Calcutta High Court (Appellete Side)
(Abani Bhusan Singha & Ors vs The on 13 March, 2013
Author: Dipankar Datta
Bench: Dipankar Datta
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13.03.2013 W.P. 17940 (W) of 2012
(Abani Bhusan Singha & Ors. Vs. The
State of West Bengal & Ors.)
Mr. Kishor Dutta
Mr. Biswajit Manna
......... for the petitioners.
Sk. Md. Galib
...... for the respondents 1 and 2
Md. Ashraf Ali Ms. Ayesha Sultana ....... for the respondent no. 3 Mr. Saptangsu Basu Mr. Subhabrata Das Mr. A. Das ........ for the respondent no. 4
1) The 12 (twelve) petitioners, not too long ago, were facing trial in connection with Sessions Trial Case No. ST-XIV/August/2011 [State (CBI) versus Abani Bhushan Singha and 19 others] (hereafter the said case) before the learned Additional District and Sessions Judge, re- designated court, Paschim Medinipur. The investigation leading to such trial was conducted 2 by the Central Bureau of Investigation, Special Crime Branch, Kolkata (hereafter the CBI) constituted in terms of the Delhi Special Police Establishment Act, 1946 on the basis of a direction given by this Court on February 18, 2011. They have been charged with commission of offences punishable under Sections 302/307/326/148/149 and 120B, Indian Penal Code, read with Sections 25/27, Arms Act.
2) The Judicial Department of the Government of West Bengal had issued a notification dated January 20, 2006. The notification reads as follows:
"No. 340-J dated, 20th January, 2006. In exercise of the power conferred by sub- section (1) and (3) of section 2 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Ben. Act XXI of 1949), and in partial modification of earlier notifications on the subject, the Governor is pleased hereby -
(a) to constitute with effect from 20th January, 2006 a Special Court at Kolkata to try exclusively cases investigated by the Delhi Special Police Establishment (Central Bureau of Investigation) arising within the areas of the districts of Pashim Medinipur, Purba Medinipur, Bankura, Purulia, Hooghly, Burdwan, Nadia, Birbhum, Malda, Murshidabad, Dakshin Dinajpur, Uttar Dinajpur, Coochbehar, Jalpaiguri and Darjeeling and 3
(b) to specify Bichar Bhawan at Bankshall Street, Kolkata, as the place at which such Special Court shall sit."
3) During the pendency of the trial before the said Additional District and Sessions Judge, notification dated August 16, 2011, issued by the Judicial Department, Government of West Bengal partially modifying the aforesaid notification was published in the Kolkata Gazette dated August 17, 2011. The notification reads as follows:
"JL - the 16th August, 2011 - In exercise of the power conferred by sub- section (1), read with sub-section (3), of section 2 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949) and in partial modification of the notification No. 340-J, dated the 20th January, 2006, the Governor is pleased hereby to specify -
a) the Special Court at Kolkata already constituted as the Central Bureau of Investigation (CBI) Court and sitting at Bichar Bhavan (City Sessions Court Buildings) at Bankshall Street, Kolkata, under the said notification, as CBI Court No. 1; and
b) the said CBI Court No. 1 to try exclusively cases investigated by the Delhi Special Police Establishment (Central Bureau of Investigation) arising within the jurisdiction of the districts of Nadia, Purba Medinipur and Paschim Medinipur.
2. This notification shall come into force with effect from the 24th day of August, 2011." 4
4) Soon thereafter, the Superintendent of Police, CBI, preferred a revisional application before this Court, giving rise to C.R.R. No. 2077 of 2012. It was prayed therein that the said case be transferred from the court of the learned Additional District and Sessions Judge, re- designated court, Paschim Medinipur to the court of the learned Special Judge, CBI, Court No. 1, Bichar Bhawan at Bankshall Street, Kolkata. C.R.R. No. 2077 of 2012 stood disposed of by an order dated 19th June 2012, passed by a learned Judge of this Court. The material portion of the order reads as follows:
"****** Counsel for the petitioner further submitted that on 17th August, 2011, Govt. of West Bengal issued notification (Annexure-P1) bearing no. 303-JL dated 16th August, 2011. As per the Notification, all cases investigated by Delhi Police Establishment (Central Bureau Investigation) pertaining to the districts of Nadia, Purba Medinipur and Paschim Medinipur are to be tried by C.B.I, Court No. 1 at Bankshall Street, Kolkata.
It is submitted that due to the Notification issued by the Govt. of West Bengal, the cases ought to have been transferred automatically to the court of the competent jurisdiction as the trial conducted by the Additional Distt. & 5 Sessions Judge, Re-designated Court, Paschim Medinipur will be without jurisdiction.
