1. The following questions have been raised by the petitioner :-
a) whether a Magistrate can issue process against an accused after filing of charge-sheet who was discharged earlier under Section 167(5) of the Code of Criminal Procedure, i.e., before filing of the charge-sheet;
b) whether the petitioner is a public servant within the meaning under Section 21 Indian Penal Code by virtue of Section 8 of the West Bengal Co-operative Societies Act, 1983;
c) if so, whether he is to be tried for an offence under Section 420 I.P.C. only by a Special Court as provided under Section 4 of the West Bengal Criminal Law (Amendment Act) Act 1949, (Act 21 of 1949).
2. Mr. Somopriya Chowdhury, learned advocate appearing for the petitioner submits in respect of his first contention that once an accused has been discharged, the Magistrate cannot take cognizance against him by way of review or recalling of that order. To draw support to his contention, Mr. Chowdhury refers to the decision of the Honble Apex Court in [email protected] Deepak Singh v. State of Madhya Pradesh reported in 2007(5) SCC 533.
3. Mr. Joy Sengupta, appearing for the State submits that the discharge under Section 167(5) of Cr.P.C. of an accused for non-submission of the chargesheet within specific period of time does not necessarily imply that the accused so discharged once for all. The situation would have been different in case had the Magistrate discharged the accused upon consideration of the materials in the C.D. available till the date of discharge. Therefore, he submits that the proposition of Mr. Chowdhury, learned advocate for the petitioner does not appear to be sound.
4. Mr. Acharya, learned advocate appearing for the opposite party no. 2 submits that the taking of cognizance under Section 190(1) of the Code means taking of cognizance of an offence alleged not offender. In this case, he submits, the Magistrate neither had opportunity to consider the materials in the C.D. collected till the date of discharge by the Investigating Agency nor had given notice of the fact of discharge to the de facto complainant providing him with an opportunity to be heard. So, that order of discharge under Section 167(5) of the Code is neither final nor does it denude the Magistrate to take cognizance of the offence after filing of charge-sheet upon consideration of the materials collected by the I.O. before expiry of the stipulated period.
5. Mr. Acharya, learned advocate submits further that the Magistrate has to proceed against those offenders not sent up by police when sufficient materials against them to proceed with are found in the case diary. In support of his contention, Mr. Acharya refers to the decision of Honble Apex Court in Raghubansdubery v. State of Bihar, AIR 1967 Supreme Court 1167, Nirmal Kanti Ray v. State of West Bengal 1998 C Cr.L.R. (SC) and Kalyan Kumar Das v. State of West Bengal 1948 C Cr.L.R. (cal) 292.
6. For better appreciation of the point raised at the bar, the backdrop of the case is given below, succinctly:_
7. The Assistant Registrar of Co-operative Society, Tamluk, Purba Madinipur caused an inspection of Sukchandrapur Samabai Krishi Unnayan Ltd. (SSKU) and found that the fund of State Co-operative Society was mis-appropriated by Gopinath Panja and Haladhar Sasmal (the petitioner herein) who were alternatively acted as Secretary and Chairman of the Society during their tenure as such. As a result, the Society suffered huge financial losses on the basis of the said report . One FIR was lodged with Ghatal P.S. which was registered as Ghatal P.S. case no. 8 of 2004 against Gopinath Panja, Haladhar Sasmal, Kohil Pramanik and Ajit Sasmal under Sections 420,406,416,468,470/34/35/120B of the IPC. The petitioner Haladhar Sasmal was arrested on 20.1.2004 and enlarged on bail on 20.3.2004. The investigation into the case could not be concluded before 14.11.2007. In the mean time, on 14.3.2007, an application under Section 167(5) of the Code of Criminal Procedure was filed on behalf of the petitioner Haladhar Sasmal praying for discharge from the case. The learned Magistrate on 14.3.2007 passed two orders. In the first order, the learned Magistrate granted three months time to the Investigating Officer to complete the investigation on the prayer of the Investigating Officer. On the same date, he disposed of the petition by another order rejecting prayer for discharge of the petitioner. Against that order, the petitioner preferred a revisional application before the learned Sessions Judge, Paschim Midnapore which was registered as Criminal Revision no. 165 of 2007. The learned Sessions Judge was pleased to allow the revision application and set aside the order passed by the learned