ORDER : Accused Nos.13 and 14 in C.C. No.20 of 2014 pending before the Additional Special Sessions Court, (SPE/CBI)-III, Ernakulam filed respectively Crl.Rev.Petition Nos.107 of 2023 and 102 of 2023. They together filed Crl.M.P.No.85 of 2018 under Section 239 of the Code of Criminal Procedure, 1973. The Special Court dismissed that petition as per the order dated 21.11.2022 which is under challenge in these revision petitions filed under Section 397 read with Section 401 of the Code. 2. The final report was laid with the following allegations: The first accused was the manager of the Cochin branch of the State Bank of India (P & B Division). Accused No. 2 to 4 were respectively the Managing Partner and Partners of M/s New Appliances, Cochin. Accused No. 5 was the Managing Director of M/s X-Com Technologies (P) Ltd, Cochin. Accused No. 6 was the proprietor of M/s Aadil Traders, Binanipuram. Accused No. 7 was the Director of M/s Vaidian Healthcare (P) Ltd, Cochin. Accused No. 8 was the Proprietor of M/s Sithara Communications, Cochin. Accused No. 9 was the Proprietor of M/s Tan-C Engineers and Contractors, Cochin. Accused No. 10 was the Director of Penta Tech Industrial Marketing Ltd, Cochin. Accused No. 11 was the Proprietor of Swamy Ramananda Memorial Sidha Vaidyashramom, Cochin. Accused No. 12 was the Proprietor of Aarza Traders, Binanipuram. Accused No. 13 was the Director of ALS Combines, Cochin. And, Accused No. 14 was the Managing Director of ALS Combines (P) Ltd, Cochin. During the period 1999-2001 the accused hatched a conspiracy intending to cheat SBI and in furtherance of which, accused No. 1 sanctioned and disbursed consumer durable loans under 'Big Buy' scheme to non-existing and existing persons proposed by Accused Nos. 5 to 14 falsely claiming to be their employees. They, for that purpose, fabricated documents purporting to be salary certificates, invoices etc. Without verifying the identity of the loanees and ensuring purchase and actual delivery of the consumer goods, loans were disbursed. Thus the accused persons cheated the bank and caused wrongful loss of ?72,28,000/- to the bank and corresponding wrongful gain to themselves. 3. Heard the learned counsel for the petitioners and the learned Standing Counsel for the CBI. 4. Without verifying the identity of the loanees and ensuring purchase and actual delivery of the consumer goods, loans were disbursed. Thus the accused persons cheated the bank and caused wrongful loss of ?72,28,000/- to the bank and corresponding wrongful gain to themselves. 3. Heard the learned counsel for the petitioners and the learned Standing Counsel for the CBI. 4. The learned counsel for the petitioners at the outset raised a contention that the Special Court ceased to have jurisdiction since the 1st accused, who is the only public servant, expired before the commencement of the trial. In the view of the learned counsel, having the 1st accused expired before commencement of the trial, by operation of the provisions of Section 3 read with Section 4(3) of the Prevention of Corruption Act, 1988, the Special Court ought not to have proceeded with the matter after reporting the death of the 1st accused. The 1st accused expired on 15.02.2020 and a copy of the death certificate was produced before the Special Court on 09.07.2020. In order to fortify the said contention, the learned counsel places reliance on State through CBI, New Delhi v. Jitender Kumar Singh [ 2014 (11) SCC 724 ]. The learned counsel also raised contentions pertaining to the merits of the case and submitted that the Special Court went wrong in dismissing Crl.M.P. No. 85 of 2018. 5. The learned Standing Counsel for the CBI would submit that the impugned order was passed by the Special Court much after the death of the 1st accused and the petitioners having pursued the application for discharge even thereafter, they cannot be heard to contend that the Special Court lost jurisdiction. That apart, a contention which was available, but not raised before the Special Court cannot now be raised anew. The further submission is that there are sufficient materials to establish the guilt of petitioners as well their co-accused and hence the impugned order requires no interference. 6. In regard to the question, when the trial commences for the purpose of deciding the question of jurisdiction of the Special Court in the wake of the death of the sole public servant-accused it is submitted that Section 238 of the Code sufficiently indicates that the trial in a warrant case commences on the appearance of the accused before the Magistrate. In the view of the learned Standing Counsel, the meaning of the word “trial” used in Section 4(3) of the PC Act is to be understood in the context of Section 238 of the Code and viewed so, the death of the 1st accused after the appearance of all the accused, would not cease the Special Court to have jurisdiction. It is urged that having the first accused appeared before the Special Court, and his death was thereafter, the trial was already commenced and the Special Court can well continue with the trial. 