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2011 DIGILAW 291 (CAL)

Jiarul Mondal @ Julhas v. STATE OF WEST BENGAL

2011-03-01

KANCHAN CHAKRABORTY

body2011
JUDGMENT 1. THE judgment of the Court was as follows:- THE challenge in this revision application under Sections 397,401 read with Section 482 of the Criminal Procedure Code is to the legality and validity of the proceeding in G.R. Case No. 292/2005 arising out of Gaighata P.S. Case No. 64 dated 17.4.2005 under Sections 403/406/409 IPC lying in the Court of learned Additional Chief Judicial Magistrate, Bongaon. THE petitioners Jiarul Mondal and Nijanur Rahaman Biswas have taken out this application with a prayer to quash the entire proceedings on the following grounds:- (a) That they being 'public servants' under Section 8 read with Section 2(31) of the WBCS Act, 1983 vis-a-vis Section 21 of the Indian Penal Code, cannot be prosecuted in the Criminal Court ordinarily having jurisdiction over the alleged incident; (b) That in view of Section 139(3) of the WBCS Act, 1983, previous sanction of the Registrar of Co-operative Society is required to be obtained prior to launching the Criminal Prosecution against the petitioners, which was not done; (c) That a civil dispute over the selfsame issue was initiated and disposed of by the ARCS, Tamluk, Midnapur in which the petitioners were found not responsible for the alleged anomalies in the stock of fertilizer and pesticides of the Society and, as such, they cannot prosecuted again for selfsame cause especially when the FIR was lodged by none but the petitioners; (d) That in view of Section 139(5), a prosecution under the WBCS Act, 1983 shall be instituted by the Registrar or any person authorized by him and no Court shall take cognizance of any offence if prosecution is lodged by other than the Registrar or person authorized by him. So, when the instant prosecution was not launched by the Registrar or his authorized agent, it should be quashed for being not legal. 2. THE factual aspect of the case is given below, in short: Md. Jiarul Mondal the petitioner No. 1, being the Secretary of Rajapur Paschimpara Samabaya Krishi Unnayan Samity Ltd., lodged a FIR with Gaighata Police Station alleging therein that Md. Sahajan Mondal and Md. Anwar Hossen Mondal were selected by the members of Co-operative Society as store-keeper, salesman, respectively for the purpose of selling fertilizer, insecticides and pesticides of the Society. It was found that they sold fertilizer, insecticides and pesticides without issuing cash memo and thereby mis-appropriated huge amount of money totaling Rs. Sahajan Mondal and Md. Anwar Hossen Mondal were selected by the members of Co-operative Society as store-keeper, salesman, respectively for the purpose of selling fertilizer, insecticides and pesticides of the Society. It was found that they sold fertilizer, insecticides and pesticides without issuing cash memo and thereby mis-appropriated huge amount of money totaling Rs. 6,42,493-15 p. of the Society. THE Board of Directors of the Society on making further scrutiny detected the short fall of fertilizer amounting to Rs. 23551/- and short fall of insecticides amounting to Rs.4625.85 p. from 1.4.2004 to 30.10.2004. THE Board of Director had taken a decision in a meeting dated 27.12.2004 to add that amount of Rs.28.176.85 p. to the shortfall of Rs. 6,42,493-15 p. (total shortfall of Rs.670,670.00 p.). On the basis of the said FIR, the Gaighata P.S. 64 dated 17.4.2005 under Sections 403, 406,409 IPC was started and, ultimately, ended in charge-sheet against the present petitioners Jiarul Mondal, Nijanur Rahaman and Anwar Hossen Mondal. THE present petitioners were arrested also and produced before the Court of learned SDJM, Bongaon. They had taken out an application before the learned SDJM, Bongaon on 17.5.2005 through the deputy Jailer, Bongaon subsidiary Correctional Home praying for issuing direction investigation of the case by any other agency excepting the Gaighata Police Station preferably by the CID, West Bengal. However, they have taken out this application on 28.11.2005 prying for quashing of the entire proceedings on the grounds mentioned earlier. Mr. Tarun Kanti Haider, learned Counsel appearing for the petitioners contended that the West Bengal Co-operative Societies Act, 1983 (hereinafter referred to as the Act) being a Special and self- contained statute overrides the other statutes. Mr. Haider contended further that the Section 8 of the Act provides that all the officers as defined in Section 2 (31) of the Act are "public servants" within the meaning of Section 21 of the Indian Penal Code. That being so, the petitioners cannot be prosecuted without obtaining prior sanction of the Registrar of the Co-operative Societies in view of the provisions laid down in Section 139(3) of the Act. That being so, the petitioners cannot be prosecuted without obtaining prior sanction of the Registrar of the Co-operative Societies in view of the provisions laid down in Section 139(3) of the Act. He further contended that in view of sub-section (5) of Section 139 of the Act, only the Registrar of Cooperative Societies or person authorized by him is competent to launch prosecution and no Court has jurisdiction either to take cognizance of any offence or to try any offence upon the petition of complaint If not filed by the Registrar. 