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

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
AppellantManmal Bhutoria
RespondentThe State of West Bengal and ors.
Cases ReferredMihir Kumar Sarkar v. The State of West Bengal
Excerpt:
- p.b. mukharji, c.j.1. this ad-peal raises an interesting point. it is also a case of first impression.2. the appellant manmal bhutoria along with major c. r. bhattacharjee of the indian army was charged with an offence under section 5 (2) of the prevention of corruption act, 1947. major bhattacharjee was invalidated from the military service with effect from 14th february, 1966. he is no longer a public servant. by a notification in the calcutta gazette 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, 1967.3......
Judgment:

P.B. Mukharji, C.J.

1. This AD-peal raises an interesting point. It is also a case of first impression.

2. The appellant Manmal Bhutoria along with Major C. R. Bhattacharjee of the Indian Army was charged with an offence under Section 5 (2) of the Prevention of Corruption Act, 1947. Major Bhattacharjee was invalidated from the military service with effect from 14th February, 1966. He is no longer a public servant. by a notification in the Calcutta Gazette 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.

3. The said report alleged that Ex-Major Bhattacharjee in collusion and conspiracy with the appellant Manmal Bhutoria, had accepted certain tenders from a fictitious nominee of the appellant for supply of certain articles to the military authorities at prices exceeding the prices quoted by other tenderers and there by causing loss to the military authorities. It was also 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 of Corruption Act. 1947.

4. The question raised in this appeal is a new one. The point is that the jurisdiction of the State Government to make the said allotment of the case of the appellant 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 and that the offence was not one cognizable any more by the Special Court and that the proceedings are bad as no sanction under; Section 6 of the Prevention of Corruption Act. 1947 had been obtained. The interpretations of the two statutes are involved. One is the Prevention of Corruption Act, 1947 and the other is the West Bengal Criminal Law Amendment (Special Courts} Act, 1949

5. A few dates will be material for the purposes of this appeal. On February 14, 1966 there was the order of invalidation of Major C. R. Bhattacharjee declaring the latter permanently unfit for any form of military service from the date of the letter. Thereafter on May 27, 1967, a notification was issued by the Government of West Bengal for distribution to the Calcutta 4th Additional Special Court constituted by notification No. 7432-J dated the 1st October, 1962 for the trial of the case. The State v. (1) Ex-Maior Chittaranjan Bhattacharjee and (2) Maijmal Bhutoria. The publication of the aforesaid Notification in the Calcutta Gazette took place on June 15, 1967, On the 29th June, 1967, there was a complaint lodged by Joginder Singh. Deputy. Superintendent of Police. CBI. Calcutta before the 4th Additional Special Court. Calcutta and the dates fixed for hearing by the Special Court were 23rd, 24th and 25th November. 1967.

6. The appellant Manmal Bhutoria moved this High Court under Article 226 of the Constitution on 7th November, 1967. Mr. Justice K. L. Roy who heard the application dismissed it and discharged the Rule, which was issued on 15th January, 1968. The matter now comes UP in appeal before us.

7. The point for consideration is whether the crucial date is the date of the commission of the offence or the date on which the Court takes cognizance. The Supreme Court in : 1958CriLJ254 (S. A. Venkataraman v. The State) AIR 1961 SC 1394 : 1961-2 Cri LJ 571 (Keshavlal v. State of Bombay) and : 1971CriLJ662 (C. R. Bansi v. State of Maharashtra) has expressed its opinion on this point whose effect falls to be considered in this appeal. In fact, in the case of : 1958CriLJ254 the Court decided that where the accused had ceased to be a public servant at the time the Court takes cognizance of the offences alleged to have been committed as Public servant. the provisions of Section 6 do not apply and the prosecution against him is not vitiated by the lack of a previous sanction by a competent authority. In : 1961CriLJ571 it was laid down that no previous sanction under Section 197 is necessary for a court to take cognizance of an offence committed by a Magistrate while acting or purporting to act in the discharge of his official duty if he had ceased to be a Magistrate at the time the complaint is made or police report is submitted to the Court i. e. at the time of taking cognizance of the offence committed. It quoted with approval the following observation in Venkataraman's case:

The words in Section 6 (1) of the Act are clear enough and they must be given effect to. There is nothing in the words used in Section 6 (1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the tune the Court was asked to take cognizance, although he had been such a person .at the time the offence was committed...

In the latest case of : 1971CriLJ662 . the same proposition was reiterated,

8. Prior to the Supreme Court Judgments, the Calcutta and Bombay High Courts, while dealing with the necessity of a sanction under Section 197 of the Criminal Procedure Code in a trial of a public servant who had ceased to be a public servant on the date the Court took cognizance of the offence, had held that no sanction would be necessary to prosecute such a person. The Supreme Court affirmed the correctness of the aforesaid views. In spite of these Supreme Court Judgments, the Legislature allowed Section 10 of the West Bengal Criminal Law Amendment Act to remain as it is.

9. In view of the law laid down by the Supreme Court it cannot be argued now that for prosecuting a public servant who has ceased to be so, sanction is needed. But for prosecuting a public servant in office, sanction is unquestionably needed. That affords the only salutary safeguard to a public servant. If, there-fore. Section 6 of the Prevention of Corruption Act is not applicable to a case where the public servant has ceased to be a public servant, is it right to contend that one part of the Prevention of Corruption Act and West Bengal Criminal Law Amendment (Special Courts) Act will not apply but the other part will apply to such a person even though Section 10 of the West Bengal Criminal Law Amendment (Special Courts) Act. 1'949 provides as follows:

The provisions of the Prevention of Corruption Act, 1947, shall apply to trials under this Act.

10. The only reasonable construction, therefore, will be that if a public servant has ceased to be a public servant he is neither entitled to the advantages of a public servant, nor can he be saddled with the liabilities attached to the office of a public servant. A person is either a public servant or he is not. It cannot be said that in certain respects he is a public servant for the offences under, the Prevention of Corruption Act and for certain other respects, he is not a Public servant. The scheduled offence in this case under the West Bengal Criminal Law Amendment (Special Courts) Act is 'An offence punishable under Section 5 of the prevention of Corruption Act'. A mere glance at that Section, indicates that the person must be in office and not out of office.

11. To resolve such an anomaly. Sections 10, 4(1) and 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act. 1949 must have to be construed in a manner which resolves this conflict and the only solution is to hold that these two Acts, namely, the Special Courts Act and the Prevention of Corruption Act do not apply to a public servant who had ceased to be. a public servant on the date the Court takes cognizance. This solution seems all the more proper because it seems to steer clear of Article 14 of the Constitution and as the Supreme Court pointed out in : 1952CriLJ805 that the advantages and the disadvantages must be alike, otherwise it will be discriminatory when it observed 'It is an essential principle under-lying the equal protection clause that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.'

12. In that event, discrimination will be patent. The normal Presumption of innocence is attached to every accused in a trial for an offence in an ordinary court of law. but if he is a public servant tried under the Special Courts Act in respect of an offence under the Prevention of Corruption Act. not only shall the trial be before a Special Judge, but also the presumption of innocence will not be available to him, and on the contrary. he will be presumed guilty unless he proves his innocence.

13. Section 2 of the Prevention of Corruption Act, 1947 says that for the purpose of that Act. 'public servant' means a public servant as defined in Section 21 of the Indian Penal Code. In a sense, Section 21 I. P. C. does not define public servant but enumerates the various categories of persons who are called public servants. All these various clauses, particularly like Seventh. Eighth. Ninth. Tenth, Eleventh and Twelfth of Section 21 of the Indian Penal Code prove beyond doubt that such a person must be in office and not out of office. Therefore a person who has ceased to be in office, that is, who has ceased to be a public servant, does not come within the ambit of the expression 'public servant' and consequently is not governed by the Prevention of Corruption Act and. as such, can-hot commit an offence under Section 5(2) of the said Act. Precisely that is the reason why in the order of distribution by the State Government the offence for which the two accused are to be tried has been mentioned as conspiracy under Section 120B of the Indian Penal Code read with an offence under Section 5 (2) of the Prevention of Corruption Act. The expression 'read with' means that what the object of the conspiracy is and that is to commit that particular offence. Conspiracy is an offence by itself. It is immaterial as to what exactly is the offence which the two persons agreed to commit provided the agreement is to commit an offence. Conspiracy is different from its object and is independent of it and whether the object succeeds or not is of no consequence. See Lennart v. Director of Enforcement : 1970CriLJ707 . But the appellant has never been nor was at any time a public servant within the meaning of Prevention of Corruption Act.

