K.A. Kuttaiah v. Superintendent of Police, CBI/ACU, New Delhi; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933** **Crl.MC.No. 894 of 2011()** **-----------------------------** ## **SC.551/2010 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CP.2/2003 of CHIEF JUDL.MAGISTRATE, ERNAKULAM** **....................** ## **PETITIONER(S): ACCUSED** **-------------------------------** **K.A.KUTTAIAH, FLAT NO.302, 'AL-CAZAR' APPARTEMENTS, BANGALORE - 560 001.** **BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR** ## **RESPONDENT(S): COMPLAINANT** **--------------------------------------** **1. THE SUPERINTENDENT OF POLICE, CBI/ACU, NEW DELHI - 110 003.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 31.** **BY PUBLIC PROSECUTOR SRI.MANU** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **svs** ## **THOMAS P.JOSEPH, J.** **==================================== Crl. M.C. No.894 of 2011 ==================================== Dated this the 07[th] day of June, 2011** ## **O R D E R** Petitioner, originally was 4[th] accused in Crime No.RCAC1 2000A/0005 CBI/SPE/ACU New Delhi and presently the sole accused in S.C. No.551 of 2010 of the court of learned Special Judge for trial of CBI Cases-II, Ernakulam (for short, “the Special Judge”) facing trail for offences punishable under Sections 467, 471 and 420 of the Indian Penal Code. Originally the case was registered against 5 accused, including petitioner-4[th] accused for the above said offence and Section 13(2) and 13(1) (d) of the Prevention of Corruption Act (for short, “the Act”) allegation being that petitioner purchased property from the 5[th] accused, approached the State Bank of Travancore for a loan and in order to claim a higher amount by way of loan, fabricated documents to make it appear that the extent of property belonging to the petitioner is 564 acres as against the actual extent of 219.97 Acres and thereby committed the said offences. Accused 1 to 3 were Officials of the State Bank of Travancore. I am told that sanction under Section 19 of the Act was not accorded to **CRL.M.C. No.894 of 2011** -: 2 :- prosecute accused 1 to 3 and accordingly in the final report they were deleted from the array of accused. Along with that deletion offences under the Act were also deleted. In the meantime the 5[th] accused decided to turn approver, that was allowed and learned Chief Judicial Magistrate who is the authority authorized by the High Court as per Notification No.B1-13062/74 dated 10.12.1974 to deal with the matter recorded statement of the 5th accused and granted him pardon. Case against petitioner (sole accused) was committed to the court of learned Special Judge for trial of offences punishable under Secs.467, 471 and 420 of the IPC. Learned Special Judge (for trial of CBI cases) framed charge against petitioner for the said offences. Though before framing charge petitioner raised a contention that the committal is bad in that the 5[th] accused who turned approver was not examined as a witness as provided under Section 306(4) (a) of the Code of Criminal procedure (for short, “the Code”) learned Special Judge was not inclined to accept that contention and framed charge against petitioner. After framing of charge the prosecuting agency, the CBI filed a petition pointing out the illegality (which petitioner had pointed before framing charge). Learned Special ## **CRL.M.C. No.894 of 2011** ## -: 3 :- Judge made a reference to this Court under Sec.395 of the Code. This court passed Annexure-III, order in Crl.R.C. No.9 of 2009 on September 09, 2009 and found that non-examination of the 5[th] accused as required under Sec.306(4)(a) of the Code is fatal to the pardon accorded to the 5[th] accused, committal is also vitiated and accordingly set aside the order of committal. This Court directed learned Special Judge to send the entire records to the learned Chief Judicial Magistrate, Ernakulam and the Chief Judicial Magistrate was directed to commit the case after examining the 5[th] accused as a witness under Sec.306(4)(a) of the Code. Pursuant to Annexure-III, order learned Special Judge send the records to the court of learned Chief Judicial Magistrate vide Annexure-IV order dated October 21, 2009. Thereafter learned Chief Judicial Magistrate examined the 5[th] accused under Sec.306(4)(a) of the Code and committed the case to the learned Special Judge for trial invoking Sec.306(5)(a)(i) of the Code. Learned Special Judge issued summons to the petitioner (Annexure-VI is the copy). The challenge is to Annexure-V, order. It is contended by learned counsel that the committal suffers **CRL.M.C. No.894 of 2011** ## -: 4 :- from various illegalities. It is submitted that though accused 1 to 3 are deleted from the array of accused pursuant to the refusal of authorities concerned to accord sanction for their prosecution, fact remained that allegations regarding offences punishable under the Act also are involved in which case notwithstanding that accused 1 to 3 are not on record, trial of the case could only be by the Enquiry Commissioner and Special Judge. Reliance is placed on the decision of this Court in **Surendran v. State of Kerala** (1979 KLT 547). Further argument is that since no offence exclusively triable by the Special Judge who is a Sessions Judge is involved, learned Chief Judicial Magistrate was not correct in committing the case to the Special Judge. The offences charged against petitioner being tribale by a Magistrate of the First Class, the case should have been tried by the said court. It is also argued that petitioner was not heard before this Court passed Annexure-III, order. Learned counsel for the CBI contended that as per Annexure-I, order there is a direction to the learned Chief Judicial Magistrate to commit the case as provided under Sec.306(5)(a)(i) of the Code, learned Chief Judicial Magistrate was bound to comply with that order and so far as Annexure-III, order stands contention that the case should not ## **CRL.M.C. No.894 of 2011** ## -: 5 :- have been committed to the Special Judge cannot stand. It is further argued that whatever be the reason thereof, the only accused now facing trial is petitioner and that too, for offences under the IPC and hence trial by the Special Court (for PC Act cases) constituted under the Act is not required or warranted. It is submitted by learned counsel that even if it is assumed that offences now attributed to the petitioner are only under the IPC which are triable by a Magistrate of First the Class, it is not as if the Sessions court is denuded of power to try such offences, the only requirement being that there must be a committal of the case to the Sessions court. As such in the light of the order of committal passed by the learned Chief Judicial Magistrate there is nothing wrong or illegal in the learned Special Judge trying petitioner for the IPC offences. 