Whether prosecution under Prevention of Corruption Act will continue against non-public servant if there is the death of public servant?

In the present case though the charge was framed post death of accused No. 1. The non-public servant were tried for the offences under the Penal Code, 1860 as well as Prevention of Corruption Act i.e under Section 13(1)(d) of Prevention of Corruption Act. They were charged for conspiring to commit offences under Sections 420, 409, 411, 467, 471 of Penal Code, 1860 and Section 13(1)(d) of Prevention of Corruption Act. In pursuance to that 18 witnesses were examined and the trial was concluded and the judgment was to be delivered. The Hon'ble Supreme Court in the case of Jitendra Singh (Supra) in paragraph 28 and 29 as follows:—

“28. Thus, the scheme of 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.

29. We, therefore, make it clear that it is not the law that only along with the junction of a public servant in array of parties, the Special Judge can proceed against private persons who have committed offences punishable under the PC Act.”

18. The charge is also framed against the non-public servant for the offences under the Penal Code, 1860 as well as under Prevention of Corruption Act. The evidence of 18 witnesses were recorded and the matter was pending for judgment. In the case before the Supreme Court, the charge was not framed either against the public servant or non-public servant. There was no charge under the Prevention of Corruption Act against the non-public servant and therefore the case could have been tried by the Court of Metropolitan Magistrate. The issue which was under consideration in the case of Sham Bhatia was that upon death of public servant the case shall proceed with the same special Court since once the Court is vested with the jurisdiction the said Court cannot be divested of it. The reasons, the observations of Hon'ble Supreme Court in relations to the said decisions are applicable in that case and not present case. In the recent decision in the case of State of Tamil Nadu v. Nirmala, 2018 ALL MR (Cri) 440 (SC) pointed by Ms. Gonsalves. The Supreme Court has observed that death of main accused does not result in abatement of trial. In that case chargesheet was filed against public servant and non-public servant under provisions of P.C. Act and Section 109 of I.P.C. 

In the High Court of Bombay

(Before Prakash D. Naik, J.)

High Court on its own motion  Vs  State of Maharashtra

Suo-Motu Revision Application No. 16 of 2015

Decided on June 4, 2018, 

Citation: 2018 SCC OnLine Bom 1125 : (2018) 3 AIR Bom R (Cri) 1

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Landmark Supreme court Judgment on SC and ST prevention of Atrocities Act

Our conclusions are as follows:

i) Proceedings in the present case are clear abuse of process of court and are quashed.

ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Dew (supra);

iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.

iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 416 of 2018 (Arising out of Special Leave Petition (Crl.) No. 5661 of 2017)

Decided On: 20.03.2018

 Subhash Kashinath Mahajan Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

Citation:AIR 2018 SC 1498
Read full judgment here: Click here

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Whether non-public servant can be prosecuted for offence under prevention of corruption Act if public servant is dead?

In fact, the question of prosecuting a non-public servant for any offence covered by the P.C. Act arises if there is any possibility of ascertaining basing upon the evidence to be recorded as to whether the public servant involved in connivance with the non-public servants being the concerned Commercial Tax Officer in committing the alleged offences along with the non-public servants. It all depends upon whether the prosecution can be allowed to record evidence against him with reference to the charge under the P.C. Act. 'Abatement' means an extinguishment of the very right of action itself or to cease, terminate or come to an end prematurely and consequently the right of the prosecution to prosecute a deceased accused in a criminal case is effectually wiped out. Unless the public servant is held to be guilty of the charge punishable under the P.C. Act on the basis of the evidence which can be recorded, there will not be any possibility to uphold the same charge against the non-public servants. Therefore, when in view of the abatement of the charge against the public servant the question of reopening it against him does not arise at all, the question of considering that charge against the non-public servants also does not arise at all.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

Criminal Petition No. 901 of 2008

Decided On: 23.09.2011

Appellants: Sri Amara Krishna Mohan Rao, Uppugunduru, Prakasam District and Ors.
Vs.
Respondent: The State of Andhra Pradesh, 

Hon'ble Judges/Coram:
Hon'ble Sri Justice G. Krishna Mohan Reddy

Citation;2012 CRLJ969

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When Special court under Corruption Act can try non PC offence committed by non-public servants?

We can visualize a situation where a public servant dies at the fag end of the trial, by that time, several witnesses might have been examined and to hold that the entire trial would be vitiated due to death of a sole public servant would defeat the entire object and purpose of the PC Act, which is enacted for effective combating of corruption and to expedite cases related to corruption and bribery. The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to-day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act. Consequently, once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.

The Apex Court observed that an offence under the Prevention of Corruption Act can be committed by either a public servant or a private person or a combination of both and in view of the mandate of Section 4(1) of the PC Act, read with Section 3(1) thereof, such offences can be tried only by a Special Judge.

Supreme Court of India

State Th. Cbi New Delhi vs Jitender Kumar Singh on 5 February, 2014

K. S. RADHAKRISHNAN, J.

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