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IN THE HIGH COURT AT CALCUTTA
RAI CHATTOPADHYAY, J.
Susanta Ghosh – Appellant
Versus
State of West Bengal – Respondents
CRR 41 of 2016
Decided on : 30-01-2024.
Discharge - Prevention of Corruption Act - Sections 13(1)(e) and 13(2) - Summary of Acts and Sections: The court discussed the application of Section 239 of the Code of Criminal Procedure, 1973, and the legal provisions under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988, in the context of the petitioner's prayer for discharge. The court emphasized the requirement for a fair investigation and the need for adequate evidence to establish the allegations of possessing disproportionate assets. The judgment highlighted the legal principles governing the framing of charges and the Magistrate's duty to actively consider the materials before him. The court also underscored the inherent power of the High Court under Section 482 of the Cr.P.C, 1973, to prevent abuse of the court's process and secure the ends of justice.
Fact of the Case:
The petitioner sought discharge from a case under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988, based on allegations of possessing disproportionate assets. The trial Court rejected the petitioner's prayer, prompting the petitioner to challenge the order in the High Court.
Finding of the Court:
The court found that the investigation lacked adequate evidence regarding the petitioner's income, particularly his daily allowance as a member of the State Legislative Assembly. The court emphasized the necessity for a fair investigation and active consideration of materials before framing charges. It concluded that the allegations against the petitioner were unsubstantiated, and the trial Court's rejection of the petitioner's prayer for discharge was based on a limited technical approach.
Issues: The key issues revolved around the sufficiency of evidence, the duty of the Magistrate to actively consider materials before framing charges, and the requirement for a fair investigation to prevent abuse of the court's process.
Ratio Decidendi: The court's decision was based on the principle that the Magistrate must actively consider the materials before him to determine the adequacy of evidence and the presumption of guilt. The judgment emphasized the need for a fair investigation and the duty to prevent abuse of the court's process.
Final Decision: The High Court set aside the trial Court's order, discharged the petitioner from the case, and quashed the FIR and subsequent orders.
JUDGMENT :
Rai Chattopadhyay, J.
1. An order of the Special Judge, 1st Court at Alipur, District South 24 Parganas, dated 24.11.2015 is under challenge in this revision. The order as above was passed in Special Case No. 03 of 2013. The trial Court by dint of the said impugned order dated 24.11.2015 has disallowed and rejected the prayer of the present petitioner for discharge, as was filed by him before the Court under Section 239 of the Code of Criminal Procedure, 1973.
2. The FIR is dated 19.08.2011. The suo moto FIR as above was lodged by the Deputy Superintendent of Police, CID, West Bengal, alleging disproportionate asset of the present petitioner. Accordingly, a case was started being Alipur Police Station Case No. 259/2019 dated 19.08.2011 under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988.
3. The complainant in the said FIR has stated inter alia that the residential premises of the present petitioner being flat no. 46, at 247/1, D.N. Khan Road, Minto Park Govt. Housing Estate, Kolkata-700027, was searched in connection with another police case being Anandapur Police Station Case No. 36 of 2011, dated 06.06.2011 under Sections 147/148/149/448/326/307/506/201/120B of the Indian Penal Code and Sections 25 and 27 of the Arms Act, 1959, against the present petitioner. After special raid/search at the aforestated premises the police seized two keys of godrej almirah and its lockers kept within that premises and also a cash amount of Rs. 5,15,500/-. The complainant has further stated that the accused, i.e. the present petitioner since has been an elected member of the West Bengal Legislative Assembly, his self declaration on affidavit as was furnished before the Chief Electoral Officer, West Bengal, as a contesting candidate, was obtained from the official website. Allegedly, in the said affidavit dated 14.04.2011 on a non-judicial stamp paper and solemnly affirmed by the present petitioner, incorrect declaration was found to have been made. According to the complainant, as per the petitioner’s affidavit before the Chief Electoral Officer as mentioned above, the total bank balance and cash in hand of the petitioner and his wife would be Rs. 1,25,992/-. According to the complainant there was no plausible explanation or supporting material for the present petitioner to hold and possess a cash amount more than what has been declared by him before the Chief Electoral Officer, as mentioned above. The complainant has noted in the FIR that the assets as declared by the present petitioner in his affidavit before the Chief Electoral Officer, West Bengal, in the month of April, 2011, would have no parity with the assets found in his actual possession. Hence, against the present petitioner, who was at the relevant point of time of lodging of this FIR (that is, dated 19.08.2011), in custody with the CID, West Bengal, in connection with the other case as mentioned above, and was member of the Legislative Assembly of the West Bengal, the present case was lodged, alleging offence punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988.
4. Pursuant to the said FIR dated 19.08.2011 the investigation was done and finally after conclusion of investigation the charge sheet dated 11.12.2013 was submitted. The present petitioner was named as an accused person in the said charge sheet and allegations of offences under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, was made against him.
5. However, the petitioner was of the view that no tangible evidence against him could be found in this case and thus was prompted to file his prayer under Section 239 of the Code of Criminal Procedure, 1973, before the trial Court. The petitioner, by filing his prayer as above sought for an order of discharge of himself from the case.
6. The impugned order dated 24.11.2015 is the outcome of hearing of the parties as regards the petitioner’s prayer under Section 239 of the Code of C
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