2. I shall first refer to the contention that the case ought to have been committed to the Special Court constituted under the Act. In **Surendran v. State of Kerala** (supra) the Secretary of a Co-operative Society was charged with offences under Act as well as the IPC. The Secretary of the Co-operative Society came within the ambit of “public servant” within the meaning of the Act. The question arose whether he should be **CRL.M.C. No.894 of 2011** ## -: 6 :- prosecuted in the Special Court constituted under the Act by virtue of Section 6 of the Criminal Law Amendment Act, 1952. In paragraph 4 of the decision it is observed that if a person could be prosecuted for an offence under the Indian Penal Code and is being prosecuted for the same, such prosecution would not be bad merely because he has also committed an offence punishable under the Act but is not prosecuted for that offence. In that case the prosecution was for offences under the Indian Penal Code. In paragraph 5, argument of the learned counsel is highlighted. It is held that if a person could be tried by the Special Judge at one trial for an offence under the Act as well as an offence under the IPC, he cannot try an offence under the IPC alone if there be no trial for the offence under the Act. That decision has no bearing on the facts of the present case. Here, petitioner is not a public servant. Nor is it a case where petitioner is being tried for any offence punishable under the Act. Petitioner is a non-public servant prosecuted for offence under the IPC alone without the junction of any public servant. The power of Special Judge under the Act to try offences under the IPC is only when it is allied with offences punishable under the Act. That situation does not arise in this case. It is a different matter that originally the case **CRL.M.C. No.894 of 2011** -: 7 :- was registered for offences under the Act also involving public servants coming under the Act. Since that situation does not exist, contention that the case ought to have been committed to the Special Judge cannot be sustained. 3. Next Argument is that the case could not have been committed to the learned Special Judge (for trial of CBI cases). Learned counsel submitted that offences are not exclusively triable by a court of Sessions and that even if it is assumed that the case was to be committed, it ought to have been to the regular Sessions court and not to the Special Judge for trial of CBI cases. In that connection I have to refer to Sec.306(5) of the Code. Reading sub-section 5(a) of Sec.306 it is clear that Magistrate taking cognizance of the offence shall without making any further inquiry in the case.- “(a) commit it for trial- (i) to the court of Sessions if the offence is triable exclusively by that court or if the Magistrate taking cognizance is the Chief Judicial Magistrate (ii) to a court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952) if the offence is triable exclusively by that court; and **CRL.M.C. No.894 of 2011** -: 8 :- (b) in any other case make over the case to the Chief Judicial Magistrate who shall try the case himself.” 4. In the present case the order of pardon was granted by learned Chief Judicial Magistrate before whom the 5[th] accused was examined as a witness under Sec.306(4)(a) of the Code. That was done pursuant to Annexure-III, order of this court. The Chief Judicial Magistrate had therefore to commit the case to the Special Judge (for trial of CBI cases). 5. Then the question is whether instead of regular Sessions court the case should have been committed to the Special Judge. For trial of CBI cases. The Notification referred above say that with effect from April 01, 1974 the Chief Judicial Magistrate Ernakulam is appointed as the Judicial Magistrate of First Class also for all Districts of Kerala State with Head Quarters at Ernakulam to try or inquire into and commit to the court of Sessions all such cases arising in any local area within the State of Kerala in which investigation are made or charge sheets filed by the CBI. It is not disputed before me that the Court of Special Judge is the court designated for trial of cases charge sheeted by the CBI. That also is a court of Sessions. I must also ## **CRL.M.C. No.894 of 2011** ## -: 9 :- note that in Annexure-III, order direction issued by this Court to the Chief Judicial Magistrate was to commit the case (after compliance with Sec.306((4) (a) of the Code as provided under Sec.306(5)(a)(i) of the Code). 6. Bearing in mind that court of learned Special Judge is also a court of Sessions and that is the court designated for trial of cases charge sheeted by the CBI and in the light of Annexure-III, order I do not finding anything illegal in the learned Chief Judicial Magistrate committing the case to the court of Special Judge. I must also bear in mind that even if the offences charged against petitioner are triable by a Magistrate of First Class there is no bar in the Sessions court trying the case provided the case is committed to the said court. 7. Though learned counsel has challenged the correctness of Annexure-III, order which according to learned counsel was passed without hearing petitioner, that challenge cannot stand before this Court in this proceeding. 8. It is lastly argued by learned counsel that before committal proceedings were quashed, leaned Special Judge had granted bail to the petitioner and he was released at the crime stage. It is submitted that on account of committal proceeding ## **CRL.M.C. No.894 of 2011** ## -: 10 :- being quashed by this Court by Annexure-III, order the order granting bail by the learned Special Judge would stand quashed requiring petitioner who is now staying in Bangalore to again apply for bail before the learned Sessions Judge pursuant to Annexure-V, order of committal. It is open to the petitioner to urge before the Special Judge that if petitioner has already been granted bail at the crime stage, that would hold good until the trial is over and if necessary move appropriate application for bail. With the above observation this Criminal Miscellaneous Case is dismissed. Criminal Miscellaneous Application No.1759 of 2011 shall stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv