ORDER The petitioner was originally appointed as Special Debt Conciliation Officer under the Co-operative and Rural Indebtedness Department of the Government of West Bengal through the Public Service Commission. The petitioner was promoted to a Gazetted Post and ultimately in May, 1969 the petitioner was posted in Howrah as the District Compensation Officer under the Land and Land Revenue Department and also as an Executive Magistrate. He remained posted in Howrah from May, 1969 to December, 1971. On the 1st November, 1971 a First Information Report was lodged by the Additional District Magistrate, Howrah implicating the petitioner with one Jayanta Chatterjee and one Biren Bagchi and another person for forgery, cheating and conspiracy being Howran P. S. case No. 2(11)71. On the 3rd December, 1971 the petitioner was transferred to Alipore where he worked up to 31st December, 1972 and retired on the 1st January, 1973 on attaining the age of superannuation. The petitioner applied for pension and gratuity and complied with all the formalities required for the same but no pension or gratuity was paid to the petitioner. The petitioner made several representations for payment of his pension and gratuity but without any effect. Ultimately the petitioner after giving a notice demanding justice dated 6th August, 1974 through his lawyer moved this writ petition in this Court inter alia for grant of his pension and gratuity. The petitioner also made an application for interim orders in the said Rule. On the 2nd June, 1975 the Board of Revenue being served with the said application for interim orders released 2/3rd of his pension. In the affidavit-in-opposition filed in the said application on behalf of the Board of Revenue by Paresh Chandra Chakraborty it was stated that a Criminal case was pending against the petitioner. It was admitted that the petitioner was cited as witness in the said Howrah P. S. case No. 2(11)71 but, it was alleged that fresh enquiry was being made by the Police in that case after submission of charge-sheet against two of the other accused. By an order dated the 16th June, 1975 this Court directed payment to the petitioner half of his gratuity in addition to the 2/3rd pension already released. 2. By an order dated the 16th June, 1975 this Court directed payment to the petitioner half of his gratuity in addition to the 2/3rd pension already released. 2. The petitioner alleges that on the 7th June, 1973 the District Enforcement Branch, Howrah sought for the opinion of the Public Prosecutor for submission of charge-sheet against the accused Jayanta Chatterjee and Biren Bagchi only for trial in the said Howrah P. S. Case No. 2(11)71 wherein the petitioner was cited as a prosecution witness on behalf of the State. The petitioner alleges that nothing was found against the petitioner in the said Howrah P. S. Case No. 2(11)71 will appear from the memo of evidence therein. A special court being allotted by the State Government for trial of the said Howrah P. S. Case No. 2(11)71 the Investigation Officer on the 27th May, 1974 as directed by his superior officer submitted a charge-sheet under several sections of the Indian Penal Code against the accused Jayanta Chatterjee and Biren Bagchi only. 3. On the 17th November, 1974 the Additional District Magistrate Howrah made a written complaint in court whereupon a criminal case was started against the petitioner and two others for alleged wrong payment of certain amount being Howrah P.S. Case No. 17(11)74. 4. On the 26th February, 1975 the District Magistrate Howrah requested the Police authorities to re-open the Howrah P.S. Case No. 2(11)71 against the petitioner although charge-sheet and already been submitted against the accused and the Sub-Divisional Judicial Magistrate, Howrah permitted the same. 5. On the 14th October, 1977 during the pendency of this Rule the said Howran P.S. Case. No. 17(11)74 ended in a final report and discharge of the petitioner. There was also another criminal case against the petitioner and other being Case No. 33(1)76 which has also ended in the discharge of the petitioner on the 22nd October, 1979 during the pendency of this Rule. 6. The petitioner has made this Writ petition under Article 226 of the Constitution inter alia for quashing of all the said criminal proceedings and Police investigation including the said Howrah P.S. Case No. 2(11)71 and for directing the respondents to pay the pension and gratuity and other retirement benefits to the petitioner as provided under The West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. 