VIVEK GUPTAversusCENTRAL BUREAU OF INVESTIGATION AND ANR .

                        VIVEK GUPTA                                            A
                              v.
           CENTRAL BUREAU OF INVESTIGATION AND ANR.
-
.                           SEPTEMBER 25, 2003

                [N. SANTOSH HEGDE AND B.P. SINGH, JJ.]                         B
         Criminal Law :

          Code of Criminal Procedure, 1973-Sections 220 and 223-Joint
    trial of accused persons-Appellant entering into a conspiracy with two C
    officers ofa bank who misused their official position and caused substantial
    monetary loss to the bank-All three charged under Section 120B read with
    Section 4201.P.C.-While appellant additionally charged of offence under
    Section 420 I.P.C. the other two accused were additionally charged under
    Prevention of Corruption Act-Special Judge charging and trying the
    appellant together with the other two accused under the provisions of the D
    Prevention of Corruption Act, 1988-Tenability of -Held, appellant and
    his co-accused may be tried by the Special Judge in the same trial-
    Persons accused of different offence committed in the course of the same
    transaction may be charged and tried together-It would be rather
    incongruous that on a charge of conspiracy some of the conspirators may E
    be tried by the Special Judge while others will be tried by the courts under
    the Code a/Criminal Procedure-Provisions ofCode a/Criminal Procedure
    applicable to trial for offences under the Prevention a/Corruption Ac/-
    Prevention of Corruption Act,1988-Sections 3, 4, 13(1)(d), 13(2) and
    22-/ndian Penal Code, 1860-Sections 120B and 420.                            F
          Appellant transacted business with a bank. He entered into a
    conspiracy with two officers of the bank to cheat the bank. The two
    officers of the bank acting in concert with appellant, misused their
    official position and caused substantial monetary loss to the bank. All
    the three accused were charged under Section 1208 read with Section G
    420 I.P.C. While appellant was additionally charged of the offence
    under Section 420 I.P.C., the two officers of the bank were additionally
    charged of the offence under Section 13(2) read with Section 13(l)(d)
    of the Prevention of Corruption Act, 1988. Appellant was charged and
    tried together with the other two accused by the Special Judge under H
                                       1087
    1088                 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
                                                                                •(   )


A the provisions of the Prevention of Corruption Act, 1988. Aggrieved,
    appellant approached High Court which held that the appellant can
    be tried by the Special Judge under the Prevention of Corruption Act
    along with the two accused who also stand charged of offences under
    the Act. Hence the present appeal.
B         On behalf of appellant, it was contended that the Special Judge
    under the Prevention of Corruption Act has no jurisdiction to try
    appellant who is not charged of any offence under the said Act; that
    in view of the express provisions of Section 3 of the Act, the Special
    Judge could only try offences which are punishable under the Act or
C   any conspiracy to commit or any attempt to commit or abetment of
    any of the offences punishable under the Act; that before an accused
    can be charged and tried by the Special Judge for any offence other
    than an offence under the Act, the necessary pre-condition is that the
    said accused must also be charged of an offence under the Act or
D   conspiracy to commit, attempt to commit or abetment of any offence
    under the Act; that since the appellant was charged only of offences
    under Section 420 and Section 1208 read with Section 420 l.P.C., he
    could not be tried by the Special Judge even with the aid of sub-section
    (3) of Section 4 of the Act.
E        On behalf of the respondents, it was contended that the appellant
    being a co-conspirator could be tried along with the co-accused by the
    Special Judge in the same trial even for the offences not specified under
    Section 3 of the Act, but forming a part of the same transaction which
    led to the commission of an offence under the Act.
F
           Dismissing the appeal, the Court

