Supreme Court - Daily Orders
Central Bureau Of Investigation State ... vs P G Jain on 5 April, 2016
Bench: Ranjan Gogoi, Prafulla C. Pant
1
ITEM NO.5 COURT NO.7 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR SPECIAL LEAVE TO APPEAL (CRL.) NO(S). 5604/2014
(ARISING OUT OF IMPUGNED FINAL JUDGMENT AND ORDER DATED 04/09/2013
IN CRLR NO. 402/2005 PASSED BY THE HIGH COURT OF M.P AT JABALPUR)
CENTRAL BUREAU OF INVESTIGATION
STATE OF MADHYA PRADESH PETITIONER(S)
VERSUS
P G JAIN RESPONDENT(S)
[APPLN.(S) FOR STAY]
(FOR FINAL DISPOSAL)
Date : 05/04/2016 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE PRAFULLA C. PANT
For Petitioner(s) Ms. Vibha Datta Makhija, Sr. Adv.
Ms. Disha Vaish, Adv.
Mr. Ajay Sharma, Adv.
Mr. B. V. Balaram Das, Adv.
For Respondent(s)
Ms. Anuradha Mutatkar, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
[VINOD LAKHINA] [ASHA SONI]
COURT MASTER COURT MASTER
Signature Not Verified
Digitally signed by
VINOD LAKHINA
Date: 2016.04.07
17:38:32 IST [SIGNED ORDER IS PLACED ON THE FILE]
Reason:
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.264 OF 2016 [Arising out of Special Leave Petition (Criminal) No.5604/2014] CENTRAL BUREAU OF INVESTIGATION STATE OF MADHYA PRADESH ...APPELLANT VERSUS P. G. JAIN ...RESPONDENT ORDER
1. Leave granted.
2. The respondent who was, at the relevant point of time, working as 'Assistant Manager' in the National Cooperative Consumers Federation of India Limited, Jabalpur (“the NCCF” for short) was named in an FIR alleging commission of offences under the Prevention of Corruption Act, 1988 (hereinafter referred to as “the 2 P.C. Act, 1988). A charge-sheet was submitted after completion of investigation. At the stage of framing of charges, however, the learned trial Court discharged the respondent accused on the ground that the NCCF is not a State within the meaning of Article 12 of the Constitution of India and, therefore, is not a public servant under the P.C. Act, 1988. The said order has been affirmed in revision by the High Court by the impugned order giving rise to the present appeal.
3. The NCCF is a Multi-State Cooperative Society under the Multi-State Cooperative Societies Act, 2002 (hereinafter referred to as “the Cooperative Societies Act, 2002”). Under Section 3(r) of the Cooperative Societies Act, 2002, a multi-State Cooperative Society specified in the Second Schedule 3 thereto is treated as a “national cooperative society”. In the Second Schedule to the Cooperative Societies Act, 2002, the NCCF is specifically included against serial No.5 of the list of multi-State Cooperative Societies treated as “national cooperative society”.
4. Section 116 of the Cooperative Societies Act, 2002 contemplate exclusion or inclusion in the list of “national cooperative societies” by notification issued by the Central Government which notification is required to be laid before each House of Parliament after the same is made. Section 25 of the Cooperative Societies Act, 2002 specifies the persons who may become members of a multi-State cooperative society. Section 25(2) of the said Act specifically provides that individual persons are not eligible for 4 being a member of a national cooperative society.
5. The learned trial Court and the High Court, in the present case, proceeded to determine the question before it, namely, whether the respondent – accused is a public servant under the P.C. Act, 1988 by attempting to understand as to whether the NCCF is a State within the meaning of Article 12 of the Constitution of India. It is in the above context that the learned trial Court had engaged itself in an elaborate discussion particularly with regard to the source of funding of the NCCF. In this regard, the learned trial Court also referred to and relied on a judgment of the High Court of Karnataka in Writ Petition No.28014 of 1995 [D.G. Katti Sethi versus National Co-operative Consumers Federation of India Ltd.] wherein 5 the issue arising in the present case specifically with reference to the NCCF was dealt with by the High Court. Following the said decision and the finding recorded by the High Court therein that the employees of the NCCF would not be public servants under the P.C. Act, 1988 as the NCCF is not a State within the meaning of Article 12 of the Constitution of India, the discharge of the respondent – accused was ordered which has been upheld by the High Court. We are also told that the decision of the High Court of Karnataka in Writ Petition No.28014 of 1995 [D.G. Katti Sethi versus National Co-operative Consumers Federation of India Ltd.] has attained finality as the Special Leave Petition against the said order has since been dismissed.
