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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) No. 57 OF 2012

ESSAR TELEHOLDINGS LTD.    … PETITIONER

Versus

REGISTRAR GENERAL,  DELHI HIGH COURT  & ORS.  … RESPONDENTS

With

WRIT PETITION (C) No. 59 OF 2012

LOOP TELECOM LTD.      … PETITIONER

Versus

REGISTRAR GENERAL,  DELHI HIGH COURT  & ORS.      … RESPONDENTS

With

WRIT PETITION (C) No. 96 OF 2012

VIKASH SARAF         … PETITIONER

Versus

REGISTRAR GENERAL,  DELHI HIGH COURT  & ORS.        … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

Feeling aggrieved by the order dated 21st  

December, 2011 passed by the Special Judge, Central  

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Bureau of Investigation, New Delhi taking cognizance  

against the petitioners, they have preferred these  

writ petitions challenging the said order dated 21st  

December, 2011, Administrative Order dated 15th March,  

2011 passed by the Delhi High Court and Notification  

dated 28th  March, 2011 passed by the Government of  

National Capital Territory of Delhi (for short ‘NCT  

of Delhi’) designating Mr. Om Prakash Saini as  

Special Judge to undertake the trial of cases in  

relation  to  all  matters  pertaining to  2G  Spectrum  

case (commonly known as 2G Scam case) exclusively.  

One of the writ petitions has been filed by an  

individual  and  two  other  writ petitions  have  been  

preferred by two Companies who are all accused in 2G  

Scam case.  

2. The factual matrix of the case is given in brief  

as under:

Acting on various complaints pursuant to grant  

of UAS licences in 2008, the Central Vigilance  

Commission after conducting a preliminary inquiry  

entrusted investigation of the case to the CBI.  

After preliminary investigation, on 21.10.2009, the  

CBI lodged FIR RC No. DAI­2009­A­0045 against  

“unknown officers of the Department of  

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Telecommunications and unknown private  

persons/companies and others”  for causing wrongful  

loss  to  the  Government  by  criminal misconduct  and  

criminal conspiracy in distribution of UAS licences  

in January, 2008.   Subsequently, a Public Interest  

Litigation was filed before the Delhi High Court, in  

Writ Petition (C) No.3522 of 2010, inter alia,  

alleging that the FIR filed by the CBI on 21.10.2009  

was not being investigated and thereby praying that  

the CBI be directed to investigate the same.   The  

said writ petition was dismissed by the Delhi High  

Court on 25.5.2010.  

3. Against the order of dismissal, the petitioner  

of the said case,   Centre for Public Interest  

Litigation (for short, ‘CPIL’), filed SLP(C) No.24873  

of 2010, wherein this Court by order dated 16th  

December, 2010 granted leave (C.A.No.10660 of 2010)  

and decided to monitor the investigation, [reported  

in (2011) 1 SCC 560].    

4. In the said case by order dated 10.2.2011, this  

Court indicated that a separate Special Court should  

be established to try the case(s) relating to 2G  

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Spectrum. The said part of the above order is quoted  

hereunder:

“We also indicated to the learned Attorney  General that a separate Special Court should be  established to try the case(s) relating to 2G  Spectrum.   The learned Attorney General  responded to this by stating that he may be  given two weeks’ time to consult the concerned  authorities and make a statement on this  issue.”

5. Pursuant to aforesaid observation, the Delhi  

High Court issued impugned Administrative order  

dated 15.3.2011 nominating one  Mr. Om Prakash  Saini  

as Special Judge to try cases of 2G Scam exclusively.  

6. Another order was passed by this Court on  

16.3.2011 inter alia directing;

“At the commencement of hearing, learned  Attorney General placed before the Court letter  dated 14.03.2011 sent to him by the Registrar  General of the High Court of Delhi conveying  the decision taken by the High Court to  nominate Shri O.P. Saini, an officer of Delhi  Higher Judicial Service, who is presently  posted as Special Judge (PC Act) (CBI)­2, New  Delhi, Patiala House Courts as the Special  Judge to undertake the trial of cases in  relation to all matters pertaining to what has  been described as 2G Scam exclusively.

