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2011 Supreme(Cal) 192
HIGH COURT OF CALCUTTA
KANCHAN CHAKRABORTY, J.
Haladhar Sasmal - Appellants
Vs
State Of West Bengal - Respondents
C.R.R No. 3049 of 2009
Decided on: Feb 11, 2011
Somopriyo Chowdhury, Joy Sengupta, Debabrata Acharya
A Magistrate's power to issue process against an accused who was discharged earlier under Section 167(5) of the CrPC, the definition of a public servant under Section 21 of the IPC, and the jurisdiction of Special Courts under the West Bengal Criminal Law (Amendment) Act, 1949.
Headnote:
Magistrate's Power to Issue Process: Discharge Under Section 167(5) of CrPC - Public Servant Definition Under Section 21 of IPC - Special Court Jurisdiction Under West Bengal Criminal Law (Amendment) Act, 1949.
Fact of the Case:
The petitioner, Haladhar Sasmal, was discharged under Section 167(5) of the CrPC before the filing of the charge sheet in a case involving misappropriation of funds from a Co-operative Society. Subsequently, the Investigating Officer filed a charge sheet against the petitioner and three others, showing the petitioner as 'not sent up' due to his discharge. Upon consideration of the materials in the case diary, the Magistrate took cognizance of the offenses and issued summons against the petitioner. The petitioner challenged the Magistrate's order on the grounds that (a) a Magistrate cannot issue process against an accused who was discharged earlier under Section 167(5) of the CrPC, (b) the petitioner is not a public servant within the meaning of Section 21 of the IPC, and (c) offenses under Section 420 of the IPC against a public servant must be tried by a Special Court under the West Bengal Criminal Law (Amendment) Act, 1949.
Finding of the Court:
1. A Magistrate can issue process against an accused who was discharged earlier under Section 167(5) of the CrPC if the discharge order was passed without considering the materials in the case diary or without providing an opportunity to the de facto complainant to be heard. 2. The petitioner is a public servant within the meaning of Section 21 of the IPC by virtue of Section 8 of the West Bengal Co-operative Societies Act, 1983. 3. Offenses under Section 420 of the IPC against a public servant can be tried by a Magistrate in an ordinary criminal court if the accused is not prosecuted under the penal provisions of the West Bengal Co-operative Societies Act, 1983 with the previous sanction of the Registrar.
Issues: 1. Whether a Magistrate can issue process against an accused who was discharged earlier under Section 167(5) of the CrPC? 2. Whether the petitioner is a public servant within the meaning of Section 21 of the IPC by virtue of Section 8 of the West Bengal Co-operative Societies Act, 1983? 3. Whether offenses under Section 420 of the IPC against a public servant must be tried by a Special Court under the West Bengal Criminal Law (Amendment) Act, 1949?
Ratio Decidendi: 1. The discharge of an accused under Section 167(5) of the CrPC does not put an end to the investigation into the case against other accused persons named in the FIR. The Magistrate can take cognizance of offenses alleged on the basis of materials in the case diary as soon as the charge sheet is filed. 2. A Co-operative Society registered under the West Bengal Co-operative Societies Act, 1983, is a body corporate, and its officers are deemed to be public servants within the meaning of Section 21 of the IPC. 3. The West Bengal Criminal Law (Amendment) Act, 1949 does not preclude a Magistrate from taking cognizance of an offense under Section 420 of the IPC against a public servant and sending the case to a Special Court for trial.
Final Decision: The Revision application is dismissed, and the interim order is vacated.
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 Hon’ble Apex Court in Deepu@ Deepak Singh Vs. 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 3 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 Hon’ble Apex Court in Raghubansdubery Vs. State of Bihar, AIR 1967 Supreme Court 1167, Nirmal Kanti Ray Vs. State of West Bengal 1998 C Cr.L.R. (SC) and Kalyan Kumar Das Vs. State of West Bengal 1948 C Cr.L.R. (cal) 292. For better appreciation of the point raised at the bar, the backdrop of the case is given below, succinctly:-
"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 4 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 Proced