7. Mr. 7. Mr. R. N. Mitter, learned Advocate for the petitioner contended that all the criminal cases which were initiated against the petitioner have ended in his discharge and no criminal case is pending against the petitioner. The Howrah P.S. Case No. 2(11)71 could not be re-opened any more inasmuch as in the said case report under S. 173(2) of the Code of Criminal Procedure 1898 (Act V of 1898) (hereinafter referred to as the Old Code) had already been submitted by the Police Officer and only Jayanta Chatterjee and Biren Bagchi were the two accused facing trial. Not only that there was no case against the petitioner and no charge was therefore, framed against him but only the contrary the petitioner was cited in that case as a State witness for the prosecution, Mr. Mitter submitted that as the offences out of which the said case arose, were detected by the petitioner himself he was therefore cited as a witness. Under S. 173 of the Old Code there was no power to make a fresh or further investigation after a report under sub-s. (2) of S. 173 had been submitted. The said case was initiated and the offences are alleged to have been committed on or before 1st November, 1971 when the First Information Report was lodged under the Old Code. The power to make further investigation in a case where report had already been submitted by the Police Officer under S. 173(2) was introduced by S. 173(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code). Mr. Mitter urged that sub-s. (8) of S. 173 of the new Code could have no application to this case because in that case the report under sub-s. (2) of the said section of the new Code had to be forwarded or submitted to the Magistrate. A report submitted under sub-s. (2) of S. 173 of the Old Code could not be brought under the purview of sub-s. (8) of S. 173 of the new Code. Therefore the further investigation sought to be made in the said case against the petitioner was wholly illegal and without jurisdiction. Mr. Mitter also referred to S. 484 of the new Code which is a repealing and saving section. Therefore the further investigation sought to be made in the said case against the petitioner was wholly illegal and without jurisdiction. Mr. Mitter also referred to S. 484 of the new Code which is a repealing and saving section. By sub-s. (2) of the said section the pending matters including investigations, enquiries and trials are directed to be disposed of in accordance with the provisions of the Old Code, in spite of special thereof by the new Code. 8. In my opinion, S. 484 did not have any application to the Howrah P.S. Case No. 2(11)71 because there was no enquiry or investigation or trial pending against the petitioner in respect of the said case when the old Code was repealed and the new Code came into force. The other two cases namely Case Nos. 17(1)74 and 33(11)76 which was pending at the time have since ended in the discharge of the petitioner. 9. Mr. Amaresh Chakraborty, learned Advocate for the respondents referred to paragraph 10 of the affidavit in opposition on behalf of the respondents affirmed by Paresh Chandra Chakraborty on the 9th March, 1979 wherein it is stated that as there were reasons to believe that the petitioner as District Compensation Officer, Howrah failed to discharge his duties properly which resulted in loss of a considerable sum to the Government, therefore to find out the extent of the petitioner's offence a fresh investigation was arranged. Mr. Chakraborty submitted that to find out the offence, if any, committed by the petitioner a fresh investigation could be made and such investigation is permitted under the new Code. 10. I am unable to accept the contention of Mr. Chakraborty. The new Code is not a statute amending the old Code. It is a new Code repealing and replacing the old Code. Section 173 of the Code had no sub-s. (8). Section 173 of the new Code has sub-s. (8). The further investigation as contemplated under sub-s. (8) of Section 173 of the new Code could be made only when the report was submitted under sub-s. (2) of S. 173 new Code. It has no application to a case where the report was submitted under sub-s. (2) of S. 173 of the old Code. 11. The further investigation as contemplated under sub-s. (8) of Section 173 of the new Code could be made only when the report was submitted under sub-s. (2) of S. 173 new Code. It has no application to a case where the report was submitted under sub-s. (2) of S. 173 of the old Code. 11. In this case as the report was submitted under sub-s. (2) of S. 173 of the old Code and not of the new Code therefore, no further investigation as contemplated by sub-s. (8) of S. 173 of the new Code could be made. The action of the respondents in directing and making fresh or further investigation against the petitioner in the said Howrah P.S. Case No. 2(11)71 was therefore wholly illegal and without any authority and jurisdiction and the same therefore, cannot be sustained. 