M/S. HCL LNFOSYSTEM LTD.versusCENTRAL BUREAU OF INVESTIGATION

                        [2016] 8 S.C.R. 755


                  MIS. HCL lNFOSYSTEM LTD.                               A
                                 v.
           CENTR_AL BUREAU OF INVESTIGATION
                 (Crimina!Appea!No. 751 of2016)
                         AUGUST 09, 2016                                 B

 [V. GOPALA GOWDA AND ADARSH KUMAR GOEL, JJ.]
      Prevention of Corruption Act, 1988 - ss. 3(1), 4, 13(J)(d) rlw
13(2) - Jurisdiction of Special Judge appointed u/s. 3(1) to deal
with all cases relating to NRHM (National Rural Health Mission)          c
scam under the PC Act - If can continue proceedings against the
appellant, not a public servant, named as co-accused with the sole
public servant who died before framing of charges, in absence of
any independent charge under the PC Act and for offences, though
related to the scam but, not under the PC Act - Held: As rightly
observed by High Court, charges were yet to be framed and from           D
the material placed on record, framing of charges under the PC Act
was not ruled out - Hence, appellants contention that the sole public
servant having died before framing of charges, the appellant could
not be tried by the Special Judge, pre-mature at this stage - Further,
the Special Court was constituted not only to deal with the cases of
                                                                         E
PC ACt but also other cases relating to the NRHM Scam - No
prejudice caused to trial before the Special Judge duly appointed
to deal with non-PC cases when the object of doing so was to try
connected cases before same Court - Non-PC Act cases could also
be allowed to be tried by the Special Judge u/s.26, Cr,P.C - Code of
Criminal Procedure, 1973 - ss.26137814071482 - Penal Code,               F
1860 - ss.120(B)/409/420 - Criminal Trial.
      Dismissing the appeals, the Court
      HELD: 1. The only contention raised by the appellant is
that the public servant having died before framing of the charge,
                                                                         G
the appellant could not be tried by the Special Judge. However,
there are two difficulties in accepting this submission, viz. (i) As
observed by the High Court, the charge was yet to be framed
and the framing of charge under the PC Act from the material
placed on record could not be ruled out, thus this argument at
                                                                         H
                                 755
756            SUPREME COURT REPORTS                        [2016) 8 S.C.R.


A this stage is premature, and (ii) The special Judge was authorized
  not only to deal with the cases under the PC Act but also for
  other offences. This course was permissible in view of law laid
  down by this Court in Mis. Essar Telelwldings Limited. (Paras 11,
  14)[769-F-G; 771-E-G)
B           Mis. Essar Teleholdings Limited v. Registrar General,
            Delhi High Court and Others 2013 (8) SCC 1: 2013
            (7) SCR 1 - relied on.
        2. In the present case, the Special Court in question was
  constituted not only to deal with the cases of PC Act but also
c other cases relating to the NRHM scam. Code of Criminal
  Procedure is applicable to trial before Special Judge and there is
  no prejudice to trial taking place before Special Judge duly
  appointed to deal with non PC cases when the object of doing so
  was to try connected cases before same court. Undoubtedly, while
  Special Judge alone could deal with cases under the PC Act, non-
D PC Act could also be allowed to be tried by the Special Judge
  under Section 26 of the Code of Criminal Procedure. There is no
  legal bar to do so, as held by this Court in Mis. Essar Teleholdings
  Limited. [Para 15][771-G-H; 772-A-B]
            State through Central Bureau ofInvestigation, New Delhi
·E          v. Jitender Kumar Singh (2014) 11 SCC 724: 2014 (2)
            SCR 621 - distinguished.
                          Case Law Reference
            2013 (7) SCR 1        relied on  · Paras 14, 15
            2014 (2) SCR 621          distinguished Paras 14, 16
 F
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      751 of2016.
            From the Judgment and Order dated 01.05.2015 of the High Court
      ofJudicature at Allahabad in Application UIS/ 482 No. 6623 of2015.
 G                                    WITH
            Crl. A. No. 752 of2016.
            C. U. Singh, Sr. Adv., P. V. Dinesh, Sanjiv K. Jha, T. P. Sindhu,
      Rajendra Beniwal, Binesh K., Aarushi Singh, Sibo Sankar Mishra, U. K.
      Mishra, Niranjan Sahu, Advs. for the Appellant.
 H
   MIS. HCL INFOSYSTEM LTD. v. CENTRAL BUREAU OF                              757
                   INVESTIGATION