Magistrate on 14.3.2007 allowing the prayer of I.O. three months period of further time to complete the investigation. Haladhar Sasmal filed an application in the Court of learned Magistrate on 15.9.2007 again and that prayer of the petition was allowed by the Court on the ground that charge-sheet was not filed within three and half years from the date of arrest of Haladhar Sasmal. The Court discharged him under Section 167(5) of the Criminal Procedure Code. The I.O. of the case submitted charge-sheet being no. 107/2007 dated 14.11.2007 in the Court of learned Magistrate on 14.11.2007 against three accused persons showing the petitioner as not sent up as discharged on 15.9.2007. The learned Magistrate had taken cognizance of offences under Sections 420,406,416,468,470/34/35/120B of the IPC against those three accused persons and discharged accused Haladhar Sasmal from the case on the basis of prayer of the I.O. The de facto complainant of the case filed an application in the Court of learned Magistrate on 22.2.2008 for directing the I.O. to submit chargesheet against the petitioner. Learned Magistrate although directed to issue notice upon the discharge accused Haladhar Sasmal, that was not actually issued. On 17.4.2008 supplementary charge-sheet has been filed by the I.O. showing the petitioner not sent up. On 14.11.2008 the petition filed by the de facto complainant on 22.2.2008 was taken up for hearing by the learned ACJM, Ghatal in respect of issuing direction upon the I.O. to file charge-sheet against the accused Haladhar Sasmal in terms of the Section 468 of the Cr.P.C. The learned Magistrate, upon hearing both the parties and material placed before him, found that there were sufficient evidence in the C.D to believe that the petitioner/accused Haladhar Sasmal committed the offences alleged and some of the offences being punishable with imprisonment of seven(7) years, the petitioner/accused Haladhar Sasmal can not be discharged in view of the provision of Section 468 of the Cr.P.C. The learned Magistrate directed to issue summons against accused Haladhar Sasmal. Against that order another revision application was filed by Haladhar in the Court learned Sessions Judge being Criminal Revision no. 67 of 2009 which was ultimately heard by learned Additional District Judge, 4th Court, Midnapur (West) and disposed of on 18.5.2009. The learned revisional Court allowed the revision application filed by present petitioner Haladhar and remitted back the entire matter to the learned ACJM, Ghatal to consider the entire matter afresh and to decide taking of cognizance in respect of all the accused persons as per law and upon consideration of the materials in the C.D. Having been directed by the revisional Court as such, the learned Magistrate reconsidered the matter and passed an order dated 14.7.2009 directing to issue process against Haladhar Sasmal fixing 25.8.2009 for his appearance. That order 14.7.2009 has been impugned in this application under Section 482 of the Code of Criminal Procedure by Haladhar Sasmal praying for quashing of that order on the grounds stated earlier.
8. It is pertinent to mention and to be kept in mind that the impugned order dated 14.7.2009 was passed by the learned ACJM, Ghatal as directed by the revisional Court in Criminal Revision no. 67 of 2009. The learned Magistrate, in fact, did not review or recall its earlier order of discharge. The order passed in Criminal revision no. 67 of 2009 has not been challenged by anybody. I mention this factual aspect because Mr. Chowdhury tried to classify the impugned order as review or recalling of the earlier order which is factually incorrect.
9. Be that as it may, it appears from the materials placed before this Court and orders passed by the learned Magistrate on different dates that the petitioner was discharged on 15.9.2007 only because investigation was not concluded within the period of three and half years from the date of arrest of the petitioner. It appears also that the learned Magistrate discharged him under Section 167(5) (West Bengal Act 24 of 1988) of the Cr.P.C. Although the learned Magistrate directed to issue notice but by another order issuance of notice upon the de facto complainant was withheld. In fact, notice of discharge was not given to the de facto complainant and he was not given any opportunity to be heard before the order of discharge was passed by the learned Magistrate on 15.9.2007. It is admitted position that the learned Magistrate upon consideration of the materials in the C.D. directed to issue process on the petitioner. That was done because of the order passed in Criminal revision no. 67 of 2009. The question is can Magistrate do so legally?
