The Prevention of Corruption Act, 1988 creates a Special Court for trial of offences under the said Act. This court is equivalent to the Court of Sessions but it does not require a Magistrate's order of committal and is entitled to take cognizance of offence itself.
Special Courts
Section 3 of PC Act, 1988 provides appointment of special judges to conduct trial of offences under the said Act including abetment of offences under the act. The only condition that such person is or has been Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974). Such person
1. must not be in service of the Government
2. has been for not less than seven years an advocate or a pleader
3. is recommended by the High Court for appointment.
Section 4 of PC Act provides that trial of offences under the said Act shall be conducted only by special judge and that too on day to day basis. It is however unfortunate that the mandate of day to day trial is only being followed in breach.
Change in Forum
Trial of a prosecution is a matter of procedure. The change of 'forum' by an amendment in the law is also a matter of change in procedure. Therefore such amendment is retrospective in operation and becomes applicable to all the proceedings pending on the date of enactment of Amendment. The accused cannot claim a vested right in respect of forum for his trial, as such right is not recognized or conferred by law.
Securities And Exchange Board of India vs Classic Credit Ltd. decided by SC on 21 August, 2017 followed in Shyamrao Vithoba Pillare vs State Of Maharashtra, decided by Bombay HC on 13 December, 2018; Ramesh Kumar Soni vs. State of Madhya Pradesh,(2013) 14 SCC 696.
Where the Special Judge was authorized not only to deal with the cases under the PC Actbut also for other offences under Penal Code it was held that Special Judge alone could deal with cases under the PC Act and cases under non- PC Act could also be allowed to be tried by the Special Judge under Section 26 of the Code of Criminal Procedure. There is no legal bar to do so.
HCLInfosystem Ltd vs Central Bureau Of Investigation decided by SC on 9 August, 2016.
Territorial Jurisdiction
There is distinction between Section 181(4) of the Criminal Procedure Code, 1973 and Section 4(2) of the Prevention of Corruption Act, 1988.
While 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. 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.
Absence of a non obstante clause like in 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 PC Act) gives the definite indication that the legal position is the other way round.
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.
Central Bureau of Investigation, A.H.D., Patna vs. Braj Bhushan Prasad, AIR 2001 SC 4014: 2001 Supp (3) SCR 627: 2001(9) SCC 432: 2001(8) JT 348: 2001 CrLJ 4683: 2002 SCC(Cr) 576.
Transfer of Proceedings
Transfer of proceedings can not be granted on merely technical or hypersensitive grounds.
This petition is filed for transfer of case from the High Court of Kerala to the High Court of Karnataka on the ground of alleged adverse publicity in the press in the State of Kerala. This contention is apparently raised at a belated stage i.e. after lapse of four years from the date of filing of the appeal in the High Court. Petitioner has not raised any objection with regard to hearing of the appeal by the Kerala High Court when the matter was heard by the learned Single Judge in 1998, who subsequently referred it to a larger Bench. Even in the representation before the Chief Justice, he has not raised the said contention. Therefore, elaborate submissions made in the transfer petition that a fair trial will not be possible in the State of Kerala as political parties in power have created such a situation that justice, fairness and rule of law cannot be expected in cases against the petitioner and that any person can be influenced consciously or sub-consciously by the adverse publicity against the petitioner, are required to be rejected. Apart from not raising objection for a period of four years, we would further state that in this country there is a complete separation of Judiciary from the Executive and Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on the basis of the evidence available on record and the law applicable. Granting such application and transferring the appeal from the High Court of Kerala to High Court of Karnataka would result in casting unjustified aspersion on the Court having jurisdiction to decide the appeal on the assumption that its judicial verdict is consciously or sub-consciously affected by the popular frenzy, official wrath or adverse publicity, which is not the position qua the judicial administration in this country.
R. Balakrishna Pillai vs. State of Kerala, AIR 2000 SC 2778: 2000 Supp (3) SCR 26: 2000(7) SCC 129: 2000(9) JT 549: 2000(6) Scale 158: 2000 SCC(Cr) 1293: 2000(3) Crimes 203(SC): 2000(3) KLT 425.
Once hearing in a case is already commenced, the said case can be transferred to another Court only by Exercising judicial power envisaged under Section 407 or Section 408, Criminal Procedure Code, 1973:
"There is still a stronger ground to direct that the case should be tried before the Special Judge, Vigilance, Bhubaneshwar. It appears that charge had already been framed by the Special Judge, Vigilance, Bhubaneshwar, and as such it can be taken that hearing of the case had already commenced. Once hearing in a case is already commenced, the said case can be transferred to another Court only by Exercising judicial power envisaged under Section 407 or Section 408, Cr. P.C., as the case may be. In the present case, it is clear that the case has been transferred on the administrative side on the establishment of the Court at Berhampur. Even before effecting such transfer on administrative ground, the accused who is a person likely to be affected by such order of transfer was not heard. Since hearing in the case is deemed to have commenced on framing of charge, and the accused was not heard before the order of transfer which was passed in the administrative side, and since it would be convenient for parties if the case is tried at Bhubaneshwar, it is hereby directed that Case shall be tried before the Special Judge, Vigilance, Bhubaneshwar, and not before the Special Judge, Vigilance, Berhampur."
Satyananda Pani vs. State of Orissa, 2000 (1) Crimes 192 Ori.
Locus standi to seek transfer of proceedings — Person competent to seek transfer of proceedings — Held that the word 'party interested' is of a wide import and, therefore, it has to be given a wider meaning.
If it was the intendment of the legislature to give restricted meaning then they would have used words to the effect, 'party to the proceedings". In this behalf the wording of Article 139A of the Constitution of India may be looked at. Under Article 139A the transfer can be if 'the Supreme Court is satisfied on its own motion or on the application made by the Attorney General of India or by a party to any such case (emphasis supplied). Also if the provisions of Chapter XXX of the Criminal Procedure Code are looked at, it is seen that when the legislature intended a 'party to the proceeding' to have a right of appeal it specifically so stated. The legislature, therefore, keeping in view the larger public interest involved in a criminal justice system, purposely used words of a wider import in Section 406. Also it is well-settled principle of law that statutes must be interpreted to advance the cause of statute and not to defeat it. The petitioner being a political opponent, is vitally interested in the administration of justice in the State and is a 'party interested" within the meaning of sub-section 2 of Section 406 Cr.P.C. Even otherwise Mr. Subramanium Swamy was the original complainant. He supported these transfer petitions.
In a democracy, the political opponents play an important role both inside and outside the House. They are the watchdogs of the government in power. It will be their effective weapon to counter the misdeeds and mischief of the government in power. They are the mouthpiece to ventilate the grievances of the public at large, if genuinely and unbiasedly projected. In that view of the matter, being a political opponent, the petitioner is a vitally interested party in the run of the government or in the administration of criminal justice in the State. The petition lodged by such persons cannot be brushed aside on the allegation of a political vendetta, if otherwise, it is genuine and raises a reasonable apprehension of likelihood of bias in the dispensation of criminal justice system.
K. Anbazhagan vs. Superintendent of Police, 2003(9) JT 31: 2003(9) Scale 680: 2003(7) SLT 300: 2003(4) CCR 440(SC): 2003(4) KHCACJ 720.
Bias
Does a practising lawyer is interested in the case he conducts and he is misfit to try that case as judge?
It requires to be rejected firstly because the petitioner is not convicted on the basis of the said inquiry report. The charges against him are all together for a different case not connected with the rectification work of Edamalayar Project. Secondly, a Judge while practising as an advocate might have appeared in a number of cases, but that would not mean that he would have any personal interest or connection with the said matters or with persons involved therein and would be biased towards them. Therefore, it would be difficult to presume or to draw an inference that the learned Judge, because of assisting the Commission of Inquiry as an Advocate in different matter, would have bias or prejudice against the petitioner and would not render justice in accordance with law. Acceptance of such contention would seriously undermine the independence and stern stuff of the Judges.
R. Balakrishna Pillai vs. State of Kerala, AIR 2000 SC 2778: 2000 Supp (3) SCR 26: 2000(7) SCC 129: 2000(9) JT 549: 2000(6) Scale 158: 2000 SCC(Cr) 1293: 2000(3) Crimes 203(SC): 2000(3) KLT 425.
Prosecutor for the 'Case'
"The word "case" is not defined by the Code but its meaning is well- understood in legal circles. In criminal jurisdiction means ordinarily a proceeding for the prosecution of a person alleged to have committed an offence. In other contexts the word may represent other kinds of proceedings but in the context of the sub-section it must mean a proceeding which at the end results either in discharge, conviction, or acquittal of an accused person."
Bhimpappa Basappa Bhu Sannavar v. Laxman Shivarayappa Samagouda, (1970) 1 SCC 665.
The appointment of a Public Prosecutor, as envisaged under Section 24(1) CrPC in the High Court is different than the appointment of a Public Prosecutor for the District Courts. Therefore aNotification appointing a public prosecutor for a case does not enable him to represent the State in appeal before High Court.
K. Anbazhagan vs State of Karnataka, decided by SC on 27 April, 2015.
Re-trial
Conviction in are-trial is not a fresh trial. It is a conviction in the same prosecution.
The order setting aside the conviction washes out of the effect of the previous conviction. A conviction on re-trial is a conviction in the same prosecution. It is neither the second prosecution nor second punishment. Re-trial is the continuance of the same prosecution. It is not a fresh trial. Acquittal in certain circumstances, as in the instant case, takes place on account of technical reasons, and it may be very desirable in the circumstances of a particular case that the person be prosecuted after removing those technical defects in procedure.
The whole basis of S. 403(i) of the Cr.P.C., now S.300 of the new Code, is that the first trail should have been before the Court competent to hear and determine the case and to record a verdict of conviction or acquittal. If the Court is not so competent, as where the required sanction under S.6, Prevention of Corruption Act for the prosecution was not obtained the, whole trial is null and void d, it cannot be said that there was any conviction or acquittal in force within the meaning of S.300 of the Cr.P.C. Such a trial does not bar a subsequent trail of the accused under the Prevention of Corruption Act read with S. 161 of the Penal Code after obtaining proper sanction. The earlier proceedings being null and void, the accused cannot be said to have been prosecuted and punished for the same offence more than once. Art, 20(2) of the Constitution has no application.
Bishambar Nath Kanaujia vs. State of U.P, 1986 Cri L J 1818 All: 1986 All WC 502: 1986 All CrR 256: 1986 (2) Crimes 343: 1986 All CriC 275: 1986 (12) All LR 454: 1986 All LJ 614: 1986 UP CriR 273.
An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.
In the present case, undoubtedly the trial before the magistrate suffered from irregularities which we have already set out. The evidence, such as was led, was deficient in important respects; but that could not be a sufficient ground for directing a retrial. If the Sessions Judge though that in the interests of justice and for a just and proper decision of the case it was necessary that additional evidence should be brought on the record he should have, instead of directing a retrial and reopening the entire proceeding, resorted to the procedure prescribed by Section 428(1) of the Code of Criminal Procedure. There is no doubt that if the ends of justice require, the appellate Court should exercise its power under the said section.
Ukha Kolhe vs. State of Maharashtra, 1963(2) CrLJ 418: AIR 1963 SC 1531: 1964 (1) SCR 926: 65 Bom LR 793.
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