(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 Cooperative 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 Cooperative Societies Act was obtained prior to prosecuting the petitioner who happened to be the Secretary of the Society.

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.

(3) 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 Cooperative 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.

(4) FOR better appreciation of the matter the relevant provision of law are set out below : Section 21 IPC Clause (12):-

" Every person- (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 as defined in Section 617 of the Companies Act, 1956 (1 of 1956)"

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 Proced