ESSAR TELEHOLDINGS LTD.versusCENTRAL BUREAU OF INVESTIGATION

                        [2015] 11 S.C.R. 340


A                 ESSAR TELEHOLDINGS LTD.
                                  V.

             CENTRAL BUREAU OF INVESTIGATION
                (Criminal Appeal No. 1273 of 2015)
B
                      SEPTEMBER 29, 2015
     [H.L. DATTU, CJI, A.K. SIKRI AND R.F. NARIMAN, JJ.]
         Code of Criminal Procedure, 1973: ss.220 and 223-
C Joint trial- If by administrative order, High Court gives power
   to Special Court to decide all offences pertaining to 2G scam
  ·then even a Pen_al Code offence by itself i.e. such offence
   which is not to be tried with Prevention of Corruption Act
   offence so long they pertain to the 2G scam would be within
D the Special Judge's jurisdiction - Decision to order joint trial
   is discretionary - In the instant case, Special Judge was
  justified in exercising his discretion to order a joint trial on
   the ground that clubbing of the two cases would result in
   wastage of effort already gone into and would lead to failure
E of justice - Scam --: Prevention of Corruption Act - Penal
   Code, 1860.

           Dismissing the appeal and writ petitions, the Court

F      HELD: 1. By virtue of of Sections 220 and 223,
  discretion is vested with the Court to order a joint trial.
  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
G 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,
H
                             340
 ESSAR TELEHOLDINGS LTD. v. CENTRAL BUREAU OF                341
                INVESTIGATION
                             •
once this order is upheld, argument based on Section A
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 B
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. Once the challenge to the administrative order
dated 15.3.2011, is specifically rejected, the offences C
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.
[Paras 20 and 21][353-A; 354-C-F, H; 355-A)
                                                               D
       2. 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 E
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. [Para 22) F
[355-B-C)

     Centre for Public Interest Litigation v. Union of
     India (2011) 1 SCC 560; Harjinder Singh v. State
     of Punjab (1985) 1 SCC 422; State (through CBI,
     New Delhi) v. Jitender Kumar Singh (2014) 11             G
     SCC 724: 2014 (2) SCR 621 - referred to.

                   CASE LAW REFERENCE

(2011) 1 sec 560                referred to.    Para 5        H
342         SUPREME COURT REPORTS               [2015] 11 S.C.R.


A     (1985} 1 sec 422                referred to.    Para 20

      2014 (2) SCR 621                referred to.    Para 21

      CRIMINAL APPELLATE JURISDICTION: Criminal
B Appeal No. 1273 of2015

           From the Judgment and Order dated 02.09.2013 passed
      by Shri O.P. Saini, Special Judge, CBI (04) (2G Spectrum
      Cases), Patiala house Court, New Delhi in CC No~ 1 (B)/ 2012

c                                WITH
           W. P. (Crl.) Nos. 36 and 39 of2014

       Harish N. Salve, E. C. Agrawala, Shally Bhasin for the
D Appellant.

           Pinky Anand, ASG, Anand Grover, Sonia Mathur, Mihir
      Samson, Nikhil Borwankar, Chitralekha Das, Rajiv Ranjan,
      Rishabh Jain, Karan Seth, Balendu Shekhar, B. V. Balaram
      Das, Saket Singh, Sangeeta Singh, Niranjana Singh for the
E     Respondent.

           The Judgment oft.he Court was delivered by

          R. F. NARIMAN 1 J. 1. Leave granted in SLP (Crl.)
F     No.2978 of2014.

        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
G and Vikash Saraf were dismissed by a Division Bench of this
  Court.

           3. The brief facts necessary to appreciate how the
      controversy arose before this Court are as follows.

H
 ESSAR TELEHOLDINGS LTD. v. CENTRAL BUREAU OF                 343
         INVESTIGATION [R. F. NARIMAN, J.]

      4. CBI registered an FIR RC No.DAI 2009A0045 dated A
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 B
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 C
     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/ D
     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 E
     Department ofTelecommunications, 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, F
(2011) 1 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 Dire"ctorate of G
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
                                                               H
344        SUPREME COURT REPORTS                  [2015) 11 S.C.R.


A     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
 B persons as accused, alleging offences under Section 1208
   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
 C chargesheet that separate offences came to their notice during
   the investigation of FIR RC No.DAI 2009A 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
 D appropriate court as deemed fit after 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
 E    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.

