Jharkhand High Court
Bivash Chandra Thakur vs The State Of Jharkhand ... ... Opp. Party on 4 May, 2020
Equivalent citations: AIRONLINE 2020 JHA 139
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 2683 of 2018
Bivash Chandra Thakur, aged about 66 years, son of Shri Ganga
Dhar Thakur, Residing at A-1, Shree Vatika, Cheshire Home Road,
Behind Surendra Nath School, Dipatoli, Bariatu, Bariatu, Ranchi,
P.O. P.S. Bariatu, District-Ranchi, Jharkhand
... ... ... Petitioner
Versus
The State of Jharkhand ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Anil Kumar Sinha, Senior Advocate : Mr. A.K. Das, Advocate For the Opp. Party : Mr. T.N. Verma, Special P.P
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C.A.V. On 17.02.2020 Pronounced on 04.05.2020
1. Heard Mr. Anil Kumar Sinha, learned Senior counsel appearing on behalf of the petitioner along with Mr. A.K. Das, Advocate.
2. Heard Mr. T.N. Verma, learned Special P.P, appearing on behalf of the opposite party.
3. After conclusion of hearing of this case on 17.02.2020, a written submission has been filed on behalf of the petitioner.
4. It is submitted that in the present petition following orders have been challenged: -
a. Order dated 02.07.2007, passed by the learned Special Judge, Vigilance, Patna, in Special Case No. 03 of 1991 (Patna), corresponding to Special Case No. 05 of 2009 now pending in the court of learned Special Judge (Anti-Corruption Bureau), Dhanbad whereby cognizance has been taken for the alleged offences under Sections 420, 465, 467, 468, 471, 477A and 120B of the Indian Penal Code against the petitioner;
b. Order dated 21.01.2009, passed by the learned Special Judge, Vigilance-I, Patna, whereby, without having any jurisdiction, he has been pleased to transfer the case to Special Judge, Vigilance, Ranchi, Jharkhand.2
c. Order dated 10.05.2018, whereby learned Special Judge (Anti- Corruption Bureau), Dhanbad has been pleased to issue process under Section 82 Cr. P.C. as against the present petitioner.
5. The prosecution case as per the charge-sheet dated 02.07.2007 is acquisition of assets disproportionate to the income of the petitioner and at the relevant point of time the petitioner was posted as Block Development Officer, Dhanbad and at the time of submission of charge-sheet, he was posted at Kolebira, Simdega in the State of Jharkhand.
6. As per the charge sheet, the check period has been taken for the period from 1980 to 1990. During the relevant time, the petitioner was posted as Block Development Officer in the District of Dhanbad which is admittedly situated in the State of Jharkhand created on 15.11.2000. It has been alleged that the petitioner had opened one fictitious bank account at Patna on 31.05.1990 in the name of Vinay Thakur and deposited Rs.1,48,250/- to conceal his unaccounted illegal income and in the said account Rs.95,000/- was deposited on 26.11.1990 apart from the other deposits in the account. It has been further alleged that the petitioner had purchased a property in the name of his mother at Patna vide deed dated 14.09.1985 for an amount of Rs.30,000/- in which the petitioner had spent Rs.2,00,000/- for constructing a double storied building. It has also been alleged that the petitioner purchased a landed property in the name of his wife on 08.02.1985 for Rs.11,000/- situated in Deoghar which is within the State of Jharkhand. It is further alleged that the petitioner had purchased a car at Patna in the name of his brother on 27.06.1987 for an amount of Rs.80,000/- who resides in America. It has been alleged that there was recovery of movable property worth Rs.80,168/- from the residence of the petitioner at Dhanbad. There is further allegation that the petitioner had opened bank accounts in State Bank of India, Hirapur, Dhanbad as well as in State Bank of India, Dhanbad Branch - Dhanbad and these bank accounts formed part of his unaccounted illegal money. It was alleged in the charge 3 sheet that during the check period, the petitioner acquired total property worth Rs.5,54,307/- and his total income during the check period was Rs.2,35,243/- and after calculation found that the petitioner had generated unaccounted money to the extent of Rs.4,75,893/- during the check period from 1980 to 1990. It was also mentioned in the charge sheet that at the time of submission of the charge sheet, the petitioner was posted at Kolebira, District Simdega which is situated within the State of Jharkhand and the proposal for sanction for prosecution was already submitted.
7. The submission of the petitioner with regards to the properties mentioned in the charge-sheet are as follows: -
(i) So far as the Bank Account in the name of Binay Thakur is concerned, it is submitted by the petitioner that neither the petitioner has any concern with Binay Thakur nor the allegation that the petitioner had opened the said account in the name of Binay Thakur was ever verified by matching the handwriting.
(ii) So far as the acquisition of property at Mohalla Shivpuri at Patna in the name of the mother of the petitioner is concerned, it is submitted by the petitioner that as per the prosecution case itself, the father of the petitioner had retired as a Government servant and the property was purchased by the father of the petitioner in the name of his mother at Rs. 30,000/-and the father of the petitioner from his savings constructed the house. It is submitted that the petitioner cannot be held responsible for the said investment.
(iii) So far as the acquisition of landed property at Deoghar is concerned, it is submitted that the petitioner had purchased the property in the name of his wife from his salaried income.
(iv) So far as Purchase of a Maruti Van worth Rs. 80,000/- in the name of Dr. G.C. Thakur is concerned, it is submitted by the petitioner that Dr. G.C. Thakur, is the brother of the petitioner settled in America, who out of his own income, had purchased the vehicle for his own use during his visit at Patna and accordingly 4 petitioner's income cannot be connected with it. It is also submitted that the petitioner had never laid any claim over the said vehicle.
