STATE OF WEST BENGAL versus SHYAMADAS BANERJEE & ANOTHER

Citation: [2008] 12 S.C.R. 1210 · Decided: 03-09-2008 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Dismissed

Judgment (excerpt)

STATE OF WEST BENGAL v. SHYAMADAS 
1211 
BANERJEE & ANOTHER 
'f 
respondent No.1 on 28.6.19B9 when he was a sitting 
A 
M.L.A., and that charge-sheet was filed on the basis 
thereof on 16.1.2003 and charges were framed on · 
29.7.2003. In other words, while the alleged offence was 
said to have been committed when the respondent No.1 
was a sitting M.L.A., charges were framed and cognizance 8 
'( 
was taken long after he had ceased to be a M.L.A. [Para 
18] [1217,D-E] 
1.2 If When the offence is alleged to have been 
committed, the accused was a public servant, but by the 
time the Court takes cognizance of the offence alleged to c 
have been committed by him he had ceased to be a public 
servant, no sanction would be necessary for taking 
cognizance of the offence against him. As a necessary 
corollary, if the accused ceases to be a public servant 
when the Court takes cognizance of the offence, Section D 
6 of the 1947 Act is not- attracted. In other words, the 
accused loses his protective cover under Section 6 of 
the 1947 Act or Section 197 Cr.P.C., and he is open to 
prosecution without sanction having to be obtained, 
which also necessarily means that the Special Judge E 
under the Special Courts Act, 1949, would cease to have 
jurisdiction over the accused. Thus, since the respondent 
No.1 ceased to be a Member of the State Legislature at a 
point of time when cognizance was taken by the Special 
Judge, such cognizance and the proceedings taken on 
F 
A 
the basis thereof must be held to have been vitiated. [Paras 
.... 
26 and 27] [1221 D-F; 1222,B-C] 
PV Narasimha Rao v State (CBl/SPE) (1998) 4 SCC 
626 - distinguished. 
R.S. Nayak v A.R.Antu/ay (1984) 2 SCC 193 - relied G 
_...; 
on. 
Satwant Singh vs. The State of Punjab AIR 1960 SC 266 
- referred to. 
H 
A 
B 
c 
1212 
SUPREME COURT REPORTS 
[2008] 12 S.C.R. 
Case Law Reference 
Y 
(1998) 4 sec 626 
(1984) 2 sec 193 
AIR 1960 SC 266 
Distinguished. 
Para 26 
Relied on. 
Para 26 
Referred to 
Para 11. 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal 
No. 1395 of 2008 
From the final Judgment and Order dated 07.10.2005 of 
the High Court at Calcutta in C.R.P. No. 2364 of 2003 
Altaf Ahmed, Neelam Sharma and Tara Chandra Sharma 
for the Appellant. 
Pradeep Kumar Ghosh, Raja Chatterjee and G.S. 
Chatterjee for the Respondents. 
D 
The Judgment of the Court was delivered by 
·ALTAMAS KABIR, J. 1. Leave granted. 
2. The short point for decision in this appeal is whether a 
Special Judge exercising jurisdiction under the provisions of 
E· the West Bengal Criminal Law Amendment (Special Courts) 
Act, 1949, (hereinafter referred to as "the Special Courts Act, 
1949"), can take cognizance of an offence against a member 
of the State Legislative Assembly (hereinafter referred to as 
"M.L.A.") when he had ceased to be a M.L.A., though the offence 
F 
was alleged to have been committed when he was a sitting 
M.L.A. 
3. On the basis of certain newspapers reports one Nikhil 
Kishore· Roy filed a Public Interest Litigation in the Calcutta 
High. Court against the respondent No.1, Shri Shyamadas 
G Banerjee, alleging that he had misused his official position as 
M.L.A. by submitting forged and fictitious medical bills and 
fe~s for prescription for Rs.1,65,530.30 on account of the 
treatment of his wife and his mother between 8.9.1998 to 
10.11.1998. The said Writ Petition, being No.1311 of 1999, 
H was disposed of by a Division Bench of the Calcutta High 
• 
r-· ..._ 
~ 
' 
STATE OF WEST BENGAL v. SHYAMADAS 
1213 
BANERJEE & ANOTHER [ALTAMAS KABIR, J.] 
-:: 
" 
Court on 23.6.1999, holding that the writ petitioner c-ould have A 
lodged a First Information Report or filed a compiaint petition 
before the concerned Magistrate. Thereafter, on the basis of 
the F.l.R. lodged by Shri Nikhil Kumar Roy investigation was 
started under Section 468, 471, 420 and 511 of the Indian 
Penal Code, (hereinafter referred to as "IPC"), by the Hare B 
Street Police Station. The respondent No.1 surrendered before 
the Chief Metropolitan Magistrate, Calcutta, on 17.1.2000, and 
was released on bail. Charge-sheet was filed on 16.1.2003, on 
the basis whereof the Special Court assumed jurisdiction under 
the Special Courts Act, 1949, against the respondent No.1 c 
treating him to be a "public servant" and framed charges against 
him under Section 420/468/471 and 511 IPC. 
4. Aggrieved by the order of the Special Judge 4th Court, 
Calcutta, taking cognizance on the basis of the charge-sheet 

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