14. What are the facts in this case It will appear that though Major Bhattacharjee has ceased to be a public servant, the State Government by distributing the present case to the Special , Court violated the principle of equal protection clause by denying the advantages associated with the office of a Public servant but imposing on him the disadvantages and/or disabilities associated with the office of a public servant. Hence the Act is not discriminatory but the action, allotment and distribution of this case to the Special Court of the State Government is discriminatory. Therefore it is to be struck down and the order of the distribution quashed. See Kathi Ranning v. State of Saurashtra : 1952CriLJ805 .

15. The scheduled offences under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and the Prevention of Corruption Act. 1947 can be committed only by a public servant and the trial of such a person will be in accordance with the provisions thereof, but a public servant who has ceased to be a public servant, can neither be prosecuted in respect of any scheduled offence nor of an offence under Section 5 (2) of the Prevention of Corruption Act and as such, the trial of such a person cannot be in accordance with the provisions of those two statutes

16. It has been said that Section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act. 1949. is a hindrance or obstacle in taking this view. Section 4 provides 'Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in an yother law. the offences specified in the Schedule shall be triable by Special Courts only'. The word 'only' is contended to give exclusive jurisdiction to Special Courts. The Schedule to the West Bengal Criminal Law Amendment (Special Courts) Act. 1949 provides in item 7 : 'An offence punishable under Section 5 of the Prevention of Corruption Act. 1947'. Therefore, it is said that there is no way out of the West Bengal Criminal Law Amendment (Special Courts) Act. 1949 and the Prevention of Corruption Act. 1947.

17. In Venkataraman's case : 1958CriLJ254 there were only public servants involved and the Court, therefore, held that where the accused had ceased to be public servants when the Court took cognizance of the offences, the Provisions of Section 6 of the Prevention of Corruption Act did not apply and the prosecution against them is not vitiated. The Supreme Court was hearing an appeal against the conviction by a Special Judge at Delhi. But in Keshavlal's case : 1961CriLJ571 a public servant, was tried in an ordinary criminal Court and was convicted of the offence under Section 409 of the Indian Penal Code by the trial Magistrate. The trial by the ordinary court of law was held to be good in Keshavlal's case : 1961CriLJ571 .

18. I am satisfied that so far as the appellant Manmal Bhutoria is concerned, he never being 'a public servant' is clearly not triable by the Special Court under the Prevention of Corruption Act and West Bengal Criminal Law Amendment (Special Courts) Act. 1949 and suffers all the handicaps of being presumed to be guilty. There will also arise so far as the Appellant is concerned manifest illegality with regard to the joinder of charges under these two Acts which will lead to miscarriage of justice,

19. In these circumstances and for the above reasons, I would allow this appeal and will make the Rule absolute. There will be a Writ of Prohibition and Certiorari aqashing the Notice No. 5093 J/27th May 1967 and all proceedings subsequent thereto pending before the Judge of the 4th Additional Special Court, Calcutta. There will be an order in terms of prayers (a), (b) and (c) in the petition. There will be no order as to costs.

B.C. Mitra, J.

20. I agree but will like to give my own reasons for the conclusion to which I have arrived. This appeal is directed against a judgment and order dated September 15. 1969, discharging the appellant's Rule Nisi. The subject-matter of challenge in the Writ Petition was the validity of the proceeding in Case No. 4 of 1967 before the 4th Additional Special Court, Calcutta.