(v) So far as the acquisition of moveable property worth Rs.
80,168/- recovered from the quarter of the petitioner at Dhanbad is concerned, it is submitted that the existence of the moveable property are essentials for a decent living which were purchased by the petitioner from his own salary income.
(vi) So far as the bank account in the SBI, Hirapur Branch, Dhanbad is concerned, it is submitted that it is a part of hard- earned income of the petitioner.
(vii) So far as the bank account in the SBI, Dhanbad Branch, Dhanbad is concerned, it is submitted that it is a part of hard- earned income of the petitioner.
Challenge to order of cognizance dated 02.07.2007
8. It is submitted by the petitioner that if the properties standing in the name of mother and brother of the petitioner and the account and money found deposited in the name of Binay Thakur are excluded, all the assets are well within the known source of income of the petitioner and therefore there was no sufficient material to take cognizance.
9. It is also submitted that apparently, there is no allegation of forgery or cheating and therefore cognizance for the offence under sections 420,465,467,468,471,477A and 120B of the Indian Penal Code vide impugned order dated 02.07.2007 is not sustainable.
10. It is submitted that FIR was admittedly instituted in the year 1991 at Patna and the Vigilance Bureau in the State of Bihar was investigating the case. The State of Bihar was re-organised and the State of Jharkhand was created on 15.01.2000. The investigation was pending on that day. The charge-sheet was submitted by the Vigilance Bureau, Patna, Bihar on 02.07.2007. It is submitted that if it is accepted that the case relates to an occurrence which has taken place within the State of Jharkhand, then after 15.11.2000, neither the 5 Vigilance Bureau, Patna had any jurisdiction to continue with the investigation nor the Special Judge, Vigilance, Patna had any jurisdiction to take cognizance of offence against the petitioner by the impugned order 02.07.2007.
11. It is submitted by the petitioner that when the charge sheet was submitted, the learned Special Judge, Vigilance, without any application of judicial mind proceeded to take cognizance of offence against the petitioner on 02.07.2007and later on, the same court vide order dated 21.01.2009 mentioned that the case is required to be transferred to Ranchi as the properties alleged to have acquired are mostly in Jharkhand. The petitioner submits that such application of mind was required to be made at the time of taking cognizance and the learned court below, at that juncture, ought not to have taken cognizance, if the case was required to be transferred to Ranchi.
12. The learned counsel for the petitioner submits that the court at Patna had no jurisdiction to take cognizance of offence. It is submitted that the mere fact that there was the transfer of the case by the court at Patna proves that there was no jurisdiction with Patna (Anti- Corruption Bureau) and for want of jurisdiction there could not have been any occasion for any court in the State of Bihar to take cognizance in the matter and on such ground itself, the impugned order taking cognizance on 02.07.2007, is illegal and is liable to be quashed and set aside.
13. It is submitted that the argument of the opposite party that the impugned order of cognizance will not be vitiated for the want of jurisdiction, is not sustainable. The petitioner submits that the Hon'ble Apex Court, in catena of decisions, has been pleased to quash the order taking cognizance passed by the courts having no jurisdiction. The petitioner relies upon following judgments to submits that order taking cognizance have been quashed for want of jurisdiction: -
(i) (2004) 8 SCC 100 (para 14,15,17,19,)
(ii) (2005)3 SCC 507 (Para 10-14) 6
(iii) (2014)12 SCC 362 (Para-11) Challenge to Order dated 21.01.2009 - transfer of case from Patna to Ranchi
14. The learned counsel for the petitioner has also submitted that the impugned order of transfer of case vide order dated 21.01.2009 passed by the learned Special Judge-I, Vigilance, Patna, whereby, the case has been transferred to the court of learned Special Judge, Vigilance, Ranchi, Jharkhand, is also not sustainable in law.
15. It is submitted that under Section 34 of the Bihar Re-organization Act, 2000, all proceedings pending on the date with respect to territories falling within the State of Jharkhand was to be transferred to the State of Jharkhand. It is submitted that there was no pending proceeding before any Court on the appointed day i.e. 15.11.2000, therefore, there was no occasion to transfer any case to Jharkhand on the appointed day i.e. 15.11.2000.
16. It is submitted by the petitioner that apart from the aforesaid, it is also required to be considered that the power to transfer a proceeding has been provided in Chapter XXXI of the Code of Criminal Procedure and the power to transfer a case from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court lies exclusively with the Supreme Court under section 406 of the Cr. P.C. It is submitted that the learned Special Judge is denuded of such power, therefore, the order dated 21.01.2009 transferring the case to the learned Special Judge, Vigilance, Ranchi, which is under the control of the Jharkhand High Court, by the Special Judge, Vigilance, Patna, which is under the control of the High Court of Judicature at Patna, is wholly unsustainable in the eyes of law and as such the same is liable to be quashed.
Challenge to Order dated 10.05.2008 whereby process under section 82 Cr. P.C. has been issued.
