MAKHAN LAL SEN GUPTA Vs. STATE

JUDGEMENT

(1.) This is an appeal by Makhan Lal Sen Gupta against his conviction under Section 409 of the Indian Penal Code by Mr. D. N. Chakladar, Judge, Special Court, Burdwan, He was sub-post master at Asansol Railpar Sub-Post Office on 30th July, 1952, and he was there from some time before that. In that Sub-post office there was no other officer. According to the prosecution version, on 30th July, 1952, P. W. 1 Barada Charan Chakrabarty who was then Inspector of Post Offices, Asansol Subdivision, inspected the Sub-post office in the presence of the accused. Verification of cash and stamps was the first item of inspection shortly after 4 P. M. On actual verification the Inspector found cash of Rs. 19-15 annas, postage stamps worth Rs. 156-4-3 pies, revenue stamps worth Rs. 19/- and National Savings Stamps worth Rs. 24/-, in all Rs. 210-3-3 pies showing a shortage of Rs. 316-4-9 pies. The Sub-post master could not account for the shortage. The first count of the charge under Section 409 of the Indian Penal Code against the accused is in respect of this shortage of Rs. 316-4-9 pies. After this shortage had been detected, Inspector Chakraborty proceeded with the inspection of the Sub-post office and detected various irregularities in connection with money orders. It was found that several money order receipts were left blank and some were not sealed with the date-seal. It was also found that in respect of several money order receipts which were shown as issued, their value had not been credited to the Government according to rules. In short, it was found that a sum of Rs. 728-9 annas on account of money orders was not credited to the Government and it is alleged that the accused misappropriated the same. This forms the second count of the charge under Section 409 of the Indian Penal Code against the accused. The substance of the second count of the charge is that between 28th to 30th day of July, 1952, the accused committed criminal breach of trust in respect of the sum of Rs. 728-9 annas being the values and commissions in respect of money orders Nos. 901-904, 917, 917 (sic), 931-940 and 956-961. The accused made a fairly lengthy statement under Section 342 of the Code of Criminal Procedure. The substance of that statement was that Inspector Chakraborty found the cash balance, stamps, etc. in order and endorsed a note in the Sub-post master's account book to the effect "checked and verified". What is alleged to have happened subsequently may be stated in the words of the accused :

(2.) The learned Judge accepted the Prosecution version not being impressed with the defence set up by the accused and convicted him accordingly.

(3.) On behalf of the appellant an objection has been raised for the first time in this Court regarding the competency of Mr. D. N. Chakladar to try this case. It appears that upon the transfer of Mr. G. Section Chatterji, Mr. Chakladar was appointed to try this case, the relevant Gazette Notification being No. 2615 G.A./5C-35/55 Pt. (IV) dated 4th August, 1955. According to that notification, in exercise of the powers conferred by Sub-section (2) of Section 2 read with Sub-section (1) of Section 9 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act 21 of 1949), the Governor appointed "Sri D. N. Chakladar, Additional District and Sessions Judge, Burdwan, to be, in addition to his duties, a Judge to preside over the Burdwan Special Court vice Sri G. S. Chatterji". Section 2 of the parent Act was amended by Section 3 of Act 12 of 1953 and under Section 2 (1) of the amended Act the State Government was empowered to constitute by notification in the Official Gazette one or more Special Courts and by Sub-section (2) the State Government was empowered to appoint, as a judge to preside over a Special Court, any person who (a) is or has been qualified under Clause 2 of Article 217 of the Constitution of India for appointment as a Judge of a High Court or (b) has, for a period of not less than one year, been a Sessions Judge or Additional Sessions Judge. It appears that Mr. D. N. Chakladar who was then a Subordinate Judge and Assistant Sessions Judge of Burdwan was appointed Additional District and Sessions Judge of Burdwan by virtue of Gazette Notification No. 2163 C. A./5C-35/55 dated 28th June, 1955, and it has been ascertained that he joined his duties as Additional District and Sessions Judge for the first time on 2nd July, 1955. It was argued or. behalf of the appellant that at the time, namely, 4th August, 1955, when Mr. Chakladar was appointed Judge of Burdwan Special Court, he had not been a Sessions Judge or an Additional Sessions Judge for a period of, at least one year and that being so he was not legally competent to be a Judge of that Court with the result that the trial and conviction of the accused by him were bad. In support o this argument special stress was laid upon the fact that in the Gazette Notification dated 4th August, 1955, Mr. Chakladar was described as Additional District and Sessions Judge, Burdwan. The question is whether there is any substance in this objection raised on behalf of the appellant regarding the competency of Mr. Chakladar to try the case. The argument on behalf of the appellant confines itself to subsection (2) (b) of Section 2 of the Amended Special Courts Act and seeks to ignore Sub-section (2) (a) by which the State Government was empowered to appoint as a Judge to preside ove,r a Special Court any person who was qualified under Clause 2 of Article 217 of the Constitution of India for appointment as a Judge of a High Court. Under Article 217 of the Constitution of India a person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and (a) has for at least ten years held a judicial office in the territory of India. On 4th of August, 1955, Mr. Chakladar was possessed of the above qualifications. At the. material time, therefore, he was qualified for appointment as a Judge of a High Court with the result that he was also qualified under the Special Courts Act to be appointed as a Judge to preside over a special Court. It is true that in the Gazette Notification dated 4th August, 1955, Mr. Chakladar was described as Additional District and Sessions Judge, Burdwan, and it is also true that at that time he had not been a District and Sessions Judge or an Additional District and Sessions Judge for over a year. That description was, however, nothing more than a mere description. It was not the Additional District and Sessions Judge of Burdwan who was appointed by the Government to preside over the Special Court. It was Mr. D. N. Chakladar personally who was appointed to preside over such Court. It cannot be gainsaid that Mr. D. N. Chakladar personally was qualified for appointment as Judge to preside over a Special Court and that qualification he derived from the Constitution itself. All that the relevant Gazette Notification means is that Mr. Chakladar was appointed to preside over the Special Court though he happened to be Additional District and Sessions Judge of Burdwan at the time. In the circumstances, in view of the above reasons it must be held that Mr. Chakladar was competent to try this case and convict the accused. This preliminary objection must accordingly fail.