Calcutta High Court
Central Bureau Of Investigation vs Joydeb Dasgupta on 30 June, 2006
Equivalent citations: 2007(1)CHN458
JUDGMENT Arun Kumar Bhattacharya, J.
1. The hearing stems from an application under Section 401 read with Section 482 Cr. PC filed by the petitioner praying for revision of the order dated 13.08.2002 passed by the learned Judge. Second Special Court, Calcutta in Special Case No. 08/95 discharging the O.P. from the case.
2. The circumstances leading to the above application are that on receipt of source information that the O.P., Senior Manager of Canara Bank, Rabindra Sarani Branch, Kolkata entered into a criminal conspiracy with some unknown persons and had sanctioned a loan of Rs. 2,00,000/- against one Kamdhenu Deposit Receipt (KDR No. 372/87) preparing forged documents without the knowledge of the depositor and cheated the said Bank to the tune of the said amount, that one Sukanta Sarkar purchased the KDR bearing No. 372/87 dated 28.11.87 for Rs. 5,00,000/- from Rabindra Sarani Branch of Canara Bank by depositing the abovementioned amount through a draft purchased from United Industrial Bank, Gariahat Branch. Kolkata and the O.P. authenticated the signature of Sukanta Sarkar on his KDR application and replaced the original application with another application bearing forged signature of Sukanta Sarkar, and unauthorisedly sanctioned a loan of Rs. 1,80,000/- vide VSL (Loan against Valuable Security) bearing No. 40/88 dated 03.08.88 against the aforesaid KDR and thereafter on 13.10.88 sanctioned another additional amount of Rs. 20,000/- against the said VSL without the knowledge of the depositor, and against the said loan of Rs. 1,80,000/- a payment of Rs. 1,50,000/- was made to one Subhas Chandra Dutta through Pay Order No. 820/88 and the balance amount of Rs. 30,000/ - was paid by the O.P. through Pay order No. 821/88 in favour of Calcutta Loan & Housing Development Corporation towards part payment of a flat booked by him at Salimpur, the additional amount of Rs. 20,000/- was paid to one Nemai Chandra Dutta vide Pay Order No. 1103/88 and after maturity of the said KDR on 28.11.88 an amount of Rs. 3,39,839.25 was paid to the depositor Sukanta Sarkar through Pay Order No. 1227/88 dated 28.11.88 after adjusting the VSL liability and the O.P. in connivance with others fraudulently and dishonestly by abusing his official position withdrew Rs. 2,00,000/- as VSL in the names of third parties against the aforesaid KDR by forging the Bank records and thereby cheated the Bank causing pecuniary loss to the Bank to the tune of Rs. 2,00,000/- and corresponding gain to themselves, R.C. 24(A)/1989-Cal under Section 120B/420/467/468/471 IPC/13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 was registered on 16.05.89 against the O.P. Joydeb Dasgupta and other unknown persons, and after completion of investigation chargesheet was submitted on 13.09.90 whereupon cognizance was taken by the learned Court below, process was issued and charge was framed against the accused on 29.02.92.
3. The revisional application filed by the O.P. before this Court for quashing the proceeding was disposed of on 04.05.94 with a direction to the learned Court below to dispose of the case. The O.P. then filed an application in the learned Court below on 12.08.94 for his discharge on the ground of the order of taking cognizance being void and invalid in view of the decision of this Court in the case of H.D. Barman v. State, and the learned Court allowed the prayer, dropped the proceeding and discharged the accused on 26.09.94. On 21.12.95 police report, similar to that of the earlier report, was submitted whereupon the learned Court below took cognizance on 22.12.95 and and issued process. On 11.02.98, the O.P. filed an application for discharge on the ground of non-maintainability of the case which was dismissed on 24.03.98. At the time of framing charge on 13.08.2002, the learned Court below pronounced an order of discharge of the O.P. on threefold grounds viz. (1) speedy justice is a fundamental right of a litigant, (2) taking cognizance twice upon the same facts and documents without disclosure of any new evidence is not permissible under the procedural law and (3) there was no ground to proceed against the accused person.
4. Being aggrieved by the said order, the petitioner has come up before this Court.
5. Mr. Roy, learned Counsel for the petitioner, relying upon the case of State of West Bengal v. Sadan K. Bormal contended that on the basis of decision of this Court in H.P. Barman v. CBI, SPE, reported in 1995 C Cr. LR (Cal) 63 if the Court had no jurisdiction to try the offence under the Prevention of Corruption Act, 1988, though the Special Court Case No. 1/90 in addition to the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, offences under Sections 120B/420/467/468/471 IPC were involved, it could either postpone the case till jurisdiction was conferred upon a Competent Court or return the complaint for presentation before the Competent Court of Jurisdiction, but in no case it could drop the proceeding and discharge the accused on 26.09.94 since offence committed did not stand abated. Referring to the case of State of West Bengal v. K.R. Chatterjee reported in 1999(4) AICLR (Cal) 568 and State of H.P. v. Krishan Lal Pardhan Mr. Roy submitted that the learned Court below erred in law in holding that the cognizance taken by the predecessor Judge is bad in law. Mr. Roy further submitted that discharge in the above circumstances cannot be treated as acquittal nor on the face of such order of discharge which amounted to dismissal of the complaint there is any legal bar in filing fresh chargesheet, similar in nature of the first one, before the appropriate forum having jurisdiction to try the offence in view of the decision of Sadan K. Bormal (supra), the necessity for which arose only due to wrong order of discharge, and cognizance was also taken on such fresh chargesheet. Referring to the cases of A.R. Antulay v. R.S. Nayak , State of Rajasthan v. Ikbal Hussain reported in 2004(4) AICLR (SC) 664 and P. Ramachandra Rao v. State of Karnataka . Mr. Roy contended that delay was mostly procedural and is also attributable to the accused and as such accused could not be discharged for that reason.
6. Mr. Mukherjee, learned Counsel for the O. P., on the other hand, submitted that against the order of framing charge, the O. P. moved before this Court whereupon a Division Bench of this Court sent back the case on 21.03.94 with a direction to take all the points raised in the revisional application at the time of framing charge, and since charge had already been framed, the learned Court below sought for direction of this Court whereupon a Single Bench of this Court recalled the order dated 21.03.94 and rejected the revisional application being not pressed with liberty to the O.P. to urge the issue of lack of jurisdiction as a preliminary point without entering into the evidence, and when charge was framed, the order of discharge passed on 26.09.94 should be regarded as order of acquittal, in support of which the case of State of Maharashtra v. B.K. Subbarao, reported in 1993 Cr. LJ 2984 was relied upon. So, the said fresh proceeding, Mr. Mukherjee submitted, virtually is a violation of the provision of Section 300 Cr. PC. Mr. Mukherjee further contended that based on the stale sanction order which was a part and parcel of the previous chargesheet which ceased to exist, cognizance could not be taken on the subsequent chargesheet which is bad in law.
7. The learned Court below discharged the O.P. by the impugned order dated 13.08.2002 mainly on two-fold grounds viz. (1) in view of the order of discharge in the previous case being 1/90 on 26.09.94, the subsequent charge-sheet based on the same fact, document and sanction order is not permissible and taking of cognizance twice is bad in law, (2) though the provision of limitation contained in Section 468 Cr. PC is not squarely applicable, continuation of the proceeding for a long period is against the principle of speedy justice which is a fundamental right of a litigant public and as such there is no ground for proceeding against the accused.
8. Now, if the learned Court below was not competent or had no jurisdiction to try the offence, it could not drop the proceeding and discharge the accused which virtually amounted to dismissal of the proceeding though the offences committed did not stand abated nor it meant that the offender would not be tried at all. Again, 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 could do to return the complaint for presentation before the Court of Competent Jurisdiction or else postpone the case till jurisdiction was conferred upon competent Court to try the offence. Moreover, offences under the Indian Penal Code were also involved. In this connection, reference may be made to the case of Sadan K. Bormal (supra). Furthermore, 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. The observation of this Court in the case of K.R. Chatterjee (supra) may be relied on.
9. The next question that requires consideration is whether the learned Court below was competent to try the offence. 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, insofar 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 v. State of Karnataka reported in 2003 SCC (Cri) 345 and Sayedul Islam v. CBI reported in 2001 (2) CHN 266. The case of H. D. Barman (supra) based on which the order of discharge was passed no longer holds good in view of the said decisions. Accordingly, the learned Court below is totally erred in law in holding that the said Court had no jurisdiction and was incompetent to try the offences under the Prevention of Corruption Act.
10. complaint is the foundation of a criminal proceeding, and cognizance is taken of the offence and not of the offender. The purpose of sanction in respect of offences is merely to afford a reasonable protection to public servant in discharge of official functions, and it is necessary to be produced before taking cognizance. So, despite having the jurisdiction when the learned Court below dropped the proceeding resulting in dismissal of the case and discharged the accused, though the offences committed did not stand obliterated nor it meant that the offender would not be tried at all, it gave rise to the necessity for submission of a fresh chargesheet similar to that of the previous one, with same document and sanction order and there appears to be nothing wrong with it in such peculiar circumstances.
