1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.590 OF 2009. Mujib Ahmed Abdul Siddiqui ... Petitioner. Versus The State of Maharashtra ... Respondent. WITH CRIMINAL WRIT PETITION NO.669 OF 2009 Mujib Ahmed Abdul Siddiqui ... Petitioner. Versus The State of Maharashtra ... Respondent. ... WITH CRIMINAL WRIT PETITION NO.670 OF 2009. Mujib Ahmed Abdul Siddiqui ... Petitioner. Versus The State of Maharashtra ... Respondent. ... 2 WITH CRIMINAL WRIT PETITION NO.663 OF 2009. Mujib Ahmed Abdul Siddiqui ... Petitioner. Versus The State of Maharashtra ... Respondent. ... WITH CRIMINAL WRIT PETITION NO.664 OF 2009. Mujib Ahmed Abdul Siddiqui ... Petitioner. Versus The State of Maharashtra ... Respondent. ... WITH CRIMINAL WRIT PETITION NO.665 OF 2009. Mujib Ahmed Abdul Siddiqui ... Petitioner. Versus The State of Maharashtra ... Respondent. ... WITH CRIMINAL WRIT PETITION NO.666 OF 2009. Mujib Ahmed Abdul Siddiqui ... Petitioner. Versus The State of Maharashtra ... Respondent. 3 WITH CRIMINAL WRIT PETITION NO.667 OF 2009. Mujib Ahmed Abdul Siddiqui ... Petitioner. Versus The State of Maharashtra ... Respondent. ... WITH CRIMINAL WRIT PETITION NO.668 OF 2009. Mujib Ahmed Abdul Siddiqui ... Petitioner. Versus The State of Maharashtra ... Respondent. ... Mr.M.M.Joshi, advocate holding for Mr.S.B.Ghute, advocate for the petitioner. Mr.N.R.Shaikh and Mrs.A.V.Gondhalekar, advocate, A.P.Ps. for the Respondent State. ... CORAM : V.R.KINGAONKAR,J. Date : 08.09.2009. PER COURT 1. By these petitions the petitioner challenges judgment of the Sessions Judge, dismissing his Revision Applications. 4 2. By this common order, the bunch of above petitions, is being decided together inasmuch as common question involved is as below : "Whether Chairman or Vice Chairman or elected members of a Cooperative Society are public servants for the purpose of Section 21 of the I.P. Code and, therefore, can be prosecuted for offence U/s 409 of the I.P.Code." The petitioner was Chairman of a Labour Cooperative Society. He allegedly misappropriated certain amounts/funds of the said Cooperative Society during his tenure as a Chairman. By splitting the amounts of misappropriation in accordance with the period for which the petitioner could be charged, in all nine (9) charge-sheets have been filed against him. It is an admitted fact that charge has been framed in all nine (9) cases. The contention of the petitioner is that he could not be charged for commission of offence U/s 409 of the I.P.Code 5 and, therefore, framing of the charge for such an offence is illegal. He alleged that he could be exonerated because he is not employee of the Government or otherwise would not fall within the expression "Public Servant" within the meaning of Section 21 of the I.P.Code. He challenged framing of the charge against him by filing Revision Applications. The learned Adhoc Additional Sessions Judge, however, dismissed the Criminal Revision Applications. The petitioner prays for quashing of the judgment rendered by the learned Adhoc Additional Sessions Judge and issuance of necessary orders. 3. Heard learned counsel and learned A.P.Ps. 4. The clinching question is whether the amendment of Section 161 of the Maharashtra Cooperative Societies Act, would by itself be sufficient to assume that Section 21 of the I.P.Code is simultaneously amended likewise the purport of the State Amendment. The plain reading of Section 21 of the I.P.Code would make 6 it amply clear the expression "Public Servant" refers to a person falling under the categories which are shown under the 12 sub-clauses. In other words, a person can be regarded as "Public Servant" only when he would come within ambit of either of the category out of the 12 specific categories enumerated U/s 21 of the I.P.Code. The Chairman of a Labour Cooperative Society does not receive pay of a local authority nor he is employee of any Corporation. He does not get any remuneration from the Government for the performance of any public duty as such. Obviously, he would at the most prima facie come within the ambit of category No.12. There is no question of his being one who can be described as a Public Servant within the earlier 11 categories appended below Section 21. It is pertinent to note that Section 21 has not been amended so as to include the elected Chairman of the Cooperative Society. The employees of the Cooperative Society, who are paid salary by the Government or who are appointed by the Government on certain remuneration to discharge public functions would fall within the ambit of Section 7 21 of the I.P.Code. In the present case, however, the charge-sheets are filed only against the petitioner as a Chairman of the Cooperative Society. The charge is only for offence U/s 409 of the I.P.Code and not under any other provision. 