Calcutta High Court
Mrigendra Nath Ghosh vs D.K. Chowdhury, Deputy S.P., Cbi on 6 December, 2001
Equivalent citations: (2002)1CALLT318(HC), 2002(3)CHN93
JUDGMENT D.P. Sengupta, J.
1. In the aforesaid four revisitional applications the main relief prayed for is quashing of proceedings which are pending before the learned Judge, 1st Special Court, 24- Parganas at Alipore. The prosecution centres round the allegations of cheating, forgery, criminal conspiracy under Sections 120B/420/467/468/471/477A of the Indian Penal Code and Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. 1988 (hereinafter referred to as the said Act).
2. The main argument advanced by the learned Advocate of the petitioner in all the aforesaid four applications relates to the illegality of tendering pardon to the approvers by the learned Magistrate in the respective cases. The prosecution in the charge sheet has relied upon a piece of evidence namely order tendering pardon during investigation by the learned Chief Metropolitan Magistrate. Calcutta to two accused persons namely Rajesh Kumar Roy and Dipak Dutta in case No. RC-3(E)/97 and also an order tendering pardon during Investigation by the learned Sub-Divisional Judicial Magistrate. Alipore to one accused namely Sri Rajesh Kumar Roy In case No. RC-16(A) /96.
3. The common question involved in the aforesaid applications is whether the Court of learned Magistrate is empowered and competent to tender pardon to an accused for the offences alleged to have been committed under the Special Act/Statute, namely the Prevention of Corruption Act, 1988.
4. Mr. Sekhar Bose, learned Advocate appearing for the petitioner submits that the Prevention of Corruption Act, 1988 (Act 49 of 1988) is a self contained piece of legislation having its own procedure with the special feature of the Presiding Officer called the 'Special Judge ', with an exclusive authority to tender pardon. The said Act is a Special Act enacted to consolidate and amend the law relating to the Prevention of Corruption and also matters connected therewith. It is also settled law that the said Act being a Special Act shall prevail over all provisions of the General Laws.
5. Section 5(1) of the said Act of 1988 empowers only the Special Judge alone as competent to take cognizance of the offence under the Act and no other Court or forum for the purpose of the said Act.
Under Section 4(1) of the said Act, only a special Judge, appointed under, the said Act, is competent to try an offence. The said Act further authorised the special Judge alone to tender pardon under Section 5(2). Section 5(2) explicitly provides that "any pardon so tendered shall, for the purpose of Sub-section (1) to Section (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under Section 307 of that Code.
6. It is submitted by Mr. Bose that Section 5(2) of the said Act is a Special Procedure provided in the Act itself and it must prevail over the general procedure provided In the Code of Criminal Procedure, 1973. The provisions of Section 306(2) Cr. PC apply to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952, which had no manner of application in the State of West Bengal. In the present case the Court is constituted under the provision of the Prevention of Corruption Act. 1988.
7. It is the further submission of Mr. Bose, learned Advocate for the petitioner that the Magistrate granting pardon must have the authority to take cognizance of the offence and to commit the case. Unless the Magistrate is empowered to take cognizance of the offence and further to commit, he cannot grant pardon. Here neither the Magistrate can take cognizance of the offence under the Act nor the can commit the case to the Court of the Special Judge constituted under the Prevention of Corruption Act, 1988. It is submitted by Mr. Bose that Section 4 read with Section 5(2) makes it clear that Magisterial grant of pardon is prohibited.
8. Mr. Bose next draws the attention of the Court to the provision of Section 306 of the Code of Criminal Procedure and submits that when the Sub-section (1) and (2) of Section 306 are read in isolation of other subsections, it may appear that a Magistrate referred to therein can tender pardon in a case under the Prevention of Corruption Act, 1988. But if the Section 306 Cr.PC is read as a whole it becomes clear that Section 306 cannot be made applicable In a case under the Act of 1988.
Under Sub-section (3) of Section 306 Cr.PC a Magistrate tendering pardon has to record whether the pardon was accepted. Once it is accepted the mandatory requirements of Sub-section 4 (a) and 5 have to be complied with and those requirements are as follows :-
(a) he shall be examined as a witness in the Court of the Magistrate taking cognisance of the offence:
(b) after such examination the Magistrate taking cognizance of the offence shall either have to commit the case to the Courts mentioned in Clause (I) and (II) or to make the case over to the Chief Judicial Magistrate under Clause (b) to Sub-section (5) of Section 306 Cr.PC.
9. Mr. Bose points out that none of the above requirements can be fulfilled in a case under the Prevention of Corruption Act as the offences under the said Act can only be tried by a special Judge and he takes cognizance of such offence being empowered under Section 5(1) without any commitment. It is submitted by Mr. Bose that a Court of Magistrate, be It the Chief Judicial Magistrate, Metropolitan Magistrate or Magistrate of the First Class, as referred to In Sub-section (1) of Section 306 Cr.PC., cannot take cognizance of any offence under the said Act of 1988.
10. In C.R.R. No. 1159 of 2000 and 1160 of 2000 (arising out of Special Case No 1l/99 and 12/99) the petitioner has challenged the order of taking cognizance of offence by the Court below on the ground of incompetency of the Court of learned Magistrate to tender pardon to any accused alleged to have committed offence under the Prevention Corruption Act. It is pointed out by the learned advocate of the petitioner that the Investigation was started on the basis of allegation complained of in a letter by the complainant Bank which was registered formally by way of FIR and was numbered as RC-16(E) /96. On 20.4.99 on the prayer of prosecution the learned S.D.J.M. Alipore tendered pardon to an accused named Rajesh Kumar Roy. After completion of investigation, the investigating agency submitted two separate chargesheets being Nos. 9/99 and 10/99 and accordingly two cases were registered being Special Case No. 1 1/99 and 12/99 respectively. It is submitted by the learned advocate of the petitioner that there is no provision In the law under which the result of investigation can be split up in two chargesheets.
11. Reliance has been placed by the learned Advocate of the petitioner on the decision of the Hon'ble apex Court (A.R. Antulay v. Ramdas Sriniwas Nayak and Anr. ). In the said case it was held that in contra-distinction to the Sessions Court, the Court of Special Judge to be a Court of original criminal Jurisdiction and wherever the expression "Magistrate" occurs, the expression "Special Judge" is required to be read and the provisions of Sections 238 to 250 of the Code stood incorporated in 1952 Act by application of the doctrine of "Legislation by Incorporation". In the said Judgment it was held by the Hon'ble Supreme Court as follows :-
"Shorn of all embellishment, the Court of a special Judge is a Court of original criminal Jurisdiction. As a Court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide-bound by the terminological status description of Magistrate or a Court of Session. Under the Code it will enjoy all powers which a Court of original criminal jurisdiction enjoys save and except the ones specifically denied."
12. The next judgment relied upon by the learned Advocate of the petitioner Is a Full Bench decision of Patna High Court reported in 1993 Cri LJ 2436 (In the matter of: Shri Ravi Nandan Sahay. Sessions Judge, Patna). The majority view In the said Judgment is as follows :
"It has been provided under Section 4 of the P.C. Act of 1988 that notwithstanding anything contained in the Cr.PC or in any other law for the lime being in force, the offences specified in Sub-section (1) of Section 3 shall be tried by Special Judge only. Section 5 of the P.C. Act of 1988 empowers the Special Judge to take cognizance of the offences without the accused being committed to him for trial and while holding trial, he has to follow the procedure prescribed by the Cr.PC for trial of warrant cases by Magistrate."
"So. the expressions, "the Magistrate empowered to take cognizance of the offence" and "the Magistrate having power to try such case" appearing in various sections of Chapter XII (underlined in the preceding paragraphs) of the Cr. PC would only mean the Special Judge appointed under the P.C. Act of 1988.
From the provisions of the P.C. Act of 1988 and the Cr.PC referred to above, it is not possible to hold that the special Judge does not come in picture during the course of police investigation and prior to taking cognizance of the offence under the said Act The Special Judge. In my opinion, is entitled to exercise all the powers conferred on a Magistrate under Chapter XII of the Cr. P.C. as he has got exclusive jurisdiction to take cognizance and try the offences under the P.C. Act of 1988."
