Calcutta High Court (Appellete Side)
Goutam Ghoshal vs The State Of West Bengal on 19 August, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION (APPELLATE SIDE) PRESENT :
The Hon'ble Justice Kanchan Chakraborty C.R.R No. 2732 of 2010 Goutam Ghoshal Versus The State of West Bengal For the Petitioner : Mr. Shibdas Banerjee Mr. Sutunu Chakraborty Mr. Dibyendu Sekher Bhattachary For the O.P. No. 2 : Mr. Himangshu De Mr. Mrityunjoy Chatterjee For the O.P. No. 1 : Mr. Ranjit Kumar Ghosal Heard On : 11.8.2011 Judgement On : 19.8.2011 Kanchan Chakraborty, J:
1) ONE F.I.R. ---- ONE INVESTIGATION --- TWO CHARGE-SHEETS AND THAT TOO FILED IN TWO DIFFERENT COURTS AT DIFFERENT PLACES -
--- IS REALLY UNHEARD OF. Mr. Himangshu De, learned Counsel on behalf of the opposite party no. 2, CBI failed to explain the situation.
2) Pradip Kumar Das, General Manager, UCO Bank, Zonal Office, Kolkata lodged one FIR with CBI against Ajoy Kumar Bayen, Managing Director of M/S. Nivediata Diagnostic Research Hospital Pvt. Ltd., Sumanta Sen, Proprietor of M/s. Medico Electronics, D. Mukherjee, the Branch Manager, 2 Kankurgachi UCO Bank, R. N. Majumder, the then Branch Manager Kankurgachi UCO Bank, Kolkata, Shri Ghosh, the then Deputy General Manager, UCO Bank Regional Office, Kolkata and others alleging therein that they in connivance with each other defrauded the Bank and thereby caused wrongful loss of the Bank to the tune of Rs. 5,27,68,900/-. The case was investigated into by the CBI but it filed two charge-sheets -- one in Alipore Court and another in Sealdah Court. The charge-sheet which was filed in the Sealdah Court ended as :
3) " During investigation criminality on the part of accused public servants or Shri Sumanta Sen, Proprietor of M/S. Medico Electronics could not be found in the matter relating to M/s. Nivedita Diagnostic & Research Hospital (P) Ltd. and hence, there names have been incorporated under column 2 of this charge-sheet. A separate Charge-sheet has been submitted before the learned Special Judge, CBI, 1st Court, Alipore, Kolkata on the other allegations in the FIR, related with M/s. Nivedita Advance Medical Institute and M/s. Medico Electronics."
4) In the charge-sheet before the Addition Chief Judicial Magistrate at Sealdah, this petitioner Goutam Ghoshal has been shown as an accused in column 1. Shri Ghosh, Debasish Mukherjee, R. N. Majumder, Sumanta Sen are shown as persons not sent up for trial in connection with the case.
In view of the last paragraph of the charge-sheet which has been reproduced earlier, a separate charge-sheet has been submitted before the learned Special Court, CBI, Fast Court, Alipore, Kolkata on other 3 allegations in the FIR related with M/s. Nivedita Advance Medical Institute and M/s. Medico Electronics.
5) This Court is not concerned with charge-sheet filed in the Court of learned Special Judge at Alipore wherein the petitioner is not named as an accused. Gautam Ghoshal has come up with an application under Section 482 of Cr.P.C. praying for quashing of the proceeding against him wherein charge-sheet is filed in the Court of learned ACJM, Sealdah on the following grounds :
a) that no offence, prima facie, is made out in the FIR and charge-sheet as far as he is concerned;
b) that the CBI had no authority, whatsoever, to investigate into the matter without taking prior approval of the State of West Bengal and the learned Magistrate has power also to act on the charge-sheet filed by the CBI where no prior approval or consent of the State Government concerned was taken;
c) that one FIR and one investigation can not resulted in two charge-sheets filed in two different Courts against different persons which ex facie is neither permissible in law nor acceptable in any manner;
6) I have carefully gone through the FIR lodged by the Regional Manager of the UCO Bank with rapt attention. This Court also has got an opportunity to leaf through the case docket produced by Mr. De, learned Counsel 4 appearing on behalf of the CBI. Even making strenuous efforts, this Court has failed to find out that any case, whatsoever, has made out against this petitioner by the CBI. Only one witness in course of his examination under Section 161 of Cr.P.C., stated that this petitioner was having a joint account with Ajay Kumar Bayen and that account was exclusively operated by none but Ajoy Kumar Bayen. On the basis of that statement only, the CBI thought it proper to add the name of this petitioner to the name of A. K. Bayen as an accused in the charge-sheet. I must say that no offence, in fact and in substance, even prima facie is made out against this petitioner either in the FIR or in the charge-sheet under Sections 120B/420/463 and 471 of IPC. The offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act was not found correct by the CBI itself.
