Holding

The notification and High Court order are valid; a Special Judge appointed under the PC Act may try co‑accused for IPC offences arising from the same transaction, and the High Court correctly exercised its power to nominate the Special Judge.

Summary

The petitioners, including Essar Teleholdings Ltd., challenged the Delhi High Court's administrative order and the NCT of Delhi's notification appointing a Special Judge to try the 2G spectrum case, arguing that the Special Judge lacked jurisdiction to try IPC offences (420/120‑B) arising from the same transaction. The Supreme Court examined the powers conferred by Section 3(1) of the Prevention of Corruption Act, 1988, and the accompanying Section 4(3), holding that a Special Judge may also try offences not punishable under the Act if the accused are co‑accused in the same case, pursuant to the provisions of the Criminal Procedure Code. It further ruled that the High Court, under Articles 233 and 234 of the Constitution, validly nominated a District Judge as Special Judge, and that the notification and order were therefore lawful. The Court found no threat to a fair trial and dismissed the writ petitions, affirming the Special Court's jurisdiction over the co‑accused. The decision also reiterated that the Supreme Court’s earlier order cannot be challenged under Article 32.

Issues considered

The validity of the Delhi High Court's administrative order and the NCT of Delhi's notification appointing a Special Judge under the Prevention of Corruption Act.
Whether a Special Judge appointed under the PC Act can take cognizance of IPC offences (420/120‑B) arising from the same transaction.
Whether the High Court has jurisdiction to nominate a District Judge as Special Judge under Articles 233 and 234 of the Constitution.
Whether the petitioners' right to a fair trial is jeopardised by the appointment of the Special Judge.
Whether the Supreme Court's earlier order can be assailed under Article 32 of the Constitution.

Legislation cited

Code of Criminal Procedure, 1973s. 193, s. 194, s. 220, s. 223, s. 26
Constitution of Indias. Art 136, s. Art 142, s. Art 233, s. Art 234, s. Art 32
Prevention of Corruption Act, 1988s. 22, s. 3(1), s. 4(3)
Prevention of Money Laundering Act, 2002s. 43(2)

Subjects

Prevention of Corruption ActSpecial Judge2G Spectrum caseJurisdictionCriminal Procedure CodeCo‑accusedIPC offencesConstitutional law

Judgment

[2013] 7 S.C.R. 1

ESSAR TELEHOLDINGS LTD. A
v.
REGISTRAR GENERAL, DELHI HIGH COURT & ORS.
(Writ Petition (C) No. 57 of 2012 etc.)
JULY 1, 2013
B
[G.S. SINGHVI AND SUDHANSU JYOTI
. MUKHOPADHAYA, JJ.]

PREVENTION OF CORRUPTION ACT, 1988:
c
s.3(1) read with s.4(3) and s.22 - 2G Spectrum case -
Nomination of Special Judge - Jurisdiction of Special Court
to take cognizance of offences punishable ulss 4201128 /PC
as per second supplementary charge-sheet filed by CBI in the
FIR for offences punishable under PC Act - Held: Apart from D
an offence punishable under the Act, any conspiracy to
commit or any attempt to commit or any abetment of any of
the offences specified thereunder can also be tried by a
Special Judge - From second charge-sheet it is clear that
petitioners are co-accused in 2G Scam case - Thus, s.
220, Cr.P. C. will apply and the petitioners though accused of E
different offences i.e. u/s 4201120-B /PC alleged to have been
committed in the course of 2G Spectrum transactions, u/s 223,
Cr. P. C. they may be charged and can be tried together with
the other co-accused of 2G Scam cases.
F
s. 3(1) - 2G Spectrum case - Nomination of Special
Judge - Held: Under sub-s. (1) of s.3 of the PC Act, State
Government may, by, notification in the Official Gazette,
appoint as many Special Judges as may be necessary and
specified in the notification to try any offence punishable G
under the Act - In the instant case, as co-accused have been
charged under the provisions of the PC Act, NCT of Delhi is
well within its jurisdiclion to issue Notification(s) appointing
Special Judge(s) to try 2G Scam case(s) - In viewq_tArts. 233
1 H ·
2 SUPREME COURT REPORTS [2013] 7 S.C.R.

A and 234, it is well within the jurisdiction of High Court to
nominate officer(s) of the rank of District Judge for
appointment and posting as Special Judge(s) under sub-s.
(1) of s. 3 - Constitution of India, 1950 - Arts. 233 and 234.

