Calcutta High Court
Shyamadas Banerjee vs State Of West Bengal And Ors. on 7 October, 2005
Equivalent citations: 2006(1)CHN194
JUDGMENT S.P. Talukdar, J.
1. The instant case relates to an application under Section 410 read with Section 482 of the Criminal Procedure Code, 1973.
2. The grievances of the petitioner, as ventilated in the application, may briefly be stated as follows:
A public interest litigation, being W. P. No. 1311 of 1999, was instituted before the High Court by one Nikhil Kishore Roy, alleging, inter alia, that there were publications in a Bengal daily, namely, "Sambad Pratidin" on 12.06.1999 and 14.06.1999 respectively, under the captions "Bhuobill, Bidhan Sabhaya Prosner Mukhe Congress Bidhayak" and "Bidhayaker Biller Char Daktar Asol Na Nakol". In the said publication it was alleged that the petitioner, as a Member of the West Bengal Legislative Assembly, submitted forged and fictitious medical bills and fees for prescriptions to the tune of Rs. 1,65,530.30 with regard to the treatment of his wife, Smt. Alokananda Banerjee, and his mother Smt. Nirmala Banerjee, from 08.09.1998 to 10.11.1998. It was also alleged that forged documents were submitted along with application for reimbursement of medical expenditure in the office of the West Bengal Legislative Assembly, Calcutta on 20.11.1998 by deceiving the official staff into believing that the said documents are genuine. The said application under Article 226 of the Constitution was disposed of by the Hon'ble Division Bench of this Court by an order dated 23.06.1999, which is as follows:
Having heard the learned Counsel for the parties we are of the opinion that as the petitioner can himself lodge a First Information Report as regards the allegations made in the newspaper against the respondent No. 6 herein, the petitioner may himself file a complaint petition or lodge a First Information Report before the Officer-in-Charge of the concerned police station. In the event no action is taken by the authority concerned, the petitioner's application may be entertained.
This application is thus disposed of with the aforementioned observations.
All parties are to act on a signed copy of the minutes of this order on the usual undertaking.
3. Subsequently, on the basis of First Information Report lodged by the said Nikhil Kishore Roy on 28.06.1999, investigation was started under Sections 468/471/420/511 of the Indian Penal Code by the Hare Street Police Station. In connection with the said Hare Street Police Station Case No. 407 dated 28.06.1999 the petitioner surrendered before the learned Court of Chief Metropolitan Magistrate, Calcutta on 17.01.2000 and was released on bail. Date for completion of investigation was extended from time to time on prayer of the Investigating Officer. On 16.01.2003 Sri Narayan Chandra Muhuri, S.I., Special Cell (G.S.)DD, filed chargesheet/final report under Section 173 of the Criminal Procedure Code before the learned 4th Special Judge, Calcutta after obtaining opinion of the learned Chief Public Prosecutor (South), Bank shall Court, for taking cognizance as per provisions laid down in Section 173(5) of the Criminal Procedure Code. The learned Special Court assumed jurisdiction under West Bengal Criminal Law Amendment (Special Courts) Act, 1949 against the petitioner treating him as public servant and charges were framed accordingly. Learned Special Court framed charges under Sections 420/471/468 and 511 of the Indian Penal Code after treating the petitioner as a public servant though he is not at all a public servant under the provision of Section 21 of the Indian Penal Code. The Investigating Officer had no jurisdiction to file any chargesheet against the present petitioner, who is a legislator and not a public servant within the meaning of Section 21 of the Indian Penal Code. The chargesheet submitted was, thus, erroneous and bad in law. The learned 4th Court of Special Judge had no authority under the provision of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 to take cognizance and to frame charges as initiation of the proceeding itself is bad in law and illegal.
4. Being aggrieved by, and dissatisfied with, the order of taking cognizance by the learned 4th Court of Special Judge, Calcutta on the basis of an illegal and invalid chargesheet filed by a person, who was not competent to conduct the investigation and without any valid sanction, a Criminal Revisional Application was filed by the petitioner, being C.R.R. No. 1931 of 2003. The said application was heard on 09.09.2003 and it was disposed of by the learned Single Bench of this Court after hearing both the parties. Liberty was given by the learned Trial Judge to proceed with the matter and the petitioner was given the liberty to agitate the points, which was taken up by him in the said revisional application. On 10.09.20003 an application was filed raising all the points before the learned Trial Court. The learned Trial Judge, however, by order dated 10.09.2003 rejected the prayer of the petitioner without considering the important points raised by him. The learned Trial Court failed to consider the charge under Section 420 of the Indian Penal Code can only be agitated by any effected person or institution and none else. The learned Trial Court, further, failed to appreciate that the offences in which chargesheet was submitted are exclusively triable by a Magistrate and the learned Special Judge has no power to try such a case as it does not relate to any alleged misappropriation of public money by a public servant. The cognizance, taken on the basis of the chargesheet filed without compliance of Section 197 of the Criminal Procedure Code, is also bad. In such circumstances, the present application was filed praying for quashing of the impugned orders dated 10.09.2003 and 23.09.2003 as well as the proceedings in Special Case No. 2 of 2003 pending before the learned Judge, 4th Special Court, Calcutta.
