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IPC Sec 21
case law
S:S: Dhanova Vs : Municipal council of Delhi AIR 1981​

Answers

Answered by peterparker5
0

Answer:

PETITIONER:

S.S. DHANOA

Vs.

RESPONDENT:

MUNICIPAL CORPORATION, DELHI & ORS.

DATE OF JUDGMENT08/05/1981

BENCH:

REDDY, O. CHINNAPPA (J)

BENCH:

REDDY, O. CHINNAPPA (J)

SEN, A.P. (J)

ISLAM, BAHARUL (J)

CITATION:

1981 AIR 1395    1981 SCR  (3) 864

1981 SCC  (3) 431   1981 SCALE  (1)919

CITATOR INFO :

E     1986 SC1571  (56)

D     1991 SC 855  (16,23)

ACT:

    Public servant-Services  of an Officer belonging to the

Indian Administrative  Service  loaned  to  a  Cooperative

Society-Prior approval of Central  Government under section

197 Cr. P.C. if required for prosecution under Prevention of

Food Adulteration  Act-Officer,  whether  a  public  servant

within the meaning of clause Twelfth of section 21 I.P.C.

    Penal  code-Clause  Twelfth  of  section  21-Scope  of-

Services of  a government  servant loaned  to a  Cooperative

Society-Government servant  if continued  to  be  a  public

servant.

HEADNOTE:

    The services  of the  appellant,  a  Member  of  Indian

Administrative Service,  were placed  at the disposal of the

Co-operative Store  Ltd. for  being appointed as the General

Manager of the Super Bazaars run by the Co-operative Store.

    On a  complaint being  filed against  the appellant for

commission of  alleged offence punishable under  section  7

read with  s. 16  of the Prevention of Food Adulteration Act

1954 before  the Metropolitan Magistrate Delhi the appellant

contended that he was a public servant within the meaning of

clause Twelfth of section 21 of the Penal Code, that the act

complained of was done by him in the discharge of his duties

as a  public servant  and that since, as required by section

197, Cr.  P.C., previous  sanction of the Central Government

had not  been obtained the court  was not competent to take

cognizance of the offence.

    The Magistrate  rejected all these contentions. He held

that the appellant could not be regarded as a public servant

within the  meaning of clause Twelfth of section 21 and that

at the relevant time he was neither in the service or pay of

the Government nor was  he employed "in connection with the

affairs of the Union".

    The High  Court, on  appeal, upheld  tho  view  of  the

Magistrate.

    Before this  Court  it  was  contended  that  the term

"corporation" used  in clause  Twelfth of section 21 is wide

enough to  include not merely a  statutory corporation  but

also a body corporate such as the Cooperative Stores

865

established under  the State Act like the Bombay Cooperative

Societies Act, 1925 and  that as  General  Manager  he  was

employed in  connection with  the affairs  of the  Union  by

reason of  the fact that the Central Government had advanced

a huge loan to  the  Society  for  carrying  on  commercial

activities.

    Dismissing the appeal,

^

    HELD:  The   appellant  does  not answer any  of  the

essential requirements of  clause  Twelfth  of  section  21

I.P.C. He  was neither an officer  in the service or pay of

the Government nor of a  local  authority,  a  corporation

established by or under an Act or a Government company. [869

D]

    Mere incorporation  of a  society under  a  Central  or

State Act  does not  make a  body a  corporation within  the

meaning of  clause Twelfth  of section 21.  The  expression

"corporation" must,  in  the  context, mean  a  corporation

created by the legislature and not a body or society brought

into existence by an  act of  a  group  of  individuals.  A

cooperative  society   is,  therefore,  not  a  corporation

established by or under  an Act  of the  Central  or  State

legislature. [870 B]

    Corporation  in   its  widest   sense  may   mean  any

association of individuals entitled to act as an individual.

But that  is not  the sense  in which  it is  used in clause

Twelfth of  section 21.  There is  a well marked distinction

between a  body created by a statute and a body which, after

coming into  existence, is  governed in  accordance with the

provisions of  a statute.  A corporation  established by  or

under an  Act of  legislature can only mean a body corporate

which owes  its existence,  and  not  merely  its  corporate

status to  the Act.  An association  of persons constituting

themselves into  a company  under the  Companies  Act  or  a

society under Societies. Registration Act owes its existence

not to the Act of legislature but to acts of parties though

it may owe its  status as a body corporate to an Act of the

legislature. [871 C-G]

 

Answered by deepj8617
1

Answer:

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 520, of 1976.

