Siddhartha Chattopadhyay, J. - (1.) CHALLENGING the order dated 19.07.2014 passed by the Learned 3rd Special Judge, Bichar Bhawan in connection with Special Case No. 17 of 2004 the accused petitioner has filed this application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973. According to the petitioner, Learned Court below failed to take into consideration that as per Section(c) explanation (ii) of the Prevention of Corruption Act, 1988, the present petitioner is not a public servant and so he is not liable to be tried by a Special Court. According to him, by virtue of his retirement from the service he was no longer a public servant on the date of taking cognizance of offence and so he may be tried by a Judicial Magistrate. He also raised his eyebrow contending inter alia that the Learned Court below failed to appreciate that the sanction is necessary to prosecute the petitioner. He contended that there was ever any meeting of minds of the petitioner and the other accused persons to establish the allegation of criminal conspiracy. Ventilating his such grievances, by filing the aforesaid application, he prayed for quashing of the proceedings being Special Case No. 17 of 2004 and also to set aside the impugned order dated 19.07.2014.
(2.) AS against this Learned Counsel appearing on behalf of the opposite party C.B.I., has contended that the impugned judgment does not call for any interference in view of settled position of law. According to him, Learned Court below had taken care of all legal aspects as well as material aspects in its proper perspectives. The seminal issues spiralled in the course of hearing of this application centres around the following law points: - - "(1) if a sanction is required in connection with offences under Prevention of Corruption Act against a superannuated public servant? (2) If a superannuated public servant will be tried by Special Court or by the Judicial Magistrate -
(3.) LEARNED Counsel appearing on behalf of the petitioner had contended that if the accused ceased to be a public servant when the Court took cognizance of the offence, in that case proceedings will be vitiated. In support of his such contention he has referred to decision reported in : 2004 (6) SCC 59 State of West Bengal v. Sadan Kumar Bormal & Anr. In that case the Hon'ble Apex Court held that though the Special Court was earlier empowered to try offences under the Act of 1947 since no such jurisdiction was conferred upon it afresh after coming into force of the Act of 1988, (which repealed the Act of 1947), it had no jurisdiction to try such offences after coming into force of the Act of 1988. He has also relied on the decision passed in connection with C.R.R. No. 3871 of 2011 (Ramkrishna Goswami v. The State of West Bengal & Anr. According to him, on the basis of the ratio as laid down by the Hon'ble Apex Court, the Special Court has no power to try the case of this present petitioner accused and at the same time sanction is required to prosecute even if he is an ex -public servant.;