DEBI PRASAD SIRCAR J. - (1.) THESE two revisional applications arising from the same train of incident over the same facts and circumstances in respect of the same organisation have been taken up and heard together as similar questions of law and fact are involved in these two cases. This single judgment covers both the revisional applications by two petitioners who come before this Court with identical case in connection with new Township P.S. case No. 21/95 (G.R. Case No. 146 of 1995 of Durgapur Sub -Division) District Burdwan.
(2.) THERE is a Co -operative Housing Society called Durgapur ex - Servicemen's Co -operative Housing Society Limited since 1989 -90 and while Sunil Kumar Saha, the petitioner in Criminal Revision No. 2888/96, was the Chairman, Sibendra Narayan Majumdar, the petitioner in Criminal Revision No. 1663/96 was the Treasurer of that Co -operative Society at the same time. After change of the Board of the Co -operative Society, one H.P. Sharma who was the Secretary in the succeeding board of man agement of that Co -operative Society, lodged complaint against three persons named Dilip Bandopadhya, B.N. Mitra and S.K. Dutta for embezzlement of huge amount of money belonging to the Co -operative Society named above and lodged complaint before New Township P.S. of Durgapur Sub -Division giving rise to the G.R. Case as above. Although the present petitioners were not named in that F.I.R., while submitting charge sheet, the present petitioners were shown as accused persons and the case was instituted against them as well, under sections 409, 420, 468, 471, 477 A, 120 B, I.P.C. On 6.1.94 a group of persons filed a case before the Registrar, Co -operative Society under section 95 of West Bengal Co -operative Societies Act against the aforesaid three persons, (other than the petitioners), registered as dispute case No. 6/93 -94 and the Registrar, Co -operative Society as well as West Bengal Co -operative Tribunal were pleased to dismiss the case and the appeal therefrom respectively. The learned S.D.J.M., Durgapur, took cognizance on the charge sheet, proceeded with the trial of the case against the accused persons including the petitioners and passed order which the petitioners claim to have been passed illegally against them and for that they pray for quashing the proceeding and the order against them.
(3.) THE matter has been contested by both the O.P. Nos. 1 and 2. On behalf of the petitioners the learned Advocate Mr. M.K. Mukherjee argues that under section 2(31) of the West Bengal Co -operative Societies Act read with section 8 there of the petitioners are officers of the Co -operative Society concerned and were, as such, public servants. Although their names did not transpire in the F.I.R., the petitioners have been held up by the I.O. by submitting charge sheet without any reasonable ground. The petitioners being public servants under section 21 of the I.P.C., under section 197 of the Cr. P.C. the case being instituted over official matters, no Court can take cognizance of the offence as alleged without previous sanction of the State Government or even of their employer, the Registrar of Cooperative Society as have been provided in section 139(3) of West Bengal Co -operative Societies Act. The learned Advocate for the petitioners submits that the Registrar having rejected the case and the Tribunal having dismissed the appeal there against, this case was instituted against the petitioners without complying with the provisions of section 197, Cr. P.C. and as such the learned S.D.J.M. was not empowered to take cognizance thereof and for that the proceeding must be quashed. The learned Advocate further argues that even if dishonest or fraudulent misappropriation of the property of the Co -operative Society entrusted to the present petitioners is proved, the case against them may come under section 142(d) of West Bengal Co -operative Societies Act (hereinafter referred to as the Act), as such they cannot be tried under section 409 etc. of the I.P.C. and this case also cannot proceed without prior sanction of the Government or the Registrar. So the case, the learned Advocate for the petitioners submits, is not maintainable. Further under section 139(2) of the Act the offence is non -cognizable and as such the present proceeding in which the Court took cognizance on the charge sheet cannot lie. The learned Advocate for the petitioners further argues that even if it is assumed for arguments' sake that the petitioners committed offence attracting the mischief of section 409, 420 etc. as stated above, the petitioners being public servants, cannot be tried by the learned S.D.J.M. and can be tried only by the learned Judge, Special Court, Durgapur, in terms of the provisions of West Bengal Criminal Law Amendment (Special Court) Act, 1949, Schedule, read with section 5 of the same. Accordingly, he maintains, that the learned S.D.J.M. did not have any authority to take cognizance, proceed with the trial and pass orders as above and for that the proceeding as well as the orders must be quashed against these accused persons. No such case can proceed even in the Court of the learned S.D.J.M. or the learned Special Judge without previous sanction of the State Government or the Registrar as the case may be. The learned Advocate further submits that the West Bengal Co -operative Societies Act having been assented by the President of India, under Article 254(2) of the Constitution, it has overriding effect on the other laws and accordingly whatever might have been provided in other laws the accused persons are entitled to the benefit provided under the Act.;