Bhim Sen vs State of Haryana

Pritpal Singh, J.

In this petition, under S. 482 of the Code of Criminal Procedure, First Information Report No. 6. recorded at Police Station, Raipur Rani, district Ambala, on January 23, 1984, under section 409, Indian Penal Code, against. the petitioner Bhim Sen is sought to be quashed.

In the impugned First Information Report lodged by the Assistant. Registrar, Cooperative Societies, Ambala, it was alleged that the petitioner Bhim Sen, exliquidator of the Morni Hills Carpet Daree P.C.I.S. Ltd., Morni, has embezzled a sum of Rs. 4392/. After investigation of the case challan Was presented before the Court in January 1987 for the case to be tried under section 409, Indian Penal Code.

The contention on behalf of the petitioner is that since he was appointed as Liquidator under section 106 of the Haryana Cooperative Societies Act (hereinafter called the Act) the offence allegedly committed by him fell under section 117(5) of the Act and not under section 409, Indian Penal Code. This offence is punishable with six months'' imprisonment it is submitted that the cognizance of this case, therefore, I was taken by the trial Court in January 1987 beyond the period of limitation in violation of section 468, Code of Criminal Procedure which provides that no Court shall take cognizance of an offence punishment with imprisonment for a term not exceeding one year after the expiry of one year''s period of limitation. It is further objected that under section 118 of the Act the trial Court could not take cognizance of the offence without the previous sanction of the Registrar, Cooperative societies.

Thus, the vital question for determination in his case is whether the petitioner can be prosecuted under S. 409, Indian Penal Code, despite the fact that the offence also falls under section 117(5) of the Act. According to the learned petitioner''s counsel the provisions of the Indian Penal Code would not be attracted because the offence is covered by a punishing section of a local law. In support of this contention the help of section. 5 of the Indian Penal Code is sought to be drawn. This section is as follows :

"Nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law."

In the view of the learned petitioner''s counsel this section excludes the applicability of Indian Penal Code where an offence falls both under the Code and the local or special law. In my opinion this view cannot justifiably be taken from the terminology of Section 5. All that this section says is that the provisions of Indian Penal Code will not affect the provisions of any special or local law. It does not mean that the prosecution of an offence under the Indian Penal Code is inadmissible'' simply because the offence also falls under a special or local law. Although an offence is expressly made cognizable by a special or local law yet it will be punishable under the Indian Penal Code if the facts come within the definition of the Code of course no such prosecution would be admissible if it appears upon the whole frame of the special Act that it was intended to be a compete Code in itself and to be enforced only by the penalties created by it. But in the absence of anything in a special Act to exclude the operation of the Indian Penal Code an intention on the part of the Legislature to exclude it cannot be inferred. In the Act there is no provision meant to exclude the operation of the Indian Penal Code.

The learned petitioner''s counsel relied upon Raj Kumar A.S.I. v. The State of Punjab 1976 C.L.R. (Pb. & Hary.) 39, a FullBench judgment of this Court, in which it was held that the object of the Police Act, 1861 is to reorganize the police force so that it may effectively prevent and detect crimes. It has to collect intelligence and information for this purpose. The District Magistrate has been invested with the power of general control over the police force employed in his district. As such even if some of the Provisions of this special Act come into conflict with those of the code of criminal Procedure, they will hold the field because of the maxim `Generalis specialities no derogant. It was observed that the legislature having given its attention to a special subject and having provided for it, is reasonably presumed not to intend to alter special provision by a general enactment unless it manifests that in explicit terms. This judgment obviouslyhas no relevancy to the present case.

Having come to the conclusion that the petitioner can be prosecuted under section 409, Indian Penal Code, even though the offence also fell under section 117(5) of the Act, the instant petition deserves to be dismissed because by the applicability of section 409, Indian Penal Code, neither the cognizance of the case can be said to have been taken beyond the period of limitation no the previous sanction of the Registrar was necessary for initiating the prosecution. For aforesaid reasons this petition is dismissed.