State vs N. Chidananda

K.N. Phaneendra, J.—In these petitions, Application-I.A. No. II/2014 is filed by Sri. Chandrashekara K., learned counsel for the 1st respondent (Sri. N. Chidananda) seeking recalling of the order passed by this court on 05.09.2014.

Counsels on both sides are present. With consent, I have heard the arguments of Sri. Chandrashekar K, the learned Counsel for Respondent No. 1 and Sri. Prasanna Kumar appeared on behalf of Mr. C.H. Jadhav, for the petitioner-Central Bureau of Investigation (for short, "CBI") on I.A. No. II & on merits of these petitions. I have carefully perused the order sought to be recalled.

This court while disposing of the petitions on 5.9.2014 has observed that, Ijoor Police, Ramanagar District, registered a case in FIR No. 123/2013 and submitted two charge sheets pertaining to different parties before the Principal Senior Civil Judge and CJM, Ramanagara District, which are later registered in C.C. Nos. 98/2013 and 99/2013. The submissions made by the petitioner was accepted by Respondent No. 6-Government of Karnataka, that the Government of Karnataka issued a notification in No. HD.79.COD.2013, Bangalore, dated 29.10.2013, wherein the Government has passed an order that -

"The Government hereby accord sanction for investigation of the case pertaining to FIR No. 123/2013 dated 16.07.2013 of Ijoor Police Station, Ramanagara Town Circle, Ramanagara, about misappropriation of Rs. 9.90 Crores related to Ramanagara-Channapatna Urban Development Authority to the C.B.I. under Sections 5 & 6 of Delhi Special Police Establishments Act. The concerned Department, the Officers/Officials and Bank Authority shall hand over the data/information/records, as and when required by C.B.I."

In pursuance of the above said notification issued by the Government, the CBI, the petitioner herein, sought for transfer of the above said criminal cases in C.C. Nos. 98/2013 and 99/2013 on the file of the Principal City Civil (Sr.Dn.) and CJM, Ramanagara to the court of 46th Additional City Civil and Sessions Judge and Special Judge, Bangalore, who is empowered to try CBI cases and the said cases to be tried with the case in RC-7(A)/2014.

On the basis of the said submissions, this court has passed the order allowing the petitions directing transfer of the above said criminal cases to 46th Additional City Civil and Sessions Judge/Special Judge for trying CBI cases (CCH.47), Bangalore. Consequently, the CJM Court, Ramanagara, might have transmitted the records to the concerned court.

In the meantime, the 1st respondent sought for recalling of the above said order on two grounds. First of it is, this court has not issued any notice to the aggrieved accused persons, particularly Respondent Nos. 1 to 5 and only heard the counsel for the petitioner and Respondent No. 6 and passed the order, which virtually amounts to not providing any opportunity to them before transferring the above said cases. Secondly, it is contended that the petitioner -CBI has not yet invoked the provisions under Prevention of Corruption Act (for short, P.C. Act) pertaining to the above said two criminal cases in C.C. Nos. 98/2013 and 99/2013. Unless the CBI invokes any of the provisions of P.C. Act, the Special Court i.e., CCH.47 has no jurisdiction to try those cases.

Sri Prasanna Kumar, learned Counsel for the petitioner fairly concedes that at the time of filing the FIR and charge sheet, in the above said two cases none of the provisions under the P.C. Act has been invoked. Nevertheless, in view of the subsequent transfer of the above said cases for investigation to the CBI, they are contemplating to further investigate the matter and they may during the course of the investigation invoke the provisions of P.C. Act. Therefore, in that context, the transfer has been sought and this court has passed the orders. On perusal of the records, in FIR/Crime No. 123/2013, which is subsequently culminated in C.C. Nos. 98/2013 and 88/2013, the provisions invoked are under Sections 409, 420, 468, 471 r/w. 34 of IPC and no provisions under the P.C. Act are invoked in both the cases. Therefore, as rightly contended by the counsel for Respondent No. 1 till the investigation is completed by the CBI and invoking any of the provisions under the P.C. Act, the said cases cannot be transferred on to the file of CCH.47, which has got jurisdiction to try CBI cases, wherein the provisions of P.C. Act are invoked.

