Bombay High Court
Shri. Sadashiv Krishna Sutar vs State Of Maharashtra on 6 May, 2013
Author: S.C. Dharmadhikari
Bench: S.C. Dharmadhikari
REVN-353-12.doc
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.353 OF 2012
Shri. Sadashiv Krishna Sutar, )
Age : 46 Yrs., Occ.: Nil, )
R/at: Kandiwali (W), )
Mumbai - 400 067 ) ... Applicant
Versus
State of Maharashtra, )
Through A.C.B., Mumbai ) ... Respondent
Mr. Uday Warunjikar for the Applicant.
Mrs. A.A. Mane, A.P.P., for the Respondent-State.
CORAM : S.C. DHARMADHIKARI, J.
RESERVED ON : 12 TH APRIL, 2013.
PRONOUNCED ON : 6 TH MAY, 2013
.
JUDGMENT :
1. Rule. Rule made returnable forthwith, by consent.
2. Mrs. Mane, learned A.P.P., waives service on behalf of the Respondent- State.
3. A short question is raised in this Criminal Revision Application, which is directed against the Judgment and Order dated 24 th July, 2012 of the Special Judge, Greater Bombay. This Judgment and Order was delivered on an application made by the present Applicant/Original Accused for discharge in Special Case No.45 of 2011.
4. The question raised for my consideration is whether the Applicant, who has been appointed as a Manager by the Liquidator of M/s. Indira Co-operative Bank Limited, is a "Public Servant" within the meaning of the said term, as defined in the Prevention of Corruption Act, 1988, (for short "the P.C. Act").
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5. The undisputed factual position is that M/s. Indira Co-operative Bank Limited is under liquidation. In the year 1998, the District Registrar in exercise of his powers under the Maharashtra Co-operative Societies Act, 1960 has appointed a Liquidator of the said Co-operative Bank. During the course of the liquidation proceedings and to look after the same, the Liquidator made appointments, one of which was of the present Applicant. He was appointed as a Manager and according to him, initially from 1st September, 2008 to 31st August, 2009. The appointment was extended from 1 st September, 2009 to 31st August, 2010. The terms and conditions of the appointment have been determined by the Liquidation Committee.
6. A complaint was filed before the Anti Corruption Bureau, which came to be registered as First Information Report No.52 of 2009, against the Applicant alleging that one Rajtej Bhadrasen Khot, Harish Bhadrasen Khot and Manhar Bhadrasen Khot are real brothers. They have lot of properties in Borivali area. A Cinema Theater known as "Jaya Theatre" is owned by this family. They also own some 30 to 35 shop premises. All these shops have been given on rent. There is also a Petrol Pump, which is owned by them. Mr. Sanjay Khot, Mr. Viren Khot and Mr. Giriraj Khot are the sons of Mr. Rajtej Bhadrasen Khot. The Ground Floor premises in the Cinema Theater Building have been given on lease to the Bank of Baroda. The Complainant has his office on the Second Floor and, on the Third Floor, there is an office of Mr. Sanjay Rajtej Khot and Mr. Viren Rajtej Khot.
7. There is one property called Jaybhadra Building situate at S.V. Road, Borivali (West). This is a building of three floors. There is an open area adjacent to this building. That also is owned by the Khot Family. A portion admeasuring 300 sq.ft. was given on lease to M/s. Indira Co-operative Bank Limited on 26th May, 1987 by the Khot Family. The Lease Agreement is registered. After narrating as to how the Lease Agreement came to be executed and who signed it and the terms and conditions including monthly rent and # 2/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc duration of the lease, what has been alleged is that the Bank has made construction on this portion. After the construction work was carried out, there has been a fresh lease executed and the details thereof have been set out. The constructed portion is used as an office by the Bank under liquidation.
8. The Complainant alleges that the Head Office of M/s. Indira Co- operative Bank Ltd. is at Dadar, Mumbai. The Khot Family has Rs.6,00,000/- in Fixed Deposit with this Bank. The Bank has stopped its business from 1998. The Bank has been in liquidation and the Government has appointed a Liquidator thereon. The Bank has taken away all the papers from the rented Office in the year 2000. It has also not paid rent to the Khot Family after 1998. The sons of the said Rajtej Bhadrasen Khot were continuously pursuing the matter and requesting the Bank to handover the premises back to them. However, their efforts have not been successful.
9. It is then alleged that the Applicant came to the office of the said Khots in September, 2009. He demanded Rs.5,00,000/- from Mr. Sanjay Rajtej Khot and Mr. Viren Rajtej Khot for handing over the rented/leased premises back to the Bank. The Complainant states that he was present at the meeting at which the Applicant demanded this sum. The Applicant also gave his mobile number to the said Sanjay Khot and Viren Khot.
10. The Complainant alleged that this demand made by the Applicant amounts to seeking a bribe from the said Sanjay Khot and Viren Khot and, therefore, the said Sanjay Khot and Viren Khot directed the Complainant to lodge a complaint with the Anti Corruption Bureau against the Applicant on 8 th December, 2009 and that is how he made the application and lodged the complaint.
11. It is in these circumstances that the First Information Report came to be registered. Thereafter, a trap was laid on 16th December, 2009 and payment of Rs.50,000/-, as a part payment, was made. It is alleged that the # 3/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc Applicant/Accused was accosted and caught red handed while accepting the bribe amount of Rs.50,000/-. Thereafter, the investigations were carried out and the Charge-Sheet was submitted against the Applicant/Accused in the Court of Special Judge, Greater Bombay alleging offence punishable under Section 7, (13)(1)(d) and (13)(2) of the P.C. Act.
12. The Applicant made an application on 6th March, 2012 seeking discharge from the Special Case by urging that the record of the case and the documents submitted along with the Charge-Sheet would show that there is no sufficient ground for proceeding against the Applicant/Accused and, therefore, he deserves to be discharged from the Special Case. The contention raised was that the Applicant is working as a Manager of M/s. Indira Co-operative Bank Limited, Dadar Branch, Mumbai. The said Bank is a Co-operative Bank and is not aided and controlled by the Government/State and, therefore, the employees of the said Co-operative Bank are not Public Servants, as defined in Section 2(c) of the P.C. Act.
13. Once the Applicant/Accused cannot be termed as a "Public Servant", then, the P.C. Act will not be applicable and the case cannot proceed. For these reasons, the Applicant/Accused should be discharged.
14. This Application was opposed by the Respondent/Prosecution by filing its Report and pointing out as to how the record would indicate that during the liquidation proceedings, the Applicant was appointed as a Manager by the Liquidation Committee and once the Liquidator feels that services of persons like the Applicant/Accused are required for proper, smooth and complete winding up of the affairs of the Co-operative Bank, then, the Applicant is performing a public duty within the meaning of Section 2(c)(viii) of the P.C. Act. For all these reasons in the detailed Report, it was prayed that the Applicant is a Public Servant and the proceedings cannot be said to be not maintainable. The Applicant, therefore, is rightly proceeded against and the # 4/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc charge against him cannot be said to be groundless. The application, therefore, be dismissed.
15. The parties filed their written arguments and were also heard orally. The learned Special Judge, upon perusing the materials, which were placed before him at the prima facie stage, and considering the oral and written arguments, held that the winding up process of a Co-operative Bank is initiated when the funds of the investors in the said Bank are to be safeguarded on account of its weak financial condition. In such circumstances, when the process of liquidation is initiated in the public interest so as to return the amount of the investors, then, it cannot be said that the functions or duties will not be covered by Section 2(c)(viii) of the P.C. Act. For all these reasons, the learned Judge held that there is no merit in any of the contentions raised by the Applicant. He proceeded, therefore, to dismiss this application by holding that the Applicant is a Public Servant.
16. Since it is conceded before me that the materials collected by the Prosecution during investigation are enough to frame a charge against the Applicant, but the jurisdiction of the learned Special Judge and maintainability of the Special Case on the ground of the Applicant not being a Public Servant is the only issue, then, it can be safely held that the charge against the Applicant cannot be said to be otherwise groundless. If the Applicant is covered by the P.C. Act, then, the proceedings in the Special Case are maintainable and the Special Case can then proceed in accordance with law.
17. Thus, the only question raised before me is whether the Applicant/Accused in Anti Corruption Bureau Special Case No.45 of 2011 is a Public Servant or not.
18. Mr. Warunjikar, learned Counsel appearing on behalf of the Applicant, submitted that the liquidation proceedings are in relation to a Bank, which is a Co-operative Bank. It is a Co-operative Society within the meaning of the # 5/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc Maharashtra Co-operative Societies Act, 1960. It is not the case of the Prosecution that the said Co-operative Bank was receiving or received any financial aid from the State Government. It is not even the case of the Prosecution that the Bank can be termed as a Authority or Body owned or controlled or aided by the Government. Such being the position, merely because the Bank is under liquidation, it cannot be said that the Applicant is a Public Servant. Once the Applicant is not a President, Secretary or other office bearer of a registered Co-operative Society/Bank receiving or having received any financial aid from the State Government, then, he is out of the purview of the P.C. Act. My attention is invited to Section 2(c)(ix) of the PC Act. Mr. Warunjikar submits that if sub-clause (c) of Section 2 together with the explanations is perused and carefully, it would reveal that the Applicant, by no stretch of imagination, can be termed as a Public Servant. The Co-operative Bank is not a legal entity in which the Government has any stake. It is a Society registered under the Maharashtra Co-operative Societies Act, 1960. It is, therefore, serving its members. Once its functions and duties are considered in the light of its bye-laws, then, it is apparent that the employees of such a Co-
operative Society and which is not receiving any aid or finance from the State Government and which is not controlled by the State as well, cannot be termed as Public Servants. Such employees will have to be proceeded against under the General Law. Therefore, the learned Judge was in complete error in arriving at a conclusion that the Applicant is a Public Servant. The learned Judge has misconstrued and misapplied the principle and the definition of the term "Public Duty", as appearing in the P.C. Act.
19. It is submitted that the liquidation of a Co-operative Bank and function in relation thereto is not a duty in discharge of which the State, the public or the community at large has an interest. In such circumstances, by applying some broad and wide considerations, employees like the Applicant cannot be brought within the purview of the P.C. Act. Hence, the impugned order is, # 6/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc therefore, vitiated by an error of law apparent on the face of the record and is perverse as well. The same requires interference in my revisional jurisdiction is the submission of Mr. Warunjikar.
20. Mr. Warunjikar has relied upon the Judgments of the Hon'ble Supreme Court in the case of Greater Bombay Co-operative Bank Limited Vs. United Yarn Tex Private Limited & Ors., reported in 2007 (3) Mh.L.J. 434 and in the case of State of Maharashtra Vs. Laljit Rajshi Shah & Ors., reported in AIR 2000 SC 937. Mr. Warunjikar has also relied upon the following decisions :-
Rulings of the Hon'ble Supreme Court :
1. Sabhajit Tewary Vs. U.O.I., reported in 1975 (1) SCC 485
2. Ajay Hasia Vs. Khalid Mujib, reported in 1981 (1) SCC 722
3. S.S. Dhanoa Vs. Municipal Corporation, reported in 1981 (3) SCC 431
4. Shri. Tekraj Vasandi Vs. U.O.I., reported in 1988 (1) LLJ 341
5. C.V. Raman Vs. Management of Bank of India, reported in 1988 (3) SCC 105.
6. Chander Mohan Khanna Vs. NCERT, reported in 1992 (1) LLJ 331
7. Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology, reported in 2002 (5) SCC 111
8. Federal Bank Ltd. Vs. Sagar Thomas, reported in 2003 (10) SCC 733 Rulings of the Bombay High Court :
1. Shamrao Vithhal Co-op. Bank Ltd. Vs. Padubidri Pattabhiram Bhat, reported in 1993 Mh.L.J. 1 (FB)
2. Dnyandeo Dattatraya Kale Vs. State of Maharashtra, reported in 1995 (2) Mh.L.J. 930
3. Mapusa Urban Co-op. Bank Ltd. Vs. Dattatraya, reported in 1999 (2) Mh.L.J. 502 # 7/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc
4. Nandkumar Nivrutti Baptivale Vs. Automotive Research Association of India, reported in 2002 (2) Mh.L.J. 191
5. Dr. Panjabrao Deshmukh Urban Co-op. Bank Ltd. Vs. State Information Commissioner in Writ Petition No.5666 of 2007, Nagpur Bench.
6. Jitendra Srivastava Vs. National Horticultural Research & Development Foundation, reported in 2011 (0) AIJ-MH 152142 Rulings of Other High Courts :
1. State of Punjab Vs. Kesari Chand, reported in 1987 (0) AIJ-
PH 1608219 (FB)
2. Rama Krishna Sahu Vs. State of Orissa, reported in 2007 (II) OLR 104
21. On the other hand, the learned A.P.P. appearing for the Respondent-State, has supported the impugned order. She submits that the view taken by the learned Special Judge cannot be termed as vitiated by any error of law apparent on the face of the record or perverse. It is a view perfectly in consonance with the allegations that have been made by the Complainant, as found in the First Information Report. The learned Judge has, keeping in mind the object and purpose of the P.C. Act and the nature of the functions and the appointment of the Applicant, rightly held that the Applicant/Accused is performing a public duty. He cannot be said to be an employee of a Co-
operative Bank, which is functional so as to be covered by Section 2(c) and Clause (ix) of the P.C. Act. He may not be a President, Secretary or other office bearer, but he is certainly performing a public duty. His appointment is made by the Liquidator and during the course of liquidation and winding up proceedings. He is, therefore, discharging a duty in which the State, the public or the community at large has an interest. It is definitely in the interests of all concerned that a Co-operative Bank is liquidated and its affairs are wound up # 8/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc in accordance with law. That the interest of the Depositors and investors is protected, that their monies are recovered by sale and disposal of the assets and properties, the sale proceeds have to be disbursed bearing in mind the stipulations in law. Therefore, when the depositors and investors and all those who have financial and other interests in a Co-operative Bank are anxiously awaiting the conclusion of the winding up proceedings, then, it is the duty of the officials like the Applicant so also the Liquidator to safeguard and protect their interests to the best possible extent. The stake holders are not only the State, but the public or the community at large. In such circumstances, the view taken cannot be said to be palpably or patently erroneous and illegal.
Once the allegations are that a bribe was demanded for performing a public duty and during the course of the official work by a Public Servant, then, he has to be proceeded against, as the offences alleged are grave in nature. They are punishable with severe punishments. For these reasons, this is not a stage where this Court should exercise its revisional jurisdiction and stop the further proceedings in the Special Case. That would not subserve public interest. For these reasons, this Criminal Revision Application be dismissed.
22. With the assistance of the learned Advocates, I have perused this Criminal Revision Application, the complaint/First Information Report, the statement of the Complainant, the application for discharge, the stand of the Prosecution in opposition thereto and the order of the learned Special Judge. I have also perused the relevant provisions of the Indian Penal Code, the Maharashtra Co-operative Societies Act, 1960 and the P.C. Act. I have also perused the decisions brought to my notice.
23. After careful perusal of the above material and at the prima facie stage, I am of the opinion that the conclusion of the learned Judge cannot be said to be vitiated by any error of law apparent on the face of the record or perversity. The view taken does not result in miscarriage of justice either. The learned # 9/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc Judge in taking the view has not acted with material irregularity or illegality resulting in manifest injustice.
24. In this context, it would be worthwhile referring to the P.C. Act, 1988.
25. The P.C. Act is an Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith.
26. The Statement of Objects and Reasons to the Bill read as under :
"Statement of Objects and Reasons -
. The Bill is intended to make the existing anti-corruption laws more effective by widening their coverage and by strengthening the provisions.
2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abets them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944 to enable attachment of ill-gotten wealth obtained through corrupt means, including from transferees of such wealth. The Bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants.
3. The Bill, inter alia, envisages widening the scope of the definition of the expression "public servant", incorporation of offences under sections 161 to 165-A of the Indian Penal Code, enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial Court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced. In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.
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4. Since the provisions of sections 161 to 165-A are incorporated in the proposed legislation with an enhanced punishment, it is not necessary to retain those sections in the Indian Penal Code. Consequently, it is proposed to delete those sections with the necessary saving provision.
5. The Notes on Clauses explain in detail the provisions of the Bill."
27. The definitions of the terms "Public Duty" and "Public Servant", as defined in the Prevention of Corruption Act, 1988, are as under :-
"2. Definitions.- In this Act, unless the context otherwise requires,-
(a) .........................................................................................
(b) "Public duty" means a duty in the discharge of which the State, the public or the community at large has an interest-
Explanation. -In this clause "State" includes a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned controlled or aided by the Government company as defined in Section 617 of' the Companies Act, 1956 (I of 1956),
(c) "Public Servant" means,-
(i) Any person in the service or pay of' the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) Any person in the service or pay of a local authority.
(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.
(iv) Any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions.
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(v) Any person authorised by a court of justice to perform any duty, in connection with, including a liquidator, receiver or commissioner appointed by such court.
(vi) Any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority.
(vii) Any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election of part of an election;
(viii) Any person who holds an officer by virtue of which be is authorised or required to perform any public duty.
(ix) Any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid front 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 or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956;
(x) Any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
(xi) Any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever (resignation called, of any university and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) Any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, # 12/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc receiving or having received any financial assistance from the Central Government or any State Government or local or other public authority.
Explanation 1. - Persons falling under any of the above sub-
clauses are public servants, whether appointed by the government or not.
Explanation 2. -Whenever the words "public servant" 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."
28. In the case of State of Madhya Pradesh & Ors. Vs. Shri Ram Singh, reported in AIR 2000 SC 870, the Hon'ble Supreme Court held as under :-
"7. Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-
political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society.
8. The menace of corruption was found to have enormously increased by first and second world war conditions. The corruption, at the initial stages, was considered confined to the bureaucracy who had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities for corruption continued as large amounts of government surplus stores were required to be disposed of by the public servants. As consequence of # 13/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post- war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them wide discretion with the result of luring them to the glittering shine of the wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988, a new Act on the subject being Act No.49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, as understood in the common parlance but specifically defined in the Act.
9. The Act was intended to make effective provision for the prevention of bribe and corruption rampant amongst the public servants. It is a social legislation defined to curb illegal activities of the public servants and is designed to be liberally construed to as to advance its object. ..........................................................
10. Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and decided cases under it."
29. In the case of Naresh Kumar Madan Vs. State of Madhya Pradesh, reported in AIR 2008 SC 385, the issue raised was whether the Officer employed in Madhya Pradesh State Electricity Board is a Public Servant or not. In analyzing the Act, the definition, in the back-drop of the intention of the Legislature, the Hon'ble Supreme Court has held as under :-
"15. We, therefore, fail to see any reason as to why the appellant would not answer the description of public servant within the # 14/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc provisions of the said Act. The decision of the learned Single Judge of the Madhya Pradesh High Court in Bimal Kumar Gupta (supra), in our opinion, does not lay down the correct law. Referring to Section 81 of the 1948 Act, it held :
"14. Considering the aforesaid provisions of law, it emerged that for the purpose of the Act of 1947, a "public servant" is a person who is covered under the definition of 'public servant' as given under Section 21 of the IPC. On careful perusal of the definition of 'public servant' as given in Section 21 of the IPC, it is found that the employees of the Electricity Board are not covered under any of the clauses of the said Section. However, by virtue of Section 81 of the Electricity (Supply) Act, 1948, all the members, officers and employees of the Board when acting or purporting to act in pursuance of any of the provisions of the Act are deemed to be public servant under Section 21 of the IPC. As such, it can be inferred that by virtue of Section 81 of the Electricity (Supply) Act, the Board employees when acting in pursuance of the provisions of the Act are considered 'deemed public servants' under Section 21 of the IPC. But as held by the Apex Court in case of State of Maharashtra v. Laljit Rajashi Shah (supra) on the ground of 'deemed provision' a person covered under the definition of Section 21 of the IPC cannot be considered 'public servant' for the purpose of prosecution under the provisions of the Prevention of Corruption Act, 1947. In the aforesaid case, in view of the analogous provision of 'deemed to be public servant' for certain employees of the Co-operative Societies under Maharashtra Co-
operative Societies Act, were not considered as public servant for the purpose of the Act of 1947."
16. With respect we do not agree with the aforementioned inference of the learned Judge.
17. The Prevention of Corruption Act, 1947 was repealed and enacted in the year 1988. The definition of 'public servant', as contained in Section 2(c) thereof, is a broad based one. Reliance was placed by the learned Judge in the case of State of Maharashtra v. Laljit Rajashi Shah and others [AIR 2000 SC # 15/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc 937]. Therein the Court was dealing with a case of member of a co-operative society. It was not dealing with the case of an employee of a statutory corporation. The said decision, therefore, has no application to the facts of the present case.
18. Definition of 'public servant' will have to be construed having regard to the provisions of the 1988 Act. By giving effect to the definition of 'public servant' in the 1988 Act, the legal fiction is not being extended beyond the purpose for which it was created or beyond the language of the section in which it was created."
30. In dealing with the contentions raised before the Hon'ble Supreme Court in Naresh's case (supra), it had an occasion also to refer to State of Maharashtra Vs. Laljit Rajashi and it made very pertinent observations. It also held that different Statutes may use the same terms for different purposes. A term or a word may be interpreted in a Statute itself for fulfilling the purport and object mentioned therein whereas in another Statute, it may be defined differently. In that regard, in the earlier paragraphs, the Hon'ble Supreme Court held as under :-
"4. Before the courts below as also before us, the contention of Appellant has been that 'public servant' having been defined in Section 81 of the 1948 Act, the same does not satisfy the requirements of the definition was contained in Section 21 of the Indian Penal Code. Strong reliance, in this behalf, has been placed on Bimal Kumar Gupta v. Special Police Establishment Lokayukt [2001 (1) MPHT 330 : (2001) 3 JLJ 2], wherein it has been held that employees of the Madhya Pradesh Sate Electricity Board are not public servants.
5. Different statutes may use the same term for different purposes. A term or a word may be interpreted in the statute itself for fulfilling the purport and object mentioned therein whereas in another statute it may be defined differently.
6. Interpretation of a term in one statute, however, cannot be done with reference to its definition contained in another. [See Raymond Ltd. v. State of Chhattisgarh and others (2007) 3 SCALE 341]."
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31. Mr. Warunjikar places very strong reliance upon a Judgment in the case of Brijlal S/o Sadasukh Modani Vs. The State of Maharashtra & Ors., in Criminal Writ Petition No.729 of 2006 decided on 5 th February, 2008 by a Division Bench of this Court sitting at Aurangabad.
32. Mr. Warunjikar submits that the issue raised in this Criminal Revision Application is covered by this Judgment.
33. That Judgment was delivered in a case where the Petitioner before this Court was serving in different capacities with the Osmanabad Janta Sahakari Bank Limited, Osmanabad. He completed 58 years of age and retired from the services of the Bank on or about 3 rd June, 2004. The Managing Committee of the Bank extended his services by two years. Therefore, he would have retired on or about 2nd June, 2006, after getting extension. However, he requested the Bank to allow him to retire after completion of one year of his extended period. His request was granted and he retired on 10 th June, 2005.
34. After referring to the tenure of the Petitioner, the establishment and formation of the Bank, what the Petitioner pointed out to the Division Bench is that there are Service Rules framed by the Bank in respect of its employees.
There is no direct or indirect supervision or control of the State Government on the functioning of the Bank or its employees. The salary of the Petitioner was paid by the Bank from its own funds. There was no power in the Government to appoint, remove or dismiss any of the employees of the Bank. In such circumstances, the Petitioner questioned the notice issued by the Anti Corruption Bureau calling upon him to give details in respect of the property acquired by him. The Petitioner submitted his reply and stated that he is not a Public Servant, as defined under the P.C. Act. The Petitioner cannot be treated as Public Servant even under Section 21 of the Indian Penal Code. However, the Petitioner was called upon to attend an inquiry by the Anti Corruption # 17/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc Bureau and such communications calling upon him to attend the inquiry were challenged by him in the Writ Petition filed before the Aurangabad Bench.
35. In dealing with the contentions raised before it, the Division Bench referred to several provisions of the Multi State Co-operative Societies Act, 2002, the Maharashtra State Co-operative Societies Act, 1960 and the Reserve Bank of India Act, 1934 and then held as under :-
"16) We have considered the provisions of the different enactments for ascertaining whether the State Government or Central Government or its authority control the functioning or the management of the Bank and even govern the service conditions of its employees. Section 2(c) of the Prevention of Corruption Act, 1988 defines "public servant". We are concerned with clauses (iii) and (ix) of the said section. While considering the provisions contained in clause (iii) of Section 2(c) we find that the Bank was not established by or under a Central or State Act or by an authority or a body owned or controlled or aided by the State or Central Government. It is even not a Government company as defined in section 617 of the Companies Act, 1956. While considering the provisions of Section 2(c) (ix) we find that the Bank does not receive any financial aid from the Central or State Government. We had even enquired with the learned Additional Public Prosecutor, who was instructed by the officers, to place before this Court any evidence, in case it is there, to the effect that the Bank was provided with financial aid by the Government or its authority or Corporation established by the Government. The learned A.P.P. stated that there is no such evidence brought to his notice that the Bank was getting financial aid.