13. The learned advocate of the petitioner next relies on a Judgment of the Hon'ble Supreme Court reported in 2000 Supreme Court Cases (Criminal) 488 (Gangula Ashok and Anr. v. State of A.P.). From a reading of the said Judgment it appears that in a case under the Scheduled Caste & Scheduled Tribes [Prevention of Airocities) Act. 1989 police submitted chargesheet straightway before the Sessions Court which was designated as Special Court under the said Act of 1989. High Court of Andhra Pradesh was of the view that the procedure adopted by the investigating agency in filing chargesheet straightway before the sessions Judge was not in accordance with law as the Special Judge constituted under the said Act of 1989 had no Jurisdiction to Lake cognizance of the offence under the Act of 1989 without the case having been committed to that Court. Accordingly the High Court set aside the proceeding and directed the chargesheet and connected papers to be returned to the Investigating officer, who was further directed to submit the same before the judicial Magistrate for the purpose of committal to the Special Court under the Act of 1989. Against the judgment and order of the learned single Judge of Andhra Pradesh High Court appeal was preferred before the Hon'ble Supreme Court. While disposing of the appeal It was held by the Hon'ble Supreme Court as follows :-
"It must be noted that the observations of this Court in A.R. Antulay were made in connection with the establishment of a Special Court under the Criminal Amendment Act of 1952. What Is to be pointed out is that a Special Judge appointed under the said Act was given the specific power to take cognizance of the offence without the case being committed to him. Hence the observations in A.R. Antulay's case cannot be profitably utilised to support the interpretation of another Act wherein there is no such specific provision.
It is contextually relevant to notice that Special Courts created under certain other enactments have been specially empowered to take cognizance of the offence without the accused being committed to it for trial (e.g. Section 36A(1)(d) of the Narcotic Drugs and Psychotropic Substances Act). It is significant that there is no similar provision in the Scheduled Castes and the Scheduled Tribes (Prevention Atrocities) Act."
We therefore, hold that the legal position stated in the decisions of the Kerala High Court in Re: Director General of Prosecution and Hareundran v. Sarada is not in accordance with law. We approve the interpretation adopted by the other High Courts in the decisions referred to above as the correct legal positions.
So the High Court of Andhra Pradesh has rightly set aside, as per the Impugned order, the proceedings Initiated by the Special Court specified under the Act."
14. Relying upon the aforesaid judgments it is submitted by Mr. Bose that after the pronouncement of a Constitution Bench decision in A.R. Antulay's case, which was subsequently followed in number of decisions of the Hon'ble Supreme Court as also of other High Courts, there can now be no doubt that the Special Court under the Act will enjoy all powers which a Court of original criminal jurisdiction enjoys, says and except those which have been specifically denied. Mr. Bose, learned Advocate also refers to the provision of Section 4(2) of the Code of Criminal Procedure, which provides that the investigation, Inquiry and trial of all offences under any other law than the Indian Penal Code, shall also be dealt with according to the provision of the Code but subject to any enactment for the time being in force regulating the manner or place of investigating enquiring into, trying or otherwise dealing with such offences.
