Rohan Singh Sisodia vs Nathi Lal and Others

P.N. Bakshi, J.—These two connected applications u/s 482, Code of Criminal Procedure are being disposed of by this common order. Shri Rohan Singh Sisodia is the Secretary, Kshetriya Sahkari Samiti Aung district Mainpuri where he was transferred in 1976 from Hathras district Aligarh. It appears that several members of the Kshetriya Sahkari Samiti, Hathras filed criminal compliants before the Munsif Magistrate, Hathras against the Applicant. These complaints have been filed as Annexures in both these petitions. The allegations, inter-alia, in the complaints were that the Applicant had made certain false entries with regard to advances alleged to have been made to the members of the Society and had misappropriated the amounts and as such he was liable for the offences under sections 420, 477 and 407 IPC.

In these two applications u/s 483 Code of Criminal Procedure the sole point which has been argued is that the prosecution of the Applicant is barred by Section 197 Code of Criminal Procedure because no sanction for prosecution has been obtained prior to the filing of the complaint. It is argued that the Applicant is a public servant and as such no prosecution could be lodged against him without such sanction.

A preliminary objection was taken by the counsel for the opposite party that in each of these two petitions the Applicant has combined a number of cases together. As a matter of fact each compliant case filed by the Members of the Society is a separate case and, therefore, separate application should have been filed for each case. In reply to this preliminary objection counsel for the Applicant has argued that each of these applications u/s 482 Code of Criminal Procedure may be considered for only one case each, and for the rest, the Applicant should be permitted to file separate applications. The preliminary objection appears to be well founded but in view of what has been submitted by the Applicant''s counsel I would have granted him permission to separate these cases. It is, however, not necessary for me to decide this preliminary objection, in view of the opinion on the question of law which I shall express here. Section 197 Code of Criminal Procedure read as follows:- (Section 197 Code of Criminal Procedure quoted--Editor).

In order that this section may be made applicable it is necessary to prove two ingredients namely:

That the Applicant is a public servant.

that the act complained of was committed in the discharge of his official duties.

Section 124 of the U.P. Cooperative Societies Act enumerates certain categories of persons who shall be deemed to be public servant within the meaning of Section 21 of the IPO. It runs as follows:- (Section 124 of U.P. Cooperative Societies Act quoted--Editor).

This section is not exhaustive. In other words, apart from the officers mentioned therein the U.P. Cooperative Societies Act, 1965 is also applicable to public servants as defined in Section 21 of the IPC. Counsel for the Applicant has tried to bring his case within the definition of public servant as mentioned in Section 21(tenth) clause of the IPC which runs as follows:- (Section 21, IPC quoted -Editor).

It is submitted that the Applicant who is the Secretary of Kshetriya Sahkari Samiti would be covered by this definition. POT this purpose reliance is also placed upon Section 31 Sub-section (2)(a) and (c) of the U.P. Cooperative Societies Act which lays down the functions of the Secretary of the Society. Section 31(2)(a)(c) runs as follows:- (Section 31(2)(a)(c) quoted--Editor).

I have carefully considered the above submission. In my opinion the duties of Secretary as laid down in Section 31(2)(a) & (c) are not such as may be covered by the definition of a public servant as laid down in Section 21(tenth) of the IPC. Section 21(tenth) clause refers an officer, whose duties it is to expend any property, to make any survey or assessment, or to levy any rate or tax for common purpose of any village etc. or to authenticate any document for ascertaining of the rights of the people of the village. These are not the duties which are contemplated by Section 31(2)(a) and (c). As a matter of fact if we read the whole of Section 31(2)(a)(b)(c)(d)(e)(f) and (g) of the U.P. Coop. Soc. Act which lays down all the duties which the secretary of the society has to discharge we will find that they are totally different from the duties which a public servant contemplated u/s 21(tenth) IPC discharges. In my opinion, therefore, the provisions of the Section 31(2)(a) and (c) of the U.P. Cooperative Societies Act are not sufficient to hold that the Applicant is a public servant within the meaning of Section 21 of the IPO. In this connection I would also like to refer to two cases of other Courts which throw some light on this question. In Ramendra Nath Bose and Others Vs. Birendra Nath Bose and Others, a Division Bench of that Court has made the following observations:

The trial Court has found that the Respondent while acting as the Secretary of the Society, was a public servant, as mentioned in the charge. It is doubtful, however, whether an office bearer of a Cooperative Society is a public servant, while discharging his duties as such.

In Shanti Ranjan Bhattacharya Vs. The State, a Division Bench has more specifically considered this question whether the Secretary of a Cooperative Society is a public servant and in this connection the following observations have been made:

Secretary of a cooperative society is not a public servant under tenth clause of Section 21.

Before the Calcutta Court the observations of Patna High Court referred to above were also considered and the following observations have been made in connection therewith:

It was not necessary for the Patna High Court to decide this question in that case but from what we have said we have no doubt that the secretary of a Cooperative Society is not a public servant within the meaning of Section 21 of the IPC.

In the Calcutta case, which has dealt very thoroughly with this question in para 9 of the judgment, it has further been observed as follows:

Thirdly we may also consider whether the Petitioner accused come under the tenth clause as it is clear that the other clauses of Section 21 are not attracted to the instant case. Even with regard to the tenth clause there is some difficulty, namely the Petitioner is working only in the interest and for the benefit of a particular society and not for the common secular interest of any particular village or town or district. This view was also taken in several cases of which mention may be made to the case of AIR 1958 Mys. 82, where it was held that the President of a Cooperative Society is not a public servant under the tenth clause of Section 21 of the IPO. In my view, therefore, the Petitioner cannot be held to be a public servant....

It is not necessary for me to multiply cases of the Bombay and Madras High Courts. In support of this view I am in respectful agreement with the reasons and the views which have been expressed by the Calcutta court in holding that the Applicant who is the Secretary of Kshetriya Sahkari Samiti is not a public servant and as such Section 197 Code of Criminal Procedure would not apply to this case.

Two other cases of Supreme Court have been referred by the Learned Counsel for the Applicant. They are Baijnath Gupta and Others Vs. The State of Madhya Pradesh, and B. Saha and Others Vs. M.S. Kochar, . Both these cases dealt with interpretation of the words ''discharge of his official duties''. It is not necessary for me to deal with both these cases since I have held above that the Applicant is not a public servant. As such the second question of the Act having been done in the discharge of his official duty of the Applicant does not arise. Section 197 Code of Criminal Procedure is thus not applicable to him.

For the reasons given above, both these applications have no force and are hereby dismissed. The interim order passed by this Court staying proceedings in the court below are hereby vacated.