11. Regarding delay, it is not possible in the very nature of things and present day circumstances to draw a time limit beyond which a criminal proceeding will not be allowed to go. Even in the U.S.A., the Supreme Court has refused to draw such a line. Wherever a complaint of infringement of right to speedy trial is made the Court has to consider all the circumstances of the case and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably long period. In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable-broadly speaking. Of course, if it is a minor offence-not being an economic offence- and the delay is too long not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated here. For all the above reasons, it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. It cannot also be said that without such an outer limit, the right becomes illusory. The plea that an accused who does not demand a speedy trial, who stands by and acquiesces in the delays cannot suddenly turn round after a lapse of period and complain of infringement of his right to speedy trial, would not be tenable. It cannot also be said that the only consequence flowing from an infringement of right to speedy trial was the queshing of charges and/or conviction, as was held in the case of A. R. Antulay (supra). It was observed in the case of State of Rajasthan v. Ikbal Hussain reported in 2004(4) AICLR (SC) 664 that the guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made. It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceeding. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and (II) could not have been so prescribed or drawn and are not good law. The Criminal Courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time as prescribed by the directions made in the said cases. The concept of delay must be totally different depending on the class and character of the accused and the nature of his offence, the difficulties of a private prosecutor and the leanings of the Government. The Court must respect legislative policy unless the policy is unconstitutional. Statutes of limitation, limited though they are on the criminal side, do not apply to : (a) serious offences punishable with more than three years imprisonment; (b) all economic offences. Corruption by high public servants is not protected for both these reasons. Right to speedy trial is not a right not to be tried. It only creates an obligation, on the prosecutor to be ready to proceed to trial within a reasonable time. Similar is the holding in the case of P. Ramachandra Rao v. State of Karnataka which stands for the proposition that the Criminal Courts are not obliged to terminate trial or criminal proceeding merely on account of lapse of time as prescribed by the directions made in Common Cause case and other cases. In the case on hand, delay was mainly due to procedural one and it is also attributable to the accused and so the accused cannot be allowed to take advantage of this own wrong.
12. In regard to the question of application of Section 300 Cr. PC, under Article 20(2) of the Constitution of India no person shall be prosecuted and punished for the same offence more than once. The said Article incorporates within its fold the plea of "autrefois convict" as known to the British jurisprudence or the plea of "double jeopardy" as known to American Constitution but circumscribes it by providing that there should be not only a prosecution but also punishment in the first instance in order to operate as a bar to the second prosecution and punishment for the same offence. Section 300 Cr. PC lays down that a person once convicted or acquitted cannot be tried for the same offence which is based on the maxim nemo debet bis vexari thereby meaning that a person cannot be tried a second time for an offence with which he was previously charged. In order to bar the trial of any person already tried, it must be shown that (1) he has been tried by a Competent Court for the same offence or one for which he might have been charged or convicted at that trial, on the same facts and (2) he has been convicted or acquitted at the trial. Reference may be made to the cases of S.A Venkatarama v. Union of India , Assistant Collector of Customs, Bombay v. L.R. Melwani and Vijoylakshmi v. Vasudevan . The whole basis of the section is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal. So, if the Court was not competent or lacked jurisdiction, the section has no application. Moreover, there must be a trial of the accused i.e. hearing and determination on merits. In a case exclusively triable by a Court of Sessions, the trial commences after a charge is framed under Section 228, and there is no trial before the charge is framed but an inquiry only. Here, though the case was under Section 420/468/471/477A IPC/13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, the accused was "discharged" due to alleged lack of jurisdiction of the Court to try the offence under the Prevention of Corruption Act. In other words, the Court, as it thought, lacked jurisdiction, and there was no "trial" and so the question of applying the provision of Section 300 Cr. PC is out of the way.
13. In the light of the above discussion, the present revisional application be allowed. The impugned order dated 13.8.2002 be set aside.
14. Let a copy of this order along with the LCR be sent down at once to the learned Court below with a direction to proceed with the hearing of the case from the stage of framing of charge and to dispose of the same as expeditiously as possible preferably within a period of six months from the date of communication of the order without granting unnecessary adjournment to either of the parties.
15. Interim order, if any, stands vacated.
16. Urgent xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible.