Gautam Kumar Das and Others vs Saraj Kumar Sahu

R.N. Biswal, J.—The petitioners assail the orders dated 15.9.2001 (Annexure-2) and 18.10.2003 (Annexure-3) passed by the S.D.J.M. Keonjhar in I.C.C. case No. 37 of 2001 wherein she took cognizance of the offence under Sub-sections 12 and 13 of Section 115 of the Orissa Co-operative Societies Act, 1962 (in short ''the Act'') and refused to recall the same respectively.

Opp.party was a member of Palasapanga LAMPCS, and was elected as the President of the said Society in the year 1996. The term of his office expired on 7.5.2001. During his term of office, petitioner No. 1 was the Chief Electoral Officer of the Co-operative Societies, Orissa, who authorized petitioner No. 2 to appoint Election Officers to conduct the elections of the members and presidents of the Committee of management of all the Co-operative Societies under Keonjhar district in due date. Accordingly, vide order No. 3 dated 31.1.2001, he appointed H.N. Mishra, Inspector of Co-operative Societies, office of ARCS, Keonjhar as the Election Officer of Palasapanga LAMPCS under petitioner No. 3. As such, the election process started from that date. According to the opp.party all the petitioners wilfully avoided to take further action in the matter of election and thereby held up the election contrary to the provision of Section 28-B of the Act which mandates that election process of a society, once started can not be held up. So, opp.party filed the aforesaid complaint case against the petitioners and Sri H.N. Mishra to punish them under Sub-section 12 and 13 of Section 115 of the Act. The order-sheets show that after recording the initial statement of the opp.party on 9.5.2001 the learned S.D.J.M. adjourned the case to 4.6.2001 for enquiry u/s 202 of Cr.P.C. Then the case was adjourned to different dates and ultimately to 4.9.2001, when opposite party was found absent in the Court on call. However, the learned S.D.J.M. adjourned the case to 15.9.2001 on which date, perusing the complaint, initial statement of the opp.party and the Xerox copy of the documents filed, she took cognizance under the aforesaid sections as mentioned earlier and ordered to issue process against the petitioners.

The petitioners filed a petition u/s 204 of Cr.P.C. to quash the order dated 15.9.2001 taking cognizance of the offences and issuing process against them, on the ground that they being public officers, prior sanction u/s 197 of Cr.P.C. was required and further they were protected u/s 129 of the Act. Learned S.D.J.M. held that Section 129 of the Act, protects the officers mentioned therein against vexatious prosecution. The said act being a special statute, similar provision u/s 197 of Cr.P.C. cannot be available to the petitioners. She further held that there was no material to hold that the petitioners held up the election in good faith. Accordingly, she rejected the petition vide order dated 9.4.2002.

Being aggrieved with the orders dated 15.9.2001 and 9.4.2002 the petitioners preferred CRLMC No. 4682 of 2002 before this Court, wherein it was held that the view of the learned S.D.J.M. that the petitioners did not act in good faith and as such the provision u/s 129 of the Act could not be available to them appeared to be not in consistent with the provision of the Act and Code. The petitioners being Government Servants are either protected under Sections 197 Cr.P.C. or u/s 129 of the Act. Whether the petitioners passed order in good faith or not is a matter on record. Accordingly, the order dated 9.4.2002 passed by the learned S.D.J.M. was quashed and the case was remitted back to the Court below with direction that the learned S.D.J.M. shall dispose of the petition filed u/s 204 of Cr.P.C. afresh after hearing the parties. Accordingly the trial Court heard the parties afresh and rejected the petition u/s 204 of Cr.P.C. on the selfsame ground vide order dated 18.10.2003.

Again being dissatisfied with the said order the petitioners have preferred the present CRLMC.

As discussed earlier, after taking initial statement of the opp.party the trial Court thought if fit to postpone the issue of process against the petitioners and to hold an enquiry. So she ordered for conducting enquiry u/s 202 of Cr.P.C. On the prayer of the opp.party and even suo motu the learned S.D.J.M. adjourned the case from time to time and ultimately when neither of the parties appeared before the Court, she adjourned the case for orders and took cognizance of the offence under Sub-sections 12 and 13 of the Act and ordered to issue process against the petitioners. After recording the initial statement of the opp.party when the trial Court did not prefer to take cognizance and issue process against the petitioners and ordered for enquiry, she ought not to have reviewed her own order and taken cognizance and issued process.

Furthermore, as provided u/s 130 of the Act, the Registrar, Auditor General and any officer exercising the powers of the Registrar or Auditor General shall be deemed to be public servant''s within the meaning of Section 21 of I.P.C. Admittedly, petitioner No. 1 was the Registrar, petitioner No. 2 Deputy Registrar and petitioners No. 3 was Asst. Registrar during the relevant time. As defined u/s 2(i) of the Act:

Registrar" means a person appointed to perform the functions of the Registrar of Co-operative Societies under this Act, and includes any person appointed to assist the Registrar when exercising all or any of the powers of the Registrar.

Pursuant to Section 3 of the Act read with Rule-5 of Orissa Co-operative Societies Rules, the petitioner Nos. 2 and 3 were appointed to assist the Registrar (petitioner Nb.1). So all the petitioners are public servant and as such the benefit of the provision u/s 197 of Cr.P.C. would be available to them. Only because they are public servants they can not be immuned from criminal prosecution without prior sanction u/s 197 of Cr.P.C. To avail the protection under the said provision there must be a reasonable nexus between the act complained of and the duty of the petitioners as public servants. Here act would include omission.

Now the question is whether there is a reasonable nexus between the act/omission complained of and the duty of the petitioners as public servants. As per the case of the opposite party, petitioner No. 1 authorized petitioner No. 2 to appoint Election Officer to conduct election of the members and President of the Committee of the Management of all the Co-operative Societies under Keonjhar district, in due date. Accordingly, vide order No. 300 dated 31.1.2001 petitioner No. 2 appointed H.N. Mishra, Inspector of Co-operative Societies, office of ARCS, Keonjhar as the Election Officer of Palasapanga LAMPCS, under the petitioner No. 3. Thereafter, no action was taken. Learned Counsel for the petitioners submitted that petitioner No. 3 vide letter dated 7.5.2001 wrote to the Director Printing, Stationery and Publication, Orissa, Guttack for publication of the names of the officers appointed as Election Officers, in the next issue of Orissa Gazette, but he did not publish the same. Furthermore, as found from Annexure-7, His Excellency the Governor of Orissa promulgated ordinance No. 1 of 2001, published on 3rd July 2001, pursuant to which the bye-laws of the societies were to be amended.

So according to learned Counsel for the petitioners the election of members and President of the Committee of Management of the co-operative societies could not be conducted in time. Even if this plea is not taken into consideration at this stage, still then, it is amply clear that there is reasonable nexus between the alleged omission in conducting the election and the duty of the petitioners as public servant. So, the learned S.D.J.M. ought not to have taken cognizance against the petitioners and issued process against them without prior sanction of the Government u/s 197 of Cr.P.C. The finding of the trial Court that the provision u/s 197 of Cr.P.C. and Section 129 of the Act being similar, the petitioners can not avail the protection u/s 197 of Cr.P.C. is not correct, since there is no provision of prior sanction u/s 129 of the Act.

Therefore, the CRLMC is allowed and the impugned orders dated 15.9.2001 and 18.10.2003 stand quashed.