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Norode Baran Mukherjee Vs. the State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1976CriLJ370
AppellantNorode Baran Mukherjee
RespondentThe State of West Bengal
Cases ReferredAjit Kumar v. The State of West Bengal.
Excerpt:
- .....him in the special court. mr. banerjee submitted that this has caused prejudice to him. it is not known why and now 11 cases were started against the accused although there is charge of common conspiracy in all of them. we need not dilate any further on this point inasmuch as we are quashing the cases before us in the light of our above findings.4. coming to the last point as was urged by the learned advocate general that since there will be a considerable impact of our judgment in the special court cases we should make a reference to the full bench for consideration of the points which undoubtedly are of importance. our attention was not drawn to any judgment either of the division bench or of the single bench which has dissented from the view which we have taken. that being so, we.....
Judgment:

A.N. Banerjee, J.

1. In these six Revision Cases the only point barring another one taken in Revision Cases Nos. 231-233 of 1974, was whether Special Court constituted under the West Bengal Criminal Law Amendment (Special Courts) Act 1949 is required after taking cognizance of an offence as specified to the Schedule to the said Act which will hereafter be referred to as 'the Act' in the manner laid down in Clause (a) or (b) of Sub-section (1) of Section 190 of the Code of Criminal Procedure 1898 to examine the complainant under Section 200 of the aforesaid Code before it issues any process against the accused, The Rules arise out of six cases pending in different Special Courts. In each of such cases a petition of complaint was filed either by the investigating Officers concerned or by the Public Prosecutor of the District. In Crl. Rev. No. 781/70, a report was filed by the Investigating Officer before the 4th Additional Special Court, Calcutta, but it was taken as a petition of complaint filed by the said officer. In view of the above mentioned only point of law which was canvassed before us, we do not think that any useful purpose will be served by delineating the facts of each of the cases.

2. Mr. N. C. Banerjee, learned senior advocate appearing with Mr. A. K. Mukherjee, advocate in Criminal Revisions Nos. 231-233 of 1974 and Crl. Rev. No. 596/70 and with Mr. T. K. Mitra in Crl. Rev. No. 455/70, contended before us that the respective proceedings pending before- the respective Special Courts should be quashed inasmuch as the mandatory provisions of Section 200 of the Code of Criminal Procedure 1898 were not complied with. He drew our attention to the fact that in the first three cases, the petition of complaint was filed by the Public Prosecutor of the District. Mr. Banerjee submitted that when a Public Prosecutor files such a petition of complaint he does so not in discharge of his official duty and that as such he cannot come within the exception as mentioned in the proviso (aa) to Section 200 of the Code of Criminal Procedure and accordingly he has to be examined before any process against an accused person can be issued. Mr. Banerjee, further submitted that the same principle will also apply in the case where an Investigating Officer files a petition of complaint instead of submitting report under Section 173 of the Code. In this connection he drew our attention to the three unreported Division Bench Decisions of this Court in Sudhir Chandra Bhattacharyya v. The State (Crl. Appeals Nos. 23-26 of 1961) decided on the 29th March 1967 (Cal) by P. B. Mukharfi and Bagchi JJ. and Shyama Charan Das Gupta v. The State (Crl. Appl. 436/67) decided on the 11th April 1975 (Cal) and Bejoy Kumar Bose v. State (Crl. Rev. Nos. 304, 318 and 371/75) decided on 28-5-75 by N. C. Taluk-dar and A. N. Banerjee, JJ. Undoubtedly the point raised by Mr. Banerjee is covered by the aforesaid three unreported Division Bench Decisions of this Court in so far as the question of examination of the Investigating Officer who files a petition of complaint be fore the Special Court under Section 200 of the Code is concerned. In our view the same principle will also apply in the case of a Public Prosecutor filing petition of complaint in the Special Court inasmuch as he does not do so in discharge of his official duty. This Bench decided the two lats cases upon which reliance was placed by Mr. Banerjee, In none of the cases before us the complainant was examined. We would have thought of disposing of the present Rules in the light of the principle of law as enunciated by us without an elaborate discussion had we not been requested by the learned Advocate General appearing with Mr. P.C. Ghosh and Mr. D. P. Choudhary in the first three cases to reconsider our view or to refer the matter in dispute to Full Bench. The learned Advocate General contended .that the Act was a complete Code by itself and that it did not provide for any examination of the complainant under Section 200 of the Code. It was his argument that Section 200 of the Code had no application in a proceeding before the Special Court and the said Court was authorised under the provision of the Act to issue process on receipt of the Government order of allotment and on a perusal of either the petition of complaint or a police report. In this connection he drew our attention to a Full Bench Decision of this Court reported in : AIR1961Cal560 and a Supreme Court Case reported in : AIR1963SC765 . In the case of Ajit Kumar v. The State of West Bengal reported in : AIR1963SC765 the Court was concerned with the question as to how a Special Court takes cognizance of an offence. The Supreme Court affirmed the aforesaid Full Bench Decision of this Court. In fact the aforesaid case in the Supreme Court arose out of the same case as decided by the Full Bench of this Court. It was after the disposal of the matter by the Full Bench, an appeal was taken to the Supreme Court by special leave in which the correctness of the answer of the Full Bench on the points raised before it was contested. It should be noticed that both the decisions deal with Section 5 (1) of the Act as it stood prior to the amendment of the said sub-section by the amending Act of 1960. Prior to the amendment, Section 5 (1) of the Act ran as follows:

A Special Court may take cognizance of offences without the accused being committed to his court for trial and in trying, accused persons shall follow the procedure prescribed in the Code of Criminal Procedure 1898 for the trial of warrant cases by the Magistrate instituted otherwise than on a police report.

