Tr.P.(Crl.) No. 64 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** ## **THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939** ## **Tr.P(Crl.).No. 64 of 2016 ()** **-----------------------------** ## **CC 649/2005 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PALA TO VIGILANCE COURT, THRISSUR** **----------------** **PETITIONERS:** - **--------------------** **1. JOSSY VARGHESE S/O. T.J VARGHESE** - **THOPPIL HOUSE, KURISHMOODU CHAGNASSERY P.O., PINCODE-681104.** **2. JOSE M.J, S/O. M.O JOSEPH, ANAKKAL P.O, KANJIRAPALLY, PINCODE-686 507.** **3. GEORGE JOSEPH, S/O. M.V. JOSEPH MUNDAKATTIL HOUSE, ANANDASHRAMAM ROAD CHANGANASSERY P.O., VAZHAPPALLY EAST, PIN-681104.** **4. SIBY VARGHESE, S/O. P.J VARGHESE, CHERIVUKALAYIL HOUSE, NARANGANAM WEST P.O., KOZHENCHERRY, PINCODE-689 642.** **5. ROSAMMA SIBY, W/O. SIBY VARGHESE CHERIVUKALAYIL HOUSE, NARANGANAM WEST P.O., KOZHENCHERRY, PIN CODE-689 642.** ## **BY ADVS.SRI.P.VIJAYAKUMAR SRI.C.R.REGHUNATHAN SRI.B.HARRYLAL** **RESPONDENTS :** - **-----------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR** **2. DEPUTY SUPERINTEND OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU THRUSSUR.** ## **Tr.P(Crl.).No. 64 of 2016 ()** ## **------------------------------------** **3. SUB-INSPECTOR OF POLICE PALA.** **4. JOHN JOSEPH, S/O. JOHN, PERUNNOLIL HOUSE, KOZHATHADIYOOR KARA, LALAM VILLAGE,MEENACHIL TALUK KOTTAYAM DISTRICT-686 574.** ## **R1 TO R3 BY SENIOR PUBLIC PROSECUTOR** **SRI. SUMAN CHAKRAVARTHY (FOR DGP) ADV. SRI. V.C.SARATH (AMICUS CURIAE)** **THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 14-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **bp** **Tr.P(Crl.).No. 64 of 2016 () ------------------------------------** |**ANNEXURE A1:**|**COPY O THE COMPLAINT FILED BY THE R4**| |---|---| |**ANNEXURE A2:**|**COPY OF THE FINAL REPORT SUBMITTED**| ||**BEFORE JFCM COURT, PALA.**| |**ANNEXURE A3:**|**COPY OF THE CHARGE SHEET FILED BEFORE**| ||**VIGILANCE COURT, THRISSUR.**| |**RESPONDENT'S**|**ANNEUXRE**<br>**:**<br>**NIL.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| **bp** ## **[CR]** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` Tr.P.(Crl.) No.64 of 2016 C ````````````````````````````````````````````````````````````` _Dated this the 14[th] day of December, 2017_ ## **O R D E R** ~ ~ ~ ~ ~ ~ Can a case pending before a Judicial First Class Magistrate's Court be transferred to the Special Court(Vigilance) for trial along with a case pending before the Special Court(Vigilance)? 2. Petitioners seek for a transfer of CC.649/2005 of the Judicial First Class Magistrate's Court, Pala, to the Special Court(Vigilance), Thrissur, for trial along with CC.6/2014 pending before the Special Court(Vigilance), Thrissur. Tr.P.(Crl.).64/2016 : 2 : 3. For the same transaction, two crimes were registered; one by the local police and one by the vigilance. Two final reports were filed, which culminated in CC.649/2005 of the Judicial First Class Magistrate's Court, Pala and CC.6/2014 of the Special Court(Vigilance), Thrissur. Matters in controversy are the same in both the cases. 4. In the final report relating to CC.649/2005, there are five accused namely, Jossy Varghese, Jose M.J., George Joseph, Siby Varghese and Rosamma. In the final report relating to CC.6/2014, there are altogether 16 accused, out of whom A1 to A4 and A10 to A16 are the officers of KFC and they are charged with offences under the Prevention of Corruption Act, 1988(“PC Act”, for short). A5 to A9 in CC.6/2014 are the very same accused in CC.649/2005, that too, in the very same order in which they are arraigned in CC.649/2005. Tr.P.(Crl.).64/2016 : 3 : 5. Heard learned counsel for the petitioner, learned Senior Public Prosecutor and learned Amicus Curiae appointed by this Court Sri.V.C.Sarath. 6. The question to be considered is whether the Special Court can try the case charge-sheeted by the local police along with the case charge-sheeted by the vigilance. As per Section 3 of the PC Act, a Special Judge can try any offence punishable under the PC Act and any conspiracy to commit or any attempt to commit or any abetment of any of the offences under the PC Act. As per Section 4(1) of the PC Act, the said offences shall be tried by Special Judges only. As per Section 4(3) of the PC Act, 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, be charged at 'the same trial'. On a literal interpretation of Section 4(3), it may appear that any offence other than the offence under Tr.P.(Crl.).64/2016 : 4 : the PC Act can be tried by the Special Court, only when the same forms part of the very same case in which the offence under the PC Act is incorporated. 