      Rana Mukherjee, Sr. Adv., M. Rambabu, Mukesh Kumar Maroria,             A
Advs. for the Respondent.
      The Judgment of the Court was delivered by
      ADARSH KUMAR GOEL, J. l. Leave granted. These
appeals have been preferred against the orders of the High Court of
Judicature at Allahabad dated 1" May, 2015 and 22nd January, 2016 in B
APP No. 6623 of 2015 and Application u/s 482/378/407 No. 3823 of
2014 respectively.
       2. The question for consideration relates to the jurisdiction of the
Special Judge appointed under the Prevention of Corruption Act, 1988
(the "PC Act") to try a person other than a public servant ifthe public C
servant dies before the commencement of the trial. Further question is
whether the Special Judge can try a non PC Act case when his
appointment is to try all cases of the category which covers the present
case.
       3. The Central Bureau of Investigation (the "CBI") conducted           D
investigation in what is known as "National Rural Health Mission Scam"
(''NHRM Scam"). According to the said investigation, NRHM funds to
the tune of Rs. 9,000 crores, which were allocated to the State ofUttar
Pradesh for the period 2005-2006 by the Ministry of Health & Family
Welfare, Government of India, were diverted and allegedly                      E
misappropriated on a large scale. The CBI enquiry was ordered by the
Lucknow Bench of the High Court on 15th November, 2011. It also
came to light that two Chief Medical Officers were shot dead as a result
of the said scam. One Deputy Chief Medical Officer was arrested by
the local police, but he was found dead in jail on 22nd June, 2011. One
Sunil Verma, who was named as one of the accused, allegedly committed          F
suicide on 23'd January, 2012 .. One Mahender Kumar Sharma, who was
a clerk in the office of Chief Medical Officer, Lakhimpur Kheri was
found murdered on lS'h February, 20'12. The CBI conducted searches
of more than 150 places across the State and arrested a number of
accused persons suspected to be involved in the embezzlement ofNHRM            G
funds.
      4. A single court was designated as the trial court to facilitate the
progress of the trial vide order of the Chief Justice of the High Court
dated 161h May, 2012. Vide order of the State Government dated 28'h
August, 2012 the said notification designated the Special Judge, CBI,          H
758             SUPREME COURT REPORTS                              (2016] 8 S.C.R.


A Ghaziabad for dealing with "NRHM scam matters" for whole of the
  Uttar Pradesh State and was in addition to notification dated IO•h March,
  2011 issued earlier for appointment of Special Judge for trial ofoffences
  under Section 3(1) of the PC Act.
           5. The two notifications are as follows :
B          (I)                  " NOTIFICATION
                                   Miscellaneous
                   No. U.0.-24/6-P-9-201l-I67G/09TC-Nyaya-2
                          Lucknow : dated March I 0, 2011
             In exercise of the powers under sub-section (I) of section 3
c and sub-section (2) of section 4 of the Prevention of Corruption Act,
   1988 (Act No. 49 of 1988) read with section 21 of the General Clauses
  Act, 1897 (Act no.X of 1897) and in supersession ofall othernotifications
   issued in this behalf, the Governor is pleased to appoint from the date of
  his taking overcharge the Additional DistrictJudge mentioned in Column
  2 of the Scheduled below, as Special Judge for the areas mentioned in
D Column 4 for trial for such offences specified in sub-section (I) of section
   3 of the aforesaid Act no.49 of 1988 in which hereinafter charge sheet
   are filed in his court by Special Police Establishment of the Government.
   oflndia and to direct that such other cases arising within the said areas,
   in which charge sheets have already been filed before any other Special
E Judge appointed under the said Act and also such other cases arising
   within the said area relating to the said Special Police Establishment
  which are pending before such Special Judge, shall also be tried and
  ·disposed off by him and his court shall be designated as specified in
   column-3 of said Schedule with headquarters at Ghaziabad.
 F                                 SCHEDULE
                                                      .



