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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE/ORIGINAL JURISDICTION  

CRIMINAL APPEAL NO. 1273 OF 2015 [ARISING OUT OF SLP (CRIMINAL) NO.2978 OF 2014)

ESSAR TELEHOLDINGS LTD. … APPELLANT

VERSUS

CENTRAL BUREAU OF INVESTIGATION … RESPONDENT

WITH  

WRIT PETITION (CRIMINAL) NO.36 OF 2014

WRIT PETITION (CRIMINAL) NO.39 OF 2014

J U D G M E N T  

R.F. Nariman, J.

1. Leave granted in SLP (Crl.) No.2978 of 2014.

2. These matters arise as a sequel to the judgment delivered by

this Court on 1.7.2013 by which three writ petitions filed by Essar

Teleholdings  Limited,  Loop  Telecom  Limited  and  Vikash  Saraf

were dismissed by a Division Bench of this Court.  

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3. The brief facts necessary to appreciate how the controversy

arose before this Court are as follows.

4. CBI  registered  an  FIR  RC  No.DAI  2009  A  0045  dated

21.10.2009 alleging offences under the Prevention of Corruption

Act, 1988 and criminal conspiracy in respect of the grant of 122

UAS  licenses  in  the  year  2008  against  various  unknown

Government  officials,  persons  and  companies.   The gist  of  the

offence was set out in the penultimate paragraph of the said FIR,

which is set out as follows:

“Thus,  the  concerned  officials  of  Department  of Telecommunications in criminal conspiracy with private persons/companies  by  abusing  their  official  position granted  Unified  Access  Service  Licenses  to  a  few selected companies  at  nominal  rate  by rejecting the applications of others without any valid reason thereby causing wrongful loss to the Government of India and a  corresponding  wrongful  loss  to  private persons/companies  estimated  to  be  more  than Rs.22,000 Crores.

The  aforesaid  facts  disclose  commission  of  offence under sections 120-B IPC, r/w section 13(2) r/w 13 (1) (d) of PC Act, 1988 against certain unknown officials of Department  of  Telecommunications,  Government  of India, unknown private persons/companies and others”

5. On  16.12.2010,  this  Court  passed  an  order  reported  in

Centre for Public Interest Litigation v. Union of India, (2011) 1

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SCC  560,  directing  the  CBI  to  investigate  the  said  FIR.   On

10.2.2011,  while  monitoring  the  CBI  investigation,  this  Court

passed an order directing that no other Court shall pass any order

which may in any manner impede the investigation being carried

out by the CBI and Directorate of Enforcement.  On 2.4.2011, and

25.4.2011,  CBI  filed  a  chargesheet  and  a  first  supplementary

chargesheet against 12 accused persons for offences committed

both  under  the  Indian  Penal  Code  and  the  Prevention  of

Corruption Act. It is common ground that none of the petitioners

before us were named or mentioned in these two chargesheets.

6. The  present  case  arises  out  of  a  second  supplementary

chargesheet  dated  12.12.2011 naming  8  persons  as  accused,

alleging offences under Section 120B read with Section 420 IPC.

It  is  relevant  to  mention  that  this  second  supplementary

chargesheet  which  implicated  the  petitioners  before  us  did  not

contain any offences under the Prevention of Corruption Act.  The

CBI  mentioned  in  the  said  chargesheet  that  separate  offences

came to their  notice during the investigation of  FIR RC No.DAI

2009  A 0045,  as  a  result  of  which  the  second  supplementary

chargesheet was being filed.  They further went on to state that

these charges are triable by a Magistrate of the First Class but

may be  endorsed  to  any  appropriate  court  as  deemed fit  after

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which process may be issued to  the accused persons for  their

appearance and to face trial as per law.

7. On 21.12.2011, the Special Judge took cognizance of  this

second supplementary chargesheet dated 12.12.2011 and stated

that he was satisfied that there is enough incriminating material on

record to proceed against the accused persons.