Learned Attorney General gave out that he would  ensure that two separate notifications are  issued by the Central Government in terms of  Section 3(1) of the Prevention of Corruption  Act, 1988 and Section 43(1) of the Prevention  of Money Laundering Act, 2002 for establishment  of the Special Court to exclusively try the  offences pertaining to what has been termed as  2G Scam and other related offences.   Learned  Attorney General submitted that appropriate  

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notifications will be issued on or before  29.3.2011.”     

7. Pursuant to the abovesaid order the Government  

of N.C.T. of Delhi exercising its power under Section  

3(1) of the Prevention of Corruption Act, 1988 (for  

short “the PC Act”) by notification dated 28.3.2011  

designated Mr. Om Prakash Saini as Special Judge to  

undertake the trial of cases in relation to all  

matters pertaining to 2G Scam case exclusively.    

8. Administrative side of the Delhi High Court,  

thereafter, issued an allocation list on 1.4.2011  

whereby Mr. Om Prakash Saini (P.C. Act) (CBI­4) PHC  

was designated as Special Judge in a new court to  

deal with matters pertaining to the 2G Scam cases  

exclusively.   

9. CBI initially filed a charge sheet on 2nd April,  

2011 against nine accused persons and thereafter on  

25th  April, 2011 filed a supplementary chargesheet  

against some more accused persons.   No allegations  

were made against the petitioners in any of the  

chargesheets.   Therefore, they were not shown as  

accused.   

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10. In the 2G Scam case this Court vide order dated  

11.4.2011 while appointing the learned Special Public  

Prosecutor ordered as follows:  

“We also make it clear that any  objection about the appointment of  Special Public Prosecutor or his  assistant advocates or any prayer  for staying or impeding the progress  of the Trial can be made only before  this Court and no other Court shall  entertain the same.  The trial must  proceed on a day­a­day basis.”  

11. Subsequently, the CBI filed second supplementary  

chargesheet on 12.12.2011 against the petitioner(s)  

and other accused persons for the alleged commission  

of offences under Section 420/120­B IPC.  No offences  

under the PC Act have been alleged against the  

petitioner(s) and other accused persons arraigned in  

the second supplementary chargesheet. Based on the  

same,  the  learned  Special  Judge by  impugned  order  

dated 21.12.2011 was pleased to take cognizance of  

the second supplementary chargesheet dated 12.12.2011  

and the petitioner(s) and others were summoned.   

12. According to the petitioner(s), the CBI in its  

chargesheet dated 12.12.2011 admits that the  

chargesheet  is  being  filed “  regarding  a  separate  

offence”  under Section 420/120­B IPC. In paragraphs  

73 and 74 of the said chargesheet whilst admitting  

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that the offences alleged in the chargesheet 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 chargesheet read as under:

“73. This final report under Section 173(8) Cr.  P.C. 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 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./363­367 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  

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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 & others, arose and is pending trial.  He further submits that since this case also  arises from the same FIR, it is to 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 15th March, 2011 and the Notification  

dated 28th March, 2011 issued by the Government of NCT  

Delhi on the following grounds:

(a)  The impugned notification travels beyond the provisions of the Cr.PC.  

The Cr.PC mandates that offences under the IPC ought to be tried as per its  

provisions.

(b) It  has been held by this Hon’ble Court  in the case of  CBI v.  Keshub  

Mahindra reported in (2011) 6 SCC 216 that, “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.”  Thus,  the  Administrative  order  and  

Notification are contrary to the well-settled provisions of law and ought to be  

set  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.

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(c).  If  the  offence  of  Section  420  IPC,  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 reported  in  (1988)  2  SCC  602,  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. Mr. Harin P. Rawal, learned Additional Solicitor  

of India appearing on behalf of the CBI made the  

following submissions:

a). The orders of the Hon'ble Supreme Court directing the setting up  

of the Special  Court  for 2G Scam cases were pursuant to its  powers  

under Articles 136 and 142 of the Constitution,  which made it clear that  

all the cases arising out of this Scam would be tried by the Special Court  

so constituted.   

b). The Administrative Order of the High Court of Delhi setting up  

the Special Court is pursuant to its powers under Section 194 Cr.P.C.,  

which empowers the High Court to direct, by special or general order,  

an additional Sessions Judge to try certain cases.  Section 194 of Cr.P.C.  

