State vs That during the course of investigation, it was revealed that the bank a

Judgment

1. ed Special Judge, CBI, Assam, Guwahati is under challenge. (cid:28)IN THE COURT OF SPECIAL JUDGE, CBI, ASSAM GUWAHATI Spl. Case No. 2/2009 Dtd. 30.09.2010

ORDER Record put up along with the petitioner No. 2138/10 filed by Sh. Rohit Kapoor, A ddl. S.P., CBI, ACB, Guwahati. I.O. of the case with a prayer for transferring t he original FIR and the records of thecase to the Court of 3rd Special Judge, Bh ankshal, Kolkata for the purpose of trial. It is contended in the petition that the offence was committed in Kolkata and the accused persons received entire def raud amount at Kolkata after debiting the account of N.F. Railway with RBI, Kolk ata. Heard Mr. A. Bhattacharya, Ld. Asstt. P.P. in this original FIR of the case . Statements so recorded under section 164 Cr.P.C. and the bail bond if availabl e on records may be handed over to the petitioner with due acknowledgment. The p etition is disposed of accordingly. Special Judge,CBI Asssam, Guwahati (cid:29)

2. Another prayer made in the writ petition is to issue direction to the re spondents, particularly the respondent Nos. 2, 3 and 4 to resubmit the charge sh eet of the Special Case (which has already been submitted in the CBI Court at Ko lkata) in the competent Court at Guwahati, i.e. Special Judge, Assam, Guwahati f or trial.

3. Shortly stated the facts leading to filing of the instant application ar e that one cheque book belonging to Railways containing 50 cheques got lost from Tinsukia Railway Division of N.F. Railways of which 9 cheques had already been issued out of which 7 cheques had already been encashed amounting to Rs. 1,32,82 ,341/-. The beneficiary of the encashed cheques is one M/s. Saha Enterprises, Ko lkata.

4. An FIR was lodged by the Chief Vigilance Officer, Maligaon N.F. Railways , Guwahati with the Superintendent of Police, CBI, Guwahati on receipt of which and upon disclosure of prima facie commission of an offence under Section 120(B) /409/467/471 IPC and Section 13 (2) read with Section 13 (1) (c) of the Preventi on of Corruption Act, 1988, a regular case was registered and the investigation was entrusted to Addl. Superintendent of Police, CBI, ACB, Guwahati. In due cour se, CBI forwarded the said FIR to the learned Special Judge, Guwahati and accord ingly the case was registered as Special Case No. 02/2009 under the aforesaid Se ctions of the IPC and the Prevention of Corruption Act.

5. That by Annexure-B application dated 04.09.2009, CBI prayed to the learn ed Special Judge, CBI, Assam for police custody of the petitioner on the ground of his identification on the basis of the source information that he had stayed with another accused in a hotel at Kolkata on 29/30.10.2009. The application dis closed his arrest in the office of the Superintendent of Police, CBI, ACB, Guwah ati. The prayer made in the application was to grant police custody of the petit ioner. The prayer appears to have been granted. However, the petitioner was enla rged on bail on the basis of the order dated 20.11.2009 passed by this Court in BA No. 4604/2009

6. While the matter rested thus, the petitioner received summons dated 08.0 3.2011 from the Court of 3rd Special Judge, Kolkata directing him to appear befo re the said Court on or before 25.03.2011. On enquiry, the petitioner came to kn ow that after completion of the investigation of the case, the CBI submitted cha rge sheet on 28.09.2010 in the Court of the 3rd Special Judge, CBI, Kolkata. Pre sently, the Special case is pending at the stage of constitution of charge.

7. It appears that on 30.09.2010 the I.O. moved an application before the l earned Special Judge, CBI, Assam, Guwahati with the prayer for transfer of the o riginal FIR and records of the case to the Court of the learned 3rd Special Judg e, Kolkata for the purpose of trial. The prayer so made was on account of revela tion through investigation that the bank account of Tinsukia Division of N.F. Ra ilway was with RBI, Kolkata and that all the 7 (seven) cheques in question were deposited and encashed at Kolkata and therefore the substantive office punishabl e under Section 13 (1) (d) of the Prevention of Corruption Act, 1988 was committ ed at Kolkata inasmuch the accused persons received the entire defrauded amount at Kolkata after debiting the account of N.F. Railway with RBI, Kolkata. The app lication also revealed that the charge sheet in the case was filed in the Court of 3rd Special Judge, Kolkata on 28.09.2010 alongwith said the said application. Copies of the charge sheet and the acknowledgment of the Court of the 3rd Speci al Judge, Kolkata were also enclosed.

