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2003 DIGILAW 91 (KER)

N. P. Prabhu v. Union Of India

2003-02-04

N.KRISHNAN NAIR

body2003
Judgment :- This revision is directed against the order dated 3-11-2002 of the Special Judge (SPE/CBI), Ernakulam in an unnumbered case. 2. The facts necessary for the disposal of this revision may be stated as follows: The petitioner herein filed a complaint against one Dilip.D. Khone, Partner M/s. Devshi Bhanji Khona, Shipping Clearing & Forwarding Agents, Willington Island, Kochi - 8., alleging that the commission of the offences punishable under Section 13 and 14 (b) of the Prevention of Corruption Act. The allegation is that the said Dilip Khona used to give bribe to the plant Quarantine Inspector for issuing phyto sanitary certificate. It is specifically alleged that on 19-4-25001 he paid Rs. 6,000/- to G.M. Thippanna, Plant Quarantine Inspector as bribe for issuing the phyto sanitary certificate. The Central Bureau of Investigation has registered a case against Sri. G.M. Thippanna and he is now being tried in the court of Special Judge SPE/CBI-II, Ernakulam for the commission of the offence punishable under section 13 (1) (a) read with section 13 (2) of the P.C. Act. 3. The lower court dismissed the complaint on the ground that a non- public servant alone cannot be tried by a Special Judge appointed under the P.C. Act. It appears that the lower court is of the view that if an offence under the P.C. Act is committed by a non-public servant he can only be prosecuted along with a public servant. 4. Section 3 of the Prevention of Corruption Act empowers the State Government on the Central Government to appoint Special Judge to try any offence under the Act or conspiracy to commit such offences or any abetment thereof. As per Section 4 of the Act, the Special Judge appointed under Section 3 of the Act has exclusive jurisdiction to try the offences specified in sub-section (1) of section 3 of the Act. Sub-section (3) of Section 4 of the Act provides that when trying any case a special judge also may try any offence, other than an offence specified in Section 3, with which the accused may, under the code of Criminal Procedure, 1973 (2 of 1974) be charged at the same trial. 5. In this case, the accused is alleged to have committed the offences under Sections 12 and 14 (b) of the P.C.Act. 5. In this case, the accused is alleged to have committed the offences under Sections 12 and 14 (b) of the P.C.Act. Section 12 of the Act lays down that whoever abet any offence punishable under Section 7 or section 11 of the Act whether or not that offence is committed in consequence of that abetment, shall be liable to punishment. Thus under section 12 of the Act even if the offence abetted is not committed by the public servant the person which abetted the offence is liable to punishment. Under Section 14 (b) of the Act whoever habitually commits an offence punishable under Section 12 shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and also be liable to time. It is true that when an offence abetted is committed the person who abetted the offence and the person who committed the offence can be tried at one trial. Suppose in a case the offence the offence under Section 7 or section 11 abetted by a non- public servant is not committed by a public servant, the non-public servant can only be prosecuted under section 12 or section 14 (b) of the Act. In such a situation if a non-public servant alone cannot be tried before a special judge, the guilty person may go unpunished. The lower court relied on the decision of the Supreme Court in P. Nallammal V. State (1999) 6 SCC 559) to hold that a non-public servant alone cannot be tried before a court of special judge. It appears that the court below has misunderstood the decision of the Supreme Court. In Nallammal's case the appellants contended that they are not liable to be prosecuted along with the Penal Code read with Section 13 (1) (e) of the P.C.Act. It was contended for the appellants that the offence under section 13 (1) (e) of the P.C. Act is unbeatable. The supreme court held that if a non public servant is also a member if the criminal conspiracy for a public servant to commit any offence under the P.C.Act or if such a non-public servant abetted any of the offence which the public servant commits such non-public servant is also liable to be tried along with the public servant before a court of Special Judge having jurisdiction in the matter. There is nothing in the decision to indicate that a non-public servant alone cannot be tried for the offences punishable under sections 12 and 14 (b) of the P.C. Act. According to me the impugned order in this case is clearly illegal and cannot be sustained. A Special Judge has exclusive jurisdiction to try the offences punishable under sections 12 and 14 (b) of the P.C. Act and if any offence under section 7 or section 11 of the Act abetted by a non-public servant is not committed by a public-servant the non-public servant alone cane be tried by a Special Judge for the offence under sections 12 or 14 (b) of the Act. In the result the impugned order is set aside. The lower court is directed to restore the complaint on file and proceed with the same in accordance with law. This revision petition is thus allowed.