After hearing the submission of the petitioner, this Court is of the view that upon abolition or creation of court transfer of cases is to take place by administrative order. To ward off filing of numerous cases of this nature direction is issued to the Registrar General of this Court to take into consideration Notification (Annexure P-
1) and pass appropriate orders whether the cases investigated by the Delhi Police (Central Bureau of Investigation) falling within the jurisdiction of District Nadia, Purba Medinipur and Paschim Medinipur are to be transferred to C.B.I, Court No. 1 or not. The Registrar General may pass necessary order within one week from the date of receipt of the certified copy of this order."
5) In compliance with the order dated June 19, 2012, the Registrar General of this Court, respondent no. 4 has passed an order dated July 6, 2012. Paragraphs 2 and 3 of the order being relevant, are set out below:
"2. In view of the direction of Hon'ble Justice Kanwaljit Singh Ahluwalia in CRR 2077 of 2012 on 19.06.2012, the notice was issued to the petitioner, Superintendent of Police, CBI to produce necessary documents by 06.07.2012 to ascertain whether the investigation of ST 14/August/2011 pending before the Court of Ld. Additional District and Sessions Judge, Re-designated Court, Paschim 6 Medinipur was carried out under Delhi Special Police Establishment Act, 1946. It appears from the document produced by the petitioner, Superintendent of Police, CBI that the said criminal case pending before the Court of Ld. Additional District and Sessions Judge, Re-designated Court, Paschim Medinipur was investigated by the Central Bureau of Investigation, Special Crime Branch, Kolkata on the basis of direction given by the Hon'ble High Court, Cacutta on 18.02.2011. Since the CBI Court No. 1 has been established by the Government for exclusive trial of cases investigated by the Delhi Special Police Establishment (CBI) arising within the jurisdiction of the Districts of Nadia, Purba Medinipur and Paschim Medinipur with effect from 24.08.2011, I am of the opinion that the ST No. 14/August/2011 (State (CBI - vs. Abani Bhusan Singha and 19 others) pending from trial in the Court of Ld. Additional District and Sessions Judge, Re-designated Court, Paschim Medinipur stands transferred to the CBI Court No. 1 at Bichar Bhavan, Bankshall Street, Kolkata by operation of law.
3. In view of my above findings in compliance with the direction given by His Lordship Hon'ble Justice Kanwaljit Singh Ahluwalia on 19.06.2012 Ld. Additiona District and Sessions Judge, Re-Designated Court, Paschim Medinipur is requested to transfer the Sessions Trial No. 14/August/2011 (State (CBI - vs. Abani Bhusan Singha and 19 others) pending for trial in his court to the CBI Court No. 1, Bichar Bhavan, Bankshall Stree, Kolkata with immediate effect after giving notice to both sides about the transfer." 7
6) The order of the respondent no. 4 was quickly given effect to and the said case on transfer, to be tried by the Special Court, was renumbered as Sessions Trial Case No. 2 of 2012.
7) It was at this stage that the 12 (twelve) petitioners presented this writ petition before this Court on August 8, 2012. The prayers in the writ petition read as follows:
"a) A declaration do issue declaring that the Notifications dated 20th January, 2006 and 17th August, 2011 issued by the respondent no. 1 as ultra vires Article 14 of the Constitution of India and the provisions of the Code of Criminal Procedure and the West Bengal Criminal Law Amendment (Special Courts) Act 1949.
b) A Writ of and/or in the nature of Mandamus do issue commanding the concerned respondent authorities not to give any effect to and/or further effect to and/or to take any step or further steps and/or to act or further act or continuing to act on the basis of the purported Notification bearing No. 340-J dated 20th January, 2006 and the Notification bearing No. WB (Part-I)/2011/SAR-190 dated 17th August, 2011 both issued by the respondent no. 2 in any manner whatsoever.
c) A Writ of and/or in the nature of Mandamus do issue commanding the concerned respondent authorities to forthwith cancel and/or rescind and/or withdraw the purported Notification bearing No. 340-J dated 20th January, 8 2006 and the Notification bearing No. WB (Part - I)/2011/SAR-190 dated 17th August, 2011 both issued by the respondent no. 2.
d) A Writ of and/or in the nature of Mandamus do issue directing the respondent authorities to forthwith retransfer Sessions Trial Case no. ST-
XIV/August/2011 (State (CBI) versus Abani Bhushan Singha @ Abani Singha and 19 others) renumbered as Sessions Trial Case No. 2 of 2012 to the Court of the Learned Additional District and Sessions Judge, Re-designated Court, Paschim Medinipur.
e) A Writ of and/or in the nature of Certiorari do issue directing the concerned respondent authorities to transmit the entire records of the case forming the basis of the purported Notification bearing No. 340-J dated 20th January, 2006 and the Notification bearing No. WB (Part-I)/2011/SAR-190 dated 17th August, 2011 both issued by the respondent no. 2 and the transfer of Sessions Trial Case no. ST-
XIV/August/2011 (State (CBI) versus Abani Bhushan Singha @ Abani Singha and 19 others) and to certify the same and on being so certified quash the same, so that conscionable justice may be rendered."
