Essar Teleholdings Ltd. Vs. Registrar General, Delhi High Court & Ors.
EmailAppeal: Writ Petition (C) No. 57 of 2012
With
Loop Telecom Ltd. v. Registrar General, Delhi High Court & Ors.
Writ Petition (C) No. 59 of 2012
With
Vikash Saraf v. Registrar General, Delhi High Court & Ors.
Writ Petition (C) No. 96 of 2012
[Under Article 32 of the Constitution of India]
With
Loop Telecom Ltd. v. Registrar General, Delhi High Court & Ors.
Writ Petition (C) No. 59 of 2012
With
Vikash Saraf v. Registrar General, Delhi High Court & Ors.
Writ Petition (C) No. 96 of 2012
[Under Article 32 of the Constitution of India]
Petitioner: Essar Teleholdings Ltd.
Respondent: Registrar General, Delhi High Court & Ors.
Apeal: Writ Petition (C) No. 57 of 2012
With
Loop Telecom Ltd. v. Registrar General, Delhi High Court & Ors.
Writ Petition (C) No. 59 of 2012
With
Vikash Saraf v. Registrar General, Delhi High Court & Ors.
Writ Petition (C) No. 96 of 2012
[Under Article 32 of the Constitution of India]
With
Loop Telecom Ltd. v. Registrar General, Delhi High Court & Ors.
Writ Petition (C) No. 59 of 2012
With
Vikash Saraf v. Registrar General, Delhi High Court & Ors.
Writ Petition (C) No. 96 of 2012
[Under Article 32 of the Constitution of India]
Judges: G.S. Singhvi & Sudhansu Jyoti Mukhopadhaya, JJ.
Date of Judgment: Jul 01, 2013
Appearances:
Appearances
Mr. E.C. Agrawala, Mr. Siddharth Singla, Ms. Garima Prashad, Advocates, for the Petitioner.
Mr. Prashant Bhushan, Mr. Annam D.N. Rao, Mr. B.V. Balaram Das, Advocates, for the Respondents.
Mr. E.C. Agrawala, Mr. Siddharth Singla, Ms. Garima Prashad, Advocates, for the Petitioner.
Mr. Prashant Bhushan, Mr. Annam D.N. Rao, Mr. B.V. Balaram Das, Advocates, for the Respondents.
Head Note:
CONSTITUTION
Constitution of India, 1950
Article 32 – Prevention of Corruption Act, 1988, Sections 3, 4, 22 – Notification dated 28.03.2011 – Delhi High Court Notification dated 15.03.2011 (on Administrative side) – Criminal Procedure Code, 1973, Sections 194, 26, 220, 223 – Writ under – 2G Scam Case – CBI registered FIR against unknown persons/ companies (official and non-officials) – A writ for direction to CBI to investigate – Against dismissal, SLP filed – Supreme Court directed establishment of Special Court – Vide Administrative order, Delhi High Court nominated one officer as Special Judge for trial of 2G Scam Case(s) – Pursuant to subsequent orders dated 16.03.2011, Government of NCT of Delhi issued notification dated 28.03.2011, designating same officer as Special Judge for trying cases of 2G Scam – Vide allocation list dated 01.04.2011, same officer designated, as Special Judge in a new Court for those cases – Charge-sheet filed on 02.04.2011 and then on 25.04.2011 – No allegations against ‘E’ and ‘L’, companies till then – On 12.12.2011, CBI filing supplementary charge sheet against ‘E’ and ‘L’ for offences under Sections 420/120B IPC – No allegation under Act of 1988 – Vide orders dated 21.12.2011, Special Judge taking cognizance of offences against ‘E’ and ‘L’ on request of CBI – If taking of cognizance, notifications designating Special Judge under PC Act and by High Court are invalid, as beyond the provisions of Cr.P.C. – If taking cognizance is against the statutory provisions as valuable rights would be jeopardised. Held that accused ‘E’ and ‘L’ though charged under Sections 420, 120B IPC, offences are alleged to have been committed in the course of 2G Scam. Hence, they can be tried by Special Judge. A.R. Antulay’s, Gangula Ashok’s [JT 2000 (1) SC 379], Vivek Gupta’s [JT 2003 (Suppl.1) SC 614] cases referred and relied upon.