17. While assailing the order dated 10.05.2018, whereby process under section 82 Cr. P.C. has been issued, the learned counsel for the 7 petitioner submits that the records of the case would show that the case was initially transferred to the learned Special Judge, Vigilance, Ranchi on 12.02.2009 and subsequently the case was transferred to the learned Special Judge, Vigilance, Dhanbad where the case was pending for appearance of the petitioner. The order-sheet would show that at no point of time any execution report/issuance of bailable warrant of arrest or non bailable warrant of arrest was ever received. It is submitted that the aforesaid fact can be verified from bare perusal of the order-sheet dated 06.07.2017, 10.08.2017, 20.09.2017 and thereafter up to 13.04.2018, on which dates, the case was adjourned awaiting receipt of execution report of non bailable warrant of arrest. It is submitted that all of a sudden, without any application of judicial mind, process under section 82 Cr. P.C. was directed to be issued mechanically vide impugned order dated 10.05.2018 without recording any reason to believe that the petitioner is absconding or concealing himself so that the warrant cannot be executed. He also submits that apparently there is no mention as to how the petitioner can get an information regarding transfer of his case from Ranchi to Dhanbad and as such the order dated 10.05.2018 is required to be quashed along with all consequential orders including the process under Section 83 Cr. P.C, if any, issued.
Arguments of the opposite party
18. The learned counsel for the opposite party, on the other hand, opposes the prayer of the petitioner and submits that a detailed counter affidavit has been filed in the present case. In the F.I.R as well as the charge-sheet, it has been alleged that the petitioner has acquired huge movable and immovable assets in his name and in the name of his family members beyond known sources of his income. The check period was taken right from the date of his appointment in government service till years 1990 and the case was instituted in the year 1991. In course of investigation, it was found that total assets of the accused were Rs.6,32,721/- whereas his 8 known source of income was only Rs.1,56,829/-.
19. The learned counsel submits that at the stage of taking cognizance of offence, the defence version of the petitioner cannot be considered and none of the impugned orders call for any interference by this Court. The learned counsel submits that the impugned actions and orders are legally valid when read with the provisions of Prevention of Corruption Act, 1988 read with Code of Criminal Procedure, Indian Penal Code and Bihar Reorganization Act, 2000. He submits that in spite of knowing fully well about the pendency of the criminal case against him, the petitioner has been avoiding arrest and has frustrated the proceedings in the criminal case for a long time.
20. The learned counsel for the opposite party has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2001) 9 SCC 432 (CBI, AHD, Patna Vs. Braj Bhushan Prasad and others) and has submitted that the Hon'ble Supreme Court has decided the matter regarding fodder scam cases and the jurisdiction of the court to decide the case and has also considered the provisions of Bihar Reorganisation Act, 2000. The learned counsel submits that without prejudice to the aforesaid contention that the impugned order do not call for any interference, otherwise also the order taking cognizance is saved by virtue of Section 460 (e) of Cr.P.C which clearly provides that if any Magistrate not empowered by law to take cognizance of offence under clause (a) or clause (b) of sub - Section (1) of Cr.P.C erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. The learned counsel has also submitted that there is no allegation that the learned Special Court at Patna, did not act in good faith while passing the impugned order of cognizance dated 02.07.2007.
21. The learned counsel has also submitted that on 12.02.2009, the entire file has been received from Patna to Ranchi vide registered post and thereafter the case proceeded at Ranchi and subsequently the case was transferred to the jurisdiction court at Dhanbad. The 9 learned counsel has also submitted that vide order dated 11.04.2016, an order has been passed by the learned court below whereby the bailors of the petitioner were directed to be issued notice and accordingly the impugned order including order under Section 82 Cr.P.C does not call for any interference.
22. In response, the learned counsel for the petitioner has submitted that Section 89 (1) of Bihar Reorganization Act, has been interpreted by the Hon'ble Supreme Court in the case relied upon by the opposite party reported in (2001) 9 SCC 432 and in the said case, which related to transfer of fodder scam cases, the charge sheet was filed prior to 15.11.2000. He submits that in the present case, charge sheet was filed much after 15.11.2000 before the Special Court at Patna which goes to show that the Investigating Officer, who was conducting the investigation continued with the investigation even after 15.11.2000 and submitted his charge sheet at Patna on 02.07.2007 and accordingly, the judgment passed by the Hon'ble Supreme Court, has no applicability to the facts and circumstances of this case. The learned counsel has also submitted that in view of Section 89 (2) of Bihar Reorganization Act, 2000, no case could have been transferred from Bihar to Jharkhand by referring to Section 89, unless there is an endorsement by the Hon'ble Patna High Court. However, it is not in dispute that the impugned order of transfer of records from Patna to Ranchi dated 21.01.2009 does mention any provision of law much less Section 89 of Bihar Reorganisation Act, 2000.
Findings of this Court
23. After hearing the learned counsel for the parties and considering the facts and circumstances of this case including the lower court records, this Court finds that Vigilance P.S. Case No.01/1991 was instituted against the petitioner at Patna after preliminary enquiry for alleged acquisition of disproportional asset in his name and in the name of his family members as compared to his known source of income for the check period. It also included certain offences 10 under Indian Penal Code. The FIR was registered u/s 420/465/467/468/471/477(A)/120B IPC and u/s 13 (2) read with Section 13 (1) (e) of Prevention of Corruption Act, 1988. Upon perusal of the FIR itself it is apparent that illegally acquired wealth was partly situated in Patna, falling within the present State of Bihar and partly in the districts of Deoghar and Dhanbad falling within the present State of Jharkhand.
24. This Court finds that as per the charge-sheet, the petitioner was posted as Block Development Officer, Dhanbad at the relevant point of time and on the date of filing of charge-sheet he was posted as Block Development Officer, Kolebera in the district of Simdega. The district of Simdega and Dhanbad fall within the State of Jharkhand.
25. It is alleged in the charge-sheet that the petitioner has acquired wealth disproportionate income as compared to his known source of income by fraudulent and illegal means and has also kept part of the illegally acquired money in bank accounts at Dhanbad and one fictitious bank account opened at Patna in the name of Binay Thakur. It is alleged that petitioner has used illegal money in acquiring/ constructing building at Deoghar and Patna.
