1987 Supreme(Bom) 394

IN THE HIGH COURT OF BOMBAY
A.D. Tated, J.
Pralhad Shamburao Newale others.... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Criminal Writ Petition No. 601 of 1987, with Criminal Application Nos. 1749 of 1986, with Criminal Appeals Nos. 710, 735, 826 of 1986, decided on 19/20-11-1987.
Advocates appeared :
Anil V. Anturkar, for petitioner, applicant and appellants.
P.M. Vyas, P.P., for respondents.

Headnote:Article 254.

       See Maharashtra Co-operative Societies Act, 1960, Section 161.

       Section 161 (as amended by Act No. XXVII of 1969) -Indian Penal Code, 1860-Section 21-Constitution of India-Article 254-Subject of repugnancy in laws-Held, provisions of Section 161 of the Co-operative Societies Act was not repugnant to the provisions of Section 21, Indian Penal Code, and that the said Section 161 was not void being repugnant to the provisions of Section 21, Indian Penal Code.

       It is well settled that for the application of clause (1) of Article 254 of the Constitution two conditions must be fulfilled; (1) the provisions of the State law and those of the Central legislation must both be in respect of a matter which is enumerated in the Concurrent List, and (2) they must be repugnant to each other. It is only when both these requirements are satisfied that the State law, to the extent of the repugnancy, becomes void.

       In the present case the subject "Co-operative Societies" falls in State List and the criminal law falls in Entry 1 of the Concurrent List. As the subjects covered by the two decisions do not fall in the Concurrent List, the question of repugnancy does not arise. The provisions of clause (2) of Article 254 of the Constitution are also not attracted because the subject "Cooperative Societies" does not fall in the Concurrent List. As stated earlier the offences dealt with under the Maharashtra Co-operative Societies. Act are in respect of the affairs of Co-operative Societies. The Indian Penal Code which is a Central Legislation falling in Entry 1 of the Concurrent List, deals with the offences in general. The provisions relating to the offences dealt with in the Maharashtra Co-operative Societies Act are not repugnant to the provisions contained in the Indian Penal Code. They are either supplementary or complimentary but not repugnant to the provisions of the Indian Penal Code. While considering whether the provisions of the two Acts are repugnant the attempt must always be to find out whether the provisions in one law are so different from another that the two laws cannot co-exist because of the conflict. If the two laws occupy different areas, though under the same field, or are to apply for different periods, or deal with different subjects, no question of conflict can arise and, therefore, there will be no repugnancy. On applying such test, it cannot be said that the provisions of Section 161 of the Maharashtra Co-operative Societies Act are repugnant to the provisions of Section 21, I. P. C. Consequently, I am unable to accept the contention of the learned Counsel that the provision of the said Section 161 are void, being repugnant to the provisions of Section 21, I.P.C.

       Section 161 (as amended by Act No XXVII of 1969) –Indian Penal Code, 1860-Section 21-Constitution of India-Article 254-Subject of repugnancy in laws-Criminal Law Amendment Act (II of 1958)-Held, because Section 161 of Maharashtra Co-operative Societies Act adds to the list of public servants mentioned in Section 21, Indian Penal Code, it cannot be said that it was had on account of repugnancy.

       By no stretch of imagination can it be said that the provisions of Section 21. I. P. C. cannot be amended and extended to some other categories of servants or officers. It may be mentioned that Section 21, I.P.C. was amended by Criminal Law Amendment (11) Act, 1958, and thereby clause (12) was added. The Jaw is an ever growing subject and, therefore, it has to be amended from time to time, taking into consideration the requirements of Society at the time. Consequently, because Section 161 of the Maharashtra Co-operative Societies Act adds to the list of public servants mentioned in Section 21, I. P. C., it cannot be said that it is bad on account of repugnancy.

       Sections 2(20) and 161-Indian Penal Code, 1860-Section 21-Prevention of Corruption Act, 1947-Section 5-Criminal Law Amendment Ordinance, 1944-(Ordinance No. XXXVIII of 1944)-Officers of o-operative Bank-If “public servants” within he definition of Section 21, I.P.C. and can be prosecuted for the offences under Section 5 of the prevention of Corruption Act, 1947-Held, yes-(Repugnancy in Laws; Public servants).

       It is true that if the provisions of Section 161 of the Maharashtra Cooperative Societies Act, 1960, are not taken into consideration, officers of Co-operative Societies, as defined in clause (20) of Section 2 of that Act, do not fall within any of the 12 clauses of Section 21, I. P. C. and, therefore, those officers, without the aid of the said Section 161, cannot be prosecuted for the offences punishable under the provisions of the Prevention of Corruption Act. Section 161 of the Maharashtra Co-operative Societies Act, as amended by Act XXVII of 1969, provides that the officer defined in clause (20) of Section 2 of the said Act shall be deemed to be a "public servant" within the meaning of Section 21, I. P. C. In view of those provisions, in the State of Maharashtra officers of Co-operative Societies falling within Section 2 (20) of the Maharashtra Co-operative Societies Act are public servants within the meaning of Section 21, I. P. C.

       In view of the amended Section 161 of the Maharashtra Co-operative Societies Act, officers falling within Section 2 (20) of that Act are deemed to be "public servants" within the meaning of Section 21, I. P. C. Therefore, the provisions of the Prevention of Corruption Act will be applicable to the officers of Co-operative Societies falling within Section 2 (20) of the Maharashtra Co-operative Societies Act. Section 161 of the Maharashtra Co-operative Societies Act, as amended, is a validly enacted State law and, as already held by me, it is not void on account of repugnancy and, therefore, these provisions have to be given effect to. Therefore, all the officers of Co-operative Societies who fall under Section 2 (20) of the Maharashtra Co-operative Societies Act must be deemed to be "public servants" within the meaning of Section 21, I. P. C. for all purposes. In this view of the matter, I am unable to agree with the learned Counsel for the petitioner, applicant and appellants that as they do not fall within Section 21, I. P. C. they cannot be prosecuted for the offences punishable under the provisions of the Prevention of Corruption Act. As stated earlier the officers of Co-operative Societies falling within Section 2 (20) of the Maharashtra Co-operative Societies Act, must be deemed to be "public servants" as defined in Section 21 1. P. C. and, therefore, the provisions of the Prevention of Corruption Act would apply to them also.

       The provisions of Section 161 are not void on account of repugnancy. The State Legislature being competent to enact the said law, it is a valid law and under that law the appellants, being the officers of the Co-operative Bank within the provisions of Section 2 (20) of the Maharashtra Co-operative Societies Act are "public servants" within the definition of Section 21, 1. P. C. and as such they are liable to be prosecuted for the offences under Section 5 of the Prevention of Corruption Act.

       Section 21

       See Maharashtra Co-operative Societies Act, 1960, Section 161.