MAHAL CHAND SETHIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THE facts in this case are shortly as follows: on or about 17th December, 1956 an information was lodged at the Hare, Street Police Station regarding a missing book of sales tax declaration forms. On the basis of this information, case Mo. 30 of 1957 was started and investigation commenced under Chapter XIV of the Criminal Procedure Code. Various persons were arrested including the petitioner, and on the 26th February, 1959 a charge-sheet was submitted against 77 accused persons including the petitioner, Mahal Chand Sethia, in respect of offences under sections 120b 280/411/414/420/471/474 of the indian Penal Code 822 witnesses were named in the charge-sheet including two public servant, Sudeb Chandra Auddy and Amalendu Roy Chowdhury. On the 20th March, 1959 a supplementary charge sheet was submitted against another accused Bhagawandas Chetlangi On the 25th September, 1959 a second supplementary charge sheet was submitted against five additional accused persons, two of them being the two public servants above mentioned who had been cited as witnesses. In their case, the charges were entirely different. On the 8th December, 1959 there was ft notification issued by the Government of West Bengal, being Notification No. 10216j purporting to be under section 4 (2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (W. B. Act XXI of 1949 ). This was an Act for the more speedy trial and more effective punishment of certain offences. It came into operation on the 23rd June, 1949, section 2 (1) of the said Act provides that the State Government shall from time to time as it deems necessary, constitute by notification in the Official Gazette, one or more Special Courts and may by like notification abolish any such Court, if it deems such Court to be no longer necessary. Under section 4 (1) of the said Act, notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law, the offences specified "in the Schedule shall be tribal 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. Sub-section (2) of section 4 is important and is set out below: -

(2.) A person appointed under subsection (1) as a Judge to preside over a Special Court may act on the evidence recorded by his predecessor or predecessors or partly recorded, by his predecessor or predecessors and partly recorded by himself. As I have stated above, on the 8th December, 1959 a notification wag issued under section 4 (2) of the said Act. By the said notification the case of the petitioner and his co-accused was allotted to a Special Court which was constituted by notification d 27,8. 52. The accused Nos. 1 and 2 being the two public servants mentioned above, were to be tried on a charge under section 417/120b and the accused No. 1 on a charge under section 409 of the Indian Penal Code, All other accused persons were to be tried on charges under section 417 120b and 409/109 of the Indian Penal Code. On the 1st March, 1960 a rule was issued by Mitter, J. on an application made by Mahal Chand Sethia. The grievance of the petitioner was that the charges under sections 467, 471 and 474 of the Indian Penal Code were tribal by a Sessions Court and if the case against the petitioner had gone on before the Chief Presidency Magistrate he would have got the advantage of a Sessions trial of which he was being deprived His further grievance was that with the case pending before the Chief Presidency Magistrate, he could not be asked to stand his trial before a Special Court. This application came up for hearing before Banerjee, J. At the hearing, the learned Additional Government Pleader made a certain concession. It will be convenient to set this out from the judgment of the learned Judge dated 12th September, 1962: -

(3.) ON the 17th October, 1962 the Special Public Prosecutor applied before the Chief Presidency Magistrate for an order of discharge of all the said accused persons. The learned Chief Presidency Magistrate thereupon issued notices on the said accused persons and by an order dated 7th November, 1962, discharged all of them. On the 16th October, 1962 the Government of West Bengal issued a notification No. 7525-J the relevant part whereof is as follows:-