3. MR. Haider raised another point relating to the face value of the materials placed before the learned Court and contended that no allegation, whatsoever, against the petitioners was raised by anybody at any point of time. Even, in the dispute case before the A.R.C.S., the petitioners were found not connected with the alleged mis-appropriation of Societies fund/fertilizer/insecticides etc. When there is no specific allegation constituting any offence is made out against the petitioners, prima facie, the proceedings should be quashed in order to prevent the abuse of the process of the Court. 4. MR. Rabi Sankar Chatterjee, learned Counsel appearing for the opposite party, State of West Bengal submitted that the petitioners are not 'public servants' within the meaning of Section 21 of the Indian Penal Code and, as such, a prosecution can well be launched in Court ordinarily having jurisdiction to take cognizance of an offence under the Indian Penal Code and try the petitioners. He further submitted that the proposition of MR. Haider that previous sanction of the Registrar is a prerequisite to launch prosecution against the petitioners in view of Section 139 (3) of the Act, is completely misconceived inasmuch as sanction is only required to be obtained when one is prosecuted under the Act, 1983. MR. Chattopadhyay, learned Advocate contended further that when Court had taken cognizance considering the materials placed before it, this Court should not ordinarily extend its revisional jurisdiction or extraordinary jurisdiction under Section 482 of the Cr.P.C. unless and until there is patent and gross miscarriage of justice. Admittedly, the petitioners were office bearers of the Co-operative Society in dispute at the time the criminal action was set in motion by none but the petitioner No. 1. The allegations were put forth against Md. Anwar Hossen Mondal and Md. Admittedly, the petitioners were office bearers of the Co-operative Society in dispute at the time the criminal action was set in motion by none but the petitioner No. 1. The allegations were put forth against Md. Anwar Hossen Mondal and Md. Sahajan Mondal who were appointed by the Society as sales man and store keeper, respectively. It is also admitted position that on conclusion of the investigation into the case, a charge-sheet was filed under Sections 403/406 and 409 of IPC not only against said Md. Anwar Hossen Mondal and Md. Sahajan Mondal but also against the present petitioners Jiarul Mondal and Nijanur Rahaman Biswas. There is no denial to the fact that the learned Magistrate had taken cognizance of the offences above against the petitioners and others. Mr. Haider although did not raise the point seriously and specifically but touched indirectly while advancing his contention that how could a lodger of FIR be made an accused in the same case. I feel myself duty bound to express the opinion of this Court over that point. 5. THERE is no absolute rule of law that the lodger of a FIR can not be made an accused in the case. The FIR is meant for informing the police authorities about commission of an offence which requires to be investigated. In case the police authorities, in course of investigation, find that the person named in the FIR as offender is not, in fact, the actual offender but someone else, the investigating agency should disclose that fact in the report to be filed under Section 173 of the Cr.P.C. together with other materials before the Court. THERE is no legal impediment for the Court to take cognizance of offence so disclosed upon such a charge-sheet wherein the lodger of the FIR has been made an accused, if not barred by any other law. 6. LET me switch over to the main thrust of argument advanced by Mr. Haider. The first point raised by Mr. Haider that the petitioners are "public servants" in view of Section 8 read with Section 2 read with Section 2 (31) of the Act vis-a-vis Section 21 of the Indian Penal Code. Therefore, they cannot be prosecuted without obtaining sanction under Section 197 of the Criminal Procedure Code as well as under Section 139(3) of the Act, 1983. Haider that the petitioners are "public servants" in view of Section 8 read with Section 2 read with Section 2 (31) of the Act vis-a-vis Section 21 of the Indian Penal Code. Therefore, they cannot be prosecuted without obtaining sanction under Section 197 of the Criminal Procedure Code as well as under Section 139(3) of the Act, 1983. Whether the petitioners are 'public servants' within the meaning of Section 21 of the Indian Penal Code or not, has been dealt with by the Hon'ble Apex Court in State of Maharashtra v. Laljit Rajshi Shah and Others, 2000 Cr.L.J. 1494. The Hon'ble Court after thorough discussion was pleased to come to a finding that the Secretary, Chairman etc. of a Co-operative Societies under Maharashtra Cooperative Societies Act are not 'public servants' falling within the ambit of Section 21 of the Indian Penal Code. Section 161 of Maharashtra Co-operative Societies