Madhya Pradesh High Court
Dr. R.K.Rawat vs The State Of Madhya Pradesh on 13 September, 2019
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey, Vishal Dhagat
1
M.Cr.C.No.10483/2010
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Misc. Criminal Case No.10483/2010
Dr. R.K. Rawat
V.s
State of Madhya Pradesh
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Shri Raman Patel and Shri Lalmani Tripathi, counsel for the applicant.
Shri Rajesh Tiwari, Government Advocate for the respondent/State.
Shri Ankit Saxena, counsel for the complainant.
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PRESENT:
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY &
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ORDER
(13/09/2019) As per :- Rajeev Kumar Dubey, J.
This reference has been made by the learned Single Judge vide order dated 20.05.2019 passed in M.Cr.C.No.10483/2010 on the following points:-
(I) Whether Section 76 of the Cooperative Societies Act applies only to the offences under Sections 72D and 74 of the Cooperative Societies Act or also to the offences under Sections 409, 420, 467, 468 of the IPC registered simultaneously in the same FIR at Crime No.942/2009 and on the basis of said plea, FIR for the offences under the provisions of the IPC can be quashed.
(II) Whether the judgments of learned Single Bench in the case of Avadhesh Raghuvanshi (supra) and Devki Nandan Dubey (supra) lay down correct law quashing the FIR under Section 409, 420, 467, 468 of the IPC along with the offences under Section 72D and 74 of Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 2 M.Cr.C.No.10483/2010 the Cooperative Societies Act with the help of Section 76 of the Cooperative Societies Act and Section 5 of the Cr.P.C. looking to the law laid down by the Apex Court in the case of K. Ashoka Vs. N.L. Chandrashekar & others reported in AIR 2009 SC 3288.
2. Before setting out the points of reference referred by the learned Single Judge, we may set out the background in which the said questions of law have been referred for the decision of this Court. A complaint was lodged before Commissioner, Jabalpur by Kuldeep Narain Shukla and M.L. Vishwakarma, the two Executive Members of the Defence Housing Society Jabalpur against Bhikhanlal Yadav and present applicant Dr. R.K. Rawat regarding irregularities in allotments of plots, not conducting the election of the society and misappropriation of property of the Society. Commissioner Jabalpur forwarded that complaint for enquiry to Sub Registrar Cooperative Society, Jabalpur who inquired into the complaint and found that applicant illegally sold the land of the society which had already been allotted to 28 members of the Society to other persons who were not members of the society and applicant embezzled sale amount. Sub Registrar Cooperative Society, Jabalpur also lodged the FIR at Police Station Gohalpur against the applicant. On that report, police registered Crime No.942/2009 for the offences punishable under Sections 420, 467, 468 of the IPC and investigated the matter. After completion of investigation, charge-sheet was filed, for the offences punishable under Section 409 of the IPC and Section 72-D of the M.P. Cooperative Societies Act, 1960 (hereinafter referred to as 'the Act'), before the Judicial Magistrate First Class, Jabalpur. On that charge sheet, ST No.486/10 was registered which is pending before Additional Sessions Judge, Jabalpur. Being aggrieved from that, applicant filed this petition for quashing of the FIR as well as charge Sheet.
3. During the hearing of the petition, applicant raised the objection that police filed charge sheet against the applicant for the offence under Sections 409, 420, 467, 468 of the IPC and Section 72 of the Act, while according to Section 76 of the Act, the offence, if any, registered under the Act can be tried by the Court not inferior to Judicial Magistrate First Class and person cannot be prosecuted without previous sanction of the Registrar in writing. In this regard, applicant also placed reliance on this Court judgment passed Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 3 M.Cr.C.No.10483/2010 in Avdhesh Raghuvanshi v. State of M.P. reported in 2013 (3) MPHT 116 and M.L. Gaur and another v. State of M.P. reported in 2015 (1) MPJR 61 and unreported judgment of this Court in Devki Nandan Dubey Vs. State of M.P. (M.Cr.C.No.10867/2009 decided on 01.03.2013).
