Important Point
West Bengal Criminal Law Amendment (Special Courts) Act, 1949 applies to public servants.

Judgment

Altamas Kabir, J. —

1.Leave granted.

2.The short point for decision in this appeal is whether a Special Judge exercising jurisdiction under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, (hereinafter referred to as “the Special Courts Act, 1949”), can take cognizance of an offence against a member of the State Legislative Assembly (hereinafter referred to as “M.L.A.”) when he had ceased to be a M.L.A., though the offence was alleged to have been committed when he was a sitting M.L.A.

3.On the basis of certain newspapers reports one Nikhil Kishore Roy filed a Public Interest Litigation in the Calcutta High Court against the respondent No.1, Shri Shyamadas Banerjee, alleging that he had misused his official position as M.L.A. by submitting forged and fictitious medical bills and fees for prescription for Rs.1,65,530.30 on account of the treatment of his wife and his mother between 8.9.1998 to 10.11.1998. The said Writ Petition, being No.1311 of 1999, was disposed of by a Division Bench of the Calcutta High Court on 23.6.1999, holding that the writ petitioner could have lodged a First Information Report or filed a complaint petition before the concerned Magistrate. Thereafter, on the basis of the F.I.R. lodged by Shri Nikhil Kumar Roy investigation was started under Section 468, 471, 420 and 511 of the Indian Penal Code, (hereinafter referred to as “IPC”), by the Hare Street Police Station. The respondent No.1 surrendered before the Chief Metropolitan Magistrate, Calcutta, on 17.1.2000, and was released on bail. Charge-sheet was filed on 16.1.2003, on the basis whereof the Special Court assumed jurisdiction under the Special Courts Act, 1949, against the respondent No.1 treating him to be a “public servant” and framed charges against him under Section 420/468/471 and 511 IPC.

4.Aggrieved by the Order of the Special Judge 4th Court, Calcutta, taking cognizance on the basis of the charge-sheet filed, the respondent No.1 moved the High Court in revision (CRR No.1931 of 2003) alleging that the cognizance taken was illegal since no sanction had been obtained by the investigating agency to file a charge-sheet against him. The High Court disposed of the revision petition granting liberty to the trial Judge to proceed with the matter while the respondent No.1 was given liberty to adjudicate the points which had been taken by him in the revision application before the learned trial Judge. Such application was made by the petitioner on 10.9.2003, but the same was rejected by the learned trial Judge which impelled the respondent No. 1 to once again move the High Court in revision (CRR No.2364 of 2003).

5.During the hearing of the revision application, at the very outset it was urged on behalf of the respondent No.1 that since he had ceased to be a M.L.A. when cognizance was taken by the learned Special Judge, such cognizance was bad and the proceedings taken on the basis thereof stood vitiated. It was contended that the Special Courts Act, 1949, enabled a Special Court to proceed against a M.L.A. defined as a “public servant” under the Prevention of Corruption Act, 1947 and not under the Prevention of Corruption Act, 1988. It was also contended that even if the respondent No.1 was a M.L.A. at the time of commission of the alleged offence, he ceased to be so when the charge-sheet was filed and the cognizance was taken thereupon. It was further contended that there was no specific statutory provision which provides that even though a person ceases to be a public servant, he could still be deemed to be a public servant for the purpose of trial under the provisions of the Special Courts Act, 1949, in respect of offences alleged to have committed before he ceased to be a public servant. It was submitted that, in the absence of such a provision, the charges framed and cognizance taken by the Special Judge was bad in law and liable to be quashed.

6.After examining the aforesaid question in detail, the learne