8. On the basis of the said application, learned Special Judge, CBI, Assam, Guwahati having passed the order dated 30.09.2010 allowing the prayer made in t he application, the petitioner has filed the instant application seeking interfe rence with the same. For a ready reference, the impugned order dated 30.09.2010 is reproduced below: (cid:28)IN THE COURT OF SPECIAL JUDGE, CBI, GUWAHATI In the matter of CBI case RC 1(A)/2009/GWH/CBI through CBI, ACB, Guwahati Shri K.L. Roy, the then ADFM, Tinsukia, NF Railway and ors. It is submitted State Vs. That the FIR of case RC 1(A)/2009/GWH/CBI dated 20.01.2009 relating to e

1. ncashment of fraudulent railway cheques is pending in this Hon’ble Court. 2. That during the course of investigation, it was revealed that the bank a ccount of Tinsukia dvision of NF Railway was with RBI, Kolkata. All the 7 cheque s in question were deposted and ecnashed at Kolkata. Therefore, substantive offe nce punishable under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 was committed at Kolkata in as much as accused persons received entire def rauded amount at Kolkata after debiting the account of NF Railway with RBI, Kolk ata. Therefore, the Charge sheet in the case was filed in the Court of 3rd Speci al Judge, Bankshal, Kolkata on 28.09.2010. A copy of the Charge Sheet and acknow ledgement of the Court of 3rd Special Judge, Bankshal, Kolkata are enclosed for ready reference. PRAYER It is therefore, prayed that this Hon’ble Court may kindly transfer the original FIR and records of the case to the Court of 3rd Special Judge, Bankshal, Kolkat a for the purpose of trial. It is further prayed that the said records may be ha nded over to CBI in person so that the same can be sent to the competent court t hrough special messenger. Sd/- Addl. Suptd. Of Police CBI, ACB, Guwahati Investigating officer (cid:29)

9. Dr. B. Ahmed, learned counsel for the petitioner in his long and elabora te argument submitted hat the CBI having registered a case vide CBI Case No. RC 1(A)/2009/GWH/CBI on the basis of the FIR dated 13.01.2009 lodged by the Chief V igilance Officer, NF Railway, Maligaon, Guwahati on the basis of which the Speci al Case No. 2/2009 under the aforesaid provisions of IPC and PC Act was register ed by the learned Special Judge, CBI , Assam, Guwahati, the charge sheet of the case ought to have been submitted in the said Court only for trial instead of su bmitting the same in the Court of the learned 3rd Special Judge, CBI, Kolkata. H e further submitted that the learned Special Judge, CBI, Assam has committed man ifest error of law in allowing the prayer for transferring the FIR and records t o the learned 3rd Special Judge, CBI, Kolkata. He also argued that there cannot be two different cases instituted on the basis of the same FIR. According to him , there being a competent Court at Guwahati to take cognisance of the offence, t he investigating authority (CBI) could not have submitted its report/ charge she et in the Court at Kolkata.

10. In support of his aforesaid submissions, Dr. Ahmed, learned counsel for the petitioner has referred to number of decisions of the Apex Court and variou s High Courts including this Court. The decisions are as follows: 2006 CRI. L. J. 4152 (Avinash Singh and anr. Vs. 1) State of Chhattisgarh and anr.) (2010) 7 SCC 799 (Bhiaru Ram And ors. vs. 2007 CRI. L. J. 3290 ( Mrs. Geetha and ors. vs Arunakumari) 2007 CRI. L. J. 3011 (Mina Patel vs. State of W.B. and anr.) (2010) 5 SCC 115 (Central Bureau of Investigation vs. Hopeson Ningshen a 2008 CRI. L. J. 397 ( Bank of Rajansthan vs. Keshav Bangur and anr.) 2008 CRI. L.J. 1725 (M.L. Sharma and ors. vs. Central Bureau of Investig 2007 CRI. L.J. 2929 (V.K. Puri vs. Central Bureau of Investigation) (2011) 1 SCC 307 (Nahar Singh Yadav and anr. vs. Union of India and ors. 2) Central Bureau of Investigation and ors.) 3) 4) 5) nd ors.) 6) 7) ation and ors.) 8) 9) ) 10) 11) 12) 13) of Gujarat) 14) 15) 16)