4. On the contrary, respondent opposed the prayer and submitted that from the allegation prima-facie offence punishable under Sections 409, 420, 467, 468 of IPC is made out against the applicant. So trial of the applicant for these offences is permissible and for that purpose permission of the Registrar is not required and not seeking permission from the Registrar is not fatal to institute a criminal proceeding for the offence of the IPC. In this regard, learned counsel for the respondent placed reliance on Apex Court judgment passed in the case of K. Ashoka Vs. N.L. Chandrashekar & others reported in AIR 2009 SC 3288 and in the light of the said judgment, it was also argued by the learned counsel for the respondent that judgment of Avadhesh Raghuvanshi (Supra) and Devki Nandan Supra (supra) are not good law, therefore, they may be held per incuriam.
5. Learned Single Bench observing that on perusal of Chapter VIII-A of the Act, it was revealed that for the offence under Section 72-D, penalties have been prescribed under Section 72-E and for the offence under Section 74, penalties have been prescribed under Section 75. Section 76 deals with the taking of cognizance of offence whereby the Court inferior to Judicial Magistrate First Class would not try the offence registered under the Act. It is further clarified that, if any, offence is registered under the Act, it would not be instituted without prior sanction of the Registrar, Cooperative Societies meaning thereby, if any of the offences under the provision of the Act is registered either under Section 72-D or under Section 74 of the Cooperative Societies Act, sanction of the Registrar would be necessary. But for registration of offence under the provisions of the IPC i.e., Sections 409, 420, 467, 468 of IPC, the sanction of the Registrar is not required. In any case, the said issue has been decided in the case of Avadhesh Raghuvanshi (Supra) and Devki Nadan Dubey (supra) quashing the prosecution though in the said cases, the offences were registered under the provisions of the Act as well as the IPC. In view of the foregoing discussion, looking to the intention of the legislature and the language engrafted under Section 76 of Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 4 M.Cr.C.No.10483/2010 the Act and also in view of the judgment of the Supreme Court in the case of K. Ashoka (supra), the judgments of Avdhesh Raghuvanshi (Supra) and Devki Nandan Dubey (Supra) requires consideration by the larger Bench, referred the matter for larger Bench on the above mentioned questions.
6. Learned counsel for the applicant submitted that the applicant is a member and former President of the Defence Worker Housing Co-operative Society Ltd. Jabalpur. The said society is registered under the provisions of the M.P. Co-operative Societies Act, 1960. Therefore, the society is corporate body as per Section 31 of the M.P. Co-operative Societies Act, 1960. The main objects of the society is to provide residential plots to its members. The complaint was made against the applicant that he committed irregularity and illegality in allotment of plots. That allegations as set out in the charge sheet are touching the business of the society. Thus, offence under Section 72-D and 74 of the M.P. Co-operative Societies Act, 1960 are attracted. He further submitted that for the offence under Section 72-D of the M.P. Cooperative Societies Act, 1960, penalties have been prescribed under Section 72-E and for the offence under Section 74, penalties have been prescribed under Section75. Therefore the provisions of Indian Penal Code cannot be invoked. Section 76 of the Act deals with the taking of cognizance of offence, complaint shall not be instituted under the Act without previous sanction in writing of the Registrar because as per Section 87 of the Act, the applicant being former President of the Society shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. He further submitted that in any dispute arising between housing cooperative society and its members the matter may be referred to the co-operative Court under the provisions of the Act, and no other Court like industrial Court, Criminal Court and Consumer Court would have any jurisdiction to hear the case with regards to the Housing Cooperative Society. As per Section 58-B of the Act procedure for making good, losses caused to a society like misconduct or misappropriation or fraudulently retained, any money or other property belonging to the society the Registrar may consider and resolve the dispute after giving an opportunity of hearing in the matter. He further submitted that Section 76 of the Act which is a special enactment enacted with the permission of the President and, Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 5 M.Cr.C.No.10483/2010 therefore, it is special Law prevailing over the general law i.e., Indian Penal Code. M.P. Co-operative Societies Act, 1960 is a complete Code in itself, so if a person commits any illegality in the affairs of the society or violate the provisions of the Act, remedy of the prosecuting agency lies not under the Penal Code but within the ambit of Sections 72 to 76 of the Act. Punishment under two separate legislations cannot be awarded for the same Act. It is a violation of the provisions of Article 20 (2) of the Indian Constitution and Section 26 of the General Clauses Act. So, prosecution of the applicant for the same Act under two different enactments i.e. M.P. Co-operative Society Act and Penal Code cannot be maintained. Provisions of the Act which is a special Law will prevail over the general law i.e., Indian Penal Code. Cognizance against the applicant who is the former President of the Society and presently a member of the society regarding allegations of irregularities and illegalities and misappropriation of the society's property cannot be taken without the permission of Registrar of Housing Cooperative Society as mentioned in Section 76 of the Act and the prosecution of applicant under the provisions of penal Code is not maintainable.
