Calcutta High Court (Appellete Side)
The Central Bureau Of Investigation vs Raj Kumar Ghattani on 7 October, 2013
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1 4 07.10.2013
sm C.R.R.4447 of 2007 The Central Bureau of Investigation Vs. Raj Kumar Ghattani Mr.Himangshu De Mr.Mrityunjoy Chatterjee .. for the petitioner.
Mr.S.Maiti .. for the opposite party.
Order dated 26.09.2007 passed by the learned Judge, Special Court (CBI), Bichar Bhawan, Calcutta in Special Case No.135 of 2006 arising out of RC 47(A) /1990- CAL under sections 120B and 409 of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988 discharging the opposite party/accused party has been assailed by the CBI.
The prosecution case alleged against the accused person is to the effect that one Man Bahadur Chamling pursuant to a criminal conspiracy hatched between himself and the accused person, viz. Branch Manager of the Siliguri Branch and the opposite party herein opened a false account in the name of the West Bengal Tea Development Corporation Ltd. and had deposited large sums of money therein.
From the said account, moneys were transferred in favour of the opposite party/accused person on the basis of false and frivolous transactions. Investigation in the said 2 matter resulted in filing of the First Information Report, being RC 47(A) /1990- CAL under sections 120B and 409 of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988.
Pursuant to such investigation, a charge sheet was filed in the instant case under sections 120B/409 of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988. The prayer for discharge was made on behalf of the petitioner on the following grounds:-
(a).. The FIR, being Jorbunglow Police Station Case No.154 of 1989 dated 16.12.1989 under section 409 of the Indian Penal Code was registered on the basis of a complaint by one R K Debnath, Managing Director, West Bengal Tea Development Corporation Ltd. and that the said FIR resulted in filing of two separate charge sheets, one under sections 120B/420 of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988 against Man Bahadur Chamling and Mukul Saha and the impugned criminal proceeding initiated under sections 120B/420 of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988. It was submitted that filing of two separate charge sheets framing from single FIR was unwarranted and, in fact, constituted a double prosecution in law.
(b).. The investigation was started pursuant to the direction given by the learned Sub-Divisional Judicial Magistrate, Darjeeling, which was untenable in law.3
(c).. No sanction was obtained from the State of West Bengal under section 6 of the Delhi Special Police Establishment Act, 1946 for such investigation.
The learned Judge after considering the aforesaid contentions by the impugned order dated 26.09.2007 was of the view that the witnesses in two cases are similar and their statements disclosed that Man Bahadur Chamling had opened second account in the Central Bank of India and mis- appropriated the moneys and R.K. Ghattani, opposite party herein, had obtained undue benefits from the said mis- appropriated sums on the pretext of supplying fire-wood to tea garden, which was not actually supplied.
The learned Judge also observed that the investigation had commenced pursuant to the direction of the learned Sub- Divisional Judicial Magistrate, Darjeeling, which was impermissible in law and that there was no sanction granted under the relevant provisions of the Delhi Police Establishment Act, 1946 to investigate the offences of this case.
I am of the opinion that the aforesaid reasons of the learned Judge are not sustainable in law or in fact. Undoubtedly, in the instant case, the FIR was registered with the Jorbunglow Police Station, being Jorbunglow Police Station Case No.154 of 1989 dated 16.12.1989 under section 409 of the Indian Penal Code.
During the investigation, which was being conducted by the local Police Station, the CBI stepped into the matter and took over the investigation of the said case.
4I have examined the reasons given by the learned Magistrate. In the back-drop of the materials on record, it appears that the Jorbunglow Police Station, being Jorbunglow Police Station Case No.154 of 1989 was registered for investigation under section 409 of the Indian Penal Code.
During pendency of the said case, the instant case, being RC 47(A) /1990- CAL under sections 120B and 409 of the Indian Penal Code and section 13(1)(c) read with section 13(2) of the Prevention of Corruption Act, 1988 was started by the CBI and the charge sheet was filed in the said case. Thereafter, the earlier criminal case started at the behest of the local police was granted with present.
I am of the view that the initiation of the investigation by the CBI cannot be said to be illegal. That apart, the scope of the offences investigated by the CBI was much larger than the scope of the investigation at the behest of the local Investigation Agency.
I am, therefore, of the view that the learned Judge erred in law in coming to a finding that the CBI had acted illegally in initiating the investigation in the instant case. That apart, the materials on record do not show that the investigation was commenced pursuant to the direction of the learned Sub- Divisional Judicial Magistrate at Darjeeling.
On the other-hand, in completion of investigation, request was made or that the records in respect of the investigation conducted by the said Investigating Agency be tagged with the charge sheet of the instant case. Such prayer was allowed by the learned Judge. The learned Judge erred in 5 coming to a finding that the investigation in the instant case by the CBI was at the behest of the direction of the learned Sub-Divisional Judicial Magistrate, Darjeeling empowering the CBI to investigate the offences under sections 409/420 of the Indian Penal Code. No such statute has been relied upon. Such notification was duly communicated by the Government of West Bengal to all the State Investigating Agencies by notification dated 20.11.1989.
Therefore, it reveals that the State of West Bengal had granted sanction to the CBI to conduct the investigation in respect of the offences stated in the notification dated 07.09.1989. Such principle has also been upheld by this court in Somnath Guin vs. Monaj Kumar Senapati & Anr., reported in (2013) C Cr LR (Cal) 128.
In view of the law declared in the aforesaid judgement, I am of the view that the investigation and the charge sheet submitted in the instant case under the alleged offences cannot be said to be without the requisite sanction under sections 6 of the Delhi Special Police Establishment Act, 1946.
For the aforesaid reasons, the revisional application succeeds and the impugned order is set aside. The learned Judge is directed to proceed with the matter in accordance with law as expeditiously as possible.
Let the report be kept with the record.
(Joymalya Bagchi,J.) 6