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High Court Of Calcutta
Kanchan Chakraborty, J.
Jiarul Mondal Alias Julhas : Appellant
Versus
State Of West Bengal : Respondent
C.R.R. No. 3427 of 2005
Decided On : March 01,2010
CRIMINAL REVISION - PUBLIC SERVANT - PROSECUTION - SANCTION - WEST BENGAL CO-OPERATIVE SOCIETIES ACT, 1983 - INDIAN PENAL CODE - SECTION 8, 2(31), 139(3), 197, 403, 406, 409 - GENERAL CLAUSES ACT, 1987 - SECTION 26 - PUBLIC SERVANT WITHIN THE MEANING OF SECTION 21 OF IPC - SANCTION UNDER SECTION 197, CRPC NOT REQUIRED - SANCTION UNDER SECTION 139(3) OF THE ACT NOT REQUIRED - PROSECUTION FOR OFFENCES UNDER IPC - NOT BARRED - SECTION 26 OF THE GENERAL CLAUSES ACT, 1987 - OFFENCE PUNISHABLE UNDER TWO OR MORE ENACTMENTS - PROSECUTION OR PUNISHMENT UNDER EITHER OR ANY OF THOSE ENACTMENTS - NO DOUBLE PUNISHMENT - EXERCISE OF EXTRAORDINARY JURISDICTION UNDER SECTION 482, CRPC - NOT WARRANTED - MATERIALS CONSTITUTING PRIMA FACIE CASE - NO GLARING MISTAKE OF LAW OR FACT - NO GROSS MISCARRIAGE OF JUSTICE.
Fact of the Case:
Petitioners, being office bearers of a Co-operative Society, were accused of misappropriation of funds and fertilizer/insecticides. An FIR was lodged by one of the petitioners against the store-keeper and salesman of the Society. The petitioners were arrested and produced before the Court. They filed an application under Section 482, CrPC to quash the entire proceedings on the grounds that they were 'public servants' and required prior sanction for prosecution, that previous sanction of the Registrar of Co-operative Societies was required, that a civil dispute over the same issue was disposed of in their favor, and that prosecution was not instituted by the Registrar or his authorized agent.
Finding of the Court:
1. The petitioners are not 'public servants' within the meaning of Section 21 of the IPC and, therefore, do not require prior sanction under Section 197, CrPC. 2. Sanction under Section 139(3) of the Act is required for prosecuting office bearers or persons connected with the Society for offenses under the Act, but not for offenses under the IPC. 3. The petitioners were prosecuted for offenses under the IPC and not under the Act, so sanction under Section 139(3) of the Act was not required. 4. The petitioners can be tried for offenses under the IPC even though there are specific provisions in the Act for taking such action, as per Section 26 of the General Clauses Act, 1987. 5. There is a strong prima facie case against the petitioners based on the materials placed before the Court, and therefore, the proceedings should not be quashed under Section 482, CrPC.
Issues: 1. Whether the petitioners are 'public servants' within the meaning of Section 21 of the IPC and require prior sanction under Section 197, CrPC for prosecution. 2. Whether previous sanction of the Registrar of Co-operative Societies is required under Section 139(3) of the Act for prosecuting the petitioners. 3. Whether the petitioners can be tried for offenses under the IPC when there are specific provisions in the Act for taking such action. 4. Whether the materials placed before the Court constitute a strong prima facie case against the petitioners, warranting the quashing of the proceedings under Section 482, CrPC.
Ratio Decidendi: 1. The petitioners are not 'public servants' within the meaning of Section 21 of the IPC because the West Bengal Co-operative Societies Act, 1983, which defines them as such, is not in pari materia with the IPC, and the State legislature did not amend Section 21 of the IPC to include them. 2. Sanction under Section 139(3) of the Act is required only for prosecuting offenses under the Act, and not for offenses under the IPC. 3. The petitioners were prosecuted for offenses under the IPC, so sanction under Section 139(3) of the Act was not required. 4. Section 26 of the General Clauses Act, 1987 allows for prosecution or punishment under either or any of the enactments if an offense is punishable under two or more enactments, but there should be no double punishment. 5. The materials placed before the Court constitute a strong prima facie case against the petitioners, and therefore, the proceedings should not be quashed under Section 482, CrPC.