26. From perusal of the lower court records, it appears that the corresponding case of Vigilance P.S Case no. 1/ 1991 in the court was Special Case No.3/1991 before the learned Special Judge (Vigilance) South Bihar, Patna.
Vide order dated 4.9.99 passed in aforesaid Special Case No.3/1991, the matter was adjourned without fixing any next date with an observation that the records be put up before the court upon submission of final report. The matter remained pending awaiting final report. The final report was filed in the year 2007. In the meantime, on 15.11.2000, the State of Bihar was bifurcated into State of Jharkhand and present State of Bihar.
27. Accordingly, the argument of the petitioner that on the date of bifurcation of the then State of Bihar, i.e. on 15.11.2000, no case was pending, is factually incorrect. This Court finds that on 15.11.2000 11 Special Case No.3/1991 was pending before the learned Special Judge (Vigilance) South Bihar, Patna awaiting final report of the investigation of the case.
Finding on the point of legality of continuation of investigation by the investigating officer at Patna after coming into force of Bihar Reorganisation Act, 2000 on 15.11.2000 and also on the point of legality of order date 21.01.2009 regarding transfer of case records from Patna to Ranchi
28. So far as reliance upon section 34 of Bihar Reorganization Act, 2000 as relied upon by the petitioner in the written submissions is concerned, this Court is of the considered view that the same has no role to play in the instant case. Section 34 of Bihar Reorganization Act, 2000 deals with transfer of proceedings from High Court at Patna to High Court at Jharkhand and admittedly on the appointed day i.e., 15.11.2000 the present case was not pending in Patna High Court but it was pending before Special Judge at Patna. In such circumstances, the legality and validity of the order of transfer of case from Patna to Ranchi has to be examined in the light of provisions of Indian Penal Code, Code of Criminal Procedure read with Section 4 and 5 of Prevention of Corruption Act, 1988.
29. This Court finds that the alleged offence in the present case took place partly in the area under present State of Jharkhand and partly at Patna in the present State of Bihar as the allegations include opening of a fictitious bank account at Patna in the name of Binay Thakur. Accordingly, the argument of the learned counsel for the petitioner that the investigating officer of the case at Patna lost his jurisdiction to continue with the investigation of the case after bifurcation of the then State of Bihar on 15.11.2000 is devoid of any merits and hence rejected. This court is of the considered view that the investigation of the case was rightly continued and a charge sheet was also rightly filed at Patna as a result of investigation of the case.
30. Chapter XIII of the Code of Criminal Procedure relates to 12 jurisdiction of the criminal courts in the matter of enquiries and trials. Section 177 of this chapter clearly provides that every offence shall ordinarily be enquired into and tried by a court within whose local jurisdiction it was committed. Section 178 Cr.PC provides that when it is uncertain in which of several local area an offence was committed or where an offence is committed partly in one local area and partly in another or where an offence is a continuing one, and continues to be committed in more local areas than one or where it consists of several acts done in different areas, it may be inquired into or tried by a court having jurisdiction over any of such local area. Section 179 of the Cr.P.C provides that when an act is an offence by reason of anything which has been done and of a consequence which has evolved, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequences has evolved.
31. The offences punishable under the Prevention of Corruption Act, 1988, are tried by the Special Courts constituted under the provisions of the Act. Section 3 of the Act contains a provision with regard to power to appoint special Judges and Section 4 of the Act provides for cases triable by Special Judges notwithstanding any contrary provisions contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law. Subsection (1) of Section 3 of the Act empowers the Central Government or the State Government, by notification in the Official Gazette, to 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 offences as mentioned therein. Subsection (2) of Section 4 of the Act provides that every offence as enumerated in Section 3 (1) shall be tried by the Special Judge for the area within whose jurisdiction it was committed, or by the Special Judge appointed for the case, or, where there are more specially Judges than one for such area, by such one of them as may be specified in this behalf by the Central Government.
1332. This Court finds that the jurisdiction of the Special Judge at Patna before whom Special Vigilance Case No.3 of 1991 was instituted, has not been cited by either of the parties for consideration. Further the jurisdiction of the Special Judge, Ranchi on the date of transfer of records on 21.01.2009 is not available for further appreciation. The fact remains that ultimately the Special Judge at Ranchi transmitted the records to Special Judge at Dhanbad pursuant to notification vide Memo No. A/Court/gathan (Nig.) - 13/2009/1554/J, dated 19.07.2017, Ranchi and letter no.3608/appt. dated 5th August, 2017 of High Court of Jharkhand, Ranchi read with order no. 111 (admin
- 11) dated 16.08.2017 issued by the Judicial Commissioner, Ranchi transferring the entire records to the court of Special Judge Anti- Corruption Bureau, Dhanbad for trial and disposal and the case is at present pending in the Court of Special Judge, Anti-Corruption Bureau, Dhanbad. This is apparent from order sheet of the learned court below.
33. Section 4 of the Prevention of Corruption Act, 1988 clearly provides that the offences specified in section 3 (1) of the said Act of 1988 shall be tried by special judges only for the area within which it was committed and the special judge may also try any offence , other than an offence specified in section 3 of the said Act of 1988, with which the accused may be charged under the Indian Penal Code, in the same trial. Section 5 of the aforesaid act of 1988 provides that a special judge may take cognizance of offences without the accused being committed to him for trial.
