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1999 DIGILAW 504 (CAL)

State of West Bengal v. Kumod Ranjan Chatterjee

1999-09-13

GITESH RANJAN BHATTACHARJEE, MALAY KUMAR BASU

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JUDGMENT Bhattacharjee, J. All these three matters are being disposed of by this order. C.R.M. No. 2231/99 arises out of Special Case No. 3/96 of the Special Court (Session Judge), Howrah under Sections 409/120B IPC C.R.M. No. 2232/99 arises out of Special Case No. 2/96 of the Special Court (Session Judge), Howrah under Section 409/120B IPC. C.R.M. No. 2233/99 arises out of Special Case No. 6/97 of the Court of Second Special Judge, Howrah under Section 468, 409, 120B & 380 IPC. All this matters have been placed before this bench in view of the assignment made by the Hon’ble the Chief Justice on 19.6.99 for necessary action including exercise of suo motu power of revision or under Article 227 of the Constitution of India. The records of the lower Court called for in the matter also have been placed before this bench. 2. On a perusal of the record of the Special case No. 3/96, we find that the learned Special Judge, Howrah by his order No. 10 dated 4.8.97 discharged the accused persons from the case holding that the cognizance taken in the case was bad in law. In his order, the learned Session Judge has recorded that on security of the case record it appeared that by order No. 1 dated 27.8.96 cognizance was taken by the then Judge, Special Court, Howrah but in the order-sheet it has not been reflected whether the papers which were required to be sent under Section 173(5) Cr. P.C., were filed and taken into consideration by Court alongwith the report/charge-sheet submitted by the police under Section 173(2) Cr. P. C. The Special Judge has also recorded in his order that the ‘impugned order of taking cognizance’ did not at all disclose that the Court at the time of taking cognizance looked into police report together with the documents and the statements as required to be submitted under Section 173(5) of Cr. P. C. and accordingly, he held that the cognizance taken in the case was quite mechanical and as such bad in law. Accordingly, he discharged the accused person from the case and also released them for their bails bonds with the observation that the investigating agency might file separate charge-sheet against the accused persons after complying with the provisions of Section 173(2) and 173(5) of the Cr. P. C., if not otherwise barred. Accordingly, he discharged the accused person from the case and also released them for their bails bonds with the observation that the investigating agency might file separate charge-sheet against the accused persons after complying with the provisions of Section 173(2) and 173(5) of the Cr. P. C., if not otherwise barred. However, without entering into the merit of the question as to whether cognizance taken on the basis of charge-sheet, even if not accompanied by other documents, will necessarily make the cognizance bad in law even when the charge-sheet prima facie makes out the commission of an offence, we must say that the order of the learned Special Judge discharging the accused persons itself is based on an illegal exercise of a jurisdiction that did not vest in the learned Special Judge. The Special Judge in this case on the basis of the charged sheet filed, took cognizance in the case on 27.8.96 and proceeded with the matter. That being so, there was no scope for any successor Judge in the self same case to reexamine the question whether the cognizance as taken by his predecessor-in-office was bad in law. One of the cardinal principles of procedural law is that a successor Judge cannot sit in appeal or in revision cover an order which was earlier passed in the same matter by his predecessor Judge. If the party was in any way aggrieved by the order of cognizance originally taken by the Special Judge in the matter it was for that party to remove the superior Court of proper jurisdiction against the order in accordance with law, but the successor Judge of the same Court cannot examine whether the cognizance was good or bad in law as if he was sitting in appeal or revision as superior Court. In fact, as we have been the learned Special Judge has, in his other now under consideration, referred to the order of cognizance of his predecessor-in-office as ‘impugned’ order of taking cognizance. But we are of opinion that an order of cognizance cannot be impugned before a successor Judge of the same Court that took the cognizance. In our opinion the Session Judge (Special Judge). Howrah committed an illegality by discharging the accused persons by his order dated 4.8.97 on the ground that the cognizance earlier taken in the matter by his predecessor-in-office was bad in law. In our opinion the Session Judge (Special Judge). Howrah committed an illegality by discharging the accused persons by his order dated 4.8.97 on the ground that the cognizance earlier taken in the matter by his predecessor-in-office was bad in law. That being so, we are clearly of the opinion that the cause if Justice requires the intervention of this Court in the matter. 