Calcutta High Court (Appellete Side)
Pranit Rai vs State Of West Bengal & Anr on 30 April, 2026
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Krishna Rao
C.R.R. No. 1697 of 2012
With
CRAN No. 1 of 2012
(Old No. CRAN 3082 of 2012)
Pranit Rai
Vs.
State of West Bengal & Anr.
Mr. Deep Chaim Kabir, Sr. Adv.
Mr. Mazhar Hossain Chowdhury
Md. Zeeshanuddin
.....For the petitioner.
Mr. Avishek Sinha
.....For the State.
Hearing Concluded On : 01.04.2026
Judgment On : 30.04.2026
2
Krishna Rao, J.:
1. The petitioner has filed the present application under Section 482 of
the Code of Criminal Procedure, 1973, praying for quashing of
proceedings of G.R. Case No. 59 of 2006 pending before the Learned
Court of the Chief Judicial Magistrate, Darjeeling, arising out of
Darjeeling Sadar Police Station Case No. 31 of 2006 dated 23rd May,
2006, under Sections 420/467/468/471/409/120B of the Indian
Penal Code, 1860 and Sections 13(1)(d)/13(2) of the Prevention of
Corruption Act, and all orders passed by the Learned Chief Judicial
Magistrate including the order passed by the Learned Additional
District and Sessions Judge, 3rd Court, Darjeeling, dated 27th June,
2011, rejecting the application filed by the petitioner for discharge and
affirmed the order passed by the Learned Chief Judicial Magistrate,
Darjeeling by an order No. 45 dated 27th August, 2009.
2. On the basis of written complaint of the Principal Secretary and
Council Project Director, SSA, Darjeeling Gorkha Hill Council
(hereinafter referred to as “DGHC”) dated 22nd May, 2006, the Police of
Sadar Police Station, Darjeeling initiated an FIR No. 31 of 2006 dated
23rd May, 2006, under Sections 420/467/468/471/409/120B of the
Indian Penal Code against Shri Lakpa Rynden, WBCS, Ex-Education
Secretary, DGHC and Council Project Officer, SSA and seven others
including the petitioner herein on the following allegations:
“A case of fraudulent drawl &
misappropriation of fund from SSA, DGH Account
No. 641 maintained with DCCB, Darjeeling has
3
come to our notice. This drawl of fund relates to the
disbursement of funds under SSA for construction
of new School Buildings, Water & Toilet Blocks in
102 schools, construction of additional class rooms
in 90 schools and the total fund involved in this is
Rs.5,14,50,000/- (rupees five crore fourteen lakhs
and fifty thousand only). It appears that this fraud
has been committed with collusion of ex-Education
Secretary, Shri L. Rynden, staff of SSA cell Namely,
late Dilip Kumar Rai, Bishan Thapa, Bijan Thapa,
Ramesh Thapa, SAE Prenit Rai. There appears to
be collusion between these officers & staff with the
branch managers of DCCB, Darjeeling namely Mr.
D.M. Tamang, B.B. Chhetri, and Mr. S. Miya. The
fund has been fraudulently withdrawn and
misappropriated from the available SSA funds in
DGHC starting December 2004 up till March 2005.
This fraudulent drawl of fund has taken place from
the Current Account No.641 of District Central
Cooperative Bank (DCCB), Darjeeling with the
involvement of the Ex-Education Secretary, DGHC
and the Council Project Officer SSA, DGHC Shri L.
Rynden, WBCS, Branch Manager In-charge of
DCCB, Darjeeling Shri D.M. Tamang and Managers
Shri S. Miya, Shri B.B. Chhetri and the Council SSA
Staff viz. Late Dilip Kumar Rai, Shri Bishan Thapa,
Shri Ramesh Thapa, Shri Bijan Thapa and Shri
Prenit Rai. It appears that the aforementioned
persons in collusion withdrew an amount of Rs.
514.50 lakhs from the DCCB vide 30 cheques
drawn at different dates on the same account and
received the amount entirely in cash but there is no
trace of this amount having been officially
disbursed to the alleged VEC/WEC. Late Dilip
Kumar Rai who functioned as Cashier in SSA Cell
and others received the cash amount as per the
enclosed statement of the Bank, Dilip Kumar Rai,
cashier, SSA cell, DGHC expired on 22/10/05. Shri
Rynden has been transferred since March, 2005
and presently posted in District Magistrate’s Office,
Darjeeling.
