CHANDRA KUMAR PODDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) -The petitioner has come up before this court seeking to quash the proceeding of G.R. Case No. 2836 of 1995 (arising out of R.C. case No. 8/S.C.B./93/Calcutta) pending before the learned Metropolitan Magistrate, 12th court, Calcutta on the ground firstly that there has been infraction of section 173(5) of the Code of Criminal Procedure and further that the learned Chief Metropolitan Magistrate, Calcutta did not have the jurisdiction to take cognizance in the matter as the learned 12th Metropolitan Magistrate was only the designated court for trying the CBI cases according to notification No. 18167J dated 30.7.91 issued by the Judicial Department of the Government of West Bengal. The learned lawyer appearing on behalf of the petitioner has invited my attention to the order dated 14-11-95 passed by the learned Chief Metropolitan Magistrate, Calcutta taking cognizance of the case and transferring the same for disposal to the file of the learned Metropolitan Magistrate, 12th court, Calcutta for disposal. He has pointed out that the learned Chief Metropolitan Magistrate simply perused the charge sheet and took cognizance but did not advert to the accompaniments of the charge sheet which was an infraction of sub-section (5) of section 173 of the Code of Criminal Procedure. In support of his contention he has relied on several decisions of this court. Firstly, he has placed reliance on 1996 Criminal Law Journal 1406 Kalpana Ghosh v. State & Others. Then he relied on 1995 CCLR., Calcutta 289 Raghubir Smaran Jain & Another v. The State. Then he also cited the decision of the Supreme Court in the case of Satya Narayan Musadi v. The State of Bihar, AIR 1980 Supreme Court page 506 and lastly on the decision of this court as reported in 1996(II) CHN page 362 (R. J. Brealey v. State of West Bengal) and 1996(II) CHN 147 Pradip Kumar Patra v. State of West Bengal and 96 CalWN 606 Satya Ranjan Pal v. State of West Bengal.

(2.) The second branch of the submission of the learned lawyer of the petitioner is that the cognizance taken by the learned Chief Metropolitan Magistrate is also bad in law on this score that in view of the notification No. 18167J dated 30th July, 1991 issued by the Judicial Department of the Government of West Bengal it is only the learned 12th court of the learned Metropolitan Magistrate is empowered to deal with the cases under the DSPE Act as such the Chief Metropolitan Magistrate was not at all competent to take cognizance and it was only the learned 12th Metropolitan Magistrate which was the proper court where the charge sheet lays at the behest of the Investigating Agency conducted under the DSPE Act (the CBI Act).

(3.) Shri Shovan Lal Hazra, the learned public prosecutor of the Central Bureau of Investigation duly assisted by Shri Avijeet Audhya, learned Advocate has very strongly resisted the submissions of the learned lawyer of the petitioner and have submitted that both the grounds taken by the petitioner do not merit any consideration at all since they have no basis to stand upon. Shri Hazra has also placed reliance on the decision of the Supreme Court in the case reported in 1995 Calcutta Criminal Law Reporter (Supreme Court page 52) in the case of State of West Bengal v. Md. Khalid & others. Shri Hazra, learned public Prosecutor has buttressed his submissioin on the basis of Paragraphs 44 and 45 of the said judgment of the Supreme Court (supra) and have argued that cognizance once taken by the learned Magistrate cannot be found to be defective and a proceeding cannot be quashed on the ground of any defect if at all in taking of such cognizance. Shri Hazra has also referred to the case of Inspector of Police CBI v. Manique Mazumdar reported in 1997 Cal. Cri.LR (Cal.) 128 where Tiwari, J. had negated the point taken by the accused with regard to section 173(5) of the Code. Incidentally the learned counsel of the petitioner also appeared in that matter. Fairness demanded that he ought to have referred to the said decision.