Upendra Chandra Dey v. STATE OF WEST BENGAL — 1969 DIGILAW 45 (CAL)

JUDGMENT 1. THE appellants who are two in number have been convicted by the Judge, Additional special Court. Calcutta under section 7 (1) of the Essential Commodities Act, the appellant No. 1 Upendra Chandra dey being sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-, in default to undergo rigorous imprisonment for a further period of 3 months and the appellant no. 2 Nirmal Kanti Sarkar being sentenced to rigorous imprisonment for 6 months. 2. THE appellant No. 1 Upendra chandra Dey was a licensed dealer in sugar. He was granted a licence to purchase, sell and store sugar by the controller of Sugar, West Bengal under the provisions of the West Bengal sugar Dealers Licencing Order, 1969. The appellant No. 2 Nirmal Kanti sarkar was his manager in respect of the sugar business. The prosecution alleged that between the dates 16th of march 1960 and 21st of April 1960, the appellant No. 1 disposed of 660 bags of sugar in contravention of the Clauses 5 and 7 of the Licence. The appellants did not mention in the receipts granted to the purchasers their names and address. This has constituted a violation of the Clause 5 of the Licence. There was also a direction upon the appellant no. 1 not to dispose of the stock without orders from the Government. The appellants disposed of the stock in spite of this order and this constituted a violation of the Clause No. 7 of the licence. Upon these allegations a charge of criminal breach of trust under section 409 of the Indian Penal code in respect of the 660 bags of sugar was framed against the appellant No. 1. There was a charge of conspiracy, that is to say, under section 120 (B) read with section 409 of the Indian Penal Code against both the appellants. They were also charged under section 7 (1) of the Essential Commodities Act. The defence contended before the trial Court that the bags of sugar in question and that he was not an agent of the Government in respect of this property. The accused person denied that there was any entrustment. They were also charged under section 7 (1) of the Essential Commodities Act. The defence contended before the trial Court that the bags of sugar in question and that he was not an agent of the Government in respect of this property. The accused person denied that there was any entrustment. The appellant No. 1 in his statement under section 342 of the Code of criminal procedure stated that the appellant No. 2, who was his employee, disposed of the sugar not knowing the rules as he found that some of the bags were water-damaged and in torn condition. The appellant No. 1 further stated that the direction not to sell the stock was received by him too late by two days. The stock was disposed of on the 24th of April 1960 while the order was actually received by him on the 26th of April 1960. The appellant no. 2 pleaded that whatever he did under the instructions of his master, the appellant No. 1. 3. THE trial Court found that the property in the 660 bags of sugar in question belonged to the appellant No. 1 as he purchased them from the producer on payment of purchase money. The learned trial Court held that the appellant No. 1 was not a trustee for the Government in respect of the bags of sugar in question. There being no entrustment, the charge of criminal breach of trust could not stand. He further held that the evidence adduced by the prosecution did not show that there was any conspiracy between the two appellants. In this view of the matter, he acquitted the appellant No. 1 of the charge under section 409 of the Indian Penal Code and acquitted both the appellants of the charge under section 120 (B) read with section 409 of the Indian Penal Code. He, however, found that the accused persons were guilty of the offences punishable under section 7 (1) of the Essential commodities Act as there was a clear violation of the Clauses 5 and 7 of the Licence. 4. ON appeal, it has been urged before us by Mr. Ajit Kumar Dutt, appearing for the appellants, that the offences punishable under section 7 (1)of the Essential Commodities Act not being specified in the Schedule to the special Act could not be tried by a special Court. 4. ON appeal, it has been urged before us by Mr. Ajit Kumar Dutt, appearing for the appellants, that the offences punishable under section 7 (1)of the Essential Commodities Act not being specified in the Schedule to the special Act could not be tried by a special Court. He contended that as the trial Court had no jurisdiction to try the case, the conviction and sentence passed by him could not stand. He submitted that the proviso to section 4 (1) of the West Bengal Criminal Law amendment Act could not be of any help as the alleged offence of criminal breach of trust was itself not triable by the Judge, Special Court. Sub-SECTION I of section 4 of the act is in these terms 'notwithstanding anything contained in the Code of criminal Procedure, 1898, or in any other law, the offences specified in the schedule shall be triable by Special Courts only'. There is a proviso to this subsection and it runs as follows: "provided that when trying any case, a special Court may also try any offence other than an offence specified in the schedule with which the accused may under the Code of Criminal Procedure, 1898 be charged at the same trial. " 5. NOW an offence punishable under section 7 (1) of the Essential commodities Act is not an offence specified in the Schedule to the Act. In view of the proviso to sub-section (1) of section 4, the offence could of course have been tried by a Special Court if the alleged offence of criminal breach of trust was also triable by it. The item no. 2 of the Schedule to the Act speaks of an offence punishable under section 409 of the Indian Penal Code. But