Pursuant to the order dated 10.2.2011 passed by the
8
Supreme Court, in C.A. No. 1066 of 2010 and consequent
upon the Delhi High Court nominating an officer of Delhi
Higher Judicial Service as Special Judge to try cases of
2 G Scam, the Government of NCT, Delhi in exercise of
its power uls 3(1) of the Prevention of Corruption Act,
C 1988, issued Notification dated 28.3.2011 designating the
officer concerned as Special Judge to undertake the trial
of cases in relation to all matters pertaining to 2G
Spectrum exclusively. The Special Judge by order dated
21.12.2011 took cognizance of the second supplementary
D charge-sheet·dated 12.12.2011 filed by CBI against the
petitioners and other accused persons for alleged
commission of offences punishable u/ss 420/120-B IPC
in FIR dated 21.10.2009 and directed summons to issue
to petitioners and other accused persons. The petitioners
E filed the instant writ petition challenging the
administrative order of the Delhi High Court on 15.3.2011
and the Notification dated 28.3.2011 issued by the
Government of NCT, Delhi.

F Dismissing the writ petitions, the Court

HELD: 1.1 Section 3 read with s. 4 of the Prevention
of Corruption Act, 1988 clearly mandates that apart from
an offence punishable under the PC Act, any conspiracy
to commit or any attempt to commit or any abetment of
G any of the offences specified thereunder can also be tried
by a Special Judge. Sub-s. (3) of s. 4 specifies that a
Special Judge, when trying any case, can also try any
offence, other than an offence specified in s.3, with which
the accused may, under the Cr.P.C., be charged at the
H
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 3
HIGH COURT

same trial. In view of s. 22 of PC Act, provisions of the A
Cr.P.C. are to be applied to trials for offence under the PC
Act, subject to certain modifications. [para 17-18] [14-B-
C; 15-D-E]
1.2 The second supplementary charge-sheet dated
12.12.2011 was filed in the FIR No. RC DAI 2009 A 0045 B
dated 21.10.2009. From the said second charge-sheet it
is clear. that the offences are alleged to have been
committed by the petitioners in the course of 2G Scam
Cases and, as such, they have been made accused in the
2G Scam Case. [para 21] (17-D; 20-B] C
1.3 The co-accused of 2G Scam case charged under
the provisions of Prevention of Corruption Act can be
tried only by the Special Judge. The Special Judge alone
can take cognizance of the offence specified in s. 3(1) of 0
PC Act and conspiracy in relation thereto. A magistrate
cannot take cognizance of offence as specified in s. 3(1)
of the PC Act. The petitioners are co-accused in the said
2G Scam case. In this background s. 220,Cr.P.C. will
apply and the petitioners though accused of different E
offences, i.e., u/s 420/120-B IPC, alleged to have been
committed in the course of 2G Spectrum transactions, u/
s 223 of Cr. P.C. they may be charged and can be tried
together with the other co-accused of 2G Scam cases.
[para 21 and 25] [20-A-E; 24-H; 25-A-B]
F
Vivek Gupta v. Central Bureau of Investigation, 2003 (3)
=
Suppl. SCR 1087 (2003) 8 SCC 628 - relied on.
A.R. Antulay v. Ramdas Sriniwas Nayak., 1984 (2) SCR
=
914 (1984) 2 SCC 500; Gangula Ashok v. State of A.P.,
2000 (1) SCR 468 = (2000) 2 SCC 504 - referred to. G
2.1 As regards 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,
this Court hold as follows: H
4 SUPREME COURT REPORTS [2013] 7 S.C.R.

A (i) Under sub-s. (1) of s.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
B to try any offence punishable under the PC Act. In
the instant case, as the co-accused have been
charged with offences 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
c 2G Scam case(s);

(ii) Arts. 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 power to appoint or
D promote or post a District Judge of a State is vested
with the Governor of the State under Art. 233, 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
E the District Judge for appointment and posting as
Special Judge(s) under sub-s. (1) of s. 3 of the PC
Act;

(iii) In the instant case, the petitioners have not
F 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 to the District Judges
concerned intimating them about nomination of an
officer of Delhi Higher Judicial Service for his
G
appointment as Special Judge for 2G Scam Cases.
[para 26) [25-C-G, H; 26-A-D]

High Court of Judicature for Rajasthan v. Ramesh Chand
Paliwal 1998 (1) SCR 961 = (1998) 3 SCC 72 and Registrar
H
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 5
HIGH COURT

