IPC Sec 21
case law
S:S: Dhanova Vs : Municipal council of Delhi AIR 1981
Answers
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]
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:
Explanation:
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