Andhra HC (Pre-Telangana)
Garimella Subba Rao & Others vs State Of A.P. Rep. By Public Prosecutor, ...
Bench: K.C.Bhanu, M.S. Ramachandra Rao
THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO Crl.P No.4911 of 2009 26-03-13 Garimella Subba Rao & others State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad Counsel for the Petitioners: M/s. Balaji Medamalli Counsel for the Respondent: Public Prosecutor <Gist: >Head Note: ?Case referred: 1997 (1) ALD 500 2001 (2) ALD (Crl.) 564 (AP) 1988 (2) ALT 248 2002 (5) ALD 520 AIR 1969 Supreme Court 701 AIR 1965 Supreme Court 87 (2003) 6Supreme Court Cases 175 ORDER:
(per the Hon'ble Sri Justice K.C.Bhanu)
1. This reference is made by a learned single Judge of this Court in view of conflicting decisions of this Court in D.Prabhakar Reddy v. District Collector, Kurnool1, and in V.Nageswara Rao v. State of A.P.2 In V.Nageswara Rao's case (2 supra), referring to the decision in D.Prabhakar Reddy's case (1 supra) and also the decision in P.Narsaiah v. P.Raj Reddy3, it is observed that in view of the legal position, there is no prohibition to initiate criminal proceedings against the petitioner therein. In A.D.S. Sarma v. Deputy Registrar of Co- operative Society, Amalapuram, E.G. District4, it is held thus: (para 9) "In this case, admittedly, the Tribunal ignored the fact that the criminal Court has acquitted the petitioner for the charge of misappropriation. This attracts doctrine of illegality. Be it noted that under Section 60 of the Act, surcharge proceedings can be initiated against a person, who is entrusted with the affairs of the management of the society and in such capacity has misappropriated or fraudulently retained the money or has been guilty of breach of trust in relation to the society. Be it also noted that under Section 408 of IPC, the criminal breach of trust by a clerk or servant entrusted in such capacity of the property is liable for punishment with imprisonment, which may extend to seven years. Section 60 of the Act speaks of misappropriation or fraudulent retaining of money or criminal/guilty of breach of trust. All this gives rise to an offence of criminal breach of trust as defined under Section 408 IPC."
But, the said judgments are contrary to the order dated 03.04.2003 in Writ Petition No.4563 of 2003. In view of the conflicting decision, the point that arises for consideration is that when no surcharge proceedings are initiated under Section 60 of the Andhra Pradesh Co-operative Societies Act, 1964 (for short, 'the Societies Act'), it becomes a bar for launching criminal prosecution against the officers or members of co-operative societies for misappropriation of the amounts of the society ?
2. Learned counsel for the petitioners contended that entire case of the prosecution is based on the preliminary enquiry report submitted by the Co- operative Sub Registrar-cum-Enquiry Officer, Vizianagaram, and that after the preliminary enquiry under Section 51 of the Societies Act, surcharge proceedings are to be initiated, and till surcharge proceedings are completed under Section 60 of the Societies Act, no prosecution would lie; that the District Collector or the District Co-operative Officer has no power to accord sanction to initiate the prosecution against the person of the accused. Therefore, the main contention of the learned counsel for the petitioners is that unless surcharge order under Section 60 of the Societies Act is passed fixing the liability against the person who is or was entrusted with affairs of the society, no prosecution would lie, and that as no surcharge order is passed till date, the question of misappropriation by the petitioners does not arise, and consequently, continuation of the proceedings against the petitioners is nothing but abuse of process of Court.
3. On the other hand, learned Public Prosecutor contended that the penal provisions under the Societies Act and the criminal prosecution are entirely different and distinct; that since a suspicion that prima facie case for the offences punishable under Sections 403, 406, 409, 420, 471 and 120B read with 34 IPC is made out, it is the statutory duty of police to conduct investigation and file report as contemplated under Section 173 of the Code of Criminal Procedure, 1973 and that the police need not wait till the date of fixing the liability under surcharge proceedings under Section 60 of the Societies Act on any person, and hence, he prays to reject the contentions of the learned counsel for the petitioners.
