STATE Vs. MANMAL BHATORIA

JUDGEMENT

(1.) On or about June 20, 1969 Tejendar Singh, Deputy Superintended of Police, Central Bureau of Investigation : Special Police Establishment Division, Calcutta, filed a complaint before the Judge, 4th Additional Special Court, Calcutta against Manmal Bhutoria, the opposite party in this Rule, and Chittaranjan Bhattacherjee, a former Major of the Indian Army, alleging commission of offences under 53ection 120B of the Indian Penal Code read with Sec. 5(2) of the Prevention of Corruption Act 1947 and Sec. 5(2) read with Sec. 5(1)(d) of the said Act. The learned Judge took cognizance upon the said complaint on July 1, 1967 and issued process against them. The jurisdiction of the Special Court to try was challenged by the accused persons and ultimately the Supreme Court decided against them. When the matter came up for disposal before the learned Judge, the opposite party again challenged the maintainability of the proceeding on different grounds before this Court and by a judgment delivered in Criminal Revision No. 471 of 1978 it directed the learned Judge to decide the question as to the maintainability of the proceeding in the light of certain observations made in the said judgment. An application was also filed by Sri Bhattacherjee challenging the jurisdiction of the Court to try him on various other grounds. The application filed by Sri Bhattacherjee however could not be heard as in the meantime he died. The question whether the opposite party could be tried was taken up for consideration by the learned Judge and after hearing the parties he held, by his order dated April 2, 1979, that no valid cognizance was taken in the case, as the Court did not follow the mandatory provision of Rule 3 framed under Sec. 549 of the Code of Criminal Procedure 1898 and discharged the opposite party. The above order forma the subject matter of challenge in the instant Rule.

(2.) Mr. Ghosh, the learned Advocate appearing for the petitioner submitted that the learned Judge failed to consider that Rule 3 of The Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1952, (hereinafter referred to as the "Adjustment Rules", had no manner of application to the facts of the instant case as Sri Bhattacherjee ceased to be subject to Army Act before cognizance was taken. Mr. Natin Banerjee, the learned Advocate, appearing for the opposite party on the other hand contended that in view of the provisions of Sec. 122 of the Army Act 1950 (hereinafter referred to as the "Act") Sri Bhattacherjee was liable to be tried by the Court-Martial even if it was assumed that he was invalidated from the military service with effect from Feb. 14, 1966 and consequently the Adjustment Rules were applicable to the facts of the instant case.

(3.) To appreciate the contentions of the respective parties it will be necessary to refer to certain previsions of the Act and the Adjustment Rules.