is reproduced as below:-

“Section 194. Additional and  Assistant Sessions Judges to try  cases made over to them­  An  Additional Sessions Judge or  Assistant Sessions Judge shall try  such cases as the Sessions Judge of  

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the division may, by general or  special order, make over to him for  trial or as the High Court may, by  special order, direct him to try.”

c) Both  Section  4(3)  of  the  PC  Act  and  Section  43(2)  of  the  

Prevention of Money-Laundering Act 2002 empower the Special Court  

to try any other offences that  may be taken cognizance of under the  

Cr.P.C..   In this view of events,  the cognizance taken by the Special  

Court of the charge-sheet filed against the accused was valid.

d) 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  IPC and not the  special  statutes  under  

which other charges are laid.

e) Higher courts can try an offence in view of Section 26 of Cr.P.C.  

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 Cr.P.C. to try offence under IPC. 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 IPC 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.   

17. A mere perusal of Section 3 read with Section 4  

of the PC Act clearly mandates that apart from an  

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offence punishable under the PC Act, any conspiracy  

to commit or any attempt to commit or any abetment of  

any of the offences specified under the PC Act can  

also be tried by a Special Judge.  Sub section (3) of  

Section   4 specifies   that when trying any case, a  

Special Judge can also try any offence, other than an  

offence specified in Section 3, with which the  

accused may, under the Cr.P.C., be charged at the  

same trial.  Sections 3 and 4 of the PC Act  read as  

under:

“3. Power to appoint special Judges­(1)  The Central Government or 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 the following offences,  namely:­­

(a) any offence punishable under this Act;  and

(b) any conspiracy to commit or any attempt  to commit or any abetment of any of the  offences specified in clause (a).

(2) A person shall not be qualified for  appointment as a special Judge under this Act  unless he is or has been a Sessions Judge or an  Additional Sessions Judge or an Assistant  Sessions Judge under the Code of Criminal  Procedure, 1973 (2 of 1974).

4. Cases triable by special Judges ­  (1)  Notwithstanding anything contained in the Code  of Criminal Procedure, 1973 (2 of 1974), or in  

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any other law for the time being in force, the  offences specified in sub­section (1) of  section 3 shall be tried by special Judges  only.      

(2) Every offence specified in sub­section (1)  of section 3 shall be tried by the special  Judge for the area within which it was  committed, or, as the case may be, by the  special Judge appointed for the case, or where  there are more special Judges than one for such  area, by such one of them as may be specified  in this behalf by the Central Government.

(3) When trying any case, a special Judge may  also try any offence,  other  than an offence  specified in section 3, with which the accused  may, under the Code of Criminal Procedure, 1973  (2 of 1974), be charged at the same trial.

(4) Notwithstanding anything contained in the  Code of Criminal Procedure, 1973 (2 of 1974),  a special Judge shall, as far as practicable,  hold the trial of an offence on day­to­day  basis.”

18. Section 22 of PC Act provides that provisions of  

the Cr.P.C., shall in their application to any  

proceeding in relation to an offence punishable under  

the Act to apply subject to certain modifications.  

It is, therefore, apparent that provisions of the  

Cr.P.C. are to be applied to trials for offence under  

the PC Act, subject to certain modifications.   

19. Section 220 of the Cr.P.C. relates to trial for  

more than one offence,  if, in one series of acts so  

connected together as to form the same transaction  

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more offence than one are committed and provides as  

follows:

“220 ­ Trial for more than one offence ­  (1)  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, he  may be charged with, and tried at one trial  for, every such offence.

(2) When a person charged with one or more  offences of criminal breach of trust or  dishonest misappropriation of properly as  provided in sub­section (2) of section 212 or  in sub­section (1) of section 219, is accused  of committing, for the purpose of facilitating  or concealing the commission of that offence or  those offences, one or more offences of  falsification of accounts, he may be charged  with, and tried at one trial for, every such  offence.

(3) If the acts alleged constitute an offence  falling within two or more separate definitions  of any law in force for the time being by which  offences are defined or punished, the person  accused of them may be charged with, and tried  at one trial for, each of such offences.

