Point of Law: Where jurisdiction of a court or a tribunal is dependent on existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to merits of issue. The existence of a jurisdictional fact is thus a sine qua non or condition precedent to assumption of jurisdiction by a court.

JUDGMENT :

KARUNESH SINGH PAWAR, J.

1. Heard Ms. Shagun Srivastava and Mr. Sudhanshu Shekhar Tripathi, learned counsel for the petitioner and Shri Anurag Kumar Singh, learned counsel for the Central Bureau of Investigation.

2. Brief facts of the case are that the First Information Report was lodged on 23.03.2010 against the co-accused persons under sections 120B, 420, 467, 468, 471 Indian Penal Code, who are private individuals and non-public servants. During the course of investigation, a public servant was arrayed as an accused and subsequently Sections 13(1)(d) and 13 (2) of the Prevention of Corruption Act 1988 (hereinafter referred as ‘PC Act’) was added against all the accused persons with the aid of section 120-B Indian Penal Code. Charge-sheet was filed on 23.10.2010, however, the sole public servant died on 15.04.2011, which is admitted fact between the parties. Thereafter, cognizance was taken on 10.05.2011 of the offence. An application was filed on 16.03.2021 for the transfer of the case to the appropriate court on the ground that the sole public servant had died before cognizance can be taken and therefore, the Special Judge, Anti-Corruption has no jurisdiction to try this case. The application was rejected vide order dated 26.08.2021, which is impugned in this petition.

3. Learned counsel for the applicant submits that learned Special Judge, Anti-Corruption at the time of taking cognizance on 10.5.2011 failed to consider the fact that the sole public servant had died and even later when the case was abated against the sole public servant on 7.6.2011. It is submitted that the learned Special Judge, Anti-Corruption at the time of framing of the charges should have considered whether it could exercise jurisdiction under the PC Act or whether he was required to frame charges as per the applicable sections of the Indian Penal Code and remand the matter to the concerned court.

4. It is submitted that in the facts and circumstances of the present case, cognizance could not have been taken and charges framed by the Special Judge, Anti-Corruption merely on the basis of invocation of Section 120-B, as the same could not be read with any section of the PC Act in absence of the sole public servant.

5. Learned counsel for the applicant has placed reliance on the judgment of Hon'ble Supreme Court in State through CBI vs. Jitendra Kumar Singh, (2014) 11 SCC 724. It is submitted that in this case the applicant is totally unconnected as he did not act as a public servant or was holding any profile as a public servant or bribed any public servant which are the cases where PC Act becomes applicable against a non-public servant. In the instant case the law is settled by aforesaid judgment of Hon'ble Supreme Court the trial court could not have been proceeded against the applicant in the absence of sole public servant at the time of framing of charges.

6. It is also contended that this irregularity has caused grave injustice and irreparable loss to the applicant whereby hampering his right to fair trial, quantum of punishment, right to appeal before the appropriate court and in consequence thereto hampering the delivery of justice.

7. Per contra, learned counsel for the Central Bureau Of Investigation submits that in view of the Section 3 (1)(b) of the PC Act a conspiracy to commit an offence under the PC Act can only be tried by a Special Judge appointed under the PC Act and he can try a case for conspiracy to commit an offence under the PC Act against the applicant who is a private person, independently and it is not necessary that a public servant should also be there for the trial to be conducted by the Special Judge under the PC Act.

8. He has further submitted that as per paragraphs 37 and 38 of the judgment rendered by the Hon'ble Supreme Court in the case of Jitender Kumar Singh (supra), it is not obligatory on the part of the Special Judge to try non-PC offences. The expression “may also try” gives an element of discretion on the par