Constitution of India, 1950
Article 32 – Prevention of Corruption Act, 1988, Sections 3, 4, 22 – Notification dated 28.03.2011 – Delhi High Court Notification dated 15.03.2011 (on Administrative side) – Criminal Procedure Code, 1973, Sections 194, 26, 220, 223 – Writ under – 2G Scam Case – CBI registered FIR against unknown persons/ companies (official and non-officials) – A writ for direction to CBI to investigate – Against dismissal, SLP filed – Supreme Court directed establishment of Special Court – Vide Administrative order, Delhi High Court nominated one officer as Special Judge for trial of 2G Scam Case(s) – Pursuant to subsequent orders dated 16.03.2011, Government of NCT of Delhi issued notification dated 28.03.2011, designating same officer as Special Judge for trying cases of 2G Scam – Vide allocation list dated 01.04.2011, same officer designated, as Special Judge in a new Court for those cases – Charge-sheet filed on 02.04.2011 and then on 25.04.2011 – No allegations against ‘E’ and ‘L’, companies till then – On 12.12.2011, CBI filing supplementary charge sheet against ‘E’ and ‘L’ for offences under Sections 420/120B IPC – No allegation under Act of 1988 – Vide orders dated 21.12.2011, Special Judge taking cognizance of offences against ‘E’ and ‘L’ on request of CBI – If taking of cognizance, notifications designating Special Judge under PC Act and by High Court are invalid, as beyond the provisions of Cr.P.C. – If taking cognizance is against the statutory provisions as valuable rights would be jeopardised. Held that accused ‘E’ and ‘L’ though charged under Sections 420, 120B IPC, offences are alleged to have been committed in the course of 2G Scam. Hence, they can be tried by Special Judge. A.R. Antulay’s, Gangula Ashok’s [JT 2000 (1) SC 379], Vivek Gupta’s [JT 2003 (Suppl.1) SC 614] cases referred and relied upon.
Articles 32, 136, 142 – Writ under – Orders passed by Supreme Court under Articles 136/142 – Assailing of such order under Article 32. Held, is not permissible. Rupa Ashok Hurra’s [JT 2002 (3) SC 609] case relied upon. (Paras 28, 29)
Held:
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 attempt to commit or any abetment of any of the offences specified under the PC Act can also be tried by a Special Judge. Sub section (3) of Section 4 specifies that when trying any case, a Special Judge can also try any offence, other than an offence specified in Section 3, with which the accused may, under the Cr.P.C., be charged at the same trial. (Para 17)
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. (Para 18)
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 committed. (Para 19)
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.. (Para 20)
From the second charge-sheet it is clear that the offence alleged to have been committed by the petitioners in the course of 2G Scam Cases. For the said reason they have been made accused in the 2G Scam Case. (Para 21.2.)
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-accused in the said 2G Scam case. In this background Section 220 of Cr.P.C. will apply and the petitioners though accused of different offences i.e. under Section 420/120-B IPC, which alleged to have been committed in the course of 2G Spectrum transactions, under Section 223 of Cr. P.C. they may be charged and can be tried together with the other co-accused of 2G Scam cases. (Para 21.3.)
2G Scam case is triable by the Special Judge against the persons accused of offences punishable under the PC Act in view of sub-Section (1) of Section 4. The Special Judge alone can take the cognizance of the offence specified in sub-Section (1) of Section 3 and conspiracy in relation to them. While trying any case, the Special Judge may also try an offence other than the offence specified in sub-Section (1) of Section 3, in view of sub-Section (3) of Section 4. A magistrate cannot take cognizance of offence as specified in Section 3(1) of the PC Act. In this background, as the petitioners have been shown as co-accused in second-supplementary charge-sheet filed in 2G Scam case, it is open to the Special Judge to take cognizance of the offence under Section 120-B and Section 420 IPC. (Para 25)
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 the 2G Scam case(s). (Para 26.1)
Cases Reffered:
1. Vivek Gupta v. Central Bureau of Investigation [JT 2003 (Suppl.1) SC 614] (referred & relied upon) (Para 24)
2. Rupa Ashok Hurra v. Ashok Hurra and another [JT 2002 (3) SC 609] (relied upon) (Para 29)
3. Gangula Ashok v. State of A.P. [JT 2000 (1) SC 379] (referred & relied upon) (Para 23)
4. A.R. Antulay v. Ramdas Sriniwas Nayak [1984 (2) SCC 500] (referred & relied upon) (Para 22)
2. Rupa Ashok Hurra v. Ashok Hurra and another [JT 2002 (3) SC 609] (relied upon) (Para 29)
3. Gangula Ashok v. State of A.P. [JT 2000 (1) SC 379] (referred & relied upon) (Para 23)
4. A.R. Antulay v. Ramdas Sriniwas Nayak [1984 (2) SCC 500] (referred & relied upon) (Para 22)
JUDGEMENT:
SUDHANSU JYOTI MUKHOPADHAYA, J.
