Partha Sakha Datta, J.
1. At the material point of time the petitioner was serving as Branch Accountant, Belda Branch of Midnapore Co-operative Agriculture and Rural Development Bank Ltd. (for short the bank) during the year 1995-1996. One Debabrata Bhattacharya was also a cashier at the time. The cashier's function was to receive the cash in the cash counter, issue receipts, maintain relevant registers and arrange for depositing the cash with the Vidyasagar Central Co-operative Bank Ltd., Belda Branch. Following a report of commission of fraudulent act the cashier was suspended under the order of the Chairman and the Assistant Registrar of Cooperative Societies, Midnapore was requested to hold an enquiry which was however done and which revealed that the cashier embezzled, misappropriated and defalcated the fund of the bank to the tune of Rs. 2,40,549/- and that Sri Sagar Chand Dey, Ex-Branch Manager of Belda Branch and the present petitioner Srikanta Patra then Branch Accountant of the branch abetted and instigated the cashier Debabrata Bhattacharya to defalcate the fund of the bank fraudulently by an unlawful alliance and connivance with him and destroyed evidence of misappropriation of bank's fund.
2. This was the FIR vide Belda PS FIR No. 39 of 1997 dated 24.04.1997 against Debabrata Bhattacharya, Sagar Chand Dey and Srikanta Patra, the present petitioner under Section 409/109 of the IPC. Upon completion of investigation chargesheet was submitted against the petitioner and others under Section 409 of the IPC.
The case was sent to the learned Judge, 2nd Special Court, Midnapore constituted under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. Before the learned Judge, 2mi Special Court, Midnapore a petition was filed by the petitioner praying for discharge on the ground that there was no material to frame charge against him. The Chairman of the bank filed a written objection against that petition. The prayer was rejected by the learned Judge by his order dated 01.04.2006 observing that the materials disclosed an offence against him and there was hardly any scope to examine the defence materials at that stage. A plea was taken also that he was not a public servant. This plea was kept pending on the ground that it could be considered only at the stage of trial. This order was challenged in this Court in CRR No. 1308 of 2006 and Hon'ble Justice S. P. Talukdar disposed of the revisional application with the direction to the petitioner to make a fresh application to the learned Judge who would examine the same. While questioning the justifiability of framing charge the petitioner filed a fresh petition before the learned Judge, Special Court contending that he was neither a public servant within the meaning of the IPC nor one within the ambit of West Bengal Co-operative Societies Act, 1983 and the Rules. As such, he was not to be prosecuted before the Special Court. This petition was rejected by the order dated 10.05.2006 by the Special Judge holding that prima facie he appeared to be a public servant within the meaning of Section 21 of the IPC (12th clause). By that order charge was framed against all the accused persons and dates were fixed for recording evidence.
4. This order dated 10.05.2006 is under challenge in this revisional application. It has been contended in the application that the petitioner who was an accountant of the bank, a Cooperative Society created under the Co-operative Societies Act, 1983 (for short the Act), was not a public servant and cannot be asked to stand trial under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. The Cooperative Society is not a corporation, nor a company. The provision of Section 8 of the West Bengal Co-operative Societies Act has no manner of application to the present petitioner. Thus neither Section 21 of the IPC nor the provisions of the Act of 1983 can be resorted to so as to bind the petitioner to take trial in the Special Court. The petitioner is not an employee of a public sector bank and the Co-operative Society bank has not been required to obtain licence from the Reserve Bank of India. Unless a person is found to be public servant he cannot be tried by the Special Court. Thus without deciding as to whether the petitioner is a public servant or not the learned Judge rejected the petition. Further there was no material against the petitioner to frame charge under Section 409 of the IPC.
5. The point has been taken that the petitioner had filed a writ application being W.P. No. 19021 (W) of 1998 challenging the memo dated 02.04.1997 and the enquiry report as also an order dated 20.09.1997 issued by the Assistant Registrar, Co-operative Society, Midnapore whereby the petitioner was dismissed from service. His Lordship Hon'ble Justice Basudev Panigrahi (as His Lordship then was) held in the order dated 30.06.2000 that the charges levelled against the petition for lack of supervisory control was vague and there was no oppbrtunity given to him for showing cause before the order of dismissal was communicated to him. Since the dispute case and the criminal case were pending for final disposal it was premature to come to any finding that the petitioner lacked supervisory control. Accordingly, the order of dismissal passed by the General Body on 28.08.1998 was vacated. In this order some observations said to have been favourable to the petitioner were made and while praying for discharge of the accused the learned Judge in the Special Court was asked to take notice of such observations which the learned Court did not do.