After amendment it is as follows:

A Special Court may take cognizance of offences in the manner laid down in Clauses (a) and (b) of Sub-section (1) of Section 190 of the Code of Criminal Procedure 1898 without the accused being committed to his Court for trial and in trying accused person shall follow the procedure prescribed in the Coda of Criminal Procedure 1898 for the trial of warrant cases by the Magistrate (instituted otherwise than on a police report).

In construing the aforesaid section as it stood prior to the amendment the Supreme Court laid down after observing that Section 190 (1) of the Code did not apply that Special Court was vested with the jurisdiction to try the cases as soon as it received the orders of allotment of cases passed by the State Government and other papers and documents forwarded to it by the Government. With regard to the point regarding the effect of amendment by the Act of 1960 on the question of jurisdiction of Special Court to deal with the case of the appellant, the Supreme Court held that it would not, invalidate any proceedings validly taken on a proper construction of law as it then stood. The Full Bench Decision of this Court is more or less on the same line. Neither in the aforesaid decision of the Supreme Court nor in the Full Bench Decision of our Court, we will find any answer to the question as to whether in a case where a petition of complaint is filed either by In-vestingating Officer or by the Public Prosecutor, he is required to be examined under Section 200 of the Code. The learned Advocate General drew our attention to the following observations made by the Supreme Court in paragraph 19 of the report concerned in the case of Ajit Kumar v. The State of West Bengal. (1963-1 Cri LJ 797 (Cal). 'Since a Special Judge receives the order of allotment of the case passed by the State Governemnt, it becomes vested with the jurisdiction to try the case and when it receives the record from the Government it can apply its mind and issue notices to accused and thus start the trial of the proceedings assigned to it by the State Government,' On the basis of such observations the learned Advocate General contended that the application of Section 200 of the Code was rifled out. We are unable to agree with such contention. First, because the application of Section 200 of the Code was neither an issue raised either before the Full Bench or before the Supreme Court nor answered, secondly, because of the amendment of Section 5 (l) of the Act. The amendment specifically lays down: 'That Special Court may take cognizance of offences in the manner laid down in Clauses (a) and (b) of Sub-section (1) of Section 190 of the Code, without the accused being committed to his court for trial ....' Now, therefore, specific provisions have been made regarding the manner in which cognizance is to be taken by the Special Court. It was contended that the words 'in the manner' as occurring in Sub-section (1) of Section 5 of the Act indicated that the cognizance was to be taken not under Section 190 (1) (a) or (b) of the Code but in the manner as laid down in Clauses (a) and (b) of Sub-section (1) of Sec-1 tion 190 of the Code. We find it difficult to appreciate the distinction as is being sought) to be made between the words 'in the manner' and 'under'. Section 190 of the Code deals with the cognizance of offences by Magistrate. The Judge of Special Court is in fact neither a Magistrate nor a Sessions Judge, Accordingly in order to make Section 190 (1) (a) and (b) of the Code applicable to a Special Judge it was necessary to say in section 5 (1) of the Act that he would take cognizance in the manner as laid down in the aforesaid clauses of Section 190 of the Code, We are also of the view that after the amendment of Section 5 (1) of the Act, the position has changed. It can no longer be urged that Special Court can take cognizance in a manner other than what has been laid down in Section 190 (1) (a) or (b) of the Code, It is to be remembered that there is an intermediate stage between taking cognizance of an offence and the commencement of trial. It is true that the Special Court under Sub-section (2) of Section 5 of the Act shall be deemed to be a Court of Session trying case without jury but there is a lot of difference between a Special Court and a Sessions Court. Under Section 193 of the Code, a Court of Session cannot take cognizance of any offence, as a court of original jurisdiction unless the accused has been committed to it by a Magistrate duly empowered in this behalf. A Magistrate so empowered holds an enquiry under chapter XVIII of the Code and at the end of enquiry passes an order of commitment to the Court of Session after framing charge or charges against an accused. The committing court also forwards the accused either in custody or on bail to the Court of Session. But there is no such procedure prescribed for the Special Court, Under Sub-section (2) of Section 5, it is deemed to be a court of session trying cases without jury, and under Sub-sectio'on (1) of Section 5, it takes cognizance in the manner laid down in Clauses (a) and (h) of Sub-section (1) of Section 190 of the Code without the accused being committed to it for trial. In trying an accused, it follows the procedure prescribed by the Code for the trial of warrant cases by the Magistrate instituted otherwise than on a police report. It therefore, cornes to this that it is a court of original jurisdiction which is deemed to be a Court of session trying cases without any order of commitment, without framing of any charge and without any accused being forwarded to it by any Magistrate. This be-long the position, question arises as to how the special Court issues process against an offender after taking cognizance of an offence under Section 190 (1) (a) or (b). If it takes cognizance under Clause (K) i. e. on a police report of Section 1P0 (1) of the Code no difficulty will possibly arise. But after it takes cognizance under Clause (a) of Section 190 (1) of the Code, it has to pass thought the provisions of Sections 200 and 204 of the Code before it can issue process against an accused. In this connection it would be pertinent for us to point out that Sub-section (2) f Section 5 of the Act lays down: 'Save as provided in Sub-section (1) or Sub-section (1) (a), the provisions of the Code of Criminal Procedure 1898 shall, so far they are not inconsistent with this Act, apply to the proceedings of a Special Court....'