(Admn.) High Court of Orissa v. Sisir Kanta Satapathy 1999 A
(2) Suppl. SCR 473 = (1999) 7 SCC 725 - referred to.
2.2 The order dated 11.4.2011 was passed by this
Court under Art. 136 read with Art. 142 of the Constitution,
in the interest of holding a fair prosecution of the case.
8
In Rupa Asbhok Hurra it has been held that a final
judgment or order passed by this Court cannot be
assailed in an application under Art. 32 of the Constitution
by an aggrieved person, whether he was a party to the
case or not. In this view also, it is not open to the
petitioner to indirectly assail the order passed by this C
Court in 2G Scam case. No interference is called for
against the impugned order taking cognizance of the
offence against the petitioners. [para 27-29] (26-E-F; 27-
C-D]
D
Rupa Asbhok Hu"a v. Ashok Hurra and Another 2002
(2) SCR 1006 = (2002) 4 sec 388 - relied on.
CBI v. Keshub Mahindra 2011 (6) SCR 384 = (2011) 6
SCC 216; A.R. Antu/ay v. R.S. Nayak 1988 (1) Suppl. SCR
1 = (1988) 2 sec 602 - cited. E

Case Law Reference:
2011 (6) SCR 384 cited para 14
1988 (1) Suppl. SCR 1 cited para 14 F
1984 (2) SCR 914 referred to para 22
2000 (1) SCR 468 referred to para 23
2003 (3) Suppl. SCR 1087 relied on para 24 G
1999 (2) Suppl. SCR 473 referred to para 26
1998 (1) SCR 961 referred to para 26
2002 (2) SCR 1006 relied on para 29
H
6 SUPREME COURT REPORTS [2013] 7 S.C.R.

A CIVIL APPELLATE JURISDICTION: Writ Petition (Civil)
No. 57 of 2012 etc.

Under Article 32 of the Constitution of India.
WITH
B W.P. (C) Nos. 59 & 96 of 2012.

E.C. Agrawala, Siddharth Singla, Garima Prashad for the
Petitioner.

C Prashant Bhushan, Annam D.N. Rao, B.V. Balaram Das
for the Respondents.

The Judgment of the Court was delivered by

SUDHANSU JYOTI MUKHOPADHAYA, J. 1. Feeling
D aggrieved by the order dated 21st December, 2011 passed
by the Special Judge, Central Bureau of Investigation, New
Delhi taking cognizance against the petitioners, they have
preferred these writ petitions challer:iging the said order dated
21st December, 2011, Administrative Order dated 15th March,
E 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
F 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:
G
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,
H the .CBI lodged FIR RC No. DAl-2009-A-0045 against
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 7
HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]

"unknown officers of the Department of Telecommunications A
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 befor~ the Delhi High Court, in Writ Petition B
(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. c
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) D
.1 sec sso1.

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 Spectrum. The said part of the E
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 F
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 G
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;
H
8 SUPREME COURT REPORTS (2013) 7 S.C.R.

A "At the commencement of hearing, learned Attorney
General placed before the Gou.rt 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
B Service, who is presently posted as Special Judge (PC
Act) (CBl)-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.
c 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
D 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 notifications will be issued on or before
29.3.2011."
E
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
F 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) (CBl-4) PHC was designated as Special Judge
G 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,
H 2011 filed a supplementary chargesheet against some more
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 9
HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.)

accused persons. No allegations were made against the A
petitioners in any of the chargesheets. Therefore, they were not
shown as accused.

10. In the 2G Scam case this Court vide order dated
11.4.2011 while appointing the learned Special Public
8
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 C
and no other Court shall entertain the same. The trial must
proceed on a day-a-day basis."

11. Subsequently, the CBI filed second supplementary
chargesheet on 12.12.2011 against the petitioner(s) and other 0
accused persons for the alleged commission of offences under
Section 4201120-B 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
E
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 F
being filed " regarding a separate offence" under Section 420/
120-8 IPC. In paragraphs 73 and 74 of the said chargesheet
whilst admitting 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 G
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
H
10 SUPREME COURT REPORTS [2013) 7 s.c:R.

A 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
B 25.04.2011 were earlier filed in the same FIR.

74. In terms of the Notification No.6/05/2011-Judl./363-367
dated 28.03.2011 issued by Govt. of NCT of Delhi this
Hon'ble Court has been designated to undertake the trial
of cases in relation to all matters pertaining to 2G Scam
c 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
D 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."