6. Notwithstanding the above, we have noticed a different dimension to the issue 6 before us. The question whether the respondent accused is a public servant has to be further considered in the context of the definition of “public servant” appearing in Section 2(c) of the P.C. Act, 1988. Sub-clauses (iii) and (ix) of Section 2(c) of the P.C. Act, 1988 would be relevant and is, therefore, extracted below:
“2(c) “public servant” means,-
(i) ...........
(ii) ...........
(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);
(iv) ...................... ................................
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or 7 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 Companies Act, 1956 (1 of 1956);”
7. Insofar as Section 2(c)(ix) is concerned, though it deals with cooperative societies the reference therein is in respect of the President, Secretary or other office-bearers of a cooperative society whereas in the present case the respondent accused is an employee of the cooperative society. The question, therefore, that has to be considered is:
whether the respondent accused would come within the ambit of the definition contained in Section 2(c)(iii) of the P.C. Act, 1988.8
8. In this regard, we may notice a decision of this Court in Govt. of Andhra Pradesh and others vs. P. Venku Reddy [(2002) 7 SCC 631] wherein a view has been taken that though an employee of a cooperative society may not come within the ambit of the definition of “public servant” under Section 2(c)(ix) of the P.C. Act, 1988 yet such a person may be a “public servant” within the meaning of Section 2(c)
(iii) of the P.C. Act, 1988 provided the cooperative society is owned, controlled or aided by the Government. In this context in Govt. of Andhra Pradesh and others vs. P. Venku Reddy (supra), this Court has also observed the necessity to consider a purposive interpretation of the definition of “public servant” having regard to the changes brought in by the P.C. Act, 1988 in contra-distinction to the definition of 9 “public servant” under the Prevention of Corruption Act, 1947. It is the aforesaid aspect of the matter that the attention of the Court will now have to turn to.
9. In the discussions of the learned trial Court and on the basis of the reference made to the decision of the Karnataka High Court in Writ Petition No.28014 of 1995 [D.G. Katti Sethi versus National Co-operative Consumers Federation of India Ltd.], we find the extent of the participation of the Central Government in the equity base of the NCCF. Such participation is by subscription to redeemable as well as non-redeemable shares. The Karnataka High Court in D.G. Katti Sethi (supra) took the view that a distinction should be made between the two and the investment of the Government in non-redeemable shares should be taken as a 10 loan instead of participation in the equity of the NCCF.
10. The Karnataka High Court in the said writ petition was examining the status of the NCCF from the standpoint of Article 12 of the Constitution to determine whether the employee concerned is a public servant. It is in that light that the funding in the NCCF made by the Government was considered. As the specific provisions of Section 2(c) of the P.C. Act, 1988 were not debated, naturally, the High Court had no occasion to deal with the expression “aided” appearing in Section 2(c)(iii) of the P.C. Act, 1988, namely, that employees of a body owned or controlled or aided by the Government would be public servants within the meaning of said Section. In a situation where the cumulative value of the redeemable and non-redeemable shares 11 subscribed by the Central Government in the NCCF would constitute almost 85% of its share-capital, we do not see how the participation of the Central Government, by means of subscription to the non-redeemable shares, would fall outside the meaning and scope of the expression “aided” as appearing in Section 2(c)(iii) of the P.C. Act, 1988. Even otherwise, we find no basis to hold that the equity participation insofar as the non-redeemable shares is concerned would amount to a loan to the NCCF by the Central Government. We, therefore, hold that the Central Government holds majority of the shares in the NCCF i.e. 85% thereof and, therefore, the NCCF is a body “aided” by the Central Government as required under Section 2(c)(iii) of the P.C. Act, 1988.
11. In the light of the above, we hold 12 that the order of the learned trial Court as affirmed by the High Court discharging the respondent accused ought not to be sustained in law. Accordingly, we set aside the same and allow this appeal and direct that the trial against the respondent accused shall now be held in accordance with law.
....................,J.
(RANJAN GOGOI) ...................,J.
(PRAFULLA C. PANT) NEW DELHI APRIL 05, 2016