Criminal Revn. Appln. Nos. 144 to 146 of 1986 with Cri. Appln. No. 20 of 1993 In Cri. Writ Petn. No. 738 of 1992. Case: State of Maharashtra Vs Laljit Tejshi Shah. High Court of Bombay (India)
| Case Number | Criminal Revn. Appln. Nos. 144 to 146 of 1986 with Cri. Appln. No. 20 of 1993 In Cri. Writ Petn. No. 738 of 1992 |
| Counsel | For Petitioner: D. G. Bagwe, A.P.P., Advs. and For Respondents: Nitin Pradhan with Miss Anjali M. Desai and Miss. S. D. Khot, Advs. |
| Judges | A. C. Agarwal, J. and I. G. Shah , J. |
| Issue | Maharashtra Co-operative Societies Act (24 of 1961) - Sections 2(20), 161; Indian Penal Code (45 of 1860) - Section 21; Prevention of Corruption Act (2 of 1947) - Sections 2, 5, 6; Criminal Procedure Code (2 of 1974) - Section 197 |
| Citation | 1994 CriLJ 1813 |
| Judgement Date | January 13, 1994 |
| Court | High Court of Bombay (India) |
Judgment:
Ashok Agarwal, J.
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Being unable to see eye to eye with a view expressed by several learned single Judges of this Court namely Rele, J. in the case of "Rama Niwrutti Shinde v. The State of Maharashtra" in Criminal Revn. Application No. 24 of 1980, Salve, J. in the case of "Ramrao Patil v. Vasant Ahirrao" (Criminal Application No. 360 of 1987) and Tated, J. in the case of "Pralhad Shamburao Newale v. State of Maharashtra" "1988 Mah LJ 161" (All Judges of this Court as they then were), another learned single Judge Chaudhari (a sitting Judge of this Court), in the present proceedings, has referred a question to a larger Bench, and that is how the present proceedings are taken up for hearing by us.
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The present proceedings arise out of prosecutions filed against the respondents under various offences such as Sections 120B, 409, 420, 467, 471 and 477-A of the Indian Penal Code, Sections 7 and 9 of the Essential Commodities Act and Sections 5(1)(c) and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. The accused, being members of the Managing Committee of Co-operative Societies a question which was agitated before the learned Special Judge, who was taking cognizance of the offences, was, whether the accused persons are 'public servants' for the purposes of offences under Section 409 of the Indian Penal Code and Sections 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act. A further question that was agitated was, whether the prosecutions are maintaianable for want of previous sanction to prosecute the accused.
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The learned Special Judge has held as follows:
"The definition of "public servant" in Section 21 of the Indian Penal Code, does not stand enlarged by Section 161 of the Co-operative Societies Act, merely because definition of Section 21 of the Indian Penal Code is incorporated by reference in Section 161 of the Maharashtra Co-operative Societies Act. If this is the correct view, obviously the accused persons are not public servants as defined in Section 21 of the Indian Penal Code. Consequently, they cannot be public servants for the purposes of Prevention of Corruption Act. Therefore, sitting as a Special Judge appointed under Section 6 of the Criminal Law (Amendment) Act, 1952 to try the offences under Section 5(2) of the Prevention of Corruption Act, this Court can not take the cognizance of the offence and proceed with the case further."
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In regard to the second question, the learned Special Judge has held that, as the prosecution has not obtained previous sanction necessary for prosecution of the accused persons from the authority competent to remove them, cognizance of the offence under Section 5(2) of the Prevention of Corruption Act cannot be taken by him against the accused. In this view of the matter on both the grounds, the learned Special Judge has held that his Court has no jurisdiction to entertain and try the case for the offences punishable under Section 5(2) of the Prevention of Corruption Act and consequently he has passed an order of discharging the accused. Aggrieved by the order, the State has preferred the present petitions.
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The petitions were placed for hearing and final disposal before the learned Single Judge Justice Chaudhari. Submissions were advanced both by the learned Public Prosecutor as also by the counsel appearing on behalf of the accused, on both the above questions. Several decisions rendered by several learned single Judges on the point were placed for his consideration. Finding himself unable to agree with a view expressed by several learned single Judges of the Court, he has referred the petitions to a larger Bench for decision of certain questions which he has formulated as under:
(1) Whether a person defined as "Officer" under clause (20) of Section 2 of the Maharashtra Co-operative Societies Act, 1960, is a "Public Servant" within the meaning of Section 2 of the Prevention of Corruption Act, 1947 (II of 1947), by virtue of the provisions of Section 161 of the Maharashtra Co-operative Societies Act, 1960, read with Section 21 of the Indian Penal Code?
