A. M. SAYEM, J.-This reference is misconceived. It is at the instance of some Directors of a Co- operative Multipurpose Society. One of them is Chairman-cum-Cashier of the Society, and another is its Secretary. They are accused of offences of criminal breach of trust under section 406 of the Penal Code and of abetment thereof.
It appears that the Sub-Divisional Magistrate of Jamalpur took cognizance in this case on the complaint of an Inspector without any previous sanction of the Registrar of Co-operative Societies.
The Referring Judge recommends quashing of the proceed--ing against the accused, being of the view that the Sub---Divisional Magistrate was not competent to take cognizance in this case in the absence of a previous sanction of the Registrar. The learned Judge refers in this connection to subsection (3) of section 137 of the Co-operative Societies Act, 1940 (hereinafter called the Act) which provides: - "3. No Prosecution shall be instituted under this Act without the previous sanction of the Registrar."
Mr. Mazhar Hassnain who appears for the accused is simply unable to support the reference. The learned Deputy Legal Remembrancer has drawn our attention to the words "under this Act" occurring in subsection (3) of section 137 and has rightly contended that a previous sanction of Registrar is necessary only A in respect of a prosecution under this Act what would be al prosecution under this Act is to be found in section 136, which runs as follows: - "136. Any person mentioned in column 3 of the Fifth Schedule who is guilty of an offence shown in column 2 thereof shall, notwithstanding anything contained in this Act or any other law for the time being in force, be liable on conviction to the penalty shown in column 4 thereof."
Column 2 of the Fifth Schedule of the Act mentions five types of offences. They are:- "1. Unauthorised use of the word "co-operative" in any name or title under which business is carried on in contraven--tion of section 7.
2. Wilful neglect or refusal by any person to do any act, make any return or furnish any information required to be done, made or furnished under this Act or the rules.
3. Wilfully making a false return or furnishing false information required to be made or furnished under this Act or the rules.
4. Removing or otherwise disposing of or suffering to be removed or otherwise disposed of any property on which a co-operative society holds a first charge under section 47 with intent to defraud the society or with such intent doing any other act to the prejudice of the society's first charge.
5. Any act or omission declared by the rules to be an offence."
Obviously, the offences alleged against the accused in this case are offences under the Penal Code and not under the Act. Subsection (3) of section 137 of the Act was not thus attracted to the complaint in this case. A previous sanction of the Registrar of the Co-operative Societies was not there--fore, necessary and accordingly it was within the competence of the learned Sub-Divisional Magistrate to take cognizance of the complaint.
For the foregoing reasons the reference is rejected.
Let the records be sent down expeditiously.
AHSANUDDIN CHOUDHURY, J.-I agree.