ABANI CHOWDHURY Vs. STATE

JUDGEMENT

(1.) This is a revisional application by one amongst four accused persons who are being prosecuted in G. R. Case 189/76 before the Additional chief Metropolitan Magistrate, Calcutta on different charges under sections 409/109, 467/109, 120B/409 and 477A of the Indian Penal Code. The Rule is directed against an order passed by the learned Additional Chief Metropolitan Magistrate dated August 28, 1976. By this order the learned Magistrate tendered pardon to one of the accused under section 306(1) of the Code of Criminal Procedure and he also over-ruled an objection raised on behalf of the other three accused persons including the present petitioner that the said Court had no jurisdiction to take cognizance of the offences.

(2.) So far as the order granting pardon to one of the accused is concerned, though the validity thereof had been challenged in the revisional application, Mr. Banerjee, learned advocate appearing in support of this Rule, in his usual fairness concedes that he is not in a position to support the challenge so made. This Rule, however, is pressed on the other point which was raised before the learned Magistrate but was overruled by him. According to the prosecution the accused persons or to be more precise the present petitioner was an employee of a General Insurance Company known as Union Co-operative insurance Society Limited, Bombay, and acting in such capacity he entered into a criminal conspiracy with others to commit offences of criminal breach of trust in respect of the fund of the Insurance Company and did commit such criminal breach of trust. For commission of such an offence, it is further alleged, there was falsification of accounts and forgery as well. It is not in dispute that on the prosecution allegation such offences were committed during the period 1966-68 at a time when the General Insurance Companies had not been nationalized. These Companies were, however, nationalized in the year 1972 by Act LVII of 1972.

(3.) Undoubtedly the charge sheet was submitted long after the nationalization in the year 1972 and cognizance was taken thereon. It was, therefore, sought to be argued before the learned Additional Chief Metropolitan Magistrate that on the day such cognizance was taken the accused person being an employee of a nationalized General Insurance Company was a public servant and under the provisions of section 4 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, he along with others could be tried only by a Special Court and not by the ordinary Court of the learned Magistrate. This objection was overruled by the Learned Additional Chief Metropolitan Magistrate on the view that when the offence itself was committed by the accused persons not in his capacity as a public servant it would not come within the schedule to the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, and would not be triable by the Special Court. It is the correctness of this view which is being challenged before me in this revisional application by Mr. Banerjee.