AIR 2000 SUPREME COURT 937
From 1994Cri LJ 1813 (Bombay)
G. B. PATNAIK AND
N.SANTOSH HEGDE.J.J.
Criminal AppealsNos.752 -755A of 1995 D/-28-2-2000.
State of Maharashtra,Appellant v.Laljit Rajsh Shah and others,Respondents.

(A) Prevention of corruption Act (2 of 1947),S.2-maharashtra Co-operative Societies Act (24 of 1961 ) Ss.2(20), 161-PenealCode (45 of 1860,) S.21 – Public servant” - Chairman of Maharashtra Cooperative Societies Act- though, a Public Servant under Societies Act-Not so under S.21 of penal Code- He can not be prosecuted for offences under penal Code.
A” Public Servant” with in the meaning of Section 2 of the Maharashtra Co-operative Societies Act 1960 is not a Public Servant within the meaning of Section 2 of the Prevention of Corruption Act 1947 (II of 1947 ), by virtue of the provisions of Section 161 of the Maharashtra Co-operative Society Act 1960, read with Section 21 of the Indian Penal Code. It is undoubtedly true that the Co-operative Society Act has been enacted by the State Legislature and their powers to make such legislation is derived from Entry 32 of List II of the Seventh Schedule to the Constitution .The legislature no doubt in Section 161 Of Mah .Act has referred to the provisions of Section 21 of the Indian Penal Code but such reference would not make the Registrars and other officers under Co-operative Society Act public servants within the ambit of Section 21 of I.P.C. The State Legislature had the powers to amend Section 21 of the Indian Penal Code, the same being referable to legislation under Entry I to II of the Seventh Schedule, subject to Article 254(2) of the Constitution as. other wise, inclusion of the persons who are public servants under Section 161 of the Co-operative Society Act would be repugnant to the definition of ‘public Servant “ under Section 21 of the Indian Penal Code. That not having been done, by virtue of deeming definition in Section 161 of the Co-operative Society Act by reference to Section 21 of the Indian Penal Code, the persons defined as ‘offence under the Indian Penal Code .The Indian Penal Code and the Maharashtra Co-operative Society Act are not Statues in pari materia. The Co-operative Society Act is a completely self-contained Statute with its own provisions and has created specific offences quite different from the offences in the Indian Penal Code .Both Statutes have different objects and created offence with separate ingredients. They cannot thus be taken to be Statutes in pari materia, so as no form one system. This being the position, even though the legislatures had incorporated the provisions of Section 21 of the Indian Penal Code into the Co-operative Society Act in order to define a public servant but those public servants cannot be prosecuted for having committed the offence under the Indian penal Code.

(B) Maharashtra Co-operative Society Act (24 of 1961), Ss 161,2(2) penal Code (45 of 1860), S.21 –General Clauses Act (10 of 1897), S.6 -Incorporation of S. 21 of I.P.C into S.161 of Co-operative Society Act –Definition of term “ Public Servant” in S.21 of I.P.C does not thereby get enlarged Public servants exercising powers under Co-operative Society Act by legal fiction become public servants only for purpose of Act.
Interpretation of Statues –Provision creating legal fiction. I
is well known principle of construction that in interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this the court is to assume all those facts and consequences which are the incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created or beyond the language of the Section by which it is created. A legal fiction in terms enacted for the purpose of one Act is normally restricted to that Act and cannot be extended so cover another Act .When the State Legislatures provided that the Registrar ,a person exercising the power of the Registrar, a person authorized to audit the accounts of a society under Section 81 of Mah. Act or a person to hold and enquiry under Section 83 of Mah .Act and a person appointed as an Administration under Section 103 of Mah Act shall be deemed to be a public Servant within the meaning of Section 21 of the Indian Penal Code. Obviously they would not otherwise come within the ambit or Section 21 of IPC The legislative intent is clear that a specific category of officers while exercising powers under specific section have by Public servant legal fiction become public servant and it is only for the purposes of the Co-operative Society Act. That by itself does not make those persons public servant under the Indian Penal Code so as to be prosecuted for having committed the offence under the Penal Code When a person is deemed to be “ some thing the only meaning possible is that whereas he is not in reality that something, the Act of legislature requires him to be treated as if obviously for the purpose of the said Act and not otherwise.
Cases referred: Chronological Paras Ramesh Balkrishna Kulkarni v. State of Maharashtra AIR1985 SC 1665: 1986 Cri LJ14: (1985) 3 SCC 606 5,6,7 R. S. Nayak v. A. R. Antulay AIR1984 SC 684:1984 Cri LJ 613 :(1984) 2 SCC 183 D.M.Nangolkar , A. S. Bhasme , S.S.Shinde ,G.B. Sathe Advocates ,for Appellant; S.V. Deshpande. Pramit Saxena, Mrs.Anuradha Rustagi ,Advocates,for Respondents.

