Supreme Court - Daily Orders
Central Bureau Of Investigation Bank ... vs Ramesh Gelli on 21 February, 2023
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
MISCELLANEOUS APPLICATION NO. 1569 OF 2022
IN
CRIMINAL APPEAL NOS.1077-1081 OF 2013
CENTRAL BUREAU OF INVESTIGATION,
BANK SECURITIES AND FRAUD CELL Applicant(s)
VERSUS
RAMESH GELLI & ORS. Respondent(s)
ORDER
This ‘clarification’ application has been filed by the applicant Sridhar Subasri, who was respondent No. 2 in this case which was decided by this Court on 23.02.2016.
The brief facts of the case are as follows:
Respondent No. 1 and 2, were Managing Director and Executive Director, respectively in a private banking company and were facing criminal charges, inter alia, under the provisions of the Prevention of Corruption Act, 1988 (for short, ‘P.C. Act’). The investigation in this case was done by Central Bureau of Investigation (‘CBI’). On filing of the charge sheet by the CBI, the Special Judge refused to take cognizance of the offence punishable under Section 13(2) read with Section 13(1)(d) of the P.C. Act. Consequently, the CBI approached the High Court where its petition Signature Not Verified was dismissed. Thereafter, they approached this Court Digitally signed by SNEHA DAS Date: 2023.02.28 against the order of the Special Judge and the High Court vide 18:01:47 IST Reason: SLP (Crl.) No. 4742-4746 of 2010 which became as Criminal Appeal Nos.1077-1081 Of 2013.2
The question before this Court was whether respondent Nos. 1 and 2 in the appeals could be deemed as ‘public servant’ under the Prevention of Corruption Act, 1988. Both the learned Judges of this Court (by their separate but concurrent judgments) came to a conclusion that the respondents 1 & 2 are public servant and could be charged under the Prevention of Corruption Act, 1988. Consequently, the matter proceeded before the Special Judge and the discharge application (of respondent No.2) was dismissed by the learned Special Judge, CBI on 13.01.2021. We have also been told at the Bar that against the order rejecting the discharge application, respondent No. 2-applicant has already approached the High Court in a revision which is pending.
Meanwhile, this clarification application has been filed by the respondent No. 2 with the prayer “(a) clarify the judgment dated 23.02.2016 in Crl. Appeal No. 1077-1081/2013 to the extent by removing the following from para 26 of the said judgment (authored by Hon’ble Justice Prafulla C. Pant): ‘As such in our opinion, the Special Judge (CBI) has erred in not taking cognizance of the offence punishable u/s 13(2) r.w.s. 13(1)(d) of the Prevention of Corruption Act, 1988’ and further clarify that Section 13 of the Prevention of Corruption Act, 1988 is not applicable to Chairman, Managing Director, employees etc. of a banking company in terms of Section 46A of the Banking Regulation Act, 1949; and (b) clarify that Section 409 IPC cannot be invoked against the applicant as he is not a public servant in terms of Section 21 of IPC; and (c) pass such other further order(s) as this Hon’ble Court may deem fit and proper”.3
Submissions were made before this Court at length by the learned counsel for the applicant Mr. Mukul Rohatgi, learned senior counsel and Mr. Rana Mukharjee, learned counsel for the respondents.
After hearing both the counsels at length, we are of the considered view that there is absolutely no substance in the criminal miscellaneous application and no justification for any clarification, for the simple reason that after an in depth analysis of the provisions of the Prevention of Corruption Act, 1988, including the definition of a public servant in the Prevention of Corruption Act as well as the Indian Penal Code, read in the light of Section 46A of Banking Regulation Act, the Court, in its order dated 23.02.2016, in Para ‘24,25 & 26’ of the judgment by Justice Prafulla C. Pant, concluded as under:
“24. In the light of law laid down by this court as above, it is clear that object of enactment of P.C. Act, 1988, was to make the anti corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank of India, were already public servants, as such they cannot be excluded from definition of ‘public servant’. We are of the view that over the general definition of ‘public servant’ given in the P.C. Act, 1988, read with Section 46-A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 of 165A of IPC have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost.
25. Be it noted that when Prevention of Corruption Act, 1988 came into force, Section 46-A of Banking Regulation Act, 1949 was already in place, and since the scope of P.C. Act, 1988 was to widen the definition of “public servant”. As such, merely for the reason that in 1994, while clarifying the word “chairman”, legislature did not substitute words 4 “for the purposes of Prevention of Corruption Act, 1988” for the expression “for the purposes of Chapter IX of the Indian Penal Code (45 of 1860)” in Section 46A of Banking Regulation Act, 1949, it cannot be said, that the legislation had intention to make Section 46A inapplicable for the purposes of P.C. Act, 1988, by which Section 161 to 165A of IPC were omitted, and the offences stood replaced by Sections 7 to 12 of P.C. Act, 1988.
