Sri. Suryanarayan Tripathy vs Ch. Kamalanatham and Others

K.P. Mohapatra, J.—This revision is directed against the order passed by the learned Additional Sessions Judge, Jeypore, setting aside an order passed by the learned Sub-Divisional Judicial Magistrate, Nawarangpur, taking cognizance of an offence u/s 166, I.P.C. against the opposite parties.

The Petitioner is a practising advocate of Nawarangpur. He filed a complaint petition before the learned Sub-Divisional Judicial Magistrate alleging the following facts. He applied for membership of the Large Sized Multi Purpose Co-operative Society of Nawarangpur on 2-3-1985 by complying with all formalities. After expiry of thirty days, be did not receive any communication rejecting his application. So, by operation of the provisions of Section 16(2) of the Orissa Co-operative Societies Act (hereinafter referred to, as the ''Act''), he was deemed to have been a member of the said Society with effect from the date following the date of expiration of the said period of thirty days. Some time thereafter the Society issued a programme of election of the Board of Directors which was to take place on 31-5-1985. In the said programme, all dates for scrutiny, filing of objections, hearing of objections, publication of the final list of voters, filing of the nominations and scrutiny thereof, etc., were specified. The Petitioner found that his name was absent in the preliminary voters list published on 8-5-1985. Therefore he filed an objection dated 13-5-1985 as per the date in the programme before the Election Officer who was a Sub-Assistant Registrar of Co-operative Societies. The Election Officer after due consideration of his objection directed the Managing Director of the Society to include the Petitioner''s name in the voters list. On 14-5-1985 the Petitioner went to verify if his name was included in the final list or not, but found that his name had not been included. He came to know that the Election Officer received a protest petition at 8.30 p. m. on 13-5-1985 and at 10.00 p.m. behind the back of the Petitioner and without giving any opportunity to him modified his earlier order by virtue of which the Petitioner''s name was directed to be excluded from the voters list. The Petitioner felt aggrieved and thought that the opposite parties misconducted themselves to cause injury to him and so he filed the complaint-petition u/s 166, I.P.C.

After perusal of the facts stated in the complaint-petition and the accompanying documents, but without making an enquiry u/s 202 Code of Criminal Procedure, the learned Sub-Divisional Judicial Magistrate took cognizance of an offence u/s 166, I.P.C. against the Election Officer and u/s 166 read with Section 109, I.P.C. against the Managing Director and the President of the Society, all of whom are opposite parties.. The opposite parties moved the learned Additional Sessions Judge for setting aside the order of cognizance. After hearing, the learned Judge found that there was no sanction for prosecution of the opposite parties u/s 116(2) of the Act and so he set aside the order of cognizance.

On the contentions raised by Mr. B.B. Ratho, learned Counsel appearing for the Petitioner, and Mr. P.V. Ramdas, learned Counsel appearing for the opposite parties, the following points arise for consideration:

(1) Whether the order taking cognizance of offence is interlocutory in nature so as not to be interfered with by the Court of revision;

(2) Whether sanction for prosecution u/s 116(2) of the Act has a condition precedent for taking cognizance of offence against the opposite parties u/s 166, I.P.C.; and

(3) Whether the opposite parties are Public servants who can be prosecuted for an offence u/s 166, I.P.C.:

The first point is no longer res integra. A Division Bench of this Court (of which I was a member) in the case reported in Ramesh Samal and Others Vs. Chabi Mandal and Another, , examined the point and held that an order taking cognizance is not an Interlocutory one, because it decides a serious question as to the rights of the persons to be put on trial and if the order is reversed, the prosecution against the persons would come to an end. Hence Section 397(2) Code of Criminal Procedure. cannot be a bar for entertaining a revision by the High Court or the Court of Session. In view of the aforesaid principle laid down by this Court, any party aggrieved by an order of cognizance in a criminal case can move the Court of revision for which Section 397(2) shall not be a bar.

According to Section 116(2) of the Act which deals with cognizance of offence no prosecution for an offence under the Act shall be instituted without the previous sanction of the Registrar of Co-operative Societies. The offence alleged against the opposite parties is one u/s 166, I.P.C. and not one under the Act. Therefore. Section 116(2) is not applicable to this case and prior sanction of the Registrar was not a precondition for launching the prosecution. Section 197, Code of Criminal Procedure has also no application, since it is not known from the fact of the case if any of the opposite parties is removable from service by the State Government. The learned Additional Sessions Judge committed an error of law in holding that in the absence of sanction u/s 116(2) of the Act and for that matter u/s 197, Code of Criminal Procedure, the prosecution of the opposite parties was bad.

The most important point for consideration is whether the opposite patties are public servants, because according to Section 166, I.P.C., only public servants can be proceeded against and punished according to law. If they are not public servants, there could be no prosecution under the aforesaid Section. In this connection it is necessary to refer to S.S. Dhanoa Vs. Municipal Corporation, Delhi and Others, , in which it was held that officers of the Co-operative Societies are not public servants. A Government employee working on deputation, in a Co-operative Society can, by no stretch of imagination, be said to be employed in collection with the affairs of the Union within the meaning of Section 197, Code of Criminal Procedure (Also see (1989) 31 O.J.D. 359 C ,Udayanath Barik and 15 Ors. v. State). There is nothing on record to show that the opposite parties are public servants. On the other hand, they are stated to be office bearers of the Large Sized Multi Purpose Co-operative Society of Nawarangpur. As such, they are not to be treated as public servants.

Mr. Ratho referred to Section 130 of the Act and urged that any person exercising the powers of the Registrar of Cooperative Societies shall be deemed to be a public servant within the meaning of 21, I.P.C. According to the definition contained in Section 2(i) of the Act, ''Registrar'' means a person appointed to perform the functions of the Registrar of Co-operative Societies under the Act and includes any person appointed to assist the Registrar when exercising all or any of the powers of the Registrar according to Section 28-A(2) of the Act, the Registrar is authorised, by general or special order, to appoint one or more Election Officers for holding such election, and different Election Officers may be appointed for different classes of Societies or for different areas. From these provisions Mr. Ratho concluded that at least the Election Officer was a public servant. There is nothing, however, on record to show that one of the opposite parties was appointed as the Election Officer by the Registrar of Co-operative Societies so as to be deemed as a public servant while acting as such. Therefore, the Contention seems to be untenable.

After considering the points raised, lam of the view that it would be an abuse of the process of the Court if cognizance of such an offence is taken against the opposite parties. If the Petitioner was aggrieved by any act of any of the opposite parties, he could move the higher forum according to the provisions of law, if any.

For the reasons stated above, the Criminal Revision is dismissed.

Revision dismissed.