       HELD: 1.1. The Special Judge while trying the co-accused of the
  offence punishable under the provisions of the Prevention of Corruption
  Act,1988 as also the offence punishable under Section 1208 read with
G Section 420 l.P.C. has the jurisdiction to try the appellant also for the
  offence punishable under Section 1208 read with Section 420 l.P.C.
  applying the principles incorporated in Section 223 of the Code. The
  offence under the Act and the offence under the 1.P.C. of which the
  co-accused have been charged were committed in the course of the
H same transaction. Section 223 of the Code of Criminal Procedure, 1973
                        VIVEK GUPTA v. C.B.I.                       1089

in clear terms provides that persons accused of the same offence A
committed in the course of the same transaction, or persons accused
of different offence committed in the course of the same transaction
.may be charged and tried together. (1099-A, 8, 1097-G, HJ

     Union ofIndia v. l.C. Lala, AIR (1973) SC 2294 and State ofAndhra B
Pradesh v. Kandimalla Subbaiah and Another, AIR (1961) SC 1241,
referred to.

      Kadiri Kunhahammad v. The State of Madras, AIR (1960) SC 661,
cited.

     1.2. All the three accused, including the appellant, have been charged
                                                                           c
of the offence under Section 1208 read with Section 420 I.P.C. If the
Special Judge has jurisdiction to try the co-accused for the offence under
Section 1208 read with Section 420 l.P.C., the provisions of Section 223
Cr.P.C. are attracted. Therefore, it follows that the appellant who is also D
charged of having committed the same offence in the course of the same
transaction may also be tried with them. Otherwise it appears rather
incongruous that some of the conspirators charged of having committed
the same offence may be tried by the Special Judge while the remaining
conspirators who are also charged of the same offence will be tried by
another Court, because they are not charged of any offence specified in E
Section 3 of the Act. (1098-C-E]

      1.3. The provisions of the Code of Criminal Procedure do apply
to trials for offences under the Prevention of Corruption Act, 1988
subject to certain modifications as provided in Section 22 of the Act F
unless the application of any provision of the Code is excluded either .
expressly or by necessary implication. Section 223 of the Code of
Criminal Procedure has not been excluded either expressly or by
necessary implication nor has the same been modified in their application
to trials under the Act. The said provision therefore is applicable to G
the trial of an offence punishable under the Act. (1097-8, CJ

     2. Uoder the provisions of the Prevention of Corruption Act, 1988
a Special Judge is not precluded altogether from trying any other
offence, other than offences specified in Secti"n (3) thereof. A person
charged of an offence under the Act may iL iew of sub-section (3) of H
    1090                 SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A Section 4 be charged at the same trial of any offence under any other
  law with which he may, under the Code of Criminal Procedure, be
  charged at the same trial. Thus a public servant who is charged of an
  offence under the provisions of the Act may be charged by the Special
  Judge at the same trial of any offence under l.P.C. if the same is
B committed in a manner contemplated by Section 220 of the Code.
                                                             11097-C-E)

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    1249 of 2002.

C        From the Judgment and Final Order dated 2.11.200 I of the Bombay
    High Court in Crl. W.P. No. 821 of2001.

        S.B. Sanyal, Niranjan Amin, P.R. Ramasesh, A.S. Khandeparkar and
    Ms. Vandana Jalan for the Appellant.

D        P.P. Malhotra, T.V. Ratnam, P. Parmeswaran, K. Subha Rao,
    R.B. Masodkar, Mukesh K Giri and Ravindra K. Adsure for the
    Respondents.

           The Judgment of the Court was delivered by

E       B.P. SINGH, J. : In this appeal by special leave the core question
  which arises for consideration is whether the appellant herein can be
  charged and tried together with the other two accused by the Special Judge
  under the provisions of the Prevention of Corruption Act, 1988, in view
  of the fact that the appellant herein has been charged only under Section
F 420 l.P.C. and under Section 120-B read with Section 420 1.P.C. while the
  other two accused have been additionally charged of the offence under
  Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption
  Act, 1988 (hereinafter referred to as the "Act"). The appellant contends
  that the Special Judge under the Prevention of Corruption Act has no
  jurisdiction to try the appellant who is not charged of any offence under
G the said Act, while the respondent contends to the contrary relying upon
                                                                               -   '

  the provisions of the said Act and the Code of Criminal Procedure. The
  High Court of Bombay by its impugned judgment and order has answered
  the question in the affirmative holding that the appellant can be tried by
  the Special Judge under the Prevention of Corruption Act along with the
H two accused who also stand charged of offences under the Act.