To detail out the matter further, the following
sequence of events have taken place:-
1. The Current Account No. 641 in DCCB,
Darjeeling was opened in the name of Sarba
Shiksha Abhiyan, DGHC vide Memo No.
676/Edn/SSA/2004 dated 19.10.2004 from Shri
4L. Rynden, Secretary Education Department,
DGHC. The letter of request to the Manager for
opening the account mentioned that the Account
will be operated upon jointly by (1) Principal
Secretary, DGHC and (2) Secretary Education and
Council Project Officer, DGHC SSA Cell. However, it
appears that Shri Rynden tampered with this letter
and erased the word “jointly” and inserted the
word “either” and also “or” in the said letter. The
specimen signature document available from the
Bank records show that there was an initial
intention of opening a “Savings Account” which
later was crossed and “Current Account” opened. It
is also evident from the reverse of this Specimen
Signature Card that mode of operation has been
filled up as “to be operated either by CPS or by
Education Secretary” and all other columns on this
reverse side has been left blank particularly the
one that is used for office purpose regarding the
verification and confirmation of the opening of
Account. There is no signature of the Ledger
Keeper, the Accountant or the Branch Manager. My
discussion with the present Branch Manager of
DCCB reveals that there could be a possible
collusion of the Branch Manager in opening a
Current Account in place of the Savings Account
since a Savings Account is likely to pose more
problems for drawl of huge amount of fund in cash.
The tampering of letter also goes to indicate that
the Branch Manager has been either careless or
colluded with others so as to facilitate the
fraudulent drawl of funds.
2. During the period starting 4th December
2004 and up till 23rd March 2005 a total of 30
cheques were “self” drawn by Shri Rynden (out of
34 cheques issued) and the entire amount
withdrawn in cash by either one or the other
signatory from SSA Cell along with Shri Rynden.
Only four cheques were credited to an account No.
623 of VEC which was duly transferred to the said
account.
3. The above stated cheques relate to grant of
fund for New School Building & construction of
Additional class rooms. During the above stated
period, files connected with this matter was dealt
solely by Shri Rynden to process for grant of funds
for construction of 102 New School Building @ Rs.
5
4,85,000/- (Rs 4,50,000/- for the building & Rs.
35,000/- for TWS (toilet & water supply), totaling to
Rs. 4,94,70,000, 15 schools for construction of
Additional class rooms @ Rs. 90,000/- and 11
schools @ Rs. 60,000/- (totaling to Rs. 19,80,000/-
). It is also unknown as to why the amount granted
for New School Building which is normally granted
@ Rs. 3,50,000/- was enhanced to Rs. 4,50,000/-
by Shri Rynden on his own.
4. From the office records of SSA Cell, we
have retrieved the bills which were prepared in
favour of President/Secretary of VEC/WEC but as
is seen from the above records that no amount was
ever handed over to the VEC or the WEC either in
cash and of course, not by Cheque. The Cash Book
available in the SSA Cell is left completely blank
during this period and no records as to any cash
withdrawal or disbursement of the amount has
been kept. Due to the death of the Cashier Dilip
Kumar Rai, it is difficult to ascertain as to why this
record keeping was not done.
5. There is no authentic record indicating in
whose favour or to whom was this cash withdrawn
from the Bank disbursed or handed over.
6. These entire transactions came to light
when the audit conducted by Sr. Auditor form the
Office of Pr..AG (Audit) dated 17.11.05 gave
adverse comments regarding handling of SSA
funds, particularly the non submission of Utilization
certificates relating to the Civil Works, following
which this office asked the respective VECs/WECs
for submission of Utilization Certificates for the
funds purported to have been credited in their
favour by the Account Payee Cheques from the SSA
fund. There was a complete denial from all
VECs/WECs for having received any fund from
SSA for construction of new school buildings or
additional class rooms.
