MOHAININAD SAFI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The only point which has been urged in this appeal by certificate from a judgment of the High Court at Calcutta is whether the trial and conviction of the appellant for an offence under S. 409, Indian Penal Code were barred by the provisions of S. 403 of the Code of Criminal Procedure (hereinafter referred to as the Code).

(2.) The facts which are not in dispute are these: The appellant was tried for an offence under S. 409, I. P. C. by Mr. T. Bhattacharjee, Judge, Birbhum Special Court and sentenced to undergo rigorous imprisonment for four years. His conviction was maintained in appeal, by the High Court but the sentence was reduced to rigorous imprisonment for two years. One of the points urged before the High Court was that upon the same facts and with respect to the same offence the appellant was tried earlier by Mr. N. C. Ganguly, Judge, Birbhum Special Court and acquitted thereof. He could, therefore, not have been tried over again in respect of that offence and consequently his conviction and sentence are illegal.

(3.) What actually happened was this. The appellant who was a shed clerk at Sainthia Railway Station is alleged to have committed criminal breach of trust with respect to 8 bags of suji which had been booked by rail at Murarai by one Bhikam Chand Pipria, the consignee being the firm of Lalchand Phusraj of Sainthia. He was alleged to have done this in conspiracy with Ibrahim and Nepal Chandra Das. We are not concerned with these two persons and so we can leave them out of account. The offence was investigated into and a charge sheet was submitted against the appellant under S. 409, I. P. C. and two other persons by the Officer-in-charge, Government Railway Police, Asansol. Apparently he filed the charge sheet himself in the Court of Judge, Birbhum Special Court. However, as set out in the order of Mr. Ganguly acquitting the appellant the case was distributed to the Birbhum Special Court for trial by notification No. 4515-J, dated May 8, 1959 (Law Judicial Department), Government of West Bengal. The prosecution examined 21 witnesses before him and on August 28, 1959 he framed a charge against the appellant under S. 409, I. P. C. The prosecution witnesses were cross-examined on behalf of the appellant and the Court examined him under S. 342 of the Code. As the time of the hearing of arguments the Public Prosecutor placed before him a typed copy of a judgment of the High Court in Criminal Appeal No. 377 of 1958 in which it was held that a Special Court cannot, in view of the amendment of S. 5 (1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 by Act 27 of 1956 take cognizance upon a charge sheet because it is neither entitled to follow the procedure for trial under S. 251-A nor can it take cognizance under S. 190 (1) (c) unless in the latter case the provisions of S. 191 of the Code were complied with. The attention of the learned Judge was also drawn to A. P. Misra vs. The State, 1958 Cri LJ 1386, where it was held that where a Magistrate could not legally take cognizance of an offence on the basis of a charge sheet the entire proceedings before him are without jurisdiction. In view of these decisions the learned Judge made an order of which the relevant portion runs thus: