- (1.) By filing the present Application the petitioner prays for quashing of the proceedings in Special Case no. 10 of 2001 ( State Vs. Sudhir Behera and Ors.) arising out of R.C Case No. 3 (e) /99/ SIU (X)/ CBI/ New Delhi Under Sections 120B/420/511 of the IPC now pending before the learned 3rd Special Court, Calcutta. The petitioner also prays for quashing of the order dated 26th November 2013 passed by the learned Magistrate in the said case. The petitioner has further prayed for an interim order directing stay of all further proceedings in Special Case no. 10/2001 (State Vs. Sudhir Behera and Ors) now pending before the learned Magistrate. Sri Sudipta Moitra, learned Senior Counsel appearing on behalf of the petitioner submits that by order dated 17th of February 2012 the learned Magistrate was pleased to take up for consideration the petitions filed by the accused nos. 2 to 5 and the accused numbers 6 to 8 under Section 239 Cr.P.C praying for discharge from Special Case No. 10 of 2001. The present petitioner is the accused no. 7 in Special Case no. 10 of 2001.
(2.) Taking this court to the said order dated 17th of February 2012 Sri Moitra submits that the learned Magistrate was pleased to discuss the charges against all the accused persons, including the present petitioner as contained in the charge sheet in detail . According to Sri Moitra, the petitioner cannot be arraigned under Sections 13(2) and 13(1) (d) of the Prevention of Corruption Act in view of the fact that the petitioner is a private individual. However, the other charges under Section 420, 120 B, 511 were framed against the petitioner along with the other accused persons and came up for consideration at the time of hearing of the discharge application by the learned Magistrate. Sri Moitra also points out that written objection was filed by the prosecution to the discharge applications filed on behalf of each of the accused persons 2 to 8.
(3.) The learned Magistrate by his order dated 17th February 2012 was pleased to, inter alia hold as follows: - "on perusal of materials on record and in CD, it transpires that accused numbers 6 and 7 are admittedly private persons for which no charge can lie against them under the provisions of Sections 13(1) (d) read with 13(2) of the P.C. Act, 1988. It further transpires that though the offence punishable under Section 420 IPC was not complete there are sufficient materials to show that the accused numbers 2 to 8 had attempted to commit the offence of cheating punishable under Section 420 IPC. Moreover, attempts of committing offence of cheating appear to have been done in criminal conspiracy of the accused persons with each other and as such, except the offence of cheating was apparently not complete and wrongful loss and wrongful gain was not caused to any of the accused persons ultimately as it appears from the materials on record there are sufficient materials to say there were attempts of cheating by the accused persons in criminal conspiracy with each other whereby the bank officials had also been guilty of professional misconduct. Considering the materials on record and in CD along with submission of learned advocate of both sides, I am constrained to hold that there is a prima facie under Section 120 B/420 /511 IPC and Section 13 (2) read with section 13(1) (d) of P.C Act 1988 and also against Nos. 6 and 7 U/S 120B,420,511 IPC and in the given premises, the petition filed by the accused Nos. 2 to 5 under Section on 239 Cr.P.C on 19.7.2010 and petition filed on behalf the accused No. 6 to 8 under Section 239 CrPc on 3.8.200 are liable to rejected and hence, both the said petitions are rejected on costs. without contest. To 23.04.2012 for framing of charges". Sri Moitra further argues that on the 19th of September 2013 the learned Magistrate was pleased to fix 26th November 2013 for framing of charges. Thereafter, by order impugned no. 206 dated 26th of November 2013 the learned Magistrate was pleased to record as follows: "All the accused persons on bail are present in Court by filing haziras with their Ld. Lawyers. Ld. P.P. is present today. Today is fixed for framing of charge. Ld. Sr. P.P. appearing on behalf of prosecution initiated the trial of this case by reading out charge of this case against the accused person. The entire incident along with the ingredients of the sections of the law is uttered in presence of the accused person before this court. The contents of the charge is read over and explained before the accused person in their language to which they pleaded not guilty and claimed to be tried. Ld. Advocate appearing on behalf of the accused person did not dare to oppose the charge against the accused person. After careful consideration of materials on record, I find there is no materials to frame the charge under Section 511 IPC. Accordingly, charge against the accused person is framed under Section 120B/420 IPC and Section 13(II) R/W Sec 13 (i) (d) of PC Act1988. A separate sheet of charge is kept in the record. Fix 21.01.2014 for Pws. Prosecution is directed to issue summon upon the witness." Sri Moitra vehemently argues that there is a discrepancy in the application of mind demonstrated by the learned Magistrate while passing his order dated 17th February 2012 and the subsequent order framing charges dated 26th November 2013. According to the learned Senior Counsel for the petitioner, in the order dated 17th February 2012 the learned Magistrate was pleased to notice the fact that the offence of cheating and criminal conspiracy were not complete in respect of the accused persons, including the present petitioner. The learned Magistrate on the 17th February 2012 was pleased to record, inter alia that the materials show an attempt to commit the offence of cheating. Besides, the learned Magistrate was pleased to further hold on 17th February 2012 that the attempt at cheating by the accused persons also shows criminal conspiracy in attempting to commit such act and the accused bank officials were held to be guilty of professional misconduct.;