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The Indian Penal Code
Section 489B in The Indian Penal Code
Section 489C in The Indian Penal Code
Section 511 in The Indian Penal Code
Section 190 in The Indian Penal Code

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Calcutta High Court
Narayan Prasad Sen vs The State Of West Bengal on 12 May, 2006
Equivalent citations: (2007) 1 CALLT 1 HC, 2006 (3) CHN 621, 2007 CriLJ 1
Author: A K Basu
Bench: A K Basu, P K Deb

JUDGMENT

Alok Kumar Basu, J.

1. Appellant Narayan Prasad Sen was convicted under Section 489B/511 and also under Section 489C of the IPC in connection with Shankar Mukherjee, being suspicious of the movement and action of the appellant, reported the matter to the CBI authority and according to suggestion and advice of CBI officials, a trap was laid down on 22nd January, 1995 at "Gyan Sweets" where the appellant was supposed to come along with counterfeit currency notes for exchange.

2. On 22nd January, 1995 as per previous plan, CBI officials were present along with independent witnesses and appellant was apprehended within the shop along with 23 number of 500/- rupee currency notes and 57 number of 100/- rupee currency notes.

3. On interrogation of appellant and without, getting any reasonable explanation from him over his possession of so many counterfeit currency notes, the boarding house at. Sealdah where the appellant was staying temporarily was also searched and a Rs. 100/- denomination note was seized. Search was also made at the official quarter of the appellant at Coachbehar Fire Service Station and a 500/- rupee currency note was seized.

4. CBI, on receipt of a regular complaint from Shankar Mukherjee and after seizure of counterfeit currency notes, started investigation and in course of investigation, obtained expert's report regarding the counterfeit notes and after being satisfied with a strong prima facie case about possession of counterfeit notes by the appellant and his intention to transact with those counterfeit notes, CBI submitted charge sheet against the appellant recommending his trial in open Court under Section 489B/511 and under Section 489C of the IPC.

5. The learned Sessions Judge of City Sessions Court at Calcutta, from the necessary papers placed before it. framed charge against the appellant and since the appellant denied the charge and pleaded his innocence, CBI authority was asked to produce evidence to substantiate the charge framed against the appellant.

6. CBI during trial examined 14 witnesses in all including Shankar Mukherjee, the complainant, several witnesses to search and seizure, Mr. S.K. Joshi. the technical officer of bank note press who submitted report on examination of the counterfeit currency notes and officers of the CBI including the investigating officer.

7. Appellant, during trial and also during his examination under Section 313 of the Cr. PC took a specific plea that out of inter-union rivalry, Shankar Mukherjee hatched a conspiracy against the appellant and in connivance with CBI officers, a concocted case was prepared against the appellant.

8. The learned Sessions Judge of City Sessions Court, after considering the evidence produced by CBI during trial particularly with reference to the search and seizure taken place at "Gyan Sweets", came to the conclusion that appellant, was found in possession of several counterfeit currency notes and with reference to the report of the expert and statement of the expert as P,W,8, the learned Judge came to the conclusion that all the currency notes found in possession of the appellant were counterfeit notes. The learned Judge mainly banking upon the statement of Shankar Mukherjee P.W. 10 followed by search and seizure of the appellant came to further conclusion that appellant had the intention to exchange the counterfeit currency notes and the learned Sessions Judge, therefore, accepted the prosecution case and held the appellant guilty for the offence both under Section 489B/511 and under Section 489C of the IPC.

9. Appearing in support of the present appeal. Mr. Safiullah after making a general attack against the veracity of the prosecution evidence and thereby calling in question the propriety of the conviction order recorded on such evidence, in fact, has challenged the order of conviction and sentence mainly on legal point.

10. Mr. Safiullah both by his oral submissions as well as by presenting a written note submitted before us that CBI is undoubtedly a creation of Delhi Special Police Establishment Act, 1946 as amended time to time and from Section 3 read with Section 5 and Section 6 of the said Act, it is very much clear that without consent of the concerned State Govenment, CBI has no authority to entertain any criminal complaint or to start investigation regarding such complaint and to submit the charge sheet.