(4) If several acts, of which one or more than  one would by itself or themselves constitute an  offence, constitute when combined a different  offence, the person accused of them may be  charged with, and tried at one trial for the  offence constituted by such acts when combined,  and for any offence constituted by any one, or  more, or such acts.

(5) Nothing contained in this section shall  affect section 71 of the Indian Penal Code (45  of 1860).”

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20. Persons accused of different offences committed  

in the course of the same transaction may be charged  

jointly as per Section 223 of the Cr.P.C., which  

reads as under:  

“223 ­ What persons may be charged jointly.­  The following persons may be charged and  tried together, namely:­

(a) persons accused of the same offence  committed in the course of the same  transaction;

(b) persons accused of an offence and  persons accused of abetment of, or attempt  to commit, such offence;

(c) *********

(d) persons accused of different offences  committed in the course of the same  transaction;

(e) to (g) *********

Provided that where a number of persons are  charged with separate offences and such  persons do not fall within any of the  categories specified in this section,  the1[Magistrate or Court of Sessions] may, if  such persons by an application in writing,  so desire, and [if he or it is satisfied]  that such persons would not be prejudicially  affected thereby, and it is expedient so to  do, try all such persons together.”

21. The second supplementary charge­sheet dated 12th  

December, 2011 was filed in the FIR No. RC DAI 2009 A  

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0045 dated 21st  October, 2009 wherein following  

allegations have been made against the petitioners  

and some others:

“Allegations

1. On 21.10.2009, the CBI registered  an FIR vide RC DAI 2009 A 0045 against  unknown officials of Department of  Telecommunications, Government of  India, unknown private  persons/companies and others for the  offences punishable under Section 120­B  IPC read with Section 13(2) r/w 13(1) (d) of Prevention of Corruption Act,  1988, on allegations of criminal  conspiracy and criminal misconduct, in  respect of allotment of Letters of  Intent, United Access Service (UAS)  Licenses and spectrum by the Department  of Telecommunication. Investigation of  the case was taken up and charge­sheets  dated 02.04.2011 and first  supplementary charge­sheet dated  25.04.2011 were filed before Hon’ble  Special Judge (2G Spectrum Cases),  Patiala House Courts, New Delhi, in  which in trial proceedings are going on  and are presently at the stage of  prosecution evidence.

xxx xxx xxx xxx xxx

3. The eligibility of all the  companies which were allocated letters  of  Intent  (LOI)  on 10.01.2008 by  the  DOT was also investigated by BI during  the investigation of this case. During  such investigation, allegations came to  notice that M/s Loop Telecom Ltd.,  which had applied for UAS licenses in  21 Telecom circles in September, 2007  was front company of M/s Essar Group.  M/s Loop Mobile India Ltd. had been  operating a UAS license since 2005 in  the Mumbai Service Area.   It was  alleged that M/s Essar Group which  

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already had a stake of 33% in M/s  Vodafone Essar Ltd., a telecom operator  in all the 22 telecom circles, was  controlling substantial stake in the  aforesaid 2 companies in violation of  the UAS guidelines dated 14.12.2005and  UAS license agreements signed by M/s  Vodafone  Essar Ltd. with DOT.  It was  further alleged that the accused  persons belonging to M/s Loop Telecom  Ltd. M/s Loop Mobile India Ltd and  Essar Group of companies, fraudulently  suppressed the facts of association of  the two Loop Companies with M/s Essar  Group of Companies while applying for  new licenses DoT, in order the DoT  considers these companies as entitles  which are not substantially controlled  by Essar Group. The said accused  persons therefore, dishonestly or  fraudulently got the 21 new UAS  licenses and continue to operate the  Mumbai License of Loop in contravention  of the applicable guidelines.  

4. Investigation has been carried out  on the allegations that M/s Loop  Telecom Ltd., and associated persons  including Essar Group  persons/Companies, cheated the  Department of Telecommunication,  Government of India by concealing the  actual stake holders of M/s Loop  Telecom Ltd. behind a corporate veil,  while applying for and getting 21 new  UAS Licenses and got the 21 UAS  Licenses and valuable spectrum for this  Company.”