34. In the judgement passed by Hon'ble Supreme Court reported in (2001) 9 SCC 432 (CBI, AHD, Patna Vs. Braj Bhushan Prasad and others), the Hon'ble Supreme Court while interpreting the provisions of section 4(2) of the aforesaid Act of 1988 and drawing a distinction between section 181 of Cr.P.C and section 4(2) of the aforesaid Act of 1988 has held in para 37, 39, 42 and 45 as under :-
"37. Thus, when it is certain where exactly the offence under Section 13 of the PC Act was committed it is an unnecessary exercise to ponder over the other areas wherein certain allied activities, such 14 as conspiracy or preparation, or even the prefatory or incidental acts were done, including the consequences that ensued.
39. Now, observe the distinction between Section 181(4) of the Code and Section 4(2) of the PC Act. When the former provision envisaged at least four courts having jurisdiction to try a case involving misappropriation the latter provision of the PC Act has restricted it to one court i.e. the Court of the Special Judge for the area "within which the offence was committed". No other court is envisaged for trial of that offence. We pointed out above that when the charge contains the offence or offences punishable under the PC Act as well as the offence of conspiracy to commit or attempt to commit or any abetment of any such offence, the court within whose local jurisdiction the main offence was committed alone has jurisdiction.
41. Absence of a non obstante clause linked with Section 4(2) of the PC Act does not lead to a conclusion that the sub-section is subject to the provisions of the Code. A reading of Section 4(2) of the Code (not the PC Act) gives the definite indication that the legal position is the other way round. Section 4 of the Code is regarding trial of offences under the Indian Penal Code and other laws. Sub- section (1) of it relates only to offences under the Indian Penal Code. Sub-section (2) relates to "all offences under any other law". It is useful to read the said sub-section at this stage:
"4. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
42. Thus, if the PC Act has stipulated any place for trial of the offence under that Act the provisions of the Code would stand displaced to that extent in regard to the place of trial. We have, therefore, no doubt that when the offence is under Section 13(1)(c) or Section 13(1)(d) of the PC Act the sole determinative factor regarding the court having jurisdiction is the place where the offence was committed.
45. The said decision relied on by both sides would thus support the proposition that the place of jurisdiction would be determinative by reference to the place where the main offence was committed. The fact that other allied acts were committed at different places would be hardly sufficient to change the venue of the trial to such other places."
(Emphasis Supplied)
35. Applying the aforesaid principle of law laid down by the Hon'ble Supreme court in judgement reported in (2001) 9 SCC 432 (CBI, AHD, Patna Vs. Braj Bhushan Prasad and others), this Court is of the considered view that even in the case at hand, the court within whose jurisdiction the main offence under the provisions of section 13 of the prevention of corruption Act, 1988 is alleged to have been 15 committed, the said court would have the exclusive jurisdiction to try the offence along with the offence alleged under Indian Penal Code.
36. In the judgement passed by Hon'ble Supreme Court reported in (2001) 9 SCC 432 (CBI, AHD, Patna Vs. Braj Bhushan Prasad and others), the Hon'ble Supreme Court has further interpreted the term "exclusively" used in Section 89 of Bihar Reorganization Act, 2000 with particular reference to section 4(2) of Prevention of Corruption Act, 1988 on the point of jurisdiction of a court to try offence under section 13 of the aforesaid Act of 1988 . It has been held by the Hon'ble Supreme court that the place of trial with respect to offence under Prevention of Corruption Act would be the determinative factor by reference to the place where main offence was committed. It was also held that the fact that the other allied acts were committed at different places would be irrelevant. Para 26 to 29 of the aforesaid judgment are quoted as under for ready reference: -
"26. We pointed out the above different shades of meanings in order to determine as to which among them has to be chosen for interpreting the said word falling in Section 89 of the Act. The doctrine of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) has much relevance in understanding the import of words in a statutory provision. The said doctrine has been resorted to with advantage by this Court in a number of cases vide Bangalore Water Supply & Sewerage Board v. A. Rajappa, Rohit Pulp and Paper Mills Ltd. v. CCE, Oswal Agro Mills Ltd. v. CCE, K. Bhagirathi G. Shenoy v. K.P. Ballakuraya and Lokmat Newspapers (P) Ltd. v. Shankar prasad.
27. If so, we have to gauge the implication of the words "proceeding relating exclusively to the territory" from the surrounding context. Section 89 of the Act says that proceeding pending prior to the appointed day before "a court (other than the High Court), tribunal, authority or officer" shall stand transferred to the "corresponding court, tribunal, authority or officer" of Jharkhand State. A very useful index is provided in the section by defining the words "corresponding court, tribunal, authority or officer in the State of Jharkhand" as this:
[Section 89(3)(b)(i)] "The court, tribunal, authority or officer in which, or before whom, the proceeding would have laid if it had been instituted after the appointed day;"
28. Look at the words "would have laid if it had been instituted after the appointed day". In considering the question as to where the proceeding relating to the 36 cases involved in these appeals would have 16 laid, had they been instituted after the appointed day, we have absolutely no doubt that the meaning of the word "exclusively" should be understood as "substantially all or for the greater part or principally".
29. We cannot overlook the main object of Section 89 of the Act. It must not be forgotten that transfer of criminal cases is not the only subject covered by the section. The provision seeks to allocate the files or records relating to all proceedings, after the bifurcation if they were to be instituted after the appointed day. Any interpretation should be one which achieves that object and not that which might create confusion or perplexity or even bewilderment to the officers of the respective States. In other words, the interpretation should be made with pragmatism, not pedantically or in a stilted manner. For the purpose of criminal cases, we should bear in mind the subject-matter of the case to be transferred. When so considering, we have to take into account further that all the 36 cases are primarily for the offences under the PC Act and hence they are all triable before the Courts of Special Judges. Hence, the present question can be determined by reference to the provisions of the PC Act."
