Calcutta High Court
Central Bureau Of Investigation vs K.C. Balasubramanium on 5 April, 2006
JUDGMENT Arun Kumar Bhattacharya, J.
1. The hearing arises from an application under Section 401 read with Section 482 Cr.P.C. filed by the petitioner praying for revision of the order dated 15.06.95 passed by the learned Special Judge, 4th Special Court, Calcutta in Special Case No. 2/90 arising out of R.C. Case No. 4/1987 dated 20.01.87 under Sections 420/120B IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947.
2. The circumstances leading to the above application are that on receipt of an information from a reliable source the aforesaid R.C. Case No. 4/1987 dated 20.01.87 was registered by the petitioner against the O.P. and one Bikash Sengupta inter alia alleging that the O.P. as Branch Manager, Central Bank of India, New Market Branch, Calcutta entered into a criminal conspiracy with the said Bikash Sengupta and sanctioned a loan of Rs. 4,00,000/- in favour of Bikash Paper Processing Industry on the basis of false statements submitted with the application by Sri Sengupta without verifying the genuineness of the application and credibility of the firm. After completion of investigation, charge sheet dated 20.11.88 under the aforesaid provisions of IPC and Prevention of Corruption Act, 1947 was submitted and the Court took cognizance on 19.07.90.
3. The O.P. filed an application on 28.04.94 challenging the order of taking cognizance contending that the learned presiding Judge had not been properly appointed to try the case which was allowed by the impugned order holding that as cognizance was non-est and void, the case is not maintainable and the proceeding was dropped against the O.P.
4. Being aggrieved by and dissatisfied with the said order, the petitioner has come up before this Court.
5. As none appeared on behalf of the O.P., the matter was heard ex parte.
6. Mr. Roy, learned Counsel for the C.B.I., assailed the impugned order on three-fold grounds viz. (1) the learned Judge could not reopen the order of taking cognizance which is barred under Section 362 Cr.PC, in support of which the cases of State of Kerala v. M.M.M. Nair , H.S. Mann v. H.S. Bajwa reported in AIR 2001 SC 43 and State of West Bengal v. K.R. Chatterjee reported in 1999(4) All India Criminal Law Reporter 568 were replied upon, (2) if for argument sake the Special Judge had no jurisdiction to try the offence under the Prevention of Corruption Act, 1947 the Court could either postpone the case till jurisdiction was conferred upon a competent Court to try the offence or else return the complaint for presentation before the competent Court of jurisdiction but in no case it could drop the proceeding particularly when an offence under the Indian Penal Code is also involved, and in support of this contention the case of State of West Bengal v. Sadan K. Bormal was referred to, and (3) as one of the offences relates to one under the Prevention of Corruption Act, 1947 and the Judge was required to be appointed under Sub-section (2) of Section 2 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and in view of the provisions of Sub-section (2) of Section 26A of the Prevention of Corruption Act, 1988, inserted by the West Bengal Amendment Act, 1994 conferring validity on the actions of the Special Courts, there being no irregularity in the appointment, the Special Judge was competent to proceed with the case and that ratio of H.D. Barman case which was under the Prevention of Corruption Act, 1988 is not applicable here, in support of which the cases of Sadan K. Bormal (supra) and V.A. Bhandak v. State of Karnataka reported in 2003 SCC (Cr.) 345 were relied upon.
7. In regard to the first ground above, after submission of charge sheet under Sections 420/120B IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, cognizance was taken on 19.07.90. Though taking cognizance of an offence on the basis of charge sheet submitted is neither "Judgment" nor a "final order" and as such the provisions of Section 362 Cr.P.C. cannot be attracted, one of the cardinal principles of procedural law is that a successor Judge cannot sit in appeal or revision over an order passed by his predecessor Judge in the same matter to examine whether cognizance was good or bad in law. (Judicial discipline in such a case requires that the party aggrieved with the order of cognizance should move before superior Court for redress. In this connection, the observation of this Court in the case of K.R. Chatterjee (supra) may be referred to. The other two cases so relied upon by the learned Counsel for the petitioner have no manner of application here. It may be observed that a difference may be made between a case where cognizance itself has been assailed and where maintainability of the case has been challenged for some other reason, and the above observation is applicable only in respect of the former.