16. Mr. Bose submits that the special statute/Act namely the Prevention of Corruption Act, 1988 docs not empower or authorise the Court of Magistrate to tender to an accused for the offences alleged to have been committed under the Act of 1988. It is further submitted that in the present cases order tendering pardon by the learned Chief Metropolitan Magistrate, Calcutta and learned Sub-Divisional Judicial Magistrate, Alipore cannot be saved or cured by virtue of the provision of Section 460 of the Code of Criminal Procedure. Where the question of jurisdiction is involved and there is want of Jurisdiction, Section 460 Cr.PC will not be applicable. In support of his contention Mr. Bose relies on a judgment of the Hon'ble Supreme Court (A. Deuendran v. State of Tamil Nadu). The learned Advocate submits that if the order passed by a Court is vitiated by lack of jurisdiction then Section 460(g) of the Code will not be applicable. In the judgment referred to above it was held by the Hon'ble Supreme Court as follows :
"A Magistrate who was not empowered under Section 306 to tender pardon but actually tenders pardon in good faith erroneously then such an irregularity would be curable. Section 460 can have no reference to an Act of a Magistrate who is empowered under Section 306 but does not possess the jurisdiction after an order of commitment is passed. The Chief Judicial Magistrate no doubt was authorised under Section 306 of the Code to tender pardon in course of an Investigation, Inquiry of trial before the committal of the proceedings to the Court of Session. But after commitment of the proceedings he does not have jurisdiction to grant pardon and in such a case if the said Chief Judicial Magistrate tenders pardon then that would not be a curable irregularity within the ambit of Clause (g) of Section 460 of the Code. This conclusion is further strengthened from the fact that under the 1898 Code, the corresponding provision to Section 460(g) of the 1973 Code was Section 529(g). In the said provision it was specifically stated that if any Magistrate not empowered by law to tender pardon under Section 337 or 338 the same would not vitiate the proceedings. But under Section 460(g) of the new Code the legislature have omitted Section 307 which is corresponding to Section 338, and therefore, such irregularity committed by the Magistrate cannot be said to be a curable Irregularity under Clause (g) of Section 460."
16. Relying upon the aforesaid decisions It is finally submitted by Mr. Bose that under the scheme of the Act of 1988 the Presiding Officer being the Special Judge envisaged under the said Act being a Court of original criminal jurisdiction is alone competent to take cognizance of the offence, try the offences and to tender pardon to an accused, alleged to have committed an offence under the Act, under Section 5(2) of the said Act. There is no scope of the Court of learned Magistrate to exercise any authority in any form or manner Including an order tendering pardon to an accused .
17. Mr. Dipak Sengupta, learned Advocate appearing for the opposite party/CBI submit that the Special Courts contemplated under the Prevention of Corruption Act are deemed to be Court of sessions and as such power to grant pardon still exists with the learned Magistrates. Mr. Sengupta submits that Special Judge remains a Sessions Judge and the authority and jurisdiction of a Magistrate to grant pardon follows from the decision (Lt. Commander Pascal Farnandes v. State of Maharashtra). I have gone through the said Judgment, which does not support the contention of the learned Advocate of the opposite party. The judgment does not apply in the present case since it is related to the Court of Special Judge under the Criminal Law Amendment Act. 1952.
18. Mr. Sengupta also relies on a judgment . I have gone through the said Judgment, wherein it was held by the Hon'ble Supreme Court in a case under the Official Secrets Act as follows :-
'The words of Section 339 are of no help in construing Section 337 and the Court must look to the words of Section 337 in deciding whether a pardon could be tendered for an offence under Section 5 of the official Secrets Act read with Section 120B of the Indian Penal Code. Pardon can only be tendered under Section 337 (I) with respect to the three categories of offences mentioned there in and none other. As Section 5 of the Official Secrets Act read with Section 120B of the Indian Penal Code does not fall within any of these categories no pardon can be tendered with respect to that offences ."
19. After going through the Judgment referred to above I am of the view that the point which was for consideration before the Hon'ble Supreme Court is quite different from the present case.
20. Mr. Sengupta next relies on a judgment (Trisuns Chemicals v. Rajesh Agarwal. Relying upon the said judgment Mr. Sengupta submits that the power of a Magistrate to take cognizance of offence is not impaired by any territorial restriction. After going through the said judgment I find that the point which fell for consideration before the Hon'ble Supreme Court was different from the present case and the said Judgment is not at all applicable in the present case.
21. The next judgment relied upon by Mr. Sengupta is reported in 1997 SC 869 (CBI v. Subodh Kr. Dutta). The said judgment is also not applicable in the present case as in the said Judgment the Hon'ble Supreme Court referred to Section 30(2) of the Prevention of Corruption Act. 1988 which provided that anything done or purported to be done under the Act of 1947 shall be deemed to have been taken or done in pursuance of the Corresponding Act of 1988. The point which was decided in the said case is quite different from the point in issue to be decided in the present case.
