SHANTI RANJAN BHATTACHARYA Vs. STATE

JUDGEMENT

(1.) The petitioner is on his trial before a Special Court at Alipore for an alleged offence under Section 409 of the Indian Penal Code.

(2.) The instant case was allotted to the Special Court by a notification of the State Government and the Special Court took cognizance on a petition of complaint filed before it by the Public Prosecutor. The petitioner raised an objection before the Special Court that the Special Court had no jurisdiction to try the instant case. But the Judge presiding over the Special Court has found that he has jurisdiction. The petitioner has thereafter obtained this Rule for quashing the proceeding pending before the Special Court against him.

(3.) The allegations are in short as follows:-- The petitioner was the Secretary of Mahasakti Samabaya Samiti, a registered Co-operative Society. While working as such Secretary the petitioner is said to have committed criminal breach of trust in respect of Rs. 14,432.92p. The Special Court will have jurisdiction to try this case if the petitioner can be said to be a public servant within the meaning of Section 21 of the Indian Penal Code. The learned Judge has found that the petitioner is a Public Servant within the meaning of the twelfth clause of Section 21 of the Indian Penal Code. The question if the Secretary of a Co-operative society would be a Public Servant under the tenth clause of Section 21 often arose and the Bombay, Madras and Mysore High Courts have held that the Secretary of a Co-operative Society was not a Public Servant under the tenth clause of S. 21. AIR 1935 Bom 36, 1935 Mad WN 1337(1) and AIR 1958 Mys 82. With respects we agree with the decision of the aforesaid High Courts and we think that the secretary of a Co-operative Society is not a Public Servant under the tenth clause of Section 21. We have then to see if the Secretary of a Co-operative Society is a Public Servant under the twelfth clause of S. 21 of the Indian Penal Code. The period during which the alleged criminal breach of trust is said to have taken place is between July 14, 1965 and June 24, 1966. The twelfth clause of Section 21 was first amended in 1958 and again amended in 1964. The amendment of 1964 became effective before July, 1965 and so we have to consider if a Secretary Co-operative Society is a Public Servant under the twelfth clause of Section 21 as it now stands. The relevant portion of the twelfth clause is that every person 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 is a Public Servant. Mr. Banerjee who appears for the State has submitted that a registered co-operative Society is 'a corporation established by or under a State Act' and as such the Secretary of a registered Co-operative Society is a Public Servant. Mr. Banerjee has argued that a Co-operative Society formed under the Bengal Co-operative Societies Act, 1940 becomes a body corporate as soon as it is registered and as such the Mahasakti Samabaya Stores Ltd., being a registered Co-operative Society is a body corporate. Mr. Banerjee has farther argued that being a body corporate it is 'a corporation' and becomes 'a corporation established under the Co-operative Societies Act'. This argument cannot be accepted. True, under Section 19 of the Co-operative Societies Act the registration of a Co-operative Society renders it a body corporate but that is for the purposes enumerated in Section 19. The heading of the Chapter under which Section 19 comes is "Status and Management of Co-operative Societies". Under Section 19, a Co-operative Society when registered becomes a body corporate with perpetual succession and a common seal and with power of hold property, to enter into contracts, to institute and defend suits and other local proceedings and to do all things necessary for the purposes for which if is constituted. Thus, as a body corporate the Society has its rights and liabilities and becomes a juristic person. But the language in Section 21, twelfth clause, is 'in the service or pay of a corporation established by or under the Central, Provincial or State Act'. A registered Co-operative Society is not a 'corporation' established by or under the Co-operative Societies Act. The clause, "corporation established by or under" has reference to some Public Corporations established either by or under some statutes. Take for instance the Life Insurance Corporation which was established by the Life Insurance Corporation Act. Similarly, take the instance of the State Transport Corporation, Calcutta, which was established by the State Government under a Central Act, Road Transport Corporations Act, 1950. Under Section 19 of the Co-operative Societies Act a registered Co-operative Society is a body corporate for the purposes enumerated in Section 19 but it does not become a corporation established by or under the Cooperative Societies Act. Mr. Banerjee refers to the definition of a body corporate or corporation contained in Clause (7) of Section 2 of the Companies Act. It will however appear that the definition of "body corporate" or "corporation" excludes a Co-operative Society. Furthermore, Section 6 of the Co-operative Societies Act states that the Companies Act shall not apply to Co-operative Societies. There is, therefore, no doubt that a Co-operative Society though registered under the Co-operative Societies Act does not become because of Section 19 of the Act, a Corporation established by or under the Co-operative Societies Act and in that view of the matter the Secretary of a Co-operative Society is not a Public Servant under the Twelfth clause of Section 21 of the Indian Penal Code. We may in this connection refer to the observation of the Patna High Court in State of Bihar v. Amulya Ratan Pathak, AIR 1969 Pat 173 at p. 180: