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Prabhu v. Union Of India
Factual and Procedural Background
The petitioner filed a complaint against Dilip D. Khona, a partner in a shipping clearing and forwarding agency, alleging offences under Sections 12 and 14(b) of the Prevention of Corruption Act (P.C. Act). The allegation was that Dilip Khona paid a bribe of Rs. 4,000 to G.M. Thippanna, a Plant Quarantine Inspector, for issuing a phytosanitary certificate. The Central Bureau of Investigation registered a case against G.M. Thippanna, who is being tried by the Special Judge, SPE/CBI-II, Ernakulam, under Section 13(1)(a) read with Section 13(2) of the P.C. Act. The complaint against Dilip Khona was dismissed by the lower court on the ground that a non-public servant cannot be tried by a Special Judge appointed under the P.C. Act unless prosecuted along with a public servant. This revision challenges that dismissal.
Legal Issues Presented
- Whether a non-public servant accused of offences under Sections 12 and 14(b) of the Prevention of Corruption Act can be tried by a Special Judge appointed under the Act independently of a public servant.
- Whether the lower court erred in dismissing the complaint on the basis that a non-public servant alone cannot be tried before a Special Judge.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| P. Nallammal v. State ((1999) 6 SCC 559) | Clarification that a non-public servant who is a member of a criminal conspiracy with a public servant or who abets offences committed by a public servant is liable to be tried along with the public servant before a Special Judge. | The court held that the lower court misunderstood this precedent. It does not preclude the trial of a non-public servant alone under Sections 12 and 14(b) of the P.C. Act before a Special Judge. |
Court's Reasoning and Analysis
The court examined the provisions of the Prevention of Corruption Act, specifically Sections 3, 4, 12, and 14(b). Section 3 empowers the appointment of Special Judges with exclusive jurisdiction over offences under the Act. Section 4 grants these judges authority to try offences specified in Section 3 and related offences charged in the same trial. Section 12 criminalizes abetment of offences under Sections 7 or 11, even if the offence is not committed by a public servant. Section 14(b) penalizes habitual commission of offences punishable under Section 12.
The court noted that the lower court's dismissal was based on an incorrect interpretation that a non-public servant cannot be tried alone by a Special Judge. The court clarified that if a non-public servant abets an offence under Sections 7 or 11, but the offence is not committed by a public servant, the non-public servant can still be tried by a Special Judge under Sections 12 or 14(b). The court distinguished this from the precedent in P. Nallammal v. State, which dealt with joint trials of public and non-public servants and does not prohibit trial of non-public servants alone under the cited sections.
Accordingly, the court concluded that the impugned order was illegal and unsustainable, affirming the Special Judge's exclusive jurisdiction over such offences.
Holding and Implications
The impugned order dismissing the complaint is set aside. The lower court is directed to restore the complaint on file and proceed with the trial in accordance with law.
The direct effect of this decision is that non-public servants accused under Sections 12 and 14(b) of the Prevention of Corruption Act may be tried independently by a Special Judge. No new precedent beyond this case's facts was established.
N. Krishnan Nair, J.:— This revision is directed against the order dated 3.11.2002 of the Special Judge (SPE/CBI)-II, Ernakulam in an unnumbered case.
2. The facts necessary for the disposal of this revision may be stated as follows: The petitioner herein filed a complaint against one Dilip D. Khona, Partner, M/s. Devshi Bhanji Khona, Shipping Clearing & Forwarding Agents, Willington Island, Kochi-3, alleging the commission of the offences punishable under Ss. 12 and 14(b) of the Prevention of Corruption Act.
3. The allegation is that the said Dilip Khona used to give bribe to the Plant Quarantine Inspector for issuing phyto sanitary certificate. It is specifically alleged that on 19.4.2001 he paid Rs. 4,000/- to G.M Thippanna, Plant Quarantine Inspector as bribe for issuing the phyto sanitary certificate. The Central Bureau of Investigation has registered a case against Sri. G.M Thippanna and he is now being tried in the Court of Special Judge, SPE/CBI-II, Ernakulam, for the commission of the offence punishable under S. 13(l)(a) read with S. 13(2) of the P.C Act.
4. The lower court dismissed the complaint on the ground that a non-public servant alone cannot be tried by a Special Judge appointed under the P.C Act. It appears that the lower court is of the view that if an offence under the P.C Act is committed by a non-public servant he can only be prosecuted along with a public servant.
5. S. 3 of the Prevention of Corruption Act empowers the State Government or the Central Government to appoint Special Judges to try any offence under the Act or conspiracy to commit such offences or any abetment thereof. As per S. 4 of the Act, the Special Judge appointed under S. 3 of the Act has exclusive jurisdiction to try the offences specified in sub-s. (1) of S. 3 of the Act Sub-s. (3) of S. 4 of the Act provides that when trying any case, a Special Judge also may try any offence, other than an offence specified in S. 3, with which the accused may under the Code of Criminal Procedure, 1973 (2 of 1974) be charged at the same trial.
6. In this case, the accused is alleged to have committed the offences under Ss. 12 and 14(b) of the P.C Act. S. 12 of the Act lays down that whoever abets any offence punishable under S. 7 or S. 11 of the Act whether or not that offence is committed in consequence of that abetment, shall be liable to punishment. Thus under S. 12 of the Act even if the offence abetted is not committed by the public servant, the person who abetted the offence is liable to punishment. Under S. 14(b) of the Act whoever habitually commits an offence punishable under S. 12 shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and also be liable to fine. It is true that when an offence abetted is committed the person who abetted the offence and the person who committed the offence can be tried at one trial. Suppose in a case the offence under S. 7 or S. 11 abetted by a non-public servant is not committed by a public servant, the non-public servant can only be prosecuted under S. 12 or S. 14(b) of the Act. In such a situation, if a non-public servant alone cannot be tried before a Special Judge, the guilty person may go unpunished. The lower court relied on the decision of the Supreme Court in P. Nallammal v. State ((1999) 6 SCC 559) to hold that a non-public servant alone cannot be tried before a court of Special Judge. It appears that the court below has misunderstood the decision of the Supreme Court. In Nallammal's case the appellants contended that they are not liable to be prosecuted along with the public servants for the offences under S. 109 of the Penal Code read with S. 13(l)(e) of the P.C Act. It was contended for the appellants that the offence under S. 13(l)(e) of the P.C Act is unabettable. The Supreme Court held that if a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under P.C Act, or if such a non-public servant abetted any of the offences which the public servant committed, such non-public servant is also liable to be tried along with the public servant before a Court of Special Judge having jurisdiction in the matter. There is nothing in the decision to indicate that a non-public servant alone cannot be tried for the offences punishable under Ss. 12 and 14(b) of the P.C Act. According to me, the impunged order in this case is clearly illegal and cannot be sustained. A Special Judge has exclusive jurisdiction to try the offences punishable under Ss. 12 and 14(b) of the P.C Act and if any offence under S. 7 or S. 11 of the Act abetted by a non-public servant is not committed by a public servant the non-public servant alone can be tried by a Special Judge for the offence under Ss. 12 or 14(b) of the Act.
7. In the result the impugned order is set aside. The lower court is directed to restore the complaint on file and proceed with the same in accordance with law. This Revision Petition is thus allowed.
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