26. A law which is not shown ultravires must be given proper meaning. Section 46-A of Banking Regulation Act, 1949, cannot be left meaningless and requires harmonious construction. As such in our opinion, the Special Judge(CBI) as erred in not taking cognizance of offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. Act, 1988. However, we may make it clear that in the present case the accused cannot be said to be public servant within the meaning of Section 21 IPC, as such offence under Section 409 IPC may not get arrested, we leave it open for the trial court to take cognizance of other offences punishable under Indian Penal Code, if the same get attracted.” The above view was supported by Justice Ranjan Gogoi in his separate judgment of which Para ‘13’ is extracted below:
“13.Turing to the case in hand there can be no dispute that before enactment of the PC Act, Section 46A of the BR Act had the effect of treating the concerned employees/office bearers of a Banking Company as public servants for the purposes of Chapter IX of the IPC by virtue of the deeming provision contained therein. The enactment of the PC Act with the clear intent to widen the definition of ‘public servant’ cannot be allowed to have the opposite effect by expressing judicial helplessness to rectify or fill up what is a clear omission in Section 46A of the BR Act. The omission to continue to extend the deeming provisions in Section 46A of the BR Act to the offences under Sections 7 to 12 of the PC Act must be understood to be clearly unintended and hence capable of admitting a judicial exercise to fill up the same. The unequivocal legislative intent to widen the definition of “public servant” by enacting the PC Act cannot be allowed to be defeated by interpreting and understanding the omission in Section 46A of the BR Act to be incapable of being filled up by the court.”(emphasis supplied) 5 In sum and substance, both the learned Judges have given due weight to the legislative intent while “interpreting” the word ‘public servant’ as defined in the Prevention of Corruption Act. All that needs to be stated at this juncture is that the definition of ‘public servant’ as given under Prevention of Corruption Act was much wider than what has been given under Indian Penal Code and therefore, the respondent no.2 i.e. the present applicant has to be treated as ‘Public Servant’ for that purpose. Under these facts and circumstances and having gone through the orders dated 23.02.2016, and the merits of the submission of both the sides, we find absolutely no justification to clarify any findings given by the learned Judges in the judgments. With these observations, the Miscellaneous application stands dismissed.
………………………………………………………………………..J. [SUDHANSHU DHULIA] ………………………………………………………………………..J. [MANOJ MISRA] NEW DELHI;
FEBRUARY 21, 2023.6
ITEM NO.14 COURT NO.11 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Miscellaneous Application No. 1569/2022 in Crl.A. No.1077-1081/2013 (Arising out of impugned final judgment and order dated 23-02-2016 in Crl.A. No. No. 1077/2013 passed by the Supreme Court Of India) CENTRAL BUREAU OF INVESTIGATION BANK SECURITIES AND FRAUD CELL Petitioner(s) VERSUS RAMESH GELLI & ORS. Respondent(s) (FOR ADMISSION and IA No.85528/2022-CLARIFICATION/DIRECTION and IA No.85529/2022-APPLICATION FOR EXEMPTION FROM FILING ORIGINAL VAKALATNAMA/OTHER DOCUMENT ) Date : 21-02-2023 This petition was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE SUDHANSHU DHULIA HON'BLE MR. JUSTICE MANOJ MISRA For Petitioner(s) Mr. Mukul Rohatgi, Sr. Adv.
Mr. Mayank Jain, Adv.
Mr. Parmatma Singh, AOR Mr. Madhur Jain, Adv.
Mr. Tushar Mehta, Solicitor General Mr. Sanjay Jain, A.S.G. Ms. Aishwarya Bhati, ASG Mr. Rana Mukharjee, Adv.
Mr. T A Khan, Adv.
Mr. Ranjana Narayan, Adv.
Mr. Arkaj Kumar, Adv.
Mr. Yuvraj Sharma, Adv.
Mr. Arvind Kumar Sharma, AOR Mr. Akash Kishore, Adv.
Ms. Manisha Chava, Adv.
For Respondent(s) Mrs. Bina Gupta, AOR M/S. Khaitan & Co., AOR Mr. Rakesh K. Sharma, AOR 7 UPON hearing the counsel the Court made the following O R D E R The miscellaneous application stands dismissed in terms of the signed order.
(SNEHA DAS) (VIDYA NEGI)
SENIOR PERSONAL ASSISTANT ASSISTANT REGISTRAR
(Signed order is placed on the file)