Cognizance of offenses committed by public servants requires prior sanction under Section 197 of the CrPC, and such offenses are triable only by Special Courts designated under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949.

Nripendra Kumar Bhattacharyya, J.

1. By this revisional application the accused petitioner has challenged the proceeding in Case No. C.939 of 1992 pending in the court of the learned Metropolitan Magistrate, 5th Court, Calcutta.

2. In order to appreciate the point of law in this case, a short resume of the fact is necessary and it is delineated hereunder :-

3. The accused petitioner before this Court during the relevant time was Additional Chief (Marketing) Chemical Division of the Central Marketing Organization of the Steel Authority of India Limited at Calcutta and was posted in the office of the Steel Authority of India at its Calcutta Office. As a matter of general transfer he was transferred to the Central Marketing Organization at its office at Madras. The petitioner moved against such order of transfer before this Court in its writ jurisdiction but in vain. Thereafter, the accused petitioner applied for travelling allowance for undertaking his journey from Calcutta to Madras and the Steel Authority of India made such payment of Rs. 32,084/- only as travelling allowance by cheque No. 53:5823 dated 10.12.90. In the petition of complaint it has been alleged that though the money was entrusted with the accused petitioner he had neither undertaken the journey to Madras nor had he returned the money to the Steel Authority of India Limited which is the complainant company, resulting in the lodging of petition of complaint as contemplated under s. 200 of the Code of Criminal Procedure before the court of the learned Chief Metropolitan Magistrate, Calcutta. The said complaint was registered there as Case No. C-931) of 1992. In the petition of complaint a prayer was made for issuance of process against the accused petitioner herein for an offence under s. 409 of the Indian Penal Code alleging, inter alia, that such breach of trust was made by the petitioner herein during his period of service as a public servant. The said statement has been made in paragraph 12 of the petition of complaint. The learned Chief Metropolitan Magistrate by his order No.1 dated 8.7.92 took cognizance of the offence under s. 409 of the Indian Penal Code and directed issuance of summons against the accused, the petitioner herein, for an offence under s. 409 IPC. From time to time thereafter further direction was made for issuance of summons and as the summons could not be served earlier, ultimately by the order No. 3 dated 31.10.92 the learned Chief Metropolitan Magistrate transferred the case to the court of the learned Metropolitan Magistrate, 5th Court, Calcutta, for disposal.

4. The learned Advocate for the accused petitioner, Mr. Sarojesh Mukherjee appearing with the learned Advocate Mr. Subhasis Ray challenged the proceeding mainly on two grounds, namely, (a) that the learned Magistrate had no jurisdiction to entertain the petition of complaint as there was an initial lack of jurisdiction because the accused petitioner during the relevant time when the offence was alleged to have been committed was a public servant and under s. 4 read with Clause (2) of the Schedule of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 the case was triable by a Special Court as the offence alleged to have been committed being an offence under s. 409 of the Indian Penal Code, and (b) the second ground is that the cognizance had been taken of an offence alleged to have been committed by a public servant and s. 197 of the Code of Criminal Procedure is a bar for taking such cognizance without prior sanction.

5. Mr. Kishore Mukherjee, learned Advocate appearing with Mr. Samindra Kumar Das, learned Advocate for the Steel Authority of India Limited, on the other hand, contended that the fact should have been brought to the notice of the learned Magistrate first and then the petitioner could approach this Court in revision. According to Mr. Mukherjee, unless that fact was made known to the learned Magistrate, the learned Magistrate had not the opportuni