            Sl. Name of the Judge      Name of              Areas of
            No.                       the Coun            Jurisdiction
                                                           (District)
           .1             2                3                   4
 G
            1     Shri Shyam Lal-II, Special        G.B.Nagar,
                                      Coun,Anti     Mecrut,Aligarh.
                  Additional District Corruption,   Rampur, l\1ainpuri,
                  and      Sessions CBI,            Firozabad.
                  Judge, Ghaziabad Ghazi abad
 H
MIS. HCL INFOSYSTEM LTD. v. CENTRAL BUREAU OF                   759
    INVESTIGATION [ADARSH KUMAR GOEL, J.]

          r. As o                           I.Zia   •
                                                                 A
         Singh-I\',                      Moradabad,
         Judge          Anti             Bulandshahar,
         Corruption C.B.I.,              Bijnor, Hathras
         Ghaziabad
    3    Sn M.S. Wa wa,                  S aranpW',
         Adtl.itional District           Agi:a,                  B
         and        Sessions             Mu.zaffamagar,
         Judge,                          J.P. Nagar, Etah,
         Mu.zaffa.magar                  Baghpat,
                                         Mathura.

                                                                 c
                                                By order
                                          Deepak Kumar
                                               Secretary

  (II)       GOVERNMENT OF UTTAR PRADESH                           D
                   HOME (POLICE) SECTION-9
           No. U.0.49/Six-P~l2-l 67 G/09 T.C. Justice-2
                 Lucknow, Dated: 28 1h August; 2012
  Exercising the powers conferred under section 2 of General
  Clauses Act, 1897 (Act No.IO of 1897) read with sub-
  section ( 1) of sectiou 73 and sub-section (2) of section 4 of   E
  Prevention of Corruption Act, 1988 (Act No.49 of 1988)
  and besides Notification No.U.0.24/Six-P-9-2011-1670/09
  T.C. - Justice-2, dated I Q•h March, 2011 issued for this
  purpose, the Governor do hereby appoint Sri Shyam Lal-
  Second. Special Judge, Anti Corruption, CBI,                     F
  Ghaziabad, for disposing of National Rural Health
  Mission (NRHM) Scam matters of whole of Uttar
  Pradesh, besides the matters mentioned in previous
  Notification, with immediate effect.
                                           By the order            G
                                           Kamal Saxena
                                             Secretary " (emphasis
                                                          added)


                                                                  H
760             SUPREME COURT REPORTS                              [2016] 8 S.C.R.


A            6. The CBI filed several charge sheets, including a charge sheet
      in respect of offences not covered by the PC Act in the case of Dr. Vijai
      Tripathi (appellant in SLP (Cr!.) No.1418of2016) and others. Since the
      Special Judge declined to entertain the said charge sheet, on application
      of the CBI, the High Court held that the Special Judge was to deal with
      "all cases relating to the scam", even though the offences were not
B
      under the PC Act. 1
             7. Vide notification dated 29th May, 2014 in place ofShri Shyam
      Lal-II, Shri Atul Kumar Gupta was posted for CBI Court, Ghaziabad.
      He was to look after all cases of NRHM as notified earlier, as the
      notification dated 28th August, 2012 was not rescinded, even though.
c     The notification dated 29th May, 2014 was in supersession of all other
      notifications. This aspect, as noted in the impugned judgment of the
      High Court, was clarified on the administrative side of the High Court.
      Cases of the appellants are being dealt with by the said court. Charge is
      yet to be framed.
D             8. The appellant in SLP (Cr!.) No.4338 of2015 is named as co-
      accused inter alia for offence of conspiracy along with a public servant
      who was charged under the PC Act. It approached the High Court
      with the plea oflack ofjurisdiction of the Special Judge to deal with the
      case against it after the death of the public servant. The High Court
 E    repelled the said contention and dismissed the petition. The High Court
      relied upon the judgment of this Court in Mis. Essar Telelwltlings
      Limited Vs. Registrar General, De/Iii Higli Court and Otlters 2
      wherein it was held that the Special Judge having been appointed to deal
      with "all 2G scam" cases, could also deal with cases involving other
      offences under the PC Act. This is clear from the following discussion
 F    in the judgment:
             xxx
             xxx
             11. Subsequently, the CBI filed second supplementary
 G           charge sheet on 12.12.2011 against the Petitioner(s) and
             other accused persons for the alleged commission of
             offences under Section 420/ 120-8 Indian Penal Code. No

       t Order dated 23.09.2013 in Criminal Misc. Application U/s. 482 No. 33050 of
      2013
 H    '2013 (8) sec 1
MIS. HCL INFOSYSTEM LTD. v. CENTRAL BUREAU OF                   761
   INVESTIGATION [ADARSH KUMAR GOEL, J.)

