Ipc vs delhi cooperative societies act
Rajiv Gupta
(Querist) 09 January 2014
This query is : Resolved
DCS Act is a comprehensive act in itself and prescribes punishments u/s 118(5) and 118(6) of the act. Can a Managing Committee member be prosecuted u/s 406/409/477a r/w 120B IPC when the DCS Act exists,
The DCS Act states that sec 128 - every officer and employee of the coop. society shall be deemed to be a public servant within the meaning of section 21 of the IPC.
But mere adding this to the Act without having it passed in the State Legislature has no value.(Laljit Rajshi Shah vs State of Mahrashtra).
Question is : Has the Delhi State Legislature enacted it as a law by passing in the legislature?
In their failure to having done so can Society members be treated as Public Servants?
ajay sethi
(Expert) 09 January 2014
SC has held that members of MC are not public servants. hence cannot be prosecuted for offences under IPC unless cooperative societies act is amended by legislature .
he Supreme Court in its judgement said that the legislature no-doubt in section 161 of the state cooperative societies act had referred to the provisions of section 21, IPC, but such reference would not make the officers concerned ``public servants'' within the ambit of section 21.
The state legislature, the court noted, did not amend section 21, IPC, though it had powers to do so. ``That not having been done, it is difficult to accept the contention of the state that by virtue of the deeming definition in section 161 of the state cooperative act by reference to section 21, IPC, persons concerned could be prosecuted for the offences under IPC.''
ajay sethi
(Expert) 09 January 2014
ousing society office-bearers not punishable under IPC -- SC
UNITED NEWS OF INDIA
NEW DELHI, MARCH 7: Members of the managing committee and chairman of a cooperative society are not `public servants' under the Indian Penal Code, so as to be prosecuted for having committed offences under it, the Supreme Court has ruled.
The ruling was given by a division bench comprising Justices G B Pattnaik and N Santosh Hegde while dismissing an appeal by the Maharashtra Government.
Earlier, on the basis of a criminal prosecution under sections 120-B, 409, 420, 467, 471 and 177-a of the Indian Penal Code (IPC), sections 7 and 9 of the Essential Commodities Act and sections 5(1)(C) and 5(1)(D) read with section 5(2) of the Prevention of Corruption Act, the special judge had taken cognizance of the offences as against Laljit Rajshi Shah and other accused members of the managing committee of the cooperative societies and the chairman of such cooperative societies.
The accused persons had pleaded before the special judge that they were not ``public servants'' for the purposes of offences under the IPC and the Prevention of Corruption Act and further the prosecution was not maintainable for want of previous sanctions.
The special judge had considered the provisions of sections 161 of the Maharashtra Cooperative Societies Act and came to the conclusion that the accused could not be held to be ``public servants'' under sections 21, IPC, notwithstanding the incorporation of section 21, IPC, in section 161 of the State Cooperative Societies Act. Therefore, no congnizance could be taken of the offences under the Prevention of Corruption Act. The special judge had further held that in the absence of sanction for prosecution the cognizance was bad in law.
When the matter was taken by the state to the Bombay high court a division bench of the high court held that the accused persons could not be prosecuted for offence under sections 409, IPC, as also under the provisions of the Prevention of Corruption Act, though they could be prosecuted for the other offences for which cognizance had been taken.
The Supreme Court in its judgement said that the legislature no-doubt in section 161 of the state cooperative societies act had referred to the provisions of section 21, IPC, but such reference would not make the officers concerned ``public servants'' within the ambit of section 21.
The state legislature, the court noted, did not amend section 21, IPC, though it had powers to do so. ``That not having been done, it is difficult to accept the contention of the state that by virtue of the deeming definition in section 161 of the state cooperative act by reference to section 21, IPC, persons concerned could be prosecuted for the offences under IPC.''
``In the premises, we see no infirmity in the impugned high court judgement requiring our interference,'' the judges observed.
Copyright © 2000 Indian Express Newspapers (Bombay) Ltd.
R.K Nanda
(Expert) 09 January 2014
nothing to add more.
Rajendra K Goyal
(Expert) 09 January 2014
Well advised by the expert ajay sethi ji, nothing more to add.
Advocate. Arunagiri
(Expert) 09 January 2014
In Tamil nadu the Cooperative Socieity's employees are deemed public servants.
Even in DCS case, the act clearly says that
Officers and employees to be public servants.
128. The Registrar or any person authorised by him to recover any amount or to execute
any orders or decisions taken under any provisions of this Act and every officer
and employee of the co-operative society shall be deemed to be a public servant
within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860)
Advocate. Arunagiri
(Expert) 09 January 2014
The act is enacted by the Delhi assembly:-
No.F.14 (32)/LA-2003/149 Dated: the 2nd April, 2004
NOTIFICATION
No.F.14 (32)/LA-2003 - The following Act of the Legislative Assembly of the National
Capital Territory of Delhi received the assent of the President of India on the 3rd March,
2004 and is hereby published for general information:-
"THE DELHI CO-OPERATIVE SOCIETIES ACT,
2003" (DELHI ACT 3 OF 2004)
(As passed by the Legislative Assembly of the National Capital Territory of Delhi on
the 29th July, 2003)
[3rd March, 2004}
