Allahabad High Court
Devendra Singh Parihar vs State Of U P And 2 Others on 8 October, 2020
Bench: Manoj Misra, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 48 REPORTABLE Case :- CRIMINAL MISC. WRIT PETITION No. - 10492 of 2020 Petitioner :- Devendra Singh Parihar Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Ratnesh Kumar Singh Counsel for Respondent :- G.A Hon'ble Manoj Misra,J.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the petitioner; learned A.G.A. for respondents no.1 and 2; and perused the record.
2. The instant petition seeks quashing of the first information report (for short FIR) dated 19.06.2020 registered as Case Crime No.120 of 2020, under Sections 409 I.P.C., at Police Station- Baberu, District- Banda.
3. The allegation in the impugned FIR is that while the petitioner was working as Secretary of Kisan Sewa Sahkari Samiti Limited, Baberu (for short the society) there had been defalcation of 10.485 MT of urea, valued at Rs.88,140, and 20 bags of D.A.P., valued at Rs.23,000, the consideration of which was not deposited in the bank account of the society. The allegation is founded on inspection/ inquiry report which indicated that though the said stock of fertiliser was reflected by entries made in the stock register but the stock was not available.
4. It appears from the pleadings that, on the said ground, the petitioner was also placed under suspension and, later, dismissed from service.
5. The case of the petitioner is that the petitioner had been a Cadre Secretary of a Primary Agricultural Credit Co-operative Society, which though, as part of centralized service, is governed by the provisions of U.P. Primary Agricultural Credit Cooperative Centralised Service Rules, 1976 framed under section 122-A of the U.P. Co-operative Societies Act, 1965 (for short Act, 1965) but salary is paid through business margin of the society and not by the State. As such, the petitioner is not a pubic servant. And since the petitioner is neither banker nor merchant nor agent of the society, no offence punishable under Section 409 I.P.C. is made out. It is also the case of the petitioner that if there is any defalcation, as alleged, there could be recovery of the amount defalcated, if any, under the provisions of the Act, 1965, such as section 68 of the Act, 1965, and, in case of any dispute, there could be a reference for arbitration under section 70 of the Act, 1965. Moreover, if any offence is committed by an employee of the society then there could be prosecution under section 103 of the Act, 1965, for which a special procedure is provided under section 105 of the Act, 1965.
6. In a nutshell, the submission of the learned counsel for the petitioner is that the Act, 1965 is a complete and self-contained code which, by necessary implication, ousts the applicability of Indian Penal Code (for short the Penal Code or IPC). And, in any view of the matter, an offence punishable under section 409 IPC is not made out. Hence, the FIR is liable to be quashed. In support of the above submission, the learned counsel for the petitioner placed reliance on a decision of the Apex Court in State of Maharashtra Vs. Laljit Rajshi Shah and others: AIR 2000 SC 937 : (2000) 2 SCC 699, wherein, with reference to the Maharashtra Co-operative Housing Societies Act, the Apex Court affirmed the view of the Bombay High Court that the Chairman and members of the Management Committee of a Co-operative Society in Maharashtra are not public servants within the meaning of Section 21 of the Penal Code and therefore are not liable to be prosecuted for an offence punishable under section 409 of the Penal Code or under the provisions of the Prevention of Corruption Act.