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

"2. Ld. Spl. PP further submits that the accused have been
charged with the commission of offence, which are triable,
F by the Court of Metropolitan Magistrate. It is further
submitted that this second supplementary charge sheet
also arises from· the aforesaid RC bearing
No.DAl2009A0045/CBl/ACB/ND, titled as CBI v. A.Raja
& others, arose and is pending trial. He further submits that
G 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
H cases of 2G Scam.
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 11
HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]
3. Accordingly, the trial of this second supplementary A
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 B
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 C
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, D
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
E
hold trial of matters not pertaining to PC Act offences.

(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 F
Constitutional Bench of the Hon'ble Supreme Court in the
case of A.R. Antu/ay v. R.S. Nayak reported in (1988) 2
sec 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. G

15. Mr. Harin P. Rawal, learned Additional Solicitor of India
appearing on behalf of the CBI made the following
submissions:

H
12 SUPREME COURT REPORTS [2013) 7 S.C.R.

A 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
B 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
c 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
D them- An Additional Sessions Judge or Assistant
Sessions Judge shall try such cases as the
Sessions Judge of 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."
E
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
F
charge-sheet filed against the acbused 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
G 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
H
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 13
HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA. J.]

some of them are only charged of offences arising out of A
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
B
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: C

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

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

(i) The High Court, or

(ii) The Court of Session, or
E
(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 F
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." G

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 H
14 SUPREME COURT REPORTS [2013) 7 S.C.R.

A 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 offence
punishable under the PC Act, any conspiracy to commit or any
8
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
C 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
D 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
E
(b) any conspiracy to commit or any attempt to
commit or any abetment of any of the offences
specified in clause (a).

F (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).
G 4. Cases triable by special Judges - (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2of1974), or in any other law
for the time being in force, the offences specified in sub-
section (1) of section 3 shall be tried by special Judges
H only.
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 15
HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]

(2) Every offence specified in sub-section (1) of section 3 A
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 8
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. C

(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
day-to-day basis." D

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 E
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 more offence than one are F
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 G
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
H
16 SUPREME COURT REPORTS [2013) 7 S.C.R.

A properly as provided in sub-section (2) of section 212 or
in sub-section (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
B 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
c 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
D 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)."
E
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:

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

(c) *********
H
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 17
HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]
(d) persons accused of different offences committed in the , A
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 ~ B
. 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 C
together." . -·

21, The second supplementary charg~sheet dated 12th
December, 2011. was filed in the FIR No. RC DAI 2009 A 0045
dated 21st October, 2009 wherein following allegations have o
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--.. E
· Telecommunications, Government of India, unknown private
. persons/companies and others for the offences punishable
. under Section 120-B IPC read with Section 13(2) r/w
13(1)(d) of Prevention of Corruption Act, 1988, on
·. allegations of climinal conspiracy and criminal misconduct, F
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 charge-sheets dated 02.04.2011 and first
supplementary charge-sheet dated 25.04.2011 were filed • G
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. · ·
H
18 SUPREME COURT REPORTS [2013) 7S.C.R.

A 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 Bl during the investigation of this case.
B 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 Mis Essar Group
c which 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 Mis Vodafone Essar
D 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
E 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
F 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
G 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."
H
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 19
HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]
Following facts also emerge from the background of the A
matter:

"70. That after the accused persons had cheated the DoT
and fraudulently obtained the Letters of lntenUUAS
Licenses/valuable spectrum in furtherance of a conspiracy
8
among themselves, several complaints were received by
the Department of Telecommunications during 2008-2010
alleging that Mis 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 C
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, D
concluded that the clause 8 of the UASL Guidelines had
been violated ......

71. The investigation has, therefore, revealed that Mis.
Loop Telecom Ltd. made fraudulent UASL applications for E
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 F
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 G
commission of offences, during 2007-08, punishable u/s
120-8 IPC r/w 420 IPC, and substantive offence u/s 420
IPC, against accused persons, viz. Ravi N. Ruia,
Anshuman Ruia, Vikash Saraf, l.P. Khaitan, Ms. Kiran
Khaitan, M/s. Loop Telecom Ltd. (erstwhile Mis. H
~
.. l
II
~

••...
.. I • ~=··. ~~l
~,., 11·1.•,1
I .~i
I I 1~·
20 SUPREME COURT REPORTS [2013] 7 S.C.R.. ESSAR TELEHOLDINGS LTD. v/REGR. GEN., DELHI I...·,11
l HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]
21