7. In this regard, he also placed reliance on this Court judgment passed in the case of Devki Nandan Dubey vs. State of MP (supra), in that case the Single Bench of this Court quashed the FIR of Crime No.848/2009 registered at Police Station Garha, for the offences punishable under Section 420, 467, 468 of IPC and Section 72-D of M.P. Co-operative Society Act, 1960 observing that "on perusal of provisions of Section 5 of the Cr.P.C. it is clear that dispute regarding allotment of plot or cancellation of plot allotted to a member by society is punishable under Section 72 read with Section 74 of the Act of 1960 and cognizance of such offence can be taken only on a sanction given by Registrar, Cooperative Societies under Section 76 of the Act of 1960 and the provisions of Cr.P.C. are not applicable to such offence which are part of a special Act i.e. M.P. Cooperative Societies.
8. Looking to the provisions of Sections 72-D, 74, 76 and 64 of the Act of 1960, the police has no power to investigate the dispute between members of society and society relating to the business of society which include allotment and cancellation of plot, therefore, looking to the provisions of Act of 1960 and by-laws of the society for allotment of a plot Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 6 M.Cr.C.No.10483/2010 and cancellation of allotment, no cognizance for the offence punishable under Sections 420, 467, 468 of the IPC and Section 72-D of the Act can be taken or FIR can be lodged as the offence falls within the ambit of Section 72-D of the Act of 1960 and provisions of punishable have been made in the said Act and cognizance of such offence can only be taken under Section 76 (2) of the Act of 1960 on a sanction given by the Registrar of the Cooperative Society."
9. He further placed reliance upon the judgement passed in Avdhesh Raghuvanshi vs. State of M.P. (supra), in that case also a Single Bench of this Court quashed the proceedings of S.T.No.235/11 pending before the XIII Additional District and Sessions Judge, Bhopal for the offence punishable under Sections 420, 467, 468, 471 r/w 120-B of IPC on the same ground and the judgement of this Court passed in the case of Anil Jaiswal v State of M.P. reported in 2016 (1) MPLJ (Cri.) 165 in which also a Single Bench of this court relying upon the judgement passed in Avdhesh Raghuvanshi vs. State of M.P. (supra) quashed the proceedings of S.T.No.158/11 pending before the IIIrd Additional District and Sessions Judge, Jabalpur for the offence punishable under Sections 420, 467, 468, 471 r/w 120-B of IPC and Section 72-D of the Act.
10. Learned counsel of the applicant further placed reliance on the judgement of this court passed in the case of M.L. Gaur & anr. Vs State of M.P. 2015 (I) MPJR 61 and the Apex Court judgements passed in the case of Bhanushali Housing Cooperative Society Ltd. v. Mangilal & Ors. reported in (2015) 10 SCC 277, Satya Pal Anand v State of M.P. & Ors. reported in (2016) 10 SCC 767.
11. Per contra, learned counsel for the State and complainant submitted that Section 76 of the Act clearly spells out that "(1) No Court inferior to that of a Magistrate of the First Class shall try any offence under this Act. (2) No prosecution shall be instituted under this Act without the previous sanction in writing of the Registrar and such sanction shall not be given without giving the person concerned an opportunity to represent his case." This clearly shows that the provisions of the Sections 76 applies only to that act of a person which is punishable under the Act. If from the complaint/charge- sheet apart from the offence which is punishable under the Act, the offence Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 7 M.Cr.C.No.10483/2010 under penal code is also made out than Magistrate can take cognizance of the offence without the complaint filed by the Registrar.