 offences under the PC Act have been alleged against the        A
 Petitioner(s) and other accused persons arraigned in the
 second supplementary charge sheet. Based on the same,
 the learned Special Judge by impugned order dated
 21.12.2011 was pleased to take cognizance of the second
 supplementary charge sheet dated 12.12.2011 and the
                                                                B
 Petitioner(s) and others were summoned.
 12. Accordi11g to the Petitioner(s), the CBI in its charge
 sheet dated 12.12.2011 admits thatthe charge sheet is being
 filed " regarding a separate offence" under Section 420/
 120-B Indian Penal Code. In paragraphs 73 and 74 of the
 said charge sheet whilst admitting that the offences alleged
                                                                 c
 in the charge sheet are triable by a Magistrate, the CBI
 relying on the notification dated 28.3.2011 requested the
 Special Judge to take cognizance of the matter. Paragraphs
 73 and 74 of the cl_iarge sheet read as under:
   73. This final report under Section 173(8) Code of           D
   Criminal Procedure is being filed regarding a separate
   offence which came to notice during investigation of
   the FIR No. RC DAI 2009 A 0045 (2G Spectrum
   Case), which is pending before Hon'ble Special Judge
   (2G Spectrum Cases), Patiala House Courts, New                E
   Delhi and a final report dated 02.04.2011 and
   supplementary final report dated 25.04.2011 were
   earlier filed in the same FIR.
   74. In terms of the Notification No. 6/05/2011-Judl./
   363-367 dated 28.03.2011 issued by Govt. ofNCT of             F
   Delhi this Hon'ble Court has been designated to
   undertake the trial of cases in relation to all. matters
   pertaining to 2G Scam exclusively in pursuance of the
   orders of the Supreme Court, although offences alleged
   to have been committed by accused persons sent up
   for trial are triable by the Magistrate of first class. It    G
   is, therefore, prayed that cognizance of the aforesaid
   offences may be taken or the final report may be
   endorsed to any other appropriate court as deemed fit
   and thereafter process may be issued to the accused
                                                                 H
762     SUPREME COURT REPORTS                            (2016] 8 S.C.R.


A       persons for their appearance and to face the trial as
        per Law.
      13. The learned Special Judge, thereafter, took cognizance
      vide impugned order dated 21.12.2011. The relevant portion
      of the said impugned order reads as under:
 B      "2. Ld. Spl. PP further submits that the accused have
        been charged with the commission ofoffence, which
        are triable, by the Court of Metropolitan Magistrate.
        It is further submitted that this second supplementary
        charge sheet also arises from the aforesaid RC bearing
 c      No. DAI2009A0045/CBI/ACB/ND, titled as CBI v.
        A. Raja and Ors., arose and is pending trial. He further
        submits that since this case also arises from the same
        FIR, it is to 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
D       undersigned was nominated as Special Judge by the
        Hon'ble High Court to exclusively try cases of 20
        Scam.
        3. Accordingly, the trial of this second supplementary
        charge sheet shal 1be held in this Court. A copy of the
 E      order dated I5.03.2011 be placed on the file."
       14. Learned Counsel for the Petitioner(s) assailed the
      impugned Administrative Order passed by the Delhi High
      Court dated I 5.3.2011 and the Notification dated 28.3.2011
      issued by the Government ofNCT Delhi on the following
 F    ,grounds:
        14.1 The impugned notification travels beyond the
        provisions of the Code of Criminal Procedure. The
        Code of Criminal Procedure mandates that offences
        under the Indian Penal Code ought to be tried as per
 G      its provisions.
      14.2 It has been held by this Hon'ble Court in the case of
      CBI v. Keshub Mahindra that: (SCC p. 219, para 11)
        "No decision by any court, this Court not
        excluded, can be read in a manner as to nullify
 H
MIS. HCL INFOSYSTEM LTD. v. CENTRAL BUREAU OF                     763
    INVESTIGATION [ADARSH KUMAR GOEL, J.]

