Criminal Revision No.316 of 2003 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Revision No.316 of 2003 Date of decision: 5.6.2009 State of Punjab ......Petitioner Versus Surinder Pal Singh Chhina .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Aman Deep Singh Rai, AAG, Punjab. for the . Mr.R.S.Cheema, Sr. Advocate with Mr.R.K.Trikha, Advocate, for the respondent. **** SABINA, J. The State has filed this petition for setting aside of order dated 2.9.2002 passed by the Special Judge, Amritsar, whereby charge was only framed against the respondent under Section 406 IPC and not under Section 13 (1) (c ) read with Section 13 (2) of the Prevention of Corruption Act, 1985 ('the Act' for short). Prosecution case, as stated in para 2 of the Criminal Revision No.316 of 2003 2 impugned order, is as under:- “Accusations against the accused-applicant as contained in FIR No.117 of 2002 lodged at PS Kotwali, Amritsar, are to the effect that in the year 1999, the accused was posted as Managing Director of Amritsar Central Cooperative Bank Limited. During Indo-Pak conflicts in the year 1999 over Kargil Hills in Jammu and Kashmir the employee of Central Cooperative Bank decided to join National mainstream and raised donation for sending relief fund named Kargil fund. A total sum of Rs.3.5 lacs was collected by employees of the bank and handed over to the accused for sending it to the concerned quarter. Instead of transmitting it the accused misappropriated it for his personal use.” Thus, the allegation against the respondent is that while he was posted as Managing Director of Amritsar Central Cooperative Bank Limited, he raised a donation for sending relief fund for Kargil victims. An amount of Rs.3.5 lacs was collected from the employees of the bank and handed over to the respondent for sending it to the quarter concerned. However, the respondent misappropriated the same for his personal use. Vide the impugned order dated 2.9.2002 charge was ordered to be framed against the respondent under Section 406 IPC. Criminal Revision No.316 of 2003 3 While declining to frame a charge under Section 13 of the Act, learned Special Judge, in para 6 of the impugned order, has observed as under:- “From plain reading of Section 13, ibid, a public servant can be said to have committed an offence of criminal misconduct only if alleged misconduct falls within the definition of misconduct given under Section 13 of the Act only. The act of raising contribution for being sent to Kargil fund was not in any manner to be carried out by a public servant in discharge of his official functions as a public servant. It was not a gratification, other than the legal remuneration as a motive or reward as defined under Section 7 of the Act. The acceptance or retention of amount of Kargil fund was not in connection with his official functioning or of any public servant to whom the accused was subordinate to bring it within the realm of Section 13 (b) Fraudulent misappropriation of Kargil funds was not under his control as a public servant to bring it within Section 13 © of the Act. At the most it could have been said that the accused has amassed assets by illegal means disproportionate to his known source of income. But for that very offence the accused is already being tried separately for the same period. For all that has Criminal Revision No.316 of 2003 4 been discussed above, I do not find any nexus between the alleged misappropriation of Rs.3.5 lacs by the accused and his functioning as public servant. Even if two facts, the one of criminal misappropriation of Kargil funds and the other of accused being a public servant are prima facie made out, yet in order to charge the accused under any of the Sections of Prevention of Corruption Act of 1988, a bridge has to exist between his alleged misappropriation and his functioning as public servant which is missing in the instant case. Therefore, the accused cannot be charged under the Prevention of Corruption Act. The only offence which is made out from the allegations contained in the final Section 420 is anti- tisis to see 406 IPC and is not medical report is 406 of Indian Penal Code. Let the accused be charged thereunder and file be laid before me, thereafter.” After hearing learned counsel for the petitioner/State as well as learned counsel for the respondent, I am of the opinion that this petition deserves to be allowed. A 'public servant' as defined in Sub-clauses (iii), (viii) and (ix) of Clause (c ) of Section 2 of the Act reads as follows:- “2. Definition- In this Act, unless the context otherwise requires,- Criminal Revision No.316 of 2003 5 (a) xx xx xx (b) xx xx xx ( c) 'public servant” means,- (iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956; (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty; (ix)any person who is the President, Secretary or other office bearer of a registered cooperative society, engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956). Explanation 1 : Persons falling under any of the above sub clauses are 'public servants', whether Criminal Revision No.316 of 2003 6 appointed by the Government or not. Explanation 2 : Wherever the words 'public servants” occur, they shall be understood of every person who is in actual possession of the situation of a 