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2007 Supreme(Cal) 393
High Court Of Calcutta
Before Ashim Kumar Roy, J.
CENTRAL BUREAU OF INVESTIGATION - Appellant
Versus
ASIT BARAN BANERJEE - Respondent
C. R. R. 2123 Of 2004
Decided On : 05/18/2007
Amarta Ghosh, JOYMALYA BAGCHI, RANJAN ROY, SOVENDU SEKHAR ROY
A Special Court has jurisdiction to try offences under the Prevention of Corruption Act, 1947, even if the offence was committed before the Prevention of Corruption Act, 1988 came into force.
Headnote:
PREVENTION OF CORRUPTION ACT - JURISDICTION OF SPECIAL COURT - DISCHARGE OF ACCUSED - DOUBLE JEOPARDY - SPEEDY TRIAL - ARTICLE 20(2) OF THE CONSTITUTION - SECTION 300 OF THE CODE OF CRIMINAL PROCEDURE - ARTICLE 21 OF THE CONSTITUTION - LEGALITY OF SECOND CHARGE-SHEET - Held, the initial order of discharge passed in Special Case No. 4 of 1992 was erroneous and illegal, and since a charge had already been framed, the question of discharging the accused did not arise.
Fact of the Case:
The accused, a Divisional Cashier and a former Junior Divisional Cashier, were charged with misappropriating railway funds by falsifying accounts and records. After the Special Court discharged them on the ground that it lacked jurisdiction, the CBI filed a second charge-sheet on the same facts. The Special Court again discharged the accused, holding that the second charge-sheet was barred by the principle of double jeopardy.
Finding of the Court:
The High Court held that the initial order of discharge was erroneous and illegal, as the Special Court did have jurisdiction to try the case. It also held that the second charge-sheet was not barred by double jeopardy, as the accused had not been convicted or acquitted in the first case. The High Court further held that the accused's right to a speedy trial under Article 21 of the Constitution was not violated, as the delay in the case was not attributable to the prosecution.
Issues: 1. Whether the Special Court had jurisdiction to try the case. 2. Whether the second charge-sheet was barred by the principle of double jeopardy. 3. Whether the accused's right to a speedy trial under Article 21 of the Constitution was violated.
Ratio Decidendi: 1. The Special Court had jurisdiction to try the case, as the offence was committed in 1987, when the Prevention of Corruption Act, 1947 was in force, and the Special Court was empowered to try offences under that Act. 2. The second charge-sheet was not barred by the principle of double jeopardy, as the accused had not been convicted or acquitted in the first case. 3. The accused's right to a speedy trial under Article 21 of the Constitution was not violated, as the delay in the case was not attributable to the prosecution.
Final Decision: The High Court set aside the order of discharge passed by the Special Court and directed the Special Court to proceed with the trial from the stage when the order of discharge was passed.
( 2 ) THE background of the case are as follows,
(a) The accused/opposite party No. 1 Asit Baran Banerjee, Divisional cashier, Cash and Pay Office, Eastern Railways, Sealdah, in criminal conspiracy with the accused/opposite party No. 2 Manabendra Dutt Chowdhury a Former Junior Divisional Cashier, Eastern Railway, as superannuated on october 31, 2000 misappropriated a railway fund of Rs. 2. 16 lakhs by dishonestly and fraudulently falsifying Books of Accounts and records and by falsely showing receipt of Rs, 64,91,207. 71 paise against actual receipt of Rs. 67,07,207. 71 paise against an entry dated July 9, 1997.
(b) After completion of investigation the C. B. I. submitted charge-sheet under Section 120b/409/477 of the Indian Penal Code and under Section 5 (1) (c) read with Section 5 (2) of the Prevention of Corruption Act, 1947, corresponding to Section 13 (1 ) (c) read with Section 13 (2) of the Prevention of corruption Act, 1988, before the Learned Judge, First Special Court, Alipore, against the accused/opposite parties. Whereupon, the Special Case No. 4 of 1992 was registered and on September 4, 1991 the learned Court took cognizance and on August 13, 1992 charge was framed against the said accused/opposite parties.
(c) Subsequently, the accused/opposite parties filed an application for discharge and by an order dated September, 15 1994 the Learned Special judge allowed the application and discharged them from the case. The said order of discharge as passed by the learned Special Court based on the decision of this Hon'ble Court in the case of H. D. . Burman v. C. B. /. , reported in (1993)2 Cal HN 141, and on the sole ground the learned Special Court constituted under the West Bengal Law Amendment (Special Court) Act, 1949 before whom the matter was pending has no jurisdiction of take cognizance of offence punishable under Prevention of Corruption Act, 1988. The aforesaid order of discharge was never challenged before any higher forum.
(d) Subsequently, on January 1, 1997, on the self-same facts the C. B. I, submitted another charge-sheet under Section 120b/409/477a of the Indian penal Code and under Section 5 (1) (c)/5 (2) of the Prevention of Corruption act, 1947, corresponding to Section 13 (1) (c)/13 (2) of the Prevention of corruption Act, 1988 before the learned Special Judge, First Court, Alipore, which gave rise to the Special Case No. 2 of 1997.
( 3 ) IN connection with the Special Case No. 2 of 1997 the accused/ opposite parties once again filed an application for discharge under Section 239 of the Code of Criminal Procedure.
( 4 ) BY an order dated May 18, 2004 the learned Judge, First Special court, Alipore, passed in connection with the Special Case No. 2 of 1997 allowed the said application and discharged the accused/opposite parties from the said case. The C. B. I, challenged the said order of discharge in the instant criminal revision.
( 5 ) THE aforesaid order allowing the prayer for discharge of the accused/opposite parties based on the following grounds,
(a) The earlier order of discharge passed on September 15, 1994 in connection with the Special Case No. 4 of 1992 was never challenged and the same being still subsisting and during the subsistence of such order filing of the second charge-sheet on the self-same allegation is not legally permissible. (b) The filing of a second charge-sheet on the self-same facts on which earlier charge-she
