in  the  charge sheet  along  with  the  active  aid  of  Late  Sri  G.K.  Batra.

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Consequently,  all  arguments  that  have  been advanced by  Sri Chaturvedi on the strength of the judgment in the case of State Vs. Jitender Kumar Singh (supra) do not come to his aid as the facts  of  the  present  case  are  not  identical  except  for  the similarity  of  the  death  of  the  government  servant. Consequently, the second argument also does not hold water.   In  view  of  the  conclusions  drawn  hereinabove,  the  order impugned dated 28.2.2015 is upheld and the proceedings before Sri Atul Kumar Gupta are treated to be well within his jurisdiction in all NRHM cases.  In order to remove any doubt in this regard it is further directed that Sri Atul Kumar Gupta would continue to have jurisdiction over such cases till his successor joins on the said post.  It may also be put on record that according to the annual list of transfer and posting Sri Atul Kumar Gupta is under orders of transfer, but on account of no fresh notification for the court occupied by him, his transfer order is under abeyance till his successor joins.  “

11. The only contention raised by Shri C.U. Singh, learned senior

counsel for the appellant is that public servant having died before

framing  of  the  charge,  the  appellant  could  not  be  tried  by  the

Special  Judge.   He  did  not  challenge  any  other  finding  in  the

impugned  order  except  those  relevant  to  this  contention.   Shri

Singh submits that the case of the appellant-M/s. HCL Infosystem

Limited is fully covered by the judgment of this Court in  State

through  Central  Bureau  of  Investigation,  New  Delhi Vs.

Jitender  Kumar  Singh3.  Particular  reliance  was  placed  on

3 (2014) 11 SCC 724

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paragraph 46 of the judgment.  It was submitted that the trial in a

warrant case commenced on framing of the charge which has not

yet  happened  and  the  public  servant  had  died.   The  appellant

could  be  tried  only  during  the  lifetime  of  the  public  servant.

Having regard to the fact that the public servant has died before

the framing of the charge, this Court upheld the view of the High

Court in forwarding the papers of the case to the Chief Judicial

Magistrate.   

12. His  main  reliance  is  on  paragraphs  46  and  47  of  the

judgment  which are as follows :  

“  xxx

46. 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  120-B,  420  IPC  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 the 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

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servant, as already indicated, is a sine qua non for exercising powers under sub-section (3) of Section 4 of the PC Act.  In the instant case, since no PC offence has been committed by any of the  non-public  servants  and  no  charges  have  been  framed against the public servant, while he was alive, the Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant.  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.  47. Consequently, we find no error in the view taken by the Special  Judge,  CBI,  Greater  Mumbai  in  forwarding  the  case papers of Special Case No.88 of 2001 in the Court of the Chief Metropolitan Magistrate for trying the case in accordance with law.  Consequently, the order passed by the High Court is set aside.  The competent court to which Special Case No.88 of 2001 is forwarded, is directed to dispose of the same within a period of six  months.   Criminal  Appeal  No.  161  of  2011  is  allowed accordingly.”    

13. Learned counsel for the CBI supports the impugned order by

submitting that the cognizance had already been taken and the

matter should be allowed to proceed before the Special Judge in

view of the impugned order of the High Court.

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,

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under  Section  4(3),  could  not  try  an  offence  other  than  that

specified under Section 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 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-

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PC Act could also be allowed to be tried by the Special Judge under

Section 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.

………………………………………………J. ( V. GOPALA GOWDA )

………………………………………………J. ( ADARSH KUMAR GOEL )

NEW DELHI;  AUGUST  09 , 2016.

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1B-FOR JUDGMENT       COURT NO.13           SECTION II                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS CRL.A. No.751/2016 (@ Petition(s) for Special Leave to Appeal (Crl.)  No(s). 4338/2015) M/S HCL INFOSYSTEM LTD                   Appellant(s)                                 VERSUS CENTRAL BUREAU OF INVESTIGATION          Respondent(s)

WITH CRL.A. No.752/2016 (@ SLP(Crl) No. 1418/2016)

Date  :  09/08/2016  These  appeals  were  called  on  for pronouncement of JUDGMENT today. For Petitioner(s)                      Mr. P. V. Dinesh,Adv.                                            Mr. Sibo Sankar Mishra,Adv.

Mr. Uma Kant Mishra, Adv.  Mr. Niranjan Sahu, Adv.

For Respondent(s)  Mr. M. Rambabu, Adv.

                    Mukesh Kumar Maroria,Adv.        

Hon'ble Mr. Justice Adarsh Kumar Goel pronounced the judgment of the Bench comprising Hon'ble Mr. Justice V. Gopala Gowda and His Lordship.

Leave granted.

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The appeals are dismissed in terms of the signed Reportable Judgment.

VINOD KUMAR JHA  SUMAN JAIN   AR-CUM-PS COURT MASTER  

(Signed Reportable judgment is placed on the file)