(2) Whether, assuming that provisions of Section 2 of the Prevention of Corruption Act, 1947 are applicable to such a person, is the sanction to prosecute such a person required under any of the clauses of sub-section (1) of Section 6 of the Prevention of Corruption Act, 1947 capable of being given under the Maharashta Co-operative Societies Act, 1960?
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In order to appreciate the controversy at hand, it would be useful to reproduce the relevant provisions, both of Section 161 of the Maharashtra Co-operative Societies Act as also of Section 21 of the Indian Penal Code. Section 161 of the Maharashtra Co-operative Societies Act reads as follows:
"161. Registrar and other officers to be public servants. The Registrar, a person exercising the powers of the Registrar, an officer as defined in clause (20) of Section 2, or a person appointed as an official Assignee under sub-section (2) of Section 2 IA, or as an Administrator under Section 77A or 78, or a person authorised to seize books, records or funds of a society under sub-section (3) of Section 80, or to audit the accounts of a society under Section 81 or to hold an inquiry under Section 83, or to make an inspection under Section 84, or 89A or to make an order under Section 88, or a person appointed as a member constituting a Co-operative Court under Section 91A or the Co-operative Appellate Court under Section 149 or a Liquidator under Section 103, shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Cod. "
" Clause (20) of Section 2 of the Maharashtra Co-operative Societies Act, which is relevant for the purpose of finding out who are designated as "public servants" under Section 161 of the Maharashtra Co-operative Societies Act, reads as follows:
"Section 2(20)-
"Officer" means a person elected or appointed by a society to any office of such society according to its by-laws; and includes a chairman, vice-chairman, president, vice-president, managing director, manager, secretary, treasurer, member of the committee and any other person elected or appointed under this Act, the rules or the by-laws, to give directions in regard to the business of such society."
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Section 21 of the Indian Penal Code in so far as is relevant, reads as under:
"21. The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely:-
(Clauses one to Eleventh not quoted).
Twelfth, Every person-
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956.
Illustration
A Municipal Commissioner is a public servant.
Explanation 1.- Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.
Explanation 2- Whenever the words "public servant" occur they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation."
Explanation 3 (not quoted).
Section 2 of the Prevention of Corruption Act, 1947 (Act 2 of 1947) reads thus:
"For the purposes of this Act, "public servant" means a public servant as defined in Section 21 of the Indian Penal Code. "
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Analysing the above provisions, the learned Single Judge, Chaudhari, J. has held as under:
"A person who firstly is an officer within the meaning of clause (20) of Section 2 is to be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. Such an officer, therefore, is not designated as a public servant by Section 161 itself. What Section 161 does is to incorporate definition of Section 21 by reference in that Section. Adopting this course for deeming the officer of the society ipso facto as a public servant within the meaning of Section 21 of the Indian Penal Code would be apparently transgressing the limits of operation of Section 2l of the Indian Penal Code. Such a consequence cannot be brought about without amending Section 21 itself. Section l6l of the Maharashtra Co-operative Societies Act does not purport to amend Section 21 of the Indian Penal Code. In my opinion, therefore, it would not be correct to say that the officers of a society as happen to be covered by clause (20) of Section 2 of the Co-operative Societies Act would be ipso facto public servants within the meaning of Section 21 of the Indian Penal Code."
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In order to make good his finding, the learned Judge has noted that, the Maharashtra Co-operative Societies Act is a piece of legislation enacted by the Maharashtra State Legislature deriving the legislative competence for the same under Entry 32 in List II i.e. State List contained in VIIth Schedule of the Constitution. He has further noted that, by virtue of clause (2) of Article 246, the Legislature of the State is also competent to make laws with respect to any of the matters enumerated in the Concurrent List i.e. List III in the Seventh Schedule. Entry I in the Concurrent List enables the State Legislature to make laws or amend existing laws, in the field of "Criminal Law" which would include matters covered by the Indian Penal Code as well as Prevention of Corruption Act. Hence, according to the learned Single Judge, Chaudhari, J., it would, therefore, be within the legislative competence of the State Legislature to amend Section 21 of the Indian Penal Code itself or for that matter even Section 2 of the Prevention of Corruption Act. Hence, even though the law governing co-operative societies may be made by virtue of Entry 32 in the State List and to that extent although the law made may provide for punishment for offences...
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