8. Meanwhile, pursuant to an observation made in this Court’s

order dated 10.2.2011, two important things happened.  First, the

Delhi High Court passed an administrative order dated 15.3.2011

appointing Shri O.P. Saini as Special Judge to undertake trial of

cases in relation to all matters pertaining to the 2G Scam, and the

Government of NCT of Delhi also promulgated a notification dated

28.3.2011 under the Prevention of Corruption Act nominating the

self-same Shri  O.P. Saini  a  Special  Judge to  undertake trial  of

cases in relation to all matters pertaining to the 2G Scam. Three

writ  petitions  were  filed  as has  been stated above,  challenging

inter alia the order dated 21.12.2011 passed by the Special Judge,

CBI  taking  cognizance  of  the  matters  stated  in  the  second

supplementary chargesheet against the petitioners before us.  The

prayers contained in these writ petitions are set out hereunder:

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a)  a Writ of Certiorari or an order or direction in the nature of certiorari quashing the Administrative Order dated 15.03.2011 issued by the Respondent No. 1 in so far as it seeks to confer upon the Ld. Special Judge Shri  O.P. Saini  jurisdiction  to  inquire  into  and  try  all cases  arising  out  of  2G Spectrum scam,  which  are otherwise  exclusively  inquired  into  and  triable  by  a Magistrate under the relevant statutes and to quash all consequential actions/orders passed thereupon; b)   a Writ of Certiorari or any other order or direction in the  nature  of  certiorari  quashing  the  Notification bearing No. 6/05/2011-Judl. dated 28.03.2011 in so far as it seeks to confer upon the Ld. Special Judge Shri O.P. Saini jurisdiction to inquire into and try all cases arising out of the 2G Spectrum scam, including those which are not within the scope of his jurisdiction under the relevant statutes read with the Constitution of India and  to  quash  all  consequential  actions/orders thereupon;

c)   a  writ  to  quash  and  set  aside  order  dated 21.12.2011 passed by the Ld. Special Judge Shri O.P. Saini taking cognizance in CC No. 1(B) of 2011 titled ‘CBI  v  Ravikant  Ruia  &  Ors’  and  all  proceedings emanating therefrom;

d)   Pass  such  other  further  orders,  which  may  be required  in  the  interest  of  justice  equity  and  good conscience.

9. It  will  thus  be  seen  that  prayers  (a)  and  (b)  concern

themselves  with  quashing  the  administrative  order  dated

15.3.2011 of the High Court and the notification dated 28.3.2011 of

the Government of NCT of Delhi, both appointing and conferring

jurisdiction on the Special Judge to enquire into and try all cases

arising out of the 2G Scam.  Prayer (c) was devoted to setting

aside the order dated 21.12.2011 passed by the learned Special

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Judge taking cognizance.

10. In a detailed judgment, this Court set out the arguments of

the petitioners as follows:  

“The 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 of Delhi on the following grounds:

14.1. The  impugned  notification  travels  beyond  the provisions  of  CrPC.  CrPC  mandates  that  offences under IPC ought to be tried as per its provisions.

14.2. It  has  been  held  by  this  Hon'ble  Court in CBI v. Keshub Mahindra [(2011) 6 SCC 216 : (2011) 2 SCC (Cri) 863] that: (SCC p. 219, para 11)

“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 the notification are contrary to the well-settled provisions of law and ought to be set aside insofar as they confer jurisdiction on a Special  Judge  to  take  cognizance  and  hold  trial  of matters not pertaining to the PC Act offences.

14.3. If the offence of Section 420 IPC, which ought to be tried by a Magistrate, is to be tried by a Court of Session,  a variety of valuable rights of the petitioner would be jeopardised. This would be contrary to the decision  of  the  Constitution  Bench  of  the  Hon'ble Supreme Court in A.R. Antulay v. R.S. Nayak [(1988) 2 SCC  602  :  1988  SCC  (Cri)  372]  ,  wherein  it  was acknowledged that  the  right  to  appeal  is  a  valuable right and the loss of such a right is violative of Article

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14 of the Constitution of India.” [at para 14]

11. After setting out Sections 194, 26, 220 and 223 of the Code

of Criminal Procedure Code (in short “CrPC”) and Sections 3 and

4 of the Prevention of Corruption Act, this Court stated:

“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.