Following facts also emerge from the background  of the matter:

“70. That after the accused persons had  cheated the DoT and fraudulently  obtained the Letters of Intent/UAS  Licenses/valuable spectrum in  furtherance of a conspiracy among  themselves, several complaints were  received by the Department of  

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Telecommunications during 2008­2010  alleging that M/s Loop Telecom Ltd. was  an Essar group company under a  corporate veil and was thereby  violating the clause 8 of UASL  Guidelines dated 14.12.2005. In one  such matter Dot referred the matter to  Ministry of Corporate Affairs seeking  to examine the matter and open whether  the given facts and circumstances made  out a violation of the clause 8 of UASL  Guidelines. Investigation has revealed  that the Deputy Director (Inspection),  Ministry of Corporate Affairs, who  examined the matter in detail,  concluded that the clause 8 of the UASL  Guidelines had been violated. .....

71. The investigation has, therefore,  revealed that M/s. Loop Telecom Ltd.  made fraudulent UASL applications for  21 circles on 3.9.2007 by  misrepresenting the fact that they met  all the eligibility criteria including  clause 8 of UASL guidelines. These  fraudulent applications were  accompanied by false certificates to  the effect that the company met the  conditions prescribed under clause 8 of  UASL guidelines, thereby falsely  claiming that the applicant company was  not under any control influence of any  existing licensee and that competition  would not be compromised if 21 licenses  applied for are issued to it.......

72. The aforesaid facts and  circumstances constitute commission of  offences, during 2007­08, punishable  u/s 120­B IPC r/w 420 IPC, and  substantive offence u/s 420 IPC,  against accused persons, viz. Ravi N.  Ruia, Anshuman Ruia, Vikash Saraf, I.P.  Khaitan, Ms. Kiran Khaitan, M/s. Loop  Telecom Ltd. (erstwhile M/s.  Shippingstop Dot Com India Pvt.Ltd.),  M/s. Loop Mobile India Ltd. (BPL M/s.  Mobile Communications Limited) and M/s.  Teleholdings Ltd. Accused persons were  not arrested during investigation.”   

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From the aforesaid second charge­sheet 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 co­accused of 2G Scam case  

charged under the provisions of Prevention of  

Corruption Act can be tried only by the Special  

Judge. The petitioners are co­accused in the said 2G  

Scam case. In this background Section 220 of Cr.P.C.  

will apply and the petitioners though accused of  

different offences i.e. under Section 420/120­B IPC,  

which alleged to have been committed in the course of  

2G Spectrum transactions, under Section 223 of Cr.  

P.C. they may be charged and can be tried together  

with the other co­accused of 2G Scam cases.  

22. In   A.R. Antulay v. Ramdas Sriniwas Nayak.,  

(1984) 2 SCC 500, this Court came across a question  

whether a Court of a Special Judge for certain  

purposes is a Court of Magistrate or a Court of  

Session and held as follows:

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“23. Once Section 5­A is out of the way in  the matter of taking cognizance of offences  committed by  public  servants by  a  Special  Judge, the power of the Special Judge to  take cognizance of such offences conferred  by Section 8(1) with only one limitation, in  any one of the known methods of taking  cognizance of offences by courts of original  jurisdiction remains undented. One such  statutorily recognised well­known method of  taking cognizance of offences by a court  competent to take cognizance is upon  receiving a complaint of facts which  constitutes the offence. And Section 8(1)  says that the Special Judge has the power to  take cognizance of offences enumerated in  Section 6(1)(a) and (b) and the only mode of  taking cognizance excluded by the provision  is upon commitment. It therefore, follows  that the Special Judge can take cognizance  of offences committed by public servants  upon receiving a complaint of facts  constituting such offences.

