Subir Kumar Ghosh Vs. Prasar Bharati Broad Casting Corporation of India - Court Judgment

Excerpt:
- bhaskar bhattacharya, j.1. this appeal is at the instance of a writ petitioner and is directed against the order dated 22nd may, 2003 passed by a learned judge of this court thereby disposing of an application under section 340 of the code of criminal procedure by directing the registrar, original side of this court to enquire into the allegations made by the respondent as regards the alleged offence committed by the appellant under section 196 of the indian penal code with further direction to lodge complaint before the chief metropolitan magistrate, calcutta, if on such enquiry, just reason was found for lodging such complaint.2. the present appellant filed various writ applications before this court including the one, being w.p. no. 1510 (w) of 1999, claiming a compensation of rs. 10 crore. the said writ application was disposed of on october 4, 1999. the respondents herein, subsequently, filed an application under section 340 of the code of criminal procedure before the learned single judge alleging that the present appellant made various false statements and relied upon fabricated documents and letters with a view to induce the writ court to have an order in his favour.3. such application was opposed by the present appellant and ultimetely, a learned judge of this court after considering the respective submissions of the parties made the following observation:i have heard the learned advocates for the parties. i have perused the records and i am of the opinion that the allegations which have been made by mr. sarkar's client in this application, are serious in nature, and those have to be investigated properly. an ad interim order was passed in terms of prayer (d) and the registrar, original side was directed to keep the said original writ petition w. p. no. 1510(w) of 1999 in the safe custody. after analysing the facts it would be proper for me to pass an order in terms of prayer (a) of this application and with a direction to complete the enquiry by the registrar, original side within a period of a month from date and on enquiry if it appears that there are reasons to lodge a complaint against the writ petitioner/ respondent (dr. subir kumar ghosh) before the chief metropolitan magistrate, calcutta. registrar, original side is directed to lodge a complaint accordingly before the said learned magistrate.accordingly, there will be an order in terms of prayers (a) and (b) and the interim order already passed in this matter stands confirmed.4. being dissatisfied, the writ petitioner has come up with the present appeal.5. mr. basu, the learned advocate appearing on behalf of the respondent, has taken a preliminary objection as to the maintainability of the present letters patent appeal against the order disposing of application under section 340 of the code of criminal procedure. according to mr. basu, if an order under section 340 of the code is passed by a learned judge of a high court, in view of clear provision contained in section 341 of the code, an appeal against such order is specifically barred and as such, the present letters patent appeal against the order of the learned single judge disposing of an application under section 340 of the code is not maintainable.6. in support of such contention mr. basu has placed strong reliance upon a decision of the division bench of this court in the case of pashupati nath de v. murari mohan de reported in 81 cwn 762.7. before entering into the merit of the appeal, we propose to dispose of the aforesaid preliminary objection raised by mr. basu.8. it is true that a division bench of this court in the case of pashupati nath de v. murari mohan (supra), came to the conclusion that section 341 of the code of criminal procedure having prohibited filing of an appeal against an order passed under section 340 of the code if such an order is passed by a judge of the high court, even a letters patent appeal before a division bench of this court against such an order is not maintainable,9. we, however, find that the principle laid down in the aforesaid division bench decision is no longer a good law in view of the recent decision of a bench of the supreme court consisting of five-judges in the case of p.s. sathappan v. andhra bank ltd. reported in : air2004sc5152 , where the majority of the judges of the said bench has held that in order to exclude the jurisdiction conferred by the letters patent to hear an appeal against an order of the learned single judge, specific provision must be appearing in the relevant statute explicitly excluding such jurisdiction. the supreme court in the said case approved the earlier decision of a bench of two-judges of the supreme court in the case of vinita m. khanolkar v. pragna m pai reported in : air1997sc4415 . in the said case of vinita m khanolkar (supra), the question was whether a decree passed by a learned judge in the original side of the bombay high court under section 6 of the specific relief act could be challenged by preferring an appeal under clause 15 of the letters patent before the division bench although, according to section 6 of the specific relief act itself, such decree is not appealable. the supreme court in that case held that the letters patent being a law for the time being in force, even if the provision in a particular statute debars further appeal from an order, such provision cannot take away the right of appeal under clause 15 of the letters patent. the majority of the larger bench of the supreme court in the case of p. s. sathappan (supra), has reiterated the same view and has pointed out that in order to exclude the operation of letters patent appeal, there must be explicit bar and mentioned by way of illustration, the provision of section 100a of the code