5. In "Hanmant Janardhan Patil Vs. State of Maharashtra" 1993 Mh.L.J.511, a Single Bench of this Court held that an office bearer or a member of a Cooperative Society can not be treated as public servant within the meaning of Section 21 of the I.P.Code. The learned Single Judge considered the amended provision of Section 161 of the Maharashtra Cooperative Societies Act, 1960, as was introduced in 1986. The appellants in that case were the Chairman, Vice Chairman and the Secretary of a Cooperative Society. This view was followed by learned another Single Judge in "Bhujangrao Madhavrao Kulkarni and others Vs. State of Maharashtra" 1996 (1) Mh.L.J.167. That was a case in which the prosecution was for the offences under the prevention of Corruption Act as well as under the provisions of the I.P.Code. 8 The appellants before the learned Single Judge, namely, Bhujangrao and others were convicted by the trial Court for various offences including offence U/s 409 of the I.P.Code. The learned Single Judge came to the conclusion that the Special Judge appointed under the Prevention of Corruption Act, had no jurisdiction to try such a case and, therefore, de novo trial was ordered. 6. In "State of Maharashtra Vs.Laljit Tejshi Shah and others" 1994 Mh.L.J.452, again the similar question was considered by a Division Bench of this Court. The consistent view taken by this Court is that amendment of Section 161 of the Maharashtra Cooperative Societies Act, does not make change in the Central Legislation i.e. the I.P.Code. The Apex Court in "State of Maharashtra Vs. Laljit Rajshi Shah and others" 2000 (2) Mh.L.J. 801, confirmed the same view. It is observed : "The Indian Penal Code and the Maharashtra Cooperative Societies Act are not statutes in pari materia. The 9 Cooperative Societies 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 offences with separate ingredients. They can not thus be taken to be status in pari materia 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 Cooperative Societies Act, in order to define a "public servant" but those 'public servants' can not be prosecuted for having committed the offence under the Indian Penal Code." 7. The above observations would prima facie make it explicit that to the case of a Chairman or office bearer of the Cooperative Society, the deeming effect and fiction created by the amendment to Section 161 of the 10 Maharashtra Cooperative Societies Act, would not be attracted when the charges are for offences under the provisions of the I.P.Code. In "General Manager, District Cooperative Central Bank Ltd. Vs. P.Venku Reddy" (2002) 7 Supreme Court Cases 631 : (AIR 2002 Supreme Court 3346), the Apex Court considered amended provision of the Prevention of Corruption Act, 1988 and held that the purposive approach ought to be adopted. It is worthy to be noted that the case of "State of Maharashtra Vs. Laljit Tejshi Shah and others" (supra) is considered by the Apex Court but has been distinguished. The Apex Court observed that the said case is distinguishable as it was based on interpretation of the definition of expression "public servant" as was contained in the repealed Prevention of Corruption Act, 1947. Still, however, in view of amended provision of the Prevention of Corruption Act, 1988, the Apex Court held that the definition of the expression "public servant" as used in sub-clause (ix) of clause (c) of Section 2 of the Prevention of Corruption Act,1988 has been widened and, therefore, the members and office bearers of the 11 Cooperative Society would come within purview of such definition. 8. The legal position can not be decided with certainty at this juncture inasmuch as the Criminal proceedings are at inchoate stage. The Apex Court in "State of M.P. Vs. Rameshwar and others" 2009 Criminal Law Journal 2415, dealt with identical question. The Apex Court held that Criminal proceedings for offences U/ss 409, 420, 120-B of the I.P.Code were not barred against the Chairman and Director of a Cooperative Bank. The Apex Court considered similar provisions of the M.P.Cooperative Societies Act, 1961. The Apex Court observed : "Prima facie it appears to us that the Respondent Nos.1 and 3, in their capacity as the Chairman and the Executive Officer of the Bank, come within the definition of "public servants" U/s 2(c)(ix) of the Prevention of Corruption Act, 1988." 12 The Apex Court considered sub-clause (ix) of clause (c) of Section 2 of the 1988 Act, so as to reach such prima facie conclusion. In this view of the recent authority handed down by the Apex Court, I find it difficult to entertain the request of the petitioner to discharge him from the prosecutions. Moreover, even assuming that charge may not come within the ambit of Section 409 of the I.P.Code then also the trial Court can alter the charge, at any time, in view of Section 216 of the Cr.P.C. The trial Court may also frame alternate charge for offence U/s 406 of the I.P.Code, besides one U/s 409 of the I.P.Code. In any case, the petitioner is not entitled to seek discharge and hence, at such premature stage the quashing of the charge is impermissible. 9. In the result, the petitions are dismissed. The learned trial Judge may, however, be at liberty to suitably alter, modify the charge during the trial. (V.R.KINGAONKAR,J.) asp/office/Crwp59009 13