Guha Ray, J.
1. This is a reference under Section 438 of the Code of Criminal Procedure by the Additional Sessions Judge of Alipore recommending that the proceedings pending against the three accused Niren Das Gupta, Nishitesh alias Nishit Sen alias Nishitesh Chandra Sen and Arun Sen Under Section 407 of the Indian Penal Code be Quashed.
2. The case has had a very chequered history. Niren, Nishit and Arun are associated with Messrs Cargo Chariot Co. carrying on transport business at 65/1 Maharshi Debendra Road. That firm filed a tender for the carriage of different materials under Calcutta Construction Division during the year 1953-54. That tender was accepted by Ex. 1 dated the 30th of March 1953. Evidently, therefore, Messrs Cargo Chariot Co. was appointed carriers of different kinds of construction materials under Calcutta Construction Division during the year 1953-54, Then by Ex. 24 dated 29th of April 1953 Messrs. Cargo Chariot Co. as carrying contractors was supplied with a delivery order No. 67033 dated the 29th April 1953 for 100 tons of cement and asked to carry it from Pathuriaghat godown of Messrs. Balmer Lawrie and Co. to the Presidency General Hospital, Bhowanippre. When the cement was taken to the said hospital, it was discovered that 120 bags containing 6 tons of cement did not contain genuine cement. An information was accordingly lodged by Sri H. N. Gupta, Sub-Divisional Officer, Works and Building Department, P. G. Hospital, Sub-division No. 2, with the Bhowanipore police on the 5th of May 1953, On 10th August 1953, the Investigating Inspector Submitted a challan before the Police Magistrate, Alipore, against Niren, Nishit and Arun and two other persons Ranjit Singha Roy and Provat Chandra Ghose alleging that they had committed an offence Under Section 407 of the Indian Penal Code. The same Investigating Officer submitted another challan before the same Magistrate against Ranjit and Pravat alleging commission of an offence Under Section 7 of West Bengal Cement Control Act for having taken delivery of cement without any permit. The second case has ended in the discharge of the two accused and we have nothing more to do with it. When the first case was going on before Sri S. K. Ganguly, Magistrate, 1st class, Alipore, the Public Prosecutor made a prayer Under Section 494 of the Code of Criminal Procedure for withdrawal of the case Under Section 407, I. P. C. saying that the learned Magistrate had no jurisdiction to try the case. I am now told by Mr. Talukdar who appears on behalf of the State that the question of jurisdiction raised before the Magistrate Alipore was a question of only territorial jurisdiction, for the offence, according to the prosecution, was committed not within the jurisdiction of the Alipore Magistracy but within the jurisdiction of the sealdah Magistracy. The Magistrate Sri S. K. Ganguly accepted the contention of the Public Prosecutor and passed an order dated the 5th of December 1953, That order was as follows:
P.P. files a petition for permission to withdraw the case as this Court has got no jurisdiction. I agree with P. P. regarding jurisdiction. Permitted to withdraw. Accused discharged Under Section 494 Cr. P.C. P. Ws. examined are discharged.
3. Two witnesses for the prosecution appear to have been examined by this Magistrate. Then the case was started before a Magistrate at Sealdah. Before this Magistrate also a question of Jurisdiction appears to have been raised by the Public Prosecutor, The question of jurisdiction however, that appears to have been raised here was of a different character from the one which, I am told, was raised before the Magistrate at Alipore because here the question was whether an offence alleged to have been committed was one Under Section 409 I. P. C. and triable by a Special Court set up Under Section 2 of the West Bengal Criminal Law Amendment (Special Courts) Act 1949. On behalf of the prosecution it was contended before him that the offence was one Under Section 409 I. P. C. and was triable by a Special Court. On behalf of the defence however it was argued that it was an offence not Under Section 409 I. P. C. at all but one Under Section 407 I. P.C. and as such it was triable by the Magistrate. The learned Magistrate however, held prima facie that the case was one Under Section 409 I. P. C. and that it was triable by a Special Court. He accordingly directed the prosecution to take suitable steps with the State Government for allocation of the case to a Special Court. On the 22nd of December 1954 the Public Prosecutor filed a petition before the Magistrate stating that the Government was of the view that the case was one Under Section 407 I. P. C. so as to be triable by the Magistrate and the prosecution accordingly asked for date of hearing. The Magistrate then went on with the case. After hearing some witnesses he discharged two of the accused Ranjit and Pravat for lack of evidence and framed charges against Niren, Nishit and Arun. Thereafter these three moved the Sessions Judge and an Additional Sessions Judge has made this reference.
4. The first question for decision now is whether on The facts alleged the case is really one Under Section 407 or Under Section 409 I. P. C. As already stated, Messrs Cargo Chariot Co. was appointed the carriers of building materials for the construction Division for the year 1953-54 and thereafter they were entrusted with a delivery order in respect of 100 tons of cement in their capacity as such carrying contractors. Had it been the prosecution case that Messrs. Cargo Chariot Co. were appointed the carriers on one solitary occasion only, viz., when they were entrusted with the delivery order of 100 tons of cement the case would certainly have been one Under Section 407 I. P. C. : hut when they were appointed carriers for the whole of the year 1953-54 they were appointed agents of Construction Division for that year for the carriage of building materials for the Construction Division for the year 1953-54 and as such carrying contractors or agents they were entrusted with the delivery of 100 tons of cement. That being so, prima facie they were entrusted with dominion over 100 tons of cement in the way of their business as agents or carrying contractors 01 the Construction Division which is a department of the Government and criminal breach of trust is alleged to have been committed by them in respect of a part of these 100 tons of cement after they were entrusted with dominion over the same in the way of their business as an agent of a department of the State Government. That being so, prima facie the case seems to be one Under Section 409 I.P.C. and not one Under Section 407 I.P.C. Therefore the learned Magistrate was correct when he held on the 19th of June 1954 that it was a prima facie case Under Section 409, I. P. C., committed by the accused persons in respect of Government property over which they were entrusted with dominion in the way of' their business as agents of the Government and so the case would be triable by the Special Court set up Under Section 2 of the West Bengal Criminal Law Amendment (Special Courts) Act 1949. In this connection I may point out that the order of the Magistrate at Alipore who passed an order of discharge after he held that he had ho jurisdiction is legally bad and therefore need not be taken notice of at all. If the Magistrate had no jurisdiction he should not have passed an order of discharge at all and he should have merely rested content with an expression of his opinion that he had no jurisdiction to deal with the case. As I have already said, the case prima facie seems to be one Under Section 409 I. P. C. committed by the accused persons in the way of their business as agents of a department of the State Government in respect of property over which they were entrusted with dominion in the way of their business as such agents and it is triable by a Special Court under the West Bengal .Criminal Law Amendment (Special Courts) Act 1949, In that view of the matter, the present proceedings before the Magistrate at Sealdah cannot go on and must be quashed.
5. The reference is accordingly accepted. The proceedings pending against Niren Das Gupta, Nishitesh Alias Nishit Sen alias Nishitesh Chandra Sen and Arun Sen are quashed and the State Government will have liberty to proceed against them if they so choose under the appropriate section or sections before an appropriate Court.