                                                                                   I
                    VIVEK GUPTA v. C.B.I. [ B.P. SINGH, J.]             1091

           Before adverting to the submissions urged at the Bar, we may very A
     briefly notice the broad facts of the case to appreciate the nature of the
     allegations made against the appellant and the other two accused. Accused
     No. I Sri G.B. Nande was at the relevant time the Manager of the
     Commercial Branch of the State Bank of India, Fort, Bombay, while
     accused No. 2 Sri J.S. Kelkar was an Accountant employed in the same B
     branch of the State Bank of India. The appellant herein is accused No.3
     who transacted business with the said branch of the State Bank of India
     on behalf of eight companies with which he was associated. There is
     considerable controversy as to whether the appellant was a Director of
     those companies or whether he was simply representing them as their
     representative. This, however, is not of much consequence in this appeal. C
     The case of the prosecution is that the appellant entered into a conspiracy
     with the aforesaid officers of the bank to cheat the bank. A clever device,
     rather intricate in nature, was conceived by them whereby eight separate
     accounts were opened in the name of the companies concerned and
     overdraft facility was extended to the companies on the representation of D
     the appellant and with the assistance of the aforesaid officers of the bank.
     The aforesaid officers of the bank misused their official position and in a
     dishonest manner the banking business was transacted in such a manner
I·   that it caused substantial monetary loss to the bank. This was achieved
     by the appellant and the officers of the bank acting in concert, pursuant E
     to the conspiracy. The aforesaid officers of the bank abused their official
     position as public servant and by corrupt or illegal means obtained
     pecuniary advantage for themselves and others. The Special Judge,
     therefore, framed charges against all the three accused for the offence
     punishable under Section 120-B read with Section 420 l.P.C. The appellant F
     herein was additionally charged of the offence under Section 420 l.P.C.
     Accused Nos. I and 2, the bank officers were also charged of the offence
     punishable under Section 13 (2) read with Section 13 (I) (d) of the Act.

           Sri S.B. Sanyal, learned senior advocate appearing on behalf of the
     appellant submitted that in view of the express provisions of Section 3 of G
     the Act, the Special Judge could only try offences which are punishable
     under the Act or any conspiracy to commit or any attempt to commit or
     abetment of any of the offences punishable under the Act. Sub-section (3)
     of Section 4 empowers the Special Judge to try an accused at the same trial
     for any offence committed under any law other than an offence punishable H




 T
    1092                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A under the Act. He, however, added that before an accused can be charged          <
  and tried by the Special Judge for any offence other than an offence under
  the Act, the necessary pre-condition is that the said accused must also be
  charged of an offence under the Act or conspiracy to commit, attempt to
  commit or abetment of any offence under the Act. He, therefore, submitted
B that since the appellant herein was charged only of offences under Section
  420 and Section 120-B read with Section 420 l.P.C., he could not be tried
  by the Special Judge even with the aid of sub-Section (3) of Section 4 of
  the Act. He submitted that only the co-accused, who were officers of the
  bank, were charged of offences under the Act and there was no charge
  against the appellant of having committed any offence under the Act or
C of having conspired, attempted or abetted to commit an offence under the
  Act. Clearly therefore, according to him, the Special Judge had no
  jurisdiction to try the appellant along with the co-accused in the same trial.
  He did not dispute the position that so far as the co-accused are concerned,
  the Special Judge had jurisdiction to try them for any offence under the
D Act and even for the offence under Section 120-B read with Section 420
  I.P.C. However, since the appellant was not charged of any offence
   specified in Section 3 of the Act, the Special Judge had no jurisdiction to
  try him for the offence under Section 420 LP .C. or even under Section 120-
   B read with Section 420 1.P.C. treating him as a co-conspirator of the co-      ·(