17) The provisions of Section 35-A and 36 of the Banking Regulation Act, 1949 were referred to by respondent No.3 to support contentions that the Reserve Bank of India has powers to issue directions which would amount to having control over the functioning of the Bank. Reference was also made to the provisions of Section 56 of the Act of 1949 which speak that the provisions of the Act of 1949 would apply to any cooperative society as they apply to banking companies subject to the modifications enumerated thereunder.
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18) We have perused the bye-laws of the Bank registered as a Multi-
State Cooperative Society. Bye Law No.21 says that the final authority of the society shall vest in the General Body. The Board of the Bank would convene annual general meeting for the purposes of taking decisions on various issues. Bye-Law No.55 refers to the service rules. The Bank shall have service rules for regulating the service conditions of its employees as formulated and amended by the Board from time to time. The Bank shall maintain a Contributory Provident Fund for the benefit of its employees in accordance with the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952.
19) In the light of the provisions as afore mentioned we have considered the provisions of the Banking Regulation Act, 1949. It is true that under section 56 of the Banking Regulation Act, 1949 it is specified that the provisions of the Act would apply to the cooperative societies subject to modifications. Clauses (ccii-a) and (cciii-a) of Section 56 read as under :
56.(ccii-a) "co-operative society" means a society registered or deemed to have been registered under any Central Act for the time being in force relating to the multi-state co-operative societies, or any other Central or State law relating to co-operative societies for the time being in force.
(cciii-a) "multi-State co-operative bank" means a multi-
State co-operative society which is a primary co-operative bank.
20) In accordance with the provisions of sub-section (2) of Section 38 of the Act of 2002 subject to the provisions of the said Act, the rules and the bye-laws, the ultimate authority of a multi-State co- operative society shall vest in the general body of its members.
The subjects to be considered in the annual general meeting of general body are enumerated in section 39 of the Act. The procedure for electing Board of Directors is mentioned in Section
41. Members of the General Body would be removed by the General Body in accordance with the provisions contained in Section 47 of the Act. The powers and functions of the Board are mentioned and described in Section 49 of the Act which reads as under :
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49. Powers and functions of Board.- (1) The Board may exercise all such powers as may be necessary or expedient for the purpose of carrying out its functions under this Act.
(2) Without prejudice to the generality of the foregoing powers, such powers shall include the power -
(a) to admit members;
(b) to interpret the organizational objectives
and set-up specific goals to be achieved
towards these objectives;
(c) to make periodic appraisal of operations;
(d) to appoint and remove a Chief Executive
and such other employees of the society
as are not required to be appointed by
the Chief Executive;
(e) to make provisions for regulating the
appointment of employees of the multi-
State Co-operative Society and the scales
of pay, allowances and other conditions
of service of, including disciplinary
action against such employees;
(f) to place the annual report, annual
financial statements, annual plan and
budget for the approval of the general
body;
(g) to consider audit and compliance report
and place the same before the general
body;
(h) to acquire or dispose of immovable
property;
(i) to review membership in other co-
operatives;
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REVN-353-12.doc
(j) to approve annual and supplementary
budget;
(k) to raise funds;
(l) to sanction loans to the members; and
(m) to make such other measures or to do
such other acts as may be prescribed or
required under this Act or the bye-laws
or as may be delegated by the general
body.
21) The question, therefore, would be as to whether the provisions of the Banking Regulation Act which were introduced by the Banking Regulation (Amendment) and Miscellaneous Provisions Act, 2004 (24 of 2004) amending some of the provisions bringing into its sweep regulating control over societies which transact banking business, are attracted in the case in hand. Perusal of the Banking Regulation Act, 1949 indicates that the Reserve Bank of India exercises regulatory control and power of supersession of Board of Directions of multi-State Co-operative Bank, grant of licence to start multi-State Co-operative Bank, to lay down policy of grant of loan, recovery of loan amounts, implementation of Deposit Insurance and Credit Guarantee Scheme under the Deposit Insurance and Credit Guarantee Corporation Act, 1961, winding up of the Bank etc. It needs to be considered as to whether these powers enumerated under the Banking Regulation Act, 1949 to be exercised by the Reserve Bank of India operate as deep and pervasive control of the Bank so as to treat the persons working in the capacity of president, secretary or other office bearers like General Manager, manager to be public servants for the purpose of application of the Prevention of Corruption Act, 1988.
22) The learned counsel appearing for the petitioner Shri. Choudhari has placed reliance on the following reported judgments.
. In S.S. Rana v. Registrar, Co-op. Societies, 2006 (4) Scale
638. In the facts of the case the Apex Court observed in paragraphs 10, 11 and 12 thus :
"10. It has not been shown before us that the State exercises any direct or indirect control over the affairs of the Society for deep and pervasive control. The # 21/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc State furthermore is not the majority shareholder. The State has the power only to nominate one director. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society in the sense that the majority directors are nominated by the State. For arriving at the conclusion that the State has a deep and pervasive control over the Society, several other relevant questions are required to be considered, namely: (1) How the society was created?; (2) Whether it enjoys any monopoly character; (3) Do the functions of the Society partake to statutory functions or public functions?; and (4) Can it be characterized as Public Authority?.
11. The respondent No.1-Society does not answer any of the afore-mentioned tests. In the case of a non-
statutory society, the control thereover would mean that the same satisfies the tests laid down by this Court in Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722]. (See Zoroastrain Coop. Housing Society Ltd. vs. District Registrar, Coop. Societies (Urban) & Ors. reported in 2005 (5) SCC 632].
12. It is well settled that general regulations under an Act, like Companies Act or the Co-operative Socities Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the Society and the State or statutory authorities would have nothing to do with its day-to-day functions."
. In State of Maharashtra v. Laljit Rajshi Shah, AIR 2000 SC 937 the Apex Court in para 6 observed thus :
"6. In view of the rival submissions at the Bar, the sole question that arises for consideration is, as to what is the effect of the provisions of Section 161 of the Maharashtra Co-operative Societies Act in interpreting the provisions of Section 21 of the Indian Penal Code. It is undoubtedly true that the Co- operative Societies Act has been enacted by the State Legislature and their powers to make such legislation is derived from Entry 32 of List II of the Seventh # 22/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc Schedule to the Constitution. The legislature no doubt in Section 161 has referred to the provisions of Section 21 of the Indian Penal Code but such reference would not make the officers concerned 'public servants' within the ambit of Section 21. The State Legislature had the powers to amend Section 21 of the Indian Penal Code, the same being referable to a legislation under Entry 1 of List III of the Seventh Schedule, subject to Article 254(2) of the Constitution as, otherwise, inclusion of the persons who are 'public servants' under Section 161 of the Co- operative Societies Act would be repugnant to the definition of 'public servant' under Section 21 of the Indian Penal Code. That not having been done, it is difficult to accept the contention of the learned counsel, appearing for the State that by virtue of deeming definition in Section 161 of the Co-operative Societies Act by reference to Section 21 of the Indian Penal Code, the persons concerned could be prosecuted for the offences under the Indian Penal Code. The Indian Penal Code and the Maharashtra Co-operative Societies Act are not Statutes in pari material. The Co-operative Societies Act is a completely self-contained Statute with its own provisions and has created specific offences quite different from the offences in the Indian Penal Code. Both Statutes have different objects and created offences with separate ingredients. They cannot thus be taken to be Statutes in pari material, so as to form one system. This being the position, even though the Legislatures had incorporated the provisions of Section 21 of the Indian Penal Code into Co-operative Societies Act, in order to define a 'public servant' but those 'public servants' cannot be prosecuted for having committed the offence under the Indian Penal Code. It is a well known principle of construction that in interpreting a provision creating alegal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the Section by # 23/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc which it is created. A legal fiction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act.