21. The appellant along with one C. R. Bhattacharyya. who was a Major in the Indian Army, were charged with an offence under Section 120-B Indian Penal Code, read with Section 5 (2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the 'Prevention Act'). by notification in the Gazette dated June 15, 1967, the first respondent (State Government), allotted the case to the 4th Additional Special Court, on a report submitted by the Deputy Superintendent of Police, Central Bureau of Investigation, dated May 27, 1967. In. this report it was alleged that ex-Major. Bhattacharyya. in collusion and conspiracy with the appellant, had accepted certain tenders from a fictitious nominee of the appellant for supply of various articles to the Army authorities, at prices exceeding the price quoted in other tenders and thereby causing loss to the Army authorities. It was further alleged that the two accused had committed the offence of conspiracy of criminal misconduct by a public servant, by dishonestly abusing the position as a public servant, for obtaining undue pecuniary advantage under Section 5 (2) of the Prevention Act.

22. The order of the first respondent, making the allotment of the case of the appellant to the Special Court, is challenged firstly on the ground that on the. date of the allotment ex-Major, Bhattacharyya. had ceased to be a public servant and therefore the case was not one cognizable by the Special Court. The second ground of challenge was that the proceedings were bad as no sanction under Section 6 of the Prevention Act was obtained.

23. The West Bengal Criminal Law Amendment (Special Courts) Act, 1949, (hereinafter referred to as the 'Special Courts Act') empowers the State Government to constitute Special Courts having jurisdiction throughout the whole of the State of West Bengal to try offences specified in Section 4(1) of the Special Courts Act. Section 4(1) of the Act is as follows:

4(1). Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences 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. 1898. be charged at the same trial.

24. The Schedule of the Act specifies the offences triable by the Special Courts and Clause 7 of the Schedule is as follows:

An offence punishable under Section 5 of the Prevention Act. 1947.

25. Section 5 of the Prevention Act deals with criminal misconduct by public servants.

26. Under Section 5 (1)(d) of the Act a public servant is said to commit an offence of criminal misconduct, if he by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person say valuable thing or pecuniary advantage.

27. Section 5 (2) of the Prevention Act provides for the punishment of a public servant who has been found guilty of criminal misconduct by prescribing that such public servant 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 fine.

28. There is a proviso to this subsection, which says that the Court may for any special reason impose a sentence of imprisonment of less than one year.

29. There is one other section of the Prevention Act which is material for the purpose of this appeal, namely. Section 4 of the Act which deals with presumption where a public servant accepts gratification other than legal remuneration.

30. Section 4 (1) of the Prevention Act says that where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or of an offence referred to in Clause (a) or (b) of Sub-section (1) of Section 5 of the Prevention Act punishable under Sub-section (2) of the same section it is proved that an accused has accepted or obtained or agreed to accept or attempted to obtain for himself or any other person any gratification from any person, it shall be presumed unless a contrary is proved that the gratification was accepted, obtained or attempted to be obtained as a motive or reward as mentioned in Section 161 of the Indian Penal Code or for a consideration which he knows to be inadeaqate. Sub-section (2) of Section-4 of the Prevention Act says that where in any trial of an offence punishable under Section 165-A of the Indian Penal Code, or under Section 5 (3)(ii) of the Prevention Act. it is proved that any gratification has been given or offered or attempted to be given by an accused, it shall be presumed that he gave or offered or attempted to give the gratification as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code or as the case may be without consideration or for a consideration which he knows to be inadequate.

31. To revert to the facts in this case once more it is to be noticed that ex-Major Bhattacharyya, was a public servant at the time when the offence was alleged to have been committed by him. But at the time when the case was distributed by the first respondent to the Special Court, he had ceased to he a public servant.

32. The appellant's case is that since at the point of time when the case was distributed to the Special Court, Bhattacharyya had ceased to be a public servant, the Special Courts Act had no application in respect of the offence alleged to have been committed by Bhattacharyya.