7. All the above actions appear to have been
taken by Shri Rynden the then Secretary Education
Department and Council Project Officer SSA, DGHC
without approval of the Principal Secretary, DGHC
or the Empowered Councilor (Now Ex-Councilor Shri
A.R. Dewan) or the Chief Executive Councilor,
DGHC.”
6
3. When the petitioner came to know that his name is incorporated in the
FIR, the petitioner has voluntarily surrendered before the Learned
Court of Chief Judicial Magistrate on 11th June, 2006 and he was
granted interim bail on 10th July, 2006 and subsequently the interim
bail was confirmed on 4th September, 2006.
4. On 18th September, 2006, the prosecution made prayer for addition for
adding Sections 13(1)(d)/ 13(2) of the Prevention of Corruption Act and
the Learned Chief Judicial Magistrate allowed the prayer of the
prosecution. On 28th May, 2009, the Investigating Officer filed an
application for extension of time for submitting report in final form and
the Learned Magistrate has allowed the said prayer on the same day.
After completion of investigation, the police have submitted charge
sheet being No. 37 of 2009 dated 11th August, 2009, under Sections
420/467/468/471/409/120B of the Indian Penal Code read with
Sections 13(1)(d)/ 13(2) of the Prevention of Corruption Act against all
accused persons except one Dilip Kumar Rai who had died during the
pendency of investigation. On 24th June, 2010, the Police submitted
supplementary chargesheet No. 54 of 2010 by incorporating certain
documents.
5. The allegation made against the petitioner is that one self cheque being
No. 70227 dated 18th March, 2005, amounting to Rs. 3,60,000/- issued
by the principal accused, namely, Lakpa Ryden to the petitioner and
the petitioner has withdrawn the said amount by putting his signature
at the back side of the cheque from the concern bank. The petitioner
7
has filed an application before the Learned Chief Judicial Magistrate for
his discharge from the case on the ground that the date of FIR is dated
23rd May, 2006 and the police has filed charge sheet on 11th August,
2009, through two years from the date of first arrest expired on 8th
June, 2008, as three accused persons, namely, Ramesh Thapa, Biren
Thapa and Bijoy Thapa were arrested on 8th June, 2006 and three
years from the first arrest expired on 8th June, 2009, extension of time
for investigation filed on 28th May, 2009, Chargesheet was filed on 11th
August, 2009 and the Learned Magistrate took Cognizance on 12th
August, 2009. The application filed by the petitioner was rejected by the
Learned Magistrate by an order No. 45 dated 27th August, 2009.
6. Being aggrieved with the order passed by the Learned Magistrate, the
petitioner has preferred a revisional application before the Learned
Additional District and Sessions Judge, 3rd Court, Darjeeling being
Criminal Revision No. 17 of 2009. The revisional application filed by the
petitioner was rejected on 27th June, 2011, which is impugned in the
present application.
7. Mr. Deep Chaim Kabir, Learned Senior Advocate representing the
petitioner submits that the police registered the FIR on 23rd May, 2006.
As per the provisions of Section 167(5)(iii) of the Code of Criminal
Procedure Code as amended in the State of West Bengal, the statutory
period for completion of investigation for any other type of case
(including Special Case which is neither Magistrate triable nor Sessions
triable) is two years. Period of two years completed on 8th June, 2008,
8
as the first accused persons were arrested on 8th June, 2006 but the
Police have submitted charge sheet on 11th August, 2009 i.e. after the
period of two years. He submits that if Section 167(5)(ii) is taken into
consideration the time period for completion of investigation is three
years from first arrest for solely Sessions Triable Case under Chapter
XVIII of the Indian Penal Code. Period of three years completed on 8th
June, 2009 but the Investigating Officer has filed an application for
extension of time to complete investigation on 28th May, 2009, which
the Learned Magistrate has extended the same mechanically. He
submits that on 28th May, 2009, the Learned Magistrate had no
jurisdiction to extend the time for investigation as on 18th September,
2006 after adding Sections 13(1)(d)/13(2) of the Prevention of
Corruption Act was added and the case became triable by the Learned
Court of Special Judge under the Prevention of Corruption Act.
