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Manmal Bhutoria Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberMatter No. 669 of 1967
Judge
Reported inAIR1970Cal253,1974CriLJ92,74CWN465
ActsPrevention of Corruption Act, 1947 - Section 5(2); ;Bengal Criminal Law Amendment (Special Courts) Act, 1949 - Section 4(1)
AppellantManmal Bhutoria
RespondentState of West Bengal and ors.
Respondent AdvocateBose, Adv.
Excerpt:
- .....by these acts the two accused had committed the offence of conspiracy of criminal misconduct by a public servant by dishonestly abusing his position as a public servant for obtaining undue pecuniary advantage under section 5(2) of the prevention act. in this petition the jurisdiction of the state government to make the aforesaid allotment of the case of the petitioner to the special court is challenged inter alia on the ground that as on the date of the allotment sri bhattacharjee had ceased to be a public servant the offence was not one cognizable by the special courts and that the proceedings are bad as no sanction under section 6 of the prevention act was obtained. before i proceed to consider the submissions made by learned counsel in this case it would be necessary to set out.....
Judgment:
ORDER

K.L. Roy, J.

1. This application raises an interesting point which, I am informed, is of the first impression. The petitioner, one Manmal Bhutoria, along with one C. E. Bhattacharjee, who was a Major in the Indian Army and who was invalidated from the Military Service with effect from the 14th February, 1966, were charged with an offence under Section 5(2) of the Prevention of Corruption Act 1947, (hereinafter referred to as the Prevention Act) and by a notification in the Calcutta Gazettes dated the 15th June, 1967 the State Government allotted the case of the State v. (1) Ex-major Chittaranjan Bhattacharjee and (2) Manmal Bhutoria to the Calcutta Fourth Additional Special Court on a report submitted by the Deputy Superintendent of Police Central Bureau of Investigation, Special Division, Calcutta dated the 27th May, 1967. In the said report it was alleged that ex-Major Bhattacharjee, in collusion and conspiracy with the petitioner Manmal Bhutoria, had accepted certain tenders from a fictitious nominee of the petitioner for supply of certain articles to the military authorities at prices exceeding the prices quoted by other tenders and there-by causing loss to the military authorities. It was further alleged that by these acts the two accused had committed the offence of conspiracy of criminal misconduct by a public servant by dishonestly abusing his position as a public servant for obtaining undue pecuniary advantage under Section 5(2) of the Prevention Act. In this petition the jurisdiction of the State Government to make the aforesaid allotment of the case of the petitioner to the Special Court is challenged inter alia on the ground that as on the date of the allotment Sri Bhattacharjee had ceased to be a public servant the offence was not one cognizable by the Special Courts and that the proceedings are bad as no sanction under Section 6 of the Prevention Act Was obtained. Before I proceed to consider the submissions made by learned counsel in this case it would be necessary to set out certain material provisions of the two Statutes which need consideration in this case. Under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, (hereinafter referred to as the Special Courts Act) the State Government was authorised to constitute Special Courts having jurisdiction throughout the whole of the State of West Bengal to try certain offences specified in the Act. Section 4(1) of the above Act is the material section and is as follows:--

'4(1). Notwithstanding anything contained in the Code of Criminal Procedure 1898 or in any other law, the offence specified in the Schedule shall be triable by Special Courts only;

Provided that when trying any case, a Special Court may also try any offence other than an offence specified in the Schedule, with which the accused may under the Code of Criminal Procedure be charged at the same trial.'

The schedule above referred to specified the offences triable by such Special Courts and Clause 7 thereof includes an offence punishable under Section 5 of the Prevention Act, 1947.

2. The material provisions of the Prevention Act are: (1) Section 4 which raises the presumption that where a public servant accepts gratification other than legal remuneration he is guilty of a corrupt practice; (2) Section 5 which defines criminal misconduct in discharge of official duty. Under Sub-section (1) of the latter Section a public servant is said to commit the offence of criminal misconduct in the discharge of his duty--

(a) ...

(b) ...

(c) ...

(d) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.