6. Before examining the legality and propriety of the order impugned it should be stated here that the Writ Court was not considering the question of maintainability of the criminal prosecution against the petitioner. Nor was it for consideration before the Writ Court as to whether the petitioner was a public servant within the meaning of Section 21 of the IPC or under Section 8 of the West Bengal Co-operative Societies Act, 1983. Therefore, the observation of His Lordship Hon'ble Justice Basudev Panigrahi in the writ application is of no assistance to the consideration of the legality or maintainability of the criminal prosecution launched against the petitioner as also to others.
7. This order does not deal with the question whether there was prima facie material against the petitioner for framing charge under Section 409 of the IPC, for this is a factual aspect of the case and does not call for adjudication in this revisional application. The only point calling for consideration by this Court in the instant revisional application is whether the petitioner is a public servant and can be tried before the learned Judge, 2nd Special Court, Midnapore constituted under West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (for short the Act of 1949). Mr. Milan Bhattacharya, learned Advocate appearing for the petitioner submitted that an accountant of a Cooperative Society is not a public servant within the meaning of the West Bengal Cooperative Societies Act, 1983 and unless he is so he cannot be tried by the Special Court. It has been the submission of Mr. Bhattacharya as a corollary to his first proposition that the petitioner cannot be tried under the IPC and the Act 1983 being a self-contained exhaustiv Act the petitioner can very well be prosecuted under the said Act.
8. Mr. S. Pachal, learned Advocate appearing for the State of West Bengal submitted that acceptance of the submission of Mr. Bhattacharya to the effect that the law does not permit trial of the petitioner under the IPC would amount to exonerate him of the criminal offences and the Act of 1983 does nowhere say that irrespective of whether the petitioner is a public servant or not he cannot be tried under the IPC for commission of criminal breach of trust or misappropriation.
9. To my mind, the question whether the petitioner is a public servant or not for the purpose of his trial by the Special Court is a distinct and independent question upon which the question whether he can or cannot be prosecuted under the IPC does not depend and the decision of the Hon'ble Supreme Court in State of Maharashtra v. Laljit Rajshi Shah and Ors. 2000 Cr. LJ 1494, is in a different factual context, but before that let us consider whether the petitioner can be said to be a public servant within the meaning of Section 21 of the IPC read with the Act of 1983.
10. Section 8 of the Act 1983 reads 'every officer of a Co-operative Society shall be deemed to be a public servant within the meaning of Section 21 of the IPC'. This provision in the 1983 Act was not there in the erstwhile repealed law i.e. Co-operative Societies Act, 1940. This provision of Section 8 in the 1983 Act has been considered to be necessary in order that it might be possible to take appropriate action under Section 409 of the IPC against officers of Co-operative Societies whenever necessary. Now the word 'public servant' has been defined in Section 21 of the IPC and the twelfth Clause of the Section reads:
Twelfth - every person-
(a) In the service on pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government.
(b) In the service on pay of a local authority, a corporation established by or under a Central, Provincial or State Act of a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).
11. Now 'every officer' of a Co-operative Society as it occurs in Section 8 is not necessarily the 'every person' which occurs after the word 'twelfth' in Section 21 of the IPC. Therefore, 'every officer' has to be an officer as has been defined in Section 2(31) of the West Bengal Co-operative Societies Act, 1983. The persons who are included in the category of officer are 'Officer' includes a Chairman, Vice-Chairman, Secretary, Joint Secretary, Assistant Secretary, Managing Director, Manager, Deputy Manager, Assistant Manager, Treasurer, Director of a Board, Auditor elected, if any, from amongst members and any other person empowered under the Rules or the Bye-Laws to give direction relating to the affairs of a Co-operative Society, and also includes a Government Officer deputed by the State Government or the Registrar under Section 28 or an Administrator appointed by the State Government or the Registrar under Section 30 or a Special Officer appointed under Clause (c) of Section 31 to manage the affairs of a Cooperative Society'.