8. Mr. Kabir submits that on 18th September, 2006, the prosecution has
filed an application for addition of Section 13(1)(d)/13(2) of the
Prevention of Corruption Act, thus on addition of the said Section, the
Learned Magistrate lost its jurisdiction but the Learned Magistrate
passed several orders even accepting chargesheet and taking
cognizance which are without any jurisdiction. He submits that once
the police invoked the provisions of Prevention of Corruption Act, the
Learned Magistrate lost its jurisdiction and he ought to have
transferred the case record to the Learned Special Court having
9
Jurisdiction to deal with the case under the provisions of Prevention of
Corruption Act.
9. Mr. Kabir submits that the order passed by the Learned Magistrate for
extension of time to complete the investigation is also without any
jurisdiction. He submits that once the police have invoked the
provisions of Prevention of Corruption Act by adding Sections
13(1)(d)/13(2), from the said day itself the Learned Magistrate lost his
jurisdiction to proceed with the case, but the Learned Magistrate has
passed several orders.
10. Mr. Kabir submits that the petitioner has raised all the points before
the Learned Magistrate as well as before the Learned Additional District
and Sessions Judge, 3rd Court, Darjeeling but both Courts failed to
consider the issues raised by the petitioner.
11. Mr. Kabir submits that there are no sufficient materials collected by the
investigating agency against the petitioner except alleged recovery of
one cheque which bears signature of the petitioner on the back side of
the said cheque. He submits that there are no other corroborative
materials available on record to prove the involvement of the petitioner
in any of the offences as per the chargesheet submitted by the police. It
is also not the case of prosecution that the petitioner has filled up the
amount in words and figure in the said cheque.
12. Mr. Kabir submits that that the petitioner was working as intern and
he was not a public servant and no property was entrusted to the
10
petitioner to constitute the offence of breach of trust. He submits that
the police have invoked the provisions of Sections 409 and 420 of the
IPC but it is settled law that allegation of cheating and criminal breach
of trust cannot go together. He submits that there is no allegation that
the petitioner has induced anyone to delivery of any property to him on
any misrepresentation. He submits that there is no allegation that the
petitioner has committed any forgery. He further submits Section
13(1)(d)/13(2) of the Prevention of Corruption Act is not applicable to
the petitioner.
13. Mr. Avishek Sinha, Learned Advocate representing the State submits
that during investigation, the Investigating Officer has seized one
cheque from bank being cheque No. 70227 dated 18th March, 2005, for
Rs. 3,60,000/- in which at the back of the cheque, the signature of the
petitioner is appearing and the same is duly corroborated by the report
of Hand Writing Expert. He submits that whether the said amount
received by the petitioner or not and the petitioner has got any benefit
from the said cheque amount is the matter of trial.
14. Mr. Sinha submits that when the FIR was initiated and the same was
forwarded to the Learned Magistrate, at the relevant point of time, the
Magistrate had the power. He submits that after addition of Section
13(1)(d)/13(2) of the Prevention of Corruption Act, the Learned
Magistrate has not transferred the case to the Special Judge.
11
15. Mr. Sinha submits that the petitioner was engaged as contract worker
in the said establishment and the petitioner has entered into an
agreement and the agreement is also seized by the police during
investigation and thus the same is to be proved during trial.
16. Mr. Sinha submits that the petitioner has relied upon the degree
certificate of Civil Engineering which he has obtained in the year 2008
and from the said documents, the petitioner intents to prove that at the
time he was an intern but the same cannot decide in an application
under Section 482 of the Cr.P.C and the same is also to be proved by
the petitioner in trial.
17. Section 167(5)(ii) and (iii) of the Code of Criminal Procedure, 1973, as
amended by the State of West Bengal, reads as follows:
“167. Procedure when investigation
cannot be completed in twenty-four hours.-
(5) [West Bengal]. – In its application to the
State of West Bengal, in section 167, –
“167. (5) If, in respect of–
(ii) any case exclusively triable by a court of
session or a case under Chapter XVIII of the Indian
Penal Code, 1860 (45 of 1860), the investigation is
not concluded within a period of three years, or
(iii) any case other than those mentioned in
clauses (i) and (ii), the investigation is not
concluded within a period of two years,from the date on which the accused was arrested
or made his appearance, the Magistrate shall make
an order stopping further investigation into the
offence and shall discharge the accused unless the
officer making the investigation satisfies the
12Magistrate that for special reasons and in the
interests of justice the continuation of the
investigation beyond the periods mentioned in this
sub-section is necessary.”
