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2001 DIGILAW 369 (BOM)

CBI, ACB v. Union Bank of India and others

2001-04-26

A.M.KHANWILKAR

body2001
JUDGMENT - A.M. KHANWILKAR, J.:---By this petition filed under section 482 read with section 210 of the Criminal Procedure Code, the petitioner seeks to challenge the correctness of the judgment dated 16th June, 1999, passed by the Special Judge/Sessions Judge, Goa, in Criminal Miscellaneous Application No. 10 of 1999. 2. Briefly stated, the respondents No. 2 to 5 have been charged with offences punishable under the Provisions of Indian Penal Code as well as Prevention of Corruption Act, 1988. The respondent No. 1 has filed a private complaint, being Criminal Case No. 167/P/96/A, which is pending before the Judicial Magistrate, First Class, Vasco-da-Gama against the respondents No. 3 and 4 for offences punishable under sections 120, 197, 198, 199, 200, 403, 405, 415, 416, 420, 423, 463, 464, 466, 467, 468, 471, 473, 474, 475, 476, 477-A, 481, 484 and 485 of Indian Penal Code, whereas, the police complaint was filed in respect of same transaction against the respondents No. 2 to 5, which case was subsequently made over to C.B.I. and registered as R.C. No. 2(A0/(95)/CBI/ACB/GOA on 25-10-1995. The same has now been registered as Special Case No. 3 of 1997 before the Special Judge/Sessions Judge, Goa, for offences punishable under sections 419, 420, 462, 468 and 471 of Indian Penal Code and section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 read with section 120-B of Indian Penal Code. There is no dispute that both the cases pending against the respondents No. 3 and 4 and 2 to 5, respectively, are arising out of the same transaction. In the circumstances, the Judicial Magistrate, First Class, by order dated 14th of December, 1998 thought it appropriate to refer the case pending before him to the special Court where the aforesaid C.B.I. case was pending. 3. After the said order, the matter was placed before the Special Judge/Sessions Judge, Margao, who, in turn, issued notices to the concerned parties to satisfy whether such a course could be resorted to and the source of authority of Judicial Magistrate to issue such directions. The respective parties appeared before the Special Judge and the Special Judge, by the impugned order, has taken the view that the Judicial Magistrate, First Class, had no authority to pass directions of transferring the case pending before him to the Special Judge. The respective parties appeared before the Special Judge and the Special Judge, by the impugned order, has taken the view that the Judicial Magistrate, First Class, had no authority to pass directions of transferring the case pending before him to the Special Judge. Besides this, the Special Judge also took the view, referring to decisions relied upon on behalf of respondent No. 1 Bank in (Harjinder Singh v. State of Punjab and others)1, A.I.R. 1985 S.C. 404 and (T.S. Sawhney v. The State)2, 1987 Cri.L.J. 1079, that both the proceedings were different and could not be clubbed before the Special Judge. In the circumstances, the Special Judge was pleased to order that the Record and Proceedings of Criminal Case No. 167/P/96/A be returned to Judicial Magistrate, First Class, Vasco-da-Gama with a direction that he should proceed with the enquiry and trial in the criminal case in accordance with law. 4. The applicant has filed the present application under sections 482 and 210 of Criminal Procedure Code, inter alia, praying that the order passed by the Special Judge on 16th June, 1999 be set aside. Besides the said prayer, the applicant also prays for a direction that the case which is pending before the Judicial Magistrate, First Class be ordered to be tried by Special Court along with Special Case No. 3/97, which relief is in liue with the power of High Court to transfer cases by virtue of provisions of section 407 of the Code. 5. The only objection taken by Respondent No. 1 bank is that the case filed before the Judicial Magistrate, First Class was on a private complaint and, therefore, the same could not be clubbed along with the Police case, which is based on Police Report. Mr. Thakur, appearing for respondent No. 3, on the other hand, contends that the respondent No. 3 has no objection if the case is tried by the Special Judge, but contends that the Special Judge will have no authority to adjudicate upon the criminal case, which is in respect of different offences, unrelated to the offences under the Prevention of Corruption Act. He further submits that the present Application is absolutely misconceived and the relief which is sought under section 482 cannot be entertained by this Court. 6. Having considered the rival submissions, I will first deal with the scope of the present proceedings. He further submits that the present Application is absolutely misconceived and the relief which is sought under section 482 cannot be entertained by this Court. 6. Having considered the rival submissions, I will first deal with the scope of the present proceedings. No doubt, the present application is filed under section 482 of Criminal Procedure Code to set aside the impugned order, but to secure the ends of justice, this Court can surely pass appropriate orders and for that purpose even suo motu invoke jurisdiction under section 407 of the Criminal Procedure Code. Mr. Thakur contends that if the applicant wanted to challenge the correctness of the impugned order, the same could have been done only by filing revision application and not under section 482. In my view, this argument is hypertechnical; whereas the Court should be more guided with the substance of the matter than the form of the proceedings filed before it. For securing the ends of justice the Court has to apply its mind to the problem on hand as the saying goes by putting its "Head and Heart" together. The powers of the High Court under section 482 are so wide that it can pass appropriate order not only to further the rigours of law but also equity, for the expression employed in that section is "or otherwise to secure the ends of justice". This provision can be invoked by the High Court not only to pass such orders as may be necessary to give effect to any order