The Allahabad High Court while dismissing an application held that if there is an offence under two Acts, then the person can be prosecuted and punished only in one Act, a person shall not be liable to be punished twice for the same offence.
A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 filed by Brijpal Singh.
By way of the application, the applicant has challenged the criminal proceeding of Case pending in the court of Additional Chief Judicial Magistrate, Etah arising out of Case u/s 409, 420, 467, 468, 471 IPC, Police Station Naya Gaon, District-Etah, and also the charge sheet dated 24.05.2011 as well as the cognizance order dated 21.07.2011.
The facts of the case are that the applicant was working as Secretary Sadhan Sahkari Samiti Ltd Navar Block, Aliganj, Etah. On receiving specific complaints against the applicant, District Assistant Registrar Co-operative Society, Etah, vide order dated 30.11.2007, directed to conduct an enquiry against the applicant.
In pursuance of the order dated 30.11.2007 of District Assistant Registrar Cooperative Society, Etah, the enquiry was conducted by a committee consisting of the Additional District Cooperative Officer and Deputy General Manager, District Cooperative Bank Ltd, Etah and on receiving the enquiry report, District Assistant Registrar Cooperative Society by his order dated 02.07.2008 directed to lodge an F.I.R against the applicant based on the finding of above enquiry report.
In pursuance of the order dated 02.07.2008, Deputy General Manager District Cooperative Bank, Etah lodged an F.I.R dated 13.07.2008 in Case under section 467, 468, 471, 409, 419 and 420 IPC against the applicant for the allegation of misappropriation of stock of fertilizers, breach of trust as well as forgery in the document of society and causing loss of Rs 5997497.20 to society.
Police, after investigation, had submitted chargesheet against the applicant and two other co-accused namely, Malti Devi and Mahendra Singh Chauhan on 24.05.2011, u/s 409, 420, 467, 468, 471 IPC and ACJM-I, Agra had taken cognizance over the chargesheet on 21.07.2011 and registered, the case and subsequently case was transferred in the Court of ACJM-II, Agra and applicant also obtained bail on 18.04.2012, thereafter, case was also transferred on 16.06.2018 from District-Agra to District-Etah in pursuance of circular of Lucknow Bench of the Court.
Since the date of transfer of the case from District-Agra to District-Etah, this case has been pending in the Court of Additional Chief Judicial Magistrate, Etah.
The Court observed that,
After hearing the parties and on perusal of the record, a question that requires to be determined is whether Sections 68, 103, 105 of the Act, 1965, as well as Section 26 of the General Clauses Act, bar the prosecution of an employee of the cooperative society for the offence under the IPC.
From a perusal of the sections of the Act, 1965, it is clear that machinery for recovery of any loss caused to society by its employee has been given in Sections 68, 95 of the Act, 1965 without making the same as a panel. Certain offences are also mentioned in Sections 103 and 104 of the Act, 1965. The offence mentioned in Section 103 mainly relates to non submission of returns or the reports required by this Act to the concerned officers and also destroying, mutilation, alteration or falsification of any book, paper or security belonging to society or refusal of any officer of society without reasonable cause to hand over books, records or property belonging to the society or failure of an officer to establish contributory provident fund regarding employees of the society, negligence in maintaining the accounts and register of the cooperative society non furnishing information, books and records to the concerned officers as per the requirement of the Act including during conduct of audit of the record of the society, non returning the deduction made by an employee of the society u/s 40(2) of the Act, 1965 as well as any act on the part of the officer of the society which is declared by the rules as offence but the offence regarding breach of trust was not mentioned in Section 103 or in any other provision of Act, 1965.
It is clear that if there is an offence under two Acts, then the person can be prosecuted and punished only in one Act. The above provisions are based on the principle of double jeopardy, i.e a person shall not be liable to be punished twice for the same offence. Therefore, the above mentioned provision’s primary emphasis is a prohibition against the punishment for the same offence. Though the offence of forgery in the record of a cooperative society is punishable under Section 103(ii) of the Act, 1965, as well as Chapter 18 of IPC, a person can be prosecuted and punished in either of the two enactments, not in both Acts. There is no prohibition in the Act 1965, for prosecution under I.P.C instead of Act, 1965 even though the offence is punishable under the Act, 1965 as well as under IPC.
In the Act of 1965, no such provision can be said to be pari materia to Section 89 of the Food Safety and Standards Act, 2006. In the Act, 1965 there are only two provisions; one is Section 90, which is with regard to overriding effect of Chapter 11 of the the Act, 1965 and also Section 111, which also provides bar of jurisdiction regarding certain cases including the dispute and award under Section 70 of the Act, 1965 but there is no provision providing overriding effect of the offence and penalty in Chapter 14 of the Act, 1965 which includes offence of forgery over all other laws including IPC.
“It is clear that even if the offence of forgery is punishable under Section 103(ii) of the Act, 1965 as well as under Chapter 18 of I.P.C, there is no provision prohibiting the prosecution under Chapter 18 of I.P.C instead of Section 103 of the Act, 1965.
The Act, 1965, does not provide a punishment for breach of trust; therefore, the same can be prosecuted under Section 406 I.P.C, and the bar of Section 26 of the General Clauses Act as well as Section 300(1) Cr.P.C will not be applicable.
The employee and officer of the cooperative society are not public servants as per Section 21 of I.P.C for the purpose of offences mentioned in IPC. Therefore, they cannot be prosecuted under Section 409 I.P.C but definitely can be prosecuted for the breach of trust under Section 406 IPC. However, appropriate Section can be added or removed at the time of framing of charges. In view of the foregoing conclusions, no case is made out for interference”, the Court further observed while dismissing the application.