Admittedly, the co-accused of 2G Scam case charged under  the provisions of  the 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 CrPC will apply and the petitioners  though  accused  of  different  offences  i.e. under Sections 420/120-B IPC, which alleged to have been  committed  in  the  course  of  2G  Spectrum transactions,  under  Section  223  CrPC they  may  be charged  and  can  be  tried  together  with  the  other co-accused of 2G Scam cases.” [at paras 24 and 25]

12. This Court went on to consider some of the earlier judgments

of  this  Court  with  reference to  the validity  of  the administrative

order  dated 15.3.2011 and the notification dated 28.3.2011 and

then held:

“On the question of  validity  of  the Notification dated 28-3-2011  issued  by  the  NCT  of  Delhi  and Administrative Order  dated 15-3-2011 passed by the Delhi High Court, we hold as follows:

30.1. Under sub-section (1) of Section 3 of the PC Act

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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. Articles  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  the  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 [(1998) 3 SCC 72 :  1998 SCC (L&S) 786] and High Court of Orissa v. Sisir Kanta Satapathy [(1999) 7 SCC 725 : 1999 SCC (L&S) 1373] .) 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  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 15-3-2011 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-Additional  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.” [at para 30]

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13. In  the  last  paragraph,  namely,  paragraph  35,  this  Court

dismissed the writ petitions in the following terms:  

“We  find  no  merit  in  these  writ  petitions,  they  are accordingly dismissed. The Special Court is expected to proceed with the trial on day-to-day basis to ensure early disposal of the trial. There shall be no order as to costs.” [at para 35]

14. Close upon the heels of the judgment of this Court, Essar

Teleholdings  Ltd.,  one  of  the  petitioners  before  us,  by  an

application dated 29.7.2013, sought for a joint trial, by praying as

follows:-  

a) Pass an order to give effect to the judgment of the Hon’ble Supreme Court dated 01.07.2013 passed in  Writ  Petition  (Civil)  No.  57  of  2012,  treating  the Accused in CC No. 1B of 2011 as ‘Co-accused’ with the Accused in CC No.1 of 2011 and to pass all other consequential orders, in this regard; and/or

b) Consider the matter afresh from the stage of the receipt of the report under Section 173(8) CrPC, and frame  fresh  charges  and  also  issue  appropriate directions upon the Applicants joining the Trial in C.C. No.1 of 2011, and/or

c) Issue  appropriate  directions  to  ensure  that  the proceedings i.e. CC No 1 of 2011 and CC No 1B of 2011 are assimilated into one Trial and for this purpose issue appropriate directions to rectify the situation as to the past,  and for  further  proceedings,  direct  that  the Trial  being  C.C.  No.  1  of  2011  is  conducted  in conformity with Section 220 with 223 CrPC;and/or

Pass  any  other  order(s)  as  this  Hon’ble  Court  may

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deem fit and proper in the interest of justice.

15. The  other  two  writ  petitioners,  whose  petitions  had  been

dismissed by this Court by the judgment dated 1.7.2013, namely,

M/s Loop Telecom Limited and Mr. Vikash Saraf, both filed review

petitions against the judgment dated 1.7.2013, in which they raised

the self-same grounds that were argued before this Court.  These

review petitions were dismissed by this Court on 24.9.2013. It can

be  seen  from  this  narration  of  facts  that  the  judgment  dated

1.7.2013 has become final between all the parties to the lis.

16. The immediate cause for filing of the present appeals is a

judgment dated 2.9.2013 by which the Special Judge dismissed

the application filed by Essar Teleholdings Ltd. asking for a joint

trial.

17. Shri Harish Salve, learned senior counsel appearing for all

the petitioners, submitted that as a lot of water had already flowed

and a large number of witnesses have already been examined, the

correct course of action in the present case should be to send the

second  supplementary  chargesheet  filed  by  the  CBI  to  a

Magistrate  of  the  First  Class  to  try  the  offences  under  Section

120B read with Section 420 of the Penal Code. His argument was

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that this Court, in the judgment dated 1.7.2013, had held that since

