PRALHAD SHAMBURAO NEWALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Criminal Writ Petition No. 601 of 1987 has been filed by Pralhad Shamburao Newale who is one of the accused in Special Case No. 4 of 1986 pending against him and others in the Court of the Special Judge, Pune. He has prayed for a declaration that section 161 read with section 2(20) of the Maharashtra Co-operative Societies Act, 1960, be declared as unconstitutional on the ground that they amount to a colourable exercise of the legislative amending powers by the Maharashtra Legislature amending the Central Act, namely I.P.C. (Act No. XLV of 1860). He has also sought a writ of certiorari, or a writ in the nature of certiorari, directing, under Articles 226 and 227 of the Constitution of India or the revisional powers of the Court under section 482 Cri.P.C. to quash and set aside the criminal proceedings in Special Case No. 4 of 1986. Criminal Application No. 1749 of 1986 has been filed by Arvind Ganesh Bhopatkar for quashing the proceedings in Special Case No. 4 of 1986. Criminal Appeals Nos. 714 of 1986, 735 of 1986 and 826 of 1986 have been filed by Pralhad Newale and Shireeshkumar Newale-his son, Shriram Chintaman Mahajan and Arvind Bhopatkar respectively for an ad interim stay of the execution and/or operation of the judgment and order dated 7th August, 1986 passed by the District Judge, Pune, in Miscellaneous Applications Nos. 1865 of 1985, 1862 of 1985 and 1861 of 1985.

(2.) The Anti-Corruption Bureau, Pune, has prosecuted Arvind Bhopatkar and Pralhad Newale and others in the Court of the Special Judge, Pune, for the offences punishable under sections 120B, 409, 109, 420, 467, 471 and 477A I.P.C. and under section 5(2) read with section 5(l)(d) of the Prevention of Corruption Act, 1947, and section 147(o) and section 147(p) of the Maharashtra Co-operative Societies Act, 1960, on the allegations that during the relevant period Arvind Bhopatkar was the Director of the Sampada Sahakari Bank Ltd. and Pralhad Newale was the Secretary of the said bank. Arvind Bhopatkar and Pralhad Newale along with other officers of the bank conspired with the members of the family of one Chhabriya and with their active participation and help a large amount running into crores of rupees of the said bank has been defalcated.

(3.) Arvind Bhopatkar and Pralhad Newale had challenged the validity of the (Criminal Law Amendment Ordinance 1944 (Ordinance No. XXXVIII of 1944) but in view of the decision of the Supreme Court in (Hansraj Moolji v. The State of Bombay)A.I.R. 1957 S.C. 497, their learned Counsel did not press this ground. Their case is that they are not public servants" as defined in section 21 I.P.C. and as such no proceedings under the Prevention of Corruption Act, 1947, could be launched against them before the Special Judge, Pune. Pralhad Newale has challenged the vires of section 161 of the Maharashtra Co-operative Societies Act, 1960. According to him, the Penal Code being a Central legislation, section 21 of the Code could not be amended by the State Legislature. According to him, section 161 of the Maharashtra Co-operative Societies Act, as amended by Act No. XXVII of 1969, has the effect of encroaching on the provisions of section 21 I.P.C. which is a Central Act. According to him, the provisions of section 161 of the Maharashtra Co-operative Societies Act are repugnant to the provisions of section 21 1 P.C. and as such to the extent of repugnancy they are void. According to him, there has been no amendment to the prevention of Corruption Act and "public servant under section 2 of the said Act means a "public servant" as defined in section 21 I.P.C. He being not a "public servant" within the definition of that term appearing in section 21 I.P.C., could not be prosecuted for the offences under section 5 of the Prevention of Corruption Act, 1947, before the Special Judge.