E accused.
        Shri P.P. Malhotra, senior advocate appearing for the respondent-
  CBI, however, contended that the appellant being a co-conspirator, and the
  Special Judge having jurisdiction to try the co-accused for the offence
F under Section 120-B read with 420 l.P.C., the jurisdiction of the Special
  Judge to try the appellant was not in doubt. He submitted that it would
  be rather incongruous that on a charge of conspiracy some of the
  conspirators may be tried by the Special Judge while others must be tried
  by the Courts under the Code of Criminal Procedure. He placed strong
  reliance on two decisions of this Court namely, Kadiri Kunhahammad v.
G The State of Madras, AIR (1960) SC 661 and Union ofIndia v. J.C. Lala,
  A.LR. (1973) S.C. 2294 and submitted that applying the principles laid
  down by this Court, the High Court was right in holding that the appellant
  could be tried along with the co-accused by the Special Judge in the same
  trial even for the offences not specified under Section 3 of the Act, but
H forming a part of the same transaction which led to the commission of an
                    VIVEK GUPTA v. C.B.I. [ B.P. SINGH, J.]               1093

     offence under the Act, for which the public servants concerned were A
     charged in addition to the offence of conspiracy under the I.P.C.

          To appreciate the force of the rival submissions, it is necessary to
     notice the relevant provisions of the Act and the Code of Criminal
     Procedure. Section 3 and Section 4 of the Act read as follows :-
                                                                                 B
                  "3. Power to appoint special Judges.- (1) The Central
             Government or the State Government may, by notification in the
             Official Gazette, appoint as many special Judges as may be
             necessary for such area or areas or for such case or group of cases
             as may be specified in the notification to try the following C
             offences, namely :-

             (a)   any offence punishable under this Act; and

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

             (2) A person shall not be qualified for appointment as a special
             Judge under this Act unless he is or has been a Sessions Judge
             or an Additional Sessions Judge or an Assistant Sessions Judge
             under the Code of Criminal Procedure, 1973 (2 of 1974).          E
             4. Cases triable by special Judges. - (1) Notwithstanding anything
             contained in the Code of Criminal Procedure, 1973 (2 of 1974),
             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 F
             Judges only.


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

              (3) When trying any case, a special Judge may also try any
              offence, other than an offence specified in Section 3, with which H
    1094                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A            the accused may, under the Code of Criminal Procedure, 1973 (2
             of 1974), be charged at the same trial.

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

        Section 22 of the Act provides that the provisions of the Code of
  Criminal Procedure, 1973 shall, in their application to any proceeding in
  relation to an offence punishable under the Act, have effect subject to
C certain modifications specified therein. The modifications of the provisions
  of the Code of Criminal Procedure in their application to offences
  punishable under the Act do not modify the provisions of Chapter XVII
  of the Code of Criminal Procedure with which we are concerned in the
  instant appeal. It is, therefore, apparent that the provisions of the Code
  of Criminal Procedure do apply to trials for offences uniler the Act subject
D to certain modifications as provided in Section 22 of the Act unless the
  application of any provision of the Code is excluded either expressly or
  by necessary implication.

           Section 220 of the Code of Criminal Procedure provides as
E follows :-

                  "220. Trial for more than one offence.- ( 1), If, in one series
             of acts so connected together as to form the same transaction,
             more offences than one are committed by the same person, he may
             be charged with, and tried at one trial for, every such offence.
F
                   (2) When a person charged with one or more offences of
             criminal breach of trust or dishonest misappropriation of property
             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
G            facilitating or concealing the commission of that offence or those
             offences, one or more offences of falsification of accounts, he may
             be charged with, and tried at one trial for, every such offence.

