Pramod Chandra Gupta vs State Of U.P. And Another on 9 December, 2022

[Cites 50, Cited by 1]

Allahabad High Court

Pramod Chandra Gupta vs State Of U.P. And Another on 9 December, 2022

1. Heard Shri Manish Gupta, assisted by Shri Abhishek Tripathi, Shri Shiv Sagar Singh, learned counsels for the petitioners, Shri Gyan Prakash, learned Senior Advocate, assisted by Shri Sanjay Yadav, learned counsel for C.B.I, Ms. Manju Thakur, learned A.G.A. for the State and Shri Jitendra Prasad Mishra, learned counsel appearing on behalf of Directorate of Enforcement.

2. Reliefs pressed by the petitioners/CBI:

(i) Criminal Misc. Writ Petition No. 1294 of 2020

(a) Issue a writ, order or direction in the nature of certiorari quashing the FIR bearing no. RC1202019A0008 dated 24.12.2019 registered by Central Bureau of Investigation, Ghaziabad, U/s 420, 467, 468, 471, 120-B IPC and Section 13(1)(c), 13(1)(d) read with Section 13(1)(2) of PC Act, 1988 in pursuance of the Gazette Notification bearing no. 228/35/2018-AVD-II dated 24.10.2019 issued by DOPT, Ministry of Personnel, Public Grievance and Pensions, Government of India for further investigation being violative of Article 14 , 20 and 21 of the Constitution of India.

(ii) Criminal Misc. Writ Petition No. 622 of 2022

(a) Issue a writ, order or direction in the nature of certiorari for setting aside and/or to quash the FIR bearing no. RC1202019A0008 dated 24.12.2019 registered by Central Bureau of Investigation, U/s 120-B, 420, 467, 468, 471 IPC r/w Section 13(1)(c), 13(1)(d) and Section 13(2) of Prevention of Corruption Act, 1988, in pursuance of the Gazette Notification bearing no. 228/35/2018-AVD-II dated 24.10.2019 issued by DOPT, Ministry of Personnel, Public Grievance and Pensions, Government of India for further investigation having identical allegations in FIR bearing no. 421/2018 dated 03.06.2018 registered by P.S. Kasna, Gautam Budh Nagar, u/s 120-B, 420, 467, 468, 471 IPC r/w Section 13(1)(c), 13(1)(d) and Section 13(2) of Prevention of Corruption Act, 1988 in which cognizance was taken, charges were framed and trial was going on before the Ld. Trial Court, Anti Corruption, Meerut in which cognizance was taken, charges were framed and trial was going on before the Ld. Trial Court, Anti Corruption, Meerut as the said second FIR is not maintainable on identical allegations in the eyes of law in which cognizance is taken, charges are framed as the law laid down by the Hon'ble Supreme Court of India in "T.T. Antony vs. State of Kerala and others" (2001) 6 SCC 181 dated 12.07.2001 and "Arnab Manoranjan Goswami vs. State of Maharashtra" (2021) 2 SCC 427 dated 27.11.2020; and/or

(iii) Criminal Misc. Writ Petition No. 7160 of 2022

(a) Issue a writ, order or direction in the nature of Certiorari for setting aside and/or to quash the ECIR bearing no. ECIR/03/LKZO/2020/242 registered by the Directorate of Enforcement arising out of the FIR bearing no. RC1202019A0008 dated 24.12.2019 registered by Central Bureau of Investigation, U/s 120-B, 420, 467, 468, 471 IPC r/w Section 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988; and

(b) Issue a writ, order or direction in the nature of Certiorari for setting aside and/or to quash Summon dated 29.04.2022 bearing No. PMLA/SUMMON/LKZO/2022/516 issued by the office of Directorate of Enforcement to the Applicant/petitioner in the aforesaid ECIR bearing no. ECIR/03/LKZO/2020/242 registered by the Directorate of Enforcement arising out of the FIR bearing no. RC1202019A0008 dated 24.12.2019 registered by Central Bureau of Investigation, U/s 120-B, 420, 467, 468, 471 IPC r/w Section 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988; and

(c) Issue an order or direction in the nature of mandamus summoning all the record of the instant ECIR bearing no. ECIR/03/LKZO/2020/242 registered by the Directorate of Enforcement arising out of the FIR bearing no. RC1202019A0008 dated 24.12.2019 registered by Central Bureau of Investigation, U/s 120-B, 420, 467, 468, 471 IPC r/w Section 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.

(d) Issue an order or direction in the nature of mandamus directing the Respondent ED not to proceed further and take any coercive action against the Petitioner/still the final adjudication of the instant Writ Petition.

(iv) Criminal Misc. Writ Petition No. 10995 of 2021

(a) Issue a writ, order or direction in the nature of mandamus quashing the impugned notification bearing No. U.O.-31/6-PO-9-18-167G/2009-Nyay-2 dated 24.07.2018, issue by Under Secretary, Department of Home Affairs, Government of U.P.;

(v) Criminal Misc. Writ Petition No. 8758 of 2022

(a) Issue a writ, order or direction in the nature of Certiorari for quashing the proceedings of ECIR bearing no. ECIR/03/LKZO/2020/242 registered by the Directorate of Enforcement;

(b) Issue a writ, order or direction in the nature of Certiorari quashing the Summons dated 29.04.2022 bearing No. PMLA/SUMMON/LKZO/2022/511, 512 issued by the Office of Directorate of Enforcement to the Petitioners in the aforesaid ECIR bearing no. ECIR/03/LKZO/2020 registered by the Directorate of Enforcement; and

(c) Issue an order or direction prohibiting the respondents to proceed any further in pursuance to the ECIR bearing no. ECIR/03/LKZO/2020 and further to command them not to take any coercive measure in pursuance thereof in the nature of mandamus directing the Respondent E.D. not to proceed further and take any coercive action against the Petitioners/till the final adjudication of the instant Writ Petition.

