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Waman Sambhaji Duka Vs. Narhari Sambhajirao Phatale - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Criminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 625 of 1965
Judge
Reported inAIR1968Bom124; (1967)69BOMLR687; 1968CriLJ305; ILR1967Bom1147
ActsMaharashtra Co-operative Societies Act, 1961 - Sections 146 and 148(3); Indian Penal Code (IPC), 1860 - Sections 406, 467 and 420; Bombay General Clauses Act, 1904 - Sections 27; General Clauses Act, 1897 - Sections 26
AppellantWaman Sambhaji Duka
RespondentNarhari Sambhajirao Phatale
Appellant AdvocateR.S. More, Adv. for ;B.N. Deshmukh, Adv.;M.A. Rane, Asst. Govt. Pleader
Respondent AdvocateY.V. Patil, Adv. for ;R.W. Adik, Adv.
Excerpt:
.....offence under the indian penal code, 1860, as well as under the provisions of the maharashtra co-operative societies act, 1960, it is open and permissible for the prosecution to choose to prosecute under the provisions of the indian penal code alone. ;chandrika sao v. state of bihar [1967]a.i.r. s.c. 170, applied. emperor v. shridhar (1934) 36 bom. l.r. 1133 and state v. pandurang baburao (1955) 57 bom. l.r. 868, f.b., referred to. - - according to section 27 of the general clauses act, therefore, if an act constitutes an offence under the indian penal code as well as under the provisions of the maharashtra co-operative societies act, it is open and permissible for the prosecution to choose to prosecute under the provisions of the indian penal code alone. pandurang baburao sangare,..........acts by the officers of the society which are offences under this act could not be tried under any penal provisions of the laws of the land. on the contrary, section 27 of the bombay general clauses act, specifically enables prosecution under any of the alternate provisions if the same act constitutes offence under two or more penal laws. the only safeguard that is enacted by the legislature is that the accused shall not be made liable to punishment twice for the same offence. according to section 27 of the general clauses act, therefore, if an act constitutes an offence under the indian penal code as well as under the provisions of the maharashtra co-operative societies act, it is open and permissible for the prosecution to choose to prosecute under the provisions of the indian penal.....
Judgment:

(1) This is a revision application by the accused who is being prosecuted under sections 406, 467 and 420 of the Indian Penal Code. The accused had made an application before the Judicial Magistrate (First Class) at Parenda. The accused is an officer of the Co-operative Societies and the offences which are alleged against him are supposed to have been committed by him during the course of his duty as an officer of the Co-operative Society. He, therefore, requested the learned Magistrate to dispose of the case as either not maintainable or to stay the proceedings until a valid sanction has been obtained under the provisions of the Maharashtra Co-operative Societies Act, 1960. The learned Magistrate rejected the application relying upon the earlier judgment of this Court and directed that the prosecution shall proceed. Being aggrieved, this revision application has been filed by the accused.

(2) On behalf of the accused reliance has been placed upon the provisions of section 146 and section 148 of the Co-operative Societies Act, 1960. It is particularly emphasised that clauses (o) and (p) of Section 146, of the present Co-operative Societies Act, 1960, are new clauses and similar provisions were not to be found in the previous Co-operative Societies Act. in view of these provisions, the offences which are alleged against the accused directly fall under either of these two clauses, and as such, sanction to prosecute the accused was a prior necessity under the provisions of sub-section (3) of section 148 of the said Act. On examination of these clauses (o) and (p) were find that none of the offences that is alleged against the accused is covered by the provisions of clauses (o). Clause (o) deals with an offence where an officer of the Society wilfully recommends or sanctions for his own personal use or benefit or for the use or benefit of a person in whom he is interested, a loan in the name of any other person. this clause, therefore, speaks about the advance of loan in the name of one person. This clause, therefore, speaks about the advance of loan in the name of one person but the real beneficiary under the loan is not the person in whose name the loan is actually awarded. The beneficiary is either the officer himself or some other person in whom he is interested. It is, therefore, a different type of offence and it has nothing to do with the allegations of misappropriation, forgery or chatting which are offences under which the accused is being tried.

(3) Clause (p) of section 146 of the Maharashtra Co-operative Societies Act, 1960, is a comprehensive clause dealing with many matters. It speaks of an officer or a Member of a Society destroying, mutilating, tampering with, or otherwise altering, falsifying, or secreting, or being privy to the destruction, multination, alteration, falsification or secretion of any books papers or securities, or makes or is privy to the making of any false or fraudulent entry in the register, book or account or documents belonging to the Society. All these acts are made an offence under this clause which is punishable under section 147, clause (p). The punishment for this offence is an imprisonment for a term which may extent to three years, or with fine, or with both. Out of the three offences with which the accused is being charged, it is possible to argue that forging of a loan-bond may fall under the falsification of papers relating to the Co-operative Society. However, the other two offences viz., misappropriation and cheating, are not covered even by this clause.

(4) The factual position that appears in this case is that out of the three offences with which the accused is being charged, two offences are not covered by any of the provisions in the Co-operative Societies Act. so far as the facts which go to constitute the third offence, viz., forgoing of a loan-bond is concerned, it is possible to argue that the same facts may constitute an offence under clause (p) of section 146 of the Maharashtra Co-operative Societies Act, 1960.