33. Mr. Nalin Banerjee, learned Advocate appearing for the appellant, contended that since sanction under Section 6 of the Prevention Act was not obtained, on the ground that Bhattacharyya had ceased to be a public servant, and for that reason sanction was not necessary, the distribution of the case to the Special Court and taking of cognisance by that Court was wholly without jurisdiction. He argued that under clause 7 of the Schedule to the Special Courts Act, an offence punishable under Section 5 of that Act became triable by the Special Courts only by reason of Section 4(1) of the Special Courts Act. But, he further argued, the offence contemplated is an offence committed by a public servant, and not an offence committed by a private citizen. If it was held, he further argued, that no sanction under Section 6 of the Prevention Act was necessary because Bhattacharyya had ceased to be a public servant, the alleged offence could not be tried by the Special Court at all as its jurisdiction under Section 5 (1) of the Prevention Act was to try a public servant, who had committed the offence of criminal misconduct. In other words, it was contended, that if sanction under Section 6 of the Prevention Act was not necessary because Bhattacharyya had ceased to be a public servant, the Special Courts would have no jurisdiction to proceed with the trial of the offence, as Section 5 (1) of the Prevention Act authorises the trial by the Special Court of an offence by a public servant. It was submitted that for this reason Section 4 of the Special Courts Act could not be invoked and the Special Court had no jurisdiction to entertain and try the case based on the complaint filed.

34. In support of the above contention reliance was placed by Mr. Banerjee on a decision of the Supreme Court : 1958CriLJ254 . In that case the requirement of a sanction under Section 6 of the Prevention Act came up for consideration. The a question had arisen because at the time when the Special Court was asked to take cognisance, the accused who was a Public servant at the time, when the offence was alleged to have been committed, had ceased to be public servant. Dealing with the question of sanction under Section 6 of the Prevention Act, it. was held that that section required two conditions to be fulfilled, namely firstly, that the offence must be committed by a public servant, and secondly, that the person must be employed in connection with the affairs of the Union or State, and should not be removable save with the sanction of the Central or State Government. Both these conditions, it was held, must be present to prevent a court from taking cognisance of an offence without the previous sanction of the appropriate Government, and if either of these conditions was lacking, the essential requirements of the section would be wanting and the provision of the section would not stand in the way of a court taking cognisance without a previous sanction. It was further held that if at the time the Court was asked to take cognisance of an offence, the accused had ceased to be public servant, one of the two requirements of Section 6 of the Prevention Act would be lacking and a previous sanction would be unnecessary. The following observations of the Supreme Court at page 111 of the report were referred upon by the learned Advocate on behalf of the appellant:

There is nothing in the words used in Section 6 (1) to even remotely suggest that previous sanction was necessary before a court could take cognisance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognisance, although he had been such a person at the time the offence was committed.

35. The next case relied on by Mr. Banerjee was also a decision of the Supreme Court. : 1961CriLJ571 in that case again it was held that no previous sanction under Section 197 was necessary for a court to take cognisance of an offence committed by a Magistrate while acting in the discharge of his official duty, if he had ceased to be a Magistrate at the time the complaint was made or police report was submitted to the court i. e. at the time of taking cognisance of the offence committed.

36. Before proceeding any further I should note that while in the case of : 1958CriLJ254 (Supra), the trial was by a Special Court and the observations of the Supreme Court were made in that context, in the case of : 1961CriLJ571 (supra) the trial was by the ordinary criminal court. It was contended by Mr. Banerjee, and we think rightly, that in the later case the trial by the ordinary criminal court; of a public servant was approved by the Supreme Court and it was not held that because the accused was a public servant at the time when the offence was committed, the trial could be held before the Special Court only.

37. The next case relied on by Mr. Banerjee was a Full Bench decision of this Court. Ajit Kumar Palit v. State 65 Cal WN 977 : 1961-2 Cri LJ 617 (FB). The reference to the Full Court in that case was of two Questions, namely (1) does the Special Court to whom a case has been allotted need a petition of complaint for taking cognisance of the case or does it take cognisance when on receiving a Government notification and the record of the case from the Magistrate's court he applies his mind to the effect of the case and (2) was this point rightly decided in the unreported decisions in several criminal cases? The first question was answered by holding that the Special Court did not need a petition of complaint for taking cognisance of the case and could take cognisance on receiving the Government order of distribution and on the record of the case from the Magistrate's court by applying his mind to the facts of the case for the purpose of trying the offence. With regard to the second question it was held that the criminal appeals and revisions were wrongly decided. I do not see the relevance of this decision to the question which have been raised in this appeal and in my view the Full Bench decision does not help the appellant in either of the two contentions raised on his behalf in this appeal.

