Judgment

BEG, J.: - This is an appeal on a certificate of fitness of the case for appeal to this Court granted by the Calcutta High Court under Article 134 (1)(C) of the Constitution of India.

2. The Respondent was tried by a Special Court constituted under the West Bengal Criminal Law Amendment (Special Courts) Act XXI of 1949 (hereinafter referred to as the Act ), which empowers the Special Court, set up under it, to try offences mentioned in the Schedule annexed to the Act. Item 2 of the Schedule is:

"An offence punishable under Section 409, Indian Penal Code if committed by a public servant or by a person dealing with property belonging to government as an agent of government in respect of property with which he is entrusted or over which he has domain in his capacity of a public servant or in the way of his business as such agent."

The proviso to Section 4(1) of the Act reads as follows:

"Provided that when trying any case, a Special Court may also try any offence other than an offence specified in the schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial."

3. The Special Court framed the following charge against the responden