Therefore, I find substance in the submission of Mr. Banerjee, learned Counsel appearing on behalf of the petitioner. It is settled principle of law that High Court is invested with plenary power to quash Criminal Proceeding pending in inferior Courts where the allegations in the FIR or the complaint even if they are taken on their face value and accepted uncontrovated in their entirety do not constitute the offence alleged. This principle has been taken by the Hon'ble Apex Court consistently right from its decision in off quoted judgement in State of Hariyana Vs. Bajanlal, reported in 1992 Supplementary (1) SCC 335, till this date. Accordingly, in view the facts above, the proceeding against the petitioner Gautam Ghoshal is liable to be quashed.
5
7) Mr. Banerjee, learned Counsel appearing on behalf of the petitioner raised the authority of the CBI in the matter of investigation into the case directly without prior consent of the State Government and power of the learned ACJM, Sealdah to act on a charge-sheet filed by the CBI in violation of the provisions of Delhi Special Police Establishment Act, 1946.
8) Section 3,5 and 6 of the Delhi Special Police Establishment Act, 1946 are set out below :
Section 3 :- Offences to be investigated by special police establishment.-The Central government may, by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment. Section 5 :- Extension of powers and jurisdiction of special police establishment to other areas.-(1) the Central Government may by order extend to any area (including Railway areas), in a State, not being a Union territory) the powers and jurisdiction of members of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in a notification under section 3. (2) when by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject of any orders which the Central Government may make in this behalf, discharge the functions of a police officer in that area and shall, while so discharging such functions, be 6 deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. (3) where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2) any member of the Delhi Special Police Establishment or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.
Section 6 :- Consent of State Government to exercise of powers and jurisdiction.--Nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, not being a Union territory or railway area), without the consent of the Government of that State.
9) According to the provisions under Section 3 of the Act, the Central Government is required to satisfy and notify offences or classes of offences which are to be investigated by Delhi Special Police Establishment Act, constituted under the Special police act, named, "CBI". 7
10) Under Section 4 of the Act, the Superintendent of the Delhi Special police Establishment is vested with authorities to investigate into the cases relating to offences alleged to have been committed under Prevention of Corruption Act, 1988.
11) Under Section 5 Central Government is empowered to extend power and jurisdiction of Special Police Establishment to other areas. By notification dated 18th February, 1963, in exercise of the power conferred by Sub- section (1) of Section 5 of the Act, 1946 the power and jurisdiction of the members of Delhi Special Police Establishment in almost all the states of India has been extended for the purpose of investigation of offences specified in the schedule appended to the notification which includes the offences under Sections 420/468/471 of the IPC.
12) Section 5 of the Act also empowers the Central Government to extend the powers and jurisdiction of the Special Police Establishment to any area in a State not being a Union territory for the investigation of any offence or classes of offence specified in a notification under Section 3 and on such extension of jurisdiction, a member of the establishment shall discharge the function of a Police officer in that area and shall be deemed to be a member of the police force of that area and vested with the powers, function and privileges subjected to liabilities of a police officer belonging to that police force.
13) It is pertinent to take note of the fact that the provisions of Section 6 of the Act of 1946 have not been touched by the Central Government. Section 6 of 8 the Act has already been reproduced which starts with a non-obstante clause putting impediment to any member of the Delhi Police Establishment to exercise powers and jurisdiction in any area in a particular State, not being Union territory, without the consent of the Government of that particular State.