Sub-section (2) of that Section provides that any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to a fine while Section 6 provides that no Court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code or under Sub-section (2) of Section 5 of that Act, alleged to have been committed by a public servant, except with the previous sanction of either the Central Government or the State Government or of the authority competent to remove such public servant from his office. Mr. Banerjee submitted that certain special offences have been created by the Prevention Act in the case of public servants acting in the course of their duty as such public servants which have been made triable by Special Courts apart from the ordinary Courts and an accused in such a case Is liable to a much heavier punishment on conviction than by the ordinary Criminal Courts of the land. It must, therefore, follow that not only must the offence be committed while the accused was a public officer but that he would also continue to be such a public officer when the proceedings for committal are started by the concerned Government allotting the matter to a Court for trial. If at the time of such allotment it is found that the accused has ceased to be a public officer then the ordinary criminal procedure should apply and the case would be triable by the ordinary Criminal Courts of the country. So far as the second ground, viz., the want of sanction is concerned, both the learned counsel agree that the two decisions of the Supreme Court in Venkatarama's case, : 1958CriLJ254 and Keshablal Mohanlal Shah's case, : 1961CriLJ571 have now finally decided that no such previous sanction is necessary for a Court to take cognizance of an offence committed by a public servant while acting or purporting to act in the discharge of his official duty if he had ceased to be an officer at the time the complaint is made or the Police report is submitted to the Court, that is, at the time of taking cognizance of the offence committed. Mr. Banerjee submitted that if the correct position is that no sanction to prosecute is necessary in a case where the public officer has ceased to be a public officer at the time of the prosecution, the jurisdiction of the Special Courts to try such a public officer must cease after he had also ceased to be a public officer. In my opinion, there is a great deal of substance in this contention and unless I am compelled to hold to the contrary such contention should prevail. But, as pointed out by Mr. Bose, the learned counsel for the respondents, the matter is concluded so far as the State of West Bengal is concerned by the language of Section 4(1) of the Special Courts Act which provides that notwithstanding anything contained in any other law the offences specified in the Schedule shall be tried by Special Courts only. The words are clear and unambiguous. If an offence is an offence as defined by any of the clauses in the Schedule to the Special Courts Act, it can only be tried by a Special Court set up under that Act. Mr. Bose referred to the observations of the Supreme Court in Venkatarama's case, : 1958CriLJ254 for his contention that an offence under Section 5(2) of the Prevention Act continues to be an offence under that section even though the accused has ceased to be a public officer. Referring to the Prevention Act the Supreme Court observed as follows:--

'The object of the Act was to suppress bribery and corruption. Its provisions are severe. Certain presumptions of guilt of offences committed under Sections 161, 165A of the Indian Penal Code were enjoined by Section 4 of the Act unless the contrary was proved by the accused. Section 5 of the Act created an offence of criminal misconduct on the part of public servant, an offence unknown to any of the provisions of the Indian Penal Code dealing with bribery and corruption. Sub-section (2) made such an offence punishable with imprisonment which may extend to a term of seven years or with fine or with both...... ...... ...... ...... ......These provisions of the Act indicate that it was the intention of the legislature to treat more severely than heretobefore corruption on the part of the public servant and not to condone it in any manner whatsoever. If Section 6 had not found a place in the Act it is clear that cognizance of an offence under Sections 161, 164 or Section 165 of the Indian Penal Code or under Section 5(2) of the Act committed by a public servant would be taken by a Court even if he had ceased to be a public servant. The mere fact that he had ceased to be a public servant after the commission of the offence would not absolve him from his crime.'

3. I have to accept the contention of Mr. Bose. There can be no doubt that an offence prescribed under Clause 7 of the Schedule to the Special Courts Act, which is also defined as an offence by Section 5(2) of the Prevention Act, is an offence triable under the criminal law no matter whether the accused has ceased to be a public servant or not. If that is the position then even if Sri Bhattacharjee in the present case had ceased to be a public officer when the impugned notification was made by the State Government he was still an accused in respect of an offence under Section 5(2) of the Prevention Act and as such under the clear words of Section 4(1) of the Special Courts Act the only Court competent to try him would be the Special Court set up under that Act. In this view this application must be dismissed. The Rule is discharged and all interim orders are vacated. There will be no order as to costs. On the oral application of the learned counsel for the petitioner the operation of this order is stayed for three weeks.


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