When the State Legislature make the Registrar, a person exercising the power of the Registrar, a person authorised to audit the accounts of a society under Section 81 or a person to hold an inquiry under Section 83 or to make an inspection under Section 84 and a person appointed as an Administrator under Section 78 or as a Liquidator under Section 103 shall be deemed to be 'public servants' within the meaning of Section 21 of the Indian Penal Code. Obviously, they would not otherwise come within the ambit of Section 21, the legislative intent is clear that a specific category or officers while exercising powers under specific sections have by legal fiction become 'public servant' and it is only for the purposes of the Co-operative Societies Act. That by itself does not make those persons 'public servants' under the Indian Penal Code, so as to be prosecuted for having committed the offence under the Penal Code. When a person is "deemed to be" something, the only meaning possible is that whereas he is not in reality that something, the act of legislature requires him to be treated as if obviously for the purposes of the said Act and not otherwise. In a somewhat similar situation in Ramesh Balkrishna Kulkarni v. State of Maharashtra, (1985) 3 SCC 606 : (AIR 1985 SC 1655 : 1986 Cri LJ 14), the question for consideration was whether a Municipal Councillor can be prosecuted for having committed an offence under the Indian Penal Code, since under Section 302 of the Municipalities Act, a Councillor shall be deemed to be a 'public servant' within the meaning of Section 21 of the Indian Penal Code. Section 302 of the Maharashtra Municipalities Act, 1965 is quoted hereinbelow in extenso :
"302. Every councilor and every officer or servant of a Council, every contractor or agent appointed by it for the collection of any tax and every person employed by such contractor or agent for the collection of such tax, shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code."
# 24/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc . In Federal Bank Ltd. v. Sagar Thomas, AIR 2003 SC 4325 in paragraphs 28 and 31 the Apex Court observed thus :
"28. There are a number of such companies carrying on the profession of banking. There is nothing which can be said to be close to the governmental functions. It is an old profession in one form or the other carried on by individuals or by a group of them. Losses incurred in the business are theirs as well as the profits. Any business or commercial activity, may be banking, manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money are no doubt, are such which do have impact on the economy of the country in general. But such activities cannot be classified one falling in the category of discharging duties, functions of public nature. Thus the case does not fall in the fifth category of cases enumerated in the case of Ajay Hasia (supra). Again we find that the activity which is carried on by the appellant is not one which may have been earlier carried on by the Government and transferred to the appellant company. For the sake of argument even if it may be assumed that one or the other test as provided in the case of Ajay Hasia (supra) may be attracted that by itself would not be sufficient to hold that it is an agency of the State or a company carrying on the functions of public nature. In this connection, observations made in the case of Pradeep Kumar Biswas (supra) quoted earlier would also be relevant.
31. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the deposits etc. as provided under Section 5(c)(a) of the Banking Regulation Act dos not mean that the private companies carrying on the business of or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain # 25/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc consequences follow as indicated in the Act itself. Provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for acquiring authority.
23) So far as the Bank is concerned, the Central Government has not purchased any share of the Bank. It is argued by the learned A.P.P. that the power conferred on the Reserve Bank of India and the Central Registrar under the provisions of the Banking Regulation Act are sufficient proof to arrive at conclusion that the functioning of the Bank is regulated and controlled by the Reserve Bank of India. We do not accept the proposition advanced by the learned A.P.P. It is settled position that general regulations under an Act, like the Companies Act or co-operative Societies Act, would not render the activities of a company or a society as subject to control of the State. Whatever control exercised by the Government or its authorities under the provisions of the Act are meant to ensure proper functioning of the society. The Government or in this case the Reserve Bank of India or any other statutory authorities have no role to play in day-to-day functioning of the societies/banks much less exercise control over the recruitment of the staff, its service conditions etc. Considering the provisions of the different enactments more particularly the provisions of the Banking Regulation Act, 1949, we are of the view that the Reserve Bank of India or the Government or its authorities do not exercise any direct, deep and pervasive control over the functioning of the Bank.
25) The learned Additional Public Prosecutor appearing for the State has placed reliance on the case of Govt. of Andhra Pradesh v. P. Venku Reddy (2002 AIR SCW 3895). In the facts of the said case, there was no dispute that the respondent accused was in service of a Co-operative Central Bank which is an 'authority or body' controlled and aided by the government. In the light of the said facts, it was observed in paragraphs 12 and 13 thus:
# 26/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc "12. In construing definition of 'public servant' in Clause
(c) of S.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 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 (AIR 2000 SC 575)).
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 & Anr. v. Prabhakarrao & Anr. 2002 (1) JT (Suppl.1) (SC) 5.
The ratio of the judgment in the case of P. Venku Reddy (cited supra) does not apply to the facts of the case as the present Bank does not receive aid from the State or Central Government nor it is controlled by the Government or a Government company.
28) We are, therefore, of the opinion that the petitioner who discharged his duties as General Manager could not be termed as a 'public servant' as defined in the Prevention of Corruption Act, 1988. Under the provisions of the Banking Regulation Act, 1949, the Central Government or any authority of the Government, the Reserve Bank of India exercise regulatory control over the Bank which is registered under the multi-State Co-operative Societies Act. The said control exercised by these authorities would not be termed as deep and pervasive one. The day to day activities, the internal management are not at all governed and controlled by the # 27/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc Government or its authorities. The Bank is not aided one or funded in any manner by the Government or its authorities. The service conditions of its employees are not regulated by the State or the Central Government or its authorities. Respondent No.3 is, therefore, not competent to initiate action under the provisions of the Prevention of Corruption Act against the petitioner. The impugned notices issued to the petitioner by the Respondent No.3 are without jurisdiction and null and void. The notices are required to be quashed and set aside."
36. Thus, factually, the position before the Division Bench was that the Petitioner was serving as an employee of the Osmanabad Janta Sahakari Bank Limited, Osmanabad. The issue was whether he was a Public Servant even though the Bank was not receiving any financial aid or was not subjected to any control of the Central or the State Government. The argument which was raised before me was never raised before the Hon'ble Division Bench. If a functional Bank and which is not in liquidation and in winding up is not subjected to any control nor is receiving any aid, then, possibly an employee of such a Co-operative Society/Bank can take assistance of the sub-clause (ix) of the definition of the term "Public Servant", as appearing in Section 2 sub-
clause (ix) of the P.C. Act. Therefore, the observations made by the Hon'ble Division Bench must be seen as confined and restricted to the facts which were before it. The Division Bench, with great respect, had no occasion to consider as to whether the employees would be within the purview of the definition of Section 2, sub-clause (ix) of the P.C. Act, if the Bank was under liquidation and the liquidator appointed by the State or a Statutory Authority, namely, Registrar of Co-operative Societies, Maharashtra State, continued their services by any specific order or direction. Thus, a Liquidator of the Bank being appointed by the State Government continues services of all or some of the employees of a Co-operative Society/Bank and if during the course of discharge of such duties, they indulge in acts of bribery and corruption, whether they can be brought within the purview of the P.C. Act, was not the issue or question raised before the Division Bench. The Division Bench, # 28/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc therefore, had no occasion to refer to the definition of the term "Public Servant" in the context of the servants or employees of a Co-operative Society in liquidation and render a decision whether they perform a public duty or not. Once it was not called upon to decide such a question, but I have been called upon to decide so directly, then, with great respect, the observations of the Division Bench cannot assist me in resolving the controversy. Mr. Warunjikar cannot derive any assistance from the general observations of the Hon'ble Division Bench. Far from assisting him, certain observations of the Division Bench would militate against his submissions. The Hon'ble Division Bench relied upon a decision rendered by the Hon'ble Supreme Court in the case of State of Maharashtra Vs. Laljit Rajshi Shah & Ors., reported in AIR 2000 SC
937. That was a Judgment rendered by the Hon'ble Supreme Court while deciding the issue as to whether a Chairman of a Co-operative Society, which is governed by the Maharashtra Co-operative Societies Act, 1960, is a Public Servant within the meaning of Section 21 of the Indian Penal Code. The argument was even if he is a Public Servant under the Maharashtra Co-
operative Societies Act, 1960, he is not a Public Servant under Section 21 of the Indian Penal Code. Therefore, the Judgment of the Hon'ble Supreme Court must be seen in the back-drop of the provisions of Section 21 of the Indian Penal Code, Section 2(20) of the Maharashtra Co-operative Societies Act, 1960 and the Old Prevention of Corruption Act, namely, P.C. Act, 1947. Hence, Mr. Warunjikar's reliance upon even this Judgment cannot carry his case any further. Pertinently, the Hon'ble Supreme Court in Laljit's case (supra) did clarify that certain officials exercising powers under the Maharashtra Co- operative Societies Act, 1960 are termed as "Public Servants" under that Statute and for the purposes of the same.