A Shippingstop Dot Com India Pvt.Ltd.), M/s. Loop Mobile offences enumerated in Section 6(1 )(a) and (b) and the A ..
,,.:·1
,'
India Ltd. (BPL Mis. Mobile Communications Limited) and only mode of taking cognizance excluded by the provision ;ii]

is upon commitment. It therefore, follows that the Special r:1
Mis. Teleholdings Ltd. Accused persons were not arrested
du.ring investigation." · Judge can take cognizance of offences committed by
. i ,' '.~. public servants upon receiving a complaint of facts
8 • From the aforesaid second charge-sheet it is clear that the constituting such offences. · · 8
· offence alleged to have been committed by the petitioners in
the course of 2G Scam Cases. For the said reason they have · 28. Section 9 of the 1952 Act would equally be helpful in
been made accused in.the 2G Scam Case. · this behalf. Once Court of a Special Judge is a Court of
original criminal jurisdiction, it became necessary to
·· Admittedly, the co-accused of 2G Scam case charged provide whether it is subordinate to the High Court, whether
C . under the provisions of Prevention of Corruption Act can be <ipp~al and revision against its judgments and orders c
tried only by the Special Judge. The petitioners are co-accused would lie to the High Court and whether the High Court
in the said 2G Scam case. In this background Section 220 of · would have• general superintendence over. a Court of
Cr.P.C. will apply and the petitioners though accused of Special Judge as it has over all criminal courts as
different offences i.e. under Section 420/120-8 IPC, which enumerated in Section 6. of the Code of Criminal
D alleged to have been committed in· the course of 2G Spectrum · . .Procedure. The Court of a Special Judge, once created D
transactions, under Section 223 of Cr. P.C. they may be by an independent statute, has been brought as a Court
) . \
charged and cari be tried together with the other co-accused · of original criminal jurisdiction under the High Court
of 2G Scam cases. ' · because Section 9 confers on the High Court all the
powers conferred by Chapters XXXI and XXXlll of the
E 22. In A.R. 'Antulay v. Ramdas Sriniwas Nayak., (1984) •
.Code of Criminal Procedure, 1898 on a High Court as if E
2 sec 500, this Court came across a question whether a Court
. the Court of Special Judge were a Court of Session trying
of a Special Judge for certain purposes is a Court 'of ·
·cases without a jury ,within the local limit of the jurisdiction
Magistrate or a Court of Session and held.as follows:
· of the High Court. Therefore, there is no gainsaying the fact
"23. Once Section 5-A is out of the way in the matter of that a new criminal court with a name, designation and
F ·:: qualification of the officer eligible to preside over it with F
taking cognizance of offences committed by public
servants by a Special Judge, the power of the Special . •.· . powers specified and the particular procedure which it
Judge to take cognizance of such offences conferred by :. · niust follow has been set up under the 1952 Act.The court ·•
Section 8(1) with only one limitation, in any one of the ·•: "has to be treated as a Court of original criminal jurisdiction·
known methods of taking cognizance of offences by courts •. ~pd shall have all the powers as any Court of original
G of original jurisdiction remains undented. One,'.such '- . , crjminal jurisdi~tion has under th.e Code of Criminal G
statutorily recognised well-known method· of taking .. ·· Procedure, except- those specifically
'. ;, '~·.: ' . . ·.
excluded. '
cognizance of offences by a court competent to lake
cognizance is upon receiving a complaint of facts which
· > -29. Once the position and power of the Court of a Special
· ·'"''Judge in the hierarchy of criminal courts under the High
constitutes the offence. And Section 8(1) says that the
H Court is clearly and unambiguously established, it is
Special Judge has the power to take cognizance of !) .. ·· '~-·. .·------ .. I H

........................... ,,,,,,,,11111111111111111111111111111111111111111m111rmmmm111111mmm•
~
.. l
II
~

••...
.. I • ~=··. ~~l
~,., 11·1.•,1
I .~i
I I 1~·
20 SUPREME COURT REPORTS [2013] 7 S.C.R.. ESSAR TELEHOLDINGS LTD. v/REGR. GEN., DELHI I...·,11
l HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]
21