37. The allegations made in the aforesaid case reported in (2001) 9 SCC 432 (CBI, AHD, Patna Vs. Braj Bhushan Prasad and others) related to allegation under section 13(1) (c) and 13(1) (d) of of the said Act of 1988 and the present case inter alia relates to allegation under section 13(1) (e). In the judgement passed by Hon'ble Supreme Court reported in (2007) 6 SCC 91 (V .K Puri versus CBI) the judgement reported in (2001) 9 SCC 432 (CBI, AHD, Patna Vs. Braj Bhushan Prasad and others) has been distinguished while considering the point of jurisdiction of the Special Judge at Delhi to try the case under section 13(1) ( e) of the said Act of 1988 relating to allegation of disproportionate asset. It has been held that Special Judge at Delhi had the jurisdiction to try the case as the accused of the said case admittedly had a known source of income by way of rent from a property though he was never posted at Delhi. It has also been held in para 21 of the said judgement reported in (2007) 6 SCC 91 (V. K Puri versus CBI) that to arrive at a decision as to special Judge of which place has the requisite jurisdiction, the situs of property may or may not have any relevance. It has also been held in the said para 21 that once the situs of the property is held to have relevance for the purposes of ascertaining the known source of Income and 17 consequent acquisition of disproportionate assets, the special judge concerned will have the jurisdiction to try the offence. Para 20 and 21 of the aforesaid Judgement reported in (2007) 6 SCC 91 (V. K Puri versus CBI) are quoted as under for ready reference:-
20. In a case involving Section 13(1)(e) of the 1988 Act, what is necessary is as to whether keeping in view the period in question, commonly known as check period, the public servant has acquired wealth which is disproportionate to his known sources of income. It has nothing to do with individual case of bribery. It has nothing to do with a series of acts culminated into an offence.
21. Each court, where a part of the offence has been committed, would, therefore, be entitled to try an accused. The 1988 Act does not bar application of Section 178 of the Code of Criminal Procedure. If application of the provision of Section 178 of the Code of Criminal Procedure is not barred, the fact that the appellant has a part of his known sources of income at Delhi, in our opinion, would confer jurisdiction upon the Delhi Courts. It is one thing to say that only the Special Courts will have jurisdiction to try the offence, but for the purpose of arriving at a decision as to the Special Judge of which place shall have the requisite jurisdiction, the situs of the property may or may not have any relevance.
Once the situs of the property is held to have relevance for the purpose of ascertaining his known source of income and consequent acquisition of disproportionate assets, in our opinion, the Special Judge concerned will also have the requisite jurisdiction to try the case. For the said purpose, purport and object for which the 1988 Act has been enacted must be taken into consideration. The doctrine of purposive construction therefor must be taken recourse to."
This Court is of the considered view that in the present case, the location of one of the property at Patna and one fictitious bank account is at Patna has no relevance for the purposes of ascertaining the known source of Income of the petitioner and consequent acquisition of disproportionate assets. Accordingly, the said fact does not confer jurisdiction upon the special court at Patna to try the petitioner for the alleged offence under section 13(1) (e) read with section 13(2) of the said Act of 1988. Upon perusal of the charge- sheet, this Court finds that so far as the allegations relating to various provisions of section 13 of Prevention of Corruption Act, 1988 are concerned, the same related to the then posting of the petitioner as Block Development Officer in Dhanbad which is withing the State of Jharkhand. None of the source of income of the petitioner was located in the present State of Bihar. Considering the law laid down 18 by the Hon'ble Supreme court in the judgement reported in (2001) 9 SCC 432 (CBI, AHD, Patna Vs. Braj Bhushan Prasad and others) read with the Judgement reported in reported in (2007) 6 SCC 91 (V .K Puri versus CBI) as discussed above, this Court is of the considered view that as per the provisions of section 4(2) of Prevention of Corruption Act, 1988, the Special Court within the State of Jharkhand having Jurisdiction over Dhanbad would have exclusive jurisdiction to try the alleged offence under Prevention of Corruption Act, 1988 and the allied offence under various provisions of Indian Penal Code, considering the provisions of section 4(3) of Prevention of Corruption Act, 1988.
38. So far as Section 406 Cr.P.C is concerned, it deals with the power of the Hon'ble Supreme Court to transfer a case from one high court to another or from another one criminal court to another whenever it is made to appear to the Hon'ble Supreme Court that an order under Section 406 is expedient for the ends of justice. In the present case, the impugned order of transfer of case has been passed by a court having jurisdiction to take cognizance of offence and the case is to be tried by a court where the offence under Prevention of Corruption Act, 1988 was committed and such order is as per the mandate of section 4 of the prevention of Corruption Act, 1988.
39. In view of the aforesaid legal position this court is of the considered view that on 21.1.2009, the petition was rightly filed on behalf of the State with a prayer to transfer the case to Special Judge Vigilance Ranchi (Jharkhand) for trial. This Court is of the considered view that such prayer was rightly allowed by the learned Special Judge, Vigilance, I Patna vide impugned order dated 21.1.2009 as the court having jurisdiction over Dhanbad, where the offence relating to offences under section 13 of Prevention of Corruption Act, 1988 were alleged to have been committed would have exclusive jurisdiction to try the case which was registered under section 13 of Prevention of Corruption Act, 1988 as well as under Indian Penal Code. On the point of validity of order taking cognizance dated 02.07.2007 19
40. Before proceeding it would be relevant to note that there are two orders of cognizance on record. The first one is the impugned order dated 02.07.2007 for alleged offence under the provisions of Indian Penal Code. The other order of cognizance is dated 25.02.2008 whereby cognizance has been taken under section 13(1) (e) and section 13(2) of Prevention of Corruption Act, 1988 and the order dated 25.02.2008 is not under challenge.