5. Mr. Bag, learned Counsel for the petitioner, at the very outset submitted that the present petitioner ceased to be a member of the Legislative Assembly at the relevant time of taking cognizance by the 4th Court of Special Judge. He submitted that there is no provision in the West Bengal Criminal Law Amendment (Special Court) Act, 1949 whereby a person, who was a member of the Legislative Assembly and defined as public servant under the provision of the Prevention of Corruption Act, 1988 and not under the provision of the Prevention of Corruption Act, 1947, can be charged with an offence under the said Act. It was submitted by Mr. Bag that even assuming that the petitioner was a public servant, he ceased to be so at the time the charge was brought. He then contended that there must be clear and specific sanction and mandate of the statute to the effect that even though person ceased to be a public servant, he should be deemed to be a public servant for the purpose of trial by a Judge of the Special Court under the provisions of the West Bengal Criminal Law Amendment (Special Court) Act, 1949 and in absence of such provisions, the cognizance taken and charge framed by the learned Judge is bad in law and is liable to be quashed. Mr. Bag referred to the decision in the case of Manmal Bhutoria v. State of West Bengal reported in 77 CWN 460, in this regard.
6. It may be useful to refer to the backdrop of the present case. The present petitioner/accused was a Member of the Legislative Assembly and in that capacity, as MLA, he submitted two applications dated 24.8.1998 and 20.11.1998 claiming an amount of Rs. 1,65,530,30 towards the reimbursement of medical expenses incurred in connection with the treatment of his wife, Smt. Alakananda Banerjee and his mother, Smt. Nirmala Banerjee respectively. It was claimed in the said applications that both of them were admitted and treated at Merriland Nursing Home at 41, Ekdalia Road, Kolkata - 700 019 during the period from 8.6.1998 to 20.8.1998 and 8.9.1998 to 20.11.1998 respectively. The medicines were purportedly shown purchased from a medicine shop, named, "Loknath Medical Mart" of 169, Rashbehari Avenue, Kolkata-700 029. The bills, vouchers, cash-memos, money-receipts in original in support of such ailment, admission and treatment in nurshing home, purchase of medicines, etc. were duly submitted by Sri Banerjee along with his claim application form showing that his wife was treated by Dr. A. K. Samanta and Dr. B. L. Bhowmick, and his mother was treated by Dr. R. N. Guha and Dr. B. K. Maity. At the time of scrutiny of the said bills some discrepancies came to notice. On enquiry it could be detected that there was no existence of "Merriland Nursing Home" and "Loknath Medical Mart" at the addresses given. Thus, it was prima facie found that Sri Banerjee for his wrongful gain prepared and used some forged, fake and fictitious documents abusing his position as MLA and thereby attempted to use the Government Exchequer and thereby to cheat the Government of West Bengal in respect of the abovementioned amount of Rs. 1,65,530.30. Sri Banerjee filed a writ application, being No. A.S.T. No. 205 of 1999 praying for quashing of the First Information Report. Such application was rejected on 10.12.1999.
7. During investigation all the relevant documents were seized from the Secretary, West Bengal Legislative Assembly, under proper seizure list. Relevant documents also had signatures of Sri Banerjee as was admitted by him. Denying other writings on those documents to be of him, he unhesitatingly admitted that the said documents were not genuine. After comparison of handwriting and signature by Questioned Documents Examiner, the Senior Scientific Officer, Forensic Science Laboratory, opinion was obtained that the subsequent specimen and standard signatures of Sri Banerjee tallied with the questioned signatures. Investigation revealed that there was no existence of the nursing home as mentioned earlier, nor there was any medicine shop in the name of Loknath Medical Mart at 169, Rashbehari Avenue, Kolkata. Other follow up steps were taken in course of investigation. It transpired that Sri Banerjee, as Member of the Legislative Assembly, drew medical allowances in the name of his family members earlier also and the writings appearing on those documents resembled to some of the writings on the questioned bills related to this case.
