Arumoy Basu Thakur vs State Of West Bengal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 669

IN THE HIGH COURT AT CALCUTTA
SIDDHARTHA ROY CHOWDHURY, J.
Arumoy Basu Thakur – Appellant
Versus
The State Of West Bengal – Respondent
CRR 695 of 2007 CRAN 1 of 2019
Decided on : 13-04-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. Jayanta Narayan Chatterjee, Adv., Mr. Supreen Naskar, Adv., Ms. Sreeparna Ghosh, Adv., Ms. Pritha Sinha, Adv.
For the Respondent: Mr. S.G. Mukhopadhyay, Mr. Sandip Chakraborty, Adv.

Headnote:
Prevention of Corruption Act - Section 13(1)(d)(ii) - Criminal Procedure Code, 1973 - Section 482 - Dishonored cheques – Quash of Criminal proceedings - Whether and to what extent trial which follows investigation is vitiated - Held, it is no more res integra that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to the cognizance or to the trial unless the illegality in the investigation can be shown to have brought about a miscarriage of justice - Scheme of the Code of Criminal Procedure does not indicate the intention of the legislature that an investigation by an officer of a lower rank can be said to cause prejudice - In absence of manifestation of any miscarriage of justice or prejudice, caused to the petitioner, I am not inclined to invoke the provision of Section 482 of the Code of Criminal Procedure to quash the proceeding - Appeal Disposed of

JUDGMENT :

Siddhartha Roy Chowdhury, J.

1. This application under Section 482 the Criminal Procedure Code, 1973 challenges the proceeding of Special Case No. 3 of 1998 in connection with the Park Street Police Station Case No. K/DD/72 dated 2nd February, 1995 under section 120B/420/467/468/471 of the I.P.C. The investigation culminated into submission of charge sheet under Section 120B/420/467/468/471 of the I.P.C. read with Section 13(1)(d)(ii) of the Prevention of Corruption Act is pending before the learned Special Judge 5th Court, Calcutta together with all orders passed therein including the order dated 30th October 2006.

2. Briefly stated, Ms. M.V. Suprabha Menon, Manager (Marketing) and Branch Manager of Rashtriya Ispat Nigam Limited (a Government of India enterprise), Visakhapatnam Steel Plant of 1, AJC Bose Road Calcutta-700020 informed the Officer-in-charge of Park Street Police Station in writing that Gopal Bajoria, Director of M/s Shiva Wire and Steel Products Ltd. lifted different types of materials from Rashtriya Ispat Nigam Limited against credit between May 1994 and October 1994. A sum of Rs. 80,00,000/-was lying outstanding from M/s Shiva Wire and Steel Products Ltd. As a security for credit, Gopal Bajoria, had submitted bank guarantee vide No. 6/93 dated 18th February 1994 for a sum of Rs. 65,00,000/-. Such bank guarantee was issued by State Bank of India, Lilua Branch, Howrah. Gopal Bajoria also issued cheques amounting to Rs. 6,00,000/-in favour of Rashtriya Ispat Nigam Limited but those cheques were dishonoured by the banker of the drawer of the cheque.

3. As the information disclosed offence cognizable in nature, Park Street P.S. Case No. 72 dated 7th February, 1995 was registered. Police took up investigation and submitted charge sheet against Gopal Bajoria, M/s Shiva Wire Steel Products Ltd., Arumoy Basu Thakur and Sanjay Agarwal of Rashtriya Ispat Nigam Limited under Section 120B/420/467/468/471 of the I.P.C. read with Section 13(1)(d)(ii) of the Prevention of Corruption Act. Major part of investigation was done by officer below the rank of Assistant Commissioner, however, charge sheet was filed by the Assistant Commissioner.

4. Learned Trial Court took cognizance of the offence. Accused Arumoy Basu filed an application seeking discharge on the ground that the investigation was not conducted following the statutory mandate of Section 17 of the Prevention of Corruption Act which vitiates the investigation as well as the proceeding. Learned Trial Court however, by order dated 30th October 2006 was pleased to reject the application.

5. Mr Jayanta Narayan Chattejee, learned Counsel appearing for the petitioner, drawing the Court’s attention to the provision of Section 17 of the Prevention of Corruption Act submits that when statute mandates that no police officer below the rank of an Assistant Commissioner of Police shall investigate any offence under the Prevention of Corruption Act in the metropolitan areas of Calcutta, there cannot be any departure from such statutory mandate. The departure from the statutory mandate would result into utter illegality, and is bound to vitiate the entire proceeding. According to Mr. Chatterjee, learned Trial Court ought to have appreciated this mandate of law and ought to have discharged the accused person from the proceeding.

6. It is further adverted by Mr. Chatterjee that with a specific object legislature has enacted the provision of Section 17 of the Prevention of Corruption Act to provide a safeguard to the public servant and for that, considered it necessary to provide a substituted safeguard from harassment by requiring the investigation be conducted by a Police Officer of designated high rank and for this reason the said provision shall have to be considered as mandatory. Mr. Chatterjee in order to buttress his point relies upon the decision of Hon’ble Apex Court pronounced in the case of H. N. RISHBUD AND INDER SINGH VS. STATE OF DELHI reported in AIR 1955 SC 196. It