Appeal by Special Leave from the judgment and order dated the 17th September, 1975 of the Delhi High Court in Criminal Misc. (M) 212 of 1974 D. Mukherjee, and O.P. Sharma for the Appellant. P.R. Mridul, B.P. Mridul, B.P. Maheshwari and Suresh Sethi for the Respondents.

The Judgment of the Court was delivered by SEN, J. This appeal by special leave from a judgment of the Delhi High Court upholding an order of the Metropolitan Magistrate, Delhi, raises a question of some public importance. The question is as to whether the appellant, who is a member of the Indian Administrative Service, and whose services were placed at the disposal of the Cooperative Store Ltd., a society registered under the Bombay Cooperative Societies Act, 1925 (hereinafter called the Society), was a public servant within the meaning of cl. Twelfth of s. 21 of the Indian Penal Code, 1860, for purposes of s. 197 of the Code of Criminal Procedure, 1973. The question arises in this way.

The appellant is a member of the Indian Administrative Service. By notification No. 27-942-Estt. 1, dated 23rd April, 1972, issued by the Government of India in the Ministry of Agriculture (Department Agriculture), the services of the appellant, who was a Joint Commissioner (State Liaison) in that Ministry, were placed at the disposal of the Department for his appointment as the General Manager, Super Bazaar, Connaught Place, New Delhi with effect from April 7, 1972, on which date he took over charge as General Manager. At the request of the Managing Committee of the Society, the Government of India extended the period of his deputation for a further period of one year with effect from April 7, 1973. On completion of his period of deputation, the appellant reverted as Joint Secretary in the Ministry of Agriculture.

On October 10, 1973, the Food Inspector purchased a sealed bottle of honey from the Super Bazaar at the INA Market. The Public Analyst's report showed the honey to be adulterated. On April 5, 1974, the Municipal Corporation, Delhi, filed a complaint against the appellant and other officials of the Super Bazaar as also against the manufacturer of honey for having committed an offence punishable under s. 7 read with s. 16 of Prevention of Food Adulteration Act, 1954. On being summoned by the Metropolitan Magistrate, Delhi, to appear before him as an accused, the appellant raised a preliminary objection that the taking of cognizance of the alleged offence by the Magistrate was barred under s. 197 of the Code of Criminal Procedure, 1973, for want of sanction of the Central Government, since the act complained of was nothing but an act done by him in the discharge of his duties as a public servant.

The Metropolitan Magistrate, Delhi, by his order dated October 9, 1974, rejected the objection, holding that the appellant, at the time of commission of the alleged offence, was not a public servant within the meaning of cl. Twelfth of s. 21 of the Indian Penal Code and, therefore, he was competent to take cognizance of the alleged offence. In coming to that conclusion, the learned Magistrate held that the services of the appellant having been placed at the disposal of the Society, he was in foreign service under FR 9 (7) and, therefore, could not be regarded as a public servant within the meaning of cl. Twelfth of s. 21 of the Indian Penal Code for two reasons, namely: (a) as the General Manager, he was not an officer in the service or pay of the Government, and (b) while functioning as General Manager, he was not employed in connection with the affairs of the Union. On appeal, the High Court confirmed the view of the learned Magistrate.

The short question that falls for our determination in this appeal is whether a member of the Indian Administrative service, whose services are placed at the disposal of an organisation which is neither a local authority, nor a corporation established by or under a Central, Provincial or State Act, nor a Government Company, by the Central Government or the Government of a State, can be treated to be a 'public servant' within the meaning of cl. Twelfth of s. 21 of the Indian Penal Code for purposes of s. 197 of the Code of Criminal Procedure, 1973. The answer to the question turns on the construction of cl. Twelfth of s. 21 of the Indian Penal Code, 1860 and s. 197 of the Code of Criminal Procedure, 1973, which, so far as they are relevant, are as follows:

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