8. After completion of investigation the police authority filed chargesheet under Sections 468/471 and Sections 420/511 of the Indian Penal Code. Sri Banerjee having committed the aforesaid offences by abusing his position as Member of the Legislative Assembly, police authority filed chargesheet before the learned 4th Court of Special Judge, Kolkata.
9. First question raised by the learned Counsel for the petitioner is that the accused was not a public servant. Section 21 of the Indian Penal Code defines "Public Servant" as follows:--
21. Public Servant.-- The words 'public servant' denote a person falling under any of the descriptions hereinafter following, namely:--
First: omitted.
Second: Every commission officer in the Military, Naval or Air Forces of India;
Third: Every Judge including any person empowered by law to discharge, whether, by himself or as a member of any body of persons, any adjudicatory functions ;
Fourth: Every officer of a Court of Justice (including a Liquidator, Receiver or Commissioner) whose duty is, as such officer, to investigate or report on any matter charge or dispose of any property, or to execute any judicial process, or to administer any oath, or in interpret, or to preserve order in the Court, and every person specially authorised by a Court of Justice to perform any of such duties;
Fifth: Every juryman, assessor, or member of a Panchayat assisting a Court of Justice or public servant;
Sixth: Every arbitrator or other person to whom any cause of matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
Seventh: Every person who holds any office by virtue of which he is empowered to place to keep any person in confinement;
Eight: Every officer of the Government whose duty is, as such officer, to prevent offences, give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience.
Ninth: Every officer whose duty is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government relating to the pecuniary make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government.
Tenth: Every officer whose duty is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
Eleventh: Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise any electoral roll or to conduct an election or part of an election.
Twelveth: Every person--
(a) In the service or pay of the Government of remunerated by fees or commission for the performance of any public duty by the Government;
(b) In the service or pay of a local authority, a corporation established by or under a Central, Provisional or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).
10. Mr. Bag submitted that the petitioner is not a public servant within the meaning of Section 21 of the Indian Penal Code and as such cannot be tried under the provision of West Bengal Criminal Law Amendment (Special Courts) Act, 1949.
11. Attention of the Court was invited to a decision of this Court in the case of Manmal Bhutoria v. State of West Bengal reported in 77 CWN 460, wherein it was held that "the Special Courts Act and the Prevention of Corruption Act do not apply to a public servant who had ceased to be a public servant on the date the Court takes cognizance."
12. The first contention of the learned Counsel, Mr. Bag, is that the present petitioner ceased to be a Member of the Legislative Assembly at the time of taking of cognizance of the offences and, more certainly, at the time of framing of charge. According to Mr. Bag, such status of the petitioner stands in the way of either taking of cognizance or proceeding with the trial by the learned Special Court. From the materials on record it transpires that chargesheet was filed for the offences under Sections 468/471 and Sections 420/511 of Indian Penal Code before the learned 4th Court of Special Judge, Kolkata. It was mentioned in the chargesheet that "since the Members of the Legislative Assembly are public servant and the aforesaid accused abusing his capacity as Member of the Legislative Assembly committed the instant offence, the chargesheet was filed in the learned 4th Court of Special Judge". Charges under Sections 468/471 and Sections 420/511 of the Indian Penal Code were framed on 29.7.2003. An application challenging maintainability of the proceeding was filed before the learned Trial Court. Ground was taken that no sanction was taken from the appropriate authority. The learned Trial Court after consideration of the fact that the offences alleged are under Sections 468/471 and Sections 420/511 of the Indian Penal Code held that no sanction for prosecution was necessary. Mr. Bag referred to the decision in the case P.V. Narsimha Rao v. State CBI/ SPE in order to strengthen his grievance that the present case cannot be allowed to proceed and continuation of the proceeding will be an abuse of the process of Court.
13. The Apex Court in the said judgment held that "the Members of Parliament and the State Legislatures are public servants liable to be prosecuted for offences under the said Act but that they cannot be prosecuted for offences under Sections 7, 10, 11, 12 and 13 thereof because of want of authority competent to grant sanction thereto".
14. Mr. Bag referred to the decision in the case of Sudhir Kumar Sen Gupta v. State of West Bengal reported in 1994 C Cr LR (Cal) 359. But the facts and circumstances of the said case are significantly different. There the question arose as to whether the Special Judge was competent to take cognizance of an offence against the accused in absence of any sanction as required under Section 6 of the Prevention of Corruption Act, 1947. In the present case, as we have already found that the petitioner/accused was not an MLA at the relevant time of taking of cognizance or framing of charge against him, question of obtaining sanction, for prosecution could hardly arise.
15. In the present case cognizance had been taken of the offences under the Indian Penal Code, being Sections 468/471 and Sections 420/511. This being the position, there could hardly be any reason for obtaining any sanction.