3. In the Special Case No. 2/96, we find that the learned Special Judge, 1st Court, Howrah by his order dated 20.5.98 discharged the accused persons after dropping the proceeding on the ground that any Special Judge appointed under notification issue under Section 2 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (W.B. Special Court Act, 1949, for short) has no jurisdiction to try an offence under the Prevention of Corruption Act, 1988. In our opinion, this order is also prima facie bad in law. In this case, the cognizance was first taken on 14.8.96. The Judges who were originally appointed under the West Bengal Special Court Act, 1949 were subsequently appointed as Judges of Special Courts for trial of offences under the Prevention of Corruption Act, 1988, by notification No. 6614-J dated 23.4.93. That being so, the Judge, Special Court in this case while taking cognizance of the concerned offence in August 1996 and jurisdiction to take cognizance in the matter and also to try the offences. There is also the Supreme Court decision in (1) Nar Bahadur Bhandari v. State of Sikkim, AIR 1998 SC 2203 : 1998 C Cr LR (SC) 273, from which it is clear that the Special Court Judges appointed under the 1988 Act have competence to try the offence triable under the earlier corresponding Act. Section 30(2) of the Prevention of Corruption Act, 1988 clearly provides that notwithstanding repeal of the concerned earlier Acts anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall in so far as it is not inconsistent with the provisions of the 1988 Act be deemed to have been done or taken under or in pursuance of the corresponding provisions of the 1988 Act. Since in this case the cognizance was taken after the appointment of the Special Judge under the 1988 Act by notification dated 23.4.93, the proceeding is protected. Since in this case the cognizance was taken after the appointment of the Special Judge under the 1988 Act by notification dated 23.4.93, the proceeding is protected. Moreover, Section 30(2) of the 1988 Act is also there and the implication and amplitude of the same has been clearly explained in the Supreme Court decision in Nar Bahaduri v. State of Sikkim (supra), as well as the earlier decision of the Supreme Court in (2) CBI v. Subodh Kumar Dutta, AIR 1997 SCW 746 , which was a decision on a West Bengal case and which decision has also been referred to by the Supreme Court in Nar Bahaduri v. State of Sikkim (supra). According, we are of the clear opinion that the order of the learned Special Judge, 1st Court, Howrah, dated 20.5.98 dropping the case and discharging the accused is illegal, and interference of this Court is needed in the matter. 4. In Special Case No. 6/97, however, the learned Special Judge on consideration of the matter rejected the application of the accused persons for discharging them from the case on the ground that the trial is not maintainable. In this case on the ground that the trial is not maintainable. In this case, on consideration of this records of the case including the order dated 4.1.99 passed by the Judge, Special Court rejecting the application of the accused persons for discharging them on grounds similar to the grounds in other two cases dealt with above, we find that the learned Special Judge passed the correct order and therefore, no intervention of this Court is warranted in this matter. In the result, in suo motu exercise of the power of this Court under Article 227 of the Constitution read with Section 397 Cr.P.C., we set aside the order dated 4.8.97 passed by the Special Judge, Howrah in Special Case No. 3/96 and order dated 20.5.98 passed in Special Case No. 2/96 and direct the concerned Special Judge to proceed with those matters immediately in accordance with law. The accused persons of the respective cases are also directed to surrender before the concerned Special Judge, Howrah within a fortnight from this date filling which the learned Special Judge will take steps in accordance with law for enforcing their appearance. The accused persons of the respective cases are also directed to surrender before the concerned Special Judge, Howrah within a fortnight from this date filling which the learned Special Judge will take steps in accordance with law for enforcing their appearance. Since no intervention of this Court is necessary in Special Case No. 6/97 of 2nd Court of Special Judge, Howrah, we direct the concerned Special Judge to proceed with the matter expeditiously in accordance with law. All the three matters stands dispose of accordingly. The Department is directed to send back the case records to the concerned Special Courts promptly. Basu J : I agree.