SHYAMADAS BANERJEE Vs. STATE OF W B

JUDGEMENT

(1.) The instant case relates to an application under section 410 read with section 482 of the Criminal Procedure Code, 1973.

(2.) The grievances of the petitioner, as ventilated in the application, may briefly be stated as follows: A public interest litigation, being W.P.No.1311 of 1999, was instituted before the High Court by one Nikhjil kishore Roy, alleging, inter alia, that there were publications in a Bengal daily, namely, "Sambad Pratidin" on 12.06.1999 and 14.06.1999 respectively, under the captions "Bhuobill, Bidhan Sabhaya Prosner Mukhe Congress Bidhayak" and "Bidhayaker Biller Char Daktar Asol Na Nakol". In the said publication it was alleged that the petitioner, as a Member of the West Bengal Legislative Assembly, submitted forged and fictitious medical bills and fees for prescriptions to the tune of Rs.1,65,530.30 with regard to the treatment of his wife, Smt. Alokananda Banerjee, and his mother Smt. Nirmala Banerjee, from 08.09.1998 to 10.11.1998. It was also alleged that forged documents were submitted along with application for reimbursement of medical expenditure in the office of the West Bengal Legislative Assembly, Calcutta on 20.11.1998 by deceiving the official staff into believing that the said documents are genuine. The said application under Article 226 of the Constitution was disposed of by the Hon'ble Division Bench of this Court by an order dated 23.06.1999, which is as follows:

(3.) Subsequently, on the basis of First Information Report lodged by the said Nikhil Kishore Roy on 28.06.1999, investigation was started under sections 468/471/420/511 of the Indian Penal Code by the Hare Street Police Station. In connection with the said Hare Street Police Station Case No.407 dated 28.06.1999 the petitioner surrendered before the learned Court of Chief Metropolitan Magistrate, Calcutta on 17.01.2000 and was released on bail. Date for completion of investigation was extended from time to time on prayer of the Investigating Officer. On 16.01.2003 Sri Narayan Chandra Muhuri, S.I., Special Cell (G.S.)DD, filed chargesheet/final report under section 173 of the Criminal Procedure Code before the learned 4th Special Judge, Calcutta after obtaining opinion of the learned Chief Public Prosecutor (South), Bankshall Court, for taking cognizance as per provisions laid down in section 173(5) of the Criminal Procedure Code. The learned Special Court assumed jurisdiction under West Bengal Criminal Law Amendment (Special Courts) Act, 1949 against the petitioner treating him as public servant and charges were framed accordingly. Learned Special Court framed charges under sections 420/471/468 and 511 of the Indian Penal Code after treating the petitioner as a public servant though he is not at all a public servant under the provision of section 21 of the Indian Penal Code. The Investigating Officer had no jurisdiction to file any chargesheet against the present petitioner, who is a legislator and not a public servant within the meaning of section 21 of the Indian Penal Code. The chargesheet submitted was, thus, erroneous and bad in law. The learned 4th Court of Special Judge had no authority under the provision of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 to take cognizance and to frame charges as initiation of the proceeding itself is bad in law and illegal.