R.N. Dutt, J.
1. The petitioner is on his trial before a Special Court at Alipore for an alleged offence under Section 409 of the Indian Penal Code.
2. The instant case was allotted to the Special Court by a notification of the State Government and the Special Court took cognizance on a petition of complaint filed before it by the Public Prosecutor. The petitioner raised an objection before the Special Court that the Special Court had no jurisdiction to try the instant case. But the Judge presiding over the Special Court has found that he has jurisdiction. The petitioner has thereafter obtained this Rule for quashing the proceeding pending before the Special Court against him.
3. The allegations are in short as follows:--
3-A. The petitioner was the Secretary of Mahasakti Samabaya Samiti, a registered Co-operative Society. While working as such Secretary the petitioner is said to have committed criminal breach of trust in respect of Rs. 14,432.92p. The Special Court will have jurisdiction to try this case if the petitioner can be said to be a public servant within the meaning of Section 21 of the Indian Penal Code. The learned Judge has found that the petitioner is a Public Servant within the meaning of the twelfth clause of Section 21 of the Indian Penal Code. The question if the Secretary of a Co-operative society would be a Public Servant under the tenth clause of Section 21 often arose and the Bombay, Madras and Mysore High Courts have held that the Secretary of a Co-operative Society was not a Public Servant under the tenth clause of S. 21. AIR 1935 Bom 36, 1935 Mad WN 1337(1) and AIR 1958 Mys 82. With respects we agree with the decision of the aforesaid High Courts and we think that the secretary of a Co-operative Society is not a Public Servant under the tenth clause of Section 21. We have then to see if the Secretary of a Co-operative Society is a Public Servant under the twelfth clause of S. 21 of the Indian Penal Code. The period during which the alleged criminal breach of trust is said to have taken place is between July 14, 1965 and June 24, 1966. The twelfth clause of Section 21 was first amended in 1958 and again amended in 1964. The amendment of 1964 became effective before July, 1965 and so we have to consider if a Secretary Co-operative Society is a Public Servant under the twelfth clause of Section 21 as it now stands. The relevant portion of the twelfth clause is that every person in the service or pay of a local authority, 'a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956 is a Public Servant. Mr. Banerjee who appears for the State has submitted that a registered co-operative Society is 'a corporation established by or under a State Act' and as such the Secretary of a registered Co-operative Society is a Public Servant. Mr. Banerjee has argued that a Co-operative Society formed under the Bengal Co-operative Societies Act, 1940 becomes a body corporate as soon as it is registered and as such the Mahasakti Samabaya Stores Ltd., being a registered Co-operative Society is a body corporate. Mr. Banerjee has farther argued that being a body corporate it is 'a corporation' and becomes 'a corporation established under the Co-operative Societies Act'. This argument cannot be accepted. True, under Section 19 of the Co-operative Societies Act the registration of a Co-operative Society renders it a body corporate but that is for the purposes enumerated in Section 19. The heading of the Chapter under which Section 19 comes is 'Status and Management of Co-operative Societies'. Under Section 19, a Co-operative Society when registered becomes a body corporate with perpetual succession and a common seal and with power of hold property, to enter into contracts, to institute and defend suits and other local proceedings and to do all things necessary for the purposes for which if is constituted. Thus, as a body corporate the Society has its rights and liabilities and becomes a juristic person. But the language in Section 21, twelfth clause, is 'in the service or pay of a corporation established by or under the Central, Provincial or State Act'. A registered Co-operative Society is not a 'corporation' established by or under the Co-operative Societies Act. The clause, 'corporation established by or under' has reference to some Public Corporations established either by or under some statutes. Take for instance the Life Insurance Corporation which was established by the Life Insurance Corporation Act. Similarly, take the instance of the State Transport Corporation, Calcutta, which was established by the State Government under a Central Act, Road Transport Corporations Act, 1950. Under Section 19 of the Co-operative Societies Act a registered Co-operative Society is a body corporate for the purposes enumerated in Section 19 but it does not become a corporation established by or under the Cooperative Societies Act. Mr. Banerjee refers to the definition of a body corporate or corporation contained in Clause (7) of Section 2 of the Companies Act. It will however appear that the definition of 'body corporate' or 'corporation' excludes a Co-operative Society. Furthermore, Section 6 of the Co-operative Societies Act states that the Companies Act shall not apply to Co-operative Societies. There is, therefore, no doubt that a Co-operative Society though registered under the Co-operative Societies Act does not become because of Section 19 of the Act, a Corporation established by or under the Co-operative Societies Act and in that view of the matter the Secretary of a Co-operative Society is not a Public Servant under the Twelfth clause of Section 21 of the Indian Penal Code. We may in this connection refer to the observation of the Patna High Court in State of Bihar v. Amulya Ratan Pathak, AIR 1969 Pat 173 at p. 180:
'The trial Court has found that the respondent, while acting as the Secretary of the Society, was a public servant, as mentioned in the charge. It is doubtful, however, whether an office bearer of a Co-operative Society is a public servant, while discharging his duties as such.'
It was not necessary for the Patna High Court to decide this question in that case but from what we have said we have no doubt that the Secretary of a Co-operative Society is not a Public Servant within the meaning of Section 21 of the Indian Penal Code. Since the petitioner is not a Public servant the Special Court has no jurisdiction to try the instant case against him.