Act has referred to provisions of Section 21 of I.P.C. but such reference would not make the officer concerned "public servants" within the ambit of Section 21 I.P.C. When the State legislature although had powers to amend Section 21 I.P.C. the same being referable to a legislation under Entry No. I of List III of the seventh Schedule, subject to Article 254 (2) of the Constitution as, otherwise, inclusion of the persons who are "public servants" under Section 161 of Maharashtra Co-operative Societies Act would be repugnant to the definition of "public servant" under Section 21 of the I.P.C. That not having been done, it is difficult to accept that by virtue of deeming definition in the Section 161 of the Maharashtra Co-operative Society Act by reference to Section 21 of the Indian Penal Code, the persons concerned could not be prosecuted for the offences under the Indian Penal Code. The Indian Penal Code and Co-operative Societies Act are not statutes in pari materia. This being the position, even though the legislature had incorporated the provisions of Section 21 of the I.P.C. into Co-operative Societies Act in order to define a "public servants" but those 'public servants' cannot be prosecuted for having committed the offence under Indian Penal Code. The Hon'ble Apex Court found that the 'public servants' under the Co-operative Societies Act cannot be prosecuted under I.P.C. The Hon'ble Court also taken the view at the same time that the Secretary, Chairman etc. The Hon'ble Apex Court found that the 'public servants' under the Co-operative Societies Act cannot be prosecuted under I.P.C. The Hon'ble Court also taken the view at the same time that the Secretary, Chairman etc. of a Co-operative Societies cannot be termed as "public servants" within the meaning of Section 21 of the I.P.C. Since they are not 'public servants' within the meaning of Section 21 of I.P.C, but public servant within the meaning of the Co-operative Societies Act for the restricted purposes within the periphery of the Act, those persons can be prosecuted under I.P.C. Had they been treated as 'public servants' within the meaning of Section 21 I.P.C, they could not have been prosecuted under the I.P.C. but only for the offences mentioned in the Co-operative Societies Act itself. 7. THE position is same in W.B. Co-operative Societies Act, 1983. THE Section 8 has referred to the provisions of Section 21 of the I.P.C. but such reference simpliciter would not classify the officers concerned under Section 2(31) of the Act, 1983, as-"public servants" within the ambit of Section 21 of I.P.C. 8. THIS Court in Sunil Kumar Saha v. State of West Bengal, 1998 C. Cr.L.R. (Cal) 335 observed that under Section 2(31) read with Section 8 of the Act, the petitioners holding the offences of the Chairman and the treasurer of the Co-operative Societies were undoubtedly officers of the Co-operative Societies and must be considered to be public servants for the purpose of their official Act; but that does not mean that the petitioners, being the officers of the Co-operative Societies concerned, are entitled to the protection under Section 197 Cr.P.C. Section 197 only provides protection for the persons who is or was a Judge, a Magistrate or a 'public servants' not removable from his office save by or with an order of sanction of the Government in respect of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty. 1. Who does not come within the scope of such connotation, i.e. one who is not removable from his office save by and with the sanction of the Government, Central or State, cannot claim the protection of this section. 1. Who does not come within the scope of such connotation, i.e. one who is not removable from his office save by and with the sanction of the Government, Central or State, cannot claim the protection of this section. Undoubtedly, the petitioners were the officers of the Co-operative Societies, accused of making mis-appreciation of the fund of the Society and had no concern at all with the Government, either State or the Central. Being the Chairman and the treasurer they were never entitled to remain in the office without being removed by the Government, State or Central. The view of the Hon'ble Division Bench of this Court in Santi Ranjan Bhattacharjee, AIR 1970 Cal 550 cannot be pushed aside simply because the Section 8 of the Act, 1983 was introduced after wards referring to the Section 21 of the I.P.C. and Section 23 of the Act, 1983 makes every Co-operative Societies a body corporates. The principle laid down therein, in fact, has been followed subsequently. There cannot be any debate that a Secretary of a Co-operative Society by virtue of Section 8 of the Act read with Section 23 and Section 2(31) of the Act is a "public servant" but that status of public servant is restricted to the periphery of the Act itself and not beyond it. Had the legislature any intention to classify all such officers defined under Section 2(31) of the Act as 'public servants' within the meaning of Section 21, it would have amended the Section 21 of I.P.C. by exercising its power under Entry No. I of List III of seventh Scheduled, subject to Article 254(2) of the Constitution. 