11. Mr. Safiullah both through his oral submission and written note has taken much pain to convince this Court, that by entertaining the complaint from Shankar Mukherjee and without getting prior consent from the State of West Bengal, CBI, in fact, transgressed the domain of the State Government as provided in the Constitution of India more specifically in Article 246 read with Schedule VII of the Constitution of India. Mr. Safiullah submits that it may be argued on behalf of the CBI authority that even on faulty investigation Court can take cognizance and complete the trial resulting conviction of an accused person and only when the accused person would successfully prove that he suffered real prejudice and there was actual miscarriage of justice by such faulty investigation, the Court will come forward to grant, appropriate relief, but, this argument is of no value so far the present, case is concerned, where the State of West Bengal, in fact, suffered from its constitutionally guaranteed position from the illegal and unauthorized Act of the CBI.

12. Mr. Safiullah to substantiate his point that without consent of the concerned State Government, CBI cannot have any authority to investigate into a case within the territory of the particular State, has referred to the decision of the Division Bench of the Patna High Court in the case of J.N. Sahay and Ors. v. The State of Bihar reported in 1982 Cri LJ page 410 and thereafter Kaji Lhendup Dorji v. CBI and Ors. reported in 1994 SCC (Criminal) page 873 and finally K. Chandrasekhar v. The State of Kerala and Ors. reported in 1998 Cr LJ SC page 2897.

13. Mr. Safiullah finally contends that from the entire evidence on record it is found that charge against the present appellant under Section 489B/511 of the IPC was not proved at all since there was no satisfactory evidence to prove all the necessary ingredients of Section 489B of the IPC and accordingly, the conviction order against the appellant under Section 489B/511 of the IPC cannot, be sustained either in fact or in law.

14. Mr. Ranjan Roy. representing the CBI authority, has placed before us the material evidence available with the record and submits that a huge amount of counterfeit currency notes was found in possession of the appellant and the recovery of said currency notes was made following a written complaint that appellant intended to exchange those counterfeit currency notes for genuine currency notes. Mr. Roy contends that P.W. Shankar Mukherjee lodged the complaint regarding possession of counterfeit currency notes by the appellant and also regarding the intention of the appellant to put those currency notes in circulation and thereby to make material gain in the form of collection of genuine currency notes. Mr. Roy submits that following the complaint of P.W. Shankar Mukherjee. CBI officials with the help of independent witnesses like Pradip Kr. Roy, Pranab Saha, Pradip Thakwani recovered the currency notes from the possession of the appellant and on examination of those currency notes by P.W. S.K. Joshi, a Government expert it was ascertained that those currency notes were counterfeit notes. Mr. Roy submits that from the cross-examination of all the material witnesses and also from the reply given by the appellant during his examination under Section 313 of the Cr. PC, it is very much clear that appellant could not impeach the credibility of P.W. Shankar Mukherjee or the credibility of those witnesses who were present at the time of search and seizure. Mr. Roy contends that appellant himself admitted that he met P.W. Shankar Mukherjee on 20th January, 1995 and also on 22nd January, 1995 at "Gyan Sweets" wherefrom the recovery was made by the CBI officials.

15. Mr. Roy, therefore, concludes that in this particular case CBI produced overwhelming evidence to bring home the charge framed against, the appellant and the learned Sessions Judge rightly placed his reliance on such evidence to hold the appellant guilty of the offence under Section 489B/511 and under Section 489C of the IPC.

16. On the point of law as raised by Mr. Safiullah to challenge the order of conviction and sentence, Mr. Roy has referred to the decision of the Hon'ble Supreme Court in the case of Union of India v. Prakash P. Hinduja and Anr. .

17. Mr. Roy with reference to the decision contends that the Hon'ble Supreme Court relying on an earlier decision of the Court in the case of H.N. Rishbud reiterated in the case of Union of India v. P.P. Hinduja and Anr. (supra) that an invalid investigation does not nullify the taking of cognizance or trial based there on and a defect or illegality in investigation however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial.

