8 07.05 C.R.R. 4317 of 2022 akb 2025 Nimai Chandra Ghosh & Anr.

Ct. No. 29 Vs.

The State of West Bengal Mr. Ankit Agarwala Ms. Alotriya Mukherjee …For the Petitioners Mr. Saibal Bapuli Mr. Bibaswan Bhattacharya …For the State A short question involved in the present case is that whether the petitioners, who are posted as the Manager and the Sales and Purchase Officer in Shibnbagar O Jahira Samabay Krishi Unnayan Samity Limited (in short said Society) can be categorized as ‘public servants’ to be tried by a Special Court Constituted under the West Bengal Criminal Law Amendment (Special Courts Act) 1949, against whom charge sheet under 420/409 of the Indian Penal Code has been submitted. The allegation in the said case against the petitioner Nos. 1 and 2 is that they have misused and defalcated the funds of the said Society by misusing their posts.

While the investigation was pending learned Magistrate by the impugned order held that since the accused persons are booked under Section 409 of the IPC, the case is triable by the Special Court and as such the case records of the said case was transmitted to the learned Special Court cum Additional Sessions Judge, 1^st Court at Hooghly, Chinsurah. After such transmission, the transferee Special Court has framed charge against the petitioners under Section 420/409 of the Indian Penal Code (IPC) vide order dated 1^st August, 2022.

It is submitted on behalf of the petitioners that the petitioner filed an application before the learned Judge contending that the Special Court has got no jurisdiction to try the said offence since the petitioners are not ‘public servants’ within the definition of Section 21 of the IPC. He further stated that Section 21 does not include employees of the Cooperative Societies, inasmuch as the officers or employees of such Society are not discharging any public duty. He further submits that only the jurisdictional Magistrate has the power to try the said case and as such, records of the said case may be ordered to be returned before the learned Magistrate for taking cognizance and trial. In this context he relied upon the decision of the Hon’ble Apex Court in the case of State of Maharashtra Vs. Laljit Rajshi Shah and Ors., reported in (2000) 2 SCC 699 and also a judgment delivered by a Coordinate Bench of this High Court in Rabindra Nath Bera Vs. State of West Bengal, reported in 2011 SCC OnLine Cal. 459 In the case of State of Maharashtra (Supra), the same question arose before the Hon’ble Apex Court as to whether the person defined as officer under Clause (20) of Section 2 of the Maharashtra Cooperative Societies Act, 1960 is a ‘public servant’ within the meaning under Section 2 of the Prevention of Corruption Act, 1947 (2 of 1947) by virtue of the provisions of Section 161 of the Maharashtra Cooperative Societies Act, 1960 read with Section 21 of the Indian Penal Code.

After going through the said issue involved in the said case, the Hon’ble Apex Court came to a finding that though legislature in Section 161 has referred to the provision of Section 21 of the IPC (as it has also been done in Section 10 of the West Bengal Cooperative Societies Act, 2006) but such reference would not make the Officers concerned ‘public servants’ within the ambit of Section 21. The Court further held that the State legislature had the powers to amend Section 21 of the Indian Penal Code, which is within the jurisdiction of said legislation under Entry (I) of List (III) of Seventh Schedule, subject to Article 254 (2) of the Constitution, as otherwise, inclusion of the persons who are ‘public servants’ under Section’ 161 of the Cooperative Societies Act, would be repugnant to the definition of ‘public servant’ under Section 21 of the IPC. The Court ultimately came to a finding that since not having done, it is difficult to accept the contention of the learned Counsel appearing for the State that by virtue of deeming definition in Section 161 of the Cooperative Societies Act, by referenc