The jurisdiction of Special Courts to try offences under Section 5 (2) of the Prevention of Corruption Act, 1947, is not affected by the fact that the accused has ceased to be a public servant.

( 1 ) THE Court: This application raises an interesting point which, I am informed, is of the first impression. The petitioner, one Manmal Bhutoria, along with one C. R. Bhattacharjee, who was a Major in the Indian Army and who was invalidated from the Military Service with effect from the 14th February, 1966, were charged with an offence under s. 5 (2) of the Prevention of Corruption Act 1947, (hereinafter referred to as the Prevention Act) and by a notification in the Calcutta Gazette dated the 15th June, 1967 the State Government allotted the case of the State v. (1) Ex-major Chittaranjan Bhattacharjee and (2) Manmal Bhutoria to the Calcutta Fourth Additional Special Court on a report submitted by the Deputy I Of Police Central Bureau of Investigation, Special Division, Calcutta dated the 27th May, 1967. In the said report it was alleged that ex-major Bhattacharjee, in collusion with the petitioner Manmal Bhutoria, had accepted certain tenders from a fictitious nominee of the petitioner for supply of certain articles to the military authorities at prices exceeding the prices quoted by other tenders and thereby causing loss to the military authorities. It was further alleged that by these acts the two accused had committed the offence of conspiracy of criminal misconduct by a public servant by dishonestly abusing his position as a public servant for obtaining undue pecuniary advantage under section 5 (2) of the Prevention Act. In this petition the jurisdiction of the State Government to make the aforesaid allotment of the case of the petitioner to the Special Court as challenged inter alia on the ground that as on the date of the allotment Sri Bhattacharjee had ceased to be a public servant the offence was not one cognizable by the Special Courts and that the proceedings are bad as no sanction under section 6 of the Prevention Act was obtained. Before I proceed to consider the submissions made by learned counsel in this case it would be necessary to set out certain material provisions of the two Statutes which need consideration in this case. Under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, (hereinafter referred to as the Special Courts Act) the State Government was authorized to constitute Special Courts having jurisdiction throughout the whole of the State of West Bengal to try certain offences specified in the Act. Section 4 (1) of the above Act is the material section and is as follows :-?4. (1) Notwithstanding anything contained in the Code of Criminal Procedure 1898 or in any other law, the offence specified in the Schedule shall be triable by Special Courts only : provided that when trying any case, a Special Court may also try any offence other than an offence specified in the Schedule, with which the accused may under the Code of Criminal Procedure be charged at the same trial. ?the schedule above referred to specified the offences triable by such Special Courts and Cl. 7 thereof includes an offence publishable under section 5 of the Prevention Act, 1947.

( 2 ) THE material provisions of the Prevention Act are : (1) section 4 which raises the presumption that where a public servant accepts gratification other than legal remuneration he is guilty of a corrupt practice; (2) section 5 which defines criminal misconduct in discharge of official duty. Under sub-section (1) of the later section a public servant is said to commit the offence of criminal misconduct in the discharge of his duty - (a ). . . . (b ). . . . I. . . . (d) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself of for any other person any valuable thing or pecuniary advantage. Sub-section (2) of that Section provides that any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine w