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2014 DIGILAW 1139 (CAL)

Swarup Mazumdar v. State of West Bengal

2014-12-03

JOYMALYA BAGCHI

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Judgment Joymalya Bagchi, J. The petitioner has assailed the order dated 13.12.2013 passed by the learned Judge, Special Court under the Prevention of Corruption Act, North 24-Paraganas, Barasat in Special Case No.12 of 2003 framing charge under Section 411 against the petitioner and other co-accused persons viz., Pranab Saha and Sanjib Saha and under Sections 409/418/468 of the Indian Penal Code against Tapas Saha. The prosecution case, as alleged, is to the effect that the defacto complainant was a dealer in medicine and carried on business under the name and style of ‘Bina Enterprise’. Co-accused Tapas Ghosh was an employee of the defacto complainant. It is alleged that on various dates, said Tapas Ghosh in his capacity as a sales man and agent of opposite party no.2 was entrusted with medicines for effecting supplies. It is further alleged that as collections in respect of such supplies were very poor, suspicion arose in the mind of the defacto complainant and on enquiry, he found that Tapas Ghosh being entrusted with such medicine had misappropriated the same and had sold the said misappropriated medicine to the petitioner and other co-accused persons. Tapas Ghosh confessed to his guilt and gave a written undertaking that 62% of the medicine were sold to the petitioner and the other co-accused persons. First Information Report was registered being Barasat P.S. Case No.329 dated 5.6.2001 under Sections 409/406/418/468 of the Indian Penal Code against the said Tapas Ghosh. In the course of investigation, stolen property was allegedly recovered from the possession of the petitioner as well as other co-accused persons. In conclusion of investigation, charge sheet was filed under Sections 409/418/468/411 against Tapas Ghosh and other co-accused persons including the petitioner herein. The case was sent to the Court of the Learned Special Judge, Special Court under Prevention of Corruption Act, North 24-Paraganas, Barasat for trial and disposal. Charges were framed on 13.12.2013 under Sections 409/418/468 of the Indian Penal Code against co-accused Tapas Ghosh while charge was framed under Section 411 against the petitioner and other co-accused persons. The petitioner has assailed the impugned order of framing charge against him. The learned counsel appearing for the petitioner submitted that co-accused Tapas Ghosh was neither a public servant nor an agent of the Government who was dealing in Government property. The petitioner has assailed the impugned order of framing charge against him. The learned counsel appearing for the petitioner submitted that co-accused Tapas Ghosh was neither a public servant nor an agent of the Government who was dealing in Government property. Hence, the Special Judge appointed under the Prevention of Corruption Act, 1988 or under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (hereinafter referred to as ‘the Act’) was not competent to try the case. He further submitted that the learned Court below had not taken cognizance of the alleged offences but illegally proceeded to frame charge against the petitioner. He also submitted that there was no material on record to connect the petitioner with the alleged offence. Mr. Banerjee, learned counsel appearing for the State submitted that there was ample material on record to connect the petitioner with the alleged offence. He submitted that the stolen articles were recovered from the petitioner creating strong suspicion against the petitioner justifying framing of charge. He, however, admitted that the co-accused Tapas Ghyosh was neither a public servant nor was he an agent of the Government handling Government property. I have considered the materials on record. It is a fact that the petitioner is not a public servant nor is he an agent of the Government handling Government property. There is also no charge levelled under the Prevention of Corruption Act, 1988 against the petitioner or the other accused persons. Hence, the Special Court constituted under the Act of 1949 ought not to try the instant case in view of the schedule appended to the said Act. The schedule of the Act of 1949 inter alia provides as follows; “Offences triable by Special Judges 1. An offence punishable under section 161, section 162, section 163, section 164, section 165 or section 165A of the Indian Penal Code. 2. The schedule of the Act of 1949 inter alia provides as follows; “Offences triable by Special Judges 1. An offence punishable under section 161, section 162, section 163, section 164, section 165 or section 165A of the Indian Penal Code. 2. An offence punishable under Section 409 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in section 617 of the Companies Act, 1956 as an agent of such Government company in respect of property – with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent. 3. An offence punishable under section 417 or section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in section 617 of the Companies Act, 1956 as an agent of such Government company, while purporting to act as such public servant or agent. 