the present  petitioners  were co-accused in  the on-going trial,  it

must follow that either there be a joint trial, in which case the entire

proceeding has to start de novo, or as was suggested by him, the

second  supplementary  chargesheet  should  be  sent  for  trial

separately to a Magistrate of the First Class.  According to learned

counsel, it is clear that under the Prevention of Corruption Act, the

Special Judge can only try offences that arise under the said Act

and  not  offences  that  arise  under  the  Penal  Code.   It  is  only

Section  4(3)  of  the  said  Act  that  permits,  in  the  circumstances

mentioned therein, the trial of Penal Code offences which are that

when trying any case, the Special Judge may also try an offence

other than the offence specified in Section 3 of the Prevention of

Corruption Act provided that this can only be at the same trial. He

stressed the words “same trial” and said that it is clear that short of

a Penal Code offence being linked to a Prevention of Corruption

Act offence and provided they are tried together, no offence under

the Penal Code can be tried by the Special Judge set up under the

Prevention of Corruption Act.

18. These submissions were countered by Shri  Anand Grover,

learned senior advocate appearing on behalf of the respondents.

According to learned counsel,  this  Court  in  the judgment  dated

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1.7.2013 did not direct that there be a joint trial but only observed

in passing that the special Judge “may” try the present case along

with the main case. He further argued that ultimately, since this

Court dismissed the writ petitions filed by these very petitioners,

and stated that the Special Court is expected to proceed with the

trial on a day to day basis to ensure early disposal, it is clear that

ultimately no joint trial was, in fact, to take place under any alleged

direction of this Court. He further went on to submit that in any

case the provisions of Sections 220 and 223 of the CrPC vest a

discretion in  the Court,  which discretion has been appropriately

exercised by the learned Special Judge on the facts of the present

case. He went on to argue that if there were to be a joint trial, all

the accused would necessarily have to give their consent which is

not the case here.  He also went on to submit, by citing Harjinder

Singh v. State of Punjab, (1985) 1 SCC 422, that the expression

“same  trial”  occurring  in  section  4(3)  of  the  Prevention  of

Corruption Act could also mean that the present case may be tried

immediately after the trial in the main case is over.

19. Having heard learned counsel for both the parties, we are of

the view that  the learned senior  advocate  for  the petitioners  is

attempting to raise submissions which have already been rejected

by this Court by its judgment dated 1.7.2013. His main submission,

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that  in  the  fitness  of  things,  the  second  supplementary

chargesheet  should  be tried by a  Magistrate  of  the First  Class

would be directly contrary to the finding of this Court that the said

second supplementary chargesheet be tried only by the learned

Special  Judge.  Quite  apart  from  this,  his  submission  is  also

beyond the prayer made in the application filed before the Special

Judge.  We have already extracted the said prayer in paragraph

13 above. It is clear that on a reading of the prayers in the said

application,  only a joint  trial  was asked for  in pursuance of the

judgment of this Court dated 1.7.2013. In fact, on a reading of the

application and the arguments made before the learned Special

Judge, the petitioners’ main argument was that this Court, in the

order dated 1.7.2013, had in fact mandated a joint trial.  This was

correctly turned down by the learned Special Judge, regard being

had to the fact that this Court, in paragraph 25 of the judgment

dated 1.7.2013, only stated that a discretion was vested with the

Special Judge which he may well exercise given the facts of the

case.

20. Read in the backdrop of Sections 220 and 223, it is clear that

a discretion is vested with the Court to order a joint trial. In fact, in

Chandra  Bhal  v. State  of  U.P., (1971)  3  SCC 983, this  Court

stated:

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“Turning  to  the  provisions of  the Code,  Section  233 embodies the general mandatory rule providing for a separate  charge  for  every  distinct  offence  and  for separate trial for every such charge. The broad object underlying the general rule seems to be to give to the accused a notice of the precise accusation and to save him  from  being  embarrassed  in  his  defence  by  the confusion  which  is  likely  to  result  from  lumping together in a single charge distinct offences and from combining  several  charges  at  one  trial.  There  are, however, exceptions to this general rule and they are found  in  Sections  234,  235,  236  and  239.  These exceptions embrace cases in which one trial for more than one offence is not considered likely to embarrass or prejudice the accused in his defence. The matter of joinder of charges is, however, in the general discretion of the court and the principle consideration controlling the  judicial  exercise  of  this  discretion  should  be  to avoid  embarrassment  to  the  defence  by  joinder  of charges.  On  the  appellant's  argument  the  only provision  requiring  consideration  is  Section  235(1) which  lays  down  that  if  in  one  series  of  acts  so connected together  as to  form the same transaction more offences than one are committed by the same person then he may be charged with and tried at one trial  for  every  such  offence.  This  exception  like  the other  exceptions merely  permits  a joint  trial  of  more offences  than  one.  It  neither  renders  a  joint  trial imperative nor does it  bar or  prohibit  separate trials. Sub-section  (2)  of  Section  403  of  the  Code  also provides that a person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235(1). No legal  objection to the appellant's separate trial  is sustainable  and  his  counsel  has  advisedly  not seriously pressed any before us.” [at para 5]