28. Section 9 of the 1952 Act would equally  be helpful in this behalf. Once Court of a  Special Judge is a Court of original  criminal jurisdiction, it became necessary  to provide whether it is subordinate to the  High Court, whether appeal and revision  against its judgments and orders would lie  to the High Court and whether the High Court  would have general superintendence over a  Court of Special Judge as it has over all  criminal courts as enumerated in Section 6  of the Code of Criminal Procedure. The Court  of a Special Judge, once created by an  independent statute, has been brought as a  Court of original criminal jurisdiction  under the High Court because Section 9  confers on the High Court all the powers  conferred by Chapters XXXI and XXXIII of the  Code of Criminal Procedure, 1898 on a High  Court as if the Court of Special Judge were  a Court of Session trying cases without a  jury within the local limit of the  jurisdiction of the High Court. Therefore,  there is no gainsaying the fact that a new  criminal court with a name, designation and  qualification of the officer eligible to  

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preside  over it  with powers specified and  the particular procedure which it must  follow has been set up under the 1952 Act.  The court has to be treated as a Court of  original criminal jurisdiction and shall  have all the powers as any Court of original  criminal jurisdiction has under the Code of  Criminal Procedure, except those  specifically excluded.

29. Once the position and power of the Court  of a Special Judge in the hierarchy of  criminal courts under the High Court is  clearly and unambiguously established, it is  unnecessary to roam into an enquiry  examining large number of decisions laying  down in the context of each case that the  Court of a Special Judge is a Court of  Session and the contrary view taken in some  other decisions. Reference to those  judgments would be merely adding to the  length of this judgment without achieving  any useful purpose.”

23. In Gangula Ashok v. State of A.P., (2000) 2 SCC  

504  this Court dealing with Section 193 of the Cr.PC  

observed:

“10.  Section 193 of the Code has to be  understood in the aforesaid backdrop. The  section imposes an interdict on all Courts  of Session against taking cognizance of any  offence as a court of original jurisdiction.  It can take cognizance only if “the case has  been committed to it by a Magistrate”, as  provided in the Code. Two segments have been  indicated in  Section 193  as  exceptions  to  the  aforesaid  interdict. One  is,  when the  Code itself has provided differently in  express language regarding taking of  cognizance, and the second is when any other  law has provided differently in express  language regarding taking cognizance of  offences under such law. The word  “expressly” which is employed in Section 193  denoting those exceptions is indicative of  the legislative mandate that a Court of  

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Session can depart from the interdict  contained in the section only if it is  provided differently in clear and  unambiguous terms. In other words, unless it  is positively and specifically provided  differently no Court of Session can take  cognizance of any offence directly, without  the case being committed to it by a  Magistrate.

11.  Neither in the Code nor in the Act is  there any provision whatsoever, not even by  implication, that the specified Court of  Session (Special Court) can take cognizance  of the offence under the Act as a court of  original jurisdiction without the case being  committed to it by a Magistrate. If that be  so, there is no reason to think that the  charge­sheet or a complaint can straight  away be filed before such Special Court for  offences under the Act. It can be discerned  from the hierarchical settings of criminal  courts that the Court of Session is given a  superior and special status. Hence we think  that the legislature would have thoughtfully  relieved the Court of Session from the work  of performing all the preliminary  formalities which Magistrates have to do  until the case is committed to the Court of  Session.

12.  We have noticed from some of the  decisions rendered by various High Courts  that contentions were advanced based on  Sections 4 and 5 of the Code as suggesting  that a departure from Section 193 of the  Code is permissible under special  enactments. Section 4 of the Code contains  two sub­sections of which the first sub­ section is of no relevance since it deals  only with  offences under the  Indian Penal  Code. However, sub­section (2) deals with  offences under other laws and hence the same  can be looked into. Sub­section (2) of  Section 4 is extracted below:

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

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or  place of  investigating,  inquiring  into, trying or otherwise dealing with  such offences.”

24. Similar question came for consideration before  

this Court in  Vivek Gupta v. Central Bureau of  

Investigation, (2003) 8 SCC 628.   In the said case  

the co­accused  were charged by Special Judge under  

the provisions of the PC Act whereas the appellant  

before this Court had been charged only under Section  

420 IPC and under Section 120­B of the IPC, as in the  

present case.  Having noticed the provisions of the  

PC Act and Cr. PC as referred to above, this Court  

held:

“15.  This is because the co­accused of the  appellant who have been also charged of  offences specified in Section 3 of the Act  must be tried by the Special Judge, who in  view of the provisions of sub­section (3) of  Section 4 and Section 220 of the Code may  also try them of the charge under Section  120­B read with Section 420 IPC. All the  three accused, including the appellant, have  been charged of  the offence under Section  120­B read with Section 420 IPC. If the  Special  Judge  has jurisdiction  to try  the  co­accused for the offence under Section  120­B read with Section 420 IPC, the  provisions of Section 223 are attracted.  Therefore, it follows that the appellant who  is also charged of having committed the same  offence in the course of the same  transaction may also be tried with them.  Otherwise it appears rather incongruous that  some of the conspirators charged of having  committed the same offence may be tried by  the Special Judge while the remaining  conspirators who are also charged of the  same offence will be tried by another court,  

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because they are not charged of any offence  specified in Section 3 of the Act.

