1) The challenge in this revision application is to the order dated 31.1.2008 passed by the learned Special Judge, Tamluk, Purba Midnapur in T.R. no. 02 of 2003 arising out of Nanda Kumar Police Station case no. 85 of 2002 dated 21.8.2002 whereby rejecting the application of the petitioner for discharging him from the case.
2) One Kalipada Adak (hereinafter referred to as Opposite party no. 2) being Vice-Chairman of the Chak Simulia Co-operative Agricultural Credit Society Limited lodged one FIR with Nanda Kumar Police Station alleging therein that while the petitioner Rabindra Nath Bera was acting as the Secretary of the Society, mis-appropriated a sum of Rs. 91,028/-, in all of the society and manipulated the receipt book. On the basis of the said FIR, investigation was done by Nanda Kumar Police Station and a charge-sheet being no. 27 of 2003 dated 17.4.2003 was filed against the petitioner Rabindra Nath Bera under Section 403/409/420/468 and 477 of the Indian Penal Code. The learned Special Court had taken cognizance under Section 409/468 and 477A against the petitioner and fixed date for consideration of charge. On 25.8.2004, the petitioner had taken out an application praying for his discharge from the case on various ground mainly ;
a) that the petitioner not being a public servant within the meaning of Section 21 of IPC read with Section 8 of the West Bengal Co-operative Societies Act, can not be tried by Special Court by virtue of West Bengal Criminal Law (Amendment) Act, 1949 ;
b) that over the self-same issue, the de-facto complainant lodged one dispute case before the ARCS, Midnapur Range 2 at Tamluk against the petitioner which has already been disposed of and, as such, the petitioner is not liable to be punished twice for self same cause under two enactments which amounts to double jeopardy ; and
c) that no sanction under Section 139(3) of the West Bengal Co-0perative Societies Act was obtained prior to prosecuting the petitioner who happened to be the Secretary of the Society.
3) The learned Court upon consideration of the materials placed before it and upon hearing of both the parties rejected that prayer of the petitioner vide order no. 30 dated 31.1.2008 which is impugned in this revision application.
4) The questions before this Court in this revision application are :
i) whether the petitioner is a public servant within the meaning of Section 21 IPC read with Section 8 of the West Bengal Co-operative Societies Act, 1983, and ;
ii) whether he is liable to be tried for an offences mentioned in item no. 2 of Section 4 of West Bengal Criminal Law (Amendment Act), 1949 by a Special Court established under the said Act.
5) For better appreciation of the matter the relevant provision of law are set out below :
Section 21 IPC Clause (12) :-
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company an defined in Section 617 of the Companies Act, 1956 (1 of 1956)
Section 8 of West Bengal Co-operative Societies Act, 1983 :- Section 8 Officers of Co-operative Societies to be public servants Every officer of a Co-operative society shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.
Section 23 of the West Bengal Co-operative Societies Act, 1983 :-
Section 23 Co-operative Society to be body corporate A registered co-operative society shall be a body corporate by its registered name with perpetual succession and a common seal, and with power to acquire, hold and dispose of property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for purposes for which it is constituted.
West Bengal Criminal Law (Amendment) Act, 1949 Section 4 Offences to be tried by Special Courts- Notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law in force, the offences specified in the Schedule shall be triable by Special Courts only :
Item no. 1 .
Item no. 2-An offence punishable under Section 409 of the Indian Penal Code
Item no. 3 -
6) Section 8 of the WBCS Act 1983 has been incorporated in the act by way of amendment after the decision of this Court in Suniti Ranjan Bhattacharjee AIR 1970 Cal 557 was pronounced. Section 23 of the WBCS Act, 1983 makes all the Co-operative Societies body corporates. Section 2 (31) of the act makes it clear that a Secretary, Chairman etc. of such a Cooperative Society are deemed to be public servant within the meaning of Section 21 of the IPC.
7) Mr. Pabir Mitra, Learned Counsel appearing for the petitioner submits that the Secretary of a Co-operative Society can not be a public servant within the meaning of Section 21, Clause 12 of IPC because his function as a Secretary of a Society is restricted to the Society not beyond it. Mr. Mitra takes me to Section 21 of IPC, Clause 12 and submits that the Section does not include a Co-operative Society but a corporation established by or under a Central, provincial or State Act. Again under Section 23 of WBCS Act, all Co-operative Societies are body corporates. But that does not necessarily mean they are cooperations established by or under a Central, provincial or State act as enumerated in Clause 12 of Section 21 IPC.
