Dismissed

Lalta Prasad Dwivedi v. State of U.P. Thru. Its Addl. Chief Secy. Deptt. of Home, Lucknow and Another

Allahabad HC18 Jan 2024/315/2024

Case brief

AI extract

What is this about?

Application under Section 482 Cr.P.C. challenged rejection of discharge in a Prevention of Corruption Act case, contending applicant was not a public servant as he was only Chairman of a Committee of administrators of a private society. Court held he was remunerated by Government and performing public duty, hence a public servant; application dismissed.

What the court decided

AI extract

Lalta Prasad Dwivedi Vs State of U.P. Thru. Its… — Cooperative Societies | Allahabad HC (2024)

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A.F.R.

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Neutral Citation No. - 2024:AHC-LKO:5154

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Court No. - 27

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Case :- APPLICATION U/S 482 No. - 315 of 2024

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Applicant :- Lalta Prasad Dwivedi Opposite Party :- State Of U.P. Thru. Its Addl. Chief Secy. Deptt. Of Home, Lucknow And Another Counsel for Applicant :- Ram Naresh Yadav,Vineet Kumar Chaurasia

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Counsel for Opposite Party :- G.A.

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Hon’ble Subhash Vidyarthi J.

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1. Heard Sri Ram Naresh Yadav, the learned counsel appearing for the applicant and Sri Anurag Verma, the learned Additional Government Advocate-I and perused the record.

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2. By means of the instant application filed under Section 482 Cr.P.C., the applicant has challenged validity of the order dated 06.11.2023 passed by the Additional District and Sessions Judge/Special Judge, P. C. Act, Court No.6, Lucknow rejecting the application for discharge filed by the applicant in relation to Crime No.686 of 2018 under Section 7 of the Prevention of Corruption Act and Sections 408, 120B IPC, Police Station Sarojini Nagar, Lucknow. 3. On 12.11.2018, an Inspector of U.P. Vigilance Establishment had filed an FIR against 3 named persons, including the applicant, describing him as ‘Lalta Prasad Dwivedi, the then Assistant Commissioner Housing and Assistant Registrar’ and some unnamed persons in illegal occupation of land, stating that by means of a Government Order dated 03.08.2015, the Vigilance, Establishment had been directed to conduct an open enquiry against co-accused L.K. Asthana, a former office bearer of Vidya Mandir Sahkari Grih Nirman Samiti Ltd. (hereinafter referred to as ‘the Society’), and the report dated 09.05.2017 submitted in furtherance of open enquiry indicates

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that the accused persons managed illegal possession on 4.5 Bigha land, which had been freed by the orders passed by the Hon’ble Court. The applicant, who was the then Assistant Commissioner and Assistant Registrar, U. P. Awas Evas Vikas Parishad and Administrator/Chairman the Society, was found guilty of commission of the aforesaid offences along with two other co-accused persons, L. K. Asthana and Mahadeo Singh.

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4. After investigation, a charge-sheet dated 20.12.2022 was submitted against co-accused persons, L. K. Asthana and Mahadeo Singh for commission of offences under Sections 408 and 120B IPC and another charge-sheet dated 27.02.2023 has been submitted against the applicant, for commission of the offences under Section 7 of the Prevention of Corruption Act. The charge-sheet itself mentions that Principal Secretary, Cooperative, Government of U.P. has granted sanction for prosecution of the applicant.

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5. The applicant had previously filed an application under Section 482 Cr.P.C., being Application U/S 482 No.5552 of 2023, seeking quashing of the charge-sheet and the proceedings on the ground that he is not a public servant and this contention was rejected by a coordinate bench of this Court vide order dated 31.05.2023.

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6. Although the applicant has challenged the validity of the order dated 06.11.2023 rejecting his application for discharge under Section 227 Cr.P.C., a copy of the discharge application filed by the applicant has not been annexed with the application under Section 482 Cr.P.C. Therefore, the Court cannot examine the pleas taken in the application under Section 227 Cr.P.C. and the Court has to examine the validity of the order dated 06.11.2023 treating the narration made in the order regarding the application filed under Section 227 Cr.P.C. to be correct.

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7. The impugned order states that the application under Section 227 Cr.P.C. was filed on the ground that the investigating officer has wrongly described the applicant to be Administrator of the Society

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whereas the administration was being done by a 3 members committee. It was further stated in the application that the applicant was an office bearer of a private society and was not a public servant and, therefore, he should be discharged for offence under Section 7 of the Prevention of Corruption Act.

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8. The trial court rejected the application by holding that there was sufficient material available on record for trial of the applicant for commission of the offence under Section 7 of the Prevention of Corruption Act. 9. In para 18 of the affidavit filed in support of the application under Section 482 Cr.P.C., it has categorically been stated that the applicant was neither a Government servant nor a salary paid employee for this Cooperative Housing Society. The learned counsel for the applicant has submitted that the applicant was merely the Chairman of the Committee of administrators of a private Society and he was not a public servant.

