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IN THE HIGH COURT OF GAUHATI
RUMI KUMARI PHUKAN, J.
BM Paul Choudhury & Company (P) Ltd. and Ors - Appellant
Versus
Central Bureau of Investigation - Respondent
Crl. Pet. No. 71 of 2015
Decided On : 08-02-2019
Prevention of Corruption Act –Sections 13(2), 4(3) and 3(1) –Indian Penal Code –Sections 120(B), 420 and 34 –Criminal Procedure Code –Sections 397, 401, 482 –Jurisdiction –Learned senior counsel at length on the matter of jurisdiction of the Special Judge to try the offences under the 1988 Act, drawing attention of this court to the decision of the Apex Court in State through Central Bureau of Investigation, wherein law laid down that the Special Judge has no authority to try case of the accused who were not public servants and where the accused were not charged along with the offences under the PC Act – Learned senior counsel Mr. Das, however, basically questioned the jurisdiction of the learned Special Judge to try the offences under the Indian Penal Code, there being no public servant tried at the time of framing the charge –Held, In the case at hand it is found that the trial court split up the case at the time of framing charge and in that sense the trial court did not frame charge against the public servant, but proceeded to try the case after framing charge against the non public servants, the petitioners – In these circumstances, as soon as the court framed charge for the offences under the IPC, the court would have forwarded the case to the court of Magistrate having competent jurisdiction to try the case instead of proceeding for trial on its own as the law is laid down in Jitendra Singh (supra) –The provision is set at rest that the special Judge cannot exercise jurisdiction to deal with the non PC offences – Having heard learned counsel for both parties and considering the matters on record and the law laid down by the Apex Court as discussed above, the learned Special Judge is directed to forward the case to the court of the learned Special Judicial Magistrate, for favor of trial – Petition disposed of
JUDGMENT :
RUMI KUMARI PHUKAN, J.
1. Heard Mr. D. Das, learned senior counsel for the petitioner and Mr. S.C. Keyal, learned Asst. Solicitor General of India for the respondent.
2. By this petition u/s. 482 read with Sections 397 and 401 of the CrPC petitioners challenged legality and validity of the order of the learned Special Judge, CBI, Assam, Addl. CBI Court II, Guwahati dated 8.1.2015 in special case 8/2007 whereby charges are framed against the petitioners under Sections 120(B), 420 and 34 of the Indian Penal Code.
3. Sri Dilip Paul Choudhury(now dead) and Sri Binayak Paul Choudhury are the directors of the company which was awarded contract of construction of staff quarters (including earth filling) of Reserve Bank of India (RBI) at Guwahati at an estimated cost of Rs. 2,38,68,095.33. The entire project was supervised by the architect M/s. Designers' Guild, Guwahati. Payments of a total of 46 running bills which were certified by the architect were made to the petitioners by the RBI.
4. After completion of the entire work, based on source information that one Sri SB Bhowmik while working as Asst. Engineer in RBI at Guwahati entered into a criminal conspiracy with the petitioner company and others and in pursuance of such conspiracy caused an excess payment of Rs. 19 lakh to the petitioner company for earth filling in the site (Zoo Narangi Road) where the staff quarters. of RBI were constructed and caused wrongful pecuniary loss to the RBI, CBI on 30.11.1992 registered RC.32(A)/92-SHG u/s. 120(B)/420/468/471/477 (A) of the Indian Penal Code read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act and completing the investigation submitted chargesheet against the petitioners and other accused Santosh Kumar Srivastava, then Asst Engineer of RBI at Guwahati; Dilip Kr Bora, Indrajeet Baruah, Dilip Paul Choudhury and Binayak Paul Choudhury, but did not send the said Sri SB Bhowmik for trial as no evidence was found against him.
5. The learned trial court after hearing both sides and considering the statements of witnesses and the documents discharged petitioners holding that prima facie prosecution has failed to make out any case against them by the order dated 22.9.1997.
6. Prosecution challenged the said order in crl. revision petition 39/1998 and this court set aside the order and remanded the case to the trial court for fresh decision by the order dated 13.2006.
7. The learned trial court framed charges against the accused persons u/s. 120(B)/420/34 of the IPC by the order dated 8.1.2015. Hence this petition.
8. Petitioners submit that they are not public servants and since no charge was framed against any public servants the trial court lacks jurisdiction to frame charge against the private persons and try the case against them and said that no prima facie case to frame charge against them is made out in view of the admitted fact that RBI has already settled the matter of excess payment by deducting their payments involved in terms of the order in money suit 149/1992 filed by the RBI against them.
9. Learned senior counsel Mr. Das, however, basically questioned the jurisdiction of the learned Special Judge to try the offences under the Indian Penal Code, there being no public servant tried at the time of framing the charge. As the other grounds of challenge are not pressed before this court we will decide the crucial aspect of lack of jurisdiction of the learned Special Judge, CBI to try the offences under the Prevention of Corruption Act, 1988 (in short, PC Act 1988).
10. Learned senior counsel Mr. Das submitted at length on the matter of jurisdiction of the Special Judge to try the offences under the 1988 Act, drawing attention of this court to the decision of the Apex Court in State through Central Bureau of Investigation, New Delhi Vs. Jitendra Kumar Singh (2014) 11 SCC 724, wherein law laid down that the Special Judge has no authority to try case of the accused who were not public servants and where the accus
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