 F        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
 G 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
 H were filed as has beeri stated above, challenging inter alia
 ESSAR TELEHOLDINGS LTD. v. CENTRAL BUREAU OF                       345
         INVESTIGATION [R. F. NARIMAN, J.]

the order dated 21.12.2011 passed by the Special Judge, CBI A
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:                   ·
                                                                      B
      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 C
      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;
                                                                     ·D
      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 E
      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;
                                                                     F
     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;
                                                                    G
     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 H
346        SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A 15.3.2011 of the High Court and the notification dated
  28.3.2011 of the Government of NCT of.Oelhi, 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
B by the learned Special Judge taking cognizance.

           10. In a detailed judgment, this Court set out the
      arguments of the petitioners as follows:

c         "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:
D          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
 E         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 .... "
 F
                                              (emphasis in original)

           Thus, the Administrative Order and the notification are
           contrary to the well-settled provisions of law and ought to
G          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
 H         be tried by a Magistrate, is to be tried by a Court of
 ESSAR TELEHOLDINGS LTD. v. CENTRAL BUREAU OF                    347
         INVESTIGATION [R. F. NARIMAN, J.]

     Session, a variety of valuable rights of the petitioner would A
     be jeopardised. This would be contrary to the decision
     of the Constitution Bench of the Hon'ble Supreme Court
     in AR. 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 B
     right is violative of Article 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 C
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            o
     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 E
     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 F
     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]                                G

      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:                                        H
348    SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A     "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:

8     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
c     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)
D     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
E       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 ofJudicature
        forRaja$than v. Ramesh Chand Pa/iwa/[(1998) 3 SCC
F      72 : 1998 SCC (L&S) 786] and High Court of
      · Orissa v. Sisir Kanta Sat~pathy [(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
G       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
H      of the PC Act.
 ESSAR TELEHOLDINGS LTD. v. CENTRAL BUREAU OF                      349
         INVESTIGATION [R. F. NARIMAN, J.]

     30.3. In the present case, the petitioners have not A
     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-1-cum-
     Sessions Judge, Tis Hazari Courts, Delhi and the District B
     Judge-IV-cum-Additional Sessions Judge, l/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." C
     [at para 30]

     13. In the last paragraph, namely, paragraph 35, this Court
dismissed the writ petitions inthe following terms:
                                                                   D
     "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]                                          E

      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:-                                               F

     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
     CCNo.1Bof2011 as'Co-accused'withtheAccusedin G
     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          H
350         SUPREME COURT REPORTS                  [2015) 11 S.C.R.


A          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
B          proceedings i.e. CC No 1 of 2011 and CC No 18 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
C          Section 220 with 223 CrPC;and/or

           Pass any other order(s) as this Hon'ble Court may deem
           fit and proper in the interest of justice.

             15. The other two writ petitioners, whose petitions had
0
      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
E     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 /is.

F           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
G 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
H chargesheet filed by the CBI to a Magistrate of the First Class
 ESSAR TELEHOLDINGS LTD. v. CENTRAL BUREAU OF                         351
         INVESTIGATION [R. F. NARIMAN, J.]

to try the offences under Section 1208 read with Section 420          A
of the Penal Code. His argument was 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,          B
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        C
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
                                                                      0
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          E
Code can be tried by the Special Judge set up under the
Prevention of Corruption Act.

      18. These submissions were countered by ShriAnand
 Grover, learned senior advocate appearing on behalf of the F
 respondents. According to learned counsel, this Court in the
 judgment dated 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 G
 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 H
352          SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A 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
B 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
c 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
D     already been rejected by this Court by its judgment dated
       1.7.2013. His main submission, 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
E     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,
F     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
G     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
H     the facts of the case.
ESSAR TELEHOLDINGS LTD. v. CENTRAL BUREAU OF                         353
        INVESTIGATION [R. F. NARIMAN, J.]

        20. Read in the backdrop of Sections 220 and 223, it is A
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:

      "Turning to the provisions of the Code, Section 233            B
      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         C
      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          D
      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    E
      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           F
     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        G
     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         H
354         SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A          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
B          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
C     15.3.2011 and the N.CT 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 -
D     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
E     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
 F    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) 11SCC724, and paragraph 38 in particular to
G     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, once the
H     challenge to the administrative order dated 15.3.2011, is
 ESSAR TELEHOLDINGS LTD. v. CENTRAL BUREAU OF                         355
         INVESTIGATION [R. F. NARIMAN, J.]

specifically rejected, the offences arising out of the second         A
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 B
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, C
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        o
     Court to hold a jointtrial 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      E
     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        F
     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 desirable
     to conduct a jointtrial, even if conditions of these Sections    G
     are satisfied, though not satisfied in the instant case, that
     is:

     a) when joint trial would prolong the trial;
                                                                      H
356          SUPREME COURT REPORTS                 [2015] 11 S.C.R.


A           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
8
      result, the appeal and the writ petitions are, therefore,
      dismissed.

      Devika Gujral                   Appeal & Writ Petitions dismissed.