A. K. SEN, J. ( 1 ) THIS is a revisional application by one amongst four accused persons who are being prosecuted in G. R. Case 189/76 before the Additional chief Metropolitan Magistrate, Calcutta on different charges under sections 409/109, 467/109, 120b/409 and 477a of the Indian Penal Code. The Rule is directed against an order passed by the learned Additional Chief Metropolitan Magistrate dated August 28, 1976. By this order the learned Magistrate tendered pardon to one of the accused under section 306 (1) of the Code of Criminal Procedure and he also over-ruled an objection raised on behalf of the other three accused persons including the present petitioner that the said Court had no jurisdiction to take cognizance of the offences. ( 2 ) SO far as the order granting pardon to one of the accused is concerned, though the validity thereof had been challenged in the revisional application, Mr. Banerjee, learned advocate appearing in support of this Rule, in his usual fairness concedes that he is not in a position to support the challenge so made. This Rule, however, is pressed on the other point which was raised before the learned Magistrate but was overruled by him. According to the prosecution the accused persons or to be more precise the present petitioner was an employee of a General Insurance Company known as Union Co-operative insurance Society Limited, Bombay, and acting in such capacity he entered into a criminal conspiracy with others to commit offences of criminal breach of trust in respect of the fund of the Insurance Company and did commit such criminal breach of trust. For commission of such an offence, it is further alleged, there was falsification of accounts and forgery as well. It is not in dispute that on the prosecution allegation such offences were committed during the period 1966-68 at a time when the General Insurance Companies had not been nationalized. These Companies were, however, nationalized in the year 1972 by Act LVII of 1972. ( 3 ) UNDOUBTEDLY the charge sheet was submitted long after the nationalization in the year 1972 and cognizance was taken thereon. These Companies were, however, nationalized in the year 1972 by Act LVII of 1972. ( 3 ) UNDOUBTEDLY the charge sheet was submitted long after the nationalization in the year 1972 and cognizance was taken thereon. It was, therefore, sought to be argued before the learned Additional Chief Metropolitan Magistrate that on the day such cognizance was taken the accused person being an employee of a nationalized General Insurance Company was a public servant and under the provisions of section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, he along with others could be tried only by a Special Court and not by the ordinary Court of the learned Magistrate. This objection was overruled by the Learned Additional Chief Metropolitan Magistrate on the view that when the offence itself was committed by the accused persons not in his capacity as a public servant it would not come within the schedule to the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, and would not be triable by the Special Court. It is the correctness of this view which is being challenged before me in this revisional application by Mr. Banerjee. ( 4 ) ACCORDING to Mr. Banerjee, the learned Magistrate went wrong in assuming Jurisdiction over the case for trial. According to him, for determining Jurisdiction the crucial date would be the date on which cognizance of the offence is being taken and not the date when the offence was committed, so that if on the date cognizance is taken the accused persons are public servants they could be tried only under the special provisions of the Special Courts Act and the jurisdiction of the ordinary courts would be ousted by virtue of the provision of section 4. Reliance is placed by Mr. Banerjee on two earlier Bench decisions of this Court one of which is unreported and the other is the case of Manmal Bhutoria v. The State of West Bengal and others, 77 C. W. N. 460. So far as the unreported Bench decision is concerned that was the decision of Amaresh Roy and S. K. Chakrabarti, JJ. In Criminal Revision Case No. 1340 of 1966 disposed of on July 17, 1968. In my view this decision does not help Mr. Banerjee. So far as the unreported Bench decision is concerned that was the decision of Amaresh Roy and S. K. Chakrabarti, JJ. In Criminal Revision Case No. 1340 of 1966 disposed of on July 17, 1968. In my view this decision does not help Mr. Banerjee. It was the case of an offence under section 120b read with section 420 of the Indian Penal Code being committed by an employee of a Life Insurance Company on a date subsequent to the nationalization of such company. An objection was raised before the Division Bench that though the company was nationalized since the definition of 'public servant' as in section 21 of the Indian Penal Code had not yet been amended to include employees of such nationalized companies, the accused person could not be brought within the purview of the Special Courts Act. This objection was over-ruled by the Division Bench on the view that even if the accused person was not a public servant he was an agent dealing with the property belonging to the Government and as such would come within the purview of the Special Courts Act. It was not a case where the offence was committed prior to nationalization as in the present case. Obviously, therefore, the offence having been committed after the nationalization by a person who was found to be in the position an agent dealing with the property of the Government the Special Courts Act was held to be applicable to such a person. This decision, therefore, does not help us in deciding the issue now raised before me. ( 5 ) STRONG reliance, however, was placed by Mr. Banerjee on the other reported Bench decision of this Court in the case of Manmal Bhutoria v. The State of West Bengal and others. In that case