1. Feeling 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 challenging the said order dated 21st December, 2011, Administrative Order dated 15th March, 2011 passed by the Delhi High Court and Notification dated 28th March, 2011 passed by the Government of National Capital Territory of Delhi (for short NCT of Delhi) designating Mr. Om Prakash Saini as Special Judge to undertake the trial of cases in relation to all matters pertaining to 2G Spectrum case (commonly known as 2G Scam case) exclusively. One of the writ petitions has been filed by an individual and two other writ petitions have been preferred by two Companies who are all accused in 2G Scam case.
2. The factual matrix of the case is given in brief as under:
2.1. Acting on various complaints pursuant to grant of UAS licences in 2008, the Central Vigilance Commission after conducting a preliminary inquiry entrusted investigation of the case to the CBI. After preliminary investigation, on 21.10.2009, the CBI lodged FIR RC No. DAI-2009-A-0045 against unknown officers of the Department of Telecommunications and unknown private persons/companies and others for causing wrongful loss to the Government by criminal misconduct and criminal conspiracy in distribution of UAS licences in January, 2008. Subsequently, a Public Interest Litigation was filed before the Delhi High Court, in Writ Petition (C) No.3522 of 2010, inter alia, alleging that the FIR filed by the CBI on 21.10.2009 was not being investigated and thereby praying that the CBI be directed to investigate the same. The said writ petition was dismissed by the Delhi High Court on 25.5.2010.
3. Against the order of dismissal, the petitioner of the said case, Centre for Public Interest Litigation (for short, CPIL), filed SLP(C) No.24873 of 2010, wherein this Court by order dated 16th December, 2010 granted leave (C.A.No.10660 of 2010) and decided to monitor the investigation, [reported in [2011 (1) SCC 560].
4. In the said case by order dated 10.2.2011, this Court indicated that a separate Special Court should be established to try the case(s) relating to 2G Spectrum. The said part of the above order is quoted hereunder:
We also indicated to the learned Attorney General that a separate Special Court should be established to try the case(s) relating to 2G Spectrum. The learned Attorney General responded to this by stating that he may be given two weeks time to consult the concerned authorities and make a statement on this issue.
5. Pursuant to aforesaid observation, the Delhi High Court issued impugned Administrative order dated 15.3.2011 nominating one Mr. Om Prakash Saini as Special Judge to try cases of 2G Scam exclusively.
6. Another order was passed by this Court on 16.3.2011 inter alia directing;
At the commencement of hearing, learned Attorney General placed before the Court letter dated 14.03.2011 sent to him by the Registrar General of the High Court of Delhi conveying the decision taken by the High Court to nominate Shri O.P. Saini, an officer of Delhi Higher Judicial Service, who is presently posted as Special Judge (PC Act) (CBI)-2, New Delhi, Patiala House Courts as the Special Judge to undertake the trial of cases in relation to all matters pertaining to what has been described as 2G Scam exclusively.
Learned Attorney General gave out that he would ensure that two separate notifications are issued by the Central Government in terms of Section 3(1) of the Prevention of Corruption Act, 1988 and Section 43(1) of the Prevention of Money Laundering Act, 2002 for establishment of the Special Court to exclusively try the offences pertaining to what has been termed as 2G Scam and other related offences. Learned Attorney General submitted that appropriate notifications will be issued on or before 29.3.2011.