(vi) Criminal Misc. Transfer Application No. 239 of 2020 CBI has sought transfer of the trial from court at Meerut to the CBI court at Ghaziabad:

"It is, therefore, most humbly prayed that the Hon'ble Court may graciously be pleased to allow this transfer application and transfer the Session Trial of all 5 court cases No. (CC No. 160/2018, 24/2019, 45/2019, 70/2019 and 84/2019) in Case Crime No. 421 of 2018, under Sections 120-B, 420, 467, 468 & 471 of IPC and Section 13 of Prevention of Corruption Act, registered with Police Station Kasna, District Gautam Budh Nagar, Uttar Pradesh to Hon'ble Court of Special Judge, Anti Corruption, Ghaziabad and till the matter not transferred to Hon'ble Court of Special Judge, CBI Anti Corruption, Ghaziabad trial proceeding in all related matters i.e. may be kept in abeyance in the interest of justice/or pass such other and further order which this Hon'ble Court may deem fit and proper under circumstances of the case, otherwise the applicant shall suffer irreparable loss injury."

3. The afore-noted writ petitions arise from the same incident and facts, accordingly, on consent of the parties, are being heard and decided together by a common judgment and order.

4. The writ petitions (7160/2022 and 8758/2022) filed against the FIR lodged by the Enforcement Directorate for money laundering by reproducing the FIR lodged by the U.P. Police and CBI, is dependant on the fate and outcome of other writ petitions. Learned counsel for the petitioners has submitted that nothing more is required to be stated in respect of the above noted writ petitions.

5. The facts, inter se, parties are not in dispute.

6. Briefly, the writ petitions, inter alia, raise challenge to (i) the notification issued by the Government of Uttar Pradesh transferring the investigation to Central Bureau of Investigation1; (ii) FIR lodged by the CBI pursuant to the notification of the State Government/DOPT; (iii) FIR lodged by the Directorate of Enforcement consequent to the FIR/report filed by the CBI; (iv) petition filed by the CBI seeking transfer of the trial from the court of Special Judge, Anti Corruption, Meerut, to Special Judge, Anti Corruption, CBI at Ghaziabad.

FACTS

7. On 03.06.2018, FIR bearing Case Crime No. 421 of 2018, under Sections 120-B, 420, 467, 468, 471 IPC, read with, Section 13(1)(c),(d) and 13(1)(2) of PC Act, P.S. Kasna, District Gautam Budh Nagar, came to be lodged by Yamuna Expressway Industrial Development Authority2 against 21 nominated and other unknown persons. It was alleged in the report that with regard to purchase of 57.1549 hectare land, it transpired from the enquiry report dated 8.11.2017, submitted by the General Manager Project, and from another enquiry report dated 7.5.2018, submitted by the Chief Executive Officer, YEIDA/ Chairman/ Commissioner, Meerut Division, Meerut, that the land of seven villages of district Mathura, was purchased by YEIDA for which Rs.85.49 crore was paid. The inquiry revealed that the then Chief Executive Officer3, YEIDA, and other officers conspired in the purchase of land through their relatives, friends and other related persons. The purchased land was subsequently found not fit and conducive for the purpose for which the land was purchased by YEIDA. The land purchased, through relatives and friends of the officers of YEIDA, was purchased at exorbitant rates, thereby, causing huge loss to YEIDA. It was further revealed in the enquiry that the entire land purchased i.e. 57.1549 hectare is still lying vacant as it cannot be utilized by YEIDA, being non contagious i.e. scattered. The report, thereafter, details the irregularities/illegalities committed by the accused persons in purchase of land in the seven villages of Mathura.

8. Thereafter, pursuant to Order No. 1770(2)/P/VI-P-3-2018-15(06)P/2018 dated 26.07.2018, of Government of U.P. and subsequent Gazette Notification No. 228/35/2018-AVD-II dated 24.10.2019 issued by Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, Govt. of India, New Delhi4, the Case Crime No. 421/2018, was transferred to CBI, consequently, a Regular Case RC1202019A0008 was re-registered at CBI/ACB/Ghaziabad on 24.12.2019, pursuant to which investigation of Case Crime No. 421/2018, Police Station Kasna, District Gautam Budh Nagar, was taken over by CBI for further investigation. It appears that U.P. Police, either were not informed/aware that the investigation has been transferred to CBI and they proceeded with the investigation. Pursuant to the FIR initially registered with UP Police bearing Case Crime No. 421/2018, UP Police had arrested Shri PC Gupta on 23.06.2018 and a report (chargesheet) U/s 120-B, 420, 467, 468 & 471 IPC and Section 13(2) of PC Act, was filed against him before the Special Judge, Anti Corruption, Court No. 02, Meerut, on 18.09.2018. Role of few more accused persons surfaced, consequently, four more supplementary charge sheets were filed by U.P. Police on different dates i.e. 8.03.2019, 22.05.2019, 23.08.2019 and 24.09.2019, against Ranveer Singh, Bajesh Kumar, Gaurav, Manoj, Anil, Jugesh, Satender S/o Tursan Pal, Satender S/o Khem Chand, Sanjeev Kumar, Ramesh Bansal and Sonia Bansal.

9. Learned Special Judge, Anti Corruption, Meerut, passed orders on 1.05.2019, 7.06.2019 and 11.02.2021, respectively, framing charges against the accused, however, the accused came to be discharged by the court for offences under Sections 467, 468, 471 IPC and Section 13(1)(c) and (d) of PC Act. It is, thereafter, the CBI reproduced and re-registered Case Crime No. 421 of 2018, bearing No. RS 1202019A0008 dated 24.12.2019, under the same sections after lapse of sixteen months from the notification of the State of U.P. transferring the investigation.

10. After investigation, CBI filed supplementary report (charge-sheet No. 11 dated 23.12.2021), before the CBI Court at Ghaziabad, against 31 accused persons, including, companies under Sections 120-B, 420, 468, 471 IPC and Section 13(2) read with 13(1)(d) of PC Act. Accused, Nidhi Chaturvedi and Pramod Yadav, were not charge-sheeted for want of evidence against them. The report notes/records the background of the events of the crime.

Result of the Investigation

11. Investigation undertaken by CBI revealed that YEIDA is the nodal agency responsible for implementing the Yamuna Expressway Project and allied development in the region. Major decisions pertaining to policy matter is taken by the Board of YEIDA, which, inter alia, consists of the Principal Secretary to the Government of Uttar Pradesh and other officers. Day to day work of the YEIDA is looked after by the Staff of YEIDA, headed by CEO and other subordinate officers who work under his administrative control. CEO is authorized by the Board to provide financial and administrative approval in the matter of purchase of land from farmers through mutual consent as per the requirement of YEIDA. Investigation revealed that PC Gupta was working as CEO of the Authority during the relevant period when the land came to be purchased.