14) The unequivocal language of the Section 6 is explicit enough to indicate the intention of the legislature to the effect that although Section 5(1) empowers the Central Government to extend powers and jurisdiction of members of the Delhi Special police Establishment to any arrears in a State, the restriction imposed by the Section 6 to do so without consent of the State Government concerned, has not been lifted.
15) The question whether CBI can investigate into the cases which by way of notification included in the list of offences permissible to be enquired into by the CBI in any particular State without consent of the State concerned, is no longer res intrega in view of the decision of the Apex Court in State of West Bengal Vs. Committee for protection democratic rights, West Bengal & Ors., reported in (2010) 2 Supreme Court cases (Cri) 401. Although the point before the Court was the scope and amplitude of Section 5 and 6 of the Act, 1946 vis-a-vis restriction imposed on the powers of the Central Government applicable mutatis and mutandis to the Constitution Court as well. But, in course of discussion the Apex Court observed - " thus, although Section 5(1) empowers the Central Government to extend the powers and jurisdiction of members of the Delhi Special Police 9 Establishment to any arrears in a State, but, Section 6 imposes a restriction on the power of the Central Government to extend the jurisdiction of the State establishment only with the consent of the State Government concerned."(emphasize put in)
16) The Government of West Bengal, Home Department (Police) issued a notification on 2nd August, 1989 whereby powers and jurisdiction of all members of the Delhi Special Establishment to the State of West Bengal for investigation of offences under prevention of corruption Act, 1988 or attempts, abatement and conspires in relation to or in connection with one or more of the offences mentioned in the State Act or any other offence or offences committed in course of same transaction arising out of the said fact, has been given. However, in the said notification it has been stated that the consent shall not apply in respect of public servants defined under Section 2( c) of the Prevention of Corruption Act, 1988, employed in connection with the office or the offices of the State or any authority controlled or aided wholly or partly by the State Government, except on the specific request and with the prior concurrence of the State Government.
17) The above notification as well as the observation of the Apex Court in the decision referred to above have set the dispute at rest. There is no room of doubt that without prior consent, CBI not in a position or has any authority, whatsoever, to investigate into any offence in the State of West Bengal excepting in the offences under Prevention of Corruption Act and 10 attempts, abatement, conspires relation to or in connection with that offence without concurrence or consent of the State Government.
18) Therefore, the proposition of law advance by Mr. Banerjee is accepted. It is settled principle of law that High Court can quash Criminal Proceeding where it appears that there is a legal bar against the institution or continuances of Criminal proceeding in respect of offence alleged. In the instant case, there is a legal bar for the CBI to investigate into the case and file charge-sheet without prior permission or consent of the Government of West Bengal. Therefore, the entire process has become illegal and invalid being barred by law. As a consequence, learned ACJM, Sealdah erred in acting on the charge-sheet filed by the CBI in connection with the case. On that ground, the proceeding is liable to be quashed also.
19) The third point raised by Mr. Banerjee as to the peculiarity in the matter of filing two charge-sheets on one investigation and one FIR in two different Courts has already been discussed. Mr. De, learned Counsel appearing on behalf of the CBI conceded fairly that the CBI has acted most callously in this case and should not have filed two separate charge-sheets in two different Courts in stead of filing one charge-sheet against all the persons who are found accused. Peculiarly enough, the petitioner herein has not been shown as an accused in the charge-sheet filed in the Court of learned Special Court CBI, Alipore. There was no impediment for the CBI to show this accused/petitioner as an accused in the charge-sheet together with 11 other accused persons in the same charge-sheet filed before the learned Special Court, CBI at Alipore.
20) Taking everything into consideration this Court finds that this is a proper case where this Court should exercise its extraordinary power under Section 482 of the Cr.P.C. and quash the proceeding against the petitioner in order to stop abuse of the process of the Court.
21) Accordingly, I allow the prayer. The proceeding in G.R. case no. 1066 of 2008 under Section 120B/420/468/471 of the IPC pending in the Court of learned Judicial Magistrate, Sealdah stands quashed as far as the petitioner is concerned.
22) The revisional application is disposed of.
(Kanchan Chakraborty,J)