21. The  other  contention  of  learned  senior  counsel  for  the

petitioners before us has already been answered by this Court by

upholding both the administrative order dated 15.3.2011 and the

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NCT notification dated 28.3.2011.  This Court having held that the

administrative order dated 15.3.2011 of the High court was valid, it

is clear that even a Penal Code offence by itself – that is, such

offence which is not to be tried with a Prevention of Corruption Act

offence - would be within the Special Judge’s jurisdiction inasmuch

as the administrative order of the High Court gives power to the

Special Court to decide all offences pertaining to the 2G Scam.  In

fact,  once  this  order  is  upheld,  the  learned  senior  advocate’s

argument based on Section 4(3) of the Prevention of Corruption

Act  pales  into  insignificance.   This  is  for  the  reason  that

independent of  Section 4(3) of the Prevention of Corruption Act

and  of  the  notification  dated  28.3.2011,  the  Special  Judge has

been vested with the jurisdiction to undertake the trial of all cases

in relation to all  matters pertaining to the 2G Scam exclusively,

which would include Penal Code offences by themselves, so long

as they pertain to the 2G Scam. Shri Salve cited State (through

CBI, New Delhi) v. Jitender Kumar Singh, (2014) 11 SCC 724,

and  paragraph  38  in  particular  to  submit  that  a  Special  Judge

appointed to try Prevention of Corruption Act cases, cannot try non

Prevention of Corruption Act cases unless there is a causal link

between such cases and the Prevention of Corruption Act cases,

in which case they must be tried together. As has been held by us,

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once the challenge to the administrative order dated 15.3.2011, is

specifically  rejected,  the  offences  arising  out  of  the  second

supplementary chargesheet, being offences under the Penal Code

relatable  to  the  2G scam,  can  be  tried  separately  only  by  the

Special Judge.  

22. We  find  that  the  Special  Judge,  vide the  order  dated

2.9.2013,  has  given  cogent  reasons  for  not  exercising  his

discretion to order a joint trial. He stated that the evidence in the

main  case  has  almost  reached  the  end  and  as  many  as  146

witnesses  in  the  main  case  and  71  witnesses  in  the  second

supplementary  chargesheet  have  already  been  examined,

clubbing the two cases together would result in the wastage of the

effort already gone into and would lead to a failure of justice.  The

learned Judge concluded as follows:-

47)   In the end I may add that it is not obligatory on the Court to hold a joint trial and provisions of these sections  are  only  enabling  provisions.   An  accused cannot insist with ulterior purpose or otherwise that he be tried as co-accused with other accused, that too in a different case.  It is only a discretionary power and Court may allow it in a particular case if the interest of justice so demands to prevent miscarriage of justice. In the instant  case, neither the facts and allegations are common, nor evidence is common nor the accused were  acting  with  a  commonality  of  purpose  and,  as such, there is no ground for holding a joint trial.  I may also add that holding a joint trial at this stage may lead to miscarriage of justice. 48)  In  my  humble  view,  a  Court  may  not  deem it

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desirable to conduct a joint trial, even if conditions of these Sections are satisfied, though not satisfied in the instant case, that is: a)  when joint trial would prolong the trial; b)  cause unnecessary wastage of judicial time; and  c)   confuse or  cause prejudice to the accused,  who had taken part only in some minor offence.

23. We find no infirmity in the impugned judgment. As a result,

the appeal and the writ petitions are, therefore, dismissed.

…………………….CJI. (H.L. Dattu)

………………….……J. (A.K. Sikri)

…………………….…J. (R.F. Nariman)

New Delhi; September 29, 2015.  

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