8) Mr. Mitra refers to the decision in Maharastra v. Laljit Rajshi and others 2000 C Cr.L.R. (SC) 197 and submits that the Honble Apex Court after thorough discussion has came to a findings that the Secretary, Chairman etc of a co-operative Society under Maharastra Co-operative Societies Act are not public servants falling within the ambit of Section 21 of IPC.
9) I have carefully gone through the order impugned and found that the learned Court has taken the view that since West Bengal Co-operative Societies Act, 1983 is a Special and self contained act and when Section 8 of the act clearly envisages that every officer of the Co-operative Societies shall be deemed to be a public servant within the meaning of Section 21 of the IPC, the decision in Maharastra case (Supra) is not applicable because Maharastra Co-operative Societies Act is not applicable in West Bengal. The learned Court also came to a findings that the property of Co-operative Societies alleged to have been mis-appropriated was a public property. As such, the Court held that there was no impediment for prosecuting the Secretary of a Co-operative Societies who is a public servant for an offence under Section 409 of the IPC by a judge specially appointed for that purpose. The learned Court has also taken a view that there was no need of seeking sanction under Section 139(3) of the Act, 1983 for prosecuting the petitioner in the Special Court.
10) The question whether or not a Secretary/Chairman etc. of a Co-operative Society is to be treated as a public servant was elaborately dealt with the Honble Apex Court in State of Maharastra (Supra). Section 161 of Maharastra Co-operative Societies Act has referred to provisions of Section 21 of IPC but such reference would not make the officer concerned public servants within the ambit of Section 21 IPC. When the State legislature although had powers to amend Section 21 IPC the same being referable to a legislation under Entry no. I of List III of the seventh Schedule, subject to Article 254 (2) of the Constitution as, otherwise, inclusion of the persons who are public servants under Section 161 of Co-operative Societies Act would be repugnant to the definition of public servant under Section 21 of the IPC. That not having been done, it is difficult to accept that by virtue of deeming definition in the section 161 of the Co-operative Society Act by reference to Section 21 of the Indian Penal Code, the persons concerned could not be prosecuted for the offences under the Indian Penal Code. The Indian Penal Code and co-operative Societies Act are not statutes in pari materia. This being the position, even though the legislature had incorporated the provisions of Section 21 of the IPC into Co-operative Societies Act, in order to define a Public Servants but those Public Servants can not be prosecuted for having committed the offence under Indian Penal Code.
11) The position is same in W.B. Co-operative Societies Act, 1983. The Section 8 has referred to the provisions of Section 21 of the IPC but such reference simpliciter would not classify the officers concerned under Section 2(31) of the Act, 1983, as Public Servants within the ambit of Section 21 of IPC.
12) The petitioners were made accused of the offences under Section 409 IPC etc. and offences under Section 409 IPC comes within the purview of Special Court constituted under West Bengal Criminal Law Amendment (Special Court) Act, 1949, under item no. II of the Schedule, the Special Court can take cognizance only if the offence is committed by a Public Servant or person dealing with the property belonging to the Government as an agent of Government, in respect of properties with which he was entrusted or over which he has dominion in his capacity of a public servant or in any was of his business as such as Agent.
13) The view in Shanti Ranjan (Supra) can not be pushed aside simply because the Section 8 of the Act, 1983 was introduced afterword referring to Section 21 of IPC and Section 23 of the Act, 1983 makes every co-operative Society a Body corporate. If so, a Secretary of a Housing Co-operative Society is to be classified as a public servant although he neither deals with public money nor acts for public purpose and on the pay of government/Government institution. A Corporation as referred to in Section 21 of IPC means and only means a corporation established by State Act or Central Act. A Co-operative is formed on volition of certain persons which is required to be registered under the Act, 1983. This compulsory registration does not necessarily change the very nature and character of a Co-operative society created on the volition of some persons not under any act.
14) There can not be any debate that a Secretary/Chairman of a Co-operative Society by virtue of Section 8 of the Act 1986 read with Section 23 and Section 2(31) of the Act is a public servant but that status of public servant is restricted to the periphery of the Act itself not beyond it. Had the legislature intention to classify all such officers defined under Section 2 (31) of the Act as public servants within the meaning of Section 21, it would have amended the Section 21 IPC by exercising its power under entry 1 of list III of seventh scheduled subject to Article 254(2) of the Constitution.