12. In this regard he also placed reliance on the Apex Court judgment passed in the case of Rama Rao v. Narayan, (1969) 1 SCC 167, K. Ashoka vs. N.L. Chandrashekar & others reported in AIR 2009 SC 3288 and State of M.P. v. Rameshwar & Ors. (2009) 11 SCC 424.
13. Before considering the aforesaid points of reference, it would be better to examine the appropriate provisions of M.P. Co-operative Societies Act, 1960, which reads as under:-
14. Section 31 of the Act, gives status of Body Corporate to Society.
"31. Societies to be bodies corporate - The registration of a society shall render it a body corporate by the name under which it is registered, having perpetual succession and a common seal, and with power to hold property, enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it was constituted."
15. Section 64 of the Act deals with what type of dispute comes under the Act which reads as under:-
"64. Disputes:- (1) Notwithstanding anything contained in any other law for the time being in force, [any dispute touching the constitution, management or business, or the liquidation of a society shall be referred to the Registrar] by any of the parties to the dispute if the parties thereto are among the following:-
(a) a society, its Board of Directors, any past Board of Directors, any past or present officer, any past or present agent, any past or present servant or a nominee, heirs or legal representatives of any deceased agent or deceased servant of the society, or the liquidator of the society;
(b) a member, past member or a person claiming through a member, past member or deceased member of a society or of a society which is a member of the society ;
(c) a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions and any person claiming through such a person;
(d) a surety of a member, past member of deceased member or a person other than a member who has been granted a loan by the society, whether such a surety is or is not a member of the society;
(e) any other society or the liquidator of such a society; and Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 8 M.Cr.C.No.10483/2010
(f) a creditor of a society.
(2) For the purposes of sub-section (1), a dispute shall include -
(i) a claim by a society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not;
(ii) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand be admitted or not;
(iii) a claim by a society for any loss caused to it by a member, past member or deceased member, any officer, past officer or deceased officer, any agent, past agent or deceased agent, or any servant, past servant or deceased servant or its Board of Directors, past or present, whether such loss be admitted or not ;
(iv) a question regarding rights, etc., including tenancy rights between a housing society and its tenants or members; and
(v) any dispute arising in connection with the election of any officer of the society or representative of the society or of composite society:
Provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programme till the declaration of the results].
(3) If any question arising whether a dispute referred to the Registrar is a dispute, the decision thereon of the Registrar shall be final and shall not be called in question in any court."
16. Section 72-D and 74 defines the omission and commission which are offences under the Act and Section 72-E and 74 provide punishment for that.
"72-D. Offences.-Any of the following acts shall amount to and be construed as an offence under Section 74, namely:-
(i) Transfer of a registered plot, dwelling house of flat to another person, in violation of the provisions of this Act, Rules, Byelaws of the society or any condition of allotment.
(ii) Tampering with the membership list.
(iii) Admitting members in excess of the number prescribed in the byelaws.
(iv) Not developing the land in accordance with the development plans of the society.Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 9 M.Cr.C.No.10483/2010
(v) Allotment or sale of the land in violation of the approved layout plan of the society.
(vi) Non-development of the land which is reserved for general use of the society such as for community hall, school or hospital, or for any other purpose specified in the byelaws.
(vii) Not maintaining or providing services paid for by the members without just and sufficient cause.
(viii) Allotment of plots to members are not made according to the priority list of members.
(ix) Selling or leasing out the land held by society or transferred the land without permission of the Registrar.
(x) Not complying with the provisions of clause (f) of sub-
section (1) of Section 72-B.]