22. Referring to the decision reported in 1998 CWN 251 it is submitted by Mr. Sengupta, learned advocate that the Prevention of Corruption Act, 1988 is not a complete Code nor it is an exhaustive one. Section 28 of the Act lays down that the provisions of the Act shall be in addition to and not In derogation of any other law for the time being in force and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this Act be instituted against him. It is submitted by Mr. Sengupta that in view of the provisions contained in Section 5A of the W.B. Criminal Law Amendment (Special Court) Act, 1949 the powers of the Magistrate is not ceased In any way during the Investigation of a case and as such the power of a Magistrate to tender pardon remains unaffected.
23. The next judgment relied upon by Mr. Sengupta is a Divisions Bench judgment of this Court reported in 2000 Crl LJ 2189 (State of W.B. v. Anwar @ Answer). In the said judgment it was held by this Court that mere omission to forward the statements/documents along with the police report, will not Invalidate the cognizance taken by the Court on the basis of police report alone provided other requirements of law are fulfilled. I fall to understand how this Judgment is applicable in the present case, which is completely different from the case referred to above.
24. Mr. Sengupta next relies on a Judgment reported in (1993) SCC-561 (Sampat Singh and Ors. v. State of Haryana and Ors.). On a perusal of the said judgment it appears that in a case under Section 5(2) of the Prevention of Corruption Act police submitted a cancellation report under Section 173 Cr.PC before a Magistrate, who had no power to discharge the accused on the basis of such report. It was held that the Magistrate should have forwarded the report to the special Judge who was competent to try the offence. Accordingly it was directed by the Hon'ble Supreme Court to transmit all the papers to the Special judge having Jurisdiction.
25. Next judgment relied upon by Mr. Sengupta, learned Advocate of the O.P. is a Division Bench judgment of this Court reported in 2000 Cal. Cri. LR 77 (State of W.B. v. Kumud Ranjan Chatterjee). In the said Judgment It was held by the Division Bench of this Court that the Special Judges who were appointed under the W.B. Special Courts Act, 1949 were subsequently appointed as Judges of the Special Court for trial of offences under the Prevention of Corruption Act, 1988 by virtue of Notification No, 6614-J dated 23.4.93. Having gone through the said Judgment I am of the view that the same does not have any manner of application in the present case.
26. Next judgment relied upon by the petitioners' learned Advocate is reported In 2001 (1) CHN 98 (Sayadul Islam v. C.B.I, and Anr.). In the said Judgment it was held that in view of the amended provision of Section 26A of the Act there Is no bar for the Special Judges, appointed under the W.B. Special Courts Act, 1949. to take cognizance of the offence and to try the offences under the Act of 1988. The said judgment in my considered view has got no application in the present ease.
27. It has already been mentioned at the very outset that the only point to be decided in the present revisional applications is whether the Court of the learned Magistrate is empowered and competent to tender pardon to an accused for the offences alleged to have been committed under the Special Act/Statute, namely, the Prevention of Corruption Act, 1988. So far as the other points raised by the petitioners In the present applications are concerned, the same shall be kept open for the trial Judge to decide at the appropriate stage.
