Calcutta High Court (Appellete Side)
Ramkrishna Goswami vs The State Of West Bengal & Anr on 4 September, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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Form No. J. (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Present :
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.R. 3871 of 2011
Ramkrishna Goswami
-Versus-
The State of West Bengal & Anr.
For petitioner: Mr. Abhra Mukherjee.
For C.B.I : Mr. Himangshu De,
Mr. Mritunjoy Chatterjee.
Heard on: 4th September, 2013.
Judgment on: 4th September, 2013.
Joymalya Bagchi, J.:-
The petitioner has prayed for setting aside the order dated August 5, 2011 passed by
learned Special Judge, 3rd Special Court, Calcutta in Special Case no. 5 of 2011 directing
framing of charge against him under Section 120B/420/468/471 of the Indian Penal Code
and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988.
The prosecution case is to the effect that the petitioner as the Senior Manager of
Canara Bank, College Street Branch, Kolkata, during the period from 2005 to 2007 entered
into a conspiracy with Anil Kumar and Md. Wahid Murad, proprietor of M/s. Faisal
Trading, which is a non-existing firm, and pursuant thereto on the basis of forged and
fabricated documents i.e. audited Balance Sheets dated 12/08/2002, 17/07/2003 and
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23/06/2004respectively, sanctioned O.C.C. limit of Rs. 16 lakhs on 22/8/2005 and further enhanced such limit to Rs.21 lakhs on the basis of forged and fabricated audit reports dated 12/07/2006 and 31/10/2006.
On such accusation, the learned Judge framed charges under Section 120B/420/468/471 of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "said Act of 1988") against the petitioner.
Learned Counsel appearing for the petitioner submitted that at the time of taking cognizance the petitioner was no longer a public servant and therefore, the learned Special Court had no jurisdiction to try the case. He relied on the decision reported in 2008 (3) SCC (Criminal) 678 in the case of State of West Bengal - Vs. - Shyamadas Banerjee & Ors. in support of his contention. He further submitted that although a First Information Report was registered, the same resulted in filing of thirteen charge sheets, one of which has been resulted in framing of charge in the impugned case. Learned counsel further submitted that investigation in respect of one First Information Report must result in filing of a single charge sheet and the investigating agency had no power to split up the case into thirteen charges-sheets, which is most harassive for the petitioner. He relied on 2012(2) CCrLR(Cal) 875 and 2013 CrLJ 2807.
Learned senior Counsel appearing for the Central Bureau of Investigation opposed such prayer and submitted that the charges have been framed under the Prevention of Corruption Act which is triable by the Special Judge under Section 26-A of the Act of 1988 (as amended by Prevention of Corruption (West Bengal Amendment) Act, 1994. He further submitted that thirteen charge sheets were filed inasmuch as the accused person had 3 committed thirteen several offences though similar in nature but in respect of separate transactions with different constituents of Bank and such an exercise cannot be labelled as either illegal or harassive in nature.
I have considered the submissions of the respective parties.
First issue is whether the prosecution of the petition is to be conducted by the Special Judge constituted under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (hereinafter referred to as the "Said Act of 1949").
In the State of West Bengal the Special Judges for the purposes of trying offences under the Prevention of Corruption Act, 1947 (hereinafter referred to as Act of 1947) were appointed under the Act of 1949. Act of 1947 was repealed and Act of 1988 was enacted. Section 26 of the Act of 1988 provided that offences under the said Act tried by Special Judges appointed under Criminal Law Amendment Act, 1952 (hereinafter referred to as Act of 1952) were deemed to be Judges under Section 3 of the Act of 1988 empowered to try offences under the said Act of 1988. Section 30 of the Act of 1988 saved acts done or purported to be done under Act of 1947 and Act of 1952.
As the Special Judges in the State of West Bengal were appointed under Act of 1949 and not under Act of 1952, provisions of Sections 26 and 30 of the Act of 1988 did not relate to them and did not empower such Judges to try offences under Act of 1988.
Faced with such an imbroglio, State of West Bengal Amended Act of 1988 by Prevention of Corruption (West Bengal Amendment) Act, 1994 (hereinafter referred to as Amendment Act of 1994) and incorporated Section 26-A to the principal statute.
Section 26-A reads as follows:-
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"26-A. Judges appointed to preside over Special Courts under West Bengal Act 21 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 Bengal Act 21 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 and 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."
Section 4 of Amendment Act of 1994 saved acts done and/or purported to be done by Special Judges appointed under Act of 1949 under the Act of 1988 by giving retrospective operation to the said Amendment Act. Section 4 of Amendment Act of 1994 reads as follows:
"4. Saving and validation. - Notwithstanding anything contained in the principal Act or in any other law for the time being in force, any order passed, any evidence recorded, or any action taken under the principal Act by a Judge of Special Court appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, and purporting to act under the provisions of the principal Act, before the commencement of this Act shall be deemed to have been validly passed, recorded or taken under the principal Act as amended by this Act as if this Act were in force when such order was passed or such evidence was recorded or such action was taken."
In State of West Bengal - vs. - Sadan K. Bormal & Anr. reported in (2004) 6 SCC 59, the Apex Court had to occasion of dealing with the aforesaid amendment to the Act of 1988 and held as follows:
"In the instant case, the amendment of the Act of 1988 by the West Bengal Amendment Act, 1994 is intended to meet the situation arising from non-appointment of Special Judges under the Act of 1988 which repealed the Act of 1947. With a view to meet this situation the law deemed, subject to the conditions enumerated therein, the Special Judges appointed under the West Bengal Special Courts Act, 1949 to have been 5 appointed under Section 3 of the Act of 1988. With the above purpose in mind it was further deemed that any order passed, evidence recorded, or action taken purportedly under the Act of 1988, shall be deemed to have been validly passed, recorded or taken under the Act of 1988 as if the Act of 1988 as amended by the West Bengal Amendment Act, 1994 were in force at that time. We, therefore, hold that the Prevention and Corruption (West Bengal Amendment) Act, 1994 by amending the Act of 1988 inserting Section 26-A therein has vested jurisdiction in the Special Courts appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 subject to conditions laid down therein, to try offences under the Prevention of Corruption Act, 1988. All actions taken by them are validated as if the West Bengal Amendment Act, 1994 were in force when such actions were taken. Unfortunately, the aforesaid enactment which governs the case in hand was not noticed by the High Court. Counsel for the parties were also remiss in not bringing the West Bengal Amendment Act of 1994 to the notice of the High Court, and therefore the judgment rendered by the High Court was per incuriam."
Hence, it is no longer res integra the Special Judges appointed under the Act of 1949 and no other Court can try offences under the Act of 1988 in the State of West Bengal.
It is nobody's case that the petitioner was not a public servant at the time of commission of the offences punishable under the Act of 1988. Therefore, I do not find any embargo in the jurisdiction of the Special Judge appointed under the Act of 1949 to try offences under the Act of 1988 by virtue of operation of Section 26-A of the Act of 1988 (as amended by the Amendment Act of 1994).
In (2008) 3 SCC Crl. 671 the Apex Court was dealing with a prosecution of a person under Section 409 of the Indian Penal Code. While doing so, the Apex Court held that upon cessation of the status of being a public servant the Special Court created under the Act of 1949 will not be competent to try such an offender in respect of Section 409 of the Indian Penal Code and shall be tried before a Magistrate under the Code.
However, in the instant case, the prosecution has been launched under a special law, namely, the Act of 1988 and in view of Section 26-A of the Act of 1988 (as amended by the Amendment Act of 1994), a Judge appointed under the Act of 1949 would be deemed to be the competent Court for trying offences under the Act of 1988 in the State of West Bengal. 6 Act of 1988 does not create any distinction in the manner or forum of trial of former public servants.
Sections 4(2) and 5 of the Code of Criminal Procedure read as follows:
"4. Trial of offences under the Indian Penal Code and other laws-
* * * * * * * * * * (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
(5) Saving.- Notwithstanding contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
A conjoint reading of the said provisions make it amply clear that in the event the manner and forum of trial of offences under special law, like the Act of 1988, is provided, the same shall prevail over ordinary law.
In State of West Bengal - Vs. - Shyamadas Banerjee & Ors. (2008) 3 SCC (Cri) 671 (supra), the Apex Court did not have the occasion of dealing with offences under the Act of 1988. The Act of 1988 is a special law and does not create any distinction in the forum of trial of former public servants. A judgment is an authority for the proposition it decides and not what logically follows therefrom (AIR 1968 SC 647 at paragraph 13). Hence, I am constrained to hold that the cited case is not applicable to the facts of this case where prosecution has been initiated under the Act of 1988 which is a special law that does not envisage a different forum for trial of former public servants.
With regard to the issue of filing of thirteen charge sheets in conclusion of investigation of a single First Information Report, I am of the view that ordinarily a First Information Report would result for filing of a singular charge sheet. However, if it appears 7 to the investigating agency that the distinct offences were committed in course of several transactions by the same accused then it is within the domain of the investigating agency to file separate charge sheets for each of such distinct offence/offences. Such an action of the investigating agency is, in fact, in aid of fair trial so that no prejudice is caused to the accused persons by framing jumbled up charge in a single trial in respect of different offences committed in the course of separate transactions.
In the instant case, the investigation revealed that in respect of several independent transactions the accused person in conspiracy with others abused his official position and gave illegal pecuniary benefits to different constituents of the bank. Such offences, though similar in nature, cannot be said to have been committed in course of same transaction. For example, an overdraft facility dishonestly provided by the petitioner to constituent 'A' cannot be said to have been committed in course of same transaction with the dishonest act of providing similar facility to constituent 'B'. Banking transaction between constituent 'A' and the bank is independent and distinct from the transaction between constituent 'B' and the said Bank. Hence, offences committed in course of each of such transaction with different constituents of the Bank cannot be said to have been committed in the course of the same transaction. It is for this reason the investigating agency filed several charge sheets in respect of the offences committed in relation to several constituents of the Bank who were dishonestly and fraudulently benefited by alleged illegal acts of the petitioner.
The factual matrix of this case is clearly distinguished from the judgments cited from the Bar in support of such contention. In the said judgments the offences resulting in registration of several charge sheets were committed in course of same transaction and several charge sheets had been filed inasmuch as multiple First Information Reports were 8 registered in respect of the same offence or offences committed in course of same transaction. As discussed aforesaid, the factual position in the instant case is clearly different. I am, therefore, of the opinion that the ratios of the cited cases are of no assistance to the petitioner.
I, therefore, do not find any reason to interfere with the impugned order. I, however, observe that in the course of trial, if such prayer is made, the trial Judge may, in the interest of justice, resort to Section 219 of the Code of Criminal Procedure if he so desires or may fix the trial of the several cases where the petitioner is an accused on the same or consecutive dates, subject to the convenience of the Court, prosecution and other co- accused persons.
The instant application is accordingly disposed of.
However, there will be no order as to costs.
If urgent certified copy of this Order, duly photocopied, is applied for by the parties, the same should be given expeditiously.
(Joymalya Bagchi, J.)