9. THEREFORE, by no stretch of imagination, the petitioner can be classified as 'public servants' within the meaning of Section 21 of the I.P.C. Since they are not 'public servants' as it is found, they can well be prosecuted for an offence under Indian Penal Code in a Court of law having jurisdiction to take cognizance and try the offence. The Cooperative Societies Act, 1983 shall not come in the way in doing so for the reason which is discussed latter on. 10. THE next point raised by Mr. Haider was that in view of Section 139(3) of the Act, 1983, previous sanction of the Registrar of the Cooperative Societies is required to be obtained prior to launching of a criminal prosecution against the petitioners. 10. THE next point raised by Mr. Haider was that in view of Section 139(3) of the Act, 1983, previous sanction of the Registrar of the Cooperative Societies is required to be obtained prior to launching of a criminal prosecution against the petitioners. But, in this case it was not done. THE answer to that question appears to be very simple. Sanction under Section 139(3) of the Act is obviously a pre-requisite for launching prosecution against office bearer or any person connected with the Society for committing an offence mentioned in the Act itself but not for prosecuting such an office bearers or such a person for committing any offence under Indian Penal Code. This Court in Sun/7 Kumar Saha (supra) observed that prior sanction of the Registrar as the case was not filed under the provision of the Act but under the said provision of the Penal Code, the benefit provided under Section 139(3) of the Act cannot be attracted. THE petitioners, in that case, were not held up for mis-appropriation of any property belonging to the Co-operative Society. But as they were not accused under any provision of the Act they are not entitled to the protection under Section 139(3) of the Act which speaks of prosecution instituted under that Act only and not under any other law. In Sukumar Das v. Mitunjoy Ghosh and Ors., 2008(1) Cal LJ (Cat) 262, this Court reiterated the view taken in Sunil Kumar Raha's case (supra). This Court observed that under Section 139(3) of the WBCS Act no prosecution shall be instituted under the Act without previous sanction of the Registrar. But the prosecution has been instituted against the accused not under the provisions of West Bengal Co-operative Societies Act but under the provisions of Indian Penal Code. So, question of previous sanction of the Registrar for prosecution does not arise. 11. STRETCHING the discussion made in respect of the point No. 1 raised by Mr. Haider, I would like to add that the petitioners not being 'public servants' within the meaning of Section 21 of the I.P.C. have been prosecuted for committing offences under the Indian Penal Code not under any Penal Provision of the WBCS Act, 1983. 11. STRETCHING the discussion made in respect of the point No. 1 raised by Mr. Haider, I would like to add that the petitioners not being 'public servants' within the meaning of Section 21 of the I.P.C. have been prosecuted for committing offences under the Indian Penal Code not under any Penal Provision of the WBCS Act, 1983. Therefore, they not being a 'public servants' within the meaning of Section 21 of I.P.C, Prior sanction under Section 197 Cr.P.C. is not required for their prosecution for the offence alleged to have committed by them under the Indian Penal Code. Again, since they being public servants within the restricted meaning of Section 8 of the Act, 1983, but they have not been prosecuted for any offence covered by that Act sanction of the Registrar under Section 139(3) of the Act is not required. Therefore, the contention of Mr. Haider cannot be accepted. 12. THE question as to whether the petitioner can be tried for any offence covered by Indian Penal Code when there is specific provisions in the Act, 1983 for taking such action, does not arise because under Section 26 of the General Clauses Act, 1897 if the offence are punishable under two or more enactments, the offender shall be liable to be prosecuted or punished either or any of those enactments but should not be liable to be punished twice for the same offence. In Narendra Nath De and Anr. v. State of West Bengal, 1997 (2) Calcutta Law Journal 210, this Court observed that under Section 26 of the General Clauses Act, 1897, if the offence is punishable under two or more enactments, the offender shall be liable to be prosecuted or punished either or any of those enactments but shall not be liable to be punished twice for the same offence. While taking that decision this Court relied on a decision of Division Bench of this Court in Soumendra Krishna v. State of West Bengal, 1992 Calcutta, Cr.L.J. (Cal) 148 wherein it was observed that, "It is no doubt true that by Section 142 of the Act of 1983 a lesser and lenient punishment has been provided for the offence of corrupt practices, but this is not a ground to accept that an Officer, employee or member of a Co-operative Society is not liable to be prosecuted for an act or omission on his part if such act or omission constitutes a punishable offence under the