28. I have heard the learned Advocates of the respective parties. I have gone through the Judgments referred to above. In deciding the present case I rely upon a very recent Judgment of the Hon'ble Supreme Court reported in 2001 AIR SCW 3492 (Horshad S. Mehta v. State of Maharashtra). The question which fell for consideration in the said case before the Hon'ble Supreme Court was whether the provision for granting pardon as contained in Sections 306 and 307 of the Code shall apply to the proceedings before the Special Court under the Special Court (Trial of offences relating to Transactions in Securities) Act. 1992 and whether the Magistrate has got the power to grant pardon to a person accused of an offence that falls within the purview of the Act of 1992. In paragraph 48 of the said judgment it was held by the Hon'ble Supreme Court as follows :
"To our mind, the Special Court has all the powers of a Court of session and/or Magistrate, as the case may be, after the prosecution is instituted or transferred before that Court. The width of the power of the Special Court will be same whether trying such cases as are instituted before it or transferred to it. The use of different words in Sections 6 and 7 of the Act as already noticed earlier also show that the words in Section 7 that the prosecution for any offence shall be Instituted only in Special Court deserve a liberal and wider construction. They confer on the Special Court all powers of the Magistrate Including the one at the stage of Investigation or enquiry. Here, the institution of the prosecution means taking any steps In respect thereof, before the Special Court. The scheme of the Act nowhere contemplates that it was intended that steps at pre-cognizance stage shall be taken before a Court other than a Special Court. We may note an illustration given by Mr. Salve referring to Section 157 of the Code. Learned counsel submitted that the report under that section Is required to be sent to a Magistrate empowered to take cognizance of offence. In relation to offence under the Act, the Magistrate has no power to take cognizance. That power is exclusively with the Special Court and thus report under Section 157 of the Code will have to be sent to the Special Court though section requires it to be sent to the Magistrate. It is clear that for the expression 'Magistrate in Section 157, so far as the Act is concerned, it is required to be read as 'Special Court' and likewise in respect of other provisions of the Code. It the expression 'Special Court' is read for the expression 'Magistrate', everything will fall in line. This harmonious construction of the provisions of the Act and the Code makes the Act work. That is what is required by principles of statutory interpretation. Section 9(1) of the Act provides that the Special Court in the trial of such cases follow the procedure prescribed by the Code for the trial of warrant cases before the Magistrate. The expression 'trial' is not defined in the Act or the Code. For the purpose of the Act, it has a wider connotation and also Includes In it the pre-trial stage as well. Section 9(2) makes the Special Court, a Court of Session by a fiction by providing that the Special Court shall be deemed to be a Court of Session and shall have all the powers of a Court of Session. In case, the Special Court is held not to have the dual capacity and powers both of the Magistrate and the Court of Session, depending upon the stage of the case, there will be a complete hiatus. It is also to be kept in view that the Special Court under the Act comprises of a High Court Judge and it is a Court of exclusive Jurisdiction in respect of any offence as provided in Section 3(2) which will Include offences under Indian Penal Code, Prevention of Corruption Act and other penal laws. It is only in the event of inconsistency that the provisions of the Act would prevail as provided in Section 13 thereof. Any other interpretation will make the provision of the Act unworkablewhich could not be the intention of the Legislature. Section 9(2) does not exclude Sections 306 to 308 of the Code from the purview of the Act. This section rather provides that the provisions of the Code shall apply to the proceedings before the Special Court. The inconsistency seems to be only Imaginary. There is nothing in the Act to show that Sections 306 to 308 were intended to be excluded from the purview of the Act."
29. In paragraphs 51, 52 and 53 of the said judgment it was held as follows:
"The power to grant pardon has not been denied expressly or by necessary implication. As earlier stated after decision in the case of A.R. Antulay. it was not necessary to make specific provision in the Act conferring power on the Special Court to grant pardon at trial or pre-trial stage. The Special Court is a Court of original criminal Jurisdiction and has all the powers of such a Court under the Code Including those of Sections 306 to 308 of the Code. The same not having been excluded specifically or otherwise."
"There is no provision In the Act which negates the power of the Special Court to grant pardon. The Special Court has power to grant pardon at any stage of the proceedings. The power under Section 307 cannot be denied merely because no commitment of the case is made to the Special Court."
"As noticed, the provisions of Sections 6 and 7 of the Special Court Act confer much wider power. Everything after institution of the prosecution is required to be done by the Special Court. There is nothing In those provisions or in Section 9 to warrant exclusion of Sections 306 to 308 of the Code from the purview of the Act. Reference may also be made to Section 4(2) of the Code which stipulates that the investigation, inquiry and trial of all offences under any other law then the Indian Penal Code shall also be dealt with according to the provisions of the Code but subject to any enactment for the time being In force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences."