17. Section 72-E of the Act reads as under:-
"72-E. Penalties for offences.-Every Board of Directors, officer or past officer or member or past member or an employee or a past employee of a society or any other person shall, without prejudice to any action that may be taken against him under any law for the time being in force, be liable to be punished:-
[(a) for an offence mentioned in clause (i) of Section 72-D, with a fine which may extend to five lac rupees or with imprisonment or a term which may extend to three years or with both;
(b) for an offence mentioned in clause (ii) of Section 72-D with a fine which may extend to five lac rupees or with imprisonment for a term which may extend to three years or with both;
(c) for an offence mentioned in clause (iii) of Section 72-D with a fine which may extend to five lac rupees or with imprisonment for a term which may extend to three years or with both;
(d) for an offence mentioned in clauses (iv), (v), (vi), (vii),
(viii), (ix) & (x) of Section 72-D, with a fine which may extend to five lac rupees or with imprisonment for a term which may extend to three years or with both."
18. Section 74 of the Act reads as under:-
"74. Offences.-It shall be an offence under this Act, if - (a) a Board of Directors or an officer or member thereof willfully makes a false report or furnishes false information or dishonestly fails to maintain accounts or dishonestly maintains false accounts; or
(b) any person collecting share money for a society in formation does not deposit the same in the Madhya Pradesh State Co-operative Bank Ltd., a Central Co-Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 10 M.Cr.C.No.10483/2010
operative Bank, an Urban Co-operative Bank or a Postal Savings Bank, within fourteen days of its receipt; or
(c) a person collecting the share money for a society in formation makes use of the funds so raised for conducting any business or trading in the name of a society to be registered or otherwise; or
(d) any officer of a society willfully recommends or sanctions for his own personal use or benefit or for the use or benefit of a person in whom he is interested loan in the name of any other person; or
(e) an officer or any member destroys, mutilates, alters, falsifies or secrets or is privy to the destruction, mutilation, alteration, falsification or secreting of any books, papers or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account or document belonging to the society; or
(f) an officer or a member who is in possession of information, books and records, willfully fails to furnish such information or produce such books and papers or does not give assistance to a person appointed or authorized by the Registrar under Sections. 53, 58, 59, 60, [xx], 67 and 70; or
(g) an officer willfully fails to hand over custody of books, records, cash, security and other property belonging to the society of which he is an officer, to a person appointed under Sec. 53 or 70; or
(h) a member fraudulently disposes of property over which the society has a prior claim or a member or officer or employee or any person disposes of his property by sale, transfer, mortgage, gift or otherwise with the fraudulent intention of evading the dues of the society; or
(i) any employer and other director, manager, secretary or other officer or agent acting on behalf of such employer who, without sufficient cause, fails to comply with provisions of sub-section (2) of Sec. 42; or
(j) any person acquires or abets in the acquisition of any property which is subject to a charge under sub-section (1) of Sec.40; or
(k) an officer or member of a society or any person does any act or is guilty of omission declared by the rules to be an offence; or
(l) any person willfully or without any reasonable excuse disobeying any summons, requisition or lawful written order issued under the provisions of the Act; or
(m) any employer who without sufficient cause, fails to pay to a co-operative society the amount deducted by him from its employee within a period of fourteen days from the date on which such deduction is made; or Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 11 M.Cr.C.No.10483/2010
(n) whoever, before, during or after the election of members of the Board of Directors or office bearers adopts any corrupt practice.
Explanation - For the purposes of this section an officer or a member referred to in this section shall include past officer or past member, as the case may be."
19. Section 75 of the Act reads as under:-
"75. Penalties for offences.-Every Board of Directors, officer or past officer or member or past member or an employee or past employee of a society or any other person shall, without prejudice to any action that may be taken against him under any law for the time being in force, be liable to be punished:- (a) with fine not exceeding Rs.50,000, provided that he is convicted of an offence referred to in Sec. 74 (a);
(b) with fine not exceeding Rs.25,000, provided that he is convicted of an offence referred to in Sec. 74 (b); or
(c) with fine not exceeding Rs.25,000, provided that he is convicted of an offence referred to in Sec.74 (c)
(d) with fine not exceeding Rs.50,000, provided that he is convicted of an offence referred in sec.74 (d); or
(e) with fine not exceeding Rs.50,000, provided that he is convicted of an offence referred to in section 74(e); or
(f) with fine not exceeding Rs.25,000, provided that he is convicted of an offence referred to in section (f); or
(g) with fine not exceeding Rs.25,000, provided that he is convicted of an offence referred to in Sec.74 (g); or
(h) with fine not exceeding Rs.50,000, provided that he is convicted of an offence referred to in sec. 74(h); or
(i) with fine not exceeding Rs.25,000, provided that he is convicted of an offence referred to in section 74(i); or
(j) with fine not exceeding Rs.25,000, provided that he is convicted of an offence referred to in Sec.74 (j); or
(k) with fine not exceeding Rs.25,000, provided that he is convicted of an offence referred to in sec. 74(k); or
(l) with fine not exceeding Rs.25,000, provided that he is convicted of an offence referred to in sec. 74(I); or
(m) with fine not exceeding Rs.25,000, provided that he is convicted of an offence referred to in sec. 74(m); or
(n) with fine not exceeding Rs.50,000, provided that he is convicted of an offence referred to in sec. 74(n)."
