Judgment

GOSWAMI, J.- In these appeals a common question of law arises for consideration. We will therefore refer to the facts as appearing in Civil Appeal No. 1134 of 1973 to decide the issue and our decision will govern these appeals.

2. We are informed that the sole appellant in Criminal Appeal No. 319 of 1974 died. The said appeal, therefore, abates and is dismissed.

3. Civil Appeal No. 1134 of 1973 is directed against the judgment of the Division Bench of the Calcutta High Court whereby the earlier judgment of the single Judge was reversed. The facts so far as material may be briefly stated:

On or about May 27, 1967, a case was lodged by the Deputy Superintendent of Police, Central Bureau of Investigation, Sub-Division, Calcutta, against R. C. Bhattacharjee who was an ex-Mojor of the Indian Army and Manmal Bhutoria (hereinafter, the respondent) who was a businessman. It was alleged that R. C. Bhattacharjee in collusion and conspiracy with the respondent had accepted certain tenders from a fictitious nominee of the said respondent for supply of certain stores to the military authorities at a price exceeding the price quoted by the other tenderers and thereby caused substantial loss to the Military Authority and to the Government of India. It was further alleged that he said Bhattacharjee along with the respondent had committed offence of conspiracy of criminal misconduct by a public servant in dishonestly abusing his position as a public servant for obtaining undue pecuniary advantage which amounted to an offence under Section 5 (2) of the Prevention of Corruption Act, 1947.

4. Accused Bhattacharjee was invalidated from the Military service with effect from February 14, 1966, as permanently unfit for any form of military service.

5. A case under the Prevention of Corruption Act, 1947 (hereinafter, briefly the Act) can be tried only by special court constituted under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949) (briefly the Bengal Act). By a notification in the Calcutta Gazette dated June 15, 1967, the State Government allotted the said case to the Fourth Additional Special Court in Calcutta under sub-section (2) of S. 4 of the Bengal Act. When the Special Court fixed the case for trial on 23rd, 24th and 25th November, 1967, the respondent moved the High Court of Calcutta under Art. 226 of the Constitution on November 7, 1967, inter alia, contending that-

(1) at the point of time when the case was distributed to the Special Court the co-accused, ex-Major Bhattacharjee, had ceased to be a public servant and as such the Bengal Act had no application and the said Court had no jurisdiction to entertain the case;

(2) a public officer having ceased to be such an officer at the date of allotment of the case the order of allotment by the State Government was without jurisdiction and void; and

(3) the Special Court had no jurisdiction to try cases in which two private persons were involved and the allotment of the case to the Special Court was thus illegal.

6. A point regarding absence of sanction was also taken up but was not pressed before us in view of the decision of this Court in S. A. Venkataraman v. The State, 1958 SCR 1037.

7. The single Judge of the High Court dismissed the writ application but the Division Bench by two concurring judgments set aside the said judgment and order of the single Judge. That is how this matter has come before us on certificate under Art. 133 (1) (c) of the Constitution.

8. P. B. Mukharji, J. held-

".....the only solution is to hold that these two Acts, namely, the Special Courts Act and the Prevention of Corruption Act do not apply to a public servant who had ceased to be a public servant on the date the court takes cognizance. This solution seems all the more proper because it seems to steer clear of Article 14 of the Constitution ....."

The learned Judge further observed-

"Therefore a person who has ceased to be in office, that is, who has