10. It is needless to state that when an accused named specifically in the FIR is discharged under Section 167 (5) of the Code, the Court, at the first instance, stop further investigation into the case and discharge the accused. Stopping of further investigation is a sine quo non for discharging an accused under Section 167(5) of the Code of Criminal Procedure (West Bengal Act 24 of 1998). This discharge of accused does not put to an end of investigation into the case automatically against the other accused persons who are named in the FIR with the accused discharged. In the other words, avenues remain open to the Court to take cognizance of offences alleged on the basis of materials in the C.D. as soon as charge-sheet is filed. While considering the materials in C.D. at the time of discharging an accused ,Magistrate is not supposed to avoid the materials which are found incriminating against the accused discharged. If the Magistrate finds that the materials collected by the I.O. in course of investigation till the date of discharge of an accused, prima facie, make out a cognizable case against the accused not charge-sheeted, it appears no bar for the Magistrate to take cognizance of offences so far as that accused is concerned. Charge-sheet is filed under Section 173 of Cr.P.C. upon which Magistrate is to take cognizance under Section 190 (1) (b) of the Code. In case final report is filed absolving the accused form the charge by the I.O., ,Magistrate may take cognizance upon consideration of the materials in the C.D. ignoring the report of the I.O. or may accept it. In case Magistrate accepts it, he is duly bound to issue notice upon the de facto complainant calling him to appear before him so that he gets an opportunity to be heard in the matter of acceptance of final report and discharge of an accused. In the instant case, the discharge order dated 15.9.2007 was passed without stopping of further investigation. The I.O. of the case filed charge-sheet and supplementary charge-sheet against three accused persons showing the petitioner not sent up as discharged by order dated 15.9.2007. Pursuant to the direction of the revisional Court, the learned ACJM Ghatal had to consider the materials in C.D. afresh in the matter of taking cognizance of the offences alleged in respect of all the persons named in the FIR. In doing so, the learned Magistrate found that there were sufficient materials in the C.D. collected by the I.O. in course of investigation till on 14.9.2007 against the petitioner indicating prima facie, commission of offence under the above mention sections by him. In Deepu @ Deepak Singh v. State of M.P. (2007) 15 SCC 543, the appellant was discharged after perusing of the preliminary charge-sheet by the learned Judge who came to a conclusion that there was not enough material to proceed against the appellant and , accordingly, the appellant was discharged. The Honble Apex Court observed that subsequent order passed by the learned Judge while detecting error committed by him is amounting to review and recall of the earlier discharge. The Honble Court observed that in such a case order to proceed upon supplimentary charge-sheet against the appellant by way of correction of earlier order can not be passed. The factual aspect of the case before the Honble Court and that of the case in hand is completely different.
11. In Anup Kumar Ray v. State of West Bengal 2002(3) CHN 87 the Honble Single Judge of this Court was pleased to hold that when the Investigating Agency made no attempt to extend the period of investigation by filing any application before the Magistrate but straight way came up with a charge-sheet after lapse of 4 years from the date of discharge of the accused, cognizance taken on the basis of said charge-sheet was bad in law. Learned Single Judge, however, distinguished the decision of the Honble Apex Court reported in 1988(3) CRLJ 3282.
