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1997 DIGILAW 443 (CAL)

K. K. Kumaran v. Nabin Chandra Thakkar

1997-12-04

Dibyendu Bhusan Dutta

body1997
JUDGMENT Dibyendu Bhusan Dutta, J. The instant application under s. 482 of the Code of Criminal Procedure is directed against the proceeding being C.R. Case No. 9 of 1997 under Ss. 161, 167, 420, 422 of the IPC pending before the Second Court of Judicial Magistrate, Midnapore. 2. The petitioner is working as senior Project Manager, South Eastern Railway, Kharagpore. On 9.12.96, the opposite party filed a petition of complaint in the Court of Chief Judicial Magistrate, Midnapore against the petitioner on the following allegations. The complainant is a registered government contractor and an enlisted contractor of South Eastern Railway. The Chief Project Manager, South Eastern Railway, Gardenreach, Calcutta invited a tender for construction of overhead storage tank and also for sinking deep tube-well at Kharagpore complex. The total estimated amount for the project was Rs. 44,48,821/-. The tender of the complainant was accepted. The complainant had executed a part of the work as per directions given by the petitioner and submitted a bill for Rs. 11,90,000/- to the petitioner. The petitioner asked for a bribe of Rs. 30,000/- which was given by the complainant, but even then the petitioner did not pass the bill. The petitioner asked for payment of ten per cent of the bill amount for passing the bill. The complainant refused to make the payment whereupon the petitioner became furious and threatened the complainant with dire consequences. The petitioner fabricated some official papers illegally to cause harm to the complainant. 3. The ld. Chief Judicial Magistrate, Midnapore was pleased to take cognizance upon that complaint for offences punishable under Ss. 161, 167, 218, 420, 422 and 120B of Indian Penal Code and transferred the case to the Second Court of Judicial Magistrate, Midnapore for disposal. The transferee court examined the complainant and his witnesses under s. 200 Cr.P.C. and was pleased to find a prima facie case under Ss. 161, 167, 420, 422 of the IPC against the petitioner and accordingly, issued warrant of arrest against the petitioner. 4. Mr. Dilip Dutta, appearing for the petitioner assailed the legality of the criminal proceeding on the following grounds. It was urged that s. 161 of the IPC has been repealed by s. 31 of the Prevention of Corruption Act, 1988 and as such, taking of cognizance and issuing of process under s. 161 IPC was bad. 4. Mr. Dilip Dutta, appearing for the petitioner assailed the legality of the criminal proceeding on the following grounds. It was urged that s. 161 of the IPC has been repealed by s. 31 of the Prevention of Corruption Act, 1988 and as such, taking of cognizance and issuing of process under s. 161 IPC was bad. Secondly, it was urged that the documents alleged to have been prepared by the petitioner have not at all been specified. If it be assumed that the petitioner had committed an offence under s. 167 IPC even then the previous sanction under s. 197 of the Code of Criminal Procedure would be necessary to prosecute the petitioner for an offence punishable under s. 167 of the IPC and in the absence of a sanction, it is contended that the cognizance of an offence under s. 167 IPC against the petitioner was bad. Thirdly, it was contended that the complaint does not disclose any element of the offence of cheating as punishable under s. 420 of the IPC, and that in view of s. 4(1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 read with item no. 3 of the schedule thereof, an offence under s. 420 IPC is exclusively triable by a Special Court and as such, the Magistrate has no jurisdiction to take cognizance of an offence under s. 420 IPC as against the petitioner who is a public servant. Lastly, it was contended that for taking cognizance of an offence under s. 422 IPC against the petitioner, absence of sanction under section Cr. P.C. would be fatal. For the above reasons, it is argued by Mr. Dutta that the continuance of the impugned criminal proceeding would be abuse of the process of the court and as such, the proceeding should be quashed. 5. One of the offences of which cognizance appears to have been taken against the petitioner on 3.1.97 in this case is stated to be one punishable under s. 161 of IPC, process also appears to have been issued on a finding that a prima facie case under s. 161 IPC was made out against the petitioner. 5. One of the offences of which cognizance appears to have been taken against the petitioner on 3.1.97 in this case is stated to be one punishable under s. 161 of IPC, process also appears to have been issued on a finding that a prima facie case under s. 161 IPC was made out against the petitioner. Section 31 of the Prevention of Corruption Act, 1988 clearly provides that s. 161 of the Indian Penal Code shall be omitted and s. 6 of the General Clauses Act shall apply to such omission as if such section had been repealed by a Central Act. Section 161 of the Indian Penal Code stands virtually repealed by s. 31 of the Prevention of Corruption Act 1988 and replaced with graver punishment by s. 7 of the Act. It is thus clear that s. 161 was not in the Indian Penal Code at the time when the cognizance was taken and the process issued. Accordingly, no exception can be taken if it is argued on behalf of the petitioner that there was non-application of mind on the part of the ld. Magistrate who took cognizance and issued process in so far as they related to the offence under s. 161 IPC. That apart, if it be assumed that the facts attributed to the accused petitioner in the petition of complaint tantamount to the offence punishable under s. 7 of the Prevention of Corruption Act, 1988, such an offence would be exclusively triable by a Special Judge to take cognizance of such an offence against the petitioner, previous sanction would be necessary under s. 19 of the said Act. It is thus needless to comment that the ld. Magistrate had no jurisdiction to take cognizance of an offence which was previously punishable under s. 161 of the IPC or to try the petitioner for the substituted offence within the meaning of s. 7 of the Prevention of Corruption Act, 1988 and Mr. Y. Dastoor, the ld. counsel appearing for the complainant opposite party was frank enough to concede this position. 6. The next offence which is taken cognizance of and in relation to which a prima facie case is said to have been made out by the materials on record, is the offence punishable under s. 167 of the IPC. Y. Dastoor, the ld. counsel appearing for the complainant opposite party was frank enough to concede this position. 6. The next offence which is taken cognizance of and in relation to which a prima facie case is said to have been made out by the materials on record, is the offence punishable under s. 167 of the IPC. The very language in which this section is counched will at once make it clear that this offence cannot be committed by a public servant except by acting or purporting to act in discharge of his official duty and that being so, the necessity of previous sanction as contemplated under sub-s. (1) of s. 197 of the Cr. P.C cannot be dispensed with for any court to take cognizance of such an offence. Undisputedly, there is no previous sanction for prosecuting the petitioner for an offence punishable under S. 167 of IPC. The cognizance must accordingly be held to be bad in law in so far as it relates to the offence under S. 167 of the IPC and Mr. Dastoor did not choose to advance any argument in order to controvert this position. 7. The next offence that falls for our determination is punishable under s. 420 of IPC. In order to constitute an offence under s. 420 of IPC, there must be cheating coupled with dishonest inducement for delivery of a property. The allegations in the petition of complaint do not per se contain the elements of cheating within the meaning of s. 415 of IPC. Even if it be assumed that the complaint makes out a prima facie case under s. 420 of IPC, such an offence finds its place in item no. 3 of the schedule to the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and for trial of any offence specified in this schedule, sub-s. (1) of S. 4 of the relevant Act that is to say the West Bengal Act 21 of 1949 confers exclusive jurisdiction upon the Special Courts constituted under S. 2 of the Act, and this provision is subject to the non obstante clause viz. "Notwithstanding anything contained in the Criminal Procedure Code or any other law". "Notwithstanding anything contained in the Criminal Procedure Code or any other law". It cannot be said that this jurisdiction of the Special Judges appointed under S. 2 of the 1949 Act has, in any way, been taken away by the provisions of the Prevention of Corruption Act, 1988 in relation to an offence punishable under S. 420 of IPC. In the circumstances, the ld. Magistrate cannot have any jurisdiction to take cognizance of an offence punishable under S. 420 of IPC against the present petitioner. The cognizance taken under S. 420 IPC must accordingly be held to be bad in law. On this point as well, Mr. Dastoor did not advance any counter argument. 8. The only other offence with which we are concerned here is one punishable under s. 422 IPC. This section is attracted whenever a person dishonestly or fraudulently prevents any debt or demand due to some person from being made illegally available for his debts or for the debts of another person. It is really not understood how on the facts alleged in the petition of complaint this section could be attracted. The taking of cognizance by the Magistrate of an offence under S. 422 IPC must accordingly be faulted. Mr. Dastoor again in his usual frankness did not try to repel the contention of Mr. Dutta on this point. 9. Mr. Dastoor, however, submitted that the complainant opposite party might be given leave by this Court to launch a fresh prosecution for appropriate offences before the appropriate forum after observance of the requisite legal formalities if so advised. 10. For the reasons discussed above, it would necessarily follow that the impugned criminal proceeding should not be allowed to continue and should be quashed. There is, however, no legal bar to granting a liberty to the complainant opposite party for launching an appropriate prosecution in a proper forum, if the same is not otherwise barred by law on the facts and circumstances disclosed in the petition of complaint. In the result, the criminal proceeding is hereby quashed. The complainant opposite party is hereby given liberty to launch fresh prosecution according to law before the appropriate forum on the facts and, circumstances disclosed in the petition of complaint, if the same is not otherwise barred by law. Proceeding quashed. Liberty granted.