STATE OF MAHARASHTRA Vs. LALJIT RAJSHI SHAH

JUDGEMENT

(1.) These appeals by grant of leave by the High Court itself under Article 134(1)(c) of the Constitution of India read with Rule 28(2) of the Supreme Court Rules, by the State of Maharashtra, raises the question whether the Chairman of a Co-operative Society under the Maharashtra Co-operative Societies Act, can be held to be a 'public servant' for the purpose of Section 21 of the Indian Penal Code and as such, can be proceeded against for offences under Section 5(1) read with Section 5(2) of the Prevention of Corruption Act, 1947.

(2.) The short facts necessary for disposal of these appeals may be briefly stated as under. On the basis of criminal prosecution under Sections 120-B, 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 Special Judge took cognizance of the offences as against the accused respondents. The accused persons are the members of the Managing Committee of the co-operative societies and the Chairman of such co-operative societies. It was agitated before the learned Special Judge by the accused persons that they are not 'public servants' for the purposes of offences under Section 409 of the Indian Penal Code and Section 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947 and further, the prosecution is not maintainable for want of previous sanction. The learned Special Judge considered the provisions of Section 161 of the Maharashtra Co-operative Societies Act (hereinafter referred to as 'the Act') and came to the conclusion that the accused persons cannot be held to be 'public servants' as defined under Section 21 of the Indian Penal Code notwithstanding the incorporation of Section 21 of the Indian Penal Code in Section 161 of the Act and, therefore, no cognizance can be taken of the offences under the Prevention of Corruption Act. On the question of sanction, the Special Judge also agreeing with the accused persons held that no previous sanction having been obtained for prosecution of the accused persons, the cognizance is bad in law. Assailing the order of learned Special Judge, the State moved the High Court. When the matter was placed before a learned single Judge, he referred the matter to a larger Bench as he did not agree with the views expressed by several other learned Single Judges of the Court. The learned Single Judge formulated two questions for being answered by the larger Bench (1994 Cri LJ 1813 at Pp. 1815-16):

(3.) The Division Bench by the impugned Judgment analysed the provisions of Section 161 of the Act as well as Section 21 of the Indian Penal Code and Section 2 of the Prevention of Corruption Act, 1947. The Division Bench of the High Court came to the conclusion that Section 161 of the Act incorporating Section 21 of the Indian Penal Code ipso facto does not enlarge the definition of the term 'public servant' in Section 21 of the Indian Penal Code. It further held that the State Legislature which was competent to amend Section 21 of the Indian Penal Code, the subject of criminal law being on the concurrent list and yet the said not having been done, the expression 'public servant' under Section 161 of the Act would mean those officers to be 'public servants' for the purpose of offences under the Co-operative Societies Act and Section 21 of the Indian Penal Code cannot be said to have engrafted into Section 161 of the Act. Accordingly, the High Court held that the accused persons cannot be prosecuted for offences under Section 409 of the Indian Penal Code and Sections 5(1)(c) and 5(1)(d) read with 5(2) of the Prevention of Corruption Act, though they can be prosecuted for other offences for which cognizance had been taken. Having held so, leave to appeal having been prayed for by the State, the High Court granted leave under Article 134(1)(c) of the Constitution read with Rule 28(2) of the Supreme Court Rules and hence the present appeals.