20. Section 76 of the M.P. Cooperative Societies Act reads as under :-
"76. Cognizance of offences- (1) No Court inferior to that of a Magistrate of the First Class shall try any offence under this Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 12 M.Cr.C.No.10483/2010 Act. (2) No prosecution shall be instituted under this Act without the previous sanction in writing of the Registrar and such sanction shall not be given without giving to the person concerned an opportunity to represent his case."
21. The plain reading of the provisions of the Act makes clear that the Act has been enacted by the Legislature with a view to provide for registration, management, smooth functioning, supervision and control of the Registrar over a co-operative society. Provisions are made for redressal of grievances concerning dispute touching constitution, management or business of a co- operative society. The Tribunal has been constituted to hear appeals or revision against the orders of the Registrar. Legislature also made some acts punishable under the Act. As clear from the provisions mentioned in Section 72-E & 75 of the Act, in a case where any act of a person also constitute an offence under the Penal Code or any other law for the time being in force, in that case, he is also liable for that offence. The action which can be taken against him under the Act is in addition to that punishment for which he is liable under the penal code or any other act. Legislature has also given protection to the person against the acts which made offence under the act to avoid prosecutions on mere allegations that something has gone wrong. The law postulates that a responsible officer Registrar has to examine the facts and accord sanction after giving the person concerned an opportunity to represent his case. However Section 76 of the Act also makes it clear that the said protection is only available to the person against the offences which are punishable under the Act not for the offence punishable under the Penal Code or any other law time being inforce.
22. Where there are two distinct offences made up of different ingredients, embargo under Article 20 (2) or Section 26 General Clauses Act 1897 has no application, though the offences may have some overlapping features. The doctrine of double jeopardy protects a person from being tried and punished twice for the same offence but not from different offences arising out of violation of different laws by the same set of facts.
23. The Constitution Bench of the Supreme Court while dealing with the issue of double jeopardy under Article 20(2), in the case of The State Of Bombay vs S. L. Apte & Another AIR 1961 SC 578 held "If, therefore the Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 13 M.Cr.C.No.10483/2010 offences were distinct there is no question of the rule as to double-jeopardy as embodied in Art. 20(2) of the Constitution being applicable. The next point to be considered is as regards the scope of s. 26 of the General Clauses Act. Though s.26 in its opening words refers to "the act or omission constituting an offence under two or more enactments", the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence,". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked."
24. In the case of State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772 where Criminal prosecution under IPC and /or the Mines and Minerals Development and Regulation) Act, 1957 (the MMDR Act) had been instituted against the alleged offenders for mining sand from river beds without valid licence and permits under the MMDR Act, the principal question which arrows for consideration before the Apex Court was whether Police has the power to institute such cases on the basis of an FIR and whether magistrate has the power to take cognizance of such offence upon a Police report, without a complaint from the authorised officer under Section 22 of MMDR Act and whether mining of sand from river beds would constitute an offence under section 379 IPC. Apex Court answering the said question in the affirmative observed as under:-
"70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 14 M.Cr.C.No.10483/2010 any act or omission which constitutes an offence under the Penal Code.
71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code.
72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure."
