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2014 Supreme(Cal) 713
High Court of Judicature at Calcutta
JOYMALYA BAGCHI, J.
Swarup Mazumdar
Versus
The State of West Bengal & Another
C.R.R. No. 591 of 2014 with C.R.A.N. No. 3793 of 2014 (Appellate Side)
Decided on: 03-12-2014
Advocate Appeared
For the Appellant:Biswajit Manna, Advocate.
For the Respondents:Subir Banerjee, Advocate.
A Special Court constituted under the Prevention of Corruption Act, 1988 and the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 lacks jurisdiction to try a person who is neither a public servant nor an agent of the Government dealing with Government property, as the offences alleged against such a person are not triable by a Special Judge under the schedule appended to the Act of 1949.
Headnote:
CRIMINAL LAW - PREVENTION OF CORRUPTION ACT - JURISDICTION - SPECIAL JUDGE - TRIAL - OFFENCES TRIABLE BY SPECIAL JUDGES - PUBLIC SERVANT OR AGENT OF GOVERNMENT - SCHEDULE TO THE WEST BENGAL CRIMINAL LAW AMENDMENT (SPECIAL COURTS) ACT, 1949 - SECTION 26 OF THE CODE OF CRIMINAL PROCEDURE - COGNIZANCE OF OFFENCES - TAKING COGNIZANCE - INFERENCE FROM SUBSEQUENT STEPS - RECOVERY OF STOLEN PROPERTY - CHARGE UNDER SECTION 411 OF THE INDIAN PENAL CODE - LEGALITY AND PROPRIETY.
Fact of the Case:
The petitioner, accused of receiving stolen property under Section 411 of the Indian Penal Code, challenged the framing of charges against him by a Special Court constituted under the Prevention of Corruption Act, 1988 and the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. The petitioner argued that the Special Court lacked jurisdiction to try the case as he was neither a public servant nor an agent of the Government dealing with Government property, and that the alleged offences were not triable by a Special Judge under the schedule appended to the Act of 1949.
Finding of the Court:
The High Court held that the Special Court constituted under the Act of 1949 was not competent to try the case as the petitioner was neither a public servant nor dealing with Government property in the capacity of an agent of the Government. The Court noted that the schedule to the Act of 1949 only listed specific offences triable by Special Judges, including those committed by public servants or agents of the Government, and that the petitioner's case did not fall within any of these categories.
Issues: 1. Whether the Special Court constituted under the Prevention of Corruption Act, 1988 and the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 had jurisdiction to try the petitioner, who was neither a public servant nor an agent of the Government dealing with Government property? 2. Whether the alleged offences were triable by a Special Judge under the schedule appended to the Act of 1949? 3. Whether the Special Court had taken cognizance of the alleged offences before framing charges against the petitioner? 4. Whether the framing of charges under Section 411 of the Indian Penal Code against the petitioner was illegal or perverse in light of the recovery of alleged stolen property from his possession?
Ratio Decidendi: 1. The Special Court constituted under the Act of 1949 lacked jurisdiction to try the petitioner as he was neither a public servant nor dealing with Government property in the capacity of an agent of the Government. 2. The alleged offences were not triable by a Special Judge under the schedule appended to the Act of 1949, which only listed specific offences triable by Special Judges, including those committed by public servants or agents of the Government. 3. The Special Court had taken cognizance of the alleged offences by supplying copies of the charge sheet to the accused persons and framing charges against them. 4. The framing of charges under Section 411 of the Indian Penal Code against the petitioner was not illegal or perverse in light of the recovery of alleged stolen property from his possession.
Final Decision: The High Court quashed the charges framed by the Special Court and directed that the proceedings be transferred to the Court of the learned Chief Judicial Magistrate, Barasat, for trial from the stage it had already reached.
Joymalya Bagchi, J.
The petitioner has assailed the order dated 13.12.2013 passed by the learned Judge, Special Court under the Prevention of Corruption Act, North 24-Paraganas, Barasat in Special Case No.12 of 2003 framing charge under Section 411 against the petitioner and other co-accused persons viz., Pranab Saha and Sanjib Saha and under Sections 409/418/468 of the Indian Penal Code against Tapas Saha.
The prosecution case, as alleged, is to the effect that the defacto complainant was a dealer in medicine and carried on business under the name and style of ‘Bina Enterprise’. Co-accused Tapas Ghosh was an employee of the defacto complainant. It is alleged that on various dates, said Tapas Ghosh in his capacity as a sales man and agent of opposite party no.2 was entrusted with medicines for effecting supplies. It is further alleged that as collections in respect of such supplies were very poor, suspicion arose in the mind of the defacto complainant and on enquiry, he found that Tapas Ghosh being entrusted with such medicine had misappropriated the same and had sold the said misappropriated medicine to the petitioner and other co-accused persons. Tapas Ghosh confessed to his guilt and gave a written undertaking that 62% of the medicine were sold to the petitioner and the other co-accused persons.
First Information Report was registered being Barasat P.S. Case No.329 dated 5.6.2001 under Sections 409/406/418/468 of the Indian Penal Code against the said Tapas Ghosh. In the course of investigation, stolen property was allegedly recovered from the possession of the petitioner as well as other co-accused persons. In conclusion of investigation, charge sheet was filed under Sections 409/418/468/411 against Tapas Ghosh and other co-accused persons including the petitioner herein.
The case was sent to the Court of the Learned Special Judge, Special Court under Prevention of Corruption Act, North 24-Paraganas, Barasat for trial and disposal. Charges were framed on 13.12.2013 under Sections 409/418/468 of the Indian Penal Code against co-accused Tapas Ghosh while charge was framed under Section 411 against the petitioner and other co-accused persons. The petitioner has assailed the impugned order of framing charge against him.
The learned counsel appearing for the petitioner submitted that co-accused Tapas Ghosh was neither a public servant nor an agent of the Government who was dealing in Government property. Hence, the Special Judge appointed under the Prevention of Corruption Act, 1988 or under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (hereinafter referred to as ‘the Act’) was not competent to try the case. He further submitted that the learned Court below had not taken cognizance of the alleged offences but illegally proceeded to frame charge against the petitioner. He also submitted that there was no material on record to connect the petitioner with the alleged offence.
Mr. Banerjee, learned counsel appearing for the State submitted that there was ample material on record to connect the petitioner with the alleged offence. He submitted that the stolen articles were recovered from the petitioner creating strong suspicion against the petitioner justifying framing of charge.
He, however, admitted that the co-accused Tapas Ghyosh was neither a public servant nor was he an agent of the Government handling Government property.
I have considered the materials on record. It is a fact that the petitioner is not a public servant nor is he an agent of the Government handling Government property. There is also no charge levelled under the Prevention of Corruption Act, 1988 against the petitioner or the other accused persons.
Hence, the Special Court constituted under the Act of 1949 ought not to try the instant case in view of the schedule appended to the said Act. The schedule of the Act of 1949 inter alia provides as follows;
“Offences triable by Special Judges
1. An offence punishable under section 161,
