HIGH COURT OF CALCUTTA
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(1.)THIS is an application under Section 401 (1) of the code of Criminal Procedure, 1974 read with Sections 439 and 561 A of the code of Criminal Procedure 1898 and directed against the order dated 28th november, 1974, passed by the 4th tribunal at Alipore in Tribunal Case no. 1 of 1970 rejecting the petitioner's applications dated 9. 10. 74, 16. 11. 74 and 19. 11. 74. In those petitions several legal and constitutional points were raised.
(2.)THE first question raised was that the cognizance of the offence taken by the Tribunal by Order No. 1 dated 3. 11. 70 is not according to law as there has been a violation of the mandatory provisions of Section 200 of the Code of Criminal Procedure and that this illegality is fatal for the subsequent proceedings. The second point raised was regarding the validity of the Tribunals of Criminal Jurisdiction Act, 1952, It was contended that the Act of 1952, specially Sections 5 and 11, are repugnant to the provision of the New criminal Procedure Code which came into force on 1st of April 1974. Sections 5 and 11 of the Act have become void by operation of proviso to Clause (2) of Article 254 of the Constitution of India. Several other objections were raised in those petitions before the Tribunal, but in this Court only the first two objections have been raised. On both the point as referred to above the Tribunal decided against the petitioner. Being aggrieved the present application has been filed.
(3.)MR. Snehansu Acharya, learned counsel for the petitioner in the first place submits that in this case written complaint was filed by the Assistant commissioner of Police under authority of Deputy Commissioner of Police. The Assistant Commissioner was not competent to file this complaint. He had no knowledge about the facts of the case and he cannot be said that he acted in the discharge of his official duties. He simply filed the complaint as he was directed by the Deputy Commissioner. From these facts Mr. Acharya contends that it was incumbent on the part of the learned Judge to examine the complainant as soon as the complaint was filed and as the complainant was not examined at that time and cognizance was taken, the cognizance so taken was taken illegally. It is true that if a written complaint is filed by a public servant acting or purporting to act in the discharge of his official duties then it comes under proviso (aa) of Section 200 of the Code and in that case the court need not examine the complainant. But from the facts of the present case it cannot be said that the Assistant Commissioner who filed the complaint was acting in the discharge of his official duties and that being so, this case cannot come under proviso (aa) of Section 200 of the Code. Mr. Acharya draws our attention to Order No. 1 dated 3rd November 1970. The relevant portion of the order reads as follows:--
"complaint by Shri Suniti Bhusan Sarkar, Assistant Commissioner of Police authorised by the Deputy Commissioner of Police, Detective Department, calcutta, against Ananta Singh and 51 others is filed today. Perused the complaint. Heard the learned Public Prosecutor Mr. P. C. Ghosh. The relevant notifications published by the Government of West Bengal under the Tribunals of Criminal Jurisdiction act, 1952, are also put up. Copies of gazette notifications have also been filed along with the petition of complaint. These are all perused. Cognizance is taken of the offences alleged against the accused persons under Section 120b IPC read with Sections 302, 307, 326, 396, 397, 412 I. P. C. and under sections 25, 27 of the Indian Arms Act "
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