(1.) THIS Rule is at the instance of the accused-petitioner Lakshmi Kanta Sen. against an order dated the 5th. November, 1969 passed by Sri S. Sarkar, Sub-Divisional Magistrate, Bangaon, District 24-Parganas issuing warrant of arrest under Section 406 of the indian Penal Code in Case No. C/300 of 1969 and for quashing the said proceedings.
(2.) THE facts leading on to the Rule are short and simple. A complaint was filed on the 15th October, 1969, before the learned Sub-Divisional Magistrate, bongaon, by S. Mitra, S. C. , Fands, bangaon against the accused Lakshmi kanta Sen of Bhandargola, P. S. Bongaon that in course of an inspection on 14-6-69 of the M. R. Shop belonging to him by B. Bagchi, Sub-Inspector (F and S) the M. R. accounts were checked and on a physical verification a shortage of M. R. rice to the extent of 2 quintals 11 kgs. 800 grammes was detected. The verification was conducted in the presence of the Anchal Prodhan, palla Anchal and the dealer, who appended their respective signatures on the body of the report submitted by the enquiring officer. The learned Sub-Divisional Magistrate on going through the said complaint took cognizance and by his order of the same date issued warrant of arrest against the accused fixing 25-11-69 as the next date. The defence case, as it appears from the petition filed in this court, inter alia is that the accused was appointed a modified ration dealer getting supply of foodgrains of allotted quantity every week for the purpose of distribution of foodgrains amongst card-holders registered by the proper authority in connection with the accused's modified ration shop. On the 13th June, 1969, one Dinabandhu Biswas a Food Sub-Inspector with others came to the accused's shop for the purpose of inspection The accused was not present then and the sub-Inspector made a record of his inspection wherein he did not complain about any shortage of foodgrains. On the 14th June, 1969, another Sub-Inspector accompanied by the Anchal prodhan, Palla, belonging to a political party antagonistic to the party whereto the accused belonged, and a large number of persons, same to the accused's shop when he was away therefrom and at the instigation of the said Anchal prodhan, the Sub-Inspector, F. and S. , bhabesh Bagchi inspected the stock and recorded a shortage of two gunny bags containing rice weighing approximately 2 quintals 11 kgs. and 800 grammes. On receiving the show-cause notice dated 25-6-69 issued by the Sub-Divisional Controller (F and S) Bangaon, the accused-petitioner submitted a representation on the 7th July, 1969 by way of showing cause, denying all allegations and stating bona fide reasons for the purported shortage. On or about the 5th August, 1969, the accused-petitioner received another showcause notice dated the 1st August, 1969 stating that the accused's explanation was not convincing and he thereupon showed further cause denying the allegations. The petitioner submits that he came to learn later on that the present criminal proceedings, being Case no. C\300 of 1969, were started under section 406 I. P. C. and was pending. Being aggrieved by the institution of the said criminal proceedings, which are not maintainable either in law or on merits, the petitioner moved this court and obtained the present Rule.
(3.) MR. Malay Kumar Basu, Advocate (with Mr. Partha Dutt, Advocate)appearing on behalf of the accused-petitioner raised a short point of law relating to the maintainability of the present proceedings under Section 406 of the I. P. C. , inasmuch as there has been no entrustment within the bounds of Section 405 of the I. P. C. In this context Mr. Basu referred to a recent full Bench decision in the case of (1)Ghasiram Agarwalla, Appellant v. The State, Respondent, reported in air 1967 Calcutta page 568, wherein the majority decided that the retailer by virtue of the agreement could not be regarded as an agent of the Government in respect of the wheat received by him under the agreement. Mr, Jaharlal roy, Advocate, appearing on behalf of the State took a preliminary objection that the present Rule is not maintainable because the accused has not submitted to the process of the court below and this court therefore should not enter into the merits. Mr. Roy cited several decisions, in this connection, both reported and unreported. Mr. Basu in his reply submitted that there is no such inexorable rule of law or of practice and a Rule issued by the high Court need not be discharged on that ground alone, more so when on merits the application is clearly maintainable. In support of his contention mr. Basu also referred to several unreported decisions of this Court. The point raised being of some importance, this court requested Mr. J. M. Banerjee, a senior Advocate of the Bar, to appear as amicus curiae to assist this court in coming to a proper decision and mr. Banerjee was good enough to agree to do so. Submissions thereafter were heard on the preliminary objection.;