37. Then his reliance on the decision of the Hon'ble Supreme Court in the case of Greater Bombay Co-operative Bank Limited (supra) is equally misplaced. The issue raised before the Hon'ble Supreme Court was as to # 29/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc whether the Recovery of Debts due to Bank and Financial Institutions Act, 1993, (for short "the RDB Act"), applies to the Co-operative Banks established under the Maharashtra Co-operative Societies Act, 1960 and the Multi State Co-operative Societies Act, 2002. To my mind, any observations and particularly those relied upon by Mr. Warunjikar must be seen as resolving this controversy and answering this issue. Beyond that, the observations cannot assist the Applicant before me.
38. With great respect, now, after the P.C. Act, 1988 came into force, the issue would have to be resolved by looking at the definition of the term "Public Servant" therein and which is in widest terms.
39. I had an occasion to decide an issue as to whether a Public Prosecutor/Additional Public Prosecutor is a Public Servant within the meaning of Section 2(c) of the P.C. Act. In the case of Shantinath S. Patil Vs. State of Maharashtra in Criminal Writ Petition No.2554 of 2009, I had passed an order on 14th January, 2010. In this order by laying special emphasis and stress on the object and purpose of the P.C. Act, I had observed that all persons performing public duties have been brought within the purview of the provision/definition. Therefore, relying upon the definition of the term "public duty", I had, prima facie, expressed my disagreement with the view taken by two learned Single Judges of this Court. I had observed that a Public Prosecutor/Additional Public Prosecutor are public servants as they are performing public duty. In taking that view, I had relied upon a Judgment rendered by a learned Single Judge of this Court in the case of Adi P. Gandhi Vs. State of Maharashtra, reported in 1989 Mh.L.J. 588.
40. The view taken by me has been affirmed in the very Petition by a Division Bench and in its Judgment dated 16 th August, 2010, the Division Bench held that to conduct prosecution on behalf of the state is nothing short of a public duty and, therefore, the Public Prosecutor or Additional Public # 30/45 # ::: Downloaded on - 09/06/2013 13:26:21 ::: REVN-353-12.doc Prosecutor is not an employee of the State Government, but he certainly is a Public Servant within the meaning of Section 2(c) of the P.C. Act, 1988. Thus, the nature of the duty performed by the Public Prosecutor and Additional Public Prosecutor has been relied upon in arriving at the above conclusion.
41. In view of the referral order passed by me, the matter was placed before a Division Bench for resolution of two questions posed by me. The Division Bench, with respect, agreed with me and reversed the narrow view taken in the case of State of Maharashtra Vs. S.G. Gavli, reported in 2008 Cr. L.J. 292 and in the case of State of Maharashtra Vs. S.G. Kulkarni, reported in 2010 ALL M.R. (Cri.) 401.
42. The definition of the term "Public Servant" cannot be construed narrowly or in a manner which would defeat the object of the P.C. Act rather than advancing it.
43. For that purpose, in the Constitutional Bench's Judgment of the Hon'ble Supreme Court in the case of P.V. Narsimha Rao Vs. State (CBI/SPE) etc., reported in AIR 1998 SC 2120, both the majority and minority views concur in interpreting the provisions of the P.C. Act, 1988 so as to advance its purpose. The aim and object of enacting that Act has been noted and in great details.
44. It would be better if the observations of the Hon'ble Supreme Court are reproduced.
45. After noting the issue in para 55 and particularly the question whether a Member of Parliament is a Public Servant for the purposes of the P.C. Act, 1988 and reproducing the definition of the term "Public Servant", as defined therein, what is held is as under :-
"57. The clause relevant for our purpose is Clause (viii) whereunder "any person who holds an office by virtue of which he is authorised or required to perform any public duty" is to be treated as a public servant under the 1988 # 31/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc Act. The said clause postulates that the person must (i) hold an office and (ii) by virtue of that office (iii) he must be authorised or required to perform (iv) a public duty.
58. On behalf of the appellants it has been urged that a Member of Parliament does not fall within the ambit of this clause because (1) he does not hold an office; and (2) he is not authorised or required to perform any public duty by virtue of his office.
59. We will first examine the question whether a Member of Parliament holds an office. The word 'office' is normally understood to mean "a position to which certain duties are attached, esp. a place of trust, authority or service under constituted authority". [See : Oxford Shorter English Dictionary, 3rd Edn.P.1362) . In McMillan v. Guest, (1942) AC 561M , Lord Wright has said :-
"The word 'office' is of indefinite content. Its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following : "A position or place to which certain duties are " attached, especially one of a more or less public character."
In the same case Lord Atkin gave the following meaning :-
"an office or employment which was subsisting, permanent, substantive position, which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders."
In Statesman (Private) Ltd. v. H.R. Deb and Ors.,1968 :
[1968]3SCR614 , and Mahadeo v. Shantibhai and Ors., :
[1969]2SCR422 , this Court has adopted the meaning given by Lord Wright when it said :-
"An office means no more than a position to which certain duties are attached."
66. The next question is whether a Member of Parliament is authorised or required to perform any public duty by virtue of his office. As mentioned earlier, in R.S. Nayak v.
# 32/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc A.R. Antulay this Court has said that though a member of the State Legislature is not performing any public duty either directed by the Government or for the Government but he no doubt performs public duties cast on him by the Constitution and by his electorate and he discharges constitutional obligations for which he is remunerated fees under the Constitution.
67. In the 1988 Act the expression 'public duty' has been defined in Section 2(b) to mean "a duty in the discharge of which the State, the public or the community at large has an interest".
The Form of Oath or Affirmation which is required to be made by a Member of Parliament (as prescribed in Third Schedule to the Constitution) is in these terms :-
"I, A.B., having been elected (or nominated) a member of the Council of States (or the House of the People) do swear in the name of God/Solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."
The words "faithfully discharge the duty upon which I am about to enter" show that a Member of Parliament is required to discharge certain duties after he is sworn in as a Member of Parliament. Under the Constitution the Union Executive is responsible to Parliament and Members of Parliament act as watchdogs on the functioning of the Council of Ministers. In addition, a Member of Parliament plays an important role in parliamentary proceedings, including enactment of legislation, which is a sovereign function. The duties discharged by him are such in which the State, the public and the community at large have an interest and the said duties are, therefore, public duties. It can be said that a Member of Parliament is authorised and required by the Constitution to perform these duties and the said duties are performed by him by virtue of his office.
We are, therefore, of the view that a Member of Parliament holds an office and by virtue of such office he is required or authorised to perform duties and such duties are in the nature of public duties. A Member of Parliament would, therefore, fall within the ambit of # 33/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc Sub-clause (viii) of Clause (c) of Section 2 of the 1988 Act.
79. Having regard to the object of the 1988 Act as indicated in the Statement of Objects and Reasons, namely, to widen the scope of the definition of the expression "public servant", which is sought to be achieved by introducing the definition of "public duty" in Section 2(b) and the definition of 'public servant' in Section 2(c) which enlarges the scope of the existing definition of public servant contained in Section 21 IPC, we do not find any justification for restricting the scope of the wide words used in Sub-clause (viii) of Section 2(c) in the 1988 Act on the basis of the statement of the Minister so as to exclude Members of Parliament and Members of State Legislatures. In our opinion the words used in Sub-clause
(viii) of Section 2(c) are clear and ambiguous and they cannot be cut down on the basis of the statement made by the Minister while piloting the Bill in Parliament.
157. Mr. P.P. Rao submitted that a Constitution Bench had in the case of R.S. Nayak v. A.R. Antulay, (1984) 2 SCR 495:(AIR 1984 SC 684), held that a member of a State legislature was not a public servant, but that the finding therein that he performed a public duty was erroneous and required reconsideration. The expression 'public duty' in Section 2(b) of the said Act meant a duty in the context of a interest which could be enforced at law. A mandamus could not issue to a member of Parliament or a member of a State legislature to perform his duty for he could not be compelled to speak or to vote. It was permissible to refer to the speech in Parliament of the Minister who had moved the Bill that became the said Act. He had stated, in response to a question about the position of a member of Parliament or a member of a Legislative Assembly, thus: "...We have not done anything different or contrary to the law as it stands today. Under the law, as it stands today, the Supreme Court has held in Antulay's case that a Member of a Legislative Assembly is not a public servant within the meaning of Section 21 of the Indian Penal Code." That this was really the position was supported by the fact that two conditions had to be satisfied for the purposes of bringing someone within the purview of the said Act, namely, that he should be a # 34/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc public servant (Section 2) and there should be an authority competent to remove him from his office (Section 19). In this behalf, reliance was placed upon the judgment in K. Veeraswany v. Union of India, : (1991) 3 SCR 189. The judgment of the Delhi High Court under appeal noted that it was not disputed that there was no authority competent to remove members of Parliament from their office. This had also been found by the Orissa High Court in Habibullah Khan v. State of Orissa, 1993 Cri.L.J. 3604. A member of Parliament and a member of a State legislature did not hold an office. Section 2(c)(viii) of the said Act postulated the existence of an office independent of the person holding it, and that, by virtue of the office, the holder was authorised or required to perform a public duty. That a member of Parliament did not hold an office was apparent from the Constitution.