PATTANAIK. J. :- These appeals by grant leave by the High Court itself under Article 134(1) (c) of the Constitution of India read with Rule 28(2) of the Supreme Court Rules by the State of Maharashtra, raises the question whether the Chairman of a Co-operative Society under the Maharashtra Co-operative Societies And can be held to be a public servant for the purpose of Section 21 of the Indian Penal Code and as such, can be proceeded against for offence under Section 5(1) read with Section 5(2) of the Prevention of Corruption Act 1947

2. The short facts necessary for disposal of these appeals may be briefly stated as under. On the basis of criminal prosecution under Section 120-B,409,420, 467,467,471 and 477A of the Indian Penal Code Section 7 and 9 of the Essential Commodities Act and Section 5(1)(c) and 5(1) read with Section 5(2) of the Prevention of Corruption Act the Special Judge took cognizance of the offence as against the accused respondents. The accused persons are the members of the Managing Committee of the co-operative society It was agitated before the learned Special Judge by the accused persons that they not “public Servants” for the purposes of offences under Section 409 of the Indian Penal Code and Section 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act 1947 and further, the prosecution is not maintainable for want of previous sanction The learned Special Judge considered the provisions of Section 161 of the Maharashtra Co-operative Societies Act ( here in after referred to as the Act) and came to the conclusion that the accused persons cannot be held to be “public servants” as defined under Section 21 of the Indian Penal Code in Section 161 of the Act and, therefore, no cognizance can be taken of the offence under the Prevention of Corruption Act. On the question of sanction, the Special Judge also agreeing with accused persons held that no previous sanction having been obtained for the prosecution of the accused person the cognizance is bad in law. Assailing the order of learned Special Judge. The State moved the High Court, When the matter was placed before a learned single Judge, he referred the matter to a larger Bench as he did not agree learned Single Judge of the Court. The learned Single Judge formulated two question for being answered by the larger Bench (1994 Cri LJ 1813 at Pp1815-16): “(1) Whether a person defined as “officer” under Clause (20) of Section 2 of the Maharashtra Co-operative Societies Act.1960 is a “Public Servant” within the meaning of Section 2 of the Prevention of Corruption Act 1947(II of 1947) by virtue of the provisions of Section 161 of the Maharashtra Co-operative Societies Act 1960 read with Section 21 of the Indian Penal Code?

(2) Whether assuming that provisions of Section 2 of the prevention of Corruption Act 1947 are applicable to such a person, is the sanction to prosecute such a person required under any of Clauses of subsection (1) of section 6 of the prevention of Corruption Act, 1947 capable of being given under the Maharashtra Co-operative Societies Act 1960?

3. The Division Bench by the impugned Judgment analyses the provisions of Section 161 of the Act as well as Section 2 of the Prevention of Corruption Act 1947 The division Bench of the High Court Came to the conclusion that Section 161 of the Act incorporating Section 21 of the Indian Penal Code ipso facto does not enlarge the definition of the term public servant in Section 21 of the Indian Penal Code. It further held that the State Legislature which was competent to amend Section 21 of the Indian Penal Code the subject of criminal law being on the concurrent list and yet the said not having been done. The expression “Public Servant ” under Section 161 of the Act would mean those officers to be “Public Servant” for the purpose of offence under the Co-operative Societies Act and Section 21 of the Indian Penal Code cannot be said to have engrafted into Section 161 of the Act. Accordingly, the High Court held that the accused persons cannot be prosecuted for offence under Section 409 of the Indian Penal Code and Section 5(1)(c) and 5(1)(d) read with 5(2) of the Prevention of Corruption Act though they can be prosecuted for other offence for which cognizance had been taken. Having held so, leave to appeal having been prayed for by the State, the High Court granted leave under Article 134(1)(c) of the Constitution read with Rule 28(2) of the Supreme Court Rules and hence the present appeals.

4. On behalf of the appellant State it is contended that the Registrars and other officers under the Co-operative Societies Act having been held by the Act itself deemed to be ”Public Servant” within the meaning of Section 21 of the Indian Penal Code those officers could be prosecuted for the offence under Indian Penal Code not withstanding the fact that they do not be come “Public Servants” under Section 21 of the Indian Penal Code and High Court therefore, was in error in coming to the conclusion that until and unless the provision of Section 21 of the Indian penal Code are amended these officers cannot be prosecuted for offences committed under Indian penal Code.

