A private entity performing statutory financial duties may be subject to trial under special jurisdiction when acting as an agent of the Government.

JUDGMENT :

RAI CHATTOPADHYAY, J.

1. The instant criminal revision has been filed challenging an order of the Additional Sessions Judge, 2nd Court, Jalpaiguri (Special Court under Section 409, I.P.C.) dated May 16, 2023 in Special Case No. 10 of 2023.

2. By dint of the said order, the Special Court under Section 409, I.P.C has taken cognizance of offence of the present petitioner as alleged in the charge-sheet, under sections 406 and 409 of the Indian Penal Code.

3. Learned advocate, Mr. Arnab Sengupta has appeared for the petitioner. He has argued that, taking cognizance of an offence as above by a Special Court, alleged to have been committed by a private entity which is not a Government company or an agent of the Government, stands in violation of the statutory provisions. He submits that the Special Court derives power from the provisions of the West Bengal Criminal Law Amendment (Special Court’s) Act, 1949, which has provided in the ‘Schedule’ thereof as follows:-

“3. An offence punishable under Section 417 or Section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government [or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 as an agent of such Government company] while purporting to act as such public servant or agent.”

4. He has further referred to the First Schedule of the Code of Criminal Procedure. He submits on the basis of the same that, as per the statute, an offence under Section 406 and/or 409, I.P.C. shall be triable by a Magistrate.

5. Mr. Sengupta, learned advocate for the petitioner has relied on the following judgments to buttress his argument as above –

i. Srikanta Patra Vs. State of West Bengal , (2008) Supreme (Cal) 318, dated 20.3.2008

ii. Swarup Mazumdar Vs. The State of West Bengal & Anr. 2015 (1) Cal Cri. LR 429

iii. Monoranjan Roy Vs. The State of West Bengal and Anr. CRR No. 1643 of 2022, dated 30.06.2022

6. Therefore, he has submitted that, trial of an accused under Section 409, I.P.C, who is not a public servant or dealing with any Government property and is a private individual/entity only, as it is in the present case, is to be done by the Magistrate and not by the Special Judge as empowered under the said Amendment Act of 1949.

7. Ms. Aditi Shankar Chakraborty, learned Additional Public Prosecutor has raised objection to the submission and prayer of the petitioner as above. His argument is based on the grounds that, in this particular case, the present petitioner has acted as the agent of the Government in collecting the workers’ contribution of provident fund but has committed default and offence in accordance with the statutory provision by not depositing the said amount to the Government. Hence, therefore, the provision under the Schedule, Clause 3 of the West Bengal Criminal Law Amendment Special Court’s Act, 1949 is squarely applicable in case of the present petitioner.

8. I have heard the submissions made on behalf of each of the parties carefully and perused materials on record meticulously. To adjudicate the issues involved in the present case that, whether the Special Court established under the West Bengal Criminal Law Amendment Special Court’s Act, 1949 and the provision under the Schedule thereof in particular, would be applicable in case of the present petitioner in order to enable the said Special Court to take cognizance in the instant ma