16. In the case of R.S. Nayek v. A.R. Antulay , the Apex Court held that the relevant date is date of taking cognizance and if the accused ceases to be public servant on that date, sanction is not necessary. In the said judgment it was also held that Member of the Legislative Assembly is not a public servant, but in view of the decision in the case of P.V. Narsima Rao (supra), the complextion appears to be bit different.
17. On the other hand, learned Public Prosecutor, Mr. Safiullah, emphatically added that the grievances ventilated on behalf of the petitioner cannot have any sound rational basis. He did not forget to mention that all these aspects were never raised before the learned Trial Court even at the time of framing of charge. According to him, this is one more attempt on the part of the petitioner to delay the proceeding against him.
18. Having regard to the materials-on-record it cannot be disputed that the present petitioner was not a Member of the Legislative Assembly at the time of taking of cognizance of the offences. This being the position, the petitioner by no stretch of imagination can be described as a 'public servant'. Question of obtaining sanction for prosecution also does not arise in the facts and circumstances of the present case.
19. This naturally gives scope for controversy and raises doubt as to how further proceeding of the case by the learned Special Judge is justified.
20. On behalf of the petitioner it was submitted that the petitioner was not a public servant and, accordingly, filing of chargesheet before the learned 4th Court of Special Judge was erroneous, bad in law arid so, illegal. It was further submitted that, the learned 4th Court of Special Judge had also no authority under the provision of West Bengal Criminal Law Amendment (Special Courts) Act, 1949 to take cognizance and to frame charges. It appears that a revisional application was earlier filed and this Court disposed of the same with liberty to the learned Trial Judge to proceed with the matter and liberty was also given to the petitioner to raise those points as have been referred to earlier. According to Mr. Bag, by filing an application on 10.9.2003 all these points were raised before the learned Trial Judge and prayer was made for quashing of the proceedings. The order impugned dated 10.9.2003 does not reflect that all these points of law and technicalities were raised before the learned Special Court. The impugned order only reflects as to whether the proceeding is maintainable or not in absence of any sanction.
21. There is no dispute that the offences, under which chargesheet have been filed against the petitioner, are triable by the learned Court of Magistrate. Now assuming the contention of Mr. Bag as unimpeachable position of law, the question arises as to whether the petitioner, for all such reasons as indicated earlier, is liable to be set free after holding the entire proceeding before the learned Special Judge as bad in law and quashing the same. Learned Counsel for the parties did not effectively deal with this aspect. The most important feature of the present proceeding is that in spite of clear and specific direction passed by this Bench in connection with a revisional application, being C. R. R. No. 1931 of 2003, the controversies raised herein do not seem to have been agitated before the learned Special Court demanding effective consideration and adjudication. The petitioner was certainly not an M L A at the time of taking cognizance of the offence. He was not a public servant either. There could be no question of obtaining any sanction for prosecution. And, in that event, it is not for the learned Special Court to proceed with the trial of the case.
22. What does it amount to ? May be, the proceeding before the learned Special Court does not have any support in the eye of law for the reasons as discussed earlier. Such technical points stand in the way of taking of cognizance by the learned Special Court. Naturally, further proceeding on the basis of such inherently bad and illegal cognizance cannot be allowed to proceed. This Court cannot afford to remain a passive onlooker and in exercise of its power under Section 482 of the Criminal Procedure Code, it can quash the proceeding before the learned Special Court. But does it mean that the hands of law cannot, reach an elected representative of the people, accused of very serious offences, merely for technical hurdle? No doubt, the alleged offences are very serious and more so when the accused was a Member of the Legislative Assembly. If our justice delivery system is so helpless, the message will have far-reaching consequences. This will go a long way to shatter the confidence of the people in the administration of justice. After all, it is not that the allegations, even on prima facie scrutiny, are inherently absurd or hollow. Not that, there is no legal evidence. In such a situation, the prosecuting machinery can very well undo the wrong and initiate proceeding, if, otherwise, permissible in law, before a Court having competent jurisdiction.
23. The present application under Section 482 of the Criminal Procedure Code is, accordingly, disposed of. Cognizance taken by the learned Special Court is bad and, as such, proceeding on the basis of such cognizance is quashed.
24. This will not prevent the prosecuting machinery to initiate further and fresh proceeding in accordance with law, if permissible, before the Court having competent jurisdiction.
25. The instant case, being C. R. R. No. 2364 of 2003, thus, stands disposed of.
26. Copy of this judgment along with LCR , if any, be sent to the learned 4th Court of Special Judge, Calcutta, for information and necessary action.
27. Department is directed to supply urgent xerox certified copy after due compliance with the procedural formalities.