12. Mr. Mitter next urged that the pension or gratuity of the petitioner could not be withheld. In support of his contention Mr. Mitter referred to Rules 10 and 14 of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971. The relevant portions of the said Rules may conveniently be set out to appreciate the contention of Mr. Mitter. "10. Right of the Governor to withhold pension in certain cases. (1) The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or negligence during the period of his service, including service rendered on re-employment after retirement." Provided that–– * * * * (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which across or an event which took place more than three years before such institution; * * * * (d) a judicial proceeding shall be deemed to have been instituted–– (i) in the case of criminal proceeding, on the date on which the complaint or report of police officer, on which the Magistrate takes cognizance, is made, * *" "14. Criminal proceedings.––A Government servant who retires from service but against whom criminal proceedings involving moral turpitude are pending in a court of law, shall not be sanctioned any pension until the termination of the criminal proceedings * * *" 13. Mr. Mitter urged that only under Rule 10 of the said rules Governor has power to withhold pension only if a pensioner is found in a judicial or departmental proceeding to have been guilty of grave misconduct or negligence during the period of his service. There being no such judicial or departmental proceeding against the petitioner there was no question of his being found guilty of any such offence. Under the explanation to the said rule a judicial proceeding is deemed to be instituted in case of a criminal proceeding on the date on which the complaint or the report of the Police Officer on which the Magistrate takes cognizance, is made. Here no complaint or report against the petitioner was made by the Police Officer and no cognizance was or could therefore be taken by the Magistrate. Thus no judicial proceeding was instituted or could be deed to have been instituted against the petitioner and consequently no criminal proceeding was pending against him. Mr. Mitter submitted that the other cases against the petitioner resulted in his discharge while in Howrah Police Station Case No. 2(11)71 not only that there was no charge against the petitioner at all but on the contrary he was cited as a State witness for the prosecution. The petitioner was now sought to be proceeded against by seeking to reopen the said case. Mr. Mitter therefore submitted that the gratuity or the pension of the petitioner could not be withheld. Mr. Mitter also urged that under clause (c) of rule 10 the Governor could withhold the pension or gratuity if a judicial proceeding had been instituted in respect of a cause of action which arose or an event which took place not more than three years before such institution. The alleged offence, if any, according to the first information report lodged, was committed on or before 1st November, 1971 long before three years and therefore on that ground also the gratuity or pension of the petitioner could not be withheld. Mr. Chakraborty contended on the other hand that the investigation was going on against the petitioner and the Howrah P.S. Case Nos. Mr. Chakraborty contended on the other hand that the investigation was going on against the petitioner and the Howrah P.S. Case Nos. 7(11)74 and 33(1)76 were pending against the petitioner and he was discharged during the pendency of this Rule. There were allegations against him of having caused huge loss to the Government and if the pension and gratuity was paid to him and if it was found later that such amount was recoverable from the petitioner, the same would become irrecoverable. Therefore, as a precautionary measure the pension and gratuity of the petitioner was suspended. I am unable to accept the contentions of Mr. Chakraborty. The grounds on which the Governor could exercise his power of withholding pension are clearly laid down in rule 10 of the said rules. I accept the contention of Mr. Mitter that the facts and circumstances in this case did not come within the purview of the said rule so s to enable to Governor to exercise his power of withholding the pension or gratuity of the petitioner. Mr. Mitter, referring to rule 14 of the said rules, submitted that sanction of pension could be withheld if criminal proceedings involving moral turpitude was pending in a court of law, until termination of such criminal proceedings. Here no criminal proceeding involving moral turpitude of the petitioner was pending in any court of law against the petitioner and therefore the sanction of the pension could not be withheld. Mr. Chakraborty said that he had no further submissions to make regarding this aspect of the matter. I accept the contention of Mr. Mitra. 14. On the view that I have taken the petitioner must succeed in this rule and the rule is, therefore, made absolute and the criminal proceeding and Police Investigation in question against the petitioner in Howrah P.S. Case No. 2(11)71 is quashed. There will be no order as to costs. The respondents are directed to release the full pension and gratuity of the petitioner after complying with the necessary formalities as expeditiously as possible. Rule made absolute.