The Special Judge's jurisdiction to try non-PC offences is contingent on PC Act charges being framed; if no charges are present, a Magistrate must preside over those IPC offences.

ORDER :

A. BADHARUDEEN, J.

This Revision Petition is at the instance of State of Kerala represented by the Additional Public Prosecutor, High Court of Kerala, challenging Annexure 1 order, viz. order in Crl.M.P.No.930/2016 in C.C.No.116 of 2016, dated 30.06.2022. The respondent herein is the 3^rd accused in the above case.

2. Heard the learned Public Prosecutor, though no representation for the 1^st respondent/3^rd accused.

3. The prosecution case herein is that accused 1 to 3 committed offences punishable under Sections 409 , 465, 468, 471 and 120B of the Indian Penal Code (`IPC’ for short) as well as under Sections 13 (1)(c) and (d) read with 13(2) of the Prevention of Corruption Act, 1988 (`PC Act, 1988’ for short). Among the accused, the 1^st accused was the former Assistant Engineer, Block Development Office, Devikulam, the 2^nd accused was the Assistant Executive Engineer, Poverty Alleviation Unit, Idukki and the 3^rd accused was the PTA President of Government VHSS, Devikulam. Of them, the 1^st accused had died by 03.08.2012 and sanction to prosecute the 2^nd accused under Section 19 of the PC Act, 1988 was denied by the competent authority. Therefore, the 3^rd accused alone would face trial. On the above factual background, the Special Court considered Crl.M.P.No.930/2016 filed under Section 239 of the Code of Criminal Procedure (`Cr.P.C’ for short) by the 3^rd accused and finally without hearing on the discharge petition on merits , the learned Special Judge found that since no Prevention of Corruption Act offences were involved as far as the petitioner therein/the 3^rd accused was concerned, trial of the matter was relegated to a competent Magistrate and accordingly the case records were ordered to be transferred to the Chief Judicial Magistrate Court, Thodupuzha.

4. According to the learned Public Prosecutor appearing for the revision petitioner, the order passed by the learned Special Judge is against the settled law and it is pointed out that as per the decision reported in [2016 KHC 6541(SC)], HCL Infosystem Ltd. (M/s) and Another v. Central Bureau of Investigation and Another the Apex Court held in paragraphs 14 to 16 as under:

“14.While we do find that the observations of this Court in Jitender Kumar Singh (supra) in paragraphs 46 and 47 quoted above support the contention of Shri. Singh that the Special Judge, under S.4(3), could not try an offence other than that specified under S.3. The public servant was no more and the trial had not commenced. In view of the relied upon judgment in absence of PC Act charge, the appellants may not be liable to be tried before the Special Judge. However, we find two difficulties in accepting the submission of Shri. Singh as follows;

(i) As observed by the High Court, the charge is yet to be framed and the framing of charge under the PC Act from the material placed on record was not ruled out. Thus, the argument at this stage is pre-mature; and

(ii) The Special Judge was authorized not only to deal with the cases under the PC Act as was the position in the case before this Court in Jitender Kumar Singh (supra) but also for other offences. This course was permissible in view of law laid down by this Court in M/s. Essar Teleholdings Limited (supra).

15. In the present case, the Special Court in question has been constituted not only to deal with the cases of PC Act but also other cases relating to the NRHM scam. Procedure of Code of Criminal Procedure is applicable to trial before Special Judge and there is no prejudice to trial that is taking place before Special Judge duly appointed to deal with non- PC cases when the object of doing so was to try connected cases before same Court. Undoubtedly, while Special Judge alone could deal with cases under the PC Act, non- PC Act could also be allowed to be tried by the Special Judge under S.26 of the Code of Criminal Procedure . There is no legal bar to do so, as held by this Court in M/s.Essar Teleholdings Limited (supra).

16. In view of above distingui