8) I have heard learned advocates appearing for the respective parties and perused the materials on record.
9) The West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (hereafter the Act of 9 1949) was enacted to provide for the more speedy trial and more effective punishment of certain offences. The offences were specified in the schedule thereto. The Act has since suffered several amendments and the schedule, as it presently is, reads as follows:
THE SCHEDULE [See section 4.] Offences triable by Special Judges.
1. An offence punishable under section 161, section 162, section 163 20[section 164, section 165 or section 165A] of the Indian Penal Code.
Offences triable by Special Judges.
2. An offence punishable under section 409 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government 23[or by a person dealing with property belonging to a Government company as defined in section 617 of the Companies Act, 1956 as an agent of such Government company] in respect of property -
with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent.
3. An offence punishable under section 417 or section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government 25[ or by a person dealing with property belonging to a Government company as defined in section 617 of the Companies Act, 1956 as an agent of such Government 10 company], while purporting to act as such public servant or agent.
7. An offence punishable under section 5 of the Prevention of Corruption Act, 1947.
8. Any conspiracy to commit or any attempt to commit or any abetement of any of the offences specified in items 27[1, 2, 3, and 7].
10) It is now of some relevance to note what Sections 2 and 4 of the Act of 1949 are, since they have a bearing on the issues of law raised in the writ petition. For facility of reference, Sections 2 and 4 are quoted hereunder:
"2. Special Courts - (1) The State Government may, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas, as may be specified in the notification. (2) The State Government shall appoint, as a Judge to preside over a Special Court, any person who -
a) is or has been, or is qualified under clause (2) of article 217 of the Constitution of India for appointment, as a Judge of a High Court, or
b) has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge.
(3) Every Special Court shall have jurisdiction over the particular area for which it has been constituted and shall sit at such place or places as the State Government may, by notification in the Official Gazette, specify in this behalf.
4. Offences to be tried by Special Courts - Notwithstanding anything contained in the Code of Criminal 11 Procedure, 1973, or in any other law in force, the offences specified in the Schedule shall be triable by Special Courts only:
Provided that when trying a case, a Special Court may also try any offence other than the offence specified in the Schedule, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial:
Provided further that every offence specified in the Schedule shall be tried by the Special Court constituted for the particular area within which the offence was committed, and where there are more than one Special Court constituted for any particular area, by such one of them as may be specified by the State Government by notification in the Official Gazette.
(Underlying for emphasis by me)
11) A conjoint reading of Sections 2 and 4 and the schedule extracted (supra) would leave no manner of doubt in respect of the power and jurisdiction of a Special Court and the offences that could be tried by it.
12) By the notifications dated January 20, 2006 and August 16, 2011, the State Government no doubt empowered the Special Courts mentioned therein to try cases investigated by the CBI but such notifications cannot be construed to empower the Special Courts constituted under 12 the Act of 1949 to try any case concerning offences not included in the schedule thereto, although investigation, leading to submission of chargesheet and framing of charge(s) might have been conducted by the CBI. Having regard to Section 4 of the Act, one of the offences alleged to have been committed by the accused facing trial, consequent to investigation by the CBI must find mention in the schedule in order to empower the Special Court to assume jurisdiction. The learned Judge in the order dated June 19, 2012 did not direct that the said case would automatically stand transferred to the Special Court by reason of the notification dated August 16, 2011; instead, it was observed by the learned Judge that upon abolition or creation of courts, transfer of cases ought to be effected by administrative orders. Specifically it was observed that to ward off filing of numerous cases of like nature, the Registrar General of this Court ought to consider the notification dated August 16, 2011 and pass appropriate orders.
The Registrar General, it appears, gave primacy 13 to the fact that the CBI has investigated the offences with which the petitioners were charged and that the alleged offences were committed in the District of Paschim Medinipur and, therefore, were to be transferred to the CBI Court No. 1 by operation of law. Unfortunately, it escaped the notice of the Registrar General that in order to be tried by the CBI Court No. 1, the petitioners ought to have been charged with any of the offences mentioned in the schedule to the Act of 1949; if they had not been so charged, the trial could not have been transferred.
13) In the result, the order dated July 6, 2012, passed by the Registrar General stands quashed by issuance of a writ of Certiorari. Mandamus do issue directing retransfer of Session's Trial Case No. ST-XIV/August/2011 to the court of the Additional District and Sessions Judge, re- designated court, Paschim Medinipur for being tried by such court expeditiously. Proceedings before the CBI Court No. 1, if any, shall be of no effect.
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14) No case, however, has been set up for granting prayers 'a', 'b' or 'c'. Relief claimed in this behalf is declined.
15) The writ petition, accordingly, stands allowed to the extent mentioned above, without any order for costs.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)