7. Per Contra, the learned AGA submitted as follows: that there is nothing in the Act, 1965 which may expressly or impliedly bar the applicability of the Penal Code; that even assuming that there could be recovery of the defalcated amount from the petitioner as per the provisions of the Act, 1965 but that would not absolve the petitioner of his liability to be punished for commission of an offence under the Penal Code, if found guilty; that section 103 of the Act, 1965 though enumerates various offences but they do not specifically deal with an offence of the nature of criminal breach of trust as defined by section 405 of the Penal Code; that section 105 of the Act, 1965 provides for a special procedure for offences punishable under that Act, and not for offences punishable under the Penal Code for which the Code of Criminal Procedure, 1973 (for short the Code or CrPC) would continue to apply; and even if it is assumed that the petitioner is neither a public servant nor banker, merchant, factor, attorney or agent, he being the chief executive officer of the society and entrusted with the possession and control of the goods is liable for an offence of criminal breach of trust, which is a cognizable and non-bailable offence. Hence, the prayer to quash the impugned FIR is liable to be rejected. In respect of the decision cited by the learned counsel for the petitioner, the learned AGA pointed out that the accused in that case were being proceeded under Sections 120-B, 409, 420, 467, 471 and 477-A I.P.C., Sections 7 and 9 of the E.C. Act and Section 5(1)(c) and Section 5 (1)(d) read with Section 5(2) of the Prevention of Corruption Act, after taking of cognizance by the Special Judge. The High Court had held that members of Managing Committee and the Chairman of the Co-operative Societies in Maharashtra are not public servants, therefore they cannot be prosecuted under Section 409 I.P.C. and Sections 5(1)(c) and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, though they can be prosecuted for other offences for which cognizance had been taken. The Apex Court upheld the decision of the Bombay High Court and dismissed the appeal. It is thus submitted by him that the decision of the Apex Court cannot be read so as to infer that for no offence punishable under the Penal Code, a Secretary of a Co-operative Society in the State of U.P. can be prosecuted.
8. Before we proceed to deal with the rival submissions, it would be apposite to remind ourselves of the settled legal position which is that while the matter is under investigation, ordinarily, an FIR is not to be quashed if it discloses commission of a cognizable offence unless there is a legal bar with regard to its institution /lodgement in the manner in which it has been lodged or instituted. Once a cognizable offence is reported under the Code, the police or the investigating agency, as the case may be, derives power to investigate. As to what offence, punishable under which provision, has been committed, and by which accused, is to be determined, first, by the police on the basis of material collected by it, from time to time, during the course of investigation, and finally, while submitting its report under section 173(2) CrPC. Where after, the court at the time of taking cognizance, on the basis of material available in the police report, may come to its own conclusion with regard to the offence, prima facie, found committed, and proceed accordingly. Thereafter, before framing of charge, again, the court derives power to discharge the accused from all or certain charges and frame charge accordingly. During the course of trial, on the basis of evidence available, again charge can be altered. Thus, at the stage of addressing the prayer to quash the FIR the court should ordinarily decline the prayer if the allegations in the FIR, if taken on their face value, disclose commission of a cognizable offence and there is no legal bar to its lodgement or institution.
9. Coming to the issues raised in the instant petition, there is no serious challenge as to the disclosure of an offence of criminal breach of trust by the impugned FIR. The challenge is to: (a) the offence being punishable under section 409 IPC, inasmuch as, according to the petitioner, neither he is a public servant, as defined by section 21 IPC, nor falls in any of the other specified categories mentioned in section 409 IPC therefore offence punishable under section 409 IPC is not made out; and (b) the registration of the FIR for an offence punishable under the Penal Code, inasmuch as, according to the petitioner, the FIR for an offence punishable under the Penal Code is impliedly barred as the Act, 1965 is a self-contained code which not only provides for recovery but also for punishment of offences specified in the Act, 1965, if committed by an employee, member, etc of a co-operative society and for prosecution of which a specific procedure is provided therein.
