calcutta high court

Calcutta High Court: While deciding an appeal against two orders by a Single Judge in a writ petition related to a financial scam, a Division bench comprising of Sabyasachi Bhattacharyya* and Uday Kumar, JJ., upheld the Single Judge’s jurisdiction, rejected the argument against intervening after the charge-sheet, and found the orders to transfer the investigation justified. The Court set aside the imposed cost on CID, and baseless aspersions cast against CID were removed from the order.

Factual Matrix

In the instant matter a writ petition was filed by 11 writ petitioners, who are also respondents in this appeal, alleging a significant financial scam involving the Alipurduar Mohila Samabay Rindan Samity Ltd. (the Society). The petitioners claimed to be members of the Society and accused the Society of swindling their investments. Subsequently, they filed complaints with the police, leading to the registration of an FIR and the initiation of a criminal case. The petitioners contended that despite the investigation being transferred to the CID of the State, there was little progress, implying collusion between the CID and the accused.

The Single Judge, vide order dated 24-08-2023, directed the transfer of the investigation from the CID to the CBI of the Eastern Region/Zone and the Enforcement Directorate (ED) of the Eastern Zone. A recall application was filed on behalf of the CID, seeking to set aside the order dated 24-08-2023 which was dismissed by the Single Judge vide order date 15-09-2023, imposing a cost of Rs. 5 Lakh on the CID.

Aggrieved by the impugned orders passed by the Single Judge, the appellant preferred an appeal before this Court, challenging the same.

Moot Point

  1. Whether the Single Judge had the authority to intervene after the charge-sheet was filed, which the appellants argue should be handled by the jurisdictional magistrate?

  2. Whether there were substantial grounds for the CID to retain the investigation, and whether the orders to transfer were justified?

  3. The propriety of the cost imposed on CID.

Appellant’s Contentions

The appellant contended that the Single Judge lacked jurisdiction as the writ petition was akin to a PIL, and only the Division Bench of the Chief Justice can determine PILs. It was contended that the Single Judge’s intervention after the charge-sheet was filed goes against the Code of Criminal Procedure (CrPC), which designates the jurisdictional magistrate for such matters. The CID had not shown its inability to conduct the investigation correctly, and extensive investigation was already conducted, leading to a charge sheet. The Single Judge’s orders were not warranted since the case did not meet the standards for transferring an investigation to the CBI.

Respondents’ Contentions

The respondents contended that the CID was not obliged to hand over original records to the CBI since they were with the trial court. The respondents argued that the CID failed to conduct an independent investigation and instead relied on materials provided by the police. It was contended that the investigation stalled when it was with the police and that the CID’s charge-sheet was filed during the pendency of the writ petition. The respondents denied the existence of any supplementary affidavit containing the charge-sheet when the matter was before the learned Trial Judge.

Court’s Analysis

The Court examined the arguments presented by both parties and made the following observations and conclusions:

Jurisdiction Issue

The Court rejected the argument that the Single Judge lacked jurisdiction, as the writ petitioners were personally affected by the alleged actions of the respondents. The court held that the power of judicial review under Articles 226 and 227 of the Constitution of India allows individuals to raise issues with public law elements.

Loss of Jurisdiction

The Court observed that the mere filing of a charge sheet does not automatically deprive the writ court of jurisdiction. The Court noted that the CID’s investigation had been marked by delays, and the charge sheet was filed after a substantial period, during the pendency of the writ petition.

Magnitude of Offense

The Court considered the magnitude of the alleged offenses, the involvement of thousands of small investors, and the substantial amount of money involved (approximately Rs. 50 crore), and held that these factors justified transferring the investigation to the CBI and ED.

“…Single Judge was fully conscious of the fact that there was a lackadaisical attitude on the part of the CID and that the money which was cheated was from poor people who are the depositors.”

Observations in Impugned Orders

While acknowledging that the Single Judge’s observations in the second impugned order appeared emotional, the Court affirmed the rejection of the CID’ recall application. The Court expunged the aspersions cast against the CID in the order.

The Court set aside the Rs. 5 lakh cost imposed on the CID in the second impugned order.

Future Proceedings

The Court allowed the CBI and ED to approach the trial court to file additional or supplementary charge sheets and to take necessary steps for conducting the trial. It also permitted the petitioners to cite the order of the Single Judge dated 24-08-2023, for seeking further or fresh investigation if needed.

Court’s Decision

The Court disposed of the present appeal without interfering with the first impugned order dated 24-08-2023, and modified the second impugned order dated 15-09-2023, by setting aside the imposed cost while affirming the rejection of the CID’s recall application.

[State of W.B. v. Kalpana Das Sarkar, 2023 SCC OnLine Cal 2989, order dated 21-09-2023]

*Judgment by Justice Sabyasachi Bhattacharyya

Advocates who appeared in this case :

Mr. Joyjit Choudhury, Mr. Subir Kumar Saha, Ms. Bedashruti Bose, Counsel for the Appellants

Mr. Bikramaditya Ghosh, Ms. Supriya Singh, Mr. Deborshi Dhar, Counsel for the Respondent 1 to 11

Mr. Sudipto Kumar Mazumdar, Mr. Ajoy Kumar Singhania, Counsel for the CBI

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