8. As regards the aforesaid second ground, assuming arguendo that the learned Court below had no jurisdiction and/or was not competent to try the offence, it is no ground for dropping the proceeding which resulted in dismissal of the proceeding, since offences committed did not stand abated nor it meant that the offender would not be tried at all. If the learned Court below had no jurisdiction to try the offence it had also no jurisdiction to dismiss the complaint, and all that it should have done to return the complaint for presentation before the proper forum having jurisdiction to try the offence. In this connection, the case of Sadan K. Bormal (supra) may be relied upon.
9. So far as the third ground above is concerned, indubitably the Special Judges of Calcutta Special Courts were appointed under Section 2(1) and (2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 for trying the offences under the Prevention of Corruption Act, 1947. Criminal Law Amendment Act, 1952 came into force, Section 6 of which empowered all the State Governments to appoint as many Special Judges as may be necessary for each area or areas specified in the notification for trying offences including the offence under Section 5 of the Prevention of Corruption Act, 1947, but Section 13 of the Criminal Law Amendment (Special Courts) Act, 1949 introduced in 1953 specifically excluded application of the provisions of Sections 5 to 10 of the Criminal Law Amendment Act, 1952 to the State of West Bengal. By Section 30(1) of the Prevention of Corruption Act, 1988, Prevention of Corruption Act, 1947 as also Criminal Law Amendment Act, 1952 were repealed, and by virtue of Sections 3 and 4 of the said Act of 1988, offences under the Act can be tried by a Special Judge appointed under Section 3 of the said Act. Section 30(2) of the said Act of 1988 is the saving Clause clearly providing that notwithstanding repeal of the concerned earlier Acts, anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of the 1988 Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of 1988 Act. Section 26 of the 1988 Act which deals with "Special Judges appointed under Act 46 of 1952 to be Special Judges appointed under this Act" provides that every Special Judge appointed under the Criminal Law Amendment Act, 1952 in any area or areas and is holding office on the commencement of this Act shall be deemed to be a Special Judge appointed under Section 3 of this Act for that area or areas and accordingly, on and from such commencement, every Special Judge shall continue to deal with all the proceedings pending before him on such commencement in accordance with the provisions of this Act. Sub-section (2) of Section 26A of the Act of 1988, incorporated by the West Bengal Amendment Act of 1994, conferred validity on the actions of Special Courts appointed even after the Act of 1988 came into effect specifically stipulating therein that the jurisdiction is not limited only to those cases which were actually pending before the Special Judges on the date of coming into effect of the Act of 1988. It created two fictions viz. (1) that the Special Judges are deemed to have been appointed under Section 3 of the Act of 1988 and (2) all actions are deemed to have been taken by them in accordance with the corresponding provisions of the Act of 1988 as if the West Bengal Amendment Act, 1994 were in force when such actions were taken. Therefore, in view of the above Amendment Act of 1994 amending the Act of 1988 inserting Section 26A therein, all actions taken by the Special Courts appointed under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 are validated, as if the West Bengal Amendment Act, 1994 were in force when such action was taken and the said Courts are competent to try offences under the Prevention of Corruption Act, 1988. In this connection, reference may be made to the cases of Sadan K. Bormal (supra), V.A. Bhandak (supra) and Sayedul Islam v. CBI reported in 2001(2) CHN 266. So, the learned Court below is totally erred in law in holding that the said Court has no jurisdiction and is incompetent to try the offences under the Prevention of Corruption Act.
10. In the light of the above discussion, the present revisional application be allowed ex parte.
11. The impugned order dated 15.06.95 passed the learned Court below is hereby set aside.
Let a copy of this order be sent down at once to the learned Court below with a direction to dispose of the case as expeditiously as possible, preferably within a period of six months from the date of communication of the order.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties with utmost expedition.