12. All the land related matters of YEIDA, viz- purchase of land through mutual consent, acquisition, resumption of LMC land, award to the affected farmers, is looked after by the Land Department, YEIDA, headed by Officer on Special Duty5 (Land) and assisted by Tehsildar, Naib Tehsildars, Lekhpals and others. Investigation revealed that VP Singh had worked as OSD, Ranveer Singh and Suresh Chand Sharma was posted as Tehsildar in YEIDA, during the relevant period, along with other staff. All the staff of Land Department were appointed on deputation.

13. Investigation further revealed that during the years 2014-16, about 57 hactare of land was purchased by YEIDA in seven villages of district Mathura, viz- Madore, Seupatti Bangar, Seupatti Khadar, Kaulana Bangar, Kaulana Khadar, Sotipura Bangar and Nauzhil Bangar, for an amount at Rs.96,33,65,575/- through 180 sale deeds for the following three purposes:

(1) For the construction of an entry-exit ramp near Bajna at the Yamuna Expressway (8.38 hectare) (2) For allotment of abaadi plots to the farmers whose land had been acquired for the construction of Yamuna Expressway (12 hectare) and (3) For the future development near the entry-exit ramp Bajna.

14. Investigation further revealed that Officers of YEIDA, including, PC Gupta - CEO, VP Singh- OSD, Suresh Chand Sharma - Tehsildar, Ranveer Singh - Tehsildar and other private persons entered into criminal conspiracy in furtherance of the crime, the above officers, by abusing their official position as public servant, dishonestly and fraudulently got the land purchased from the farmers for their acquaintance, relatives, friends and related persons in their names. Thereafter, within a short span of two/three months, the same land was got purchased for YEIDA by the above noted officers on more than double the rates, thereby, earned wrongful gain for themselves and caused wrongful loss to YEIDA.

15. Investigation further revealed that all the above land (approx 21 hectare) was purchased by YEIDA from outsiders i.e. who are not local residents and they (outsiders) had purchased the same land from the local farmers on much lower rates, just two-three months prior, to sell their land to YEIDA. Investigation revealed that all these outsiders (person/companies) are related/associated/allied, to the officials of YEIDA, namely, PC Gupta- CEO, VP Singh - OSD, Suresh Chand Sharma, Tehsildar and Ranveer Singh, Tehsildar.

16. Investigation further revealed that no detail is available in the file pertaining to payment and publication of the advertisement in newspapers (related to purchase of land by YEIDA). It is further revealed that public notice of one village, viz., Seupatti Bangar, (against the land of five villages) was shown published in local newspaper, which has practically no circulation.

17. Investigation further revealed that weekly newspaper ''Manohar Samachar' of Agra, is not authorised by Directorate of Advertising and Visual Publication6 for publication of any Government advertisement. In written reply, publisher confirmed that no such advertisement on behalf of YEIDA was ever published in his newspaper on 28.12.2013. It has been further informed by the publisher that he is authorized to publish his newspaper only on Sunday, whereas, advertisement has been shown published on Saturday, in the files of YEIDA. This establishes that fake newspaper was manufactured to complete the official record by the officials of YEIDA.

18. Further, to hide the purchase and payment from the Income Tax Department, the officials of YEIDA kept the sale amount below Rs.30 lakhs in the sale-deeds to avoid information to the Income Tax Department. On scrutiny, it is revealed that the balance amount towards consideration of the purchased land was subsequently released by YEIDA. In other words, to avoid scrutiny of the exorbitant rates, the sale consideration of the purchased land was broken in parts.

19. As per rule, the stamp duty should have been paid on the total purchase consideration i.e. 9,07,30,399/-, however, in this case the stamp duty was paid only for the amount of Rs. 4,99,18,462/- and rest of the amount i.e. Rs.4,08,11,937/- was paid to the farmers as Remaining Amount (Awshesh Rashi) to by-pass the Revenue, which is against the provision of the Stamp Act.

20. Investigation further revealed that out of 35.7 hectare, approx 27.4565 hectare land, was purchased from the outsiders i.e. sixteen persons/companies, all related/associated/allied to the accused officers of YEIDA, namely, PC Gupta, VP Singh, Suresh Chand Sharma and Ranveer Singh. These persons/companies are not the local residents of the villages of district Mathura, but, had purchased the land just two-three months back, from the local land owners by cheating them and subsequently sold the same land to YEIDA on more than double the purchase rates, thereby, making windfall gain for themselves and causing wrongful loss to YEIDA.

21. Investigation further revealed that out of 56.481 hectare land purchased by YEIDA, approx 41 hectare land was purchased by nineteen persons/companies, who are related/associated/allied to the officers of YEIDA viz. PC Gupta, VP Singh, Suresh Chand Sharma and Ranveer Singh, who had purchased parcel of land just two-three months earlier from the local farmers on much lesser rates and sold the same land to YEIDA on exorbitant higher rates.

22. The relatives and acquaintance, include, nephew, wife, daughter, brother-in-law, father-in-law, sister's son, servant, gardener.

23. That apart, land was purchased through dormant/shell companies, wherein, life was injected into the companies at the relevant time to purchase the land. The shares of these companies were transferred to the relatives/friends/acquaintance of the officers of YEIDA, before purchase of the land.

24. Investigation further revealed that Khasra (plot) numbers purchased for the development purpose is not contagious, therefore, cannot be utilised for any development purpose, in its present form, as the Khasra numbers (plots) are scattered and lying at considerable distance from each other.

25. Questions for determination:

Having heard the rival contentions, the questions that arise for consideration is as to whether (i) FIR lodged by the CBI is second FIR for the same incident and facts; (ii) whether further investigation and consequent supplementary report submitted by the CBI would vitiate the investigation for want of permission of the concerned court; (iii) whether it is a case of double jeopardy insofar it relates to those accused who were already discharged for want of evidence by the trial court for offence under Sections 467, 468, 471 IPC and Section 13(1)(c) and (d) of Prevention of Corruption Act, 19887; (iv) whether CBI was justified in filing supplementary report (chargesheet) for the very same offence for which the accused came to be discharged; (v) whether investigation by U.P. Police/CBI -- irregular/illegal; and (vi) whether CBI designate court Special Judge, Anti Corruption at Ghaziabad would have jurisdiction of trial or the Special Judge, Anti Corruption, Meerut.