41. In the order sheet dated 2.7.2007 of the lower court record, it has been mentioned that the investigating officer submitted charge- sheet bearing number 106/07 dated 2.07.07 along with case diary and supplementary case diary and it was also mentioned that appropriate steps have been taken for obtaining prosecution sanction. By the same order cognizance of offence was taken against the petitioner u/s 420/ 465/ 467/ 468/ 471/ 477A/ 120B IPC and it was observed that cognizance of offence under the provisions of Prevention of Corruption Act, 1988 will be taken upon receipt of sanction order.
42. Considering the fact that as per charge-sheet some part of the alleged offence under various sections of Indian Penal Code had taken place at Patna where fictitious bank account was alleged to have been opened by the petitioner, and a car was alleged to have been purchased by the petitioner in the name of his brother who lives in America, this Court, is of the considered view that even after bifurcation of the State of Bihar, the Court at Patna continued to have jurisdiction to take cognizance of offence under various provisions of Indian Penal Code by the impugned order dated 02.07.2007. Thus, this Court is of the considered view that there is no illegality in the impugned order of cognizance dated 2.7.2007.Subsequently vide order dated 25.2.2008, the learned court below took cognizance of offence u/s 13 (2) read with section 13 (1) (e) of Prevention of Corruption Act, 1988 upon receipt of prosecution sanction which is not under challenge.
43. In the judgement passed by the Hon'ble Supreme court reported in 20 (1999) 8 SCC 686 (Trisuns Chemical Industry Vs. Rajesh Agarwal and Others), it has been held that it is an erroneous view that the magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well and has also held that the jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It has also been held that the provisions of Sections 177 and 179 of Cr. P.C. do not trammel the powers of any court to take cognizance of offence. Further, in the judgement passed by Hon'ble Supreme Court reported in (2013) 10 SCC 705, it has been held that a Special Judge is deemed to be a magistrate u/s 5 (4) of the Prevention of Corruption Act, 1988 and is competent to take cognizance of offence under Prevention of Corruption Act, 1988 as well as under section of Indian Penal Code.
44. In the present case part of cause of action relating to alleged offences under Indian Penal Code did arise at Patna as held above. Accordingly, the judgements relied upon by the petitioner do not apply to the facts and circumstances of this case. The judgement relied upon by the petitioner reported in (2004) 8 SCC 100 does not apply to the facts and circumstances of this case as the Hon'ble Supreme court has interpreted the provisions of section 177 and 178 of Cr.P.C. and has held that the complaint filed under section 498 A and 406 IPC and section 4 of Dowry Prohibition Act, 1961 could not be entertained by the court in absence of any cause of action within the jurisdiction of the court concerned as it could not be tried or enquired into by such court and in the facts of the said case section 178 (c) did not apply. The other judgement relied upon by the petitioner reported in (2005) 3 SCC 507 also does not apply to the facts and circumstances of this case. In the said case the issue before the Hon'ble supreme court was as to whether the complaint case filed under section 498A and 406 IPC could be tried in a court under whose jurisdiction none of the ingredients of the alleged offence was committed. The third judgement relied upon by the petitioner is reported in (2014) 12 SCC 362 where the issue was as to whether the 21 court had the jurisdiction to try the offence under section 498A and whether the offence was a continuing offence under section 178 (c) of Cr.P.C. The judgements relied upon by the petitioner do not apply to the facts of the present case also due to the reason that the allegations in the present case relating to offence under various provisions of Indian Penal Code were partly committed at Patna where cognizance of offence under various provisions of Indian Penal Code has been taken by the impugned order dated 02.07.2007 and accordingly it cannot be said that there was no cause of action at Patna. Further the occasion to consider as to which court would have the jurisdiction to try the case arose only after the cognizance was taken under section 13(2) and section 13(1) (e) of Prevention of Corruption Act, 1988 on 25.02.2008 when considered in the light of section 4 of the said Act of 1988.
45. So far as the merit of the allegations against the petitioner is concerned, the explanation furnished by the petitioner in connection with his assets cannot be appreciated at this stage of cognizance and there is clear cut allegation of opening a fictitious account at Patna. However, it will be open to the petitioner to raise all points at appropriate stage and dismissal of this case will not prejudice the case of the petitioner before the learned court below in any manner.
46. As a cumulative effect of the aforesaid findings, this Court does not find any illegality or irregularity in the impugned order of cognizance dated 02.07.2007 and further rejects the argument of the petitioner that the order taking cognizance dated 2.7.2007 is wholly without jurisdiction.
Finding on the point of legality of order date 10.5.2018 directing to issue process u/s 82 Cr.P.C
47. The specific case of the petitioner is that the matter was pending before the learned court below for receipt of the execution report of non bailable warrant of arrest but the learned court below passed the order directing issuance of process u/s 82 Cr.P.C without waiting for execution report without application of judicial mind 22 and without recording the requisite satisfaction and accordingly it has been submitted that not only the order dated 10.5.2018 but also all the subsequent and consequential order are fit to be set aside.
48. Upon perusal of the order-sheet of the learned court below this court finds as follows:-
i. On 28.8.2008 non-bailable warrant of arrest was issued against the petitioner.
ii. On 8.12.2008 the petitioner filed an application for anticipatory bail as well as vakalatnama and its hearing was adjourned to 10.12.2008. The matter was adjourned from time to time at the request of the counsel for the petitioner before the learned court for the purposes of hearing of the anticipatory bail application.