A Shippingstop Dot Com India Pvt.Ltd.), M/s. Loop Mobile offences enumerated in Section 6(1 )(a) and (b) and the A ..
,,.:·1
,'
India Ltd. (BPL Mis. Mobile Communications Limited) and only mode of taking cognizance excluded by the provision ;ii]

is upon commitment. It therefore, follows that the Special r:1
Mis. Teleholdings Ltd. Accused persons were not arrested
du.ring investigation." · Judge can take cognizance of offences committed by
. i ,' '.~. public servants upon receiving a complaint of facts
8 • From the aforesaid second charge-sheet it is clear that the constituting such offences. · · 8
· offence alleged to have been committed by the petitioners in
the course of 2G Scam Cases. For the said reason they have · 28. Section 9 of the 1952 Act would equally be helpful in
been made accused in.the 2G Scam Case. · this behalf. Once Court of a Special Judge is a Court of
original criminal jurisdiction, it became necessary to
·· Admittedly, the co-accused of 2G Scam case charged provide whether it is subordinate to the High Court, whether
C . under the provisions of Prevention of Corruption Act can be <ipp~al and revision against its judgments and orders c
tried only by the Special Judge. The petitioners are co-accused would lie to the High Court and whether the High Court
in the said 2G Scam case. In this background Section 220 of · would have• general superintendence over. a Court of
Cr.P.C. will apply and the petitioners though accused of Special Judge as it has over all criminal courts as
different offences i.e. under Section 420/120-8 IPC, which enumerated in Section 6. of the Code of Criminal
D alleged to have been committed in· the course of 2G Spectrum · . .Procedure. The Court of a Special Judge, once created D
transactions, under Section 223 of Cr. P.C. they may be by an independent statute, has been brought as a Court
) . \
charged and cari be tried together with the other co-accused · of original criminal jurisdiction under the High Court
of 2G Scam cases. ' · because Section 9 confers on the High Court all the
powers conferred by Chapters XXXI and XXXlll of the
E 22. In A.R. 'Antulay v. Ramdas Sriniwas Nayak., (1984) •
.Code of Criminal Procedure, 1898 on a High Court as if E
2 sec 500, this Court came across a question whether a Court
. the Court of Special Judge were a Court of Session trying
of a Special Judge for certain purposes is a Court 'of ·
·cases without a jury ,within the local limit of the jurisdiction
Magistrate or a Court of Session and held.as follows:
· of the High Court. Therefore, there is no gainsaying the fact
"23. Once Section 5-A is out of the way in the matter of that a new criminal court with a name, designation and
F ·:: qualification of the officer eligible to preside over it with F
taking cognizance of offences committed by public
servants by a Special Judge, the power of the Special . •.· . powers specified and the particular procedure which it
Judge to take cognizance of such offences conferred by :. · niust follow has been set up under the 1952 Act.The court ·•
Section 8(1) with only one limitation, in any one of the ·•: "has to be treated as a Court of original criminal jurisdiction·
known methods of taking cognizance of offences by courts •. ~pd shall have all the powers as any Court of original
G of original jurisdiction remains undented. One,'.such '- . , crjminal jurisdi~tion has under th.e Code of Criminal G
statutorily recognised well-known method· of taking .. ·· Procedure, except- those specifically
'. ;, '~·.: ' . . ·.
excluded. '
cognizance of offences by a court competent to lake
cognizance is upon receiving a complaint of facts which
· > -29. Once the position and power of the Court of a Special
· ·'"''Judge in the hierarchy of criminal courts under the High
constitutes the offence. And Section 8(1) says that the
H Court is clearly and unambiguously established, it is
Special Judge has the power to take cognizance of !) .. ·· '~-·. .·------ .. I H

........................... ,,,,,,,,11111111111111111111111111111111111111111m111rmmmm111111mmm•
22 SUPREME COURT REPORTS [2013] 7 S.C.R.

A 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
B adding to the length of this judgment without achievi~g 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:

C "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
D 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
E 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 Session can depart from the interdict
F 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.
G 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
H that be so, there is no reason to think that the charge-sheet
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 23
HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]
or a complaint can straight away be filed before such A
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 B
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 C
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 sub-sections of which the first sub-section is of no
relevance since it deals only with offences under the Indian D
Penal Code. However, sub-section (2) deals with offences
under other laws and hence the same can be looked into.
Sub-section (2) of Section 4 is extracted below:

"4. (2) All offences under any other law shall be E
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 or place of investigating,
inquiring into, trying or otherwise dealing with such F
offences."