of civil procedure where the right to prefer appeal under clause 15 of the letters patent act has been specifically taken away. in the code of criminal procedure, there is no provision prohibiting the application of the letters patent in case of an appeal under section 341 and on the other hand section 5 thereof saves the special or local law for the time being in force or the special jurisdiction or power conferred by other law for the time being in force.10. in view of the aforesaid subsequent decision of the supreme court of a larger bench, we are of the view that the earlier bench decision of this court in the case of pashupati nath de v. murari mohan (supra), is no longer a good law. the provisions of the letters patent must be held to be an existing special or local law within the meaning of section 5 of the code of criminal procedure which pari materia with the provisions contained in section 4 of the code of civil procedure and therefore, the principle laid down in those two supreme court decisions squarely apply to the facts of the present case. we, therefore, turn down the preliminary objection raised by mr. basu.11. as regards the merit of the matter, we find that the learned single judge after recording the contentions of the parties merely came to the conclusion that a preliminary enquiry in terms of section 340 of the code of criminal procedure should be held and thereafter, delegated such power to the registrar, original side with specific direction to enquire into the matter conferring further authority to the effect that if the registrar was of the view that there was sufficient reason, he would lodge a complaint.12. in our opinion, the power of preliminary enquiry mentioned in section 340 of the code of criminal procedure cannot be delegated to any other person by the judge before whom the offences mentioned in that section had been allegedly committed.13. moreover, it is now settled law that before a direction is given to lodge complaint under the said section, it is for that court to arrive at the conclusion after preliminary enquiry, if any, whether the allegations have prima facie substance and whether it is expedient in the interest of justice to lodge a complaint in order to probe into the allegations and recording of such satisfaction by the court is imperative [see pritish v. state of maharastra reported in : 2002crilj548 ; b.k. gupta v. damodar h bazaz reported in : (2001)9scc742 ; phiroz dinshaw lam v. union of india reported in 1996(6) scc 209;] and that duty could not be entrusted to the registrar, original side.14. we, therefore, find that there is an error apparent on the face of the order of the learned single judge in delegating such authority to the registrar, original side and the lodging of a complaint on the basis of such satisfaction of the registrar, original side itself vitiates the proceedings in view of section 195(1) of the code of criminal procedure. in this connection reference may be made to the decision of the supreme court in the case of randhir singh v. state of haryana reported in : 2000crilj755 where the apex court recalled its own order of conviction passed earlier on an application under section 340 of the code of criminal procedure for non-compliance of the provisions contained in section 195 of the code.15. mr. basu, in this connection, vehemently contended before us that this bench being the appellate court should itself consider whether it is a fit case for lodging complaint under section 340 of the code. as the learned judge before whom the offence was alleged to have been committed himself had not come to any conclusion in this regard, we are not inclined to enter into such question. it is for the respondent to first convince the learned judge that a prima case has been made out and that it is expedient in the interest of justice that a complaint should be lodged and in the absence of any such finding, this court, of its own, should not probe into such enquiry.16. mr. basu as a last resort relied upon a decision of the supreme court in the case of state v. t. venkatesh murthy reported in : air2004sc5117 in support of this contention that this court should not interfere with the order impugned merely because there was irregularity in passing direction for lodging complaint, unless such irregularity in the order impugned has occasioned failure of justice. after going through the said decision, we find that the supreme court was dealing with a case under the prevention of corruption act, 1988 and section 19(3)(a) of the said act itself provides that no finding, sentence or order passes by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact occasioned thereby. in the case before us, there is no such statutory provision, on the other hand, as pointed out earlier, the supreme court in the case of randhir singh v. state of haryana (supra), itself had recalled an order of punishment earlier passed by it on the ground that the requirement of section 340 was not complied with. therefore, the aforesaid decision in the case of t. venkatesh murthy (supra), cannot have any application to the fact of the present case.17. we, therefore, set aside the order passed by the learned single judge only on the ground that the direction passed by his lordship asking the registrar of the original side to enquire and record satisfaction was not in conformity with the provisions contained in section 340 of the code of criminal procedure.18. we accordingly remand the matter back to the learned trial judge for considering whether it is expedient in the interest of justice to lodge a complaint in terms of section 340 of the code without delegating the enquiry to any other person.19. the appeal is, thus, allowed. in the facts and circumstances, there will be, however, no order as to costs.pravendu narayan sinha, j.20. i agree.