it will be seen that there are certain conditions to be fulfilled before such an offence can be tried by a Special Court. The property entrusted must be a government property and the person entrusted must be either a public servant or a government agent. These are the two most important elements which must be present BO that the offence of criminal breach of trust may be taken cognizance of and tried by a Special court. In the present case these two elements are entirely absent. These are the two most important elements which must be present BO that the offence of criminal breach of trust may be taken cognizance of and tried by a Special court. In the present case these two elements are entirely absent. The prosecution never alleged that the property in the 660 bags of sugar belonged to the Government nor was it ever alleged that the appellant No. 1 was am agent of the Government. The order of the Director of Sugar And Vanaspati allotting the sugar to the licenses clearly stated that any transaction resulting from the allotment order was to be strictly on a commercial basis between the producer and the allottee after the allotment order was made the licensee had to purchase the sugar from the producer by paying the purchase money. That being the position, the licensee could by no means be deemed to have been an agent of the government. The sugar that was allotted to him was never the property of the Government as the licensee had to purchase it on payment of consideration money from the producer. In. these circumstances, the learned trial court was constrained to hold that there was no entrustment of any government property in favour of the appellant No. 1 and it was for this reason that he had to acquit the accused No, 1 of the charge under section 409 of the Indian Penal Code. 6. THERE was, no doubt, a charge under section 409 of the Indian Penal code against the applicant No. 1, but that charge was entirely misconceived. The alleged offence of the criminal breach of trust was not of the kind contemplated in item No. 2 of the schedule to the Act. The Special Court had, therefore, no jurisdiction to try that offence although it was described as an offence under section 409 of the Indian Penal Code. Had that offence been one, strictly covered by the item no. 2 of the Schedule, then of course that would have given the Special court jurisdiction to try the offence under section 7 (1) of the Essential commodities Act in view of the proviso to sub-section (1) of section 4 of the Act. As the main offence was not at all a scheduled offence, the special Court had been suffering from an initial lack of jurisdiction. As the main offence was not at all a scheduled offence, the special Court had been suffering from an initial lack of jurisdiction. In such circumstances, the proviso to sub-section (1) of section 4 could not be relied upon for conferring jurisdiction upon the court for trying a non-scheduled offence. Had it been the case that the offence under section 409 of the Indian code with which the appellant No. 1 was charged, was one of the kind contemplated in item No. 2 of the schedule, but the charge failed on merits, then of course, notwithstanding the fact, that the accused persons were acquitted of the charge in respect of the offence of criminal breach of trust the conviction in respect of the other charge which was for a non-scheduled offence could have been sustained. But that was not the case here. In the present case, as already stated, there was an inherent lack of jurisdiction in the trial court to take cognizance to try any of the offences specified in the allotment order. In the circumstances, cognizance that it had taken was entirely without jurisdiction and the trial that followed also suffered from the same defect. Upon these consideration, think the contention raised by Mr. Dutt regarding the absence of jurisdiction in the Special Court must be upheld. As I am holding that the Special court had no jurisdiction to try the case at all, it is not necessary for me to go into the question of merits of the case the trial being without any jurisdiction. The conviction and the sentence must be set aside. As I have not entered into the question of the merits of the case, no order regarding acquittal of the appellants can be made. The question, therefore, arises as to what should happen to the proceeding that was pending before the trial court. As the proceeding was based on a cognizance that was without jurisdiction and everything that followed was done without jurisdiction, the entire proceeding is liable to be quashed. An order for quashing the proceeding where it has been started without jurisdiction can certainly be made by the High court in the exercise of its inherent jurisdiction under section 561a of the code of Criminal Procedure. 7. IN the result, the appeal is allowed. The conviction and the sentences passed against the appellants by the trial Court are set aside. 7. IN the result, the appeal is allowed. The conviction and the sentences passed against the appellants by the trial Court are set aside. The proceeding that was started before the Special court is hereby quashed. The appellants are discharged from their bail bonds. Sarma Sarkar, J. : 8. THE principal points for consideration in this appeal are firstly, whether the Special Court had any jurisdiction to convict the appellants under section 7 (1) of the Essential commodities Act and secondly, if the Special court had no such jurisdiction what relief, if any, can be given to the appellants and in what form. The Special Judge framed charges under section 120b/409 Indian penal Code against the appellants and under section 409 Indian Penal Code against the appellant No. 1 and the relevant portions of the said charges are set forth below : (a) The appellants were charged under section 1206/409 I. P. C. alleging that they "were parties to a criminal conspiracy to do an illegal act, to wit to commit criminal breach of trust in. respect of 660 bags of sugar weighing about 1815 mds. valued at about ks. 73,910. 