38. The next case relied on by Mr. Banerjee was a decision of the Judicial Committee Gokulchand Dwarkadas Morarka v. The Kins AIR 1948 PC 82 : 49 Cri LJ 261. Reliance was placed on this decision for the proposition that the giving of sanction conferred jurisdiction on the Court to try the case and the Judge or the Magistrate having jurisdiction must try the case in the ordinary way under the Code of Criminal Procedure. This decision is again of no assistance to the appellant in this case inasmuch as there is no dispute that where the statute requires a sanction, in the absence of such a sanction, the Court will have no jurisdiction to try the offence. But. if the statute does not require a sanction in the case of a public servant, who has ceased to be such, it cannot be said that the Court lacks jurisdiction for want of sanction.

39. Mr. P. K. Sengupta, appearing for the respondents, relied upon the decision of the Supreme Court in : 1958CriLJ254 (supra) and contended, firstly, that no sanction was necessary for trial of Bhattacharjee under Section 6 of the Prevention Act and also that the accused could be tried only by the Special Court and not by the ordinary Courts. In support of this contention he relied on Section 4(1) of the Special Courts Act and contended that since the accused were charged with an offence under Section 5 of the Prevention Act, they could be tried only by the Special Courts and not by the ordinary criminal Courts. He submitted that the accused Bhattacharjee was charged with the offence of criminal misconduct under Section 5 (2) of the Act and therefore the Special Court alone had jurisdiction to try the accused and the criminal Court had no such jurisdiction. I shall revert to this question later in this judgment. In support of his contention Mr. Sengupta relied on a number of decisions to which I shall now refer.

40. He first of all relied on a decision of the Supreme Court in : 1971CriLJ662 . In that case again it was held that a sanction under Section 6 of the Prevention Act was not necessary where the public servant had ceased to be a public servant.

41. The next case relied upon by Mr. Senpgupta. was a decision of the Judicial Committee, King Emperor v. Benoarilal Sarma (1945) 72 Ind APP 47 : 46 Cri LJ 589 (PC). Reliance was placed on this decision to repel a contention raised by Mr. Banerjee that since there was scope for discrimination in the matter of allotment of cases for trial by the Special Court or by the ordinary Courts and since no guidelines had been provided in the Special Courts Act, with regard to cases which are to be allotted to the Special Court, the provisions in the Special Courts Act regarding trial by Special Court only of certain offences was ultra vires Article 14 of the Constitution. As this point has not been taken in the petition itself and was not argued before the Trial Court, we are not in-clined to entertain this submission on behalf of the appellant at this stage. For this reason we need not deal with the decision of the Judicial Committee mentioned above.

42. On the same Question, namely. the vires of the Special Courts Act. reliance was placed by Mr. Senaupta on a decision of the Supreme Court Kanssahari Haider v. State of West Bengal : [1960]2SCR646 . For the reasons mentioned above I do not think we need go into the question of vires and for that reason it is not necessary for me to deal with this decision also. For the same reason I refrain from dealing with another decision of the Supreme Court on which Mr. Sengupta relied, namely Hans Muller of Nurenburs v. Supdt. Presidency Jail. Calcutta : 1955CriLJ876 .

43. The last case on which Mr. Sengupta had relied was a Bench decision of this Court, Mihir Kumar Sarkar v. The State of West Bengal : AIR1972Cal8 . This case was relied on also on the question namely vires of the Special .Courts Act and I need not. for the reasons mentioned earlier, deal with this decision also.

44. In my view, Mr. Senaupta's contention as to requirement of sanction under Section 6 of the Prevention Act, in a case such as this, where the public servant had ceased to be a public servant at the time when cognisance of the case was taken by the Court, must be upheld. This question has been set at rest by the two decisions of the' Supreme Court : 1958CriLJ254 (Supra) and : 1961CriLJ571 (Supra). But the decision in this appeal cannot rest merely on the requirement of sanction under Section 6 of the Prevention Act The other question namely, jurisdiction of the Special Court to entertain and try the complaint against the accused, would still remain outstanding.