Whereas the Constitution spoke of other functionaries holding offices, members of Parliament were said to occupy seats. The conclusion, therefore, was inescapable that the accused could not be prosecuted under the said Act and the charges had to be quashed. Mr. D.D. Thakur echoed these submissions. He added that it was legally permissible, but morally impermissible, for a legislator to vote in exchange for money. The clauses of Section 2(c) had to be constructed ejusdem generis and, so read, could not cover members of Parliament or the State legislatures. Having regard to the fact that the Minister had made a representation to Parliament when the Bill was being moved that it did not cover members of Parliament and the State legislature, it could not be argued on behalf of the Union Government, by reason of the principle of promissory estoppel, that the said Act covered members of Parliament and the State legislatures. The said Act only removed the surplusage in the then existing definition of "public servant" and had to be construed only in that light. The inclusion of members of Parliament in the said Act was not "clearly implicit"
nor "irresistibly clear." A member of Parliament had only privileges given to him under the Constitution; his only obligation was to remain present for a given number of days. Mr. Sibbal adopted the arguments of Mr. Rao. He added that the Constitution cast no duty or obligation upon a member of Parliament. Consequently, there was no authorisation or requirement to perform a duty under # 35/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc the provisions of Section 2(c)(viii) of the said Act. An authority competent to remove a public servant necessarily contemplated an authority competent to appoint him. There was no authority competent to appoint a member of Parliament and, therefore, there was no authority which could remove him.
158. The Attorney General submitted that the object behind enacting the said Act was to widen the coverage of the anti-corruption laws, as had been stated in its Statement of Object and Reasons. 'Public office' had been defined in Blacks Law Dictionary (Sixth edition, pg 1082) thus, "The right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government for the benefit of the public. An agency for the state, the duties of which involve in their performance the exercise of some portion of sovereign power, either great or small." The Shorter Oxford Dictionary (page 1083) defined "Office" thus, "A position to which certain duties are attached, esp. a place of trust, authority or service under constituted authority." In Antulay's case it had been held that a member of a legislative assembly "performs public duties cast on him by the Constitution and his electorate". That a member of Parliament occupied an office had been the view taken in the cases of Bunting (1884-5(7) Ontario Reports 524) and Boston (1923 (33) CLR 386) (referred to above). A member of Parliament performed the sovereign function of law making and in regard to the exchequer. He had a fundamental duty to serve. He undertook high public duties which were inseparable from his position. A member of Parliament, therefore, held an office. The Constitution provided the number of seats for members of Parliament. The tenure of a Member of Parliament was fixed. He received a salary and other allowances. It was clear from the Constitution that he performed public duties. The oath that he took referred to his obligation to "faithfully discharge the duty" upon which he was about to enter. The Salary, Allowances and Pension of Members of Parliament Act, 1954, specified that a member of Parliament was entitled to receive a salary per mensem # 36/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc "during the whole of his term of office" and an allowance per day "during any period of residence on duty" . The accused, other than D.K. Adikeshavulu and M. Thimmagowda, were, therefore, public servants within the scope of the said Act and could be charged thereunder. Reference to the provisions of Section 19 of the said Act and to the Minister's speech on the Bill that became the said Act was, consequently, not called for. The provisions of Section 19 were attracted only when a public servant had an authority competent to remove him. Where, as in the case of a member of Parliament or a State legislature, there was no authority which was competent to remove a public servant, the provisions of Section 19 were not attracted and a prosecution could be launched and taken cognizance of without previous sanction. Alternatively, the authority to remove a Member of Parliament was the President under the provisions of Article 103 of the Constitution.
159. There can be no doubt that the coverage of Section 2(c) of the said Act is far wider than that of Section 21 of the Indian penal Code. The two provisions have only to be looked at side by side to be sure that more people can now be called public servants for the purposes of the anti- corruption law. There is, therefore, no reason at all why Section 2(c) of the said Act should be construed only in the light of the existing law and not on its own terms. It is for the Court to construe Section 2(c). If the Court comes to the conclusion that members of Parliament and the State legislatures are clearly covered by its terms, it must so hold. There is then no reason to resort to extraneous aids of interpretation such as the speech of the Minister piloting the Bill that became the said Act. The true interpretation of a statute does not depend upon who urges it. The principle of promissory estoppel has no application in this behalf. Further., if the court comes to the conclusion, based on Section 2(c) itself, that Members of Parliament and the State legislators are, clearly, public servants, no resort to the provisions of Section 19 is required in this regard. The words "public servant" in Section 19 must then bear that meaning that is attributed to them on the construction of the definition thereof in Section 2(c).
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160. A public servant is "any person who holds an office by virtue of which he is authorised or required to perform any public duty." Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty. Public duty is defined by Section 2(b) of the said Act to mean "a duty in the discharge of which the State, the public or that community at large has an interest." In a democratic form of Government it is the Member of Parliament or a State legislature who represents the people of his constituency in the highest law making bodies at the center and the State respectively. Not only is he the representative of the people in the process of making the laws that will regulate their society, he is their representative in deciding how the funds of the center and the States shall be spent and in exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the State, the public and the community at large would have greater interest. The submission that this Court was in error in Antulay's case (AIR 1984 SC 684) in holding that a member of a State legislature "performs public duties cast on him by the Constitution and his electorate" must be rejected outright. It may be - we express no final opinion - that the duty that a Member of Parliament or a State legislature performs cannot be enforced by the issuance of a writ of mandamus but that is not a sine non for a duty to be a public duty. We reject the submission, in the light of what we have just said, that a member of Parliament has only privilege, no duties. Members of Parliament and the State legislatures would do well to remember that if they have privileges it is better to perform their duty of effectively and fearlessly representing their constituencies."
46. Thus, the attention of all concerned must be invited to these Judgments of the Hon'ble Supreme Court. Once these Judgments by underlying the importance of a public duty and all those performing a public duty have been termed as "Public Servants", then, to my mind, a narrow and restricted view cannot be taken. That would mean brushing aside the plain language of the Statute. It is not permissible in law to adopt such a course while interpreting a # 38/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc Statute. If the language of the Statute is plain, its meaning is clear, then, the Court must apply it. To my mind, therefore, Mr. Warunjikar is not right in only relying upon the bye-laws of a Co-operative Society or a Co-operative Bank such as in this case. It is not the status of the entity or its set up which is important, but the nature of the duty performed by it as well. If the duty that is performed by the servant of such a legal entity is a public duty and which term is also defined in the P.C. Act, then, the view taken by the learned Special Judge in this case cannot be said to be illegal or perverse.
47. When a Co-operative Society faces financial problems and is in any financial doldrums and fails to perform its functions under the By-laws, the Maharashtra Co-operative Societies Act, 1960 and the Rules, then, the Maharashtra Co-operative Societies Act, 1960, itself envisages a procedure of its winding up vide Chapter X under the head "Liquidation". Section 102 appearing in that chapter is titled as winding up. Upon a winding up order being passed, a Liquidator is appointed and that is provided by Section 103.
The appointment is made by the Registrar of the Co-operative Societies, who is the Statutory Functionary. Once he appoints a person to be a Liquidator of a Society, then, all officers of the Society have to mandatorily hand over to the Liquidator the custody and control of all the property, effects and actionable claims to which the Society is or appears to be entitled and of all books, records and other documents pertaining to the business of the Society. Thereafter, these officers have no access to any of them. When a final order of appointment of Liquidator is passed, the officers of the Society shall vacate their offices and while the winding up order remains in force, the General Body of the Society shall not exercise any powers. The Liquidator appointed under Section 103 works subject to the general control of the Registrar and exercises all or any of his powers mentioned in Section 105. Sub-section (5) of Section 103 of the Maharashtra Co-operative Societies Act, 1960 reads as under :-
# 39/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc "103. Appointment of Liquidators.-
(1) ...................................... to (4) ......................................
(5) The whole of the assets of the society shall on the appointment of Liquidator under this section vest in such Liquidator, and notwithstanding anything contained in any law for the time being in force, if any immovable property is held by a Liquidator on behalf of the society, the title over the land shall be complete as soon as the mutation of the name of his office is effected, and no Court shall question the title on the ground of dispossession, want of possession or physical delivery of possession.