24. Similar question came for consideration before this
Court in Vivek Gupta v. Central Bureau of Investigation,
(2003) 8 sec 628. In the said case the co-accused were
charged by Special Judge under the provisions of the PC Act G
whereas the appellant before this Court had been charged only
under Section 420 IPC and under Section 120-B 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:
H
·---· ·----- L '
'
'
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 25
24 SUPREME .COURT REPORTS , (2013) 7 S.C.R. HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]
I.

relation to them. While trying any case, the Special Judge may A
A , "15.This is because the co-accused of the appellant who also try an offence other than the offence specified in sub-
• have been also charged of offences specified in Section section (1) of Section 3, in view of sub-Section (3) of Section
3 of the Act must be tried by the Special Judge, who in 4. A magistrate cannot take cognizance of offence as specified
view of the provisions of sub-section (3) of Section 4 and in Section 3(1) of the PC Act. In this background, as the
~ . Section 220 of. the Code may also try them of the charge
petitioners have been shown as co-accused in second- B
B under Section 120-B read with Section 420 IPC. All the· supplementary chargesheet filed in 2G Scam case, it is open
three accused, including the appellant, have been charged to the Special Judge to take cognizance of the offence under
of the offence under Section 120-B read with Section 420
Section 120-B and Section 420 IPC. ·
IPC. If the Special Judge has jurisdiction to try the co-
accused for the offence under Section 120-B read with : 26. On the question of validity of the Notification dated 28th C
c Section 420 IPC, the provisions of Section 223 are . , ..,. . March, 2011 issued by the NCT of Delhi and Administrative
·attracted. Therefore, it follows that the appellant who is also
charged of having committed the same offence in the
•I Order dated 15th March, ~011 passed by the Delhi High Court,
"c we hold as follows: . .
course of the same transaction may also be tried with them.
OtheiWise it appears rather incongruous that some of the (i) Under sub-Section (1) of Section 3 of the PC Act the
conspirators charged of having committed the same State Government may, by notification in the Official D
D 'Gazette, appoint as many Special Judges as. may be
offence may be tried by the Special Judge while:lhe
re'maining conspirators who are also charged of the same · · · necessari for such area or areas or for such case or group
offence will be tried by another court, because they are not ·i of cases as may be specified in the notification to try any
·charged of any offence specified in Section 3 of the Act. ·. offence punishable under the PC Act. In the present case,
as admittedly, co-accused have been charged under the E
E. 17. We are, therefore, of the view that in the facts and provisions of the PC Act, and such ·offence punishable
circumstances of this case, the SpecialJudge while trying under the PC Act, the NCT of Delhi is well.within its
. the co-accused of an offence punishable under the jurisdiction to issue Notification(s) appointing Special
provisions of the Act as also an offence punishable under Judge(s) to try the 2G Scam case(s).
Section 120-B read with Section 420 IPC has the
F jurisdiction to try the appellant also for the offence· :· (ii) Article 233 and 234 of the Constitution are attracted in F
punishable under Section 120-B read with Section 420 · ' 1 • cases where appointments of persons· to be Special

IPC applying the principles incorporated in Section 223,of ; Judges or their postings to a particular Special Court are
the Code. We, therefore, affirm the finding of the High Court · involved. The control of High Court is· comprehensive,
and dismiss this appeal." '· . -~·: · . exclusive and effective and it is to subserve a basic feature
. """" -- . of.the Constitution i.e., independence of judiciary. (See G
G ' • ' • • • r-, '.;. ,-,

25. Admittedly, 2G Scam case is triable by the Special . High Court of Judicature for Rajasthan v. Ramesh Chand
Judge against the persons accused of offences punishable· Pafiwal (1998) 3 SCC 72 and Registrar (Admn.) High
under the PC Act in view of sub-Section (1) of Section 4. The 'court of Orissa v. Sisir Kanta SatapathY (1999) 7 sec
Special Judge alone can take the cognizance of the offence' .. 725). The power to appoint or promote or post a District
,. . . . . . ' . . . H
H specified in sub-Section (1) of Section 3 and ·conspiracy in
_.--·

(j
.. I .......... ,.,.,,,,,,,,,,,,111111111111111nm=1111""llllmrllllrrrrlllll"'"~TIIT
·---· ·----- L '
'
'
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 25
24 SUPREME .COURT REPORTS , (2013) 7 S.C.R. HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]
I.