53 np., with dominion over the said property in the way of "business as sugar merchant and in pursuance of the said conspiracy the aforesaid property was disposed of in violation of direction of the controller of Sugar, Government of West bengal, and in violation of the terms and conditions of the Sugar License. " (b) The appellant No. 1 was charged under section 409 Indian penal Code for having "dominion over 660 bags of sugar weighing about 1815 mds. valued at about Rs. 73,901. 53np. in the way of business as sugar merchant and in pursuance of the said conspiracy the aforesaid property was disposed of in. violation of direction of the Controller of Sugar, government of West Bengal and in violation of the terms and conditions of the sugar License. " 9. THE charge under section 7 (1) of the Essential Commodities Act was also framed against both the appellants. violation of direction of the Controller of Sugar, government of West Bengal and in violation of the terms and conditions of the sugar License. " 9. THE charge under section 7 (1) of the Essential Commodities Act was also framed against both the appellants. The learned Special Judge acquitted both the appellants in respect of charges under section 120b 409 I. P. C. and section 409 Indian penal Code on the finding that the property did not belong to the government and the appellant No. 1, dealer, was not the agent of the state Government, but convicted and sentenced the appellant under section 7 (1) of the Essential Commodities act-a non-scheduled offence. This trial and conviction it is urged for the appellants is without jurisdiction. 10. IT was argued by the learned advocate for the State that the Special court had jurisdiction to try and convict the appellants under section 7 of the Essential Commodities Act because the case was allotted to the special Court by the State government on charges under sec. 120b/409 I.P.C. and 409 I.P.C. It was argued before us, that under proviso to section 4 (1) read with sub-section (2) of section 4 of the West Bengal Criminal law Amendment (Special Courts)Act, 1949 (hereinafter referred to as the Act), the Special Court has jurisdiction to try non-scheduled offences provided the allotment is made to it in respect of the scheduled offences of the Act. This view is also supported by the decision in a similar case in (1) Jagabandhu Mitra v. The State, reported in 59 CWN 312. It is immaterial if there is acquittal in respect of scheduled offence as the jurisdiction of the Court depends on the accusation and not on the findings of the Court (2) 42 CWN 621 Babulal Chowkhani v. King Emperor. It was however urged before us by the learned advocate for the appellants that if the Special Court had no jurisdiction to try the case allotted to it, then the allotment itself to Special Court is without jurisdiction and the Special Court could assume no jurisdiction to try or proceed on with the case. This argument of the learned advocate for the appellants requires careful examination and the limitation under which this argument will hold good has also to be considered. This argument of the learned advocate for the appellants requires careful examination and the limitation under which this argument will hold good has also to be considered. It is true that, if the prosecution fails to prove the scheduled offence, even then the conviction in non-scheduled offence will not be without jurisdiction. But where, as in the present case, there is no allegation, evidence or even a charge to make out a case of scheduled offence under section 120b read with section 409 of the Indian Penal Code, then the question of decision does not arise at all. As a matter of fact, there has been a confusion in the present case because of the application of section 409 I.P.C. It will be seen from an examination of the scope and extent of section 409 IRC that it is far wider than the scheduled offence under section 409 I.P.C. To appreciate the difference it is necessary to set down the exact terms of section 409 I.P.C. which is as follows: "whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished (imprisonment for life)or with imprisonment, of either description for a term which may extend to ten years, and shall also be liable to fine. " The scheduled offence of section 409 I.P.C. as embodied in clause 2 of the schedule to the Act is also stated below: "an offence punishable under section 409 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 in respect of property-with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent." 11. IT is at once apparent from a comparison of the scheduled offences with section 409 I.P.C. that scheduled offence is confined only to a public servant or to an agent of the government in respect of property belonging to the Government. IT is at once apparent from a comparison of the scheduled offences with section 409 I.P.C. that scheduled offence is confined only to a public servant or to an agent of the government in respect of property belonging to the Government. It is curious that nowhere in the petition of complaint or in the information to the police or even in the charge and also in the evidence on record, there is any accusation or assertion that the property in question belonged to the government or that the appellants were agents of the Government in respect of the property belonging to the government. In the absence of such allegation, assertion or evidence on record, there is no case made out for any scheduled offence and as such the allotment of the case to the Special court