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1997 Supreme(Cal) 443
IN THE HIGH COURT AT CALCUTTA
Dibyendu Bhusan Dutta, J.
K.K. Kumaran
vs.
Nabin Chandra Thakkar
CRR No. 523 of 1997
Decided On : December 4, 1997
Dilip Kumar Dutta, Kazi Mohammad Ali, V. Raja Rao, Arup Chatterjee, Miss Aparajita Das for the petitioner
Y. Dastoor, Prabin Kumar Mitra for the opposite Party.
A Magistrate has no jurisdiction to take cognizance of an offence under Ss. 161, 167, 420, and 422 of the IPC if the offence is exclusively triable by a Special Court under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949.
Headnote:
CRIMINAL LAW - QUASHING OF CRIMINAL PROCEEDING - Ss. 161, 167, 420, 422 IPC - CORRUPTION - PUBLIC SERVANT - JURISDICTION OF SPECIAL COURT - PREVIOUS SANCTION - OFFENCES EXCLUSIVELY TRIABLE BY SPECIAL COURT - WEST BENGAL CRIMINAL LAW AMENDMENT (SPECIAL COURTS) ACT, 1949.
Fact of the Case:
Petitioner, a senior project manager with the South Eastern Railway, was accused of demanding a bribe from a contractor and fabricating official papers to harm the contractor. The Chief Judicial Magistrate took cognizance of the complaint and issued a warrant of arrest against the petitioner under Ss. 161, 167, 420, and 422 of the IPC.
Finding of the Court:
The court found that the cognizance taken by the Magistrate of the offences under Ss. 161, 167, 420, and 422 of the IPC was bad in law due to the following reasons: 1. Section 161 of the IPC was repealed by the Prevention of Corruption Act, 1988, and the Magistrate had no jurisdiction to take cognizance of the offence under this section. 2. The offence under S. 167 of the IPC could not be committed by a public servant except by acting or purporting to act in discharge of his official duty, and previous sanction was necessary under S. 197(1) of the CrPC, which was not obtained. 3. The offence under S. 420 of the IPC was exclusively triable by a Special Court under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, and the Magistrate had no jurisdiction to take cognizance of the offence. 4. The offence under S. 422 of the IPC was not attracted on the facts alleged in the petition of complaint.
Issues: 1. Whether the Magistrate had jurisdiction to take cognizance of the offences under Ss. 161, 167, 420, and 422 of the IPC? 2. Whether the petitioner could be prosecuted for the offences under Ss. 161, 167, and 420 of the IPC without obtaining the necessary sanction?
Ratio Decidendi: 1. Section 161 of the IPC was repealed by the Prevention of Corruption Act, 1988, and the Magistrate had no jurisdiction to take cognizance of the offence under this section. 2. The offence under S. 167 of the IPC could not be committed by a public servant except by acting or purporting to act in discharge of his official duty, and previous sanction was necessary under S. 197(1) of the CrPC, which was not obtained. 3. The offence under S. 420 of the IPC was exclusively triable by a Special Court under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, and the Magistrate had no jurisdiction to take cognizance of the offence. 4. The offence under S. 422 of the IPC was not attracted on the facts alleged in the petition of complaint.
Final Decision: The criminal proceeding against the petitioner was quashed. The complainant was granted liberty to launch fresh prosecution according to law before the appropriate forum on the facts and circumstances disclosed in the petition of complaint, if the same was not otherwise barred by law.
Dibyendu Bhusan Dutta, J.
The instant application under s. 482 of the Code of Criminal Procedure is directed against the proceeding being C.R. Case No. 9 of 1997 under Ss. 161, 167, 420, 422 of the IPC pending before the Second Court of Judicial Magistrate, Midnapore.
2. The petitioner is working as senior Project Manager, South Eastern Railway, Kharagpore. On 9.12.96, the opposite party filed a petition of complaint in the Court of Chief Judicial Magistrate, Midnapore against the petitioner on the following allegations. The complainant is a registered government contractor and an enlisted contractor of South Eastern Railway. The Chief Project Manager, South Eastern Railway, Gardenreach, Calcutta invited a tender for construction of overhead storage tank and also for sinking deep tube-well at Kharagpore complex. The total estimated amount for the project was Rs. 44,48,821/-. The tender of the complainant was accepted. The complainant had executed a part of the work as per directions given by the petitioner and submitted a bill for Rs. 11,90,000/- to the petitioner. The petitioner asked for a bribe of Rs. 30,000/- which was given by the complainant, but even then the petitioner did not pass the bill. The petitioner asked for payment of ten per cent of the bill amount for passing the bill. The complainant refused to make the payment whereupon the petitioner became furious and threatened the complainant with dire consequences. The petitioner fabricated some official papers illegally to cause harm to the complainant.
3. The ld. Chief Judicial Magistrate, Midnapore was pleased to take cognizance upon that complaint for offences punishable under Ss. 161, 167, 218, 420, 422 and 120B of Indian Penal Code and transferred the case to the Second Court of Judicial Magistrate, Midnapore for disposal. The transferee court examined the complainant and his witnesses under s. 200 Cr.P.C. and was pleased to find a prima facie case under Ss. 161, 167, 420, 422 of the IPC against the petitioner and accordingly, issued warrant of arrest against the petitioner.
4. Mr. Dilip Dutta, appearing for the petitioner assailed the legality of the criminal proceeding on the following grounds. It was urged that s. 161 of the IPC has been repealed by s. 31 of the Prevention of Corruption Act, 1988 and as such, taking of cognizance and issuing of process under s. 161 IPC was bad. Secondly, it was urged that the documents alleged to have been prepared by the petitioner have not at all been specified. If it be assumed that the petitioner had committed an offence under s. 167 IPC even then the previous sanction under s. 197 of the Code of Criminal Procedure would be necessary to prosecute the petitioner for an offence punishable under s. 167 of the IPC and in the absence of a sanction, it is contended that the cognizance of an offence under s. 167 IPC against the petitioner was bad. Thirdly, it was contended that the complaint does not disclose any element of the offence of cheating as punishable under s. 420 of the IPC, and that in view of s. 4(1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 read with item no. 3 of the schedule thereof, an offence under s. 420 IPC is exclusively triable by a Special Court and as such, the Magistrate has no jurisdiction to take cognizance of an offence under s. 420 IPC as against the petitioner who is a public servant. Lastly, it was contended that for taking cognizance of an offence under s. 422 IPC against the petitioner, absence of sanction under section Cr. P.C. would be fatal. For the above reasons, it is argued by Mr. Dutta that the continuance of the impugned criminal proceeding would be abuse of the process of the court and as such, the proceeding should be quashed.
5. One of the offences of which cognizance appears to have been taken against the petitioner on 3.1.97 in this case is stated to be one punishable under s. 161 of IPC, process also appears to have been issued on a finding that a prima