7. Pursuant to the above-said order the Government of N.C.T. of Delhi exercising its power under Section 3(1) of the Prevention of Corruption Act, 1988 (for short the PC Act) by notification dated 28.3.2011 designated Mr. Om Prakash Saini as Special Judge to undertake the trial of cases in relation to all matters pertaining to 2G Scam case exclusively.
8. Administrative side of the Delhi High Court, thereafter, issued an allocation list on 1.4.2011 whereby Mr. Om Prakash Saini (P.C. Act) (CBI-4) PHC was designated as Special Judge in a new court to deal with matters pertaining to the 2G Scam cases exclusively.
9. CBI initially filed a charge sheet on 2nd April, 2011 against nine accused persons and thereafter on 25th April, 2011 filed a supplementary charge-sheet against some more accused persons. No allegations were made against the petitioners in any of the charge-sheets. 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 Prosecutor ordered as follows:
We also make it clear that any objection about the appointment of Special Public Prosecutor or his assistant advocates or any prayer for staying or impeding the progress of the Trial can be made only before this Court and no other Court shall entertain the same. The trial must proceed on a day-a-day basis.
11. Subsequently, the CBI filed second supplementary chargesheet on 12.12.2011 against the petitioner(s) and other accused persons for the alleged commission of offences under Section 420/120-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 second supplementary chargesheet dated 12.12.2011 and the petitioner(s) and others were summoned.
12. According to the petitioner(s), the CBI in its chargesheet dated 12.12.2011 admits that the chargesheet is being filed regarding a separate offence under Section 420/120-B 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 the matter. Paragraphs 73 and 74 of the chargesheet read as under:
73. This final report under Section 173(8) Cr. P.C. is being filed regarding a separate offence which came to notice during investigation of the FIR No. RC DAI 2009 A 0045 (2G Spectrum Case), which is pending before Honble Special Judge (2G Spectrum Cases), Patiala House Courts, New Delhi and a final report dated 02.04.2011 and supplementary final report dated 25.04.2011 were earlier filed in the same FIR.
74. In terms of the Notification No.6/05/2011-Judl./363-367 dated 28.03.2011 issued by Govt. of NCT of Delhi this Honble Court has been designated to undertake the trial of cases in relation to all matters pertaining to 2G Scam exclusively in pursuance of the orders of the Supreme Court, although offences alleged to have been committed by accused persons sent up for trial are triable by the Magistrate of first class. It is, therefore, prayed that cognizance of the aforesaid offences may be taken or the final report may be endorsed to any other appropriate court as deemed fit and thereafter process may be issued to the accused persons for their appearance and to face the trial as per Law.
13. The learned Special Judge, thereafter, took cognizance vide impugned order dated 21.12.2011. The relevant portion of the said impugned order reads as under:
2. Ld. Spl. PP further submits that the accused have been charged with the commission of offence, which are triable, by the Court of Metropolitan Magistrate. It is further submitted that this second supplementary charge sheet also arises from the aforesaid RC bearing No. DAI2009A0045/CBI/ACB/ND, titled as CBI v. A.Raja & others, arose and is pending trial. He further submits that since this case also arises from the same FIR, it is to be tried by this Court alone. He has further invited my attention to an order dated 15.03.2011, passed by the Honble High Court, whereby the undersigned was nominated as Special Judge by the Honble High Court to exclusively try cases of 2G Scam.
3. Accordingly, the trial of this second supplementary charge sheet shall be held in this Court. A copy of the order dated 15.03.2011 be placed on the file.
14. Learned counsel for the petitioner(s) assailed the impugned Administrative Order passed by the Delhi High Court dated 15th March, 2011 and the Notification dated 28th March, 2011 issued by the Government of NCT Delhi on the following grounds:
(a) The impugned notification travels beyond the provisions of the Cr.PC. The Cr.PC mandates that offences under the IPC ought to be tried as per its provisions.
(b) It has been held by this Honble Court in the case of CBI v. Keshub Mahindra reported in [JT 2011 (5) SC 490] that, No decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code. Thus, the Administrative order and Notification are contrary to the well-settled provisions of law and ought to be set aside in so far as they confer jurisdiction on a Special Judge to take cognizance and hold trial of matters not pertaining to PC Act offences.