    the express provisions of an Act or the Code..."              A
                                     (emphasis in original)
 Thus, the Administrative order and Notification are contrary
 to the well-settled provisions of law and ought to be set
 aside in so far as they confer jurisdiction on a Special Judge
 to take cognizance and hold trial of matters not pertaining      B
 to PC Act offences.
 14.3 lfthe offence of Section 420 Indian Penal Code, which
 ought to be tried by a Magistrate, is to be tried by a Court
 of Sessions, a variety of valuable rights of the Petitioner
 would be jeopardised. This would be contrary to the decision     c
 of the Constitutional Bench of the Hon 'ble Supreme Court
 in the case of A.R. Antu lay v. R.S. Nayak, where'in 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.                                           D
 15.4 The Second Supplementary charge-sheet which makes
 out offences against the present accused arises out of FIR
 No. RC DAI 2009 A 0045 registereC: b•; the CBI on
 21.10.2009, out of which the earlier charge-sheet& have
 been filed, and cognizance taken by the Special Court. An         E
 anomalous situation would be created if various accused
 charged with offences arising out of the same FIR were to
 be tried by different courts on the flimsy ground that some
 of them are only charged of offences arising out of the
 Indian Penal Code and not the special statutes under which
 other charges are laid.                                           F
  15.5 Higher courts can try an offence in view of Section 26
  of Code of Criminal Procedure and no prejudice should be
  caused ifthe case is tried by a Special Judge. By virtue of
  Administrative Order passed by the Delhi High court and
  Notification issued by the Government ofNCT, Delhi, the          G
  learned Special Judge is not divested ofhisjurisdiction which
  he otherwise possesses under Section 26 of the Code of
  Criminal Procedure to try offence under Indian Penal Code.
  The Section reads as follows:
                                                                  H
764      SUPREME COURT REPORTS                          [2016] 8 S.C.R.


A       "26. Courts by which offences are triable.- Subject to
        the other provisions of this Code,-
         (a) Any offence under the Indian Penal Code (45 of
         1860) may be tried by-
        (i) The High Court, or
 B      (ii) The Court of Session, or
         (iii) Any other court by which such offence is shown
         in the First Schedule to be triable;
         (b) Any offence under any other law shall, when any
         Court is mentioned in this behalfin such law, be tried
 c       by such Court and when no court is so mentioned,
         may be tried by-
         (i) The High Court, or
         (ii) Any other court by which such offence is shown
         in the First Schedule to be triable."
      16. Mr. Prashant Bhushan, learned Counsel for the CPIL,
D     submitted that a Special Judge has the power to try offences
      under the Indian Penal Code and no challenge can be made
      against th is power. It was further submitted that. in view of
      the order passed by this Court in 2G Scam case, it is not
      open to the Petitioners to approach any other Court to
 E    commence the trial.
      xxx
      xxx
      24. From the aforesaid second charge-sheet it is clear that
      the offence alleged to have been committed by the
 F
      Petitioners in the course of2G Scam Cases. For the said
      reason they have been made accused in the 2G Scam Case.
      25. Admittedly, ·the co-accused of 2G Scam case charged
      under the provisions of Prevention of Corruption Act can
      be tried only by the Special Judge. The Petitioners are co-
 G
      accused in the said 2G Scam case. In this background
      Section 220 of Code of Criminal Procedure will apply and
      the Petitioners though accused of different offences i.e.
      under Section 420/ 120-B Indian Penal Code;which alleged
      to have been committed in the course of 2G Spectrum
 H
MIS. HCL INFOSYSTEM LTD. v. CENTRAL BUREAU OF                      765
    INVESTIGATION [ADARSH KUMAR GOEL, J.]

 transactions, under Section 223 of Code of Criminal               A
 Procedure they may be charged and can be tried together
 with the other co-accused of 2G Scam cases.
 30. On the question of validity of the Notification dated
 28th March, 2011 issued by the NCT of Delhi and
 Administrative Order dated 15th March, 2011 passed by             B
 the Delhi High Court, we hold as follows:
 30.1. Under Sub-section (1) of Section 3 of the PC Actthe
 State Govemment 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          c
 may be specified in the notification to try any offence
 punishable under the PC Act. In the present case, as
 admittedly, co-accused have been charged under the
 provisions of the PC Act, and such offence punishable under
 the PC Act, the NCT of Delhi is well within its jurisdiction
 to issue Notification(s) appointing Special Judge(s) to try       D
 the 2G Scam case(s).
  30.2. Article 233 and 234 of the Constitution are attracted
  in cases where appointments of persons to be Special Judges
  or their postings to a particular Special Court are involved.
  The control of High Court is comprehensive, exclusive and         E
  effective and it is to subserve a basic feature of the
  Constitution i.e., independence ofjudiciary. [See High Court
  of Judicature for Rajasthan v. Ramesh Chand Paliwal and
  High Court of Orissa v. Sisir Kanta Satapathy. The power
  to appoint or promote or post a District Judge of a State is      F
  vested with the Governor of the State under Article 233 of
  the Constitution which can be exercised only in consultation
  with the High Court. Therefore, it is well within the
  jurisdiction of the High Court to nominate officer(s) of the
  rank of the District Judge for appointment and posting as
  Special Judge(s) under Sub-section(!) of Section 3 of the         G
  PC Act.
  30.3. In the present case, the Petitioners have not challenged
  the nomination made by the High Court of Delhi to the NCT
  of Delhi. They have challenged the letter dated 15th March,
                                                                   H
766          SUPREME COURT REPORTS                            [2016] 8 S.C.R.