12. In the instance case, fact is somewhat different. Herein, the Investigating Agency filed application for extension on 14.3.2007. In the mean time, the matter was dealt with by the revisional Court. Therefore, the view of the learned Single Judge of this Court in Anup Kumar Rays case (Supra) can not possibly be applicable in this case. The Honble Apex Court in Major General A.S. Gauraya & Ors. (1986) 2 SCC 709, observed that once the Magistrate dismissed the complaint and acquitted the accused, Magistrate loses his jurisdiction to resort and reviving the dismissal of the complaint on a subsequent application of the complainant. That case is factually different with the fact of this case. In R.S. Naik v. A. R. Antulay (1986) 2 SCC 716, The Honble Court was pleased to hold that if prima facie case is made out against accused, Court should frame charge against him in respect of those offences only and discharge him in respect of other offences which are not based on materials on record. Anup Kumar Rays case (Supra) is distinguishable on other Count also. In that case, Honble Single Judge observed that since c/s was filed without taking permission under Section (6) further investigation was bad and illegal. The question of further investigation raised because in that case, the Magistrate stopped investigation under Sub-section (5). In this case, the order dated 14.3.2007 shows that the learned Magistrate did not pass any order of stopping of further investigation but discharged the petitioner simpliciter. The Magistrte had no reason of discharge because the record shows that on 14.3.2007, three months time was extended to complete the investigation and again, on 12.6.2007, six months time was extended to conclude the investigation on the prayer of the Investigating Officer though the Inspector of Police, D.E.O. As an order of stoppage of invetigation was not passed rather time to conclude investigation was extended time to time, the C.S. filed on 17.11.2007 can not be said be bad and illegal.
13. In Raghubans Dubey v. State of Bihar (Supra), the Honble Apex Court made it clear that taking of cognizance means cognizance of offence not offender.
14. Magistrate was to proceed against those offenders who are not sent up by notice and summoning of additional accused is part of proceeding initiated by taking cognizance of offence. In the instant case, the learned ACJM , has done that exactly. He took cognizance of offence alleged against the petitioner on perusal of materials placed along with charge-sheet filed within the extended period of time and summoned the petitioner as additional accused by taking cognizance of offences alleged against him.
15. What is effect of stopping of further investigation has been thoroughly discussed in Nirmal Kanti Roys case (Supra). The Apex Court observed finally that the order stopping further investigation into the offence and the consequential order of discharge are not intended to be automatic sequel to the failure to complete investigation within the period fixed in the sub Section. Order of stopping further investigation and discharge of accused consequent thereto does not put an end to the investigation because of the words .
16. satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the is necessary.
17. the case in hand, the learned Magistrate extended the period of investigation time to time (in fact, twice-on 14.3.2007 and 12.6.2007) and the charge-sheet was filed on 17.11.2007, i.e., well within the extended period. If so, the principle laid down in Nirmal Kanti Roys case (Supra) is squarely applicable in this case.
18. In the case of Kalyan Kumar Das (Supra) the Honble five(5) Judges Bench of this court, although not considered Nirmal Kanti Roys case (Supra) while examining the exact legal position, reiterated that view of the Apex Court. It has further been observed by the Honble five(5) Judges Bench, Even in case where investigation has been stopped by the Magistrate in terms of Section 167(5) of the Code at the expiry of six months and thus it comes to an end, Section 173(2) of the Code casts an obligation upon the police-in-charge of a police station to forward the report in the prescribed form. We do not see any thing under Section 167(5) of the Code to suggest that if the investigation has not been completed within the period allowed in that section, the officer-in-charge of police station can be considered to be absolved of his responsibility and liability in filing the police report under Section 173(2) of the Code on the stoppage of such investigation. If therefore responsibility of filing report under Section 173(2) of the Code remains, it follows as a consequence that the cognizance has to be taken to such a report by the Magistrate, irrespective of the fact whether the investigation was stopped at the end of six months period.
19. Honble Court observed further, Another aspect of the matter, which is equally important and has close bearing on some vital angels of the discussion in the right of an informant, the person who lodged the first information Report, and who thus set the investigation into motion, if and when a Magistrate decides not to take cognizance of the case. Similarly is the right of an aggrieved party or relative of a deceased in a murder case. Both these classes of persons have well defined rights, the former has the right of being issued notice before a Magistrate decides not to take cognizance so that he can be heard and, the latter has a right of hearing, even though he is not entitled to a notice, if similarly the Magistrate is of view that cognizance is not to be in the case.
20. Even while dissenting, Justice Bhattacharjee, (as His Lordship was then), observed,,
It is also needless to mention that discharge of the accused under Section 167(5) does not amount to acquittal in view of the explanation to section 300, Cr.P.C. and, therefore, if at any subsequent stage the investigating officer submits charge-sheet and the Magistrate takes cognizance being restricted to the investigation carried on during the prescribed period, there will be no bar for the Court to enforce the appearance or production of the accused by issuing suitable process after taking cognizance although he might have earlier discharged under Section 167(5).