18. Initially the police registered an FIR for the offence under Sections
420/467/468/ 471/409/120B of the Indian Penal Code and during
investigation, the Investigating Officer filed an application for addition
of sections and by an order dated 18th September, 2006, Sections
13(1)(d)/13(2) of the Prevention of Corruption Act were added. Once
Sections 13(1)(d)/13(2) is added, the case became a Special Case under
the Prevention of Corruption Act. Once it becomes a Special Case, the
said case will fall under Clause (iii) of Section 167(5) of the Code of
Criminal Procedure, 1973 as amended under West Bengal State
Amendment. The petitioner has voluntarily surrendered before the
Learned Magistrate on 11th June, 2006, thus the date of arrest of the
petitioner is to be taken into consideration from 11th June, 2006 and
not 8th June, 2006 as claimed by the petitioner.
19. On 28th May, 2009, the Investigating Officer prayed for extension of
time to complete investigation and on the same day, the Learned
Magistrate has extended time for investigation and on completion of
investigation, the Police submitted chargesheet on 11th August, 2009.
In the case of Hussainara Khatoon and Others Vs. Home Secretary,
State of Bihar, Patna, reported in (1980) 1 SCC 108, the Hon’ble
Supreme Court held that:
“8. We had given direction by our order dated
February 26, 1979 that the State Government
13should enquire into cases where the offences
charged against under trial prisoners are triable as
summons cases, for the purpose of ascertaining
whether there has been compliance with the
provision enacted in Section 167 sub-section (5) of
the Code of Criminal Procedure. It is clear from this
provision that if in any case trial by a Magistrate as
a summons case the investigation is not concluded
within a period of six months from the date on
which the accused was arrested, the Magistrate
must make an order stopping further investigation
into the offence, unless the officer making the
investigation satisfies the Magistrate that for
special reasons and in the interest of justice, the
continuation of the investigation beyond the period
of six months is necessary. With a view to securing
compliance with this provision we directed that if,
in a case triable by a Magistrate as a summons
case, it is found that investigation has been going
on for a period of more than six months without
satisfying the Magistrate that, for special reasons
and in the interest of justice, the continuation of the
investigation beyond the period of six months is
necessary, the State Government will release the
undertrial prisoner, unless the necessary orders of
the Magistrate are obtained within a period of one
month. The reason for giving this direction was that
in such a case the Magistrate is bound to make an
order stopping further investigation and in that
event, only two courses would be open: either the
police must immediately proceed to file a charge-
sheet, if the investigation conducted till then
warrants such a course, or if no case for proceeding
against the undertrial prisoner is disclosed by the
investigation, the undertrial prisoner must be
released forthwith from detention. The State
Government has not filed before us any report of
compliance with this direction and we would,
therefore, require the State Government to do so
within a period of ten days from today. We would
also request the High Court to draw the attention of
the Magistrates to the provision in Section 167 sub-
section (5) and ensure compliance with the
requirement of this provision by the Magistrate.”
14
20. In the case of State of West Bengal Vs. Falguni Dutta and Another
reported in (1993) 3 SCC 288 wherein the Hon’ble Supreme Court held
that:
“6. It may here be mentioned that Section 12-
A was first inserted by Amendment Act of 1964. It
then empowered the Central Government to specify
any order under Section 3 to be a special order the
contravention whereof may be tried summarily to
which the provisions of Sections 262 to 265 of the
Code were made applicable. The proviso stipulated
that in the case of conviction in a summary trial it
shall be lawful for the Magistrate to pass a
sentence of imprisonment not exceeding one year.
Subsequently by Amendment Act 18 of 1981,
Section 12-A was substituted by the present
provisions and new Sections 12-AA to 12-AC were
inserted. The avowed object of these legislative
changes was expeditious disposal of offences
under the Act by Special Courts employing
summary procedure and applying the provisions of
the Code to such trials save as otherwise provided.