7. An offence punishable under section 5 of the Prevention of Corruption Act, 1947. 8. Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1, 2, 3 and 7.” As discussed above, petitioner is neither a public servant nor is dealing with Government property in the capacity of an agent of the Government. Accordingly, I am of the view that the instant case was sent to the file of the learned Special Judge constituted under the Prevention of Corruption Act erroneously and the same ought to have been tried by the learned Magistrate of appropriate jurisdiction in Barasat Sadar Sub Division. It has been strenuously argued that the charge framed by the Special Judge ought to be quashed and the matter be remitted to the Court of the learned Judicial Magistrate for commencing the proceeding afresh. It has been strenuously argued that the charge framed by the Special Judge ought to be quashed and the matter be remitted to the Court of the learned Judicial Magistrate for commencing the proceeding afresh. Although I am of the view that the matter requires to be transferred to the Court of the learned Chief Judicial Magistrate, I am unable to accede to the plea that the proceeding ought to commence afresh and the charge already framed by the learned Special Judge be quashed. The Special Judge constituted under the Act of 1989 or under the Prevention of Corruption Act is of the rank of the Additional Sessions Judge. Section 26 of the Code of Criminal Procedure inter alia provides as follows; “S.26. Court by which offences are triable- Subject to the other provisions of this Code,- (a) any offence under the Indian Penal Code (45 of 1860) may be tried by- (i) the High Court, or (ii) the Court of Sessions, or (iii) any other Court by which such offence is shown in the First Schedule to be triable: (Provided that any offence under section 376 and sections 376A to 376D of the Indian Penal Code (45 of 1860) shall be tried as far as practicable by a Court presided over by a woman.) (b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by- (i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable.” As per section 9 of the Code of Criminal Procedure, a Court of Sessions comprises of the Sessions Judge and other Additional/Assistant Sessions Judges appointed to the Sessions Division. The legislative intention behind the aforesaid provision is that the High Court or the Court of Sessions being superior courts are entitled to try any offence under the Indian Penal Code in addition to any other Court entitled to do so in terms of the First Schedule. Hence, there is no embargo on a Court of Sessions to try the offences alleged in the instant case notwithstanding the fact that the said offences are triable by a Magistrate under the First Schedule. Hence, there is no embargo on a Court of Sessions to try the offences alleged in the instant case notwithstanding the fact that the said offences are triable by a Magistrate under the First Schedule. As the Special Court under the Act of 1949 is manned by a Judge who is not less than that the rank of an Additional Sessions Judge, I am of the opinion that the charge framed in the instant case by the Special Court manned by a superior judicial officer cannot be said to have caused prejudice to the petitioner or have occasioned failure of justice so as to quash the same and direct reconsideration of the matter from its inception by the learned Judicial Magistrate. Moreover, the petitioner had not raised this issue earlier and had permitted the charge to be framed by the Special Judge. Having belatedly raised the same, it would be contrary to the interest of justice and cause undue delay to set the hands of the clock back and direct commencement of proceeding afresh where no demonstrable injustice has been shown to be caused to the petitioner by such act. I find the court below after receipt of charge sheet proceeded to supply copies to the accused persons and thereafter framed charges against them. Such steps taken by the Court below leave no doubt in one’s mind that it had taken cognisance of the alleged offences. It is settled law there is no form or manner of taking cognisance. It is to be inferred from the subsequent steps taken by the Court, as in the present case, that it has taken cognisance of the alleged offences or not. Finally, I find that alleged stolen property was recovered from the possession of the petitioner. Accordingly, framing of charge under section 411 of the Indian Penal Code against him cannot be said to be illegal or perverse. Accordingly, I am of the opinion that the interest of justice would be sub-served in the event the proceeding is transferred to the Court of the learned Chief Judicial Magistrate, Barasat and the latter is directed to try the case from the stage it has already reached by himself or by any other Magistrate of competent jurisdiction in accordance with law. With the aforesaid direction, the revisional petition and the application, being CRAN 3793 are disposed of.