10. The first limb of the challenge, that an offence under section 409 IPC is not made out because the petitioner is neither a public servant nor falls in any of the other categories specified therein, should not hold us for long inasmuch as even assuming that the petitioner is not a public servant within the meaning of section 21 of the Penal Code he can still be investigated and held liable for an offence of criminal breach of trust punishable under section 406 IPC, which is a cognizable offence. Further, if there is a master and servant relationship between the petitioner and the society or its management committee, and the petitioner is found entrusted with goods as a servant thereof, defalcation of the goods may amount to an offence punishable under section 408 IPC. Likewise, if the petitioner in his capacity as a secretary of the society acts as an agent of the society and is entrusted with goods in such capacity and commits criminal beach of trust, he may be held liable for an offence punishable under section 409 IPC. In that context, regard be had to the provisions of section 31(2) of the Act, 1965 as per which the secretary of a co-operative society is the chief executive officer of the society and subject to control and supervision of the chairman and the committee of management as may be provided by the rules or the bye-laws of the society and shall--(a) be responsible for the sound management of the business of the society and its efficient administration; (b) carry on the authorised and normal business of the society; (c) subject to the provisions of the bye-laws of the society, operate its accounts and, except where the society has a cashier or treasurer, handle and keep in his custody its cash balances; (d) sign and authenticate all documents for and on behalf of the society; (e) be responsible for the proper maintenance of various books and records of the society and for the correct preparation and timely submission of periodical statements and returns in accordance with the Act, 1965, the rules, the bye-laws and the instructions of the Registrar or the State Government; (f) convene meetings of the general body, the Committee of Management and any sub-committee constituted by the Committee of Management and maintain proper records of such meetings; and (g) perform such other duties and exercise such other powers as may be imposed or conferred on him under the rules or the bye-laws of the society. Whether this relationship between the society and the secretary partakes the character of a relationship as between a principal and his agent would depend on various factual aspects including the bye-laws of the society. Hence, expressing any concrete opinion as to whether an offence punishable under section 409 IPC is made out or not, at this stage, would not be appropriate, particularly, when the matter is under investigation. Similarly, the issue whether the petitioner can be treated as a public servant within the meaning of section 21 of IPC can appropriately be examined with reference to all the material collected during the course of investigation, particularly, keeping in mind the wide encompass of section 21 of the Penal Code. Moreover, the apex court's decision in State of Maharashtra Vs. Laljit Rajshi Shah (supra) is in the context of prosecution of Chairman and Managing Committee Member of a society and their relationship qua the society and that too with reference to the law relating to Maharashtra Cooperative Societies. Thus, without expressing any definite opinion on the plea taken by the petitioner that the Secretary of a Primary Agricultural Credit Co-operative Society is not a public servant and, therefore, not liable under section 409 IPC, we deem it appropriate to leave this issue to be dealt with at the appropriate stage, say at the stage of framing charge, if required. However, what is important is that, in any view of the matter, the allegations made in the impugned FIR, prima facie, disclose commission of an offence of criminal breach of trust, which is a cognizable and non-bailable offence. Hence, merely because the impugned FIR may not disclose commission of an offence punishable under section 409 IPC the same is not liable to be quashed because in any case it discloses commission of a cognizable offence.
11. In respect of the second limb of challenge, that is the impugned FIR is barred by the provisions of the Act, 1965, the argument of the learned counsel for the petitioner is that the Act, 1965 is a self-contained code inasmuch as it not only confers power to recover the dues but also provides for a mechanism to adjudicate upon any such dispute by way of arbitration. In addition thereto, it provides for a complete set of offences that could be committed by a servant/employee or member or office-bearer of a society as also its punishment including the procedure for prosecution of those offences with reference to the mode of its institution and cognizance. Thus, recourse to the general provisions of the Penal Code is impliedly barred.
12. Dealing with the above argument, with regard to existence of mechanism under the Act, 1965 to secure recovery of money, suffice to say that it can never be a bar to drawing criminal proceeding inasmuch as it is trite law that given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant / complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint or FIR disclose a criminal offence or not (vide Vijayander Kumar and others Vs. State of Rajasthan and Another, (2014) 3 SCC 389, para 12). Further, there could be simultaneous civil and criminal proceedings if the facts so justify (vide (2008) 5 SCC 765: P. Swaroopa Rani Vs. M. Hari Narayana @ Hari Babu). Thus, merely because there is a platform available to initiate and culminate recovery proceeding of the defalcated amount, it cannot be said that penal proceedings to punish the wrongdoer for an offence punishable under the Penal Code cannot be initiated.