provisions of Indian Penal Code. To bar the application of the provisions of Indian Penal Code in respect of the Officer, employee or member of a Co-operative Society will lead to disastrous consequences and the object of Section 26 of the General Clauses Act will be entirely defeated." The Hon'ble Division Bench held further that, "In our view, the offence of corrupt practices, punishable under the Act of 1983 is not identical in essence, import and content with an offence under Section 409 of the Indian Penal Code. The offence of corrupt practices is a new offence created by the Act of 1983 and it does not and cannot repeal by implication or abrogate Section 409 of the Indian Penal Code. In our view, having regard to the principles laid down by the Supreme Court in the decisions referred to above, there can be no objection to a trial and conviction under Section 409 of the Indian Penal Code even if the accused is an Officer, employee or member of the Co-operative Society and governed by the Act of 1983."- That being the ratio of judicial pronouncements, I find that there is no wrong or illegality or irregularity in prosecuting the petitioners for committing offence covered by Indian Penal Code. 13. MR. Haider submitted that if the face value of the materials placed before the Court is considered, it would be found that there was no allegation and evidence against the petitioners constituting any offence triable under the Indian Penal Code. In that case, Court should, in order to prevent the abuse of the process of the Court, should exercise its extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure Code by way of quashing the entire proceedings. In that case, Court should, in order to prevent the abuse of the process of the Court, should exercise its extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure Code by way of quashing the entire proceedings. I have gone through the materials placed before me including the FIR, Forwarding Report, Seizure list and charge-sheet as well as the documents filed by the petitioners. It is true that a dispute case was initiated against Md. Anwar Hossen Mondal and Md. Sahajan Mondal by the Society over the self-same fact of mis-appropriation of the Societies fund. It is also true that in that case and subsequently in the appeal, nothing incriminatory or inculpatory was detected by the learned arbitrator (ARCS) and learned Co-operative Tribunal against the petitioners. This fact alone, in my opinion, does not necessarily exculpate the petitioners from the prima facie case made out by the Investigating Officer against them. The nexus of the petitioners have well been detected by the I.O. during investigation. Some incriminatory documents were also sized. The statement of the co-accused and witnesses recorded by the Investigating Officer which formed part of the investigation, indisputably and unmistakably indicates that a strong prima facie case against this petitioner was made out by the Investigating Officer as reflected in the charge-sheet filed in the Court. The learned Magistrate had taken cognizance basing on the materials placed before him. In such a case, while there is no glaring mistake, either of law or of fact, amounting to gross mis-carriage of justice, this Court should not and must not exercise extraordinary power under Section 482 of the Cr.P.C. at this stage and quash the proceeding as prayed for by the petitioners. 14. IN this context, the view of the Hon'ble Apex Court in State of M.P. v. Sita Shaiya, 2009 (3) SCC (Cri) 901 can well be referred to. IN State of Haryana v. Bhajan Lal, AIR 1992 SC 604 , the Hon'ble Apex Court was pleased to lay down some principles by giving illustrations of cases where power under Section 482 Cr.P.C. can be exercised by the High Court. The case in hand is not coming within the situations or cases where this power under Section 482 can be exercised by this Court. The case in hand is not coming within the situations or cases where this power under Section 482 can be exercised by this Court. IN CBI v. A. Rabisankar and Ors., 2009 (2) SCC (Cri) 1063 the Hon'ble Apex Court was pleased to observe that each case has to be considered on its own merit. On fact if it is found that materials altogether constitutes, prima facie, allegation like forgery, cheating, corruption etc. against customers of Nationalized Bank, should not be quashed under Section 482 of the Act. Herein the petitioners are office bearers to a Society and were entrusted with severe responsibility to carry out the object of the Society honestly. In stead of doing so, they indulged themselves in corrupt practice with the help of some employees and to suppress that, they file one FIR against the employees which ultimately is found partially and that the person lodged the FIR also is found involved in the corrupt practice and said mis-appropriation of the Societies fund. So, this Court should not interfere into the criminal proceeding pending against the petitioners because inherent power of the High Court are meant to act ex debito justitiae. For the forgoing reasons, I reject the prayer and dismiss the revision application. Interim stay, if any, stands vacated.