'public servant', whatever legal defect there may be in his right to hold that situation”. The question as to whether the respondent is a public servant or not is no longer res integra. It has been duly considered by the Apex Court as well as by this Court. In Criminal Revision No.1369 of 2001, decided by this Court on 21.11.2001, titled as Dharam Singh v. State of Haryana, Dharam Singh was General Manager of Sonepat Central Cooperative Bank, Sonepat and was caught red handed while accepting bribe from complainant Bharat Singh. The question arose as to whether the petitioner was a public servant within the meaning of the Act as the Special Judge, Sonepat had framed charges against Dharam Singh under the Act. While dismissing the petition, it was held as under:- “The sole question to be considered is whether the petitioner is covered under the definition of public servant or not. It is no doubt true that in Suraj Mal's case (supra) and in Laljit Rajshi Shah's (supra) case the accused were found to be not public servants. The present case Criminal Revision No.316 of 2003 7 appears to be distinguishable because the employees of a cooperative society are required to perform public duties, therefore, a General Manager of the Cooperative Society would certainly be a public servant under Section 2 (c )(viii) of the Prevention of Corruption Act. The nature of duties performed by accused in Laljit Rajshi Shah's case have not been enumerated but it seems that they were members and Chairman of the Managing Committees of the Society. It was perhaps for this reason the court had no difficulty in excluding them from the definition of public servant. In Suraj Mal's case the accused was a Manager as in the present case. The court sought the aid of Section 21 IPC and as per clause twelfth, a public servant was to be a person who was in the services 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. Cooperative Societies did not create a corporation but cooperative societies were a body corporate. An employee of a body corporate, like a cooperative society, did not fall within the definition of Section 21 IPC. It seems that the attention of the court was not drawn Criminal Revision No.316 of 2003 8 towards the provisions of the Prevention of Corruption Act itself which quite specifically refer to the concept of public duty in Section 2 (b) and clearly defines different categories of public servants in Section 2 (c ). Definition of public servant in Section 2 (c ) (iii) is similar to the definition given in Section 21 clause twelfth of IPC. But it is the definition of public servant in 2 (c ) (viii) which seems to be applicable to be present case. The petitioner was a General Manager who held office by virtue of which he was required to perform public duties, meaning thereby, that he was required to perform duties for the discharge of which the State, the public or the community at large has an interest. General Mangers of Cooperative Societies certainly perform public duties in which the public and the community have a huge interest. Therefore, a General Manager is covered by the definition of public servant in Section 2 (c ) (viii). Even office bearers of a Cooperative Society seem to be covered by the definition of public servant in Section 2 (c ) (ix). According to the learned counsel the petitioner was appointed as a Clerk in the Cooperative Bank, Karnal in 1961, promoted as Junior Accountant in 1971, Criminal Revision No.316 of 2003 9 promoted as Senior Accountant in 1974. In 1983 he was promoted as Assistant Manager by the Haryana State Cooperative Apex Bank Ltd. And thereafter he became an employee of the HARCO Bank which was registered as Society under the Haryana Cooperative Societies Act. In 1996 he was promoted as Manager and posted as General Manager in Sonepat Central Cooperative Bank, Sonepat in June 2000. When the occurrence took place he was working as General Manager. He was performing public duty as a Manager of a Cooperative Bank engaged in banking activities in which the public had an interest. There can be no hesitation in holding that the petitioner was a public servant. The rulings in Laljit Rajshi Shah's case and Suraj Mal's case are clearly distinguishable.” In Govt. of Andhra Pradesh v. P.Venku Reddy 2002(4) RCR (Criminal) 557, the Apex Court held as under:- “8. From the above quoted sub-clause (ix) of Clause (c ) of Section 2 of the 1988 Act, it is evident that in the expansive definition of 'public servant', elected office- bearers with President and Secretary of a registered co- operative society which is engaged in trade amongst others in 'banking' and 'receiving or having received any Criminal Revision No.316 of 2003 10 financial aid' from the Central or State Government, are included although such elected office-bearers are not servants in employment of the Co-operative Societies. But employees or servants of a Co-operative Society which is controlled or aided by the Government, are covered by sub-clause (iii) of Clause (c ) of Section 2 of the 1988 Act. Merely because such employees of Co- operative Societies are not covered by sub-clause (ix) along with holders of elective offices, High Court ought not have overlooked that the respondent, who is admittedly an employee of a co-operative bank which is controlled and aided by the Government, is covered within the comprehensive definition of 'public servant' as contained in sub-clause (iii) of Clase (c ) of Section 2 of the 1988 Act. It is not disputed that the respondent/accused is in service of a co-operative Central Bank which is an 'authority or body' controlled and aided by the Government. 