13. To ascertain whether prosecution of an employee of a cooperative society for an offence of criminal breach of trust is barred by the provisions of the Act, 1965, the relevant provisions of the Act, 1965 need to be noticed and examined. Sections 103 of the Act, 1965 provide for the penal offences; Section 104A provides for compounding; and Section 105 provides for the procedure with regard to institution of the prosecution for those offences. The aforesaid sections are extracted below:
"103. Offences and penalties under the Act. - (1) It shall be an offence under this Act, if-
(i) a committee of management of a co-operative society or a member or an officer thereof fails without reasonable cause to submit any return, report or information required under the provisions of this Act by the Registrar or by a person of a rank not below that specified by the State Government duly authorised by the Registrar in this behalf, or wilfully makes a false return or furnishes false information or fails to maintain proper account; or
(ii) an officer, employee or a member of a co-operative society fraudulently destroys, mutilates, alters, falsified or abets the destruction, mutilation, alteration or falsification or any books, papers, or securities, or makes or abets the making of any false entry in any register, book of account or document belonging to the society; or
(iii) the committee of management of a co-operative society, or an officer in possession of the books, records and property of the society refuses or fails without reasonable cause to hand over the custody of such books, records and property belonging to the society to a person lawfully entitled to receive the same under this Act, the rules or the bye-laws; or
(iv) the committee of management of a co-operative society or an officer fails, without reasonable cause, to establish a Contributory Provident Fund for its employees as required by Section 63; or
(v) any officer of a co-operative society fails to maintain such accounts and registers as may be prescribed; or
(vi) an officer or a member of co-operative society who is in possession of information, books and records, fails, without reasonable cause, to furnish such information or produce books and papers or give assistance to the person appointed by the State Government under sub-section (1) of Section 64, or any person authorised by him to conduct audit, or to the Registrar or a person authorized or appointed by the Registrar under Sections 64, 65, 66, 73 or 123; or
(vii) an employer, without sufficient cause, fails to pay to a co-operative society the amount deducted by him under sub-section (2) of Section 40 within a period of 14 days from the date on which such deduction is made; or
(viii) an officer or member of a co-operative society or any person does any act or omission declared by the rules to be an offence.
(2) (a) Whoever commits an offence under clause (i), (iv), (v), (vii) or (viii) of sub-section (1) shall on conviction be liable to be punished with fine which may extend to two thousand rupees.
Provided that, any person who does an act in relation to elections which has been made an offence under the rules, shall be punishable with imprisonment for such term not exceeding two years, or with fine not exceeding rupees five thousand as may be provided in the rules, or with both.
(b) Whoever commits an offence under clause (ii), clause (iii) or clause (vi) of sub-section (1) shall on conviction be liable to be punished with imprisonment of either description which may extend to two years and shall also be liable to fine which may extend to three thousand rupees;(c) every offence referred to in clause (b) shall be cognizable and bailable.
104A. Compounding of offences. - (1) The Registrar may, either before or after the institution of the prosecution, compound any offence punishable under this Act on realisation of such amount of composition fee as he thinks fit, and where such offence is punishable with fine only then such composition fee shall not exceed the maximum amount of fine fixed for the offence.
(2) Where the offence is so compounded-
(a) before the institution of the prosecution, the offender shall not be liable to prosecution for such offence and shall, if in custody be set at liberty;
(b) after the institution of the prosecution, the composition shall amount to acquittal of the accused
105. Cognizance of offences. - (1) No court, inferior to that of a stipendiary magistrate of the first class shall try any offence under this Act.
(2) No prosecution shall be instituted under this Act without the previous sanction of the Registrar and such sanction shall not be given without affording to the person sought to be prosecuted an opportunity to represent his case."
14. A perusal of the aforesaid provisions would reflect that the offences contemplated under the Act, 1965 including the penalties imposable thereon are described in section 103 of the Act, 1965 and the procedure relating to institution and cognizance of those offences is provided under section 105 of the Act, 1965. Neither we have been taken through nor we could find any provision in the Act, 1965 which may bar or prohibit or exclude the applicability of the Penal Code. Section 103 of the Act, 1965, in fact, carves out a new set of offences. For prosecution of those offences, procedure with regard to their institution and cognizance is provided in section 105 of the Act, 1965. Section 105 prohibits cognizance of the offences punishable under the Act, 1965 save with the previous sanction of the Registrar provided after affording opportunity to the person to be prosecuted to represent his case. Section 105 does not deal with the offences punishable under the Penal Code. We further notice that section 103 of the Act, 1965 does not specifically enlist an offence of the nature of criminal breach of trust as defined in section 405 of the Penal Code.
