MAHAMMAD ALI Vs. STATE

JUDGEMENT

(1.) This is a petition for quashing certain proceedings under Section 409, Penal Code which are now pending against the petitioner in the Court of thr Special Judge of Bankura. The petitioner, who is a postal peon, has been charged with criminal breach of trust in respect of Rs. 30/-.

(2.) The prosecution case against the petitioner is as follows. On 14-8-1951, one Kanai Krishna Sircar of 157, Netaji Subhas Road, Calcutta, remitted a sum of Rs. 30/- by a postal Money Order addressed to his wife Shrimati Shibarani Sircar who was then residing at a village called Sahaspur in the district of Bankura. As she did not receive the money, she wrote a postcard to her husband enquiring about it. This postcard never reached her husband. On 27-8-1951, the petitioner saw the said Kanai Krishna Sircar at his Calcutta residence and confessed that he had misappropriated the money by forging the signature of the addressee of the Money Order in the acknowledgment portion of the Money Order. The petitioner refunded the, money to Kanai & asked his forgiveness. Kanai, however, reported the petitioner to the Postal Authorities. Thereafter, the petitioner was sent up to stand his trial before the said Special Judge who, after having examined a number of witnesses, framed a charge against the petitioner under Section 409, Penal Code. On 2-1-1953, an application on the petitioner's behalf was made to the learned Judge questioning the legality of the said charge. By his order of the same date, the learned Judge adjourned the case to enable the petitioner to move the High Court and observed that the contention raised on the accused's behalf was not altogether without foundation. Later the same day, the Public Prosecutor asked for cancellation or the accused's bail, on the ground that the accused might take advantage of the adjournment to abscond. The learned Judge thereupon cancelled the petitioner's bail and remanded him to 'hajat',

(3.) The question for decision is whether, in view of the provisions of the Prevention of Corruption Act, 1947 (Act 2 of 1947), a charge under Section 409, Penal Code, is maintainable. Section 5(1)(c) of Act 2 of 1947 speaks of a category of misconduct which would include criminal breach of trust on the part of a public servant. Therefore, a public servant, when accused of criminal breach of trust, could also be accused of an offence under Section 5(1)(c) of Act 2 of 1947. Mr. Bireswar Chatterjee appearing on behalf oil the petitioner contends, on the authority of the unreported case -- 'Hemanta Kumar Das v. The State', which I decided, that the petitioner should be tried under Act 2 of 1947 and not under the Penal Code. This application originally came up before Chunder, J. who came to the conclusion that the petitioner could be tried either under S 409, Penal Code or under Section 5(1)(c) of Act 2 of 1947. The learned Judge expressed his disagreement with my decision, which was of a single Judge, and referred this application to a Division Bench.