2022 Supreme(Cal) 531

IN THE HIGH COURT OF CALCUTTA
Bibek Chaudhuri, J.
Anup Majee - Appellant
Versus
Union Of India - Respondent
CRR 1318 of 2021
Decided On : 20-07-2022

The appearance of the accused petitioner before the Investigating Officer as per the direction of the Hon'ble Apex Court does not in any way negate the orders passed by the trial court which were sought to be recalled by filing the impugned application.

Headnote:

Legality - Order of Arrest - Sections 120B/409 of IPC, Section 13(2) and 13(1)(a) of Prevention of Corruption Act - [Legality, validity and propriety of an order dated 16th April, 2021 passed by the learned Special Judge, CBI Court at Asansol in connection with RC Case No.22 of 2022 corresponding to CBI SPE ACB KOLKATA Case No. RC0102020A0022 dated 27th November, 2020 under Sections 120B/409 of the Indian Penal Code read with Section 13(2) and 13(1)(a) of the Prevention of Corruption Act, thereby rejecting an application for recalling of the order dated 24th December, 2020 issuing warrant of arrest against the petitioner and recalling consequential order of proclamation dated 11th January, 2021 and order of attachment dated 18th February, 2021 are under challenge in the instant revision. The impugned order dated 16th April, 2021 refused to recall the orders dated December 24, 2020, 11.01.2021 and 18.02.2021 passed by the court in RC 22(A)/2020. The accused petitioner challenged the legality, validity and propriety of initiation of the investigation by CBI in view of withdrawal of consent required under Section 6 of the Delhi Special Police Establishment Act in the State of West Bengal and for declaration that the registration of FIR against him and subsequent investigation ultra vires Section 6 of the said Act. The Hon'ble Supreme Court passed an order directing the petitioner to cooperate in the investigation and not to be arrested until 6th April, 2021. The trial court refused to recall the orders based on the petitioner's appearance before the Investigating Officer as per the direction of the Hon'ble Apex Court.

Fact of the Case:

The petitioner was accused of misappropriating coal from the coal reserve of leasehold areas under the dominion of ECL by resorting to illegal mining and from the coal stock parked in the Railway sidings of ECL during the period between May 2020 till the date of filing of the FIR. The accused challenged the legality, validity and propriety of initiation of the investigation by CBI in view of withdrawal of consent required under Section 6 of the Delhi Special Police Establishment Act in the State of West Bengal and for declaration that the registration of FIR against him and subsequent investigation ultra vires Section 6 of the said Act. The trial court refused to recall the orders based on the petitioner's appearance before the Investigating Officer as per the direction of the Hon'ble Apex Court.

Finding of the Court:

The trial court refused to recall the orders based on the petitioner's appearance before the Investigating Officer as per the direction of the Hon'ble Apex Court. The trial judge held that the appearance of the accused petitioner on the basis of the order passed by the Apex Court does not in any way negate the orders passed by the trial court which were sought to be recalled by filing the impugned application. The trial judge refused to recall the said orders unless the orders were set aside by the trial court.

Issues: The legality, validity and propriety of initiation of the investigation by CBI in view of withdrawal of consent required under Section 6 of the Delhi Special Police Establishment Act in the State of West Bengal and for declaration that the registration of FIR against him and subsequent investigation ultra vires Section 6 of the said Act. The refusal of the trial court to recall the orders based on the petitioner's appearance before the Investigating Officer as per the direction of the Hon'ble Apex Court.

Ratio Decidendi: The trial court refused to recall the orders based on the petitioner's appearance before the Investigating Officer as per the direction of the Hon'ble Apex Court. The trial judge held that the appearance of the accused petitioner on the basis of the order passed by the Apex Court does not in any way negate the orders passed by the trial court which were sought to be recalled by filing the impugned application. The trial judge refused to recall the said orders unless the orders were set aside by the trial court.

Final Decision: The trial court refused to recall the orders based on the petitioner's appearance before the Investigating Officer as per the direction of the Hon'ble Apex Court. The trial judge held that the appearance of the accused petitioner on the basis of the order passed by the Apex Court does not in any way negate the orders passed by the trial court which were sought to be recalled by filing the impugned application. The trial judge refused to recall the said orders unless the orders were set aside by the trial court.