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2000 DIGILAW 525 (CAL)

Sayedul Islam v. C. B. I.

2000-09-29

Debiprasad Sengupta

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JUDGMENT Debiprasad Sengupta, J. This is an application for quashing of a proceeding being Special Case No.7 of 1996 pending in the Court of learned Judge, 3rd Special Court, Calcutta under section 13(2) read with section 13(1) (d) of the Prevention of Corruption Act, 1988 and sections 120B/420/466/467/ 468/471 of the Indian Penal Code. 2. The allegations as made out in the present case is that the petitioner entered into a conspiracy with some other officers of the Income Tax Department to cheat the Income Tax Department, Indian Bank/Reserve Bank etc. and in pursuance of the said conspiracy committed forgery and dishonestly obtained from circle V of Income Tax Department the Refund Vouchers by one M. Chowdhury of M/s. Universal Engineering Company. It was alleged that the said Refund Vouchers were credited in Account No. 385 maintained with Indian Bank of Kidderpore Branch, Calcutta. 3. On completion of investigation chargesheet was submitted by the investigating agency and by an order dated 3.9.96 the ld Judge, Special Court "took cognizance of the offence under sections 13(2) read with section 13(1) (d) of Prevention of Corruption Act, 1988 and sections 120B/420/466/467/468/471 of the Indian Penal Code and issued process against the petitioner and other accused persons. 4. The present petitioner thereafter filed an application challenging the maintainability of the proceeding before the learned Judge, 3rd Special Court, Calcutta. The point agitated before the learned Special Judge is that the State Govt. Notification dated 23.4.93 appointing the said court as a Special Judge under the Prevention of Corruption Act, 1988 has been struck down by this court in a judgment reported in 1997 Calcutta Criminal Law Reporter (Cal.) 219 and therefore the learned Judge, 3rd Special Court is not competent to try the present case. The said application filed by the petitioner challenging the maintainability of the proceeding, was rejected by the learned Judge, Special Court by his Order dated 16.5.97. The petitioner thereafter came up before this court with a prayer for quashing of the proceeding. 5. The only point raised by Mr. The said application filed by the petitioner challenging the maintainability of the proceeding, was rejected by the learned Judge, Special Court by his Order dated 16.5.97. The petitioner thereafter came up before this court with a prayer for quashing of the proceeding. 5. The only point raised by Mr. Moitra, learned Advocate appearing for the petitioner is that taking cognizance of offence under the Prevention of Corruption Act by a Special Judge appointed by notification under section 2 of the West Bengal Criminal Law Amendment (Special Court) Act, 1949 is not permissible under the law and as such the order of taking cognizance is bad, illegal and without jurisdiction. According to Mr. Moitra the Special Judge being appointed under the Notification dated 23rd April, 1993 under section 2 of the W.B. Special Courts Act, 1949 for trying the offences mentioned in that Act, is not competent to try the offence and to take cognizance of the offence under the Prevention of Corruption Act, 1988. It is submitted that after the Criminal Law (Amendment) Act, 1952, which is a Central Act, came into force, section 6 of the said Act provided for appointment of Special Judge for trying the offences under the Prevention of Corruption Act. But the effect of inclusion of section 13 of the West Bengal Special Courts Act, 1949 in the year 1963 is virtual exclusion of the Criminal Law (Amendment) Act, 1952 from West Bengal. The Government of West Bengal by notification under section 2 of the W.B. Special Courts Act, 1949 constituted Special Courts and also appointed Judges to preside over the Special Courts for trying offences mentioned in the Schedule. But the Special Judge appointed under this Act (Act of 1949) is not empowered to try cases under the Prevention of Corruption Act, 1988, although he can try offences under the Prevention of Corruption Act, 1947. 6. Mr. Moitra learned Advocate appearing for the petitioner relies on a judgment reported in 1995 Calcutta Criminal Law Reporter (Cal) page 63 (H.D. Burman vs. C.B.I. SPE, Calcutta). 6. Mr. Moitra learned Advocate appearing for the petitioner relies on a judgment reported in 1995 Calcutta Criminal Law Reporter (Cal) page 63 (H.D. Burman vs. C.B.I. SPE, Calcutta). In the said judgment it was held by a learned Single Judge of this court that sections 3 and 4 of the Prevention of Corruption Act, 1988 read together clearly show that an offence punishable under the 1988 Act can be tried only by a Special Judge appointed under section 3 of the said Act and not by any other court. It was further held in the said judgment that section 26 of the 1988 Act protects the appointment of only those Judges who were appointed earlier under section 6 of the Criminal Law (Amendment) Act, 1952. A Special Judge appointed not under section 6 of the Criminal Law (Amendment) Act, 1952, but under section 2 of the W.B. Special Court Act, 1949, cannot be treated either under section 26 of the 1988 Act or otherwise as Special Judges appointed under section 3 of the 1988 Act for taking cognizance of offences and for trying offences punishable under the 1988 Act. So, it was finally held, that there is no scope for holding that a Judge of a Special Court appointed under the West Bengal Special Courts Act, 1949 can have the jurisdiction to try offences punishable under the Prevention of Corruption Act, 1988. 7. Mr. Moitra next relies on a judgment reported in 1997 Calcutta Criminal Law Reporter (Cal) 219, (Indra Narayan Ganguly vs. The State of W.B.). In the said judgment it was held by the learned Single Judge of this court, relying upon the judgment referred to above (R.D. Burman, supra), that taking cognizance of offence under1988 Act by a Special Judge appointed by Notification under section 2 of the W.E. Special Courts Act, 1949, is not permissible under the law. In this judgment reliance was also placed on another judgment of this court reported in 1996 Calcutta Criminal Law Reporter (Cal) 25: (1995) 2 CHN 113 (Jatindra Nath Dum vs. C.B.I., SPE, Calcutta, etc.). 8. Mr. Ranjan Roy, learned Advocate appearing for the CBI draws my attention to the Notification dated 12th March, 1996 of Government of W.B. which runs as follows :- "Government of West Bengal Judicial Department No.4039-J Dated, Calcutta the 12th March, 1996. 8. Mr. Ranjan Roy, learned Advocate appearing for the CBI draws my attention to the Notification dated 12th March, 1996 of Government of W.B. which runs as follows :- "Government of West Bengal Judicial Department No.4039-J Dated, Calcutta the 12th March, 1996. NOTIFICATION In exercise of the power conferred by sub-section (2) of section 2 read with sub-section (1) of section 9 of the West Bengal, Criminal Law Amendment (Special Courts) Act, 1949 (W.B. Act XXI of 1949). The Governor is pleased to appoint Sri S.B. Muhuri, a member of the West Bengal Higher Judicial Service, now posted as Additional District and Sessions Judge, Midnapore, to be the Judge to preside over the Calcutta 3rd Special Court vice Shri N.C. Chakraborty. By order of the Governor, Sd/-P.K. Sengupta, Secy. to the Govt. of West Bengal." It is submitted by Mr. Roy that by virtue of the aforesaid notification the learned Judge, 3rd Special Court, is very much competent to take cognizance of the offence and to try the offence punishable under the Prevention of Corruption Act, 1988. 9. I have heard the learned Advocates of the respective parties. I have also carefully gone through the judgment referred to above. The point which is to be decided is whether the Judges of the Special Courts appointed under section 2 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, by virtue of such appointment, can take cognizance of and try offences punishable under the Prevention of Corruption Act, 1988. The above position has now been settled by West Bengal Amendment of section 26A of the Prevention of Corruption Act. Section 26A of the Act runs as follows :- "Judges appointed to preside over Special Courts under West Bengal Act XXI of 1949 to be deemed to be Special Judges appointed under this Act. - (1) Every Judge appointed to preside over a Special Court under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Ben. Act XXI of 1949) for any area or areas and holding office on the commencement of this Act shall be deemed to be a Special Judge appointed under section 3 of this Act for that area or areas and, accordingly, on and from such commencement every such Judge shall continue to deal with all the proceedings pending before him on such commencement in accordance with the provisions of this Act. (2) Every Judge appointed to preside over a Special Court under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, for any area or areas, holding office on any date after the commencement of this Act but before the commencement of the Prevention of Corruption (West Bengal Amendment) Act, 1994 (hereinafter referred to as the said date) and purporting to act under the provisions of this Act, shall be deemed to be a Special Judge appointed under section 3 of this Act for that area or areas and, accordingly, on and from the said date, every such Judge shall continue to deal with all the proceedings pending before him on the said date in accordance with the provisions of this Act." In view of the aforesaid provision of section 26A of the Act now there is no bar for the Special Judges, appointed under the West Bengal Special Courts Act, 1949, to take cognizance or to try offences under the Act. Also by the Notification No. 6614-J, dated 23.4. 93 Special Judges appointed under W.B. Special Courts Act, 1949, shall be deemed to be a Special Judge appointed under section 3 of the 1988 Act for trial of offences under the Prevention of Corruption Act, 1988. It may be mentioned in this connection that since Criminal Law Amendment Act, 1952 is not applicable in West Bengal, by the State Amendment of section 26A of the Act it has been provided that the Special Judges appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 shall be deemed to be a Special Judge appointed under section 3 of the Prevention of Corruption Act, 1988. 10. From a reading of the judgments referred to above it becomes clear that the State Amendment of section 26A of the Act of 1988 was not taken into consideration in the said judgments. In view of the discussion made above and the State Amendment of section 26A of the 1988 Act I am of the view that the Special Judges appointed under West Bengal Criminal Law Amendment (Special Courts) Act, 1949, shall be deemed to be Special Judges appointed under section 3 of the Prevention of Corruption Act, 1988. 11. In view of the discussion made above and the State Amendment of section 26A of the 1988 Act I am of the view that the Special Judges appointed under West Bengal Criminal Law Amendment (Special Courts) Act, 1949, shall be deemed to be Special Judges appointed under section 3 of the Prevention of Corruption Act, 1988. 11. In the present case the learned Judge, 3rd Special Court, Calcutta, having been appointed under the Notification dated 23.4.93 and 12.3.96, is the Special Judge appointed under section 3 of the Prevention of Corruption Act, 1988 and is very much competent to take cognizance of and to try the offences punishable under the Prevention of Corruption Act, 1988. 12. The present revisional application accordingly fails and the same is dismissed. The interim order earlier granted by this court stands vacated. Since this is a very old case of 1993. I direct the learned Special Judge, 3rd Court, Calcutta to proceed with the trial and to conclude the same wit~ utmost expedition without granting any unnecessary adjournments to either of the parties. 13. This judgment will also govern the other revisional application being CRR No. 741 of 1999, filed by the same accused petitioner for quashing of a proceeding being Case No.1 of 1996 in the court of learned Judge, 3rd Special Court, Calcutta, as the similar point of law is involved in both the applications. The said application (CRR No. 741 of 1999) accordingly fails and the same is dismissed. The learned Judge, 3rd Special Court is directed to proceed with the trial and to conclude the same with utmost expedition. Revisional applications fails and dismissed.