4. Section 60 of the Societies Act, 1964 reads thus:
"Notwithstanding anything contained in any other law for the time being in force, where in the course of an audit under Section 50 or an inquiry under Section 51 or an inspection under Section 52 or Section 53, or the winding up of a society, it appears that any person who is or was entrusted with the organization, affairs or management of the society or any past or present officer or servant of the society has misappropriated or fraudulently retained any money or other property or has been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society by breach of trust or willful negligence or has made any payment contrary to the provisions of this Act, the rules or the bye-laws, the Registrar himself, or any person specifically authorized by him in this behalf, of his own motion or on the application of the committee, liquidator or any creditor or contributor, may inquire into the conduct of such person or officer or servant and make an order requiring him to repay or restore the money or property or any part thereof with interest at such rate as the Registrar or the person authorized as aforesaid thinks just or to contribute such sum to the assets of the society by way of compensation in respect of the misappropriation, misapplication of funds, fraudulent retention, breach of trust, or willful negligence as the Registrar or the person authorized as aforesaid thinks just."
From the above provision, it is clear that any person who is or was entrusted with the affairs of the society, has misappropriated or fraudulently retained any money or other property, or has been guilty of breach of trust in relation to the society, the competent authority may enquire into the conduct of such person or officer requiring him to repay or restore the money or property or any part thereof with interest. The above provision does not lay down to launch criminal prosecution against such persons under the provisions of the Societies Act.
5. Under Section 79 (1) (f) of the Societies Act, it shall be an offence if an officer, or an employee of the society including the paid Secretary, dishonestly or fraudulently misappropriates or otherwise converts for his own use or intentionally causes loss to the property of the society entrusted to him or under his control as such officer or employee or allows any other person so to do, and under Section 79 (3) (i) of the Act, it shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years. Admittedly, no penal prosecution was launched against the petitioner for the offence punishable under Section 79 of the Societies Act.
6. Section 26 of the General Clauses Act, 1897 reads thus:
"Provision as to offences punishable under two or more enactments:- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."
From the above provision, it is clear that it will not bar two trials in respect of two offences. It contemplates those cases where the acts alleged fall within the definition of 'offence' under two enactments. There is no bar of second trial under this Section, but the only bar is against giving two punishments. What is prohibited under this Section is punishment for the same set of facts for the same offence. But, the prohibition is against giving punishment for more than once for same offences under different enactments. Therefore, this section deals not only with an act or omission which is an offence under the Indian Penal Code, 1908, but also under the special or local law. In other words, the prosecution which is otherwise maintainable would lie both under the Special Act and the General Act, subject, however, to the over- riding consideration that the accused shall not be liable to be punished twice for the same offence. If an act or omission made punishable under Special Law and under the General Law, is separate and distinct, even bar under Section 26 of the General Clauses Act, 1897 has no application. Similarly, if the ingredients to be established in the Special Law and the General Law are not the same, then the person accused can be prosecuted under two enactments.
7. On this aspect, it is pertinent to refer to a decision in T.S. Baliah v. T.S.Rangachari5, wherein it is held thus:
"A plain reading of the section shows that there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender, twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case."
8. Similarly, the same offence means identity of its ingredients. On this aspect, it is pertinent to refer to a decision in Manipur Administration v. Thokchom Bira Singh6, wherein it is held thus:
"As has been pointed out by this Court in State of Bombay v. S. L. Apte, 1961-3 SCR 107 : (AIR 1961 SC 5 78) both in the case of Art. 20(2) of the Constitution as well as S. 26 of the General Clauses Act to operate as a bar the second prosecution and the consequential punishment thereunder, must he for the same offence" i.e., an offence whose ingredients are the same. It has been pointed out in the same decision that the Vth Amendment of the American Constitution which provides that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, proceeds on the same principle."