This enabled the Special Courts to take cognizance
of the offences under the Act without a formal order
of commitment. It thus becomes clear from the plain
language of the provisions introduced by Act 18 of
1981 that the legislature desired to ensure that all
offences under the Act were tried by the Special
Court constituted under Section 12-A in a summary
manner applying the provisions of Sections 262 to
265 of the Code and further provided that in case
of conviction the sentence shall not exceed two
years, bringing the offence within the definition of a
summons-case under the Code. But for the
insertion of Section 12-A in its present form and
Section 12-AA, the offence under Section 7(1)(a)(ii)
of the Act would have attracted the definition of a
warrant-case. It is, therefore, obvious that the
Amending Act 18 of 1981 has brought about a
substantial change.”
21. The petitioner entered appearance in the case on 11th June, 2006. The
petitioner filed an application under Section 167(5) of the Code Of
Criminal Procedure, 1973 as amended in the State of West Bengal, on
15
12th August, 2009, that is after filing of Chargesheet and taking
cognizance. In the case of Durgesh Chandra Saha Vs. Bimal
Chandra Saha and Ors. reported in AIR 1996 SC 740 wherein the
Hon’ble Supreme Court held that:
“8. After giving our anxious consideration to
the respective submission of the learned counsel
appearing for the parties it appears to us that the
language of Section 167(5) of CrPC as amended by
the West Bengal Act is quite clear in indicating that
the said section is applicable only in a case where
the investigation was still pending but not in a case
where investigation had been completed and the
charge-sheet had been filed. It appears to us that
Section 167(5) CrPC as amended, is intended to
ensure speedy completion of investigation within
the time frame specified therein otherwise to face
an order of discharge of the accused against whom
investigation without any just cause to the
satisfaction of the court has been kept pending.
Where investigation has been completed, a
different situation, not contemplated under Section
167(5) CrPC emerges. We may indicate here that if
a criminal case is kept pending for a very long time
without any just cause thereby seriously affecting
the guarantee under Article 21 against deprivation
of personal liberty, the law is well-settled that the
court, in an appropriate case may quash the
criminal proceeding as indicated in the Constitution
Bench decision of this Court in A.R. Antulay
case reported in (1992) 1 SCC 225. Hence,
unnecessary liberal construction of Section 167(5)
CrPC with a view to protect the right against
deprivation of personal liberty as contended by Mr
Ghosh is not called for.”
22. In the present case, two years from the date of the appearance of the
petitioner completed on 11th June, 2008. The petitioner has not filed
any application before submission of chargesheet that the investigation
is not completed within a period of two years. The petitioner kept silent
till 27th August, 2009, by this time investigation was completed and
16
chargesheet was filed. Under the West Bengal Amendment of Section
167(5) of the Code of Criminal Procedure, if the investigation continues
beyond the specified time, the accused can pray for stopping of
investigation and can pray for his discharge from the case, but his right
lapses if the chargesheet is filed and thereafter the accused filed an
application for discharge. Under the provision of 167(5) of the Code of
Civil Procedure, as amended in the State of West Bengal is only for the
purpose of expeditious investigation and if investigation is not
completed, the accused has a right to pray for stopping further
investigation after the period provided either under 167(5)(ii) or (iii).
Once chargesheet is filed, the accused cannot take the advantage of the
said provision.
23. As regard to the provisions of Prevention of Corruption Act, 1988,
Section 3 of the Prevention of Corruption Act, 1988 provides that the
Central Government or the State Government may, by Notification in
the Official Gazette, appoint as many Special Judges as may be
necessary for such area for such case or group of cases (a) to try any
offence punishable under the said Act, (b) any conspiracy to commit or
any attempt to commit or any abetment of any of the offences specified
in clause (a).
24. Section 4(1) provides that notwithstanding anything contained in the
Code of Criminal Procedure, 1973, or any other law for the time being
in force, the offences specified in sub-section (1) of section 3 shall be
tried by the Special Judge only.