                  (3)   If the acts alleged constitute an offence falling within
H            two or more separate definitions of any law in force for the time
                    VIVEK GUPTA v. C.B.l. [ B.P. SINGH, J.]              1095

             being by which offences are defined or punished, the person A
             accused of them may be charged with, and tried at one trial for,
             each of such offences.

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

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

         The relevant provisions of Section 223 of the Code read as under:-

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

             (a)   persons accused of the same offence committed in the
•                  course of the same transaction ;
                                                                                E
             (b)   persons accused of an offence and persons accused of
                   abetment of, or attempt to commit, such offence ;

             (c)
                                                                                F
             (d)   persons accused of difference offences committed in the
                   course of the same transaction ;

             (e)

             (t)                                                                G

             (g)

         A mere perusal of Section 4 of the Act clearly mandates that as
    specified in Section 3, offences punishable under the Act or any conspiracy, H
    1096                  SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A attempt or abetment to commit an offence under the Act shall be tried by
  a Special Judge appointed in accordance with Section 3 of the Act. Sub-
  section (3) of Section 4 also lays down clearly that while trying any case
  for an offence specified in Section 3 of the Act, a Special Judge may also
  try any offence other than offences specified in Section 3 with which the
B accused may under the Code of Criminal Procedure, 1973 be charged at
  the same trial. It therefore follows that a Special Judge trying a case
  relating to an offence specified in Section 3 of the Act may also try any
  offence under any other law for which, under the provisions of the Code           f

  of Criminal Procedure, the accused may be charged at the same trial. Thus
C in cases within the contemplation of Section 4 (3) of the Act, the Special
  Judge is not precluded from trying an offence other than an offence
  specified in Section 3 of the Act.

          We have earlier reproduced the provisions of Section 220 of the Code.
    The aforesaid Section will clearly apply to the case of co-accused who
D   undoubtedly must be tried by the Special Judge for the offence under
    Section 120-B read with Section 420 l.P.C., apart from the offence under
    the provisions of the Act. This is so because in the facts of this case there
    is no doubt that the offence under the Act and the offence under the J.P.C
    of which they have been charged were committed in the course of the same
E   transaction. Even Mr. Sanyal, learned senior advocate appearing for the
    appellant did not dispute this position. His submission is that since the co-
    accused have been charged of offences under the Act, they can be tried
    by the Special Judge for other offences as well if such other offences have
    been committed in the course of the same transaction. He submitted that
F   "accused" in Sub-section (3) of Section 4 refers to an accused who is
    charged of offences specified in Section 3 of the Act. Therefore, he
    contends that since the appellant is not charged of any offence specified
    in Section 3 of the Act, his case will not be covered by sub-section (3) of
    Section 4.

G         On the other hand Sri P.P. Malhotra, senior advocate for the
    respondent contends that once it is held that the co-accused can be tried
    by the Special Judge of the charge under Section 120-B read with Section
    420 l.P.C., it must logically follow that the co-conspirators must also be
    tried with them in the same trial, and for this he places strong reliance on
H   the provisions of Section 223 of the Code of Criminal Procedure.
                       VIVEK GUPTA v. C.B.I. [ B.P. SINGH, J.]              1097

              We have given to the rival submissions our deep consideration and A
        we are of the view that the contention of the respondent must be upheld.


-       It is worth noticing that Sub-section (3) of Section 4 of the Act provides
        that 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 be charged at the same trial. We have observed earlier B
        that the provisions of the Code of Criminal Procedure apply to trials under
        the Act subject to certain modifications as contained in Section 22 of the
        Act and their exclusion either express or by necessary implication.

              Section 223 of the Code of Criminal Procedure has not been excluded
        either expressly or by necessary implication nor has the same been C
        modified in their application to trials under the Act. The said provision
        therefore is applicable to the trial of an offence punishable under the Act.
        The various provisions of the Act which we have quoted earlier make it
        abundantly clear that under the provisions of the Act a Special Judge is
        not precluded altogether from trying any other offence, other than offences D
        specified in Section 3 thereof. A person charged of an offence under the
        Act may in view of sub-section 3 of Section 4 be charged at the same trial
        of any offence under any other law with which he may, under the Code
    •   of Criminal Procedure, be charged at the same trial. Thus a public servant
        who is charged of an offence under the provisions of the Act may be E
        charged by the Special Judge at the same trial of any offence under l.P.C.