12.In construing definition of “public servant” in Clause (c ) of section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of legislature. In that view Statement of Objects and Reasons contained in the Bill leading to Criminal Revision No.316 of 2003 11 the passing of the Act can be taken of assistance of. It gives the background in which the legislation was enacted. The present Act, with much wider definition of “public servant”, was brought in force to purify public administration. When the legislature has used such comprehensive definition of ‘public servant’ to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of definition clause by construction which would be against the spirit of the statute. The definition of ‘public servant’, therefore, deserves a wide construction. 13. As a matter of fact, we find that the point arising before us on the definition of ‘public servant’ that it does include employee of a banking co-operative society which is ‘controlled or aided by the Government’ is clearly covered against the respondent/accused by the judgment in the case of state of Maharashtra and another v. Prabhakarrao and another, 2002(3) RCR (crl.) 615 (SC). In Purshotam Dass v. State of Haryana 2002 (4) AICLR 712, this Court held that the officers of the Primary Land Mortgage Bank would be covered under sub clause (ix) inasmuch as Criminal Revision No.316 of 2003 12 the Primary Land Mortgage Bank is a society registered under the Haryana Cooperative Societies Act, and deals in banking. Thereafter, the judgments cited by the learned counsel for the petitioner are clearly distinguishable and are not applicable to the case arising after the enactment of the Act. However, the judgment of Suraj Mal's case (Supra) deals with a case after the commencement of the Act but the attention of the Court was not drawn towards the definition of ' public servant' contained in Section 2 (c ) of the Act. Therefore, the said judgments in the absence of reference of statutory provisions cannot be considered as a binding precedent and therefore, I am of the opinion that the petitioner, who is an office bearer of the registered cooperative society engaged in the banking is covered under the definition of 'public servant' contained in Section 2 (c ) (ix) of the Act. The legal position that emerges after going through the above cited decisions of the Apex Court as well as this Court is that an employee of a Cooperative bank, which is an authority or body controlled and aided by the government, is a public servant. In construing the definition of 'public servant' under the Act, the Court is required to adopt an approach which would give effect to the intention of the legislature. The intention of the legislature is to achieve the purpose of punishing and curbing growing corruption in Government and semi Government departments and hence, it would Criminal Revision No.316 of 2003 13 not be appropriate to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of 'public servant' deserves a wider construction and sub clause (ix) of Clause (c ) of Section 2 of the Act is expansive definition of 'public servant'. An employee of the cooperative bank is covered within the comprehensive definition of 'public servant' as contained in sub clause (iii) of Clause (c ) of Section 2 of the Act. The Bank is having public dealings and is, thus, discharging a public function. The Bank has its duties towards the public. The public at large looks forward to the Bank for the purpose of help required for agriculture and industry etc. The public interest is, thus, involved in the activities of the Bank. The respondent was discharging public duty and hence, the respondent who has been performing the duties of Managing Director of the bank is covered by the definition of 'public servant' within the meaning of the provisions of the Act. Learned Special Judge fell in error while holding that the respondent was not performing any public duty as a public servant and hence, no offence under the Act was made out. The money had been collected by the respondent as a public servant being Managing Director of the bank. The allegation against the respondent is that instead of forwarding the Kargil Relief Fund to the concerned authority, he misappropriated the amount of Rs.3.5 lacs collected by him from the employees of the Bank. The respondent is a public servant as per the provisions of the Act and has allegedly Criminal Revision No.316 of 2003 14 misappropriated Kargil relief fund while discharging his duties as a public servant. Accordingly, this revision petition is allowed. The impugned order dated 2.9.2002, whereby charge was only ordered to be framed against the respondent under Section 406 IPC, is set aside. Learned Special Judge, Amritsar is directed to pass a fresh order with regard to framing of the charge against the respondent in accordance with law. (SABINA) JUDGE June 5, 2009 anita Referred to Reporter: yes/ no