- (1.) THE challenge in this revision application under Section 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 Section 403/406/409, IPC lying in the Court of learned Additional Chief Judicial Magistrate, Bongoan. 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, can not 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 lunching 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 can not prosecuted again for selfsame cause especially when the FIR was lodged by none but the petitioners; d) that in view of 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 lunched 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. 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. 26.176.85 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 Section 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, Bongoan. They had, taken out an application before the learned SDJM, Bongoan on 17.5.2005 through the Deputy Jailer, Bongoan subsidiary Correctional Home praying for issuing direction investigation of the case by any other agency excepting the the Gaighata Police Station preferably by the CID, West Bengal. However, they have taken out this application on 28.11.2005prying 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 can not 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 Co-operative Societies or person authorized by him is competent to lunch 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 the 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. 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 lunched in Court ordinarily having jurisdiction to taken 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 lunch prosecution against the petitioners in view of Section 139 (3) of The Act, is completely misconceived in as much 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.;