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10. Per contra, Sri. Anurag Verma, the learned A.G.A.-I has submitted that the applicant was working as Assistant Commissioner and Assistant Registrar, Cooperative Societies, Lucknow and he was a Government employee and a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act. By having been appointed as the Chairperson of the Committee of administrators of a cooperative society, the applicant did not lose his character of being a Government servant and the contention made in para 18 of the affidavit that the applicant was not a Government servant is incorrect, on the basis of material annexed by the applicant himself with the application.

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11. Section 2(b) and 2(c) of the Prevention of Corruption Act, 1988 define the terms ‘public duty’ and ‘public servant’ as follows: -

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“(b) “public duty” means a duty in the discharge of which the State, the public or the community at large has an interest ; Explanation.—In this clause “State” includes a corporation established by or under a Central, Provincial or State Act, or an

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authority or a body owned or controlled or aided by the Government or a Government company as defined in S. 617 of the Companies Act, 1956 (1 of 1956)”

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“(c) “public servant” means—

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(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;

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* * *

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(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty”

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12. Section 2 (b) of the Prevention of Corruption Act, 1988 provides that “public duty” means a duty in the discharge of which the State, the public or the community at large has an interest. Any person remunerated by the Government for the performance of any public duty or who holds an office by virtue of which he is authorised or required to perform any public duty, is a ‘public servant’ within the meaning of the term given in Section 2 (c) of the Prevention of Corruption Act, 1988.

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13. Section 35 of the Uttar Pradesh Co-operative Societies Act, 1965 provides that where, in the opinion of the Registrar, the committee of management of any co-operative society persistently makes default or is negligent in the performance of the duties imposed on it by this Act or the rules or the bye-laws of the society or commits any act which is prejudicial to the interest of the society or its members, or is otherwise not functioning properly, the Registrar may supersede the committee of management and he may appoint in its place an administrator or Committee of administrators who need not necessarily be members of the society.

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14. A copy of the letter dated 27.03.2019 sent by the Assistant Housing Commissioner/Assistant Registrar to the Superintendent of Police, U.P. Vigilance (Establishment) has been annexed with the affidavit wherein it has been stated that the

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Society was registered in the year 1965. Upon expiry of the term of the Members of the committee of management of the Society, a Committee of administrators was constituted by means of the office order dated 18.07.2009, whereby Sri Suneel Chaudhary, Executive Engineer, U.P. Awas Evam Vikas Parishad, Lucknow was appointed as its Chairman, the applicant, who was Cooperative Officer (Housing), U.P. Awas Evas Vikas Parishad and one Sanjay Sharma, Cooperative Inspector were appointed as members of the Committee of administrators. Subsequently, the Committee of administrators was modified by means of an order dated 14.12.2009 passed by the Joint Housing Commissioner/Joint Registrar, U.P. Awas Evas Vikas Parishad, Cooperative Section, whereby the applicant was appointed as the Chairman of the Committee of administrators of the Society.

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15. The applicant was working as an officer in U.P. Awas Evas Vikas Parishad and he was appointed initially as a member and subsequently as the Chairperson of the Committee of administrators of the Society under Section 35 of the U.P. Cooperative Society Act, 1965 as the term of the Managing Committee of the Society had come to an end. The applicant was not holding any position in the Cooperative Society independent of his position as a public servant.

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16. Section 2(o) of the U.P. Cooperative Society Act, 1965 provides that an Administrator of a Cooperative Society, whether with or without remuneration, shall be an officer of the cooperative society and Section 124 of the U.P. Cooperative Society Act, 1965 provides that any officer of a cooperative society shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.

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17. As the applicant was discharging his duties as the Chairperson of the Committee of administrators of the Society having been assigned the aforesaid duty under Section 35 of the

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U.P. Cooperative Societies Act for the reason that he was the Assistant Housing Commissioner/ Assistant Registrar U.P. Awas Evas Vikas Parishad, the contention made in para 18 of the affidavit filed in support of the application, the applicant is not a Government servant appears to be false on the basis of documents annexed with the application itself. The applicant is a person remunerated for the performance of the public duty by the salary paid by the Government and, therefore, he is a public servant within the meaning of the term given in Section 2 (c) of the Prevention of Corruption Act, 1988.

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18. In view of the aforesaid discussion, I am of the considered view that the applicant is a public servant as defined under Section 2(c) of the Prevention of Corruption Act and he can be charged for commission of the offence under Section 7 of the Prevention of Corruption Act, 1988. The ground for seeking the applicant’s discharge, that the applicant is not a public servant, is without any force.

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19. There is no illegality in the impugned order dated 06.11.2023 passed by the trial court. The applicant lacks merit and is hereby dismissed .

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(Subhash Vidyarthi, J.)

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Order Date :- 18.01.2024 prateek

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Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Lalta Prasad Dwivedi v. State of U.P. Thru. Its Addl. Chief Secy. Deptt. of Home, Lucknow and Another

Case brief

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Lalta Prasad Dwivedi v. State of U.P. Thru. Its Addl. Chief Secy. Deptt. of Home, Lucknow and Another

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