Madhya Pradesh High Court
Bharti Bhasne vs The State Of Madhya Pradesh on 10 May, 2023
Author: Sheel Nagu
Bench: Sheel Nagu, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 10 th OF MAY, 2023
MISC. CRIMINAL CASE No. 19432 of 2023
BETWEEN:-
BHARTI BHASNE, W/O LATE SHRI JITENDRA BHASNE,
AGED ABOUT 50 YEARS, R/O H NO. SH-6, FORTUNE
ENCLAVE, COLAR ROAD, BHOPAL (M.P)
.....PETITIONER
(BY SHRI SOM PRAKASH MISHRA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH SPECIAL
POLICE ESTABLISHMENT, BHOPAL (M.P)
.....RESPONDENTS
(BY SHRI ROHIT RAGHUWANSHI - ADVOCATE)
T h i s application coming on for admission this day, JUSTICE
HIRDESH passed the following:
ORDER
This M.Cr.C. invoking inherent powers of this Court u/S.482 of Code of Criminal Procedure, 1973 is directed against the order dated 11.04.2023 passed by VIIth Additional Sessions Judge, Bhopal in Special Case No.3/2012 whereby the application of the petitioner for releasing the case from Special Court to other Court has been rejected. The application was filed by petitioner on the ground that no charge under the Prevention of Corruption Act was framed prior to death of her husband, who was a public servant.
2 . Learned counsel for rival parties are heard on the question of Signature Not Verified Signed by: SHIBA NARAYAN BISWAL Signing time: 5/12/2023 7:47:29 PM 2 admission so also final disposal.
3. It is undisputed that Special Police Establishment, Bhopal registered a criminal case u/S.13 (1)(e) read with S.13(2) of the Prevention of Corruption Act, 1988 and Sections 109 and 120-B of IPC against petitioner and her husband (Jitender Bhasne). The charge-sheet was filed before the trial Court on 19.03.2012.
4. It is also undisputed that co-accused public servant (Jitender Bhasne) died before framing of charges under the Prevention of Corruption Act by the Special Court.
5. After death of Jitendra Bhasne, the trial Court framed charges against the present petitioner on 24.07.2014. Petitioner moved an application before the trial Court for sending the case to the competent Court for trial because her husband (public servant) had died before framing of the charge. That application was rejected by learned Special Judge, Prevention of Corruption Act, Bhopal.
6. Petitioner being aggrieved by order dated 24.07.2014 filed Criminal Revision No.2010/2014 before this Court, which was dismissed on 26.08.2019. The petitioner filed M.Cr.C. No.37870/2019 for recalling of the above said order dated 26.08.2019 passed in Cr.R. No.2010/2014. Thereafter, petitioner filed an application before the trial Court again for releasing the case from Special Court to be tried by another competent Court, which was dismissed by the trial Court on 11.04.2023.
7. Learned counsel for petitioner has placed reliance on a decision of the Supreme Court in State through Central Bureau of Investigation, New Delhi Vs. Jitender Kumar Singh, (2014) 11 SCC 724. Their Lordships' of the Signature Not Verified Signed by: SHIBA NARAYAN BISWAL Signing time: 5/12/2023 7:47:29 PM 3 Supreme Court while examining the scope of sub-section 3 of Section 4 of the Prevention of Corruption Act held that a Special Judge exercising the jurisdiction may also try any offence other than the offences specified in Section 3. It was further held that an accused person either a public servant or non-public servant, who has been charged for an offence under Section 3(1) of the Prevention of Corruption Act, could also be charged for an offence under IPC and as such the Special Judge has jurisdiction to try such offences against the public servant as well as against the non-public servant. If no charge has been framed against the public servant while he was alive, the Special Judge had no occasion to "try any case" under Section 3(1) of the Prevention of Corruption Act, either against a public servant or a private person, so as to try any offence other than an offence specified in Section specified in 3.
8. Learned counsel appearing for respondent has opposed the prayer and submitted that all points raised herein had been discussed before the trial Court.
9. Sections 3 & 4 of the Prevention of Corruption Act are reproduced below for ready reference:
"3. Power to appoint special Judges. - (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely :-
(a) any offence punishable under this Act: and
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a) (2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Signature Not Verified Signed by: SHIBA NARAYAN BISWAL Signing time: 5/12/2023 7:47:29 PM 4 Procedure, 1973 (2 of 1974).
4. Cases triable by special Judges. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section (1) of section 3 shall be tried by special Judges only.
(2) Every offence specified in sub-section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or, where there are more special Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.
(3) When trying any case, a special Judge may also 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. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the trial of an offence shall be held, as far as practicable, on day-to-day basis and an endeavour shall be made to ensure that the said trial is concluded within a period of two years;
Provided that where the trial is not concluded within the said period, the special judge shall record the reasons for not having done so;
Provided further that the said period may be extended by such further period, for reasons to be recorded in writing but not exceeding six months at a time; so, however, that the said period together with such extended period shall not exceed ordinarily four years in aggregate."
10. The charges have been framed against the petitioner (non-public servant) under Section 120-B and 109 of IPC and the offence under Section 109 of IPC is triable by the Court by which offence abetted is triable. Thus, when the Special Judge, Prevention of Corruption Act is competent to try the Signature Not Verified Signed by: SHIBA NARAYAN BISWAL Signing time: 5/12/2023 7:47:29 PM 5 case under Section 13(1) read with Section 13(2), then he is also competent to try offence punishable under Section 109 of IPC. Section 109 of IPC is reproduced hereinbelow for ready reference:
"109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment - Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment be punished with the punishment provided for the offence"
11. The Apex Court in the case of Jitender Kumar Singh (supra) has held that the co-accused public servant died before framing of charge and remaining Sections 467, 471, 420 read with Section 120 IPC being triable by Magistrate, the Special Judge forwarded the case for trial to Magistrate. But in this case, charge of Section 109 of IPC is framed against the petitioner which is triable by Court by which offence abetted is triable. Section 3 (1)(b) & 4 (3) of Prevention of Corruption Act confers power upon Special Judge to try the non- PC Act offences arising from PC Act offence.
12. From perusal of the order sheets it is found that remaining evidence of P.W. 16 has to be recorded and counsel for petitioner also argued that trial may be concluded within one month.
13. In view of above discussion, we are of the considered opinion that the Trial Court has not committed any error in rejecting the application filed by the petitioner. There is no occasion of failure of justice and thus invoking the inherent powers u/S.482 Cr.P.C. is not warranted.
14. Accordingly, present M.Cr.C. stands dismissed.
Signature Not Verified Signed by: SHIBA NARAYAN BISWAL Signing time: 5/12/2023 7:47:29 PM 6 (SHEEL NAGU) (HIRDESH)
JUDGE JUDGE
Biswal
Signature Not Verified
Signed by: SHIBA NARAYAN
BISWAL
Signing time: 5/12/2023
7:47:29 PM