Final Decision: The revision application is dismissed, and the interim stay, if any, is vacated.
1. THE challenge in this revision application under Section 397, 401 read with Section 482 of the Criminal Procedure Code is to the legality and validity of the proceeding in G.R. Case No. 292/2005 arising out of Gaighata P.S. Case No. 64 dated 17.4.2005 under Section 403/406/409, IPC lying in the Court of learned Additional Chief Judicial Magistrate, Bongoan. The petitioners Jiarul Mondal and Nijanur Rahaman Biswas have taken out this application with a prayer to quash the entire proceedings on the following grounds:
a) that they being 'public servants' under Section 8 read with Section 2(31)of the WBCS Act, 1983 vis-a-vis Section 21 of the Indian Penal Code, can not be prosecuted in the Criminal Court ordinarily having jurisdiction over the alleged incident;
b) that in view of Section 139(3) of the WBCS Act 1983, previous sanction of the Registrar of Co-operative Society is required to be obtained prior to lunching the Criminal Prosecution against the petitioners, which was not done;
c) that a civil dispute over the selfsame issue was initiated and disposed of by the ARCS, Tamluk, Midnapur in which the petitioners were found not responsible for the alleged anomalies in the stock of fertilizer and pesticides of the Society and, as such, they can not prosecuted again for selfsame cause especially when the FIR was lodged by none but the petitioners;
d) that in view of 139(5), a prosecution under the WBCS Act, 1983 shall be instituted by the Registrar or any person authorized by him and no Court shall take cognizance of any offence if prosecution is lodged by other than the Registrar or person authorized by him. So, when the instant prosecution was not lunched by the Registrar or his authorized agent, it should be quashed for being not legal.
2. THE factual aspect of the case is given below, in short:
Md. Jiarul Mondal the petitioner No. 1, being the Secretary of Rajapur Paschimpara Samabaya Krishi Unnayan Samity Ltd., lodged a FIR with Gaighata police station alleging therein that Md. Sahajan Mondal and Md. Anwar Hossen Mondal were selected by the members of Co-operative Society as store-keeper, salesman, respectively for the purpose of selling fertilizer, insecticides and pesticides of the Society. It was found that they sold fertilizer, insecticides and pesticides without issuing cash memo and thereby mis-appropriated huge amount of money totaling Rs. 6,42,493.15 p. of the Society. The board of Directors of the Society on making further scrutiny detected the short fall of fertilizer amounting to Rs. 23551/- and short fall of insecticides amounting to Rs. 4625.85 p. from 1.4.2004 to 30.10.2004. The Board of Director had taken a decision in a meeting dated 27.12.2004 to add that amount of Rs. 26.176.85 p. to the shortfall of Rs. 6,42,493.15 p. (total shortfall of Rs. 670,670.00 p.) On the basis of the said FIR, the Gaighata P.S. 64 dated 17.4.2005 under Section 403, 406, 409, IPC was started and, ultimately, ended in charge-sheet against the present petitioners Jiarul Mondal, Nijanur Rahaman and Anwar Hossen Mondal. The present petitioners were arrested also and produced before the Court of learned SDJM, Bongoan. They had, taken out an application before the learned SDJM, Bongoan on 17.5.2005 through the Deputy Jailer, Bongoan subsidiary Correctional Home praying for issuing direction investigation of the case by any other agency excepting the the Gaighata Police Station preferably by the CID, West Bengal. However, they have taken out this application on 28.11.2005prying for quashing of the entire proceedings on the grounds mentioned earlier.
3. MR. Tarun Kanti Haider, learned Counsel appearing for the petitioners contended that the West Bengal Co-operative Societies Act, 1983 (hereinafter referred to as The Act) being a Special and self-contained statute overrides the other statutes. MR. Haider contended further that the Section 8 of The Act provides that all the officers as defined in Section 2 (31) of The Act are "public
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