N.C. Talukdar, J. -
(1.) This Rule is at the instance of the eleven accused Petitioners for quashing the proceedings pending against them, under Sec. 120B read with Ss. 26 and 27 of the Industrial Disputes Act, 1947, before Sri P. C. Chakravarty, Presidency Magistrate, Fourth Court, Calcutta, in Case No. C2445 of 1968.
(2.) The facts leading on to the Rule are short and simple. An application was filed in the Court of the learned Chief Presidency Magistrate, Calcutta, by the complainant -opposite party No. 2 Anil Chandra Chatterjee, the Public Relations Officer and ex officio Additional Secretary, West Bengal State Electricity Board, on September 12, 1968, under Ss. 26, 27 and 32 of the Industrial Disputes Act, 1947, and under Sec. 120B, Indian Penal Code, read with Ss. 26 and 27 of the Industrial Disputes Act, 1947, against the eleven accused persons alleging inter alia that the accused persons are the office -bearers and persons concerned with the management of the workers' union at the West Bengal State Electricity Board; that various disputes cropped up between the workmen of the State Electricity Board on one hand and the members on the other between 1966 to 1968 ; that on October 7, 1968, as a result of the conciliation proceedings, a settlement was arrived at between the parties and a memorandum of settlement was drawn up; that the workmen, however, without terminating the said settlement started various forms of agitation including gherao and other illegal acts; that on September 30, 1967, the Government of West Bengal referred the dispute to the Industrial Tribunal and by an order dated October 4, 1967, the Governor prohibited declarations or commencement of any strike from the mid -night of October 4, 1967, and the workers' union of the said State Electricity Board was directed not to resort to strike on April 16, 1968, inasmuch as the same would be illegal under Sec. 24 of the Industrial Disputes Act, 1947 ; that while the said dispute was pending before the Industrial Tribunal, the workers of the Board in violation of the prohibition participated in some or other forms of pen -down strike or tool -down strike illegally; that such illegal strike or the excitement and commencement thereof are offences punishable under Ss. 26 and 27 of the Industrial Disputes Act, 1947; that the accused persons had entered into a criminal conspiracy in between April 1967 and September 1968 at Calcutta and other places within West Bengal to continue, to instigate, to incite and otherwise act in furtherance of the illegal strike by the various thermal power stations under the Board and at the various branches and offices of the Board and in pursuance of the said conspiracy the accused persons had commenced and instigated others to take part in the illegal strike in utter disregard and flagrant contravention of the provisions of Ss. 22, 23 and 24 of the Industrial Disputes Act, 1947 ; that pursuant to the said conspiracy the workers' union referred to above had again threatened by a letter dated September 3, 1968, to go in for another spate of illegal strikes from September 19, 1968, onwards in breach of contract and in spite of the proceedings before the Industrial Tribunal; and that the complainant had obtained necessary consent under Sec. 34 of the Industrial Disputes Act, 1947, as also under Sec. 196A of the Code of Criminal Procedure for prosecuting the accused persons against whom processes under Ss. 26 and 27 of Act XIV of 1947 read with Sec. 120B of the Indian Penal Code may accordingly be issued. The learned Chief Presidency Magistrate by his order dated September 12, 1968, accorded consent to the initiation of the proceedings under Sec. 120B of the Indian Penal Code read with Ss. 26 and 27 of Act XIV of 1947. Cognizance was taken and processes were issued under Sec. 120B of the Indian Penal Code read with Ss. 26 and 27 of the Industrial Disputes Act, 1947, as also under Sec. 27 of the said Act against all the accused persons and also under Sec. 26 of the Industrial Disputes Act, 1947, against accused Nos. 1, 3, 4, 6, 7, 8, 9, 10 and 11. The accused persons thereafter appeared and were released on bail. The case was then transferred by the learned Chief Presidency Magistrate to the file of the present incumbent Sri P. C. Chakravarty; Presidency Magistrate, Fourth Court, Calcutta. This Rule was thereafter obtained by the accused persons for quashing the said proceedings as not maintainable in law.
