- (1.) The following questions have been raised by the petitioner: a) whether a Magistrate can issue process against an accused after filing of charge-sheet who was discharged earlier under Section 167(5) of the Code of Criminal Procedure, i. e. , before filing of the charge-sheet; b) whether the petitioner is a public servant within the meaning under Section 21 Indian Penal Code by virtue of Section 8 of the West Bengal Co-operative Societies Act, 1983; c) if so, whether he is to be tried for an offence under Section 420, I. P. C. only by a Special Court as provided under Section 4 of the West Bengal Criminal Law (Amendment Act) Act, 1949, (Act 21 of 1949).
(2.) Mr. Somopriya Chowdhury, learned advocate appearing for the petitioner submits in respect of his first contention that once an accused has been discharged, the Magistrate cannot take cognizance against him by way of review or recalling of that order. To draw support to his contention, Mr. Chowdhury refers to the decision of the Hon'ble Apex Court in Deepu alias Deepak Singh v. State of Madhya Pradesh, 2007 5 SCC 533.
(3.) Mr. Joy Sengupta, appearing for the State submits that the discharge under Section 167(5) of Cr. P. C. of an accused for non-submission of the charge-sheet within specific period of time does not necessarily imply that the accused so discharged once for all. The situation would have been different in case had the Magistrate discharged the accused upon consideration of the materials in the CD. available till the date of discharge. Therefore, he submits that the proposition of Mr. Chowdhury, learned advocate for the petitioner does not appear to be sound.;