5. Mr. Deshpande learned counsel appearing for the respondents on the other hand contended that the provisions of Maharashtra Co-operative Societies Act were enacted by the State Legislature, for which they had the competence under Entry 32 of List it of the Seventh Schedule read with Entry 64 there of .Whereas Indian penal Code is an pre existing law, which was there at the commencement of the Constitution and is legislation under Entry 1 of List III of the Seventh Schedule. The two Statutes operate in different and distinct fields and therefore the provisions thereof have to be judged with reference to is own our and this being the position in law an officer who may be a public servant under Section 161 of the Co-operative Societies Act cannot be prosecuted for offences under the Indian Penal code ,so long as Section 21 of the Indian Penal Code ,is not amended and the impugned judgment of the High Court, therefore is unassailable. The learned counsel further submitted that in view of the pronouncement of the Supreme Court in Antulay’s case (1984 ) 2 SCC 183 (AIR1984 Cri LJ 613 ), indicating as to who can be “Public Servant “ the elected office bearers of the Co-operative Society cannot come within the purview of the said definition and, therefore, they cannot be prosecuted for offences under the Indian penal Code itself is amended Lastly, he urged that this question has been decided by this Court in Ramesh Balkrishna Kulkarnin v. State of Maharashtra (1985) 3 SCC 606: (AIR1985 SC1665:1986 Cri LJ 14 ), wherein an identical provision under Section 302 of the Maharashtra Municipalities Act 1965 was under consideration and the Court held that the concerned officers cannot be prosecuted for offences under the Indian Penal Code.

6. In view of the rival submissions at the Bar, the sole question that arises for consideration is, as to what is the effect of the provisions of Section 161 of the Maharashtra Co-operative Societies Act in interpreting the provisions of Section 21 of the Indian penal Code. It is undoubtedly true that the Co-operative Act has been enacted by the State Legislature and their powers to make such legislation is derived from Entry 32 of list II of the Seventh Schedule to the Constitution. The legislature no doubt in Section 161 has referred to the provisions of Section 21 of the Indian penal Code but such reference would not make the officers concerned “Public Servant” within the ambit of Section 21 The State Legislature had the powers to amend Section 21 of the Indian Penal Code the same being referable to a legislation under Entry I of List III of the Seventh Schedule, subject to Article 254(2) of the Constitution as otherwise inclusion of the persons who are “Public Servants ”under section 161 of the Co- operative Societies Act would be repugnant to the definition of “Public Servants ”under section 21of the Indian Penal Code. That not having been done. It is difficult to accept the contention of the learned counsel appearing for the State that by virtue of deeming definition in Section 161 of the Co-operative Societies Act by reference to section 21of the Indian Penal Code. The person concerned could be prosecuted for the offences under the Indian Penal Code, and the Maharashtra Co-operative Societies are not Statutes in pari material The Co-operative Societies Act is a completely self contained Statue with its own provisions and has created specific offences quite different from the offences in the Indian Penal Code Both Statues have different objects and created offences with separate ingredients They cannot thus be taken to be Statutes in pari material, so as to form one system. This being the position even though the Legislatures had incorporated the provisions of Section 21 of the Indian Penal Code into the Co-operative Societies Act in order to define a public servant but those public servant cannot be prosecuted for having committed the offence under the Indian Penal Code. It is a well known Principle of construction that in interpreting a provision crating legal fiction, the Court is to ascertain for what purpose the fiction is created. And after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created or authorized to beyond the language of the Section by which it is created. A legal fiction in term enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act. When the State Legislature make the Registrar, a person authorized to audit the accounts of a society under Section 81 or a person to hold and inquiry under Section 83 or to make an inspection under Section 84 and a person appointed as an Administrator under Section 78 or as a Liquidator under Section 103 shall be deemed to be” “Public Servants ”within the meaning of Section 21 of the Indian Penal Code.” Obviously ,they would not otherwise come within the ambit of Section 21 the legislative intent is clear that a specific category of officers while exercising powers under specific section have by legal fiction become public servant and it is only for the purpose of the Co-operative Societies Act. That by itself does not make those persons “public Servant” under the Indian Penal Code, so as to be prosecuted for having committed the offence under the Penal Code When a person is “deemed to be” something the only meaning possible is that where as he is not in reality that something, the Act of legislature requires him to be treated as if obviously for the purposes of the said Act and not otherwise. In a some what similar situation in Ramesh Balkrishna Kulkarni v. State of Maharashtra (1995) 3 SCC 606 (AIR 1985 SC 1655: 1986 Cri LJ 14 ),the question for consideration was whether a Municipal Councilor can be prosecuted for having committed an offence under the Indian for Penal Code, since under the Indian Penal Code since under Section 302 of the Municipalities Act a Councilor shall be deemed to be a “Public Servants ” within the meaning of section 21of the Indian Penal Code. Section 302 of the Maharashtra Municipalities Act 1965 is quoted here in below in extensor:
“302 .Every councilor and every officer or servant of a Council every contractor or agent appointed by it for the collection of any tax and every person employed by such contractor or agent for the collection of such tax shall be deemed to be a public Servant within the meaning of section 21 of the Indian Penal Code “

7. A Municipal Councilor was prosecuted for having committed an offence under the Prevention of Corruption Act and the said conviction and sentences was up held in appeal by the High Court but this Court in the afore mentioned decision (1985)3SCC 606: (AIR 1985 SC 1665:1986Cri LJ 14) set aside the conviction and sentence on a finding that Municipal Councilor cannot be held to be a “Public Servants” within the meaning of section 21of the Indian Penal Code.” In the aforesaid premises, we see no Infirmity with the impugned judgment of the High Court. The appeals fail and are dismissed Appeals dismissed.