Calcutta High Court (Appellete Side)
Swarup Mazumdar vs The State Of West Bengal & Anr on 3 December, 2014
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE.
Present:
The Hon'ble Justice Joymalya Bagchi
C.R.R. 591 of 2014
With
C.R.A.N. 3793 of 2014
Swarup Mazumdar
-vs-
The State of West Bengal & Anr.
Mr. Biswajit Manna. ...for the appellant..
Mr. Subir Banerjee. ...for the State.
Heard on : 03.12.2014
Judgment on : 03.12.2014.
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. 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. 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.
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. 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.
(Joymalya Bagchi, J.)
as/PA to J. Bagchi, J.