17.  We are, therefore, of the view that in  the  facts  and circumstances of  this case,  the Special Judge while trying the co­ accused of an offence punishable under the  provisions of the Act as also an offence  punishable under Section 120­B read with  Section 420 IPC has the jurisdiction to try  the appellant also for the offence  punishable under Section 120­B read with  Section 420 IPC applying the principles  incorporated in Section 223 of the Code. We,  therefore, affirm  the finding of  the High  Court and dismiss this appeal.”

25. Admittedly, 2G Scam case is triable by the  

Special Judge against the persons accused of offences  

punishable under the PC Act in view of sub­Section  

(1) of Section 4.  The Special Judge alone can take  

the cognizance of the offence specified in sub­

Section (1) of Section 3 and conspiracy in relation  

to them.   While trying any case, the Special Judge  

may also try an offence other than the offence  

specified in sub­Section (1) of Section 3, in view of  

sub­Section (3) of Section 4.   A magistrate cannot  

take cognizance of offence as specified in Section  

3(1) of the PC Act.   In this background, as the  

petitioners have been shown as co­accused in second­

supplementary chargesheet filed in 2G Scam case,  it  

is open to the Special Judge to take cognizance of  

the offence under Section 120­B and Section 420 IPC.  

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26. 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:

(i) Under sub­Section (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, co­accused 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).  

(ii) 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  

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judiciary.   [See  High Court of Judicature for  

Rajasthan v. Ramesh Chand Paliwal (1998) 3 SCC  

72 and Registrar (Admn.) High Court of Orissa v.  

Sisir Kanta Satapathy (1999) 7 SCC 725].   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  

sub­Section (1) of Section 3 of the PC Act.  

(iii) 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 Judge­I­cum­

Sessions Judge, Tis Hazari Courts, Delhi and the  

District Judge­IV­cum­Addl. 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  

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officer of Delhi Higher Judicial Service for his  

appointment as Special Judge for 2G Scam Cases.

27. 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.  

On 11th  April, 2001, when the 2G Scam Case was  

taken up by this Court, this Court, inter alia,  

observed as follows:

“Acting on such basis, this Court has given  directions for establishing a separate  Special Court to try this case and pursuant  to such direction, a Special Court has been  constituted after following the due  procedure.

We also make it clear that any objection  about appointment of Special Public  Prosecutor or his assistant advocates or any  prayer for staying or impeding the progress  of the Trial can be made only before this  Court and no other court shall entertain the  same.   The trial must proceed on a day­to­ day basis.

All these directions are given by this Court  in exercise of its power under Article 136  read with Article 142 of the Constitution  and in the interest of holding a fair  prosecution of the case.”

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28. From the aforesaid order it is clear that this  

Court passed the order under Article 136 read with  

Article 142 of the Constitution, in the interest of  

holding a fair prosecution of the case.  

29. In Rupa Asbhok Hurra v. Ashok Hurra and another,  

(2002) 4 SCC 388,  this Court held that a final  

judgment or order passed by this Court cannot be  

assailed in an application under Article 32 of the  

Constitution by an aggrieved person, whether he was a  

party to the case or not. For the said reason also,  

it is not open to the petitioner to indirectly assail  

the order passed by this Court in 2G Scam case.  

30. We find no merit in these writ petitions, they  

are accordingly dismissed.   The Special Court is  

expected to proceed with the trial on day­to­day  

basis to ensure early disposal of the trial.  There  

shall be no order as to costs.

….......…………………………………………….J.        (G.S. SINGHVI)

…………………………………………….......….J.  (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI, JULY  1 , 2013.

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