A         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, I/C, New Delhi District, Patiala House
          Courts, New Delhi whereby the High Cou1t intimated the
          officers about nomination of Mr. O.P. Saini, an officer of
 B
          Delhi Higher Judicial Service for his appointment as Special
          Judge for 2G Scam Cases.
          31. In the present case there is nothing on the record to
          suggest that the Petitioners will not get fair trial and may
          face miscarriage of justice. In absence of any such threat
 c        & miscarriage ofjustice, no interference is called for against
          the impugned order taking cognizance of the offence against
          the Petitioners.
         9. In the impugned judgment, the High Court dealing with the
   powers of the Chief Justice of the High Court to permit non-PC Act
 D cases also being dealt with by the Special Judge observed:
          " The powers of the Chief Justice to do so are
          unquestionable keeping in view the provisions of Rule 4(A)
          of Chapter Ill of the Allahabad High Court Rules which
          includes the powers ofthe Chief Justice in matters of Mid-
 E        term posting and transfers and all residuary matters not
          allotted to any Committee or Administrative Judges. This
          being the legal position and there being no indication of any
          prejudice or failure ofj ustice, the notification dated 29 .5.2014
          read with the notification dated 28.8.2012/ 1.9.2012 and
 F        the order of the Chief Justice mentioned hereinabove dated
          13 .2.2014 clearly continues the authority of Sri Atul Kumar
          Gupta to exercise powers exclusively over NRHM cases
          at Ghaziabad. From the administrative file ofthe High Court
          relating to the issuance of such notifications it also appears
          that steps have been initiated and the Government has
 G        already been communicated with the approval ofHon'ble
          the Chief Justice, that the said omission in the notifications
          dated 29.5.2014 specifically aboutNRHM cases be rectified.
          There is, therefore, a substantial compliance of procedure ·
          in relation to the conferment of the posting and jurisdiction
 H        of Sri Atul Kumar Gupta as successor in.office of Sri Shyam
   MIS. HCL INFOSYSTEM LTD. v. CENTRAL BUREAU OF                             767
       INVESTIGATION [ADARSH KUMAR GOEL, J.]
                 r-~·


      Lal-II who was already notified to exclusively try NRHM                A
      cases. In the light of the above, a ministerial omission either
      by the registry of the High Court or by the State Government
      will not dissolve the conferment of authority on the
      successor in office.
      xxx                                                                    B
      xxx
      In my considered opinion as well, the aforesaid approach
      of getting the scam tried in one particular court does not
      suffer from any administrative or judicial infirmity and rather
      the same would advance the cause ofjustice with the entire             c
      scam being looked into by one particular court instead of a
      variety of cou1ts spread over differently as it would result
      in a likelihood of conflict of appreciation of evidence and
      obviously might result in a conflict of opinion. The nature
      of the offences being tried simultaneously by one court                D
      relate to the diversion, misappropriation and misutilization
      of the funds of the National Rural Health Mission that
      according to the charge sheet and the FIRs as well as the
      evidence collected indicate a concerted effort through a
      deep-routed conspiracy to siphon off the funds of the
      NRHM scam. In such a situation it would not be                         E
      inappropriate to invoke the principle "extraordinary situations
      require extra ordinary remedies" for retaining the jurisdiction
      with the learned Special Judge in the facts of the present
      case. "
       I 0. As already stated, the High Court held that the Special Judge     F
could continue proceedings against the appellants even after the death
of public servant and even if there was no charge under the PC Act.
The High Court duly considered the effect of death of the sole public
servant. The contention raised by the appellant in the first case was that
the charges against it were under Section 1208 read with Sections 409        G
and 420 !PC and Section 13(1)(d) read with Section 13(2) of the PC
Act. There is no independent PC Act charge against it. Thus, only for
non PC Act charges, proceedings could not continue before the Special
Judge. On this aspect, it was observed that the charge could be amended
and challenge was pre-mature apart from the fact the Special Judge
                                                                             H
768         SUPREME COURT REPORTS                           (2016] 8 S.C.R.


