Punjab-Haryana High Court
Balbir Singh vs State Of Punjab And Other S on 16 July, 2012
Author: Sabina
Bench: Sabina
Crl.Misc. M No. 779 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Misc. M No. 779 of 2010 (O&M)
Date of Decision: July 16, 2012
Balbir Singh ...........Petitioner
Versus
State of Punjab and other s ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Yogesh Goel,Advocate for the petitioner.
Mr.Amandeep Singh Rai, Deputy Advocate
General, Punjab.
Mr.Ankur Mittal,Advocate for respondent No.3
Sabina, J.
Petitioner has preferred this petition under Section 482 of the Code Criminal Procedure, 1973 seeking quashing of the FIR No. 11 dated 17.3.2009 registered under Section 7, 13(2) of the Prevention of Corruption Act, 1988 and subsequently added Sections 420/467/468/471/201/120-B of the Indian Penal Code (`IPC' for short) at Police Station Vigilance Bureau, Ludhiana.
After hearing the learned counsel for the parties, I am Crl.Misc. M No. 779 of 2010 (O&M) 2 of the opinion that the instant petition deserves dismissal.
The question involved in the present case is `as to whether the petitioner can be termed as a Public Servant'.
A 'public servant' as defined in Sub-clauses (iii), (viii) and (ix) of Clause (c ) of Section 2 of the Prevention of Corruption Act, 1988 ('the Act' for short) reads as follows:-
"2. Definition- In this Act, unless the context otherwise requires,-
(a) xx xx xx
(b) xx xx xx ( c) 'public servant" means,-
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956)
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix)any person who is the President, Secretary or other office bearer of a registered cooperative society, engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Crl.Misc. M No. 779 of 2010 (O&M) 3 Companies Act, 1956 (1 of 1956).
Explanation 1 : Persons falling under any of the above sub clauses are 'public servants', whether appointed by the Government or not.
Explanation 2 : Wherever the words 'public servants" occur, they shall be understood of every person who is in actual possession of the situation of a 'public servant', whatever legal defect there may be in his right to hold that situation".
Learned counsel for the petitioner has submitted that only those office bearers of the Co-operative Society were to be treated as Public Servant where the Co-operative Society is receiving any financial aid from the Central Government or State Government or from any Corporation established by or under a Central Provincial or State Act or any authority or body owned or controlled by or aided by the Government or Government Company as defined under Section 617 of the Companies Act, 1956.
Respondent-State in its reply in para 3 has specifically stated that the Machiwara Co-operative Agriculture Service Society Ltd. has been in receipt of financial assistance/aid from the Central Government, Central Co-operative Bank and NABARD.
The question `as to whether the petitioner is a public servant or not ' is no longer res integra.
It has been held by the Apex Court in Govt. of Andhra Pradesh v. P.Venku Reddy 2002(4) RCR (Criminal) 557, wherein it was held as under:-
Crl.Misc. M No. 779 of 2010 (O&M) 4
"8. From the above quoted sub-clause (ix) of Clause (c ) of Section 2 of the 1988 Act, it is evident that in the expansive definition of 'public servant', elected office bearers with President and Secretary of a registered cooperative society which is engaged in trade amongst others in 'banking' and 'receiving or having received any financial aid' from the Central or State Government, are included although such elected office-bearers are not servants in employment of the Co- operative Societies. But employees or servants of a Co- operative Society which is controlled or aided by the Government, are covered by sub-clause (iii) of Clause (c ) of Section 2 of the 1988 Act. Merely because such employees of Cooperative Societies are not covered by sub-clause (ix) along with holders of elective offices, High Court ought not have overlooked that the respondent, who is admittedly an employee of a co-operative bank which is controlled and aided by the Government, is covered within the comprehensive definition of 'public servant' as contained in sub-clause (iii) of Clause (c ) of Section 2 of the 1988 Act. It is not disputed that the respondent/accused is in service of a co-operative Central Bank which is an 'authority or body'controlled and aided by the Government.