4. In the result, the Rule is made absolute. The proceeding now pending against the petitioner before the Second Special Court, Alipore, is quashed but the State will be free to proceed against him in accordance with law and in an appropriate Court.
Sarma Sarkar, J.
5. I agree with my Lord to the proposed order but I would like to add a few words.
6. The sole point pressed for consideration in this Rule is whether the petitioner, the Secretary of Mahasakti Samabaya Samiti, a registered Co-operative Society can be tried under Section 409 of the Indian Penal Code in the Court of a Special Judge under West Bengal Criminal Law Amendment (Special Courts) Act, XXI of 1949, (hereinafter called the Act) on the allegation that he misappropriated the funds of the Society amounting to Rs. 14,432.92 P. only during the period 1965-66. It was held by the trial Judge that the petitioner is a Public Servant and Mr. Banerjee appearing for the State supports it. Mr. Das however, appearing for the petitioner contends that the petitioner is not a Public Servant under Section 21 of the Indian Penal Code.
7. Mr. Banerjee has contended that in view of the amendment of Section 21, twelfth clause, in 1964 the petitioner is a Public Servant after that date. The twelfth clause of Section 21 as amended in 1964 reads thus:
(a) in the service or pay of the government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) In the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956 (I of 1956).'
The learned Judge by reference to Section 19 of the co-operative Societies Act has held that every Co-operative Society after its registration under the co-operative Societies Act as a corporate body for certain purposes and because it acts as a corporate body it is a corporation established under the State Act and as such the Sub-clause (b) of twelfth clause after amendment is attracted. This argument is based on the assumption that wherever there is a corporate body there is a corporation . This assumption is not correct. A corporation is an entity by itself and can be stablished only by a statute passed by the Central or the State Government in India. The word 'corporation' has been defined thus in Stround's Judicial Disctionary, Third Edition, at page 643:
''Corporation' is that which the civilians call univesitatem, or collegium and is a body politic authorised to take and grant, having a common seal & c. These are constituted either by Prescription, by Letters Patent, or by Act of Parliament.'
It is thus clear that a corporation so far as India is concerned has to be set up or established by an Act passed by the Central or the State Government in order that any person serving in such a corporation may be a Public Servant, it is clear that a Co-operation Society was established under the Co-operative Societies Act and not as a corporation. There are corporate bodies in a corporation strictly so called and there may be corporate bodies in other associations which are not corporations. From that it does not follow the wherever there is a corporate body there is a corporation. So far as the Co-opertaive Society is concerned the purpose for which the Society is constituted is to discharge certain functions under the Co-operative Societies Act, it does not by itself establish any corporation strictly so called though after the Society is set up and it is registered under the co-operative Societies Act the fact of such registration may grant certain rights of corporate bodies to the Co-operative Society itself. But from that it does not necessarily follow that a corporation and a Co-operative Society registered under the Co-operative Societies Act are synonymous terms. In this view of the matter it appears to me that a Co-operative Society doe snot become a corporation because for some specific purposes it functions as a corporate body. It will appear from Section 19 of the co-operative Societies Act that this power of a corporate body is given to the Co-operative Society for certain specific and limited purposes as provided under the Act. In this connection, we may refer to several Acts by which Corporations were established by the Central or the State Government. The Life Insurance Corporation, for example, is a Corporation established by a Central Act directly by a particular statute but there may be corporations which are not directly established by any specific statute but they may be established under a general law passed by the Central or the State Government and these corporations are covered by Sub-clause (b) of clause twelfth under Section 21 of the Indian Penal Code. Under Section 3 of the road Transport Corporations Act, 1950 passed by the Central Government State Government may by notification in the Official Gazette establish a road Transport Corporation for the whole or any part of the State. Only such corporations are meant and referred to in Section 21 Clause 12 Sub-clause (b).
8. Secondly, we may also refer to the various clauses of Section 21 to show the distinction that is sought to be made between a private servant and a public servant. All the clauses ecept the tenth and the elevent give indication that the public servant is connected directly or indirectly with some functions of the government. I the tenth clause there is no direct mention of the Government but even in that clause the particular officer must perform certain functions 'for any secular common purpose of any village, twon or district.' But in the instant case the Secretary is to discharge his functions with regard to that particular Co-operative Society only and has no connection with the general or common purpose of any village, twon or district. On analysing Section 21 also it will appear that both from the language of the twlfth clause and from the scheme of Section 21 of the Indian Penal Code that the Legislature did not intend to cover those cases where a person holds office for any particular private company or society for the benefit of that company or society only. It is significant that in Section 21 Clause 12(b), the Government Company under Section 617 has been included thereby excluding by necessary implications other private companies though they function as body corporate. In this view of the matter twelfth clause cannot be attracted to the instant case.
9. Thirdly, we may also consider whether the petitioner accused come under the tenth clause as it is clear that the other clauses of Section 21 are not attracted to the instant case. Even with regard to the tenth clause there is some difficulty, namely, the petitioner is working only in the interest and for the benefit of a particular society and not for the common secular interest of any particular village or town or district. This view was also taken in several cases of which mention may be made to the case of AIR 1958 Mys 82, where it was held that the President of a Co-operative Society is not a public servant under the tenth clause of Section 21 of the Indian Penal Code. In my view, therefore, the petitioner cannot be held to be a Public Servant and as such he cannot be tried before a Special Court.