BIRENDRA NATH SHARMA Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) These two revisional applications are taken out by Birendra Nath Sharma and R. L. Nahata accused in Special Case no. 2 of 2005 pending in the 1st Court of learned Special Judge at Alipore, praying for setting aside the order no. 96 dated 15.7.2008 on the grounds, inter alia, -

(2.) Since common question are raised by the petitioners against particular orders both the Revisional applications are disposed of by this common judgement. One complaint was lodged by one Dr. A. K. Chowdhury of Kalensthan, Bagusarai, Bihar with the Director, Central Bureau of Investigation, New Delhi alleging therein commission of an offence by the petitioner and others punishable under Section 420 of the IPC and Sections 13(2)/13(1) (d) of the Prevention of Corruption Act, 1988. It was alleged therein that the petitioner herein upon giving false representation 3 that he would have the son of the complainant admitted in Government Medical College in Calcutta in Chief Minister's Quota by using his influence as a CBI officer, took a huge some of money from the complainant but filed to arrange admission of the son of the complainant in a Government Medical College at Calcutta. On the basis of such complaint RC. AC 2/2002 A 0003 dated 18.4.2003 was registered for investigation. It was complaint further that the petitioner in the same way cheated one Uday Mishra of Muzaffarpore to the tune of Rs. 18,00000/-( Eighteen lakhs) on false assurance of arranging license for Liquor Retail Shop of West Bengal Government in Kolkata. The said complaint lodged to the Superintendent of Police CBI/ACB on 21.4.2002 by Uday Mishra. It was further alleged that the petitioner and others also cheated similarly one Dr. Bimla Sahi to the tune of Rs. 17,00000/- ( Seventeen lakhs) against false assurance of arranging of her daughter's admission in Medical College in Calcutta under Chief Minister's quota. That case was also registered with CBI, Calcutta. All the complainants, however, are close relations of the petitioner. The learned Special Court at Alipore from the very inception of lodging of the FIR dealt with the case by taking important steps like recording confessional statement of the accused/petitioner under Section 164 of Cr.P.C. and even granting pardon to (1) the accused Sadquik Md. Mallick, (2) Sandip Sekhar @ Anshu and (3) Kalyan Moitra of Assembly of God Church School, Kolkata who played pivotal role in accepting the money. The Biren Sharma filed an application praying for his discharge from the 4 case under Section 239 of Criminal Procedure Code and the learned Court by an order no. 76 dated 26.7.2004 rejecting his prayer after being satisfied that there was a strong prima facie case against the petitioner punishable under Section 120 B read with Section 420 IPC and under Section 13(1) (d) of Prevention of Corruption Act. Learned Special Court also framed charge against the petitioner under the above mentioned sections dated 17.12.2007. Some co-accused, namely, Jitendra Nath Sharma, Rajdeo Prosad and Ratan Lal Nahata were also arrayed to face the charge under the above mentioned sections. That order of the learned Special Court dated 7.12.2007 was challenged by the petitioner in this Court in a revisional being no. C.R.R. No. 324 of 2008 which was disposed of on 11.3.2008 whereby the order dated 7.12.2007 was set aside with a direction on the learned Special Judge to consider the matter of framing of charge afresh after giving the parties opportunity of being heard in the matter and to proceed according to law. Learned Special Judge, being communicated of the order of this Court in C.R.R. 324 of 2008, fixed 11.4.2008 for hearing regarding framing of charge. Learned Special Judge on 11.4.2008 passed an order being no. 92 dated 11.4.2008 expressed his reluctancy to give a fresh look with regard to framing of charge with preconceived notion quoting its earlier order dated 26.4.2007. On that date, another accused R.L. Nahata filed an application for his discharge under Section 239 of the Code from the case. The learned Court fixed 14.5.2008 for hearing of that petition. The petition was taken up for 5 hearing on 30.5.2008 and by an order no. 94 dated 30.5.2008 the learned Court expressed his reluctancy in giving a fresh look into the matter. The matter was finally heard on 15.7.2008 and by the order no. 96 dated 15.7.2008 learned Special Court found that their existed a strong prima facie case against the petitioners for the offences alleged and accordingly, the learned Judge framed charges under the above mentioned sections against all the accused including the petitioners. Against that order the petitioners have come up with these revisional applications praying for setting aside the order on the grounds mentioned earlier.

(3.) Mr. Sekher Bose, lerned Counsel appearing for the petitioner R. L. Nahata (C.R.R. 2965 of 2008) contended that the learned Special Judge was absolutely misconceived and wrong in passing the order no. 96 without giving the effect to the order passed by this Court in C.R. no. 324 of 2008 in its true sprite and letter. Mr. Basu contended further that the learned Court failed to come out of his order passed earlier on 7.12.2007 and stuck to that order ignoring the directions given by this Court in the Criminal Revision. This apart, Mr. Basu contended that while dismissing the petitions for discharge filed by B. N. Sharma and R. L. Nahata which were taken up together for hearing by learned Special Court on 15.7.2008, the learned Court was oblivious of considering the materials placed before him as well as the translated version of the statement of the witnesses produce before him. No where in the four corners in the order impugned it has been spelt out that the learned Court had made any effort even any intention to 6 make effort to consider that translated version of case diary. The learned Court did not consider as to whether proper order of sanction to prosecute was obtained by the I.O. before filing of the charge-sheet and placed before the Court for its perusal. Mr. Basu also contended that the learned Special Judge was duty bound to examine that prosecution was accorded in respect of all the three complaints made against the petitioner B. N. Sharma and R. L. Nahata. The learned Special Court was oblivious of his such duty and pass the order whereby he failed to reconsider the matter as directed by this Court and stuck to his earlier view taken in order dated 7.12.2007. Mr. Basu contended that this Court should interfere into the order impugned and set aside the same.