26. Question No. 1 :- (i) whether FIR lodged by CBI-- a Second FIR. (ii) whether the notification issued by U.P. Government and DOPT legal and valid.

27. On bare perusal of the impugned FIR, it came to be lodged by the CBI pursuant to the notification of DOPT issued under Section 5(1) of the DSPE Act. The FIR was re-registered by the CBI by reproducing the FIR of Case Crime No. 421 of 2018, lodged by U.P. Police. The FIR itself in column-12 clearly notes "in compliance of above said notification, the FIR of Case Crime No. 421 of 2018 of Police Station Kasana, District Gautam Budh Nagar is reproduced below".

28. In this backdrop, the submission of learned counsel for the petitioner that the FIR re-registered by CBI by reproducing the FIR of Case Crime No. 421 of 2018, is second FIR, for the same incident, arising from the same facts is incorrect. The events that have unfolded as noticed herein above, reflect that it is a case of mere transfer of the investigation of Crime Case No. 421 of 2018, to a superior investigating agency i.e. C.B.I. pursuant to the notification issued by the Government of Uttar Pradesh. Accordingly, the dictum laid down in T.T. Antony vs. State of Kerala and others8, would not apply. The Court in T.T. Antony (supra) held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. Only information about commission of a cognizable offence, which is first reduced in the station house diary by Station Incharge of Police Station can be registered as FIR under Section 154 Code of Criminal Procedure, 19739. A subsequent information will be covered by Section 162 Code.

29. In Pradeep Ram v. State of Jharkhand and another10, the issue, inter alia, that fell for consideration was "whether re-registration of F.I.R. No.RC- 06/2018/NIA/DLI is a second F.I.R. and is not permissible there being already a FIR No. 02/2016 registered at P.S. Tandwa arising out of same incident?"

30. The Court was of the opinion that ''FIR, which was re-registered by NIA on 16.02.2018 cannot be held to be second FIR of the offences rather it was re-registration of the FIR to give effect to the provisions of the NIA Act and re-registration of the FIR is only procedural act to initiate the investigation and the trial under the NIA Act. The re-registration of the FIR, thus, is neither barred nor can be held that it is second FIR.'

31. In the given facts at hand, CBI merely re-registered the Crime Case 421/2018, lodged by the U.P. Police by reproducing it as per the CBI Manual. It is not a case of second FIR being lodged by the CBI on receipt of a subsequent information. Neither, it is a case of ''fresh'/''denovo' or ''reinvestigation' by the CBI, which the CBI otherwise, is not empowered to conduct. The submission of the counsel for the petitioner that the impugned FIR is second FIR, lacks merit, accordingly, rejected.

(ii) Notification whether valid and legal.

32. Learned counsel for the petitioner in the same breath submits that the notification issued by the Government of U.P. transferring the investigation to the CBI and the consequent notification issued by the DOPT, New Delhi, according approval is bad in law. On specific query, learned counsel for the petitioner does not dispute that the State Government was competent and within its right to order CBI investigation in exercise of power under the DSPE Act. Malafide is not alleged against the officials or the Government. Further, petitioners failed to show as to how they were prejudiced by transfer of the case to another investigating agency i.e. CBI. Similarly, DOPT was competent in accepting the request of the State Government, consequently, the notification entrusting investigation to CBI came to be issued. Mere delay in accepting the request of the State Government by the DOPT would not render the notification illegal or irregular.

33. The State Government having regard to the involvement of senior government officials, private persons and companies in the alleged land scam was justified in getting the case investigated by a superior agency. Fair and proper investigation of the case is in the interest of the petitioners. The U.P. Police, it will later be seen, that due to their inept and faulty investigation, petitioners came to be discharged of serious offences under the IPC and PC Act. Fair and unbaised investigation is the foundation of fair trial, which is also in the interest of the society. Learned counsel for the petitioners failed to show as to how the respective notifications issued by the State Government and the DOPT is bad in law or irregular.

34. Question No. 2 :- Whether permission of the court was required to be obtained by the C.B.I. for further investigation.

35. In Vinubhai Haribhai Malaviya and others v. State of Gujarat and another11, the question before the Court that had arisen was ''whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, upto what stage of a criminal proceeding'.

36. The Supreme Court answered the question stating that the power of the Magistrate would be available at all stages of the progress of a criminal case before the trial actually commences.

37. Though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct ''further investigation' or file ''supplementary report' with the leave of the Court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct ''further investigation' and file ''supplementary report' with the leave of the court. The requirement of seeking prior leave of the court to conduct ''further investigation', and/or, to file a ''supplementary report' was held to have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. (Refer: Vinay Tyagi12 case)

38. It has been a procedure of proprietary and ordinarily desirable that the police should inform and has to seek permission of the court to continue ''further investigation' and file supplementary chargesheet. Even otherwise, to seek such leave of the court would meet the ends of justice and also provide adequate safeguard against a suspect/accused.

39. The next question that would follow is as to when the trial before the Court of Sessions commences.

40. In Common Cause vs. Union of India13, Supreme Court upon examining the provisions of the Code held that before the Sessions Court trial commences when charges are framed.

"1. II (i) In cases of trials before the Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the cases concerned."

41. The investigating agency/CBI is, however, not empowered to conduct ''denovo'/''fresh'/''reinvestigation'. The power conferred upon the investigating agency is of ''further investigation'.

42. Supreme Court in Vinay Tyagi Vs. Irshad Ali alias Deepak and Others14, laid down as follows:

"No investigating agency is empowered to conduct a ''fresh', ''de novo' or ''re-investigation' in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned magistrate."

43. The law as it stands is that the investigating agency under section 173(8) of the Code is required to inform and take permission of the court to conduct further investigation.

44. Now reverting to the facts brought on record. U.P. Police continued with the investigation despite the State Government had notified to transfer the case to be investigated by the C.B.I. However, before C.B.I. could re-register the FIR, the U.P. Police filed the first charge-sheet on 18.09.2018 (107/18), thereafter, four supplementary charge-sheets came to be filed on 8.3.2019 (24/19), 24.5.2019 (45/19), 23.8.2019 (70/19) and 24.9.2019 (84/19). The trial court, thereafter, framed charges against the charge-sheeted accused, vide orders dated 1.5.2019, 7.6.2019 and 11.2.2019. It is, thereafter, C.B.I. re-registered the Case Crime No. 421 of 2018 on 24.12.2019, as a regular case. In this backdrop, it is submitted that the investigating agency i.e. C.B.I. could not have proceeded to investigate the case as the trial had already commenced. Further, no permission was sought from the trial court for further investigation as mandated in Vinay Tyagi (supra) and subsequently followed in later pronouncement.