one of the accused persons committing the offence did so acting as a public servant but he ceased to be a public servant on the date allotment was made or the cognizance was taken. In that case one of the accused persons committing the offence did so acting as a public servant but he ceased to be a public servant on the date allotment was made or the cognizance was taken. The question that was agitated before the Division Bench was as to whether the case could still be triable by the Special Court under the provisions of Special Courts Act only because one of the accused persons while committing the offence did so as a public servant though he had ceased to be a public servant since before the Special Court could take cognizance of the offence. On the construction of the provisions of section 10, 4 (i) and 4 (ii) of the Special Courts Act learned Judges came to the conclusion that a public servant who has ceased to be a public servant on the day cognizance was taken can not be prosecuted even in respect of a scheduled offence under the special provisions of the two statutes, namely, Special Courts Act, 1949, and the Prevention of Corruption Act. It was observed ?the scheduled offences under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and the Prevention of Corruption Act, 1947 can be committed only by a public servant and the trial of such a person will be in accordance with the provisions thereof, but a public servant who has ceased to be a public servant, can neither be prosecuted in respect of any scheduled offence not of an offence under section 5 (2) of the Prevention of Corruption Act and as such the trial of such a person cannot be in accordance with the provisions of those two statues?. From the principles so laid down it has been sought to be argued by Mr. Banerjee as a converse proposition that even if the person who commits an offence as is specified in the schedule was not a public servant on the day it was so committed if he subsequently becomes a public servant on the date cognizance is taken, he comes under the purview of the Act so that Special Court alone would have jurisdiction to try such a case and ordinary courts will have no jurisdiction. With respect, however, I am unable to accept this contention since the proposition sought to be deduced by Mr. Banerjee does not follow as a necessary corollary from the principles laid down. With respect, however, I am unable to accept this contention since the proposition sought to be deduced by Mr. Banerjee does not follow as a necessary corollary from the principles laid down. This position would be clear when we consider the reasons given by the learned Judges in arriving at their conclusion, as aforesaid. It was pointed out that a public servant who has ceased to be a public servant on the date cognizance is taken would not be entitled to the Special protection and advantages under section 6 of the Prevention of Corruption Act but if he still be triable by the Special Court he would be subjected to all the disadvantages under the Prevention of Corruption Act. This will create an anomaly inconsistent with section 10 of the Special Courts Act and would also result in discrimination. To avoid such a situation it was, therefore, concluded that once the accused - public servant ceases to be a public servant before cognizance is taken, he ceases to be triable any more under the Special provisions of those two special Acts. ( 6 ) BUT this decision proceeded on the basis that the offence complained of is an offence coming within the purview of the Schedule to the Special Courts Act and had not the public servant ceased to remain as such, he could have been tried under the provisions of that Act. But here the question is different and more fundamental. Under the provisions of the Special Courts Act, the Special Court has been conferred exclusive jurisdiction to try offences specified in the Schedule and the Schedule enjoins that offences specified therein when committed by a public servant or an agent of the Government in his capacity of a public servant or in the way of his business as such agent are so triable by the Special Court. Therefore, in order to come within the purview of the Act, the offence must have to be committed by one in his capacity as a public servant. If one commits such an offence not in such a capacity, he does not come within the purview of the Act only because he has become a public servant later on. Therefore, in order to come within the purview of the Act, the offence must have to be committed by one in his capacity as a public servant. If one commits such an offence not in such a capacity, he does not come within the purview of the Act only because he has become a public servant later on. The learned Magistrate, in my opinion, was therefore, right in his conclusion that the schedule makes it amply clear that the offences triable by the Special Court are offences committed by a public servant in their capacity as such. Even now if a public servant commits an offence of the nature as is specified in the schedule not in his capacity as a public servant he will certainly not be triable under the special provisions of the Special Courts Act only because he holds the character of a public servant. That being the position, if the petitioner in the present case had committed the offence not as a public servant but in the capacity of an ordinary employee of an ordinary company, the fact that the company has since been nationalized and he has become a public servant would not render the offence triable by the Special Court. In this view, I am of the opinion that the learned Judge was right in his conclusion that he had jurisdiction to try the offences when he over-ruled the objection raised by the petitioner in this regard. On the conclusion above, this application fails and the Rule is discharged. Let the records be sent down as early as possible. Rule made absolute.