did not confer any jurisdiction upon it. It was argued with some force on the basis of the decision in (3) Ajit Palit's case (65 C.W.N. 977) that as soon as the allotment is made, the Special Court assumes jurisdiction to proceed on with the case. But the very word "jurisdiction" has to be interpreted clearly and specifically. It is no doubt true that allotment order confers jurisdiction on the Special court to proceed with the case but even then the Special Court has to take cognizance under section 5 of the act though the mode of taking cognizance may not be confined to the provision of section 190 of the Code of criminal Procedure. But even then cognizance has got to be taken to ascertain, from whatever material available, that the facts constituting the offence are triable by the Special Court. In the present case, the facts constituting the offence do not make out a case triable by the Special Court as the appellants are neither public servants nor agents of the State Government in respect of any property belonging to it. In this view of the matter it is clear that the special Court had no jurisdiction to try the case though it might assume initial jurisdiction by allotment order to proceed on with the case. If the Special court had no jurisdiction to try the case, then certainly it had no jurisdiction to try the alleged scheduled offence allotted to it. Then certainly it could not assume jurisdiction to try non-scheduled offence along with it. If the Special court had no jurisdiction to try the case, then certainly it had no jurisdiction to try the alleged scheduled offence allotted to it. Then certainly it could not assume jurisdiction to try non-scheduled offence along with it. The test is whether the Special Judge could have or should have discharged the appellants under section 253 of the Code of criminal Procedure. In this view of the matter, it appears to me that the trial and conviction under the essential Commodities Act by the Special court was entirely without jurisdiction. In this connection I may refer to the decision in (4) Abdul Rehman mahomed Yusuf v. Md. Hazi Ahmad agbotwalla, reported in AIR 1960 SC 82 . In that case it was held that when the presidency Magistrate wrongly framed the charge under section 500 of the Indian Penal Code, without any complaint under section 198 of the Code, and the facts as stated in the complaint actually filed, did not make out the offence as charged, the Presidency Magistrate had no jurisdiction to proceed on with the trial and he should have brought this matter to the notice of the High Court so that the error might be corrected instead of recording an order of acquittal. The judgment of the Special Court in the present case will show that he was never in doubt that there was no evidence or charge about any scheduled offence against the appellants who are neither agents of the State government nor was there any claim that the property belonged to the State government. In this view of the matter it was not proper for the Special judge even to record an order of acquittal when there was no evidence or no charge even to make out the offence. The Special Judge or the aggrieved party should have referred to the high Court. In the result, it is found that the conviction of the appellants under section 7 of the Essential commodities Act was without jurisdiction. 12. AS regards the second point, I have now to consider what order, if any has to be passed to give relief to the appellants. There is some technical difficulty as full relief cannot be given by merely passing an order under section 423 (b) of the Code of Criminal procedure. 12. AS regards the second point, I have now to consider what order, if any has to be passed to give relief to the appellants. There is some technical difficulty as full relief cannot be given by merely passing an order under section 423 (b) of the Code of Criminal procedure. If the conviction or trial is without jurisdiction, there is no question of deciding the appeal on merits. It will neither be necessary nor proper to make any observation on the merits of the case under the essential Commodities Act. As the trial and conviction are without jurisdiction, the appeal is to be allowed and the order of conviction has to be set aside, the question now remains, what further order may be passed in the circumstances of this case and how the order is to be moulded to give complete relief to the appellants. In my view, after setting aside the conviction and sentence and allowing the appeal, the appellants should be discharged from their bail bonds without recording any order of acquittal. This also seems to be the view in the Supreme Court case cited above in (4) AIR 1960 SC 82 . It has been observed at page 85 :-"he (Presidency Magistrate) had no jurisdiction to frame the charge he had framed. His order of acquittal must be regarded as a nullity". The Supreme Court then proceeded to record the order thus : "we accordingly allow the appeal and set aside the order of acquittal made by the presidency Magistrate but, on the finding of the Presidency Magistrate that no offence of conspiracy or abetment arising there from had been established, we direct that the present complaint be dismissed. The respondent is accordingly discharged. " In the present case, however, i have already observed, it is not necessary or proper to make any observation on the merits of the case under the Essential Commodities Act. In my view, after allowing the appeal, the accused persons be discharged not only from the bail bond but also from the charge under the Essential commodities Act without recording any order of acquittal or of conviction, leaving it to the State Government to decide whether fresh prosecution should be launched according to law under the essential Commodities Act.