HON'BLE SRI JUSTICE [ENTITY] Crl.Petition No.579 of 2013 DATED:15-07-2013 [ENTITY] Petitioner The [ENTITY], rep.by its Standing Counsel for ACB, High Court of A.P., Hyderabad Respondent Counsel for the petitioner: Sri [ENTITY] Counsel for the Respondent: Standing Counsel for ACB <Gist: >Head Note: ?Cases referred: 1. (2001) 8 SCC 607 2. (2002) 7 SCC 631 3. (2000) 2 SCC 57 4. AIR 2002 SC 3346 HON'BLE SRI JUSTICE [ENTITY] Crl.R.C.No.579 of 2013 ORDER:
The revision petitioner is A.1 before the Special Judge for SPE & ACB cases-cum-II Additional District and Sessions Judge, Nellore in [CASE NUMBER].
The petitioner filed [CASE NUMBER] under [SECTION] [ACT] for his discharge. The petition was dismissed by the trial Court. Impugning the same, the present revision is laid.
2. The petitioner is working as a Senior Assistant in the Prakasam District Milk Producers Mutually Aided Co-operative Union Limited (the Union, for short), Ongole. A charge sheet was laid against the petitioner being arrayed as A.1 and the other accused being A.2 alleging that the petitioner received Rs.5,000/- from Kum. [ENTITY] on 05.03.2007 as bribe. A complaint was lodged by Kum. [ENTITY] against the accused. A charge sheet was subsequently laid against the petitioner alleging that the petitioner committed the offences under [SECTION] of the [ACT] (the Act, for short). A.2 is prosecuted for the offence u/[SECTION] of the Act. The petitioner/A.1 filed the petition for his discharge contending that the petitioner is not a public servant within the meaning of [SECTION] of the Act and that the Act has no application so far as the petitioner is concerned. The trial Court held that the question whether the petitioner is a public servant or not would be decided after conclusion of the trial and not at the stage of preliminary hearing. So holding, the trial Court dismissed the application.
3. In this revision, the learned Standing Counsel for ACB took a preliminary objection that [SECTION] prevents the filing of a revision and that the very revision, therefore, is liable to be dismissed. [SECTION] of the Act deals with previous sanction for prosecuting a public servant.
[SECTION] reads:
"19. Previous sanction necessary prosecution:
(c) (2)
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) "
4. It is the contention of the learned Standing Counsel that no court is entitled to revise the interlocutory order passed by the trial Court and that the revision, therefore, is not maintainable. The learned counsel for the petitioner tried to repel the contention of the learned Standing Counsel on two grounds viz., that the order assailed is a final order and not an interlocutory order and that [SECTION] itself relates to previous sanction for prosecution and that [SECTION] also deals with matters relating to the prior sanction only.
5. If [SECTION] is read in isolation, it appears as though that no revision would lie from any interlocutory orders passed under the Act. However, any part of a section in an enactment shall be read as part of that section on the whole and every section in an enactment shall be read in consonance with the Act so that absurd positions do not emerge from the reading of a part of section or from the reading of section, as the case may be.
6. [SECTION] of the Act, as already pointed out, deals with prior sanction to be accorded by the Government for prosecuting a public servant under the provisions of the Act. Sub-section 19(3), much less [SECTION] is a part of [SECTION] of the Act. I am afraid that every part of [SECTION] shall be read in consonance with the main theme underlying [SECTION]. As [SECTION] of the Act deals with previous sanction of the Government against the public servant to prosecute such a public servant, [SECTION] shall be read as inter alia no revision would lie from an order passed relating to the question of previous sanction of the Government to prosecute a public servant and again, even in those petitions, if such an order is not an interlocutory order, [SECTION] does not bar the filing of a revision.
The question in this case is whether the petitioner is a public servant or not and not whether the Government accorded sanction to prosecute the petitioner or not and if so whether such a sanction is valid or otherwise. Consequently, the contention of the learned Standing Counsel for ACB that this revision is not maintainable cannot be sustained.
7. The learned Standing Counsel also contended that revision is maintainable only on the final orders and not interlocutory orders u/[SECTION]. Assuming that [SECTION] operates for any order of the court passed under the Act, what is barred is a revision from an interlocutory application. Revision is not barred from final orders.
8. The learned standing counsel for ACB contended that neither a revision is maintainable nor stay of the proceedings is permissible in view of [SECTION] of the Act. In [PRECEDENT] relied upon by the learned standing counsel, it was observed by the Supreme Court that grant of stay of the proceedings before the trial Court cannot be ordered on any ground by the High Court including the invocation of [SECTION] [ACT] This decision has nothing to do with the revisional powers of the High Court.