15. At this stage, it would be useful to refer to the provisions of Section 26 of the General Clauses Act, 1897 (for short G.C. Act) and few decisions of the Apex Court dealing with situations where an act may constitute offences punishable under separate statutes. Section 26 of G.C. Act provides as follows:
"26. Provision as to offences punishable under two or more enactments.-- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
16. In State of Rajasthan v. Hat Singh, (2003) 2 SCC 152, the apex court had the occasion to examine the significance of section 26 of the G.C. Act with reference to the rule against double jeopardy enshrined under Article 20(2) of the Constitution of India and section 300 of the Code. The apex court in paragraphs 8 to 11 of its judgment, as reported, held as follows:
"8. Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. To attract applicability of Article 20(2) there must be a second prosecution and punishment for the same offence for which the accused has been prosecuted and punished previously. A subsequent trial or a prosecution and punishment are not barred if the ingredients of the two offences are distinct.
9. The rule against double jeopardy is stated in the maxim nemo debet bis vexari pro una et eadem causa. It is a significant basic rule of criminal law that no man shall be put in jeopardy twice for one and the same offence. The rule provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure, 1973 and Section 71 of the Penal Code, 1860. Section 26 of the General Clauses Act provides:
"26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
Section 300 CrPC provides, inter alia-
"300. (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof."
Both the provisions employ the expression "same offence".
10. Section 71 IPC provides--
"71. Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences."
11. The leading Indian authority in which the rule against double jeopardy came to be dealt with and interpreted by reference to Article 20(2) of the Constitution is the Constitution Bench decision in Maqbool Hussain v. State of Bombay. If the offences are distinct, there is no question of the rule as to double jeopardy being extended and applied. In State of Bombay v. S.L. Apte the Constitution Bench held that the trial and conviction of the accused under Section 409 IPC did not bar the trial and conviction for an offence under Section 105 of the Insurance Act because the two were distinct offences constituted or made up of different ingredients though the allegations in the two complaints made against the accused may be substantially the same. In Om Parkash Gupta v. State of U.P. and State of M.P. v. Veereshwar Rao Agnihotri it was held that prosecution and conviction or acquittal under Section 409 IPC do not debar the accused being tried on a charge under Section 5(2) of the Prevention of Corruption Act, 1947 because the two offences are not identical in sense, import and content. In Roshan Lal v. State of Punjab the accused had caused disappearance of the evidence of two offences under Sections 330 and 348 IPC and, therefore, he was alleged to have committed two separate offences under Section 201 IPC. It was held that neither Section 71 IPC nor Section 26 of the General Clauses Act came to the rescue of the accused and the accused was liable to be convicted for two sets of offences under Section 201 IPC though it would be appropriate not to pass two separate sentences.
17. In State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772, the principal question that arose for consideration before the apex court was whether the provisions contained in Sections 21, 22 and other sections of the Mines and Minerals (Development and Regulation) Act, 1957 operate as bar against prosecution of a person who has been charged with allegation which constitutes offences under Section 379 and other provisions of the Penal Code, 1860. In other words, the question for consideration was whether the provisions of the Mines and Minerals Act explicitly or impliedly exclude the provisions of the Penal Code when the act of an accused is an offence both under the Penal Code and under the provisions of the Mines and Minerals (Development and Regulation) Act. Deciding the issue, the apex court held as follows:
61. Reading the provisions of the Act minutely and carefully, prima facie we are of the view that there is no complete and absolute bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offence.
62. Sub-section (1-A) of Section 4 of the MMDR Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the Act and the Rules made thereunder. In other words no person will do mining activity without a valid lease or licence. Section 21 is a penal provision according to which if a person contravenes the provisions of sub-section (1-A) of Section 4, he shall be prosecuted and punished in the manner and procedure provided in the Act. Sub-section (6) has been inserted in Section 4 by amendment making the offence cognizable notwithstanding anything contained in the Code of Criminal Procedure, 1973. Section 22 of the Act puts a restriction on the court to take cognizance of any offence punishable under the Act or any Rule made thereunder except upon a complaint made by a person authorised in this behalf. It is very important to note that Section 21 does not begin with a non obstante clause. Instead of the words "notwithstanding anything contained in any law for the time being in force no court shall take cognizance....", the section begins with the words "no court shall take cognizance of any offence." 63 to 68...............................
