Judgment 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. 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 opportunity to consider that matter. According to Mr. Mukherjee, the matter should be brought to the notice of the learned Magistrate first and in support of his submission Mr. According to Mr. Mukherjee, unless that fact was made known to the learned Magistrate, the learned Magistrate had not the opportunity to consider that matter. According to Mr. Mukherjee, the matter should be brought to the notice of the learned Magistrate first and in support of his submission Mr. Mukherjee relied on an unreported decision of this Court in the case of Nirmal Kanti Mondal where a single Bench of this Court by its judgment and order dated January 11, 1991, inter alia, observed that the question of jurisdiction must be brought to the notice of the learned Magistrate first and the learned Magistrate shall decide that matter. Mr. Mukherjee further submitted that in another matter another Single Bench of this Court has expressed the same view. 6. Heard the submissions of the learned Advocates for the parties and considered the materials on record. 7. From the record it appears that in paragraph 12 of the petition of complaint the complainant has alleged that the accused petitioner herein is a public servant during the relevant time and that fact was before the learned Magistrate. Section 197 (1) of the Code of Criminal Procedure, inter alia, envisages as follows :- "When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-(a) in the case of a person who is employed or, as the case may be was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; ..........". So sub-s. (1) of s. 197 imposes two conditions that is in case of a public servant there must be a prior sanction for taking cognizance. So sub-s. (1) of s. 197 imposes two conditions that is in case of a public servant there must be a prior sanction for taking cognizance. Section 4 of the Special Courts Act of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, also envisages that notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law in force, the offences specified in the Schedule shall be triable by a Magistrate, Special Courts only Clause (2) of the Schedule shows that an offence punishable under s. 409 of the Indian Penal Code, if committed by a public servant or by a person dealing with the property belonging to Government as an agent of Government or by a person dealing with the property belonging to Government Company as defined in s. 617 of the Companies Act, 1956 as an agent of such Government Company) 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. In the instant case though it has been made out in the petition of complaint that the accused committed the offence under s. 409 IPC as a public servant, the learned Metropolitan Magistrate without ascertaining whether any sanction has been obtained in this case to prosecute the public servant or any sanction is necessary at all took cognizance of the matter. That is against the provision of sub-s. (1) of s. 197 of the Code of Criminal Procedure. Secondly, in view of s. 4 read with Clause (2) of the Schedule of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, save and except the Special Courts the offence regarding the public servant cannot be tried by a Magistrate or by any Court. 8. Mr. Kishore Mukherjee arduously contended before me that the matter of jurisdiction should be brought first before the learned Magistrate so that the learned Magistrate can take appropriate steps in the matter. I fail to understand what steps the learned Magistrate could take once the learned Magistrate has taken cognizance. It is not within his competence to say that taking cognizance is bad. The learned Magistrate is also not empowered to observe once he has taken cognizance that he has no jurisdiction to try the matter. I fail to understand what steps the learned Magistrate could take once the learned Magistrate has taken cognizance. It is not within his competence to say that taking cognizance is bad. The learned Magistrate is also not empowered to observe once he has taken cognizance that he has no jurisdiction to try the matter. Only in exercise of its inherent power under s. 482 Cr.P.C., or for that, the Superior Court can pass such an order. 9. Mr. Sarojesh Mukherjee streneously argued that the question of jurisdiction should be determined first before going into the merits of the case. I am told by the learned Advocates for the parties that the Court has already dealt with the matter to consider the question of merit of the case. Mr. Sarojesh Mukherjee in support of his submission relied on a Supreme Court decision in the case of Gurcharan Dass Chadha vs. State of Rajasthan, reported in AIR 1966 SC 1418 , where in paragraph 5 at page 1420, the Supreme Court has observed as follows:- . "We shall now take up the objection that this Court lacks jurisdiction to transfer the case pending before the special judge, Bharatpur. This objection goes to the root of the matter. Questions of inherent jurisdiction must always be decided before the merits are considered because to dismiss the petition after consideration of merits itself involves an assumption of jurisdiction. We must accordingly consider the objection even though we are satisfied that the petition must fail on merits." 10. The relational of deciding the question of jurisdiction has been embedded in the observation as quoted earlier. From the record it is seen that the accused petitioner in his petition dated 31st October, 1994, inter alia, alleged in paragraph 5 of the petition, which is as follows :- " . . . . . . . . at this stage the accused petitioner in all humility begs to submit that a case u/s 409 of the Indian Penal Code, can not be taken congizance of by this Learned Court on account of the bar of the provisions of the s. 4 of The West Bengal Criminal Law Amendment (Special Courts) Act, 1949." 11. Mr. . . . at this stage the accused petitioner in all humility begs to submit that a case u/s 409 of the Indian Penal Code, can not be taken congizance of by this Learned Court on account of the bar of the provisions of the s. 4 of The West Bengal Criminal Law Amendment (Special Courts) Act, 1949." 11. Mr. Sarojesh Mukherjee repeatedly submitted that though it was brought to the notice of the learned Magistrate that he has no jurisdiction to try the matter, in spite of that no order has been passed to that effect and the petition has been disposed of on some other ground. That gives a complete answer to the submission of Mr. Kishore Mukherjee that the matter of jurisdiction was not brought to the notice of the learned Magistrate first. The record shows that the matter was brought to the notice of the learned Magistrate but in spite of that the learned Magistrate did not pass any order on that score. 12. Be that as it may, as I find that there was a lack of jurisdiction in the matter of taking cognizance, in my view, the entire proceeding has been vitiated and I accordingly quash the said proceeding in Case No. C.939 of 1992, now pending before the court of the learned Metropolitan Magistrate, 5th Court, Calcutta. 13. The reivsional application is accordingly allowed. 14. However, this will not preclude the complainant opposite party herein from taking appropriate action before any other appropriate court according to law. Revisional application allowed.