15) Therefore, I do not find the view taken by the learned Court acceptable. Although Section 409 IPC being an offence coming within the purview of Special Court constituted under West Bengal Criminal Law amendment (Special Court Act), 1949 under item no. 2 of the schedule, the Special Court can only take cognizance under Section 409 of IPC when the offence has been committed by public servant or person dealing with the property belonging to the Government as an agent of Government in respect of properties with which he was entrusted or over which he has dominion in his capacity of a public servant or in any was of his business as such agent.
16) I reiterate that the petitioner is, no doubt, a public servant as defined in Section 8 read with Section 2(31) of the WBCS Act, 1983 only for the purpose of the Act as his function, duty and responsibility is limited and restricted to the Society. Only compulsory registration under the Act 1983 does not necessarily upgrades the society to such a corporate body as intended by Section 21 of the IPC. So, when a Secretary who is a public servant within the meaning of Section aforesaid of the Act 1983 has not been prosecuted under any penal provision of the Act 1983 itself with previous sanction of the Registrar under Section 139(3) of the Act 1983, can well be prosecuted in any ordinary Criminal Court for any offence under Indian Penal Code.
17) The West Bengal Co-operative Societies Act, 1983 is a self contained statute provides for prosecution for some offences mentioned therein with the sanction of the Registrar of the Co-operative Societies. The question obviously comes in when some penal offences mentioned therein (Act 1983) are akin to some offences like under Section 406, 409, 420 of IPC, whether a Secretary of a Co-operative Society can be prosecuted for the offences of IPC without taking sanction of the Registrar.
18) Under Section 26 of the General Clauses Act, 1897 if the offences are punishable under two or more enactments, the offender shall be liable to be prosecuted or punished either or any of those enactments but should not be liable to be punished twice for same offence. This view was taken by this Court in Soumendra Krishna v. State of West Bengal 1992 Cal Cr.L.J. 148. In Narendra Nath De v. State of West Bengal, (1997) 2 CLJ 210. It was held that the offence of corrupt practice punishable under Cooperative Societies Act, 1983 is not identical in essence, import and contained with an offence under Section 409 IPC. But the Act of 1983 does not repeal any provision of penal code. There can be no objection to a trial and conviction under Section 409 IPC even if the accused is an officer, employee or member of the Co-operative Society and governed by the Act of 1983.
19) Under Section 8 read with Sub Section (31) of Section 2 of the WBCS Act, 1983, the Secretary of the Co-operative Society has been made a public servant within the meaning of Section 21 IPC. He is, in fact, a member of the staff of the society and is fully controlled by the society, for intents and purposes in the matter of the conditions of his service under the Society. Therefore, it can not be said that the Secretary is not removable from his office save by or with the sanction of the Government. Thus, the Secretary is not a public servant as contemplated in Section 197 of the Criminal Procedure Code. Therefore, no previous sanction is necessary for prosecuting him for offence under Section 409 IPC.
20) That being the position of law, it can safely be state that the petitioner can not be tried by the Special Court in view of West Bengal Criminal Law Amendment (Special Court) Act, 1941. The question of obtaining previous sanction under Section 139(3) of the Act arises only when the prosecution is being lunched under the provision of the WBCS Act, 1983 not in case of prosecution under Section 409 of IPC.
21) For the forgoing reason, I find that the learned Court erred in coming to a conclusion that the petitioner being a public servant within the meaning of Section 21 of the IPC is to be tried by a Special Court constituted under West Bengal Criminal Law Amendment (Special Court) Act 1949. The order is , therefore, liable to be set aside.
22) However, I do not agree with the proposition of Mr. Mitra that the petitioner can not be tried under any penal Section of the Indian Penal Code. I would like to reiterate that when prosecution against the petitioner is not lunched under the provisions of the WBCS Act, 1983, he, not being a public servant within the meaning of Section 21 of the IPC, can well be prosecuted in the Criminal Court ordinarily having jurisdiction to take cognizance and try the offence in view of Section 26 of the general clauses Act, 1897. In Sunil Kumar Saha v. State of West Bengal, 1998 C. Cr.L.R. (Cal) 335, it was held that the prosecution has been instituted against both the accused not under the provisions of WBCS Act 1983 but under the provisions of Indian Penal Code and, as such, the question of previous sanction of the Registrar for prosecution does not arise. On this analogy, the entire proceedings can not be quashed or set aside as prayed for by the petitioner in this application.
23) However, the revisional application is allowed in part.
24) The order passed by the learned Special Judge is set aside.
25) The learned Special Judge is directed to send the case record to the learned Chief Judicial Magistrate, Purba Midnapur to proceed with the matter in accordance with law.