7. Here is a situation wherein two parallel proceedings are there at least among five accused persons. The aforesaid five accused persons are common in both the cases. If separate proceedings are proceeded with in these two cases against the very same accused for the very same transaction, it may lead to hazardous consequences. In such case, the only way out is that both the cases should be tried by the same court and it should be tried together. At the same time, much discussion is not required to conclude that the Judicial First Class Magistrate's Court is not empowered to try CC.6/2014, when it involves the offence under the PC Act along with the offences under the Indian Penal Code. Now, the question to be considered is whether the Special Court can try CC.649/2005 in which the offences Tr.P.(Crl.).64/2016 : 5 : under the Indian Penal Code alone are incorporated, along with CC.6/2014. 8. On a literal interpretation of Section 4(3) of the PC Act, it may appear that the Special Court cannot try the case investigated by the local police and a case in which the offence under the PC Act is not incorporated. Therefore, in order to solve that problem, the procedure to be contemplated under Section 223 Cr.P.C. has to be taken note of. 9. Section 223 Cr.P.C. says- _“_ _**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;_ Tr.P.(Crl.).64/2016 : 6 : **==> picture [220 x 16] intentionally omitted <==** _(d) persons accused of different offences committed in the course of the same transaction;_ _(e) - (g) * * * “_ 10. As per Section 223(a) Cr.P.C., persons accused of the same offence committed in the course of the same transaction may be charged and tried together. The next question to be considered is, when they were not charged together, whether they can be tried together? This is a case wherein all the said accused persons including the accused persons in the police charge are jointly charged together in the final report filed by the vigilance. Therefore, it has to be noted that all the accused persons, including the petitioners herein, are charged together in CC.6/2014. 11. When the police have investigated the matter and filed a final report against the petitioners, which has culminated in CC.649/2005 in respect of the offences Tr.P.(Crl.).64/2016 : 7 : punishable under the Indian Penal Code alone, the said final report cannot be thrown out. The investigating agency has applied its mind and conducted an investigation. Therefore, the benefits, if any, derived to the accused or the de facto complainant in such an investigation cannot be denied to the respective parties, while trying the offences involved in CC.6/2014. 12. The learned Amicus Curiae as well as the learned Senior Public Prosecutor have relied on the decision in _**Vivek Gupta v. Central Bureau of Investigation and another** [(2003) 8 SCC 628]_ , wherein it was held in paragraphs 9 and 10 as follows:- _“9. 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, attempt or abetment to commit an offence under the Act shall be tried by a Special Judge appointed in_ Tr.P.(Crl.).64/2016 : 8 : _accordance with Section 3 of the Act. Subsection (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 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 of Criminal Procedure, the accused may be charged at the same trial. Thus 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._ _10. We have earlier reproduced the provisions of Section 220 of the Code. The aforesaid section will clearly apply to the_ Tr.P.(Crl.).64/2016 : 9 : _case of the co-accused who undoubtedly must be tried by the Special Judge for the offence under Section 120B read with Section 420 IPC, 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 IPC of which they have been charged were committed in the course of the same 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 “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_ Tr.P.(Crl.).64/2016 : 10 : _charged of any offence specified in Section 3 of the Act, his case will not be covered by sub-section (3) of Section 4.“_ 13. Even though the question, which had arisen in _**Vivek Gupta**_ (supra) was whether a person, against whom the offences under the Indian Penal Code alone are alleged, can be tried along with an accused, against whom the offence under the PC Act is alleged, the discussions made by the Apex Court clearly reveal that when transaction is one and the same, and the said transaction has given rise to offences under the PC Act on some of the accused and other offences under the Indian Penal Code against some other accused, and in such case those accused have to be tried together within the scope of Section 223 Cr.P.C. It was held that Section 3(4) of the PC Act will not stand in the way of such a trial, and that is evident from Section 223(d) Cr.P.C., which says- Tr.P.(Crl.).64/2016 : 11 : _“Persons accused of different offences committed in the course of the same transaction are also to be charged and tried together.”_ 14. The scope of Sections 223(a) and 223(d) Cr.P.C. was considered in _**Vivek Gupta**_ (supra). _**Vivek Gupta**_ (supra) was followed by the Apex Court again in _**Essar Teleholdings Ltd. v. Registrar General, Delhi High Court**_ _[AIR 2013 SC 2300]_ , wherein it was held in paragraph 25 as follows:- _“Admittedly, 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 subSection (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)_ Tr.P.