Learned Counsel for the 1st respondent is also right in contending that this court has not issued any notice to the aggrieved accused persons who arraigned as Respondent Nos. 1 to 5 before passing the said order. In this regard, it is worth to note here a decision of this court reported in the case of Sri. Umesh v. Subramanyanagar Police Station, State of Karnataka [ILR 2014 KAR 713], wherein this court has categorically observed that,-

"CRIMINAL PROCEDURE CODE, 1973 - SECTION 439 - Criminal petition seeking bail- Dismissed for default - Application filed for recalling the order of dismissal - Power of the High Court to recall an order of dismissal for default -

HELD, Where the Code is silent about the power of the High Court in respect of any matter arising before it, it can pass suitable orders in exercise of its inherent powers to give effect to any order passed under the Code, or to prevent the abuse of the process of any Court or to secure the ends of justice. -There has never been an inherent power in the High Court to alter or review its own judgment once it has been pronounced or signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on merits, - Consequently for the reasons assigned in the application, the order of dismissal is recalled. The petition is restored to file."

Applying the above said ruling, it is clear that even after pronouncement of the judgment/order signed, if the Court is of the opinion that the Court has passed an order without jurisdiction or in default of appearance of the parties, without adjudication on merits, under such circumstances, the Court can recall its own order. Further added to that, in these particular cases, though this court has passed order on merits of the application, but the respondents have not been heard and even before issuance of notice to Respondent Nos. 1 to 5, the order was passed. Therefore, in view of above said decision and facts and circumstances of these cases, in order to adhere to the principles of natural justice and to administer justice, it is just and necessary to recall the said order.

It is also worth to note here that, even after recalling the order, whether it is necessary for this court to issue any notice to Respondent Nos. 2 to 5 to hear them further in this matter.

As rightly admitted by both the counsels, these petitions do not survive for consideration on merits, because of the simple reason that in these cases no provisions of P.C. Act are invoked by the CBI and also question of transferring of the cases in C.C. No. 98/2013 and 99/2013 from the Court of CJM, Ramanagara to the Court of City Civil and Sessions Judge/Special Judge (CCH.47) does not arise unless and until the CBI invokes any of the provisions of P.C. Act and such transfer would become premature. In this regard, the learned Counsel for the respondents has cited a decision in the case of State through Central Bureau of Investigation, New Delhi v. Jitender Kumar Singh [(2014) 3 SCC (Cri.) 512], wherein the Hon'ble Apex Court observed that,-

"A. Public Accountability, Vigilance and Prevention of Corruption-Prevention of Corruption Act, 1988 - S. 4(3) and S. 3(I) -Jurisdiction/Power of Special Judge to try non-PC offences - Exercise of - Condition precedent - Held, Special Judge when "trying any case" relating to offences under S. 3(I) of P.C. Act, can also try any non-PC offences, with which accused (public servants and or non-public servants) may be charged at the same trial".

This observation goes without saying that there must be one of the offences under the P.C. Act in order to empower the Special Court to try other offences under any of the penal provisions along with the provisions under the P.C. Act. Therefore, in view of the above said rulings, question of transferring the cases at this stage, does not arise.

In view of the above facts and circumstances, the order passed by this court on 05.09.2014 in these petitions is liable to be recalled. Accordingly, the said order is hereby recalled.

After hearing both the parties, as rightly noted above, in view of the above said rulings of the Hon'ble Apex Court, at this stage, these petitions do not survive for consideration. However, liberty has to be given to the petitioner to invoke the jurisdiction of this court for getting transfer of these cases, if necessary in future in the event of the petitioner invoking any of the provisions under the P.C. Act and filing any charge sheet/additional charge sheet against Respondent Nos. 1 to 5 herein under the provisions of P.C. Act. Hence, giving such liberty the petitions are liable to be dismissed.

Accordingly, the following order is passed:--

"I.A. II/2014 is allowed. The common order dated 05.09.2014 passed in these two petitions is hereby recalled.

In view of the above reasonings, the petitions filed under Section 407 of Cr.P.C. are dismissed with liberty to the petitioner to approach this court, if need arises in future, as noted in the body of this order.

In pursuance of the order passed by this court on 05.09.2014, if the records have already been transmitted to the CBI Court viz. 46th Additional City Civil and Sessions Judge and Special Judge for CBI Cases (CCH-47), Bangalore, the same have to be re-transmitted to the Principal Civil Judge (Sr.Dn.) and CJM, Ramanagara, for further proceedings & CJM, Ramanagara has to secure the presence of other accused and proceed with the case in accordance with law."