12. This appears to be an inclusive definition and may imply that the category specified in the definition is not exhaustive because a Chief Executive Officer of a Society who is appointed under Section 28 of the Act of 1983 is also officer though he has not been specifically named as such in Clause (31) of Section 2 of the Act but at the same time all the employees of a Co-operative Society do not necessarily become the officers of a society because all of them have not got the power to give directions in regard to the business of the society. The nomenclature 'accountant' of a Co-operative Society does not figure in Clause (31) of Section 2 of the Act, although a Treasurer by express inclusion is an officer to be a public servant in terms of Section 8 of the Act for the purpose of Section 21 of the IPC. Therefore, the submission of Mr. Bhattacharya that the petitioner is not an 'officer' in terms of Section 8 of the Act merits acceptance. Thus, 'every officer' of a Co-operative Society may become 'every person' as the expression occurs after the word 'twelfth' in Section 21 of the IPC only when former is mentioned to its definition in Clause (31) of Section 2. An Accountant may be an officer of a Co-operative Society under the term 'any other person' as the expression used in Clause (31) of Section 2 of the Act only when that 'any other person' is empowered under the Rules or the Bye-Laws to give direction relating to the affairs of a Cooperative Society. In the instant case it is not in the record that the petitioner under the Rules or Bye-Laws was entrusted with power to give direction relating to the affairs of a Co-operative Society. Ex facie, the power to give direction relating to the affairs of a Co-operative Society appears to be an executive power to be exercised in accordance with the policy of the society relating to the affairs of the society and it can hardly be said in absence to the contrary that the word 'Accountant' can be comprised under the term 'any other person'. This reasoning finds support from the decision in Co-operative Central Bank, Daryapur v. Narayan AIR 1945 Nagpur 183, where it was observed that an Accountant of a Co-operative Society is not an officer as he has no power to give directions in regard to the society's business. Mr. Bhattacharya doubted whether at all a Co-operative Society can be regarded as really a Body Corporate. My attention has been drawn to the decision in Shanti Ranjan Bhattacharya v. State : AIR1970Cal557 , where it was observed by this Court that it does not necessarily follow that a corporation and a Cooperative Society registered under the Cooperative Societies Act are synonymous terms and a Co-operative Society does not become a corporation because for some specific purposes it functions as a Corporate Body. This point arose because of Mr. Bhattacharya's submission that the words 'a corporation established by or under a Central, Provincial or a State Act' as we find in (b) of Clause 'twelfth' in Section 21 of the IPC does not include a Cooperative Society. This might be so until the Act of 1983 came into being but in Section 25 of the Act of 1983 it has been specifically provided that a registered Co-operative Society shall be a Body Corporate by its registered name with perpetual succession and a common seal. It appears that a Co-operative Society is a corporation as is understood to be so in common parlance. Interestingly, Entry 43 of List I of the Seventh Schedule of the Constitution has excluded co-operative societies, while Entry 33 of List II includes cooperative societies. In Daman v. State AIR 1985 SC 973, it was observed that the express exclusion of a Co-operative Society from Entry 43 of List I is indicative of the view that but for such exclusion, Co-operative Societies would be comprehended within the meaning of the express corporation. Following Entry 33 of List II the State Act of 1983 has expressly comprised the Cooperative Societies to be a corporation. Mr. Bhattacharya next referred to the Schedule appended to the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 wherein in Item No. 2 it has been provided 'an offence punishable under Section 409 of the IPC, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 as an agent of such Government Company....' It is argued that the petitioner was neither a public servant nor, the property he was dealing with was a Government property, nor was he acting as an agent of Government, nor was he a person dealing with property belonging to a Government company as an agent of such Government company. Therefore, by no stretch of logic can the petitioner be arraigned to answer charge before a Special Judge in a Special Court. It is submitted that Cooperative Society is not necessarily a Government company.
13. Thus to be tried by the Special Court under Section 409 of the IPC one has to be a public servant or a person as categorized in the Schedule and here the word 'public servant' does not extend to any length but to what has been included in the inclusive definition of the word in Section 2(31) of the Act of 1983, and the word 'every person' in Section 21 (12th clause) is relatable to the State Act, 1983. Thus, having considered the overall aspects of the matter it does appear that the petitioner is not a public servant nor is he a person falling under either of the categories as mentioned in Item No. 2 of the Second Schedule to the Act of 1949.
