- (1.) The present petition has been filed under Section 401 read with Section 482 of the Code of Criminal Procedure praying that the order dated 18th June, 2011 passed by the learned Additional Sessions Judge, Special Judge, 1st Court, Dakshin Dinajpur at Balurghat in Spl. Case No. 05/2005, arising out of Hili Police Station Case No. 148/2005 dated 12th December, 2005, be set aside.
(2.) The petitioner was appointed initially as Assistant Supervisor of Trimohini Krisak Seva Samabay Sarnity Limited. He was later promoted as Manager. It is not disputed that the employer of the petitioner is a registered Co-operative Society under the West Bengal Co-operative Societies Act, 1983. The Chairman of the Society had lodged a complaint that petitioner had misappropriated the funds of the Society and thus made him liable for the offence under Section 409 of the Indian Penal Code. The only question, which arises for consideration of this Court, is whether the petitioner is to be tried by the Special Court or a Court of Magistrate competent to try offence under Section 409 of the Indian Penal Code.
(3.) The West Bengal Criminal Law Amendment (Special Courts Act), 1949 vide Section 4 stated that in respect of the public servant the offence specified in the schedule shall be tried by the Special Court only. It is not disputed that Section 409 fall within the schedule. Therefore, to determine whether the petitioner would be tried by the Special Court or by the Court of Magistrate, this Court is to arrive at a finding whether the petitioner is a public servant or not within the meaning of Section 21 of the Indian Penal Code.;