25. In this case also from a close reading of the provisions of the 72-D & 74 of the Act and the offences defined under Section 409, 420, 467, 468 IPC, it is manifest that the ingredients constituting the offence are different. Moreso in the Section 72-E and 75 of the Act clearly mentioned that the action which can be taken against any person under the Act is in addition to that punishment for which he is liable under the Penal Code or any other Act. It means where any act of a person constitutes an offence under the Act as well as under the Penal Code or any other law for the time being in force, in that case, he is also liable for that offence. Hence, mere initiation of proceeding for commission of an offence under the Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing offence under Section 409, 420, 467, 468 IPC, by exercising power under the Code of Criminal Procedure and submit a report Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 15 M.Cr.C.No.10483/2010 before the Magistrate for taking cognizance against such persons and magistrate to take cognizance for that offences without the sanction of Registrar.
26. The Apex Court in the case of Rama Rao v. Narayan, (1969) 1 SCC 167 (Supra) while examining the question whether the Section 146(p) of the Maharashtra Co-operative Societies Act and Section 465, IPC are intended to deal with the same offence observed as under:-
"It is true that certain acts may fall within both the sections. For instance, tampering with or falsifying any register, book of account or security, or making any false or fraudulent entry in the register, book of account or document belonging to the society, may when done with the requisite intention mentioned in Section 464, read with Section 463 of the IPC, be also an offence under Section 146(p) of the Maharashtra Co-operative Societies Act. But that, in our judgment, is not a ground for holding that Section 465 IPC and the related offences were intended to be pro tanto repealed by the enactment of Section 146(p) of the Maharashtra Cooperative Societies Act. When the Indian Penal Code seeks to impose in respect of offences under Section 477, imprisonment which may extend to imprisonment for life, or with imprisonment up to a period of seven years for an offence under Section 477-A it would be difficult to hold that when committed by an officer or a member of a society the maximum punishment which can be imposed by virtue of Section 146(p) would be three years rigorous imprisonment only."
27. In the instant case also the maximum punishment which can be imposed by virtue of Section 72-E &75 would be one years rigorous imprisonment only. While the Indian Penal Code seeks to impose in respect of offences under Section 467, imprisonment which may extend to imprisonment for life, or with imprisonment up to a period of seven years for an offence under Section 420. So it can not be said that Section 72-D & 74 of the Act and Section 409,420,467& 468 IPC are intended to deal with the same offence.
28. The Apex Court in the case of K. Ashoka Vs. N.L. Chandrashekar & others reported in AIR 2009 SC 3288 also considering the issue Whether the Magistrate has a power to take cognizance of an offence punishable under the penal code committed by the person in the affairs of society held "Section 109 of the Karnataka Cooperative Societies Act provides for commission of offences under the said Act. Therein, no statutory embargo Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 16 M.Cr.C.No.10483/2010 has been placed for a court to take cognizance of an offence under the provisions of IPC. If the allegations made in the complaint petition or in the first information report make out a case under the IPC, Section 111 of the Act, to which our attention has been drawn, would constitute no bar for maintenance thereof being applicable only in respect of offences committed under the said Act. The said statutory interdict therefore, cannot be extended in regard to commission of an offence under any other Act."
29. The Apex Court in the case of State of M.P. v. Rameshwar & Ors. (2009) 11 SCC 424 in almost similar fact situation after examining the provisions of Sections 74 to 76 of the M.P. Co-operative Societies Act, 1960 in para 38 of its judgment observed as under:-
"38. Mr. Tankha's submissions, which were echoed by Mr. Jain, that the M.P. Co-operative Societies Act, 1960 was a complete Code in itself and the remedy of the prosecuting agency lay not under the criminal procedure but within the ambit of Sections 74 to 76 thereof, cannot also be accepted, in view of the fact that there is no bar under the M.P. Co-operative Societies Act, 1960, to take resort to the provisions of the general criminal law, particularly when charges under the Prevention Corruption Act, 1988, are involved."