9. In the present case, the impugned order is more in the nature of a final order. The petitioner sought for his discharge at the threshold. If the petitioner were to be allowed, the case would stand close at that stage itself. Consequently, any order passed in a discharge petition cannot be considered to be an interlocutory order but shall be treated as a final order. Even on that count, this revision is maintainable. Viewed in either angle, the contention of the learned Standing Counsel is not sustainable and is accordingly rejected.
10. Regarding the merits of the case, the trial Court unfortunately held that the question whether the petitioner is a public servant or otherwise can be considered at the time of the disposal of the main case. Where the petitioner raised the question contending that he is not a public servant within the meaning of the Act, it becomes a fundamental question. The controversy goes to the root of the case. If the petitioner is found to be not a public servant, further prosecution of the petitioner and the petitioner facing trial would not arise for consideration. The trial Court, therefore, was not justified in holding that the contention of the petitioner that he is not a public servant can be raised at the time of the disposal of the case.
11. In A.P. Dairy Development Corporation Federation v. B. Narasimha Reddy in Civil Appeal No[SECTION]88 to 2212 and 4588 of 2008, the Supreme Court passed orders on 02.09.2011 that members of A.P. Dairy Development Corporation Federation were not public servants. It is the contention of the petitioner that the petitioner is not a public servant. He relied upon a certificate issued by the Managing Director of the Prakasam District Milk Producers Mutually Aided Cooperative Union Limited, dated 16.01.2013 that the Government does not hold any shares in the union and that the union has not received any aid or grant from the Government and that the union is not controlled and administered by the Government.
12. In [CASE NUMBER].II/2010, dated 29.10.2010 issued by the Animal Husbandry Dairy Development and Fisheries Department, it is stated that the union is not a government body and that it is merely a cooperative society under [ACT]. On the basis of these circumstances, the petitioner contended that the petitioner is not a public servant. U/[SECTION] of the Act, one should be in the service or pay of the government or a local authority to become a public servant to fall within the provisions of the Act. Where the petitioner is working in the union which does not receive any aid or grant from the Government and its administration is not controlled by the Government and when the Government itself issued memo that the union is not a government body, the petitioner obviously cannot be considered to be a public servant. When the petitioner is not a public servant, he is not liable for prosecution under the provisions of the Act. Consequently, the petitioner is liable to be discharged in respect of the offences levelled against him. The trial Court is not justified in dismissing the petition of the petitioner for discharge.
13. In [PRECEDENT], the Supreme Court observed that employees of a co-operative society, which is "controlled or aided by the Government", are covered within the comprehensive definition of the public servant. In the present case, the Memo dated 29.10.2010 clarifies beyond the doubt that the petitioner-unit is not a government body and that it is merely a cooperative society established under [ACT]. It is also evident that the definition of public servant u/[SECTION] of the Act differs from the definition of public servant u/[SECTION] [ACT]. If one is to be governed by the provisions of the Act, one should be a public servant within the meaning of [SECTION] of the Act and not u/[SECTION] of [ACT].
14. The Supreme Court held in [PRECEDENT] that the court should only examine whether a prima facie case was made out establishing sufficient ground for proceeding against the accused and that it would not be appropriate to arrive at a conclusion in the matter at the outset. In that case, the High Court examined and approved the material produced by the prosecution and held that the petitioners therein were not guilty. The Supreme Court considered that it was not an appropriate procedure. On the other hand, in the present case, the petitioner is not seeking for any appreciation of evidence. The petitioner merely showed that the union wherein he is working is not a society receiving grants from the Government and that the employees of society would not be public servants within the meaning of [SECTION] of the Act. It was observed by the Supreme Court in [PRECEDENT] that the employees of cooperative societies controlled or aided by the Government are public servants even if they are not specifically included u/[SECTION] of the Act.
The petitioner-union indeed is a Mutually Aided Cooperative Society. However, the record shows that it is not controlled by the Government nor does it receive any aid from the Government. Consequently, the contentions of the respondent that the petitioner is a public servant and that whether the petitioner is a public servant or not may be urged by the petitioner at the time of disposal of the main case are not sustainable.
15. The impugned order in [CASE NUMBER] is set aside. The petitioner is held to be not a public servant and consequently is discharged from [CASE NUMBER] on the file of the Special Judge for SPE & ACB cases-cum- II Additional District and Sessions Judge, Nellore.
16. The Criminal Revision Case is allowed accordingly.
[ENTITY], J Date: 15.07.2013