(c). If the offence of Section 420 IPC, which ought to be tried by a Magistrate, is to be tried by a Court of Sessions, a variety of valuable rights of the petitioner would be jeopardised. This would be contrary to the decision of the Constitutional Bench of the Honble Supreme Court in the case of A.R. Antulay v. R.S. Nayak reported in [JT 1988 (2) SC 408], wherein it was acknowledged that the right to appeal is a valuable right and the loss of such a right is violative of Article 14 of the Constitution of India.
15. Mr. Harin P. Rawal, learned Additional Solicitor of India appearing on behalf of the CBI made the following submissions:
a). The orders of the Hon’ble Supreme Court directing the setting up of the Special Court for 2G Scam cases were pursuant to its powers under Articles 136 and 142 of the Constitution, which made it clear that all the cases arising out of this Scam would be tried by the Special Court so constituted.
b). The Administrative Order of the High Court of Delhi setting up the Special Court is pursuant to its powers under Section 194 Cr.P.C., which empowers the High Court to direct, by special or general order, an additional Sessions Judge to try certain cases. Section 194 of Cr.P.C. is reproduced as below:
Section 194. Additional and Assistant Sessions Judges to try cases made over to them- An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.
c) Both Section 4(3) of the PC Act and Section 43(2) of the Prevention of Money-Laundering Act 2002 empower the Special Court to try any other offences that may be taken cognizance of under the Cr.P.C.. In this view of events, the cognizance taken by the Special Court of the charge-sheet filed against the accused was valid.
d) The Second Supplementary charge-sheet which makes out offences against the present accused arises out of FIR No. RC DAI 2009 A 0045 registered by the CBI on 21.10.2009, out of which the earlier charge-sheets have been filed, and cognizance taken by the Special Court. An anomalous situation would be created if various accused charged with offences arising out of the same FIR were to be tried by different courts on the flimsy ground that some of them are only charged of offences arising out of the IPC and not the special statutes under which other charges are laid.
e) Higher courts can try an offence in view of Section 26 of Cr.P.C. and no prejudice should be caused if the case is tried by a Special Judge. By virtue of Administrative Order passed by the Delhi High court and Notification issued by the Government of NCT, Delhi, the learned Special Judge is not divested of his jurisdiction which he otherwise possesses under Section 26 of the Cr.P.C. to try offence under IPC. The Section reads as follows:
26. Courts by which offences are triable.- Subject to the other provisions of this Code,-
(a) Any offence under the Indian Penal Code (45 of 1860) may be tried by-
i) The High Court, or
ii) The Court of Session, or
iii) Any other court by which such offence is shown in the First Schedule to be triable;
(b) Any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no court is so mentioned, may be tried by
i) The High Court, or
ii) Any other court by which such offence is shown in the First Schedule to be triable.
16. Mr. Prashant Bhushan, learned counsel for the CPIL, submitted that a Special Judge has the power to try offences under the IPC and no challenge can be made against this power. It was further submitted that in view of the order passed by this Court in 2G Scam case, it is not open to the petitioners to approach any other Court to commence the trial.
17. A mere perusal of Section 3 read with Section 4 of the PC Act clearly mandates that apart from an offence punishable under the PC Act, any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the PC Act can also be tried by a Special Judge. Sub section (3) of Section 4 specifies that when trying any case, a Special Judge can also try any offence, other than an offence specified in Section 3, with which the accused may, under the Cr.P.C., be charged at the same trial. Sections 3 and 4 of the PC Act read as under:
3. Power to appoint special Judges-(1) The Central Government or the State Government may, by notification in theOfficial Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group ofcases as may be specified in the notification to try the following offences, namely:
(a)any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified inclause (a).
(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a SessionsJudge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).
4. Cases triable by special Judges – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in 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 only.
(2) Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.
(3) When trying any case, a special Judge may also try any offence, other than an offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.
18. Section 22 of PC Act provides that provisions of the Cr.P.C., shall in their application to any proceeding in relation to an offence punishable under the Act to apply subject to certain modifications. It is, therefore, apparent that provisions of the Cr.P.C. are to be applied to trials for offence under the PC Act, subject to certain modifications.
19. Section 220 of the Cr.P.C. relates to trial for more than one offence, if, in one series of acts so connected together as to form the same transaction more offence than one are committed and provides as follows:
220 – Trial for more than one offence – (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of properly as provided in 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 at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860).
20. Persons accused of different offences committed in the course of the same transaction may be charged jointly as per Section 223 of the Cr.P.C., which reads as under:
223 – What persons may be charged jointly.- The following persons may be charged and tried together, namely:
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
1. Feeling 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 challenging the said order dated 21st December, 2011, Administrative Order dated 15th March, 2011 passed by the Delhi High Court and Notification dated 28th March, 2011 passed by the Government of National Capital Territory of Delhi (for short NCT of Delhi) designating Mr. Om Prakash Saini as Special Judge to undertake the trial of cases in relation to all matters pertaining to 2G Spectrum case (commonly known as 2G Scam case) exclusively. One of the writ petitions has been filed by an individual and two other writ petitions have been preferred by two Companies who are all accused in 2G Scam case.
2. The factual matrix of the case is given in brief as under:
2.1. Acting on various complaints pursuant to grant of UAS licences in 2008, the Central Vigilance Commission after conducting a preliminary inquiry entrusted investigation of the case to the CBI. After preliminary investigation, on 21.10.2009, the CBI lodged FIR RC No. DAI-2009-A-0045 against unknown officers of the Department of Telecommunications and unknown private persons/companies and others for causing wrongful loss to the Government by criminal misconduct and criminal conspiracy in distribution of UAS licences in January, 2008. Subsequently, a Public Interest Litigation was filed before the Delhi High Court, in Writ Petition (C) No.3522 of 2010, inter alia, alleging that the FIR filed by the CBI on 21.10.2009 was not being investigated and thereby praying that the CBI be directed to investigate the same. The said writ petition was dismissed by the Delhi High Court on 25.5.2010.
3. Against the order of dismissal, the petitioner of the said case, Centre for Public Interest Litigation (for short, CPIL), filed SLP(C) No.24873 of 2010, wherein this Court by order dated 16th December, 2010 granted leave (C.A.No.10660 of 2010) and decided to monitor the investigation, [reported in [2011 (1) SCC 560].
4. In the said case by order dated 10.2.2011, this Court indicated that a separate Special Court should be established to try the case(s) relating to 2G Spectrum. The said part of the above order is quoted hereunder:
We also indicated to the learned Attorney General that a separate Special Court should be established to try the case(s) relating to 2G Spectrum. The learned Attorney General responded to this by stating that he may be given two weeks time to consult the concerned authorities and make a statement on this issue.
5. Pursuant to aforesaid observation, the Delhi High Court issued impugned Administrative order dated 15.3.2011 nominating one Mr. Om Prakash Saini as Special Judge to try cases of 2G Scam exclusively.
6. Another order was passed by this Court on 16.3.2011 inter alia directing;
At the commencement of hearing, learned Attorney General placed before the Court letter dated 14.03.2011 sent to him by the Registrar General of the High Court of Delhi conveying the decision taken by the High Court to nominate Shri O.P. Saini, an officer of Delhi Higher Judicial Service, who is presently posted as Special Judge (PC Act) (CBI)-2, New Delhi, Patiala House Courts as the Special Judge to undertake the trial of cases in relation to all matters pertaining to what has been described as 2G Scam exclusively.
Learned Attorney General gave out that he would ensure that two separate notifications are issued by the Central Government in terms of Section 3(1) of the Prevention of Corruption Act, 1988 and Section 43(1) of the Prevention of Money Laundering Act, 2002 for establishment of the Special Court to exclusively try the offences pertaining to what has been termed as 2G Scam and other related offences. Learned Attorney General submitted that appropriate notifications will be issued on or before 29.3.2011.
7. Pursuant to the above-said order the Government of N.C.T. of Delhi exercising its power under Section 3(1) of the Prevention of Corruption Act, 1988 (for short the PC Act) by notification dated 28.3.2011 designated Mr. Om Prakash Saini as Special Judge to undertake the trial of cases in relation to all matters pertaining to 2G Scam case exclusively.
