Parivallal and Another vs Sub Inspector of Police, Sathanur Dam

A. Raman, J.—This revision is directed against the order passed by the Additional Sessions Judge, Vellore in C.A.No.43 of 1993 on 15.10.1993 whereby he confirmed the conviction and sentence passed upon the Petitioner by the Judicial Magistrate, Chengam in C.C.No.34 of 1992 on 9.2.1993.

The prosecution case is that on 9.12.1993 at about 5.00 p.m. when the complainant was working as salesman in the village co-operative society of Pennathur the first accused kicked the complainant on his groin while the second accused hit him on his neck and caused injuries to him and therefore the Petitioners are guilty u/s 332 Indian Penal Code.

On the side of the prosecution six witnesses were examined. Ex.P-1 to P-4 ahd D-l and D-2 were marked. The Judicial Magistrate found the accused guilty u/s 332 and imposed a fine of Rs. 1000/- in addition to the imprisonment for three months. As this verdict was confirmed by the appellate Court, this revision has been preferred.

The point for consideration is: Whether the conviction and sentence passed upon the Petitioners is liable to be set aside?

The point: The charge against the Petitioners is made u/s 332 Indian Penal Code. Section 332 makes the person who voluntarily causes hurt to any public servant in the discharge of his duty as public servant with a view of prevent or deter that person from discharging his duty, guilty and liable for the punishment of either description for a term which may extend to three years, or with fine, or with both. The question in this case is whether the complainant can be considered as a public servant.

It has been held by the Kerala High Court in the decision reported in 1974 Crl MLJ .137 A. Arunachalam v. State of Kerala) that a Secretary of Co-operative Society cannot be treated as a public servant coming u/s 21 of the Indian Penal Code The Andhra Pradesh High Court has also held in the decision reported in 1971 (Crl.) MLJ 678 (Somsetti Lakshmi Narasimayya v. The St. of Andhra Pradesh) that a Secretary of a Cooperative Society is not a public servant. The Supreme Court has set down in the decision reported in G.A. Monterio Vs. The State of Ajmer, the true test to determine as to who are the persons to be treated as Public Servants. There their Lordships have held that if the person is in the service of pay of the Government and if he is entrusted with the performance of any public duty, then it must be deemed that be is a Public Servant. Here in this case the complainant does not satisfy the requirement of the Public Servant. There is no evidence to show that he was discharging duty as a public servant. He is only a salesman of the co-operative society. It is not stated that he is receiving pay from the Government. It is also not shown that he is entrusted with any performance of any public duty. Measuring out rationed articles to the consumers by a salesman of the Co-operative Society can never be termed as a performance of public duty. Thus in this case the complainant has no public duty to perform. He has been only discharging the function assigned to him as salesman by the society and if at all in pursuance of the duties assigned to him under the by-laws of rules of the society. Definitely the society does not purport to exercise any authority over any person other than its members. It is also not a case that the society is performing any public duty or discharging any public function. In the decision reported in AIR 1935 Bom 36 , High Court held that the president of a co-operative society is not a public servant. In AIR 1958 Mys. 82 the Mysore High Court after referring to the Madras and Bombay High Courts (1953 MWN. 1337 and AIR 1935 Bom. 36) held that a president of a co-operative society is not a public servant. The fact that the society is registered under the Tamil Nadu Co-operative Societies Act does not improve the position as far as the complainant is concerned. In Shanti Ranjan Bhattacharya Vs. The State, the Calcutta High Court has held that there is no doubt that a Co-operative Society though registered under the Co-operative Societies Act does not become because of Section 19 of the Act, a corporation established by or under the Co-operative Societies Act and in that view of the matter the Secretary of a Co-operative Society is not a public servant under the twelfth clause of Section 21 of the Indian Penal Code. Therefore it follows that the complainant is not a public servant coming within Section 21 of the Indian Penal Code. When it is so it follows that the very charge u/s 332 against the Petitioner is not maintainable and therefore on this ground alone the Petitioners have to be acquitted setting aside the conviction and sentence passed by the courts below.

Even otherwise, the courts below have thoroughly failed to note the material evidence on record. There are certain circumstances which have been completely ignored by the Courts below. The occurrence is said to have taken place on 9.12.1991 at about 5.30 p.m., whereas the complaint has been given only on the next day at about 10.00 a.m. P.W.1 has stated that he gave a complaint in writing to the Secretary of the society at 6.00 on the morning when if it is so, it ought to have been forwarded by the Secretary to the Police. It has not been done. The secretary of the society is not examined. P.W.1 also admits that the first accused Parivallal was a Director of the society and on complaint made to him the first accused transferred him to another place. Thus there is motive for giving a false complaint. It is admitted there is a counter complaint by the accused. According to P.W.1 the first accused kicked him while the second accused caught hold of his shirt and hit him on the left side of his neck. But according to the witness there was scuffle between the first accused and the Petitioner and at that time the second accused came there and hit the complainant with his hand on his neck and the complainant fell down. P.W.2 does not speak to any kicking by the first accused. P.W.2 in the course of Chief examination admits that there was a wordy exchange between the first accused and the complainant and at that time the second accused with his right hand hit the complainant on his neck and thereafter the first accused kicked him below the belly. P.W.4 admits that when he was the village scavenger he was fined by the Petitioners in a sum of Rs. 500/- and as he could not return the loan he was transferred. Thus these admissions of P. Ws. 1 to 4 very much erode the credibility of the prosecution case. There is absolutely no reason given as to why the complaint has not been given immediately. The Secretary is not examined. The witnesses clearly say that there was a scuffle and wordy quarrel between the complainant and the first accused. Therefore, one cannot say who is the aggressor. The witnesses examined all had grievances against the first Petitioner. The witness Annamalai had grievance against the Petitioner second witness belongs to the same community. But these important circumstances have been thoroughly omitted to be considered by the lower court. It is to be pointed out that the complaint was not registered immediately. But it is only on 31.12.1991 the case has been registered. The explanation given for the same is thoroughly artificial. The Doctor''s evidence is also not helpful. It is also clear that the accused have given a complaint and it has been registered by the police. The accused have also sustained injuries. There is a counter complaint given by the accused and registered by the prosecution. There is no explanation for the injuries sustained by the accused 1 and 2 especially when the evidence of P. Ws. 1 to 3 clearly show that there was a scuffle between the accused and the complainant. All these important circumstances have not been taken into account by the lower Court. Thus there is thorough non application of mind which makes it all the more necessary for this Court to exercise the discretion. Thus the above circumstances would go to show that there are compelling reasons for this Court to interfere with the finding of the court below though they are concurrent.

In the result this revision is allowed. The conviction and sentence passed by the court below are hereby set aside. The accused Petitioners shall stand acquitted of the charges. The fine amount paid by the Petitioners shall be refunded to them.