45. Keeping in view the decision of the Supreme Court in AIR 1958 SC 10? : 1958 Cri LJ 254 (Supra), the contention of Mr. Banerjee on , the second point namely, that Special Court had no jurisdiction and Section 4(1) of the Special Courts Act cannot be invoked, must be rejected. It is to be remembered that in S. A. Venkataraman's case the trial was by the Special Court and although it was held that sanction under Section 6 of the Prevention Act was not necessary, the trial by the Special Court of the accused in that case was upheld.

46. It seems to me however that the decision in this appeal must rest not on the points urged on behalf of the parties, but on a consideration of the provisions in the two statutes. Under Section 4(1) of the Special Courts Act the offences specified in the Schedule are triable by Special Courts only. Clause 7 of the Schedule, as I have noticed earlier, specifies an offence punishable under Section 5 of the Prevention of Corruption Act, 1947. Therefore, it is necessary to turn to Section 5 of the, Prevention Act, The opening words of Section 5 (1) of the Prevention Act are 'a public servant is said to commit the offence of criminal misconduct' and thereafter various clauses have been set out defining the nature of criminal misconduct.

47. The charge in this case is a charge under Section 5 (2) of the Prevention Act, which speaks of a public servant who commits criminal misconduct. Question is, can Bhattacharyya be said to be a public servant, having regard to the fact that he has ceased to be a public servant? Under Section 2 of the Prevention Act, a public servant means a public servant as defined in Section 21 of the Indian Penal Code. It is therefore necessary to turn to Section 21 of the Penal Code to find out who is a Public servant. On a careful consideration of the various clauses under Section 21 of the Penal Code, I have no doubt that a person who was previously a public servant, but who has ceased to be such, does not come within the, ambit of that Section. According to the definition of 'public servant' under Section 21' of the Penal Code, a person can be a public servant if at the relevant time he is discharging the duties of any of the officers' mentioned in the various clauses under Section 21 of the Penal Code.

48. Bhattacharjee was invalidated from the Army by an order dated February 14, 1966. by a Gazette Notification dated May 27, 1967. the case was distributed by the State Government to the 4th Additional Special Court. The complaint before the 4th Additional Special Court was filed by the Deputy Superintendent of Police, Central Bureau of Investigation, after the case was allotted to that Court, It appears to me therefore that on the date of distribution of the case to the Special Court by the State Government and also on the date of the filing of the complaint before the Special Court for taking cognizance of the case. Bhattacharjee had ceased to be a public servant. Section 4(1) of the Special Courts Act read with Clause 7 of the Schedule thereto makes the offence of criminal misconduct as defined under Section 5 (1) of the Prevention Act triable by the Special Courts only. The charge in this case is a charge under Section 120B of the Penal Code read with Section 5 (2) and Section 5 (1)(d) of the Prevention Act. Both Section 5 (1) and Section 5 (2) deal with public servants only. There is no provision in this Act whereby a person who was previously 'a Public servant, but has ceased to be a public servant at the relevant time, can be charged with an offence under Section 5 (1)(d) or Section 3 (2) of the Prevention Act. In my view, a Person cannot be charged with a criminal offence unless there is clear statutory Provision enabling the authority concerned to make such a charge. It cannot, in my view be said that although the statutory provisions contemplate a public servant against whom a charge of criminal misconduct may be brought, a person who has ceased to be a public servant at the time when the charge is brought, should be deemed to be a public servant even though he has ceased to be such. In order to hold that Bhattacharjee is a person against whom a charge under Section 5 (1)(d) and Section 5 (2) can be, validly and lawfully brought, there must be clear and specific sanction and mandate of the statute to the effect that even though a person had ceased to be a public servant, he should be deemed to be a public servant for the purposes of Section 5 of the Prevention Act. and in the absence of any such provision, in my view. a charge under Section 5 (1)(d) and Section 5 (2) cannot be lawfully brought against Bhattacharjee.

49. For the reasons mentioned above. 1 concur in the order made by my Lord.


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