8. Administrative side of the Delhi High Court, thereafter, issued an allocation list on 1.4.2011 whereby Mr. Om Prakash Saini (P.C. Act) (CBI-4) PHC was designated as Special Judge in a new court to deal with matters pertaining to the 2G Scam cases exclusively.
9. CBI initially filed a charge sheet on 2nd April, 2011 against nine accused persons and thereafter on 25th April, 2011 filed a supplementary charge-sheet against some more accused persons. No allegations were made against the petitioners in any of the charge-sheets. 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 Prosecutor ordered as follows:
We also make it clear that any objection about the appointment of Special Public Prosecutor or his assistant advocates or any prayer for staying or impeding the progress of the Trial can be made only before this Court and no other Court shall entertain the same. The trial must proceed on a day-a-day basis.
11. Subsequently, the CBI filed second supplementary chargesheet on 12.12.2011 against the petitioner(s) and other accused persons for the alleged commission of offences under Section 420/120-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 second supplementary chargesheet dated 12.12.2011 and the petitioner(s) and others were summoned.
12. According to the petitioner(s), the CBI in its chargesheet dated 12.12.2011 admits that the chargesheet is being filed regarding a separate offence under Section 420/120-B 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 the matter. Paragraphs 73 and 74 of the chargesheet read as under:
73. This final report under Section 173(8) Cr. P.C. is being filed regarding a separate offence which came to notice during investigation of the FIR No. RC DAI 2009 A 0045 (2G Spectrum Case), which is pending before Honble Special Judge (2G Spectrum Cases), Patiala House Courts, New Delhi and a final report dated 02.04.2011 and supplementary final report dated 25.04.2011 were earlier filed in the same FIR.
74. In terms of the Notification No.6/05/2011-Judl./363-367 dated 28.03.2011 issued by Govt. of NCT of Delhi this Honble Court has been designated to undertake the trial of cases in relation to all matters pertaining to 2G Scam exclusively in pursuance of the orders of the Supreme Court, although offences alleged to have been committed by accused persons sent up for trial are triable by the Magistrate of first class. It is, therefore, prayed that cognizance of the aforesaid offences may be taken or the final report may be endorsed to any other appropriate court as deemed fit and thereafter process may be issued to the accused persons for their appearance and to face the trial as per Law.
13. The learned Special Judge, thereafter, took cognizance vide impugned order dated 21.12.2011. The relevant portion of the said impugned order reads as under:
2. Ld. Spl. PP further submits that the accused have been charged with the commission of offence, which are triable, by the Court of Metropolitan Magistrate. It is further submitted that this second supplementary charge sheet also arises from the aforesaid RC bearing No. DAI2009A0045/CBI/ACB/ND, titled as CBI v. A.Raja & others, arose and is pending trial. He further submits that since this case also arises from the same FIR, it is to be tried by this Court alone. He has further invited my attention to an order dated 15.03.2011, passed by the Honble High Court, whereby the undersigned was nominated as Special Judge by the Honble High Court to exclusively try cases of 2G Scam.
3. Accordingly, the trial of this second supplementary charge sheet shall be held in this Court. A copy of the order dated 15.03.2011 be placed on the file.
14. Learned counsel for the petitioner(s) assailed the impugned Administrative Order passed by the Delhi High Court dated 15th March, 2011 and the Notification dated 28th March, 2011 issued by the Government of NCT Delhi on the following grounds:
(a) The impugned notification travels beyond the provisions of the Cr.PC. The Cr.PC mandates that offences under the IPC ought to be tried as per its provisions.
(b) It has been held by this Honble Court in the case of CBI v. Keshub Mahindra reported in [JT 2011 (5) SC 490] that, No decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code. Thus, the Administrative order and Notification are contrary to the well-settled provisions of law and ought to be set aside in so far as they confer jurisdiction on a Special Judge to take cognizance and hold trial of matters not pertaining to PC Act offences.
(c). If the offence of Section 420 IPC, which ought to be tried by a Magistrate, is to be tried by a Court of Sessions, a variety of valuable rights of the petitioner would be jeopardised. This would be contrary to the decision of the Constitutional Bench of the Honble Supreme Court in the case of A.R. Antulay v. R.S. Nayak reported in [JT 1988 (2) SC 408], wherein it was acknowledged that the right to appeal is a valuable right and the loss of such a right is violative of Article 14 of the Constitution of India.