45. The primary police report dated 3.8.2018, filed by the U.P. Police, was submitted before the court on 20.9.2018, against one of the accused out of 22 nominated and other unnominated persons. In the police report (charge-sheet), it has been categorically stated by the Investigating Officer that the investigation against the other accused is still pending and under progress. Similarly, the subsequent supplementary charge-sheets submitted by the U.P. Police against other accused persons, clearly states and records that the investigation in respect of other accused persons is pending. Thereafter, the investigation, pursuant to the notification of the State Government and the DOPT, came to be transferred and re-registered by the C.B.I. In other words, CBI entered into the shoes of the U.P. Police to conclude the pending investigation of Case Crime No. 421/2018.

46. In this factual backdrop, the submission of the learned counsel for the petitioner that no permission was sought from the court, lacks substance and merit. It is not the case of the petitioners that the police report submitted by the U.P. Police tantamounts that the investigation of the case had concluded and was finally closed, rather, it is reflected from the charge-sheet and the supplementary charge-sheets, submitted by the U.P. Police before the competent court, that investigation in respect of other accused was pending and under progress. The information to the court through the police report that investigation is pending and under progress against other accused is sufficient compliance with regard to the ongoing investigation. Mere transfer of the pending investigation to the CBI, certainly would not tantamount to further investigation being carried out by the CBI after the U.P. Police having closed the investigation. The investigation by CBI is continuation of the very same case crime taken over from U.P. Police. The mandate of Vinay Tyagi (supra) is applicable in a case where the investigating agency concludes the investigation by submitting police report. The embargo of informing/taking permission of the court for further investigation would not apply in a case where the investigation is under progress against other accused and yet to be concluded. The U.P. Police in each of the report filed before the court had informed the court of the pending investigation.

47. Further, there is no prohibition under the Code to preclude the trial court from proceeding with the trial against the accused already charge-sheeted by the U.P. Police during pendency of the investigation against other accused persons. The trial court need not wait until conclusion of the investigation against other accused. The trial can proceed against the charge-sheeted accused on material brought on record by the prosecution.

48. On perusal of the scheme of the Code pertaining to investigation, forwarding of police report, cognizance and commitment to the Court of Sessions for trial, there is no prohibition/restriction on the police to submit report (charge-sheet) against one or some of the accused, and/or, to keep the investigation pending against others. The investigating agency has power under Section 173(8) of the Code to put before the court new evidence which comes across even after filing of the police report (charge-sheet) or after the court taking cognisance against some of the accused. On commitment of the case to the Court of Sessions, the court can proceed with the trial by framing charge without waiting for the outcome of the pending investigation against other accused. During trial, the investigating agency can file supplementary report not only against whom the investigation was pending but also against the accused who were earlier charge-sheeted, provided, further evidence, oral or documentary, is obtained upon such investigation [Section 173(8) of the Code].

49. The C.B.I. submitted sole supplementary charge-sheet on 23.12.2021, against 31 accused persons, including, companies, whereas, other two alleged accused persons noted therein, came to be discharged as no evidence was found against them. In other words, the investigation came to be finally concluded by the C.B.I. which commenced with lodging of the FIR by the U.P. Police being Case No. 421 of 2018. The U.P. Police had categorically informed the trial court, while filing police reports that the investigation is under progress against other accused. The information to the court of the pending investigation is sufficient compliance of law.

50. Further, CBI during trial made an application before the trial court at Meerut seeking extension of judicial remand to two accused who were arrested by U.P. Police. In the application, it was categorically stated that pursuant to the order of the State Government and subsequent notification of the DOPT dated 24.10.2019, the case was transferred to CBI for further investigation. It was further stated by the CBI that investigation is at the initial stage and that five charge sheets have already been filed by the U.P. Police. The application came to be allowed by the court vide order dated 01.01.2020, extending the judicial custody remand, after noticing in the order that further investigation is in progress and the case was transferred to the CBI. In other words, CBI brought it to the knowledge of the court that further investigation is pending and that the CBI require the custody of the accused for investigation.

51. It is thus evident that it is a case of further investigation of the case instituted by the U.P. Police, which finally came to be concluded by the CBI. It is not a case where the U.P. Police had concluded the investigation by forwarding the police report and thereafter CBI had stepped in. The mandate of Vinay Tyagi (supra) would not be applicable. In any case, the trial court was duly informed by the U.P. Police through the various police reports that the investigation against the accused is under progress. CBI upon taking over the investigation further informed the court while taking police remand custody of the accused. The record, thus, reveals that the trial court throughout was kept informed of the pending investigation. The objection of the learned counsel for the petitioners, accordingly is, rejected.

52. Question No. 3 :- Double Jeopardy It is urged that C.B.I. on concluding the investigation and while submitting the report under Section 173(8) of the Code, has charge-sheeted the accused for the very same offences for which they (petitioners/accused) came to be discharged by the learned trial court. In this backdrop, it is submitted that it is a case of double jeopardy as accused would now face trial for the offences for which they earlier stood discharged/acquitted by the trial court.

53. In regard to the question on double jeopardy, under Article 20(2) of the Constitution of India, no person shall be prosecuted and punished for the same offence more than once. The said Article incorporates within its fold the plea of "outrefois convict" as known to the British jurisprudence or the plea of "double jeopardy" as known to American Constitution, but circumscribes it by providing that there should be not only a prosecution but also punishment in the first instance in order to operate as a bar to the second prosecution and punishment for the same offence. Section 300 of the Code lays down that a person once convicted or acquitted cannot be tried for the same offence which is based on the maxim ''nemo debet bis vexari', thereby, meaning that a person cannot be tried a second time for an offence with which he was previously charged. In order to bar the trial of any person already tried, it must be shown that (i) he has been tried by a competent court for the same offence or one for which he might have been charged or convicted at that trial, on the same facts and (ii) he has been convicted or acquitted at the trial. The whole basis of the section is that first trial should have been before a court competent to hear and determine the case and to record a verdict of conviction or acquittal on merits. In a case exclusively triable by a Court of Sessions, the trial commences after a charge is framed under Section 228, and there is no trial before the charge is framed but only an inquiry. The provisions of the Code upon the question of previous acquittal are different from the principles underlined the English doctrine of ''autrefois acquit' in this that the Code makes a clear distinction between "discharge" and "acquittal".