12.In construing definition of "public servant" in Clause (c ) of section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of legislature. In that view Statement of Objects and Reasons Crl.Misc. M No. 779 of 2010 (O&M) 5 contained in the Bill leading to the passing of the Act can be taken of assistance of. It gives the background in which the legislation was enacted. The present Act, with much wider definition of "public servant", was brought in force to purify public administration. when the legislature has used such comprehensive definition of 'public servant' to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by construction which would be against the spirit of the statute. The definition of 'public servant', therefore, deserves a wide construction. See State of Madhya Pradesh v.Shri Ram Singh, 2000(1) RCR(Crl.)784(SC AIR 2000 SC 873
13.As a matter of fact, we find that the point arising before us on the definition of 'public servant' that it does include employee of a banking co-operative society which is 'controlled or aided by the Government' is clearly covered against the respondent/accused by the judgment in the case of state of Maharashtra and another v. Prabhakarrao and another, 2002(3) RCR (crl.) 615 (SC).
9.In Criminal Revision No.1369 of 2001, decided by this Court on 21.11.2001, titled as Dharam Singh v. State of Haryana, petitioner Dharam Singh was General Manager of Sonepat Central Cooperative Bank, Sonepat and was caught red handed while accepting bribe from complainant Bharat Singh. The question arose as to whether the petitioner was a public Crl.Misc. M No. 779 of 2010 (O&M) 6 servant within the meaning of the Act as the Special Judge, Sonepat had framed charges against petitioner Dharam Singh under the Act. While dismissing the petition, it was held as under:-
"The sole question to be considered is whether the petitioner is covered under the definition of public servant or not. It is no doubt true that in Suraj Mal's case (supra) and in Laljit Rajshi Shah's (supra) case the accused were found to be not public servants. The present case appears to be distinguishable because the employees of a cooperative society are required to perform public duties, therefore, a General Manager of the Cooperative Society would certainly be a public servant under Section 2 (c )(viii) of the Prevention of Corruption Act. The nature of duties performed by accused in Laljit Rajshi Shah's case have not been enumerated but it seems that they were members and Chairman of the Managing Committees of the Society. It was perhaps for this reason the court had no difficulty in excluding them from the definition of public servant. In Suraj Mal's case the accused was a Manager as in the present case. The court sought the aid of Section 21 IPC and as per clause twelfth, a public servant was to be a person who was in the services or pay of a local authority, a corporation established Crl.Misc. M No. 779 of 2010 (O&M) 7 by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act. Cooperative Societies did not create a corporation but cooperative societies were a body corporate. An employee of a body corporate, like a cooperative society, did not fall within the definition of Section 21 IPC. It seems that the attention of the court was not drawn towards the provisions of the Prevention of Corruption Act itself which quite specifically refer to the concept of public duty in Section 2 (b) and clearly defines different categories of public servants in Section 2 (c ). Definition of public servant in Section 2 (c ) (iii) is similar to the definition given in Section 21 clause twelfth of IPC. But it is the definition of public servant in 2 (c ) (viii) which seems to be applicable to be present case. The petitioner was a General Manager who held office by virtue of which he was required to perform public duties, meaning thereby, that he was required to perform duties for the discharge of which the State, the public or the community at large has an interest. General Mangers of Cooperative Societies certainly perform public duties in which the public and the community have a huge interest. Therefore, a General Manager is covered by the definition of public servant in Crl.Misc. M No. 779 of 2010 (O&M) 8 Section 2 (c ) (viii). Even office bearers of a Cooperative Society seem to be covered by the definition of public servant in Section 2 (c ) (ix). According to the learned counsel the petitioner was appointed as a Clerk in the Cooperative Bank, Karnal in 1961, promoted as Junior Accountant in 1971, promoted as Senior Accountant in 1974. In 1983 he was promoted as Assistant Manager by the Haryana State Cooperative Apex Bank Ltd. And thereafter he became an employee of the HARCO Bank which was registered as Society under the Haryana Cooperative Societies Act. In 1996 he was promoted as Manager and posted as General Manager in Sonepat Central Cooperative Bank, Sonepat in June 2000. When the occurrence took place he was working as General Manager. He was performing public duty as a Manager of a Cooperative Bank engaged in banking activities in which the public had an interest. There can be no hesitation in holding that the petitioner was a public servant. The rulings in Laljit Rajshi Shah's case and Suraj Mal's case are clearly distinguishable."