(Crl.).64/2016 : 12 : _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 chargesheet filed in 2G Scam case, it is open to the Special Judge to take cognizance of the offence under Section 120B and Section 420 IPC.”_ 15. In _**State through Central Bureau of Investigation, New Delhi v. Jitender Kumar Singh** [(2014)_ _11 SCC 724]_ , it was held that a Special Judge appointed to try the PC Act cases cannot try non-Prevention of Corruption Act cases, unless there is a casual link between such cases and the PC Act cases, in which case they must be tried together. It was held in _**Jitender Kumar Singh**_ (supra) that a conjoint reading of Section 3(1) along with Sections 4(1) and (2) would make it amply clear that only the Special Tr.P.(Crl.).64/2016 : 13 : Judge has got the jurisdiction to try the offences specified in sub-Section (1) of Section 3 committed by a public servant or a non-public servant, alone or jointly. 16. The very same view has been taken by the Apex Court in _**HCL Infosystem Ltd. v. Central Bureau of Investigation** [2016 (3) KLT 722 (SC)]_ also. 17. The scope of Section 223(d) Cr.P.C. (old Section 239(d) Cr.P.C.) was considered by a Three Judges' Bench of the Supreme Court in _**Kadiri Kunhahammad v. The State of Madras** [AIR 1960 SC 661]_ , wherein it was held that for a joint trial, what has to be considered is that the criminal court has to consider the nature of the accusation made by the prosecution and whether there is anything to suggest that, though the accusation made by the prosecution would justify a joint trial of more persons than one, the validity of such a trial cannot be effectively challenged, if the said accusation is not established according to law. Tr.P.(Crl.).64/2016 : 14 : 18. As per Section 407(1)(ii) Cr.P.C., whenever it is made to appear to the High Court that any particular case has to be transferred from a Criminal Court subordinate to its authority to any other such criminal court of equal or superior jurisdiction, the High Court has the power to order such a transfer. 19. The next question to be considered is whether this Court can order such a transfer of a case pending before a Judicial First Class Magistrate's Court to the Special Court, and whether the Special Court can be treated as 'another criminal court'? A court of session is also a criminal court within the meaning of the Code of Criminal Procedure. As per Section 5(1) of the PC Act, a Special Judge has to follow the procedure prescribed by the Code of Criminal Procedure, for the trial of warrant cases by the Magistrate. Therefore, when trying an offence punishable under the PC Act, the Special Judge is invoking the very Tr.P.(Crl.).64/2016 : 15 : same powers of a Judicial First Class Magistrate's Court in trying a warrant case on a police report. Therefore, the Special Court can also be classified as a criminal court. Over and above it, Section 5(3) of the PC Act says that save as provided in sub-Section (1) or sub-Section (2), the Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor. When Section 5(1) says that it should be a warrant trial in the case of an offence under the PC Act, when trying that offence, a Special Judge cannot be classified as a Sessions Judge. If at all he is classified as a Sessions Judge, the Sessions Judge is invested with the power to conduct a warrant trial on a police report. 20. Section 5(4) of the PC Act says that for the purpose of the provisions of the PC Act, without prejudice to the generality of the provisions contained in Section 5(3), a Tr.P.(Crl.).64/2016 : 16 : Special Judge shall be deemed to be a Magistrate. When the Special Judge is invested with the powers to conduct a warrant trial, the Special Judge shall be deemed to be a Magistrate when he is invoking the said powers. Therefore, there is no impediment in transferring a case from the Judicial First Class Magistrate's Court to the Special Court by invoking the power under Section 407(1)(ii) Cr.P.C. 21. The procedure to be contemplated in case of such transfer and as to how joint trial has to be made, have been dealt with in _**Peter v. Kurian** [1994 (1) KLT 17]_ . The Special Judge has to treat the case before it, which involves the offence under the PC Act as the main case, in which evidence has to be recorded. All the witnesses cited in these two cases should be examined. The same should be disposed of by a common judgment. In the result, this Tr.P.(Crl.) is allowed and CC.649/2005 of the Judicial First Class Magistrate's Court, Tr.P.(Crl.).64/2016 : 17 : Pala, is transferred to the Special Court(Vigilance), Thrissur, for trial along with CC.6/2014 pending before that court. This Court records its deep appreciation to the valuable assistance rendered by the learned Amicus Curiae. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/14/12 _// True Copy //_ _PS to Judge_