54. As per Section 227 of the Code, the court should ensure that there is no significant ground for proceeding, it means that no prudent person can conclude that there are grounds or even a single ground to sustain the charge against the accused. The test to be applied by the court is whether the materials on record if unrebutted, is sufficient to make conviction possible. But if the court is convinced after such consideration that there is ground for presuming that the accused has committed the offence which is exclusively triable by the Court of Sessions then the charges against the accused must be framed. Once the charge is framed the accused is put to trial and thereafter either acquitted or convicted, but he cannot be discharged. Once charges are framed under Section 228 of the Code, there is no back-gear for discharging the accused under Section 227. Discharge of an accused under Section 227, is not tantamount to the acquittal of an accused.

55. In the case of Ratilal Bhanji Mithani v. State of Maharashtra15, it has been held that once a charge has been framed, the court/Magistrate has no power to discharge the accused under the Code. Trial has to follow:

"Once a charge is framed, the Magistrate has no power to cancel the charge, and reverse the proceedings to the stage of Section 245 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 charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial 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 Sections 325 and 360."

56. It may be noticed that the language of Section 228 opens with the words, ''if after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence'. The Judge may frame a charge and try him in terms of Section 228(1)(a) and if exclusively triable by the Court of Sessions, commit the case in terms of Section 228(1)(b). The purpose and object of the legislature in using the word ''presuming' it can safely be concluded that ''presuming' is an expression of relevancy and places some weightage on the consideration of the record before the Court. The record of the prosecution, at this stage, has to be examined on the plea of demur. Presumption is of a very weak and mild nature.

57. In Md. Safi v. State of West Bengal16, Supreme Court held that a person has done something which is made punishable by law is liable to face trial.

"Where a person has done something which is made punishable by law is liable to face a trial and this liability cannot come to an end merely because the Court before which he was placed for trial forms an opinion that it has no jurisdiction to try him or that it has no jurisdiction to take cognizance of the offence alleged against him. An order of acquittal made by it is in fact a nullity."

58. The discharge of the accused at the stage of Section 227 of the Code is merely an inquiry based on the prosecution record in support of the police report, whether there is sufficient material to conclude/presume that either the accused is to be discharged or required to face trial after framing charge under Section 228 of the Code. Discharge is not acquittal. Accordingly, the plea of double jeopardy raised by the learned counsel for the petitioners is rejected.

59. Question No. 4:- Whether CBI justified in filing supplementary report against petitioner/accused for the discharged offences.

60. Investigation is for the purpose of collecting evidence by a police officer, and otherwise by any person authorised by a Magistrate in this behalf, and also pertains to a stage before the trial commences. Investigation which ultimately leads to a police report under the Code is an investigation conducted by the police, and may be ordered in an inquiry made by the Magistrate himself in complaint cases.

61. "Inquiry" is defined in Section 2(g) as follows:

"2.(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;"

62. "Investigation" is defined in Section 2(h) as follows:

"2.(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf."

63. The statutory scheme of the Code, therefore, puts "inquiry" and "trial" in distinct compartments, as the very definition of "inquiry" demonstrates. "Investigation" is for the purpose of collecting evidence by a police officer.

64. The expression ''fair and proper investigation' in criminal jurisprudence contemplates: Firstly, the investigation must be unbiased, honest, just and in accordance with law. Secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction. Once these twin paradigms of fair investigation are satisfied, there will be the least requirement for the court of law to interfere with the investigation, much less quash the same, or transfer it to another agency. Bringing out the truth by fair and investigative means in accordance with law would essentially repel the very basis of an unfair, tainted investigation or cases of false implication. Thus, it is inevitable for a court of law to pass a specific order as to the fate of the investigation, which in its opinion is unfair, tainted and in violation of the settled principles of investigative canons.

65. A fair trial must commence only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted.

66. In State of Bihar v. J.A.C. Saldanha & others17, a three Judge Bench, speaking through Desai, J., after referring the precedents held:

"25. There is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. ....... Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8).... "

67. In the facts of the case in hand, the investigation of the case was transferred to CBI at the stage of pendency of investigation against some other persons. The U.P. Police had not concluded and closed the investigation. In the meantime, the earlier charge sheeted accused by the U.P. Police came to be discharged by the trial court for some of the offences under the Indian Penal Code18 and the PC Act. The charges, thereafter, was framed by the trial court on other counts. The CBI upon concluding the investigation submitted supplementary charge sheet against 31 persons, including the petitioners, for the same offences already discharged by the trial court.

68. The question for consideration is as to whether CBI committed an illegality in charge-sheeting the discharged accused for the same offences.

69. There is no restriction or prohibition under the Code to preclude the court from considering the fresh material/evidence brought on record by the investigating agency against the discharged accused. The court can consider the offence again as it would not tantamount to review of the discharge order. The satisfaction of the court would rest upon the fresh materials. As discussed earlier, discharge of an accused under Section 227 does not tantamount to acquittal. The investigating agency during further investigation can come across evidence implicating the discharged accused, in such circumstances accused has to face trial.

70. Under Section 227 of the Code, the accused is released on the ground of non-availability of the material collected by the officer during investigation. The discharge may be due to inept inquiry and investigation. The discharged person can again be charged subsequently after proper investigation and collection of relevant materials during the course of investigation. [Section 173(8) Cr.P.C.] (Ref: P. Viswanathan v. Dr. A.K. Burman19)

71. Where the Magistrate had discharged some of the accused after recording the evidence let in by the prosecution, but, if fresh materials are found against the discharged accused, he can consider the offence as it would not tantamount review of the discharge order, earlier passed by the Magistrate. (Ref: Vishanu Murya vs. the State of Rajasthan20).

