Research › Browse › Judgment

Allahabad High Court · body

1966 DIGILAW 147 (ALL)

Madho Ram Sharma v. State of U. P.

1966-03-24

C.B.CAPOOR

body1966
JUDGMENT C.B. Capoor, J. - This application purports to be under Secs. 561-A and 215 of the Criminal Procedure Code. The prayer is that an order made by the learned Magistrate committing the petitioner to the court of Sessions to stand his trial under Secs. 218 and 466 of the Indian Penal Code be quashed. 2. The petitioner is an employee of the Provincial Co-operative Union, Lucknow and the main ground on which the order of commitment is sought to be quashed is that the aforesaid Co-operative Union is not a statutory body incorporated by an Act and that the petitioner is not a Public Servant and as such he could not have been charged with the offence under Sec. 218 of the Indian Penal Code. Sec. 21 of the Indian Penal Code which defines a public servant was amended in 1955 and the relevant portion of the 12th clause of the amended section reads as below: - "Every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act or of a Government Company as defined in Sec. 617 of the Companies Act, 1956. Explanation 1. Persons falling under any of the above descriptions are public servants, whether appointed by a Government or not. Explanation No. 2. Wherever 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." 3. It has not been disputed on behalf of the petitioner that the Provincial Co-operative Union, Lucknow is a corporation. The contention advanced on behalf of the petitioner is that the 12th Clauses referred to above is not attracted because the aforesaid corporation has not been established by any Central, Provincial or State Act. Stated differently the contention advanced is that while the aforesaid corporation has been established under the Co-operative Societies Act referred to above it has not been established by it and as such the 12th clause referred to above does not apply. Sec. 4 of the aforesaid Societies Act, inter alia, provides that a Society which has as its object the promotion of the economic interests of its members in accordance with co-operative principles .... Sec. 4 of the aforesaid Societies Act, inter alia, provides that a Society which has as its object the promotion of the economic interests of its members in accordance with co-operative principles .... may be registered under this Act with or without limited liability. 4. Sec. 6 of the Act prescribes the conditions of registration and Sec.9 empowers the Registrar to register a Society and its bye-laws if he is satisfied that the Society has complied with the provisions of the Act and the Rules and that its proposed bye-laws are not contrary to the Act and the Rules. Sec. 18 of the aforesaid Act provides that the registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal .... for the purposes of its Constitution. 5. It would thus appear that while the provisions contained in the aforesaid Societies Act do not specifically create or establish any corporation they contemplate the establishment of corporation on the registration of a Society in accordance with the provisions of the Act. On registration of a Society in accordance with the provisions of the Act a corporation is established by virtue of the provisions of the aforesaid Societies Act. The expression "established by a Central, Provincial or State Act" as used in the 12th clause referred to above is wide enough to cover the establishment by virtue of a Central, Provincial or State Act. In other words a corporation established by virtue of a Central, Provincial or State Act is also a corporation established by either of the aforesaid Acts. The establishment of the Provincial Co-operative Union, Lucknow, as a corporation is by virtue of the provisions of the Co-operative Societies Act referred to above. 6. There is, therefore, no substance in the contention advanced on behalf of the petitioner that as the Provincial Co-operative Union, Lucknow was not specifically established as a corporation by a specific provision of the Co-operative Societies Act, 1912 the employees of the aforesaid federation will not be a public servant. 7. On behalf of the petitioner reliance was also placed upon Explanation IV to Sec. 21 referred to above, but that Explanation was deleted in 1964. That apart, that Explanation was of an inclusive nature and was not an exhaustive one. 8. 7. On behalf of the petitioner reliance was also placed upon Explanation IV to Sec. 21 referred to above, but that Explanation was deleted in 1964. That apart, that Explanation was of an inclusive nature and was not an exhaustive one. 8. In view of the finding that the respondent is a public servant the other contention advanced on behalf of the petitioner that the Enquiring Magistrate had not committed the respondent to the court of Sessions because he considered that the case merited punishment which he could not award does not arise and its correctness or otherwise need not examined. 9. The petition is devoid of force and is rejected.