A was competent to deal with non PC Act cases relating to NRHM scam.
  The relevant observations in this regard are :
         " There is one thing which deserves mention at this very
         stage is that the possibility of amendment in the charges
         and addition thereto keeping in view the nature of the
B        allegations cannot be ruled out in future. This, therefore,
         would be a premature stage to presume that no other
         offence can be tried by the Special Court. The offences in
         relation to a non-government servant which connect him
         with the conspiracy of misappropriation of public funds with
         the aid of a government servant, would not vanish merely
 c       because the government servant has died. This would
         clearly depend upon the evidence and the facts of the case
         that would ultimately determine the framing of the charge
         and its consequential trial. Not only this, the Court has
         ample powers to add charges even during the course of the
 D       trial.
          From a perusal of the FIR, charge sheet and cognizance
          order, it may not be said at this stage that no offence under
          the Prevention of Corruption Act has been committed by
          the applicant. The cognizance is taken of the offence and
 E        not of the person. The charges are framed in relation to
          the offence committed which are tried. The question is of
          the link of a non-government servant to such an offence
          which may be relatable to the Prevention of Corruption Act,
          1988. In the instant case the material on record does indicate
          prima facie such connection whereas in the case of State
 F         Vs. Jitender Kumar Singh (supra) which has been relied
          upon by the learned counsel for the applicant, the Apex
          Court came to a conclusion that there was no offence under
          the Prevention of Corruption Act for being tried as against
          the non-government servants involved therein that arose
 G        out of the Bombay case as discussed in the said judgment.
          In the circumstances, it would be absolutely premature to
          presume on the facts of the present case of there being no
          evidence or linkage as suggested by the learned counsel
          for the petitioner when prima facie a charge sheet and the
          cognizance order do disclose such links.
 H
   MIS. HCL INFOSYSTEM LTD. v. CENTRAL BUREAU OF                        769
       INVESTIGATION [ADARSH KUMAR GOEL, J.]

      xxx                                                               A
      xxx
      Applying the aforesaid principles on the facts of the present
      case, it is clear that there are clear allegations and also
      evidence prima facie collected to indicate conspiracy that
      connect the acts and omissions of Late Sri G.K. Batra, the        B
      government servant, with the applicant-company and its
      officials and agents who got themselves introduced in the
      manner indicated in the charge sheet along with the active
      aid of Late Sri G.K. Batra. Consequently, all arguments
      that have been advanced by Sri Chaturvedi on the strength          c
      of the judgment in the case of State Vs. Jitender Kumar
      Singh (supra) do not come to his aid as the facts of the
      present case are not identical except for the similarity of
      the death of the government servant. Consequently, the
      second argument also does not hold water.
                                                                         D
      In view of the conclusions drawn hereinabove, the order
      impugned dated 28.2.2015 is upheld and the proceedings
      before Sri Atul Kumar Gupta are treated to be well within
      his jurisdiction in all NRHM cases. In order to remove any
      doubt in this regard it is further directed that SriAtul Kumar
      Gupta would continue to have jurisdiction over such cases          E
      till his successor joins on the said post. It may also be put
      on record that according to the annual list of transfer and
      posting Sri Atul Kumar Gupta is under orders of transfer,
      but on account of no fresh notification for the court occupied
      by him, his transfer order is under abeyance till his successor    F
      joins. "
       11. The only contention raised by Shri C.U. Singh, learned senior.
counsel for the appellant is that public servant having died before framing
of the charge, the appellant could not be tried by the Special Judge. He
did not challenge any other finding in the impugned order except those G
relevant to this contention. Shri Singh submits that the case of the
appellant-Mis. HCL Infosystem Limited is fully covered by the judgment
of this Court in State tllrougll Central Bureau of Investigation, New
De/Iii Vs. Jitender Kumar Singf1J. Particular reliance was placed on
'(2014) 11 sec 724
                                                                         H
770            SUPREME COURT REPORTS                          [2016) 8 S.C.R.