21. The ratio of the judicial pronouncements leaves no room of doubt that, in the case in hand, the ld. ACJM made no error or mistake by issuing process on the petitioner on receiving of the charge-sheet upon consideration of the materials found available in the C.D. although he was discharged earlier. Again, that earlier discharge order was passed without serving any notice upon the de facto complainant enabling him any opportunity of being heard. This apart, the charge-sheet was filed within valid extended period of time. So, I am unable to accept the proposition of Mr. Chowdhury over the issue.
22. The next question raised by Mr. Chowdhury is that the petitioner being a public servant under Section 21 of IPC by virtue of Section 8 read with Section 2(31) of the West Bengal Co-operative Societies Act, 1983, an offence under Section 420 of IPC against him can not be tried by Magistrate but a Special Court in view of West Bengal Criminal Law (Amendment) Act, 1949.
23. For better appreciation of the matter, the relevant provisions of the laws 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)
24. 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.
25. 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-
26. Item no. 3- An offence punishable under Section 417 or Section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 as an agent of such Government company, while purporting to act as such public servant or agent. The Section 8 of the W.B.C.S. Act, 1983 has been incorporated in the Act by way of amendment after the decision of this Court in Suanti Ranjan Bhattacharya, AIR 1970 Calcutta 557 was pronounced. The 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 co15 operative society are deemed to be public servant within the meaning of Section 21 of the I.P.C.
27. Mr. Chowdhury contended that such being the statutory position and law, the petitioner being a public servant and the offence alleged being under Section 420 of the IPC, under the W.B. Criminal Law Amendment (Special Courts) Act, 1949, Section 4 & 5 read with schedule item no. III no Court but a Special Court can take cognizance of offence against the petitioner. Mr. Chowdhury refers to a decision of this Court in K. K. Kumaran v. Nabin Chandra Thakkar, 1998(1) CHN 174 in support of his contention.
28. The learned Single Judge in K.K. Kumaran (Supra) came to a conclusion that since the W.B. Criminal Law Amendment (Special Court) Act, 1949 starts with Non-obstante clause viz, notwithstanding anything contained in the Criminal Procedure Code or any other Law ., a Magistrate has no jurisdiction to take cognizance of an offence.
29. The Sections 4 and 5 and 5A of the W.B. Criminal Law Amendment (Special Courts) Act, 1949 are to be read together with Section 21 of IPC in order to import the proper amplitude of the same. Provisions of Section 190 (1) (b) and 460 of Code of Criminal Procedure are also to be looked into. Section 190 (1)
(a) subject to the provisions of this chapter, any Magistrate of the First class, and any Magistrate of the Second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence.
(b) Upon a police report of such facts;
Section 460 Irregularities which do not vitiate proceedings If any Magistrate not empowered by law to do any of the following things, namely :-
(e) to take cognizance of an offence under clause (a) or clause (b) of Sub-s (1) of Section 190
3. However, it was not the question before the learned Single Judge in K.K. Kumaran (Supra) whether or not petitioner therein being the Senior project Manager, South Eastern Railways, is a public servant within the meaning of Section 21 of the I.P.C.
31. Again, in Srikanta Patra v. State of West Bengal, (2008) 1 C CR.L.R. (cal) 573, the learned Single Judge came to a findings that an Accountant of Cooperative Bank is not a public servant and, therfore, he can be tried by ordinary criminal Courts not by a Special Court. Honble Justice Dutta, (as His Lordship then was), was pleased not to delve into the question as to whether a Secretary of a Co-operative Society registered under the WBCS Act 1986 is a public servant within the meaning of Section 21 of the IPC.
32. In Shanti Ranjan Bhattacharya (Supra), the Honble Division Bench of the Court had taken the view that a Secretary of a Co-operative Society discharges his functions with regard to that particular Co-operative Society and has no connection with the general or common purpose of any village, town or district and as such he is not a public servant within Section 21, Clause 12 of IPC. In that case, the petitioner was the Secretary of a Co-operative Society. In Shanti Ranjan (Supra), this Court further observed that a Co-operative Society does not become a Corporation because for some specific purposes it functions as a corporate body.
