DIBYENDU BHUSAN DUTTA, J. - (1.) THE instant application under section 482 of the Code of Criminal Procedure is directed against the proceeding being C.R. Case No. 9 of 1997 under sections 161, 167, 420, 422 of the IPC pending before the Second Court of Judicial Magistrate, Midnapore.
(2.) THE petitioner is working as senior Project Manager, South Eastern Railway, Kharagpore. On 9.12.96, the opposite party filed a petition of complaint in the Court of Chief Judicial Magistrate, Midnapore against the petitioner on the following allegations. The complaint is a registered government contractor and an enlisted contractor of South Eastern Railway. The Chief Project Manager, South Eastern Railway, Gardenreach, Calcutta invited a tender for construction of overhead storage tank and also for sinking deep tube -well at Kharagpore complex. The total estimated amount for the project was Rs. 44, 48, 821. The tender of the complainant was accepted. The complainant had executed a part of the work as per directions given by the petitioner and submitted a bill for Rs. 11,90,000/ - to the petitioner. The petitioner asked for a bribe of Rs. 30, 000/ - which was given by the complainant, but even then the petitioner did not pass the bill. The petitioner asked for payment of ten percent of the bill amount for passing the bill. The complainant refused to make the payment whereupon the petitioner became furious and threatened the complainant with dire consequences. The petitioner fabricated some official papers illegally to cause harm to the complainant.
(3.) THE Ld. Chief Judicial Magistrate, Midnapore was pleased to take cognizance upon that complaint for offences punishable under sections 161, 167, 218, 420, 422 and 120B of Indian Penal Code and transferred the case to the Second Court of Judicial Magistrate, Midnapore for disposal. The transferee court examined the complainant and his witnesses under section 200 Cr. P.C. and was pleased to find a prima facie case under section 161, 167, 420, 422 of the IPC against the petitioner and accordingly, issued warrant of arrest against the petitioner. Mr. Dilip Dutta, appearing for the petitioner assailed the legality of the criminal proceeding on the following grounds. It was urged that section 161 of the IPC has been repealed by section 31 of the Prevention of Corruption Act, 1988 and as such, taking of cognizance and issuing of process under section 161 IPC was bad. Secondly, it was urged that the documents alleged to have been prepared by the petitioner have not at all been specified. If it be assumed that the petitioner had committed an offence under section 167 IPC even then the previous sanction under section 197 of the Code of Criminal Procedure would be necessary to prosecute the petitioner for an offence punishable under section 167 of the IPC and in the absence of a sanction, it is contended that the cognizance of an offence under section 167 IPC even then the previous sanction under section 197 of the Code of Criminal Procedure would be necessary to prosecute the petitioner for an offence punishable under section 167 of the IPC and in the absence of a sanction, it is contended that the cognizance of an offence under section 167 IPC against the petitioner was bad. Thirdly, it was contended that the complaint does not disclose any element of the offence of cheating as punishable under section 420 of the IPC that in view of section 4(1) of the West Bengal Criminal Law Amedments (Special Courts) Act, 1949 read with item No. 3 of the schedule thereof, and offence under section 420 IPC is exclusively triable by a Special Court and as such, the Magistrate has no jurisdiction to take cognizance of an offence under section 420 IPC as against the petitioner who is a public servant. Lastly, it was contended that for taking cognizance of an offence under section 422 IPC against the petitioner, absence of sanction under section ( - sic -) Cr.P.C. would be fatal. For the above reasons, it is argued by Mr. Dutta that the continuance of the impugned criminal proceeding would be abuse of the process of the court and as such, the proceeding should be quashed.;