30. Even in the case of M.L. Gaur & Anr. v. State of M.P. (supra) relied on by the learned counsel for the applicant a Single Bench of this court on relaying the judgements of Apex Court passed in the case of State of Madhya Pradesh Vs. Rameshwar & others", [(2009) 11 SCC 424] and M.Natarajan Vs. State by Inspector of Police SPE, CBI, ACB Chennai", [(2008) 8 SCC 413] in para 6 of its judgment clearly held "in the light of the aforesaid judgments of Hon'ble the Apex Court, it would be apparent that if the overt-act of the office bearers of the Cooperative Societies falls within the purview of an offence under the Act as well as IPC offence, then the case has to be registered under the IPC also. The contention advanced by the learned counsel for the applicants that the applicants were the office bearers of the Samiti and a complaint could be filed under the Act only if they had done any overt-act, which is a crime, cannot be accepted. If any offence under Section 406 or 420 of the IPC was made out against the applicants, then certainly the prosecution could be directed for that offence."
31. The position that emerges from the perusal of the above mentioned provisions of the Act and above quoted decisions of this Court and the Apex Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 17 M.Cr.C.No.10483/2010 Court that the offences mentioned under Section 72-D and 74 of the Act are different from the offences punishable under Section 409, 420, 467 & 468 of IPC. There is nothing in the Madhya Pradesh Cooperative Societies Act, which expressly or impliedly provides that the Magistrate could not take cognizance of the offence punishable under Indian Penal Code, if any, made out from the charge sheet. Sanction under Section 76 of the Act is not required for the prosecution of the accused under Sections 409, 420, 467 & 468 IPC. There is no bar under the Act, to take resort to the provisions of the general criminal law, if the overt-act of the office bearers of the Cooperative Societies falls within the purview of an offence under the Act as well as IPC offence, then the case has to be registered under the IPC also.
32. The Apex Court judgements passed in the cases of Bhanushali Housing Cooperative Society Ltd. v. Mangilal and Ors (supra) and Satya Pal Anand v. State of M.P. & Ors. (supra) relied upon by the learned counsel of the applicant are distinguishable on the facts. These judgements are on the point that what is the scope of the Section 64 of the Act and what dispute would come under the purview of the businesses of the Society not on the point involved in this reference. So these judgements also do not assist the applicant.
33. In our considered view, the decision rendered in the case of Devki Nandan Dubey vs. State of MP and another (Supra), Awadhesh singh Raghuvanshi's case (supra) and Anil Jaiswal v State of M.P. (Supra) are contrary to the provisions of Section 76 of the Act, according to which, sanction is envisaged only in respect of prosecution of the accused for offences under the Act and would not be applicable to prosecution of the accused for offences under other laws. As already stated, according to Section 76 of the Act sanction to prosecute the accused must be obtained only for the offences falling under Section 72-D & 74 of the Act but it is not applicable where the offences committed are punishable under any other law.
34. In view of the above discussion, we hold that the Single Bench decision passed in Devki Nandan Dubey vs. State of MP and Ano. (Supra), Awadhesh Singh Raghuvanshi Vs State of M.P. (supra), Anil Jaiswal v State of M.P. (Supra), does not lay down the correct position of Digitally signed by RANJEET AHIRWAL Date: 16/09/2019 10:42:30 18 M.Cr.C.No.10483/2010 law and the same is liable to be overruled and hereby overruled. Answering the point referred to us, we hold that Section 76 of the Cooperative Societies Act applies only to the offences under Sections 72-D and 74 of the M.P. Cooperative Societies Act, 1960. Sanction under Section 76 of the Act is not required for prosecuting the accused for the offence punishable under Section 409, 420, 467 & 468 IPC registered simultaneously in the same FIR and on the basis of said plea, FIR for the offences under the provisions of the IPC cannot be quashed.
35. The judgments of learned Single Bench in the case of Avadhesh Raghuvanshi (supra) and Devki Nandan Dubey (supra) do not lay down the correct law quashing the FIR under Section 409, 420, 467, 468 of the IPC along with the offences under Section 72D and 74 of the Cooperative Societies Act with the help of Section 76 of the Cooperative Societies Act and Section 5 of the Cr.P.C. in the light of Apex Court judgements as mentioned above.
36. In view of the above, let this petition be placed before the learned Single Judge.
(Rajeev Kumar Dubey) (Vishal Dhagat)
Judge Judge
(ra)
Digitally signed by RANJEET
AHIRWAL
Date: 16/09/2019 10:42:30