Mitter, J.:— This is a petition for quashing certain proceedings under section 409 of the Indian Penal Code which are now pending against the petitioner in the Court of the 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 August 14, 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 Shaspur 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 August 27, 1951, the petitioner saw the said Kanai Krishna Sircar at his Calcutta residence and confessed that be 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 and 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 of the Indian Penal Code. On January 2, 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 of 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 II of 1947), a charge under section 409 of the Indian Penal Code is maintainable. Section 5(1)(c) of Act II 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 II of 1947. Mr. Bireswar Chatterjee appearing on behalf of 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 II 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 section 409 of the Indian Penal Code or under section 5(1)(c) of Act II 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.
4. For the purpose of disposing of this application, it does not appear to us to be necessary to go into the reasons for my decision in Hemanta Kumar Das v. The State, nor into those which appealed to the learned Judges of the Punjab High Court who decided the case of The State v. Guru Charan Singh [A.I.R (1952) Punjab 89], which I followed, for, since my decision, section 5 of Act II of 1947 has been amended by Act LIX of 1952 by the substitution, for sub-section (4), of the following sub-section:—
“(4) The provisions of this section shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him.”
5. In face of this amendment, it cannot be argued that the operation of Act II of 1947 would, in the case of a public servant, exclude the operation of section 409 of the Indian Penal Code. It is true that the Special Act provides for certain rights to which an accused is not otherwise entitled. But the amendment quoted above makes it clear that the prosecution can elect to charge a public servant either under section 409 of the Indian Penal Code or under section 5(1)(c) of Act II of 1947. Any doubt which may have existed in this regard has been resolved by the amendment concerned.
6. That being so, the petitioner's trial before a Special Judge under sec. 409 of the Indian Penal Code must be held valid. Mr. Chat-terjee argues that the facts alleged against his client disclose an offence under section 471 of the Indian Penal Code, which is triable by a Court of Session, and that, accordingly, the petitioner cannot be tried by a Special Judge. This argument is entirely beside the point, because the petitioner has only been charged with an offence under section 409 of the Indian Penal Code. It appears, moreover, that if a public servant is charged with an offence which is triable by a Special Judge along with an offence which is ordinarily triable by a Court of Session, both the charges could be tried by a Special Court under the provisions of section 4 of West Bengal Act XXI of 1949, as amended by West Bengal Act XII of 1952.
7. In the result, this application fails and the Rule is discharged. There is no prayer for bail, but it seems to us that the order for cancellation of bail was unduly harsh. It would, therefore, be open to the petitioner to apply for bail.
Sen, J.:— I agree.
A.K.D.G