From the aforesaid facts, it is clear that the petitioner had full knowledge of pendency of the case before the court of Special Judge, Vigilance Patna.
iii. On 21.1.2009, a petition was filed on behalf of the State that the petitioner was posted at Dhanbad and he acquired the property mainly in Jharkhand and accordingly a prayer was made to transfer the case to Special Judge Vigilance Ranchi (Jharkhand) for trial. This prayer was allowed by the learned Special Judge, Vigilance, I Patna vide impugned order dated 21.1.2009. iv. Thereafter, the case records were transferred to Special Judge Vigilance Ranchi and was registered in the court of Special Judge, Ranchi as Special Case No.5/2009 (Ranchi) and the matter was adjourned from time to time for appearance of the petitioner.
v. This Court also finds from the records of the learned court below that one Cr. Misc. Petition No.4901/2009 was filed by the petitioner before the Hon'ble Patna High Court u/s 482 Cr.P.C challenging the aforesaid two orders taking cognizance of offence dated 2.7.2007 and 25.2.2008. A copy of the petition filed before Patna High Court is available in the lower court records. It further appears from the lower court records itself that Cr.
23Misc. No.4901/2009 was dismissed as not pressed vide order dated 14.05.2010 with an observation that the said order shall not prejudice the petitioner in availing his remedies in accordance with law before the competent court in the State of Jharkhand.
vi. This Court finds that the order dated 21.01.2009 was passed by the learned court at Patna clearly indicated that the case records were to be transferred to Special Judge Vigilance Ranchi (Jharkhand) and this order was passed after appearance of the accused way back in the year 2008 therefore it cannot be said that the petitioner had no knowledge of the fact that the case has been transferred to the court of learned Special Judge Vigilance Ranchi (Jharkhand). Further from perusal of order dated 14.05.2010 passed in Cr.M.P. No.4901/2009 also it is clear that the petitioner was fully aware that the case records have been transferred to the court in the State of Jharkhand. vii. It is further apparent that the case remained pending before the Special Judge at Ranchi right from 12.2.2009 till 9.8.2012 awaiting appearance of the petitioner but neither the petitioner appeared nor pressed his anticipatory bail application. viii. On 20.9.2012 the learned Special court at Ranchi recorded absence of the petitioner and directed issuance of bailable warrant of arrest on the address mentioned in the aforesaid Cr.M.P petition filed before Patna High Court. Thereafter, non- bailable warrant of arrest was issued vide order dated 21.11.2012. The order dated 27.11.2012 indicates that steps were taken by S.P. Vigilance Ranchi by issuing letter to S.P. Godda for execution report and the matter was adjourned from time to time right from 27.11.2012 till 23.2.2016 awaiting the execution report of non bailable warrant of arrest against the petitioner. ix. On 11.4.2016 also, the execution report of non-bailable warrant of arrest was not yet received and the office was directed to issue notice to bailors although there is neither any bail order 24 nor any bail bond or record and as indicated above the anticipatory bail application of the petitioner continued to remain pending. It further appears that the case was adjourned from time to time till 10.8.2017 awaiting appearance of the petitioner and for compliance of order dated 11.4.2016. x. However, vide order dated 20.9.2017, the case was transferred to the court of learned Special Judge Anti-Corruption Bureau, Dhanbad before whom the case is pending at present. xi. Again, non bailable warrant was issued on 28.11.2017 and that matter was adjourned from time to time awaiting execution report of non-bailable warrant of arrest.
xii. The learned Special Judge vide impugned order dated 10.5.18 directed the office to issue process u/s 82 Cr.P.C and the order reads as follows:
"Accused is absent. E/R of NBWA not received o/c to issue Process u/s 82 Cr.P.C against him. Put up on 30/05/18 for appearance."
49. From perusal of sub section (1) of Section 82 of Cr.P.C, it is clear that the condition precedent for issuance of process under section 82 of Cr.P.C, against whom warrant has been issued ,the Court is required to record reasons to believe that such person is either absconding or concealing himself, so that the warrant cannot be executed and accordingly it is not possible to arrest him, and only thereafter the Court should issue proclamation requiring the person to appear on a specified date on specified time not less than 30 days from the date of publication of such proclamation.
50. It is clear that at first the Court has to apply judicial mind on the materials on record in order to come to the requisite conclusion / satisfaction calling for issuance of processes under Section 82 of the Code of Criminal Procedure. In absence of any reason and /or recording of satisfaction in the impugned order for issuance of processes under Section 82 of the Code of Criminal Procedure, which has serious consequences and on account of this sole reason, 25 the impugned order dated 10.5.2018 cannot be sustained in the eyes of law, which is accordingly set aside. Subsequent order dated 18.07.2018 passed as a result of order dated 10.5.2018, is also set aside. The matter is remanded back to the learned court below, before whom the case is presently pending at Dhanbad for fresh consideration on the point of issuance of process under section 82 Cr.P.C as per law. It will certainly be open to the petitioner to press his anticipatory bail application (which is pending for consideration as per lower court records) if so adviced.
51. Accordingly, the present petition is partly allowed.
52. Considering the fact that the F.I.R is of the year 1991, the learned court below is directed to make all endeavour for expeditious disposal of the case.
53. Pending interlocutory application, if any is dismissed as not pressed.
54. Interim order, if any, stands vacated.
55. The original records of the learned court below are directed to be immediately sent back to the concerned court at Dhanbad.
56. Let this order be immediately communicated to the learned court below at Dhanbad through FAX/E-mail.
(Anubha Rawat Choudhary, J.) Saurav/