14. Next question is whether the petitioner can at all be tried under the IPC or not. In this connection, the Maharashtra case (supra) that went to the Supreme Court bears recall. In the case of State of Maharashtra (supra) the Chairman of Maharashtra Co-operative Societies was arraigned to take trial before the Special Court under the Prevention of Corruption Act, 1947 on the ground that he was a public servant within the meaning of Section 21 of the IPC. Their Lordships of the Supreme Court held that an officer who may be a public servant under Section 161 of the Maharashtra Co-operative Societies Act, 1961 cannot be prosecuted for offences under the IPC so long as Section 21 of the IPC is not amended. It was held that the State Legislature had the powers to amend Section 21 of the IPC, the same being referable to a legislation under Entry I of List III of the Seventh Schedule, subject to Article 254(2) of the Constitution, as otherwise inclusion of the persons who are public servants under Section 161 of the Maharashtra Co-operative Societies Act would be repugnant to the definition of public servant under Section 21 of the IPC and that having not been done it is difficult to accept the contention that by virtue of deeming definition in Section 161 of the Maharashtra Act by reference to Section 21 of the IPC, the persons concerned could be prosecuted for the offences under the IPC. Now in my humble opinion this decision does not come to the aid of the petitioner because though we have accepted the position that the petitioner is not a public servant and he is not triable before the Special Court under the Special Courts Act, 1949 his trial for criminal misappropriation in a regular Criminal Court is not barred. In the Maharashtra case (supra) it was observed by Their Lordships of the Supreme Court that the State Act was a completely self contained statute with its own provisions and has created specific offences quite different from the offences in the IPC. Let us see what is the position in the West Bengal State Act of West Bengal Act of 1983. Chapter XVI has Section 138 dealing with offences and penalties, Section 139 dealing with cognizance of offences, and Section 142 dealing with punishment for corrupt practices. Section 139 in Sub-section (1) provides that no Court inferior to the Court of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence under the Act and every such offence under this Act shall be deemed to be non-cognizable. Sub-section (4) provides that notwithstanding anything contained in the Cr. PC any offence punishable under Section 403 of the IPC in respect of any movable property of a Co-operative Society shall be cognizable. The question is whether Co-operative Societies Act, 1983 repeals Section 409 of the IPC or not and the question was answered in Soumendra Krishna v. State of West Bengal 1992 CLJ 148, in the negative having regard to Section 26 of the General Clauses Act, 1897. Section 138 refers to some offences in Fourth Schedule to that Section 138. Section 147(3) also speaks of commission of a breach of any Rule to be an offence punishable under that Sub-section (3) of Section 147. Again as said above in Section 139(4) offence under Section 403 has been specifically mentioned to be tried before a regular Court of Law not inferior to the Court of the Judicial Magistrate, First Class. In Narendra Nath Dey v. State of West Bengal 1997 C Cr. LR (Cal) 396, the decision in Soumendra Krishna (supra) has been followed and reiterated. A Division Bench decision of this Court in Ajit Kumar Chakraborty v. State of West Bengal 1999 C Cr. LR (Cal) 263, surveyed a good number of decisions including the above-mentioned two ones and it was observed that the prosecution under the IPC is permissible despite the fact that the offences might also have been committed under the West Bengal Co-operative Societies Act, 1983 in Section 139. Section 26 of the General Clauses Act provides that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence. It was further observed that where the offence falls under two Sections one requiring sanction and the other not, the prosecution could fall back upon the Section not requiring sanction. Incidentally in the decision of the Supreme Court in N.K. Sharma v. Abhimanyu 2006(1) C Cr. LR (SC) 295, the Hon'ble Supreme Court had occasion to consider the Haryana Co-operative Societies Act, 1984. The appellant who was a Class I officer of the Government of Haryana was sent on deputation as a Managing Director of a Co-operative Society. Their Lordships observed in the consideration of that Act that the employees could be public servants for limited purposes only and in that case the appellant was considered to be outside the scope because he was not on the pay of Government. Herein, in our case the petitioner is definitely not on pay of the Government. The learned Advocate appearing for the petitioner also referred to Federal Bank Ltd. v. Sugar Thomas and Ors. 2003(10) SCC 733 and Pradip Kumar Biswas v. Indian Institute of Chemical Biology and Ors. 2002(5) SCC 111. The latter decision is a seven Judge decision dealing with concept of Articles 12 and 13(2). The decision in Ajoy Hasia case 1981(1) SCC 722 and Sabhajit Tiwari case 1975(1) SCC 485, were considered. I do not think that this decision is relevant for us for the purpose of deciding the limited question whether the petitioner is a public servant or not. By citing this decision Mr. Bhattacharya sought to emphasize that a Co-operative Society which is a creature of the said Act is not an instrumentality of the State. I do not consider that any discussion on the question whether the Cooperative Society in question is an instrumentality of the State or not is necessary.
15. The result of the discussion is therefore that (1) the petitioner being not a public servant cannot be tried by their learned Special Judge under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and (2) he can be triable by a regular Criminal Court for alleged commission of offence.
16. In the result the order dated 10.05.2006 passed by the learned Judge, 2nd Special Court, Paschim Midnapore in Special Trial case No. 3 of 2000 is set aside only in so far as the present petitioner is concerned.
17. The revisional application is allowed and disposed of to the extent as above.
18. A copy of the order shall be sent to the learned Judge, 2nd Special Court, Paschim Midnapore for information and necessary action.
19. Urgent xerox certified copies, if applied for, be given to the parties as expeditiously as possible.