GOBINDA CHANDRA CHATTERJEE,J. - (1.) THIS revisional application is directed against order No. 29 dated 7 -11 -81 and the subsequent order No. 30 dated 27 -11 -81 passed by Sri N.M. Bhattacharya, Special Court Judge in. Case No. 41 of 1978 refusing to take cognizance of an offence under the Special Court Act except on a written complaint and directing release of the accused -opposite parties Nemai Chand Mohanta and Anil Kumar Chakraborty.
(2.) WHAT happened is that on 7 -11 -81 during pendency of the aforesaid criminal case both the two accused -opposite parties remained absent. It suddenly occurred in the mind of the learned Special Judge that a formal complaint in the record was miserable wanting. This goaded the learned Judge to observe as follows: "It may be reiterated once again that by no stretch of imagination can I convince myself that cognizance can be taken out of nothing or upon allotment order or upon perusal of lower court's record. Court is to take cognizance of an offence and not of an allotment." The matter was again taken up on 27 -11 -81. On that day the Court observed as follows: "It is unthinkable that without a written complaint being filed, the court can be expected to take cognizance out of nothing thereby violating the mandatory provisions of the B.C.I.A. (Spl. Court) Act and indulging in an irregularity which will surely vitiate the trial at the end." So saying the learned judge released the accused persons from their bail -bonds and filed the case. Being aggrieved thereby the State has preferred this revisional application on the ground that formal complaint is not necessary in a Special Court's case and that the learned Judge ought not to have discharged the opposite parties on that court alone. Before me no one appeared on behalf of the opposite parties Mr. Mondal, the learned Advocate appearing for the State petitioner as invited my attention to a Full Bench decision of this Court reported in A.I.R. 1961 Cal 560 which states as per majority view -"I therefore answer the first question before the Full Bench by holding that the Special Court under the West Bengal Criminal Law Amendment (Special Court) Act 1949 does not need a petition of complaint for taking cognizance of the case and can take cognizance on receiving a Government order of distribution under section 4(2) of the Act and on the record of the case from the court of the Magistrate by applying his mind to the facts of the case for the purpose of frying the offence under the Act." Mr. Mondal also draws my attention to the Supreme Court's decision reported in Alit Kumar Palit v. The State of West Bengal2. Mr. Mondal in clarifying the principle of law involved in the two cases referred to above goes on to say that Section 190 Cr. P.C. was totally misconstrued by the learned Special Judge. Section 190, according to Mr. Mondal, does nowhere state specifically that a Judge or Magistrate cannot take cognizance of a case otherwise than on a complaint in writing. In a sessions triable case for example, continues Mr. Mondal, the Judge goes on hearing the case on the basis of a commitment order. Even so, in a Special Court case the Judge concerned may derive his jurisdiction on some extraneous materials other than the complaint spoken of in Section 190 Cr. P.C.
(3.) MR . Mondals right in his submission, for it would transpire from the Fun Bench decision referred to above and relied upon by Mr. Mondal, that a written complaint is not at all a necessity for conferring jurisdiction or cognizance upon the Special Court Judge. The Full Bench is quite explicit on the point that a mere allotment order would remove the deficiency, if there be any. Mr. Mondal draws my attention to the Notification No. 8587 -J dated 1st June, 1978 whereby the Governor was pleased to distribute to the Burdwan Special Court the case of Nemai Chand Mohanta and Amit Kumar Chakraborty, the two accused persons in connection with the instant case. Relying upon the Full Bench decision Mr. Mondal says that this allotment by itself is enough to empower the Special. Court to go on with the case.;