7. Section 5(1) of the PC Act says that the Special Court shall follow the procedure prescribed by the Code for the trial of warrant cases by the Magistrates. The law laid down in this regard by the Apex Court in A.R. Antulay v. R.S. Nayak[ (1984) 2 SCC 500 ], as though it was by interpreting Section 8(1) of the P.C. Act, 1947, that provision being pari materia to Section 5(1) of the P.C. Act, 1988, governs the field. It was held that a Special Court trying offences under the PC Act is obligated to follow the procedure for the trial of warrant cases, though as and by way of status it is equated with a Court of Session. Therefore, there is no doubt in that matter that the Special Court has to follow the procedure for the trial of warrant cases. But, does it mean that trial in a warrant case commences by the appearance of the accused before the court? 8. Going by the Provisions of Section 3(1)(b) of the PC Act, an offence of conspiracy to commit an offence under the PC Act can also be tried by the Special Court. As to the persons who could be tried at a single trial by a Special Court the guidelines are contained in Section 4(3) of the P.C.Act. It says that when trying any case, a Special Judge may also try any offence, other than an offence under the P.C.Act, with which the accused may, under the Code, be charged at the same trial. It says that when trying any case, a Special Judge may also try any offence, other than an offence under the P.C.Act, with which the accused may, under the Code, be charged at the same trial. By virtue of the provisions of Section 223 of the Code the following persons may be charged and tried together, namely; (i) persons accused of the same offence committed in the course of the same transaction; (ii) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; and (iii) persons accused of different offences committed in the course of the same transaction. There are a few other situations also, which do not require mention for the present purpose. Therefore, the Special Court has jurisdiction to try not only public servants but also non public servants, who become accused along with a public servant and the offences charged against them come within the purview of the aforesaid provisions. 9. Reverting to this case, the 1st accused in C.C. No. 20 of 2014 alone is a public servant. He appeared before the court but, he expired before framing of the charge. The question is, can the Special Court dehors the death of the 1st accused proceed with the case against the remaining accused. In order to decide that question, meaning of words “in trying any case”, in Section 4(3)of the P.C. Act has to be understood. 10. The aforementioned question was considered by the Apex Court in Jitender Kumar Singh (supra). In paragraph No. 40 of the judgment, the Apex Court considered the question, when does the trial of a warrant case commences. In order to answer that question the Apex Court followed the law laid down in Ratilal Bhanji Mihani v. State of Maharashtra 1979 (2) SCC 179 . The following observations in that decision was extracted: “Once a charge is framed, the Magistrate has no power under S.227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of S.253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of the charge, if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in S.254 to 258 to a logical end. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of the charge, if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in S.254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under S.349 and S.562 of the Code of 1898 (which correspond to S.325 and S.360 of the Code of 1973)." 11. The Apex Court after adverting to the aforesaid propositions, proceeded to consider as to when did the trial starts in a case pending before a Special Court constituted under the PC Act. 12. In that case, accused Nos.9 and 10 were the public servants. They expired even before sending the final report to the Special Court. One more public servant was there among the persons included as accused in the final report. It is seen that he expired on 18.02.2005. Charges in the case were not framed before his death. In that scenario, the Apex Court held that the Special Court ceased to have jurisdiction to try the case, as the charge could not be framed before the death of the public servant-accused. After the death of the public servant, non public servants alone remain as accused and as the trial was not