(5) In the present prosecution the proposed charge of forgery under section 467 of the Indian Penal Code, is punishable with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and also by fine. The offence of forgery with which the accused is being charged is a much graver offence than the offence which is conceived of by the Maharashtra Co-operative Societies Act, 1960. There is nothing in the provisions of the Maharashtra Co-operative Societies Act, 1960 which suggests that certain acts by the officers of the society which are offences under this Act could not be tried under any penal provisions of the laws of the land. On the contrary, section 27 of the Bombay General Clauses Act, specifically enables prosecution under any of the alternate provisions if the same act constitutes offence under two or more penal laws. The only safeguard that is enacted by the Legislature is that the accused shall not be made liable to punishment twice for the same offence. According to section 27 of the General Clauses Act, therefore, if an act constitutes an offence under the Indian Penal Code as well as under the provisions of the Maharashtra Co-operative Societies Act, it is open and permissible for the prosecution to choose to prosecute under the provisions of the Indian Penal Code alone. When this is being done there is no question of obtaining sanction under sub-section (3) of S. 148 of the Maharashtra Co-operative Societies Act. That sub-section opens with the clause lodged . . . . . . . . . . .'. The question of obtaining previous sanction either of the State Government. or of the Registrar of the Co-operative Societies, as the case may be, arises, only when the prosecution is being launched under the provisions of 'this Act'. viz., the Maharashtra Co-operative Societies Act 1960, prima facie, therefore, then the case is not under the provisions of the Maharashtra Co-operative Societies Act but is under the Indian Penal Code which is permissible, there is no question of obtaining sanction before the prosecution under the Indian Penal Code is instituted.

(6) The point of law that arises for consideration in this revision application was also considered before by a Division Bench of this Court in Emperor v. Shridhar Mahadeo Pathak, 36 Bom LR 1133 = AIR 1935 Bom 36 under the provisions of the Co-operative Societies Act, 1925, Section 60 of that Act was more or less similar to the present section 148 of the Maharashtra Co-operative Societies Act, 1960. The Division Bench pointed out that that section speaks of the offence under that Act, viz., the Co-operative Societies Act and does not speak of all the offences generally. It is particularly argued that the present section is more comprehensive section and the two clauses viz., (o) and (p), to which a detailed references has already been made above, are additions and improvements over the old Act. however, the principle on which the prosecution is to be launched is not changed simply because some more acts are added now to the offences under the Co-operative Societies Act.

(7) In the context of the Prevention of Corruption Act and the provisions of the Indian Penal Code, a Full Bench of this Court has expressed the same opinion. When the same act constituted offence under two or more penal Acts in State v. Pandurang Baburao Sangare, : AIR1955Bom451 an argument was made that the offence alleged against the accused is one under section 409 of the Indian Penal Code as well as under section 5(2) of the Prevention of Corruption Act, 1947. It was not, therefore, open for the prosecution to prosecute under section 409. It was necessary to undertake prosecution under section 5(2) of the Prevention of Corruption Act which is required to be preceded by sanction. In this context, the Full Bench considered the provisions of section 26 of the General Clauses Act, 1897, and pointed out that since the prosecution under section 409 of the Indian Penal Code does not require any sanction to be obtained, the prosecution as also the conviction were good in the absence of sanction, notwithstanding the fact that the prosecution if launched under section 5(2) of the Prevention of Corruption Act, a sanction would have become necessary.

(8) Similar questions arose before the Supreme Court in two revision applications Chandrika Sao v. State of Bihar AIR 1967 SC 170. The facts of that case show that an Assistant Superintendent of Commercial Taxes paid a surprise visit to the shop of the appellant and as a result of certain discovery made by him, a prosecution was launched against the accused under section 353 of the Indian Penal Code. The argument of the accused was that the allegation of fact against him constitutes an offence under section 26(1)(h) of the Bihar Sales Tax Act NO. 19 of 1947, and as such the prosecution under the Indian Penal Code was bad. What the Supreme Court says is worth noting in their own words.

'The appellant had committed an offence under section 26(1) (h) of the Act as also under S. 353 I.P.C. because he had used criminal force. he could be prosecuted for either or both these offences at the discretion of the prosecution. It may be that he was not prosecuted for both the offences and the prosecution was restricted to the offence under section 353 I.P.C. only to obviate the necessity of obtaining the Commissioner's sanction which was required for prosecution under S. 26(1)(h) of the Act. Even so, the prosecution could not be said to have done something which was unwarranted by law. An offence under section 353 I.P.C. was a graver offence than the one under S. 26(1)(h) of the Act. In choosing to prosecute the appellant for a graver offence under the general law the prosecution could not be regarded as having acted colourably. If the prosecution were to be so restricted, graver offences would go unpunished.'

These observations clearly apply to the facts and circumstances of the present case. The offence under Clause (o) of section 146 of the Maharashtra Co-operative Societies Act, 1960 is punishable only with three years imprisonment, whereas the offence of forgery under section 467 under the Indian Penal Code is much graver offence and is liable to higher punishment depending upon facts and circumstances proved. In the present case, it is not even the allegation of the accused that a colourable use of the provisions of the Indian Penal Code is being made in order to obviate the necessity of sanction under sub-section (3) of Section 148 of the Maharashtra Co-operative Societies Act, 1960. We, are therefore, inclined to think that the application of the accused that the prosecution be either stayed till the sanction is obtained, or otherwise disposed of in the absence of sanction cannot be accepted.

(9) It may be noted that the Maharashtra Co-operative Societies Act is mainly interested in the proper administration and functioning of the Co-operative Societies. Several offences have been created under the Act only with a view to see that the administration of the co-operative societies remains as clean as possible. With the growth of co-operative movement in the country it is also possible that dishonest persons may wantonly undertake prosecutions against officers. When, therefore, an offence under the Act is alleged to that extent only the safeguard of sanction has been laid down as a sort of protection to officers against their exposure to wanton prosecutions. It is certainly not the function of the Co-operative Societies Act that the graver offence should go unpunished and the accused should be prosecuted only under the lesser offences.

(10) Under the circumstances we are inclined to think that the view taken by the Judicial Magistrate (First Class) Parenda, is correct, and the revision application must be dismissed.

(11) Revision application dismissed.


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