3. The learned Advocate General Contended that had the said sub-section stopped with the above quoted portion it could have been argued that the entire provisions of the Code would apply subject to the aforesaid limitations only and that as such it might have included Sections 200 and 204 of the Code. But he continued that the second part of Sub-section (2) made it clear that such provisions of the Code which were applicable to the Court of Session only would be applied in a proceeding before the Special Court. Accordingly, he contended that since sections 200 and 204 of the Code related to Magistrates only those would have nothing to do with the Special Court. We have already pointed out how the Special Court differs from a Court of Session. It is also to be seen that a trial before the Special Court will be according to the procedure prescribed by the Code for the trial of warrant cases by the Magistrates instituted otherwise than on a police report. We are therefore, of the view that if we restrict the application of the Code of Criminal Procedure 1893 to a proceeding before a Special Court in the manner as contended by the learned Advocate General then the second part of subsection (2) of Section 5 of the Act would become meaningless. In our view, the words ''for the purposes of said provisions' occurring in the second part of Sub-section (2) of Section 5 of the Act include the entire Code subject to the limitations as prescribed in the first part and indicates that in the application of such provisions, Special Court shall be deemed to be a Court of Session trying cases without jury. We are thus led to the view that in a case where petition of complaint is filed in the manner as laid down in Section 190 (1) (a) of the Code, provisions of Section 200 and 204 would be attracted before any process can be issued against an accused. Our attention was drawn to the provisions of Sections 68 and 75 of the Code and it was urged on behalf of State that the aforesaid sections gave powers to a Special Court to issue either sumirtons or warrant against an accused. We are unable to agree with such contention. In our view, the said Sections deal with the forms of summons and warrant of arrest, That has nothing to do with the authority of the court to issue summons or warrant of arrest. Chapter XV of the Code is divided into two-parts viz., (A) place of enquiry or trial (B) 'conditions requisite for initiation of proceedings.' The Treading of Chanter XV is of the jurisdiction of the criminal courts in inquiries and trials'. Section 190 comes in the part (B) of the said Chapter. Section 200 is in the chapter dealing with 'of complaints to Magistrates' while Section 204 is in a different chapter being Chapter XVII (of the commencement of proceeding before Magistrate). In the hierarchy of courts as contemplated in the Code, the Court of Session and the Magistrates Courts are mainly Courts of original jurisdiction. Necessary procedures were laid down accordingly. This being the position we think that the provisions or the Code subject to the limitation as mentioned in Sub-section (2) of Section 5 of the Act, would be applicable to the Special Court which is also a Court of original jurisdiction. In the cases before us none of the respective complainants was examined. We have already held that neither a Public Prosecutor nor an Investigating Officer filing a petition of complaint in Special Court acts or purports to act in discharge of his official duty and that as such he is required to be examined under Sec, 200 of the Code, Non-conformance to the said mandatory provision of the Code makes the proceeding in a Special Court null and void. In Crl. Rev. Nos. 596/70 and 781/70, the learned Special Judges construed the petition of complaints as police reports without considering the form and contents of the petition filed before them, In our view, they were not justified in doing so. In view of our above findings the petitioners of the respective cases are bound to succeed. Before we conclude, we would like to point out two other contentions as raised by the advocates. Mr. Banerjee as we have stated earlier took the second point in the first three cases and it was this that although there was a charge of conspiracy against the accused which is same in all the three cases 11 separate cases were started against him in the Special Court. Mr. Banerjee submitted that this has caused prejudice to him. It is not known why and now 11 cases were started against the accused although there is charge of common conspiracy in all of them. We need not dilate any further on this point inasmuch as we are quashing the cases before us in the light of our above findings.

4. Coming to the last point as was urged by the learned Advocate General that since there will be a considerable impact of our judgment in the Special Court cases we should make a reference to the Full Bench for consideration of the points which undoubtedly are of importance. Our attention was not drawn to any judgment either of the Division Bench or of the Single Bench which has dissented from the view which we have taken. That being so, we think that there is no case for reference to Full Bench in accordance with the Appellate Side Rules of the Court.

5. In the result, the Rules in all the cases are made absolute and the respective proceedings pending before respective Special Courts are hereby quashed. The ac- cused persons of the respective cases be discharged from their respective bail bonds.

N.C. Talukdar, J.

6. I agree.


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