72. The agency conducting such an investigation can either reach the same conclusion and reiterate it or it can reach a different conclusion. During such extended investigation, the officers can either act on the same materials or on other materials which may come to their notice. It is for the investigating agency to exercise its power when it is put back on that track. (Vide Hemant Dhasmana v. CBI21 )

73. The investigating agency i.e. C.B.I. in the given facts was justified in submitting charge-sheet against the discharged accused persons for the very same offences. The U.P. Police had filed charge-sheet against ten persons, whereas, the investigation against other accused persons was under progress. During investigation, CBI comes across any material, oral or documentary, while investigating the role of other accused persons and is satisfied that the evidence so collected reflects upon the complicity of the discharged accused persons in commission of the offence, a supplementary report/charge-sheet can certainly be filed against them while submitting the police report in respect of the other accused persons. In the event of evidence surfacing against the discharged accused during further investigation, the consequence that follows is that the accused has to face trial. This does not prejudice the accused/petitioners, rather, it is the mandate of law i.e. no accused can escape trial. The question is accordingly answered against the petitioners.

74. Question No. 5: Whether irregular/illegal investigation by U.P. Police/CBI would have any bearing on the cognizance or trial.

75. A similar plea was raised in Union of India v. Prakash P. Hinduja22, Supreme Court rejected the argument that since the directions issued by the Court in Vineet Narain and others v. Union of India23, was not followed by the CBI and Chief Vigilance Commissioner (CVC), was not consulted by the CBI, before filing the charge sheet, the consequential proceedings of prosecution would be a nullity. The Supreme Court declined to quash the trial proceedings merely on the defect of not complying the directions.

76. The High Court held that in terms of directions issued in Vineet Narain (supra), CBI was to report to CVC about all cases taken up by it for investigation; progress of the investigation; cases in which charge-sheets are filed and their progress. CBI was bound to place the final results of its investigation along with all material collected before the CVC for the purposes of review. CBI had not placed before the CVC the results of its investigations and had by-passed it by filing a charge-sheet before the Special Judge. The High Court, in view of the mandate in Vineet Narain (supra) not being complied by the CBI, allowed the writ petition and quashed the cognizance taken by the Special Judge and all consequential proceedings. The Supreme Court reversed the decision of the High Court.

77. Reliance was placed by the Supreme Court on H.N. Rishbud v. State of Delhi24, wherein, the Court was called upon to consider the effect of investigation having been done by a police officer below the rank of a Deputy Superintendent of Police, contrary to the mandate of Section 5(4) of Prevention of Corruption Act, 1947. The Supreme Court held as follows:

"......Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial."

78. Supreme Court referring to Prabhu v. Emperor25 and Lumbhardar Zutshi v. The King26, held that if cognizance is in fact taken on a police report initiated by breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside, unless illegality in the investigation can be shown to have brought about a miscarriage of justice. An illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial.

79. The submission of the learned counsel for the petitioner that the U.P. Police was not competent to investigate the crime after the approval of the Governor to transfer the case to the CBI, consequently filing of the charge-sheet, followed by supplementary charge-sheet, is bad in law as the U.P. Police lacked authority to investigate the crime upon transfer of the investigation to CBI. It is further submitted that the court taking cognisance on the police report and framing charge against the petitioner is illegal and would vitiate the trial. Further, CBI after a lapse of sixteen months re-registered the FIR when the trial had commenced. In this backdrop, it is urged that the trial is bad in law.

80. The submission lacks merit. In Prakash P. Hinduja27(supra), Supreme Court held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. Further, trial cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice.

81. The State Government having regard to the magnitude of the matter and the alleged involvement of the CEO of YEIDA and other officials, took a conscious decision to transfer the case to CBI for fair, unbiased and proper investigation. Fair investigation contemplates just, honest and unbiased investigation which is in the interest of the accused and also the society. The basic purpose of an investigation is to bring out the truth in accordance with law, and to ensure that the guilty are punished. The petitioners have failed to point out as to how the investigation conducted by both the investigating agency has brought about miscarriage of justice. In any case, the trial court is bound to consider the entire prosecution record submitted by the U.P. Police and the CBI and the material filed along with the reports.

82. While interpreting Section 173(2) and Section 173(8) of the Code, Supreme Court in Vinay Tyagi (supra) held:

"42. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the court shall discharge an accused in compliance with the provisions of Section 227 of the Code."

83. The decision followed by three-Judge Bench in Vinubhai Haribhai Malaviya vs. State of Gujarat28 and later by the Division Bench in Luckose Zachariah @ Zak Nedumchira Luke and others vs. Joseph Joseph and others29.

84. Once a report under Section 173(2)/173(8) of the Code has been submitted, it can only be cancelled, proceeded further or case closed by the court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialised investigating agency has any right to cancel the said report. The question, accordingly, is answered against the petitioners.

85. Question No. 6: Whether the CBI court at Ghaziabad would have jurisdiction.

86. Learned counsel for the petitioner finally submits that Special Judge, Anti Corruption at Meerut, would alone have jurisdiction, the trial should continue at Meerut, instead before the court of Special Judge, Anti Corruption, CBI at Ghaziabad. None of the contesting parties dispute that for the offences under the PC Act, the designated Special Court constituted under the PC Act would have jurisdiction. Learned counsel for the CBI, however, submits that since the matter was investigated by the CBI, FIR was re-registered at Ghaziabad, the CBI court alone would have jurisdiction over the trial. Further, he submits that CBI twice made an application before the trial court at Meerut to transfer the case to the CBI court at Ghaziabad, but, the applications came to be rejected. The CBI, accordingly, approached this Court seeking transfer of the trial from Meerut to Ghaziabad.

87. The Central Government or the State Government, as the case may be, by notification in the Official Gazette, appoint as many special judges as may be necessary for such area or areas to try the offences specified in Section 3 of the PC Act. Section 4 of the PC Act mandates that every case specified in sub-section (1) of Section 3 shall be tried by the special judge for the area within which it was committed.

88. The Governor in exercise of the powers under sub-section (1) of Section (3) and sub-section (2) of Section 4 of the PC Act, read with, Section 21 of the General Clauses Act, 1897, and in supersession of all other notifications issued in this behalf, was pleased to appoint the Additional District Judge mentioned in the scheduled column as the special judge for the areas mentioned in the specified column for trial of such offences as specified in sub-section (1) of Section 3 of the PC Act, in which, hereinafter, charge-sheets are filed in the designated court by Special Police Establishment of the Government of India and direct that such other cases in which charge-sheets have already been filed before any other special judge appointed under the said Act and such other cases arising within the areas relating to Special Police Establishment which are pending, shall also be tried and disposed of by the designated special judge and his court shall be designated with headquarters at Ghaziabad.