33. This observation of the Court is important to take note here because Section 21 of IPC , 12 Clause, does not include a Co-operative Society but a corporation established by or under a Central, Provincial or State Act. Again, Under Section 5 of the WBCS Act 1983, all Co-operative Societies are Body corporates. This apart, the WBCS Act, 1983 is a self contained Act having its own provisions and created Specific offences different from the offences under the IPC. I have carefully examined the relevant provisions of law as well the judicial pronouncements involving the issue before this Court. No doubt, the petitioner is a public servant by virtue of Section 2(31) read with Section 8 of the WBCS Act, 1983 being the Secretary of the Society registered under the Act. But this fact alone does not necessarily mean he is not subject to any penal action for committing an offence under Section 420 IPC by ordinary Criminal Court. His authority as a public servant is limited to the purpose of the WBCS Act, 1983. When he is not prosecuted under the Act itself with sanction of the Registrar under Section 139(3) of the Act, 1983 he can well be prosecuted under Section 420 IPC in a Criminal Court. 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 Co18 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.
34. The question was elaborately dealt with by the Apex Court in State of Maharashtra v. Laljit Rajshi & Ors., 2000 C. Cr.L.R. (SC) 197. The Apex Court observed that Section 161 of Maharastra Co-operative Societies Act has referred to provisions of Section 21 of IPC but such reference would not make the officers 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. 1 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 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.
35. 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.
36. In Sunil Kumar Saha v. State of West Bengal, 1998 C Cr.L.R. (Cal) 335, this Court observed, Although they were 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. III 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.
37. The petitioner therein was Chairman of a Co-operative Society and the learned Single Judge came to a conclusion, on the grounds above, that he was not an officer of the Government or held liable for mis-appropriation of the property belonging to any of the Government. The petitioners were nothing but the officers of the Society and were fully controlled by the Society, and on all intents and purposes in the matter of conditions of his office were under the society.
38. I reiterate the views above and like to add that the petitioner is, no doubt, a Public Servant as defined in 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 a Co-operative Society to such a Corporate Body as intended by the Section 21 of the IPC. So, when a Secretary who is a Public Servant within the meaning of Section 2(31) of the Act, 1983 has not been prosecuted under any penal provisions of the Act, 1983 itself with previous sanction of the Registrar under Section 139(3) of the Act, 1983, can well be prosecuted under IPC in ordinary Criminal Courts. Alike item (2) which says about offence under Section 409 IPC, the item no. (3) says about an offence under Section 420 IPC in Section 4 of the W.B. Criminal Law Amendment (Special Court) Act, 1949. Therefore, the decision of the Apex Court in Laljit Rasshi (Supra) is squarely applicable in this case also.
39. Apart from everything, the Section 5A of the W.B. Criminal Law Amendment (Special Courts) Act, 1949 says, Section 5 A- Jurisdiction of Magistrates for certain purposes not to cease Nothing in section 4 or section 5 shall affect the jurisdiction and powers of Magistrates under the Code of Criminal Procedure, 1973 during the investigation by the police under the said Code of offences specified in the Schedule. A plain reading thereof makes it abundantly clear that Special Courts established under the Act can take cognizance as well try the cases mentioned in the items. But, that does not preclude Magistrate to take cognizance of offence and send the case to the Special Court for trial. The irregularity, if any, in the matter of taking of cognizance is curable under Section 460(e) of the Code of Criminal Procedure because only Magistrate takes cognizance under Section 190(1) (b) of the Code not the Special Court who takes cognizance from notification issued by Government. So, if a special Judge takes cognizance without jurisdiction can not be cured under Section 460(e) of the Code. Therefore, by no means the proceeding before the learned ACJM can be quashed in view of the discussion above.
40. In view of the discussion above, I am unable to accept the proposition of Mr. Chowdhury. The question no. 3, as a consequence, is answered in negative. The Revision application is, thus, dismissed and disposed of.
41. Interim order, if any, stands vacated.
42. Department is directed to send down the Lower Court Records to the learned Court concerned at once.