(3.) Mr. Balai Chandra Roy, Advocate appearing in support of the Rule on behalf of the eleven accused Petitioners, has made a three -fold submission, two of which are points of law going to the very root of the case. Mr. Roy who argued the case ably submitted, in the first instance, that the present proceedings are bad and epigram because of a non -conformance to the mandatory provisions of Sub -section (2) to Sec. 196A of the Code of Criminal Procedure inasmuch as the records do not bring to light the factum of the learned Chief Presidency Magistrate having been empowered in this behalf by the State Government to consent to the initiation of the proceedings as enjoined under Sec. 196A(2) of the Code of Criminal Procedure. In this context, Mr. Roy made an ancillary submission based on the Adaptation of Laws Order, 1950, that the authorization under Sec. 196(A) 2 by the State Government being of the Governor in Council cannot do duty and the same would be bad in view of the provisions of Sec. 2(l)(b) of the Adaptation of Laws Order, 1950 Mr. Roy referred to some cases in support of his contention and the same will be considered in the proper context. Mr. Roy contended, in the second place, that the cognizance of the offence as taken by the learned Chief Presidency Magistrate, Calcutta, has been in nonconformance to the mandatory provisions of Sec. 34 of Act XIV of 1947 inasmuch as the authorization given under Sec. 34 of the said Act did not at all refer to the offence under Sec. 120B of the Indian Penal Code and, in the absence thereof, the present proceedings under Sec. 120B of the Indian Penal Code read with Ss. 26 and 27 of Act XIV of 1947 are unwarranted and untenable and de hors the mandatory provisions of Sec. 34 of the said Special Act. The third and the last submission of Mr. Roy is that in view of Sec. 17 of the Trade Unions Act, 1926, the present proceedings are not maintainable because no officer or member of a registered trade union shall be liable to punishment under Sec. 17 read with Sec. 120B(2) of the Indian Penal Code in respect of any agreement made between parties for the purpose of furthering the object of the trade union as is specified in Sec. 15 of the said Act, unless the said agreement can be considered to be an agreement to commit an offence. Mr. Roy in this context submitted that Sec. 17 is a complete bar to the present proceedings in the facts and circumstances of the case and, as this objection goes to the very root of the case, it is taken in the first blush for the purpose of a proper determination. Mr. Ajit Kumar Dutta, Advocate, with Messrs Mathura Banerjee, counsel and Shyam Sundar Pal, Advocate appearing on behalf of the opposite party No. 2, Anil Chandra Chatterjee, Public Relations Officer and ex officio Additional Secretary, West Bengal State Electricity Board, joined issue. Mr. Dutta, in reply to the first contention of Mr. Roy, submitted that the form of the order that was passed by the learned Chief Presidency Magistrate on September 12, 1968, constitutes proper conformance to Sub -section (2) of Sec. 196A of the Code of Criminal Procedure, and in this context, he pinpointed the last part of the said order wherein the learned Chief Presidency Magistrate observed as follows:
I do by this order under Section, 196A (2), Cri.P.C, consent to the initiation of the proceeding under Sec. 120B, I.P.C., read with Ss. 26 and 27 of the Industrial Disputes Act, 1947.
The second facet of Mr. Dutta's contention in this connection is that in fact there is an order authorising the learned Chief Presidency Magistrate, Calcutta, to consent to the initiation of such proceeding within the ambit of Sec. 196A(2) of the Code of Criminal Procedure and the same is evident from the explanation submitted by the learned Chief Presidency Magistrate, Calcutta, under Sec. 441 of the Code of Criminal Procedure, annexed with a copy of the order dated May 24, 1913 -, by the Governor in Council. As to the ancillary submission made by Mr. Roy in this behalf on the basis of the purported difference between the Governor in Council and the State Government on one hand and also the provisions of Sec. 2(l)(b) of the Adaptation of Laws Order, 1950. On the other, Mr. Dutta submitted that it is rather late in the day to take the said objection in view of the material fact that the law concerned is a Central Act and that the provisions of Article 372(2) of the Constitution of India as also Clause 20 of the Adaptation of Laws Order, would be a complete answer to the objection raised in this behalf by Mr. Roy. In this context, I would rely on the observations of Hegde J. delivering the judgment of the Court in the case of Dhian Singh v/s. Municipal Board, Saharanpur : A.I.R. 1970 S.C. 318 (321). It is pertinent to refer to the observations of Hegde J. that -
Therefore if the complaint with which we are concerned in this case had been filed by the Food Inspector under the authority of the Local Board, the complaint must be held to have been instituted by the Local Board itself. The question whether that Food Inspector had authority to file the complaint on behalf of the Local Board is a question of fact. Official Acts must be deemed to have been done according to law.
Therefore, if the accused challenged the authority of the learned Chief Presidency Magistrate to consent to the initiation of the proceedings in respect of the primary onus to be discharged by the prosecution, that must abide determination in a trial on evidence.;