J.V. DESAI Vs. THE STATE AND

JUDGEMENT

(1.) These two Rules arise on two applications under Sec. 482 of Code Criminal Procedure for quashing the proceeding being Sessions Case No. 7 of 1979 pending before Shri K Chatterji Sessions Judge, 4th Bench, City Civil Court, Calcutta and also challenging the order dated 28.4.80 J. V. Desai and Abani Chowdhury filed two separate applications before this Court on which these two Rules have been issued The petitioners were charged in respect of offences under Sections 120B, 409, 467, 471, 479/109 of the Indian Penal Code before the learned Chief Metropolitan Magistrate. The learned Chief Metropolian Magistrate committed the case to the Court of Sessions. It was contended before the learned Judge in the Court below that J. V. Desai was the General Manager and Secretary of the Union Cooperative Society Limited and Abani Chowdhury was the General Manager of the said Society. It was further contended that the petitioners were officers at the time of the commission of the offence and as by the amendment of Maharashtra Act XXVII of 1969, Sec. 161 of the Maharashtra Cooperative Societies Act, 1960 has been amended and it has been provided in the amending Act that the officers shall be deemed to be public servants within the meaning of Sec. 21 of the Indian Penal Code, these officers who are public servants must be tried by a Special Court. On behalf of the prosecution, it was submitted that the Amendment Act had no retrospective effect. The officers as defined under the Maharashtra Cooperative Societies Act were regarded as public servants within the meaning of Sec. 21 of the Indian Penal Code since 1969 when the amendment came into force. The Act was passed in 1960 and till 1969 the officers were not public servants and as such these officers cannot claim that they should be tried by a Special Court. The learned Judge overruled the contention of the defence and accepted the contention of the prosecution and fixed 20.5.80 for framing of charges, Being aggrieved by the aforesaid order, the petitioners have come up to this Court.

(2.) Mr. Nalin Ch. Banerjee, learned Advocate appearing on behalf of the petitioners, contends that in Sec. 161 of the original Act the Registrar, a person exercising the powers of the Registrar, a person authorised to audit the accounts of a society or to hold an enquiry or to make an inspection were all regarded as public servants. It was only an omission not to include the officers in the category of the persons referred to above. The intention of the Legislature, according to Mr. Banerji, was to include the officers from the very inception of the passing of the Act and that omission was rectified in 1969 by amendment. In such circumstances, Mr Banerjee submits that this amendment will have retrospective operation. Mr. Banerji draws inspiration from the provision of Sec. 164 of the Maharashtra Co-operative Societies Act. In the original Act, it was provided that no suit shall be instituted against a society or any of its officers in respect of any act touching the business of the society, until the expiration of two months next after notice in writing has been delivered .............Mr. Banerji contends that in Sec. 164 of the original Act officers were included. Thus, it is clear that the Legislature always intended that the officers should be regarded as public servants. That was latent and what was latent has become patent by the amendment. Admittedly, in 1966-68 when the offence is said to have been committed, Sec. 161 though provided that certain categories of persons shall be deemed to be public servants within the meaning of Sec. 21 of the Indian Penal Code, the Legislature in its wisdom did not include the officers of the Society in the category of persons. It was only by Sec. 24 of the Maharashtra Act XXVII of 1969, Act of 1960 was amended and an officer as defined in Clause (20) of Sec. 2 was included in Sec. 161 and it was provided that such an officer shall be deemed to be a public servant. Thus, it is clear that in the original Act which was passed in 1960 and till the Act was amended in 1969 an officer of the society was not considered as a public servant. Mr. Banerjee, in support of his contention refers to a decision reported in AIR 1952 SC 324 (Shamrao Parulekar & ors. Vs. District Magistrate, Thana, Bombay & ors) . In this case, it has been held that "when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed in such a way that there is no need to refer to the amending Act at all". This proposition of law, in our opinion, does not help the petitioners. Already in the original Act certain categories of persons were considered as public servants. Officer of the society was included in that category only by the amendment Act of 1969. In such circumstances, we fail to see how the provision of the amendment Act will have retrospective operation and an officer who was not a public servant in 1966-68 would be considered as a public servant because subsequently by an amendment an officer has been included in Sec. 161 and it has been provided that he shall be deemed to be a public servant. Mr. Banerjee, in this connection, relies on "Construction of Statutes" by Crawford and "Interpretations of Statutes" by G. P. Singh.

(3.) Mr. Banerjee refers to paragraph 304 of Crawford's "Construction of Statutes" wherein it has been held that the amended statute should be construed as if it has been originally passed in its amended from since the amendment becomes a part of the original enactment. He also refers to paragraph 308 which is with regard to the determination of repeals by implication, generally That has no relevance in our present case. Mr. Nani Kr. Chakravarti, learned Advocate appearing on behalf of the opposite party, refers to paragraph 306 which is to the following effect : "Amendatory statutes are subject to the general principles discussed elsewhere herein relating to retrospective operation. Like original statutes, they will not be given retrospective construction, unless the language clearly makes such construction necessary. In other words, the amendment will usually take effect only from the date of enactment and will have no application to prior transactions, in the absence of an expressed intent or an intent clearly implied to the contrary." Mr. Chakravarti also relies on a decision reported in 1977 CUN 419 (Abani Chaudhury Vs. The State) . In this case, an employee of the Insurance Co. was charged with committing criminal breach of trust in respect of the fund of the Company The offence is alleged to have been committed in 1966-68. Insurance Co. was rationalised in 1972 and the charge-sheet was submitted and cognizance taken thereon long after the nationalisation. A point was raised before His Lordship A. K Sen, J that after the nationalisation the petitioner has become a public servant and as such cognizance ought (not?)to have been taken by the ordinary court. It was held by His Lordship" in order to come within purview of the Act, (Special Courts Act) the offence must have to be committed by one in his capacity as a public servant. If one committed such an offence not in such a capacity, he does not come within the purview of the Act only because he has become a public servant later on." In the present case also the offence was committed at a time when the petitioners were not public servants Officers have been included in Sec. 161 only by amendment Act of 1969. We find in the amended provision no indication that the amending Act will have retrospective operation Generally, unless there is clear indication that an amended provision will have retrospective operation it has only prospective operation. Again, by the amendment no procedural law was sought to be changed. Nine years after the passing of the Act, the Legislature thought that in Sec. 161 in the category of persons an officer as defined in Maharashtra Co-operative Societies Act should also be included and only ofter inclusion such officer has become a public servant. When an officer is a public servant within the meaning of Sec. 21 of the Indian Penal Code and commits an offence as a public servant there is no doubt that only the Special Court will have jurisdiction. We have no hesitation to hold that the amended provision has no retrospective operation and at the time when the officers are said to have committed the offence, as alleged, they were not public servants and that being so, they are triable by ordinary Court. This being the position, the contention raised by Mr. Banerjee fails and consequently, the applications fail and the Rules are discharged. The learned Judge is directed to dispose of the case as early as possible as the matter is pending for a long time. Let the records go down immediately.