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2000 DIGILAW 547 (CAL)

S. Natarajan v. State of West Bengal

2000-11-10

Debiprasad Sengupta

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JUDGMENT Debiprasad Sengupta, J. This is an application for quashing of a proceeding being Special Case No.1 of 1994 pending in the Court of learned Special Judge, 2nd Court, Calcutta under section 120B/420/467/468/419 of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act. 2. On completion of investigation C.B.I. submitted charge-sheet in the Court of the learned Chief Metropolitan Magistrate, Calcutta under the aforesaid sections alleging that the accused persons pursuant to a criminal conspiracy forged the signature of one Chhotelal Jhunjhunwala in the specimen signature card relating to SDR A/c No. 1499 maintained in Dena Bank, Posta Bazar Branch, Calcutta. Thereafter an amount of Rs. 50,000/- was said to have been transferred to the account from Current A/c No. 772 maintained in the said Bank and the maturity value received through a pay order was alleged to have been encashed after opening an account in DCa Bank, New Market Branch, Calcutta. 3. On receipt of the charge sheet the learned C.M.M., Calcutta took cognizance of the offence under the aforesaid sections on 28.7.94 and transferred the case to the Court of learned 12th Metropolitan Magistrate. The case record thereafter reached the Court of learned Special Judge, 2nd Court, Calcutta through the learned C.M.M., Calcutta. Thereafter cognizance of offence was taken by the learned Special Judge, 2nd Court, Calcutta under the aforesaid sections against two accused persons. 4. Mr. Mukherjee, learned Advocate appearing for the petitioner submits that once cognizance of offence was taken by the learned C.M.M., Calcutta, the second cognizance by the learned Special Judge on the basis of the same chargesheet is totally bad in law and cannot be sustained. The next submission made by Mr. Mukherjee is that petitioner being an Ex-Bank Manager of a Nationalised Bank is a public servant cognizance of offence can only be taken with prior sanction. In absence of any sanction order, according to Mr. Mukherjee, the cognizance of offence taken by the Court can not be sustained. 5. So far as the first point is concerned it appears from records of the case that charge-sheet was submitted by the investigating agency due to mistake in the Court of learned C.M.M., Calcutta. Thereafter on behalf of the prosecution a petition was filed stating that the I.O. erroneously filed charge-sheet before the ld. 5. So far as the first point is concerned it appears from records of the case that charge-sheet was submitted by the investigating agency due to mistake in the Court of learned C.M.M., Calcutta. Thereafter on behalf of the prosecution a petition was filed stating that the I.O. erroneously filed charge-sheet before the ld. C.M.M., Calcutta though the same was to be filed before the learned Special Judge. Accordingly learned C.M.M., Calcutta sent the case record to the Court of learned Special Judge. On receipt of the case record the learned Special Judge directed the prosecution to show cause as to why the proceeding against the accused persons should not be dropped as cognizance of offence was taken by a court (learned C.M.M., Calcutta) who is not empowered to take cognizance of the offence. The point was decided by the learned Special Judge after hearing the learned Advocates of the respective parties and cognizance of the offence was taken by the learned Judge. It is at this stage the petitioner came up before this court for quashing of the proceeding. 6. Mr. Sovanlal Hazra, learned Advocate appearing on behalf of the C.B.I. submits that there is nothing wrong with the order of taking cognizance by the learned Special Judge. Mr. Hazra submits that charge sheet in this case was submitted in the Court of learned C.M.M., Calcutta due to mistake and the learned Magistrate took cognizance of the offence. But the mistake was brought the notice of the learned C.M.M., Calcutta by the prosecution by filing a petition and thereafter the case record was sent to the court of learned Special Judge. Since cognizance was taken by the learned C.M.M., Calcutta due to mistake and in good faith causing no prejudice to the accused, it is curable under section 460(e) of the Code of Criminal Procedure. Mr. Hazra also relies on a judgment of the Hon'ble Apex Court reported in (1993) 1 Supreme Court Cases 561 (Sampat Singh and Ors. vs. State of Haryana & Ors.). On a perusal of the said judgment it appears that after completion of investigation a final report/cancellation report was submitted before the learned Magistrate by the investigating agency although the Magistrate was not empowered to try the offences under the Prevention of Corruption Act. vs. State of Haryana & Ors.). On a perusal of the said judgment it appears that after completion of investigation a final report/cancellation report was submitted before the learned Magistrate by the investigating agency although the Magistrate was not empowered to try the offences under the Prevention of Corruption Act. In such circumstances it was held by the Hon'ble Apex Court that the learned Magistrate before whom cancellation report was submitted, instead of acting on it by himself, should have forwarded the same to the Special Judge. Accordingly the Hon'ble Apex Court set aside the order passed by the learned Magistrate directing him to transmit all the papers along with the cancellation report to the Special Judge having jurisdiction. The learned Special Judge was directed to pass necessary order after going through the records. 7. Mr. Hazra, relying on the aforesaid judgment, submits that in the case of Sampat Singh (supra) a mistake was committed by the investigating agency as also by the learned Magistrate, which was rectified by the Hon'ble Apex Court by directing the Magistrate to transmit the entire case record to the Court of learned Special Judge. In the present case also a mistake was committed by the learned Magistrate by taking cognizance of the offence on the basis of a charge sheet which was submitted by the C.B.I. in the said court due to mistake. But as soon as the said mistake was brought to the notice the learned Magistrate by the prosecution by filing a petition, he sent the entire case record to the court of learned Special Judge. On receipt of the case record the learned Special Judge took cognizance of the offence and proceeded with the matter. 8. I have heared Mr. Hazra on this point and I find sufficient merit in his submission. In my view the order of taking cognizance of offence by the learned Special Judge does not suffer from any illegality. Since cognizance of offence was taken by the learned Magistrate due to mistake causing no prejudice to the accused persons and since such a mistake was rectified by the learned Magistrate himself, as soon as the same was brought to his notice, by transmitting the case record to the Court of the learned Magistrate, I am of the view that there is nothing wrong with the order of taking cognizance of the offence by the learned Special Judge. 9. As regards the second point regarding absence of sanction for prosecution, Mr. Hazra submits that the present petitioner is an Ex-Branch Manager of a Nationalised Bank. But since the petitioner is no more in service he ceased to be a public servant on the date of taking cognizance of offence. In support of his contention Mr. Hazra relies on a judgment reported in (1999)5 SCC 690 (State of Kerala vs. V. Padmanavan Nair). In the said judgment it was held by the Hon'ble Apex Court that an accused facing prosecution for offences under the Prevention of Corruption Act, cannot claim any immunity on the ground of want of sanction if he ceased to be a public servant on the date when the court took cognizance of the said offences. 10. Mr. Hazra next relies on a judgment reported in (1995) 2 SCC 437 (Habibullah Khan vs. State of Orissa & Anr.). In the said judgment it was held by the Hon'ble Apex Court that sanction for prosecution of the persons alleged to have committed offences during their tenure as Ministers, is not required after they ceased to be the Ministers, though they continued to be M.L. As. and even assuming that M.L. As. are public servants. 11. I have carefully gone through the judgments referred to above, which are very much applicable in the present case. The present petitioner is an Ex-Branch Manager of a Nationalised Bank and since he ceased to be a public servant on the date of taking cognizance of the offence, no sanction is required for prosecution of such person. 12. In view of the discussions made above I am of the view that this is not a fit case for quashing of proceeding and I do not find any reason to interfere with the order dated 5.1.95 passed by the learned Judge, 2nd Special Court, Calcutta taking cognizance of the offence. The revisional application accordingly fails and the same is dismissed. Interim order of stay granted by this Court on 10.6.96 stands vacated. 13. Since this is a very old case of 1994 I direct the learned Judge, 2nd Special Court, Calcutta to proceed with the case and to conclude the same with utmost expeditious without granting an unnecessary adjournment to either of the parties. 14. The Lower Court Records may be sent down immediately. Revisional application dismissed. Order of stay stands SKP vacated.