89. Learned State Counsel points out placing reliance on the notification dated 29.05.2014 and the subsequent notification dated 18.05.2021, that the U.P. Government has notified four special judges at Ghaziabad as Anti Corruption CBI Court. The areas of jurisdiction has also been specified which includes district Mathura. The notification dated 29.05.2014, clearly provides that charge sheets are to be filed in the designated court having jurisdiction by the Special Police Establishment (CBI) of the Government of India. In other words, the case investigated by CBI, as per the notification, is to file the police report before the designated court having jurisdiction. The Case Crime No. 421/2018 was lodged at district Mathura, therefore, the designated CBI court appointed at Ghaziabad and not at Meerut, would be the competent court to try the case.

90. The State of U.P. has also notified, inter alia, at Meerut Special Judge, Anti Corruption Court under PC Act, (notification dated 23.11.2020) having jurisdiction over district Mathura, but, the court at Meerut has not been conferred jurisdiction to try cases investigated by the CBI. The U.P. Police had filed the charge-sheet at Meerut being the designated Anti Corruption Court having jurisdiction over district Mathura. Thereafter, on the case being transferred to CBI, the CBI rightly filed the supplementary report before the designated Anti Corruption CBI Court at Ghaziabad.

91. In the given facts, since the investigation of the case was taken over by a superior investigating agency i.e. CBI and supplementary report has been filed before the designated CBI court having jurisdiction at Ghaziabad, to undertake trial of offences under PC Act, and other offences investigated by the CBI.

92 The designated Anti Corruption Court at Meerut, as per the notification, would lack jurisdiction to try cases investigated by the CBI. This Court, accordingly, in exercise of powers under Section 186 of Code can transfer the trial from the court of Special Judge, Meerut to the CBI court at Ghaziabad, having jurisdiction in the matter.

CONCLUSION:

93. In summary, corruption by public servant and white collar offence, in the recent past, has grown in geometric proportions, corruption feeds on corruption. It retards nation building. In cases of like nature, courts must come down with iron fist.

94. Supreme Court, in a case of corruption by public servant, in State of M.P. v. Shambhu Dayal Nagar30, observed as follows:

"The corruption by public servants has become a gigantic problem. It has spread everywhere. No fact of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh v. State of Haryana corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers."

95. An accused cannot ask or require that the investigation be done or conducted in a particular manner. In Romila Thapar v. Union of India31, Supreme Court held that an accused cannot ask to change an investigating agency, or to require that an investigation be done in a particular manner, including, asking for a court-monitored investigation.

96. CBI in the present case has charge-sheeted public servants, private persons and companies for offences under the PC Act, IPC, including, conspiracy (Section 120-B). The Special Judge, CBI court would have jurisdiction of trial over the private persons/company for offences under the PC Act and for non PC offences.

97. Supreme Court in State through CBI New Delhi V Jitender Kumar Singh32, held that a private person for an offence be tried by Special Court. It is not necessary that in every offence under the PC Act, a public servant must be an accused.

"28. Thus, the scheme of the PC Act makes it quite clear that even a private person who is involved in an offence mentioned in Section 3(1) of the PC Act, is required to be tried only by a Special Judge, and by no other Court. Moreover, it is not necessary that in every offence under the PC Act, a public servant must necessarily be an accused. In other words, the existence of a public servant for facing the trial before the Special Court is not a must and even in his absence, private persons can be tried for PC as well as non-PC offences, depending upon the facts of the case."

98. A Special Judge, while exercising, exclusive jurisdiction, that is, when trying any case relating to offences under Sections 3(1)(a) and (b) of the PC Act, may also try any offence other than the offence specified in Section 3, with which the accused may, under the IPC be charged at the same trial.

99. The conspiracy to commit offence punishable under the PC Act itself is an offence to be tried only by a Special Judge. In Ajay Aggarwal v. Union of India33, the Court held as follows:

"...Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy...."

100. It has been further submitted on behalf of the petitioners that delay in the investigation and trial has adversely impacted the right of the petitioners for speedy trial.

101. Pooja Pal v. Union of India34, is an important judgment which speaks of the fundamental right under Article 21 of the Constitution in the context of the goal of "speedy trial" being tempered by "fair trial". The Supreme Court put it thus:

"83. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. ..... Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency. "

102. The supplementary charge-sheet came to be submitted by the CBI in the court at Ghaziabad, on 23.12.2021. The FIR was re-registered by the CBI on 24.12.2019. It is due to the pendency of the present writ petitions raising challenge to the FIR and the jurisdiction of CBI court. In the circumstances the CBI court at Ghaziabad, has shown restraint in taking cognizance of the offence, further, the trial of the case in respect of some of the accused was pending before the court at Meerut. The trial for all these reasons got delayed. Be that as it may, the accused are entitled to speedy trial and more so fair trial.

ORDER (1) The writ petitions bearing Criminal Misc. Writ Petitions No. 1294 of 2020; 622 of 2022; 7160 of 2022; 5148 of 2021; and 8758 of 2022, lack merit, accordingly, dismissed.

(2) The transfer application bearing Transfer Application (Criminal) No. 239 of 2020, is allowed.

(3) The trial of the cases pending before the Special Judge, Anti Corruption, Meerut, arising from Case Crime No. 421 of 2018, is transferred to the court of Special Judge, Anti Corruption, CBI at Ghaziabad.

(4) The Special Judge, Anti Corruption, CBI at Ghaziabad, is directed to proceed and conclude the trial expeditiously on day to day basis without granting unnecessary adjournment provided there is no other impediment.

(5) The Directorate of Enforcement, New Delhi, to proceed and conclude the investigation expeditiously.

(6) It is clarified that the observations made in the order with regard to the facts, or/and, merit of the case would have no bearing or influence upon the trial. The trial court shall proceed independently of the observations made in the order without prejudice to the accused.

(7) Learned counsel for the CBI to supply copy of the order to the Special Judge, Anti Corruption, CBI at Ghaziabad and Special Judge, Anti Corruption, Meerut, for compliance.

Order Date :- 9.12.2022 Mukesh Kr.

(Syed Waiz Mian,J.)         (Suneet Kumar,J.)

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