-       if the same is committed in a manner contemplated by Section 220 of the
        Code.

              The only narrow question which remains to be answered is whether
        any other person who is also charged of the same offence with which the F
        co-accused is charged, but which is not an offence specified in Section 3
        of the Act, can be tried with the co-accused at the same trial by the Special
        Judge. We are of the view that since sub-section (3) of Section 4 of the
        Act authorizes a Special Judge to try any offence other than an offence
        specified in Section 3 of the Act to which the provisions of Section 220 G
        apply, there is no reason why the provisions of Section 223 of the Code
        should not apply to such a case. Section 223 in clear terms provide that
        persons accused of the same offence committed in the course of the same
        transaction, or persons accused of different offence committed in the
        course of the same transaction may be charged and tried together. H
    1098                  SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
A Applying the provisions of Sections 3 and 4 of the Act and Sections 220
    and 223 of the Code of Criminal Procedure it must be held that the




B
    appellant and his co-accused may be tried by the Special Judge in the same
    trial.

          This is because the co-accused of the appellant who have been also
                                                                                       -
    charged of offences specified in Section 3 of the Act must be tried by the
    Special Judge, who in view of the provisions of sub-section (3) of Section
    4 and Section 220 of the Code may also try them of the charge under
    Section 120-B read with Section 420 I.P.C. All the three accused, including
C   the appellant, have been charged of the offence under Section 120-B read
    with Section 420 l.P.C. If the Special Judge has jurisdiction to try the co-
    accused for the offence under Section 120-B read with Section 420 I.P.C.,
    the provisions of Section 223 are attracted. Therefore, it follows that the
    appellant who is also charged of having committed the same offence in the
D   course of the same transaction may also be tried with them. Otherwise it
    appears rather incongruous that some of the conspirators charged of having
    committed the same offence may be tried by the Special Judge while the
    remaining conspirators who are also charged of the same offence will be
    tried by another Court, because they are not charged of any offence            ,
    specified in Section 3 of the Act.
E
         Reliance was placed by the respondent on the judgment in Union of
    India v. J.C. Lala, A.LR. (1973) SC 2294 but counsel for the appellant
  distinguished that case submitting that the facts of that case are
  distinguishable in as much as in that case apart from the two army officers,
                                                                                       -
F even the third appellant who was a businessman, was charged of the
  offence punishable under Section 120-B IP.C. read with Section 5 (2) of
  the Act. Such being the factual position in that case, Section 3 (I) (d) of
  the relevant Act was clearly attracted. In the instant case he submitted,
  there was no charge against the appellant of having conspired to commit
G a offence punishable under the Act. The aforesaid judgment refers to an
  earlier decision of this Court in the case of State of Andhra Pradesh v.
  Kandimal/a Subbaiah and Another : AIR (1961) SC 1241. Learned
  counsel for the appellant distinguishes that case also for the same reason,
  since in that case as well the respondent was charged of conspiracy to
H commit an offence punishable under the Act.
               VJVEK GUPTA v. C.B.I. [ B.P. SINGH, J.]              1099
      We are, therefore, of the view that in the facts and circumstances of A
this case, the Special Judge while trying the co-accused of an offence
punishable under the provisions of the Act as also an offence punishable
under Section 120-B read with Section 420 l.P.C. has the jurisdiction to
try the appellant also for the offence punishable under Section 120-B read
with Section 420 l.P.C. applying the principles incorporated in Section 223 B
of the Code. We, therefore, afftrm the finding of the High Court and
dismiss this appeal.

M.P.                                                  Appeal dismissed.