69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels.
70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.
71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code.
72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the Magistrates concerned to proceed accordingly."
18. In a recent decision of the apex court, rendered in Criminal Appeal No. 1195 of 2018 arising out of Special Leave Petition (Criminal) No. 4475 of 2016, decided on September 20, 2018 (State of Maharashtra v. Sayyed Hassan Sayyed Subhan), (2019) 18 SCC 145 the issue that had arisen for consideration was whether an accused could be prosecuted for an offence punishable under the Penal Code for which a proceeding can also be drawn under the provisions of the Food Safety and Standards Act. By relying upon the decision of the Apex Court in State of Rajasthan v. Hat Singh (supra) and State of Delhi (NCT) v. Sanjay (supra), the apex court, in paragraphs 7 and 8 of the judgment, held as follows:--
"7. There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time, an offence under any other law. The High Court ought to have taken note of Section 26 of the General Clauses Act, 1897 which reads as follows:
"Provisions as to offences punishable under two or more enactments - Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
8. In Hat Singh's case this Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. While considering a dispute about the prosecution of the Respondent therein for offences under the Mines and Minerals (Development and Regulation) Act 1957 and Penal Code, 1860, this Court in State (NCT of Delhi) v. Sanjay held that there is no bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offences. A perusal of the provisions of the FSS Act would make it clear that there is no bar for prosecution under the IPC merely because the provisions in the FSS Act prescribe penalties. We, therefore, set aside the finding of the High Court on the first point."
19. In State of Arunachal Pradesh Vs. Ramchandra Rabidas, (2019) 10 SCC 75, the issue that came for consideration before the Apex Court was whether the directions issued by the Gauhati High Court that road traffic offences shall be dealt with only under the Motor Vehicles Act, 1988 (the M.V. Act) and recourse to the provisions of Penal Code would be unsustainable in law was legally justified. Upon finding that there is no provision under the MV Act separately dealing with offences such as causing death, or grievous hurt, or hurt by a motor vehicle in cases of motor vehicle accidents and that Chapter XIII of the MV Act is silent about the act of rash and negligent driving resulting in death of a person, or hurt, or grievous hurt to persons, in paragraphs 12 to 16 of the judgment, as reported, it was held as under:
"12. The legislative intent of the MV Act, and in particular Chapter XIII of the MV Act, was not to override or supersede the provisions of IPC insofar as convictions of offenders in motor vehicle accidents are concerned. Offences under Chapter XIII of the MV Act cannot abrogate the applicability of the provisions under Sections 297, 304, 304-A, 337 and 338 IPC. The offences do not overlap, and therefore, the maxim of "generalia specialibus non derogant" is inapplicable, and could not have been invoked. The offences prescribed under IPC are independent of the offences prescribed under the MV Act. It cannot be said that prosecution of road traffic/motor vehicle offenders under IPC would offend Section 5 IPC, as held by the High Court, insofar as punishment for offences under the MV Act is concerned.
13. Considering the matter from a different perspective, offences under Chapter XIII of the MV Act are compoundable in nature in view of Section 208(3) of the MV Act, whereas offences under Sections 279, 304 Part II and 304-A IPC are not.
14. If IPC gives way to the MV Act, and the provisions of CrPC succumb to the provisions of the MV Act as held by the High Court, then even cases of culpable homicide not amounting to murder, causing death, or grievous hurt, or simple hurt by rash and negligent driving, would become compoundable. Such an interpretation would have the consequence of letting an offender get away with a fine by pleading guilty, without having to face any prosecution for the offence committed.
15. This Court has time and again emphasised on the need to strictly punish offenders responsible for causing motor vehicle accidents. With rapidly increasing motorisation, India is facing an increasing burden of road traffic injuries and fatalities. The financial loss, emotional and social trauma caused to a family on losing a bread winner, or any other member of the family, or incapacitation of the victim cannot be quantified.