15. Mr. Harin P. Rawal, learned Additional Solicitor of India appearing on behalf of the CBI made the following submissions:
a). The orders of the Hon’ble Supreme Court directing the setting up of the Special Court for 2G Scam cases were pursuant to its powers under Articles 136 and 142 of the Constitution, which made it clear that all the cases arising out of this Scam would be tried by the Special Court so constituted.
b). The Administrative Order of the High Court of Delhi setting up the Special Court is pursuant to its powers under Section 194 Cr.P.C., which empowers the High Court to direct, by special or general order, an additional Sessions Judge to try certain cases. Section 194 of Cr.P.C. is reproduced as below:
Section 194. Additional and Assistant Sessions Judges to try cases made over to them- An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.
c) Both Section 4(3) of the PC Act and Section 43(2) of the Prevention of Money-Laundering Act 2002 empower the Special Court to try any other offences that may be taken cognizance of under the Cr.P.C.. In this view of events, the cognizance taken by the Special Court of the charge-sheet filed against the accused was valid.
d) The Second Supplementary charge-sheet which makes out offences against the present accused arises out of FIR No. RC DAI 2009 A 0045 registered by the CBI on 21.10.2009, out of which the earlier charge-sheets have been filed, and cognizance taken by the Special Court. An anomalous situation would be created if various accused charged with offences arising out of the same FIR were to be tried by different courts on the flimsy ground that some of them are only charged of offences arising out of the IPC and not the special statutes under which other charges are laid.
e) Higher courts can try an offence in view of Section 26 of Cr.P.C. and no prejudice should be caused if the case is tried by a Special Judge. By virtue of Administrative Order passed by the Delhi High court and Notification issued by the Government of NCT, Delhi, the learned Special Judge is not divested of his jurisdiction which he otherwise possesses under Section 26 of the Cr.P.C. to try offence under IPC. The Section reads as follows:
26. Courts by which offences are triable.- Subject to the other provisions of this Code,-
(a) Any offence under the Indian Penal Code (45 of 1860) may be tried by-
i) The High Court, or
ii) The Court of Session, or
iii) Any other court by which such offence is shown in the First Schedule to be triable;
(b) Any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no court is so mentioned, may be tried by
i) The High Court, or
ii) Any other court by which such offence is shown in the First Schedule to be triable.
16. Mr. Prashant Bhushan, learned counsel for the CPIL, submitted that a Special Judge has the power to try offences under the IPC and no challenge can be made against this power. It was further submitted that in view of the order passed by this Court in 2G Scam case, it is not open to the petitioners to approach any other Court to commence the trial.
17. A mere perusal of Section 3 read with Section 4 of the PC Act clearly mandates that apart from an offence punishable under the PC Act, any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified under the PC Act can also be tried by a Special Judge. Sub section (3) of Section 4 specifies that when trying any case, a Special Judge can also try any offence, other than an offence specified in Section 3, with which the accused may, under the Cr.P.C., be charged at the same trial. Sections 3 and 4 of the PC Act read as under:
3. Power to appoint special Judges-(1) The Central Government or the State Government may, by notification in theOfficial Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group ofcases as may be specified in the notification to try the following offences, namely:
(a)any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified inclause (a).
(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a SessionsJudge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).
4. Cases triable by special Judges – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in 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 only.
(2) Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.
(3) When trying any case, a special Judge may also try any offence, other than an offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.
18. Section 22 of PC Act provides that provisions of the Cr.P.C., shall in their application to any proceeding in relation to an offence punishable under the Act to apply subject to certain modifications. It is, therefore, apparent that provisions of the Cr.P.C. are to be applied to trials for offence under the PC Act, subject to certain modifications.
19. Section 220 of the Cr.P.C. relates to trial for more than one offence, if, in one series of acts so connected together as to form the same transaction more offence than one are committed and provides as follows:
220 – Trial for more than one offence – (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of properly as provided in 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 at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860).
20. Persons accused of different offences committed in the course of the same transaction may be charged jointly as per Section 223 of the Cr.P.C., which reads as under:
223 – What persons may be charged jointly.- The following persons may be charged and tried together, namely:
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