relation to them. While trying any case, the Special Judge may A
A , "15.This is because the co-accused of the appellant who also try an offence other than the offence specified in sub-
• have been also charged of offences specified in Section section (1) of Section 3, in view of sub-Section (3) of Section
3 of the Act must be tried by the Special Judge, who in 4. A magistrate cannot take cognizance of offence as specified
view of the provisions of sub-section (3) of Section 4 and in Section 3(1) of the PC Act. In this background, as the
~ . Section 220 of. the Code may also try them of the charge
petitioners have been shown as co-accused in second- B
B under Section 120-B read with Section 420 IPC. All the· supplementary chargesheet filed in 2G Scam case, it is open
three accused, including the appellant, have been charged to the Special Judge to take cognizance of the offence under
of the offence under Section 120-B read with Section 420
Section 120-B and Section 420 IPC. ·
IPC. If the Special Judge has jurisdiction to try the co-
accused for the offence under Section 120-B read with : 26. On the question of validity of the Notification dated 28th C
c Section 420 IPC, the provisions of Section 223 are . , ..,. . March, 2011 issued by the NCT of Delhi and Administrative
·attracted. Therefore, it follows that the appellant who is also
charged of having committed the same offence in the
•I Order dated 15th March, ~011 passed by the Delhi High Court,
"c we hold as follows: . .
course of the same transaction may also be tried with them.
OtheiWise it appears rather incongruous that some of the (i) Under sub-Section (1) of Section 3 of the PC Act the
conspirators charged of having committed the same State Government may, by notification in the Official D
D 'Gazette, appoint as many Special Judges as. may be
offence may be tried by the Special Judge while:lhe
re'maining conspirators who are also charged of the same · · · necessari for such area or areas or for such case or group
offence will be tried by another court, because they are not ·i of cases as may be specified in the notification to try any
·charged of any offence specified in Section 3 of the Act. ·. offence punishable under the PC Act. In the present case,
as admittedly, co-accused have been charged under the E
E. 17. We are, therefore, of the view that in the facts and provisions of the PC Act, and such ·offence punishable
circumstances of this case, the SpecialJudge while trying under the PC Act, the NCT of Delhi is well.within its
. the co-accused of an offence punishable under the jurisdiction to issue Notification(s) appointing Special
provisions of the Act as also an offence punishable under Judge(s) to try the 2G Scam case(s).
Section 120-B read with Section 420 IPC has the
F jurisdiction to try the appellant also for the offence· :· (ii) Article 233 and 234 of the Constitution are attracted in F
punishable under Section 120-B read with Section 420 · ' 1 • cases where appointments of persons· to be Special

IPC applying the principles incorporated in Section 223,of ; Judges or their postings to a particular Special Court are
the Code. We, therefore, affirm the finding of the High Court · involved. The control of High Court is· comprehensive,
and dismiss this appeal." '· . -~·: · . exclusive and effective and it is to subserve a basic feature
. """" -- . of.the Constitution i.e., independence of judiciary. (See G
G ' • ' • • • r-, '.;. ,-,

25. Admittedly, 2G Scam case is triable by the Special . High Court of Judicature for Rajasthan v. Ramesh Chand
Judge against the persons accused of offences punishable· Pafiwal (1998) 3 SCC 72 and Registrar (Admn.) High
under the PC Act in view of sub-Section (1) of Section 4. The 'court of Orissa v. Sisir Kanta SatapathY (1999) 7 sec
Special Judge alone can take the cognizance of the offence' .. 725). The power to appoint or promote or post a District
,. . . . . . ' . . . H
H specified in sub-Section (1) of Section 3 and ·conspiracy in
_.--·

(j
.. I .......... ,.,.,,,,,,,,,,,,111111111111111nm=1111""llllmrllllrrrrlllll"'"~TIIT
26 SUPREME COURT REPORTS (2013) 7 S.C.R.

A 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
B appointment and posting as Special Judge(s) under sub-
section (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,
c 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-Addi.
Sessions Judge, l/C, New Delhi District, Patiala House
Courts, New Delhi whereby the High Court intimated the
D 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.

27. In the present case there is nothing on the record to
E 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.
F
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
G 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
H
ESSAR TELEHOLDINGS LTD. v. REGR. GEN., DELHI 27
HIGH COURT [SUDHANSU JYOTI MUKHOPADHAYA, J.]
progress of the Trial can be made only before this Court A
and no other court shall entertain the same. The trial must
proceed on a day-to-day basis.

All these directions are given by this Court in exercise of
its power under Article 136 read with Article 142 of the
8
Constitution and in the interest of holding a fair prosecution
of the case."

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 C
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 D
Article 32 ofthe 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 E
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.

R.P. Writ Petitions dismissed. F