A  paragraph 46 of the judgment. It was submitted that the trial in a warrant
   case commenced on framing of the charge which has not yet happened
   end the pub Iic servant had died. The appellant could be tried only during
   the lifetime of the public servant. Having regard to the fact that the
   public servant has died before the framing of the charge, this Court
   upheld the view of the High Court in forwarding the papers of the case
 B
   to the Chief Judicial Magistrate.                           ·
            12. His main reliance is on paragraphs 46 and 47 of the judgment
      which are as follows :
                      " xxx
 c          46. We may now examine Criminal Appeal No.161 of2011,
            where the FIR was registered on 2-7-1996 and the charge-
            sheet was filed before the Special Judge on 14-9-2001 for
            the offences under Sections 120-B, 420 IPC read with
            Sections 13(2) and 13(1) of the PC Act. Accused 9 and 10
D           died even before the charge-sheet was sent to the Special
            Judge. The charge against the sole public servant under
            the PC Act could also not be framed since he died on. 18-2-
            2005. The Special Judge also could not frame any charge
            against non-public servants. As already indicated, under
            sub-section (3) of Section 4, the Special Judge could try
 E          non-PC offences only when "trying any case" relating to
            PC offences. In the instant case, no PC offence has been
            committed by any of the non-public servants so as to fall
            under Section 3(1) of the PC Act. Consequently, there
            was no occasion for the Special Judge to try any case relating
 F          to the offences under the PC Act against the appellant.
            The trying of any case under the PC Act against a public
            servant or a non-public servant, as already indicated, is a
            sine qua non for exercising powers under sub-section (3)
            of Section 4 of the PC Act. In the instant case, since no
            PC offence has been committed by any of the non-public
 G          servants and no charges have been framed against the public
            servant, while he was alive, the Special Judge had no
            occasion to try any case against any of them under the PC
             Act, since no charge has been framed prior to the death of
             the public servant. The jurisdictional fact, as already
 H          discussed above, does not exist so far as this appeal is
   MIS. HCL INFOSYSTEM LTD. v. CENTRAL BUREAU OF                              771
       INVESTIGATION [ADARSH KUMAR GOEL, J.]

      concerned, so as to exercise jurisdiction by the Special Judge          A
      to deal with non-PC offences.
      47. Consequently, we find no error in the view taken by
      the Special Judge, CBI, Greater Mumbai in forwarding the
      case papers of Special Case No.88 of2001 in the Court of
      the Chief Metropolitan Magistrate for trying the case in                B
      accordance with law. Consequently, the order passed by
      the High Court is set aside. The competent court to which
      Special Case No.88 of 2001 is forwarded, is directed to
      dispose of the same within a period of six months. Criminal
      Appeal No. 161 of201 I is allowed accordingly."
                                                                              c
      13. Learned counsel for the CBI supports the impugned order by
submitting that the cognizance had already been taken and the matter
should be allowed to proceed before the Special Judge in view of the
impugned order of the High Court.
       14. While we do find that the observations of this Court in Jitender   D
Kumar Singlt (supra) in paragraphs 46 and 47 quoted above support
the contention ofShri Singh that the Special Judge, under Section 4(3),
could not try an offence other than that specified under Section 3. The
public servant was no more and the trial had not commenced. In view
of the relied upon judgment in absence of PC Act charge, the appellants
may not be liable to be tried before the Special Judge. However, we            E
find two difficulties in accepting the submission ofShri Singh as follows:
      (i) As observed by the High Court, the charge is yet to be
      framed and the framing of charge under the PC Act from
      the material placed on record was not ruled out. Thus, the
      argument at this stage is pre-mature; and                                F
      (ii) The Special Judge was authorized not only to deal with
      the cases under the PC Act as was the position in the case
      before this Court in Jitender Kumar Singh (supra) but
      also for other offences. This course was permissible in
      view of law laid down by this Court in Mis. Essar                        G
      Te/e/10/dillgs Limited (supra).
       IS. In the present case, the Special Court in question has been
constituted not only to deal with the cases of PC Act hut also other
cases relating to the NRHM scam. Procedure of Code of Criminal
                                                                              H
772             SUPREME COURT REPORTS                          [2016] 8 S.C.R.


A     Procedure is applicable to trial before Special Judge and there is no
      prejudice to trial that is taking place before Special Judge duly appointed
      to deal with non PC cases when the object of doing so was to try
      connected cases before same court. Undoubtedly, while Special Judge
      alone could deal with cases under the PC Act, non- PC Act could also
      be allowed to be tried by the Special Judge under Section 26 of the Code
 B
      of Criminal Procedure. There is no legal bar to do so, as held by this
      Court in Mis. Essar Te/e/10/dings Limited (supra).
             16. In view of above distinguishing feature in the present case
      from the case of Jitender Kumar Singh (supra), we do not find any
      merit in these appeals and the same are dismissed.
 c
      Divya Pandey                                              Appeals dismissed.