Rampada Tarafdar vs The State

Chunder, J.—This Rule was issued at the instance of one Rampada Tarafder an accused on trial before a Special Court at Alipore, presided over by Sri K.N. Bhattacharjee, Judge, charged with an offence u/s 409 of the Indian Penal Code. It appears that the Circle Officer during audit found out certain alleged irregularities and misappropriations and on his report the police held an enquiry and submitted a charge-sheet before the Sub-divisional Magistrate of Barrackpore. The Court Inspector then filed an application that it was the case of a President of Union Board misappropriating Union Board funds and so was to be tried by the Special Court.

The first contention raised by Mr. Dutta is that the case is premature and he draws attention to Rule 18 of the Account Rules made under the Bengal Village Self-Government Act, to be found at page 91, of the Union Board Manual, Volume I and to Note 2 therein to show that there is a procedure laid down for rectifying irregularities found, etc., but this has nothing to do with any crime that may be committed which is under the general law. Therefore, as on police investigation prima facie the police was satisfied that a crime had been committed, a charge sheet was properly submitted.

Mr. Dutta next draws my attention to section 11 of the West Bengal Criminal Law Amendment (Special Courts) Amending Act, 1952, which says that nothing in the Act shall apply to any proceeding pending in any court other than a Special Court. According to him, as the accused was arrested and steps were taken by police before the Magistrate and also by the accused in connection with his bill, etc., so, according to him, it was proceeding pending in a court at the time when the West Bengal Amendment Act of 1952 was enacted. On the other hand, it appears that the charge sheet was submitted in October 1952, long after the Act had come into force. The proceeding in court began with the submission of the charge sheet. A police investigation is not a proceeding in court.

Finally. Mr. Dutta''s contention is whether the petitioner President comes within section 12 of the Amending Act of 1952. In section 12(b) the substituted clause runs as follows:

An offence punishable u/s 409 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government in respect of a property with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent.

The first question agitated by Mr. Dutta is whether the President of a Union Board is a public servant. He can only be such if he comes within the clause 10 in section 21 of the Indian Penal Code. None of the other clauses would appear to apply to him. Clause 10 makes every officer, whose duty it is as such officer, to take, receive, keep or expend any property, etc., a public servant. Under Rule 3 of the Rules made under the Village Self-Government Act, dealing with the custody of Union Board Fund, made under the rule-making powers given by the Village Self-Government Act, it has been laid down that "the Union Fund shall remain either in the custody of the President or Secretary, etc., so that he becomes a public servant because of the custody of the fund and also it appears because property, viz., books of account, etc., are to be kept by him. He, therefore, is a public servant The offence charged is one u/s 409 and it is alleged that he has committed this offence with regard to Union Board property as the President of the Union Board. If the accused is a public servant, then the offence must be committed in respect of property with which he is entrusted, or over which he has dominion in his capacity as a public servant to attract section 12(b). The requirement as to the property being that of the Government relates to the second part of the amended clause (2) given in section 12(b). Therefore, in the present case it had been rightly considered that this case came within the jurisdiction of the Special Court and therefore, the Magistrate rightly refused to exercise jurisdiction in it and a fresh charge sheet was submitted before the Special Court, namely, the Judge Sri K.N. Bhattacharjee. As until now, all the steps have been legal, the Rule must be discharged.