10. In Purshotam Dass v. State of Haryana 2002 (4) AICLR 712, this Court held that the officers of the Primary Land Mortgage Bank would be covered under sub clause (ix) inasmuch as the Primary Land Mortgage Bank is a society registered under the Haryana Cooperative Societies Act, and deals in banking. Therefore, the judgments cited by the learned Crl.Misc. M No. 779 of 2010 (O&M) 9 counsel for the petitioner are clearly distinguishable and are not applicable to the case arising after the enactment of the Act. However, the judgment of Suraj Mal's case (Supra) deals with a case after the commencement of the Act but the attention of the Court was not drawn towards the definition of ' public servant' contained in Section 2 (c ) of the Act. Therefore, the said judgments in the absence of reference of statutory provisions cannot be considered as a binding precedent and therefore, I am of the opinion that the petitioner, who is an office bearer of the registered cooperative society engaged in the banking is covered under the definition of 'public servant' contained in Section 2 (c ) (ix) of the Act.
11.As per the Societies Act, cooperative society is required to be registered under the Act. Thus the Bank in question is under the control of the Registrar, Cooperative Societies. The legal position that emerges after going through the above cited decisions of the Apex Court as well as this Court is that an employee of a Cooperative bank, which is an authority or body controlled and aided by the government, is a public servant. In construing the definition of 'public servant' under the Act, the Court is required to adopt an approach which would give effect to the intention of the legislature. The intention of the legislature is to achieve the purpose of punishing and curbing growing corruption in Government and semi Government departments and hence, it would not be appropriate to limit the contents of the definition clause by construction which would be against the Crl.Misc. M No. 779 of 2010 (O&M) 10 spirit of the statute. The definition of 'public servant' deserves a wider construction and sub clause (ix) of Clause (c ) of Section 2 of the Act is expansive definition of 'public servant'. An employee of the cooperative bank is covered within the comprehensive definition of 'public servant' as contained in sub clause (iii) of Clause (c ) of Section 2 of the Act. The Bank is having public dealings and is, thus, discharging a public function. The Bank has its duties towards the public. The public at large looks forward to the Bank for the purpose of help required for agriculture and industry etc. The public interest is, thus, involved in the activities of the Bank. Public had reposed faith in the petitioner, who was discharging his duties as Managing Director of the Bank. The public faith has been betrayed by the petitioner by mis-utilising/ mis-appropriating the funds of the Bank. The petitioner also received illegal gratification for employment of various persons to different posts in the Bank. Thus, the petitioner was discharging public duty. Hence, the petitioner who had been performing the duties of Managing Director of the bank is covered by the definition of 'public servant' within the meaning of the provisions of the Act." As per the Punjab Co-operative Societies Act, 1961, the Co- operative Society is required to be registered under the Act. Thus, the Co-operative Society in question is under the control of Registrar Co-operative Societies. Hence, an employee of a Co-operative Society which is an authority or a body controlled and aided by the Government is a public servant. The intention of the legislature is to Crl.Misc. M No. 779 of 2010 (O&M) 11 achieve the purpose of punishing and curbing growing corruption in the Government and semi Government departments and hence, it would not be appropriate to limit the contents of the definition clause by construction which would be against the spirit of the Statue. The Society has its duties towards the public and hence, public interest is involved in the activities of the Society. A raid was oraganized on the statement made by the complainant before the Vigilance authority that the petitioner was demanding bribe from him. Petitioner was caught red handed and tainted currency notes were recovered from the Almirah in his Office. When the hands of the petitioner were dipped in a solution of phenolphthalein powder, the colour of solution turned pink. Thus, the petitioner had received illegal gratification while performing public duty. In these circumstances, it would not be appropriate to scuttle the criminal proceedings at the very threshold.
Accordingly, this petition is dismissed.
( Sabina ) Judge July 16, 2012 arya