18. Mr. Roy contends that in the case of Prabhu v. Emperor, reported in AIR 1944 SC page 73 and Lumbhardar Zutshi v. King. AIR 1950 Privy Council page 26, the Court held that if cognizance is, in fact, taken on a police report, initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial.

19. Mr. Roy submits that it is accepted position of law that CBI under the scheme of Delhi Special Police Establishment Act is required to take prior consent while investigating into a criminal complaint within the geographical area of a particular State, but, if a citizen of a particular State approaches the CBI alleging commission of such a crime over which CBI has authority to investigate and the commission of such crime has far reaching consequence not on that State alone, but, on the whole of country, the CBI can accept the complaint and investigate and only if the accused person succeeds afterwards in establishing that he suffered real prejudice for taking action by the CBI and not by the State police and really there has been miscarriage of justice for the action taken by the CBI, the Court will certainly quash the proceeding holding inter alia that investigation by CBI was bad.

20. Mr. Roy contends that Mr. Safiullah both through his oral submission as well as through his written note has argued as if not the present appellant, but, the State of West Bengal has become the victim of the so-called faulty investigation, but. that cannot be actual parameter to raise the points and when Mr. Safiullah did not succeed in convincing this Court about what prejudice the appellant has suffered, it cannot be of any avail to Mr. Safiullah to argue that CBI transgressed the domain of the State Government by investigating into the case without the consent of the State Government. Mr. Roy, therefore, submits that the law point taken by Mr. Safiullah may be of academic interest, but, it cannot be of any help for his client and that point must be rejected and the present order of conviction and sentence must be upheld.

21. In this appeal we have the privilege to consider the written note placed before us both by Mr. Safiullah appearing for the appellant as well as by Mr. Roy representing the CBI authority and we have considered both the written notes along with oral submissions put forward by the learned advocate of both the sides.

22. It will not be out of record to mention that Mr. Safiullah was very much candid and clear that his only point to challenge the order of conviction and sentence centers around the question of legality and propriety of the investigation started by the CBI on the basis of a complaint from a citizen within the territory of this State.

23. Mr. Safiullah in spite of our request and asking could not satisfy us as to how the appellant was prejudiced or whether there was really any miscarriage of Justice from the investigation of the complaint by CBI.

24. We find from Notification No. 228/8/89 - AVD. II, dated 07.09.1989 that CBI has the authority and Jurisdiction to investigate into any allegation relating to commission of an offence under Section 489B and 489C of the IPC and at the same time, we agree with Mr. Safiullah that there was no consent derived from the State Government in the matter of investigation into the complaint of Shankar Mukherjee relating to the commission of the offence by the appellant under Section 489B and 489C of the IPC.

25. From the decisions referred to by Mr. Safiullah we further gather that under Section 6 of the Delhi Special Police Establishment Act. 1946, consent of the concerned State Government is a condition precedent for starting any investigation by the CBI within the territory of a concerned State.

26. Now, the crucial question for consideration is if in a case there is an allegation touching an issue which has far reaching consequences and which, in fact, affects the economy of the country as a whole and if a citizen on bona fide and good faith lodges a complaint before the CBI authority considering the gravity of the alleged offence and CBI authority starts investigation and finally submits charge sheet and a trial is concluded on such charge sheet whether it is open to the person concerned to raise the plea that CBI by such investigation without the consent of the State Government transgressed the domain of the State Government from the constitutional point of view and if the person concerned does not agitate any prejudice suffered by him for such investigation without the consent of the concerned State Government.

27. It is pertinent to mention that in the case of CBI v. Rajesh Gandhi and Anr. reported in 1997 Cr LJ page 63 at para 8 it was observed by the Hon'ble Supreme Court that the decision to investigate or the decision on the agency which should investigate does not attract principles of natural justice. The accused cannot have a say in who should investigate the offence he is charged with. Similarly, in this particular case, the appellant cannot have any choice as to who should investigate regarding the complaint lodged against him by a citizen. The question, however, will remain for consideration as to whether without consent when CBI investigated into the case and submitted the charge sheet and subsequently the Court having taken cognizance thereon commenced the trial, the appellant can raise this question without canvassing the prejudice suffered by him or without highlighting the miscarriage of Justice resulted from such investigation without consent.

28. We find that almost identical question as raised in this appeal came up for consideration before the Hon'ble Supreme Court in the case of Union of India v. P.P. Hinduja and Anr. (supra) and to appreciate the points taken by Mr. Safiullah and Mr. Roy in this regard we may profitably quote para 20 of the said Judgment below:

An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the Court may also be examined. Section 5A of the Prevention of Corruption Act. 1947 provided that no police officer below rank of a Deputy Superintendent of Police shall investigate any offence punishable under Sections 161, 165 and Section 165A of the IPC or under Section 5 of the said Act without the order of a Magistrate of the First Class. In H.N. Rishbud (supra) the investigation was entirely completed by an officer of the rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The Special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but, the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the Judgment of the High Court was dismissed and the following principle was laid down: .

The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But. it does not necessarily follow that an invalid investigation nullifies the cognizances or trial baaed thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings @ page-SC 2622 or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot, be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading "conditions requisite for initiation or proceedings." The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance of an invalid police report is prohibited and is. therefore, a nullity. Such an invalid report may still fall either under Clause (a) or (b) or Section 190(1) (whether it is one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial.

29. The Court after referring to Prabhu v. Emperor AIR 1944 SC 73 and Lumbhardar Zutshi v. King AIR 1950 PC 26 held that if cognizance is, in fact, taken on a police report initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. This being the legal position, even assuming for the sake of argument that the CBI committed an error or irregularity in submitting the charge sheet without the approval of CVC. the cognizance taken by learned Special Judge on the basis of such a charge sheet could not be set aside nor further proceedings in pursuance thereof could be quashed. The High Court has clearly erred in setting aside the order of the learned Special Judge taking cognizance of the offence and in quashing further proceedings of the case. 1945(46) Cri. LJ 119 : 1950(51) Cri. LJ 644."

30. As we have already stated Mr. Safiullah both in his oral submission as well as through his written note challenged the action of the CBI in the matter of taking up of investigation without the consent of the State Government mainly on the ground that by doing so CBI ignored constitutional mandate touching our basic principle of constitution, but, not a single word was uttered by Mr. Safiullah to satisfy us that there was any prejudice caused to his client or there has been any real miscarriage of justice and following the ration of decision of the Hon'ble Supreme Court as mentioned in para 20 already referred, we are of clear view that this point of Mr. Safiullah has got no force at all in the eye of law.

31. Now, coming to the merit of the present appeal, we find that CBI authority in presence of independent witnesses recovered huge amount of counterfeit currency notes from the possession of the appellant and report of the expert sufficiently corroborated that those notes were really counterfeit notes and from the evidence of P.W. Shankar Mukherjee, we have sufficient reasons to hold that appellant had not only in his possession those counterfeit currency notes, but, he had the real intention to put those currency notes into circulation for his material gain and thereby having regard to the prosecution evidence which was not impeached in any way during trial, we hold firmly that appellant was guilty of both the offence under Section 489B/511 of the IPC as well as Section 489C of the IPC and the learned Judge made on mistake in placing reliance on the prosecution evidence and in convicting the appellant accordingly.

32. Thus, having regard to the submissions of both the sides along with their written note, we are of the view that there is no merit in this appeal.

The appeal is, therefore, dismissed.

The order of conviction and sentenced passed against the appellant are hereby confirmed.

We find from record that appellant was released on bail after admission of this appeal and we hereby cancel the bail bond of the appellant and direct him to surrender before the learned Trial Court within 15 days from this order failing which the Trial Court will take steps in accordance with law to send the appellant to jail to serve out the sentence.

Send a copy of this Judgment and order to the Trial Court immediately along with entire record.

Xerox certified copy of this Judgment and order may be supplied to the parties on making proper application and after complying with all necessary formalities.

The prayer for certificate to prefer appeal before the Hon'ble Supreme Court is considered and rejected.

Pranab Kumar Deb, J.

33. I agree.