17
25. Section 5 of the Prevention of Corruption Act, 1988, provides for
procedure and powers of special Judge. As per Sub-Section (1) of
Section 5 of the Act of 1988, a special Judge may take cognizance of
offences without the accused being committed to him for trial and, in
trying the accused persons, shall follow the procedure prescribed by the
Code of Criminal Procedure, 1973, for the trial of warrant cases by the
Magistrate.
26. Sub-Section (4) of Section 5 of the Prevention of Corruption Act, 1988,
reads as follows:
“5. Procedure and powers of special
Judge. – (4) In particular and without prejudice to
the generality of the provisions contained in sub-
section (3), the provisions of sections 326 and 475
of the Code of Criminal Procedure, 1973 (2 of
1974), shall, so far as may be, apply to the
proceedings before a special Judge and for the
purposes of the said provisions, a special Judge
shall be deemed to be a Magistrate.”
27. On 1st September, 2006, the prosecution has filed an application for
addition of Section 13(1)(d)/13(2) of the Prevention of Corruption Act,
1988 and on 18th September, 2006, the Learned Magistrate allowed the
Investigating Officer to add the said Sections. Once Sections
13(1)(d)/13(2) of the Prevention of Corruption Act, 1988, is added, the
matter became Special Case and the Learned Magistrate had to send
the record before the Learned Special Judge having jurisdiction to try
the matter in connection with the Prevention of Corruption Act,1988.
After addition of Section of the Prevention of Corruption Act, 1988, the
Learned Magistrate lost its jurisdiction to deal with the said matter any
18
further. In the instant case, the Learned Magistrate even after addition
of Sections under the Prevention of Corruption Act, 1988, continue with
the matter in his file and pass various orders including extending time
for investigation and also taken cognizance after receipt of charge
sheet. Thus, all orders passed by the Learned Magistrate after adding
Sections under the provisions of Prevention of Corruption Act including
extending time to complete investigation and taking cognizance is
without jurisdiction.
28. Considering the facts and circumstances of the case mentioned above,
the orders passed by the Learned Magistrate after the order dated 18th
September, 2006 by which sections 13(1)(d)/13(2) of the Prevention of
Corruption Act, 1988, are added are set aside and quashed. The
Learned Chief Judicial Magistrate, at Darjeeling is directed to
immediately send the record of G.R. Case No. 59 of 2006 arising out of
Darjeeling Sadar Police Station Case No. 31 of 2006 dated 23rd May,
2006 along with all accused persons, to the concern Special Judge,
under the Prevention of Corruption Act, 1988 immediately.
29. The Learned Special Judge shall immediately on receipt of records of
the above mentioned case, shall take appropriate steps in accordance
with law. The prime accused is not arrested till date. The Special Judge
is directed to take appropriate steps of arrest of the prime accused and
if the police failed to arrest the prime accused, the Learned Special
Judge by segregating the case of the petitioner and other appearing
19
accused persons in accordance with law to conclude the trial as early
as possible.
30. The petitioner being aggrieved with the order of the Learned Magistrate
dated 27th August, 2009, filed revision before the Learned Additional
District and Sessions Judge, 3rd Court, Darjeeling and the Learned
Additional Sessions Judge rejected the revisional application on 27th
June, 2011. As this Court quashed and set aside all orders after the
order dated 18th September, 2006, including the order dated 27th
August, 2009, passed by the Learned Magistrate, thus the order passed
by the Learned Additional District & Sessions Judge, is set aside and
quashed.
31. This Court has not gone into the merit of the case. The petitioner shall
raise all issues before the Learned Special Judge, Prevention of
Corruption Act, once the record is transferred/ sent to the Learned
Special Judge. If the petitioner files any application, the Special Judge
shall decide the same in accordance with law without influence of any
observations made in this order.
32. In view of the above, this Court did not find any justification to quash
the proceeding as prayed for by the petitioner. However this order will
not prevent the petitioner for taking appropriate steps before the
Learned Special Judge in accordance with law.
33. CRR No. 1697 of 2012 is disposed of. CRAN No. 1 of 2012 (Old No.
CRAN 3082 of 2012) is disposed of. Interim order is vacated.
20
Parties shall be entitled to act on the basis of a server copy of the
Judgment placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for,
be given to the parties upon compliance of the requisite formalities.
(Krishna Rao, J.)