16. The principle of proportionality between the crime and punishment has to be borne in mind. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. [Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608] The maximum imprisonment for a first time offence under Chapter XIII of the MV Act, is up to only six months; whereas the maximum imprisonment for a first time offence under IPC in relation to road traffic offences can go up to 10 years under Section 304 Part II IPC. The sentence imposed by the courts should be commensurate with the seriousness of the offence, and should have a deterring effect on wrongdoers. [State of Karnataka v. Sharanappa Basanagouda Aregoudar, (2002) 3 SCC 738 : 2002 SCC (Cri) 704] The punishment of offenders of motor vehicle accidents under IPC is stricter and proportionate to the offence committed, as compared with the MV Act.
17. We thus hold that a prosecution, if otherwise maintainable, would lie both under IPC and the MV Act, since both the statutes operate in full vigour, in their own independent spheres. Even assuming that some of the provisions of the MV Act and IPC are overlapping, it cannot be said that the offences under both the statutes are incompatible."
20. Having gone through the provisions of the Act, 1965, we find that there is nothing in the Act, 1965 which may either expressly or impliedly bar prosecution of an employee or member or office bearer of a co-operative society in the State of Uttar Pradesh for an offence punishable under the Penal Code, if otherwise the ingredients of that offence are made out. Further, the offence of criminal breach of trust as defined under section 405 IPC is qualitatively different from any of the offences specified in section 103 or any of the provisions of the Act, 1965. None of the offences specified therein specifically deal with dishonest misappropriation or conversion or disposal of the property entrusted as is contemplated by section 405 IPC. The decision of the Apex Court in State of Maharashtra Vs. Laljit Rajshi Shah (supra) relied by the learned counsel for the petitioner is not to be read so as to infer that there could be no prosecution for any offence under the Penal Code. Rather, it has to be understood in the context of the facts of that case which were in respect of prosecution of a chairman and member of the management committee of a cooperative society in Maharashtra, who were not public servant, and therefore their prosecution, by treating them as such, under section 409 IPC and under the Prevention of Corruption Act, was found bad in law. Moreover, in that case the Apex Court had no occasion to examine whether they could be prosecuted under section 406 IPC. Thus, in the light of the discussion made above, keeping in mind the provisions of section 26 of the G.C. Act and the decisions noticed above, we are of the firm view that a co-operative society employee /servant or member or an office-bearer, notwithstanding the provisions of the Act, 1965, can be prosecuted for an offence punishable under the Penal Code, provided the necessary ingredients of that offence are made out.
21. Reverting to the facts of the instant case, as the petitioner had been Secretary of a Primary Agricultural Credit Society who, as per Section 31 (2) of the Act, 1965, is the Chief Executive Officer of the Society and as such is responsible for the management of the business of the society and has to carry on the business of the society and, subject to the provisions of the bye-laws of the society, operate its accounts and, except where the society has a cashier or treasurer, handle and keep in his custody its cash balances, etc, it can be said that, prima facie, he holds position of trust qua the society and as such could be held liable for criminal breach of trust if the necessary ingredients thereof, as mentioned in section 405 IPC, are found. Since it is alleged in the impugned FIR that the petitioner as a Secretary of the society had defalcated the fertiliser stock, prima facie, cognizable offence of criminal breach of trust is made out and therefore the impugned FIR cannot be quashed.
22. As to whether the petitioner is liable to be charged for an offence punishable under section 406 or section 408 or section 409 IPC would have to be determined on the strength of the material collected during the course of investigation and, therefore, the charge can be altered even by the investigating agency, if required. The court dealing with the bail prayer of the petitioner, for the purposes of examining whether a case for grant of bail is made out, can also take into consideration as to, prima facie, what offence is made out from the facts of the case regardless of the charging section put by the investigating agency. Further, if, after submission of the police report, the petitioner is aggrieved by the charging section imposed, he can always raise his grievance before the appropriate court at the stage of framing charge.
23. In view of the foregoing discussion, subject to above, the petition is dismissed without prejudice to the right of the petitioner to apply for bail, if so advised.
Order Date :- 8.10.2020 Krishna*/AKShukla