(6) ......................................................................................."
48. Then comes Section 105 of the Maharashtra State Co-operative Societies Act, 1960, which enumerates the powers of Liquidator and to the extent relevant reads as under :-
"105. Powers of Liquidator [(1)]The Liquidator appointed under Section 103 shall have power, subject to the rules and the general supervision, control and direction of the Registrar.-
(a) to institute and defend any suit and other legal proceedings, civil or criminal, on behalf of the society, in the name of his office;
(b) to carry on the business of the society, so far as may be necessary for the beneficial winding up of the same;
(c) to sell immovable and movable property and actionable claims of the society by public auction or private contract, with power to transfer the whole or part thereof to any person or body corporate, or sell the same in parcels;
[(c-i) to transfer by sale assets valued at market price to a society registered with similar objects or to # 40/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc Government undertaking which carries on the same business as of the society under liquidation;
(c-ii) to lease to other societies or to Government undertaking, with prior approval of the Registrar, the property of the society to run the same business as that of the society under liquidation;]
(d) ........................... to (o) ............................."
49. The term Liquidation is defined as the act of settling, adjusting debts, or ascertaining their amounts or balance due; settlement or adjustment of an unsettled account; the act of admitting claims of indebtedness; the winding up of an insolvent firm of company. In its general sense, liquidation means the act or operation of winding up the affairs of a firm or company by getting in the assets, settling with its debtors and creditors, and appropriating the amount of profit or loss. Closing or winding up of an organization through legal process on account of its inability to meet its obligations or to pay its debts, is called its liquidation. In order to clear their indebtedness to the maximum extent by selling their assets at the most reasonable rates, a competent liquidator is appointed in such conditions.- See Advanced Law Lexicon by P. Ramanatha Aiyar, 3rd Edition, Volume-3, Reprint 2007. Thus, when the Liquidator has been given wide powers to carry on business of the Society so far as may be necessary for beneficial winding up of the Society and to do all acts and to execute in the name and on behalf of the Society all Deeds, receipts and other documents as may be necessary for such winding up and the effect of winding up has been set out by Section 106, that I have no doubt in my mind that Chapter X enacts provisions/prohibitions which enjoin the Liquidator to perform a public duty. The Liquidator acts for winding-up and dissolution of the Society and his appointment is intended for that purpose. Once he is performing above tasks and which can be safely termed as public duties, then, # 41/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc it is inconceivable that the officers appointed by him are not carrying on public duties. Once the Society is wound-up and the Liquidator is appointed so as to beneficially wind up its affairs, then, during the course of such liquidation proceedings, all those assisting the Liquidator and discharging duties assigned by him, equally discharge and perform a public duty within the meaning of Section 2(b) of the P.C. Act. Understood thus, it is not possible to agree with Mr. Warunjikar that the Applicant was not carrying on any public duty and, therefore, is not a Public Servant within the meaning of the said term, as defined in the P.C. Act. If Explanation 1 below Section 2 sub clause (c) of the P.C. Act is noted, it is clear that persons falling under any of the sub-clauses are Public Servants, whether appointed by the Government or not. Thus, when the Liquidator is appointed by the Registrar of Co-operative Societies and the Liquidator has to ensure that the affairs of the Society are beneficially wound up and all this is pursuant to a winding up order passed in exercise of statutory powers, then, any criminal misconduct or any act, which is an offence and for which punishment is provided by the P.C. Act, if committed not only by the Liquidator but all those appointed by him or working under him are misdeeds of public servants and will be included within the purview of the definition. As each one of them is performing a public duty, it is not for nothing but to emphasize this aspect, that by Section 161 of the Maharashtra Co-operative Societies Act, 1960, the Liquidator is deemed to be a "Public Servant" within the meaning of Section 21 of the Indian Penal Code, 1860. If such interpretation is not placed on the provisions, then, the very purpose of amending the P.C. Act and enacting such definitions would be frustrated. In such circumstances and when liquidation and winding up of a society is a public duty, then, all the more, the contentions of Mr. Warunjikar cannot be accepted.
50. Once the duties of the Liquidator are to ensure beneficial winding up and towards that endeavour he is given wide powers, then, it is difficult to # 42/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc hold that the duties and functions discharged during the course of such beneficial winding up, are not such in which the State, the public or the community at large has no interest. A Co-operative Bank or a Co-operative Society is not meant for only its members. A Co-operative Society is set up so as to fulfill the directive principles of State Policy.
51. The directive principles of State Policy have an important role in the Constitutional Scheme. Part IV of the Constitution of India enumerates directive principles of State Policy. Article 37 clarifies that the provisions contained in this part shall not be enforceable by any Courts, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Articles 38 and 39 cast a duty on the State to secure a social order for the promotion of the welfare of the people. Article 39 sets out the principles of policy to be followed by the State. Article 40 provides for organization of Village Panchayats and Article 43 under which the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas is the foundation for the Co-operative movement and particularly now by Article 43B of the Constitution of India, everything gets clarified. These Articles read as under :-
"43. Living wage, etc., for workers - The State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas. [43B. Promotion of co-operative societies.- The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co- operative societies.]" [Ins. by the Constitution (Ninety-seventh Amendment) Act, 2011, s. 3 (w.e.f. 15-2-2012).
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52. Therefore, the co-operative movement is a socio economic and moral movement. In that, General Public has a definite place and its participation is but natural. There are not just members' interest involved in the Co-operative Societies. The Hon'ble Supreme Court holds that the very philosophy and concept of the co-operative movement is impregnated with the public interest. (See para 10 at page 979 of the Judgment of the Hon'ble Supreme Court in the case of Daman Singh Vs. State of Punjab, reported in AIR 1985 SC 973). Co- operation is a substitute for self-interest of individual or group of individuals for the benefit of the whole community. The Co-operative Societies undertake agricultural and non-agricultural operations and functions including financial. Therefore, it is futile to urge that only members or depositors are interested in the working and functioning of a Co-operative Bank or its liquidation and winding up. There are persons like the Complainant, who deal with the Co-
operative Banks or Societies and whose funds and properties are utilized by such Entities. When they complain that persons who are appointed as officers during the course of winding up and liquidation proceedings of the Societies', commit acts which is a criminal misconduct and indulge in bribery and corruption, then, the P.C. Act, 1988 and its mechanism must be made available for dealing with the grievances and complaints of such persons. Once the constitutional perspective is borne in mind, then, the position of a Co-operative Society is not confined to local limits, nor its functioning and working restricted to few persons. There is a definite stake of the Society and the community at large in the working and functioning of such societies.
Therefore, the Applicant was discharging a public duty. The conclusion of the learned Judge cannot be said to be vitiated in any manner and particularly as suggested by Mr. Warunjikar.
53. The decisions relied upon by Mr. Warunjikar interpreting Article 12 of the Constitution of India can hardly assist him. For the purposes of issuance of prerogative writs or whether for any other purpose, as enshrined in Article 226 # 44/45 # ::: Downloaded on - 09/06/2013 13:26:22 ::: REVN-353-12.doc of the Constitution of India can Article 12 taken assistance or aid of, was the question in all these decisions. True it is that Private Sector Banks are not subjected to prerogative writs or writ jurisdiction and that would include even Co-operative Banks or Co-operative Societies to certain extent, but to state that the servants of such Societies are beyond the purview of the P.C. Act, 1988 and in all cases and under all circumstances, with respect, is a over statement in law and none of the these decisions have gone to that extent.
54. The Hon'ble Supreme Court holds that this is not a matter where one could only take or derive any assistance from the definition of the term "Public Servant", as appearing in Section 21 of the Indian Penal Code or the Co- operative Societies Act. Hence, all these Judgments and particularly from the compilation, which are relied upon by Mr. Warunjikar, are of no assistance in resolving this controversy. They are clearly distinguishable.
55. As a result of the above discussion, I do not find any merit in this Criminal Revision Application and it fails. Rule is discharged.
56. At this stage, a request is made by the learned Counsel appearing on behalf of the Applicant to continue the ad-interim order dated 19 th December, 2012 staying the proceedings before the learned Special Judge, Mumbai.
57. This request to continue the ad-interim order is opposed by the learned A.P.P.
58. Having regard to the fact that the order dated 19 th December, 2012 has been in force till today, interest of justice would be served if the same is continued till 30th June, 2013. No further extension will be granted. This continuation is without prejudice to the rights and contentions of both sides.
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