under this Code, but also to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 7. Having regard to the admitted position that both the cases relate to the same transaction, it is wholly incomprehensible as to why the same should be tried before two separate courts and thus invite a situation of inconsistent orders being passed. However, it will be in the interest of general convenience of the parties as well as the witnesses, who are undoubtedly common in both the cases that they are tried before one Court. On the other hand, the parties as well as witnesses will have to appear before two different courts, though the offences arise out of the same transaction. However, it will be in the interest of general convenience of the parties as well as the witnesses, who are undoubtedly common in both the cases that they are tried before one Court. On the other hand, the parties as well as witnesses will have to appear before two different courts, though the offences arise out of the same transaction. It will be wholly unjust and inexpedient that the witnesses are made to depose twice before separate courts for the matter relating to the same transaction. This would result in avoidable delay and more than that multiplicity of proceedings with the possibility of inconsistent orders being passed by the two courts for the common offences arising out of the same transaction. To obviate such a situation, it would be expedient in the interest of justice and in the interest of all concerned that both the cases are tried before the Special Judge, Goa. 8. Mr. Thakur submits that the Special Judge could try offences only under the Prevention of Corruption Act and since the private complaint does not spell out any offence which is referable to the offence under the Prevention of Corruption Act, the Special Judge will be incompetent to adjudicate and try that complaint. This submission is totally misconceived and clearly overlooks the legal position that merely because the Special Judge, is notified as such, it does not mean that he ceases to be a Sessions Judge. In other words, same person can act as a Special Judge as well as Sessions Judge at a given point of time, as the case may be. 9. No doubt, it is legally not possible to club both the cases, but has contended by the Respondent No. 1 bank, both the offences can be tried separately though before the same Court. This arrangement would be in the interest of all the parties as well as the witnesses in the respective cases. Since there is no dispute that the Special Judge can also act as a Sessions Judge and try offences which are triable by the Sessions Judge, therefore, I find no reason to refuse the relief prayed for in the application under consideration, particularly in terms of prayer Clause (b). Such a relief could be granted not only in exercise of power under section 482, but also under section 407 of the Criminal Procedure Code. 10. Such a relief could be granted not only in exercise of power under section 482, but also under section 407 of the Criminal Procedure Code. 10. Reverting to the view taken by the Special Judge, in my view, he was right in concluding that there is no provision in the Code which empowers the Judicial Magistrate, First Class to transfer the case on his own to the Special Judge, as has been done in the present case. However, on the other reason recorded by the Special Judge, the same is clearly misdirected and not in accord with the decision in (Kewal Krishan v. Suraj Bhan)3, reported in A.I.R. 1980 S.C. 1780. Although the Special Judge has referred to the observations made by the Apex Court in the said decision, which clearly observes that where two cases exclusively triable by the Court of Sessions, one instituted on a police report under section 173 of Criminal Procedure Code, and the other initiated in a criminal complaint, arise out of the same transaction, if the two cases are tried by two different courts, there is a risk of two courts coming to conflicting findings. To obviate such a risk, it is ordinarily desirable that the two cases should be tried separately but by the same Court. Besides, Mr. Vaz, learned Advocate for the petitioner, has relied on the recent decision of the Apex Court in (Sudhir and others v. State of Madhya Pradesh)4, 2001(5) Bom.C.R. (S.C.)569, to contend that when the case and the counter case are relating to the same incident, it would be desirable that they are tried by the same Court. This principle is a salutary one, which would secure the ends of justice and would also obviate the possibility of long drawn trials before the two trial courts, thereby reducing the hardship that would be caused to the witnesses to be examined in both the cases, and in all likelihood they being common witnesses; and that the documents relied upon by the prosecution or defence would also be common. The two decisions which are referred to by the Special Judge, in my view, have not taken a contrary view, but have dealt with a different proposition and are not authorities on the principle referred to above, enunciated by the Apex Court in Kewal Krishan's case (supra) and Sudhir's case (supra). The two decisions which are referred to by the Special Judge, in my view, have not taken a contrary view, but have dealt with a different proposition and are not authorities on the principle referred to above, enunciated by the Apex Court in Kewal Krishan's case (supra) and Sudhir's case (supra). In the present case, undubitably, both the cases arise out of the same transactions, moreover some of the I.P.C. offences are common in both the cases against the common accused and besides that the complaint case is not materially different or contradictory or mutually exclusive to one in the Police Report. Therefore, the ratio of the said two decisions are absolutely inapplicable. 11. In the circumstances, the order passed by the Special Judge, which is impugned, deserves to be set aside and instead it is ordered that the Criminal Case No. 167/P/96/A be transferred to the Special Court to be tried by the Special Judge alongwith Special Case No. 3 of 1997, though separately. 12. In the circumstances, this application succeeds and the same is allowed in the above terms. Application allowed. -----