30. In deciding the aforesaid case the Hon'ble Supreme Court also took into consideration the case of A.R Antulay (supra). The Hon'ble Court was of the view that after pronouncement of the Constitution Bench decision in A.R Antulay's case there can now be no doubt that the Special Court under the Act will enjoy all the powers which a Court of original criminal Jurisdiction enjoys: whether a Magistrate or a Court of Sessions, save and except the one specifically denied. It was held by the Hon'ble Court that the Special Court is a Court of original criminal Jurisdiction and has all the powers of such Court under the Code of Criminal Procedure including those of Sections 306 to 308 of the Code.
31. In view of the discussion made above I find sufficient merit in the submission made by Mr. Bose, learned Advocate of the petitioners. In my considered view, under the Prevention of Corruption Act. 1988 there Is no scope of the learned Magistrate to exercise any authority in any form or manner including an order tendering pardon to an accused alleged to have committed an offence under the Act of 1988. There is no scope under the Act of 1988 for exercise of the powers under Section 306 of the Code by any Court of learned Magistrate.
32. Prevention of Corruption Act, 1988 is a self-contained piece of legislation having its own procedure with an exclusive authority to tender pardon. Section 4(1) of the said Act empowers the Special Judge appointed under the Act to try the offences. The said Act further authorises the Special Judge alone to tender pardon under Section 5(2) of the Act. It is also settled law that the Prevention of Corruption Act being a Special Act shall prevail over all the provisions of General Laws.
33. In C.R.R. No. 628 of 2000 the petitioner has challenged an order dated 15.3.99 passed by the learned Chief Metropolitan Magistrate. Calcutta granting pardon to two accused persons namely Rajesh Kumar Roy and Deepak Dutta. In C.R.R. No. 1159 and 1160 of 2000 the petitioner has challenged an order dated 20.4.99 passed by the learned S.D.J.M. Alipore tendering pardon to Rajesh Kumar Roy in Special Case Nos. 11/99 and 12/99. Both the proceedings are pending in the Court of learned Judge. 1st Special Court, South 24-Parganas at Alipore, in which cognizance of the offence has been taken by the learned Judge. In C.R.R. 2304 of 1999 the Petitioner has challenged an order dated 23.9.98 passed by the learned Chief Metropolitan Magistrate, Calcutta thereby granting pardon to three accused persons. The said proceeding is now pending in the Court of learned Judge, 1st Special Court, South 24 Parganas at Alipore being Special case No. 6 of 1998, in which cognizance of offence has already been taken by the learned Judge, 1st Special Court by his order dated 16.12.98.
34. In view of the discussions made above I am of the view that the impugned orders as passed by the learned Magistrate in the aforesaid proceedings suffer from Illegality. Accordingly I dispose of the present revisional applications, set aside the orders passed by the learned Magistrate granting pardon to the accused persons alleged to have committed offences under the Prevention of Corruption Act. 1988. All the proceedings are now before the learned Special Judge, First Special Court at Alipore, who will proceed with the cases after taking fresh cognizance and dispose of the same in accordance with law with utmost expeditions. It is also made clear that if any application is made before the concerned learned Special Judge, with a prayer for tendering pardon to any of the accused persons, the learned Judge will be at liberty to dispose of the same in accordance with law.
35. Although the orders passed by the learned Magistrates tendering pardon to the accused persons in the aforesaid proceedings are held to be bad in law and are set aside, the same cannot be a ground for quashing of the proceedings. Accordingly the prayers for quashing of proceedings are hereby refused. The learned Special Judge will now proceed with the cases as directed above.
36. As regards the other points raised by the petitioners In the present revisional applications, this Court is of the view that those points should not be decided by this Court at this stage. Those points will be kept open for the learned trial Judge to decide at the appropriate stage of the proceedings.
The Interim stay earlier granted by this Court stands vacated. The lower Court records may be sent down to the concerned Court below Immediately.
The present judgment and order passed by this Court shall govern all the four revisional applications.
This order may be communicated to the Court of the learned Judge. 1st Special Court. Alipore, 24 Parganas immediately.
Let urgent xerox certified copies of this order, if applied for be supplied to the learned Advocate of the respective parties at an early date.