commenced while the public servant also was available, Section 4(3) of the P.C. Act did not come into operation. It was that, therefore, the Special Court ceased to have jurisdiction. Paragraph No. 45 of the judgment is extracted below: “45. We may now examine Criminal Appeal No. 161 of 2011, where the FIR was registered on 02/07/1996 and the charge - sheet was filed before the Special Judge on 14/09/2001 for the offences under S.120B, S.420, IPC read with S.13(2) and S.13(1) of the PC Act. Accused 9 and 10 died even before the charge - sheet was sent to the Special Judge. The charge against the sole public servant under the PC Act could also not be framed since he died on 18/02/2005. The Special Judge also could not frame any charge against non - public servants. Accused 9 and 10 died even before the charge - sheet was sent to the Special Judge. The charge against the sole public servant under the PC Act could also not be framed since he died on 18/02/2005. The Special Judge also could not frame any charge against non - public servants. As already indicated, under sub-section (3) of S.4, the special Judge could try non - PC offences only when “trying any case” relating to PC offences. In the instant case, no PC offence has been committed by any of the non - public servants so as to fall under S.3(1) of the PC Act. Consequently, there was no occasion for the special Judge to try any case relating to offences under the PC Act against the Appellant. The trying of any case under the PC Act against a public servant or a non - public servant, as already indicated, is a sine - qua - non for exercising powers under sub-section (3) of S.4 of PC Act. In the instant case, since no PC offence has been committed by any of the non - public servants and no charges have been framed against the public servant, while he was alive, the Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non - PC offences.” (underline supplied) 13. As indicated above trial commences only on framing of a charge. The Special Judge did not frame charge and therefore, it had no occasion to "try the case" as enjoined in Section 4(3) of the PC Act, with the obvious result that the Special Court ceased to have jurisdiction to try the non-public servant accused. The position would have been different if any offence under the P.C. Act, like Section 12 has been alleged against the remaining accused. 14. In this case, the sole public servant-accused expired on 15.02.2020. It is true that the petition filed by the present petitioner seeking discharge was dismissed only thereafter. The charge in the case was not framed yet, and thereby the trial of the case was not commenced. 14. In this case, the sole public servant-accused expired on 15.02.2020. It is true that the petition filed by the present petitioner seeking discharge was dismissed only thereafter. The charge in the case was not framed yet, and thereby the trial of the case was not commenced. Since the trial could not be commenced before the public servant-accused expired, the Special Court cannot proceed with the case and try the non public servant-accused alone in the light of the law laid down in Jithendra Kumar (supra). 15. The petitioners cannot claim ignorance about the death of the 1st accused since a copy of his death certificate was produced before the Special Court as early as on 09.07.2020. It is true that even thereafter, the petitioners pursued their application for discharge. Can, for that reason, it can be said that they are estopped from raising the question concerning jurisdiction before this Court, that too for the first time? The question is concerning jurisdiction over the subject matter. As stated, the Special Court lost jurisdiction over the matter after the death of the 1st accused. Since the question relates to lack of jurisdiction of the court, the same certainly can be raised even at a subsequent stage of the proceedings. Whether or not such a contention was raised before the Special Court, this court is obliged to consider that contention since it goes to the root of the matter. In that view of the matter, there cannot be a contention that the petitioners are estopped from raising the question concerning jurisdiction before this Court for the first time. 16. In view of what is stated above, I am of the view that the Special Court ceased to jurisdiction to try C.C. No. 20 of 2014. The impugned order is set aside. The investigating officer shall file a report before the Special Court pointing out the jurisdictional court of the Magistrate. The Special Court after giving notice to both sides shall transmit the final report and records to the Jurisdictional Magistrate who shall proceed with the matter in accordance with law. These Criminal Revision Petitions are disposed of accordingly.