9. There cannot be any dispute that police have got statutory power to conduct investigation relating to a cognizable offence. The conditions relating to recording of the First Information Report under Section 154 of the Code of Criminal Procedure, 1973 are: 1) there must be information relating to commission of a cognizable offence; 2) it must be given to the officer in-charge of the police station; 3) in case of oral complaint, it shall be reduced into writing by the officer in-charge of the police station and it must be signed by the informant; 4) finally, substance of the information must be entered in the prescribed book. In other words, first information of commission of a cognizable offence is enough to constitute the First Information Report. First information should not be vague or indefinite, but it must be the information of facts showing commission of an offence enabling the police or giving scent to take up investigation. Even if a police officer suspects about taking place of a cognizable offence, he has got the statutory right to conduct investigation after registering the case. Magistrate can take cognizance under Section 190 (1) (b) of the Code of Criminal Procedure, 1973 on submission of report by police. It is open to the Magistrate, after exercise of judicial discretion, to take the view that the facts disclosed in the report makes out an offence for taking cognizance to put the accused on trial. At this stage, Magistrate can look into the statements of witnesses recorded during the course of investigation and documents filed along with the report to ascertain whether prima facie cognizable offence is made out or not. All that the Magistrate has to see is whether or not there is 'sufficient ground for proceeding against the accused'.
10. On this aspect, it is pertinent to refer to a decision in Superintendent of Police, C.B.I. v. Tapan Kumar Singh7, wherein it is held thus: (para 20) "It is well settled that a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. THE information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. THE true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. THE question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can."
11. It is the statutory duty of police to conduct investigation and bring the offender to book, if a cognizable offence is reported. Once it investigates and finds an offence having been committed, it is the duty of the investigating officer to collect evidence for proving the offence. The proceedings initiated after registration of the case, cannot be interdicted except as provided under the Code of Criminal Procedure, 1973. In view of the above discussion, it is clear that there is no bar for proceeding further for investigation, enquiry and trial of a case when a prima facie cognizable offence is made out. There is no need to wait till completion of enquiry as contemplated under Section 60 of the Societies Act. The object and purpose of Section 60 of the Societies Act is entirely different. Its primary object is to recover the amount from the person or officer of the co-operative society, who dishonestly misappropriated the property or valuable security of the society. Even if the criminal prosecution is launched under Section 79 of the Societies Act, still that is not a bar for proceeding against a person accused of an offence under General Law viz. the Indian Penal Code, 1860. If the offence made punishable and its ingredients are one and the same in General Law and the Special Law, then only the protection under Article 20 (2) of the Constitution of India comes into effect. Even Article 20 (2) of the Constitution of India has no application when the offence under General Law is distinct and separate with that of the offence under the Special Law.
12. The three judgments of learned single Judges of this Court in D.Prabhakar Reddy's case (1 supra); in V.Nageswara Rao's case (2 supra) and in P.Narsaiah's case (3 supra), have not been brought to the notice of the learned single Judge while disposing of Writ Petition No.4563 of 2003. Therefore, it was held that after fixing the liability of a person or officer of the society under Section 60 of the Societies Act, the question of prosecution does not arise. So, from the aforesaid reasons, we are of the opinion that even without fixing the liability on a person under Section 60 of the Societies Act, criminal prosecution can go on for the offence punishable under Section 409 of the Indian Penal Code, 1860, provided, on filing of report by police under Section 173 of the Code of Criminal Procedure, 1973. The Magistrate can take cognizance of any offence if the report sets out facts constituting an offence. Even if no liability is fixed on a person or an officer of a society, still criminal prosecution shall be proceeded with, subject to the facts constituting an offence.
13. In view of the reasons as mentioned hereinbefore, we hold as follows:
(a) Prosecution of the person accused of an offence can be proceeded with both under General Law and Special Law;
(b) Fixing the liability under Section 60 of the Andhra Pradesh Co-operative Societies Act, 1964 is not a condition precedent to set the criminal law into motion;
(c) Even after fixing no liability under Section 60 of the Andhra Pradesh Co-
operative Societies Act, 1964, still, the prosecution under General Law viz. the Indian Penal Code, 1860, can be proceeded with subject to the facts constituting an offence;
(d) It must be shown that the ingredients for the offence under General Law and Special Law are one and the same, and the accused shall not be liable to be punished twice for the same offence;
(e) If the ingredients for the offences punishable under General Law and Special Law are distinct and different, then there is no impediment to proceed with the case under two enactments;
14) The reference is answered accordingly. ------------------------ (K.C.BHANU, J.) ------------------------------------------- (M.S.RAMACHANDRA RAO, J.) 26.03.2013