# Lalta Prasad Dwivedi v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-18
- **Case number:** Application U/S 482 No. 315 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalta-prasad-dwivedi-v-state-of-u-p-anr-51055
- **Pages:** 4

## Headnote

Criminal Law - Prevention of Corruption
Act, 1988 - Sections 2(b), 2(c) & 7 - Indian
Penal Code, 1860 - Sections 408 & 120B -
U.P. Co-operative Societies Act, 1965 -
Sections 2(o), 35 & 124 - Code of Criminal
Procedure, 1973 - Sections 227 & 482 -
Applicant challenged rejection of discharge
application, arguing he was not a public servant
under Section 7 of the Prevention of Corruption
Act. Court held: (1) Applicant, as Assistant
Commissioner and Assistant Registrar, U.P.
Awas Evam Vikas Parishad, and appointed
Chairman of the Committee of Administrators of
a cooperative society under Section 35 of the
U.P. Co-operative Societies Act, was a public
servant under Section 2(c) of the Prevention of
Corruption Act, as he was remunerated by the
government for public duties. (2) Section 2(o)
and Section 124 of the U.P. Co-operative
Societies Act deem an administrator of a
cooperative society a public servant under
Section 21 of the Indian Penal Code, reinforcing
applicant's status. (3) Applicant's claim of not
being a government servant was false, as his
appointment as Chairman stemmed from his
public servant role, supported by documents
annexed with the application. (4) Trial court's
rejection of discharge application was valid, as
sufficient material existed for trial under Section
7
of
the
Prevention
of
Corruption
Act.
Application u/s 482 dismissed. (Paras 10-19)

Application Dismissed.

## Text

1 All. Lalta Prasad Dwivedi Vs. State of U.P. & Anr.
139
of Late Sri Alok Mishra, resident of
Mohalla-Ayodhyapuri,
City-Lakhimpur,
Police Station-Kotwali Sadar, DistrictLakhimpur Kheri within one month after
the said amount is deposited before it. In
case, the said amount is not deposited
before the District Magistrate, Lakhimpur
Kheri within the stipulated time, the
District Magistrate, Lakhimpur Kheri is
directed to recover the said amount from
the petitioner, namely-Ashish Kumar as an
arrear of land revenue and pay the said
amount to the detenue, namely-Vaishali
Mishra for damaging her image in the
society.

12. Let a copy of this order be
transmitted to the Senior Registrar of this
Court, who shall communicate the same to
the District Magistrate, Lakhimpur Kheri
for necessary compliance forthwith.
----------
(2024) 1 ILRA 139
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.01.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 315 of 2024

Lalta Prasad Dwivedi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ram
Naresh
Yadav,
Vineet
Kumar
Chaurasia

Counsel for the Opposite Parties:
G.A.

Criminal Law - Prevention of Corruption
Act, 1988 - Sections 2(b), 2(c) & 7 - Indian
Penal Code, 1860 - Sections 408 & 120B -
U.P. Co-operative Societies Act, 1965 -
Sections 2(o), 35 & 124 - Code of Criminal
Procedure, 1973 - Sections 227 & 482 -
Applicant challenged rejection of discharge
application, arguing he was not a public servant
under Section 7 of the Prevention of Corruption
Act. Court held: (1) Applicant, as Assistant
Commissioner and Assistant Registrar, U.P.
Awas Evam Vikas Parishad, and appointed
Chairman of the Committee of Administrators of
a cooperative society under Section 35 of the
U.P. Co-operative Societies Act, was a public
servant under Section 2(c) of the Prevention of
Corruption Act, as he was remunerated by the
government for public duties. (2) Section 2(o)
and Section 124 of the U.P. Co-operative
Societies Act deem an administrator of a
cooperative society a public servant under
Section 21 of the Indian Penal Code, reinforcing
applicant's status. (3) Applicant's claim of not
being a government servant was false, as his
appointment as Chairman stemmed from his
public servant role, supported by documents
annexed with the application. (4) Trial court's
rejection of discharge application was valid, as
sufficient material existed for trial under Section
7
of
the
Prevention
of
Corruption
Act.
Application u/s 482 dismissed. (Paras 10-19)

Application Dismissed.

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

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.

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
140 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 coaccused persons, L. K. Asthana and
Mahadeo Singh.

4. After investigation, a charge-sheet
dated 20.12.2022 was submitted against coaccused 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.

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 chargesheet 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.

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.

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 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.

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.
1 All. Lalta Prasad Dwivedi Vs. State of U.P. & Anr.
141

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.

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.

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

"(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 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)"

"(c) "public servant" means-

(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;

* * *

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

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.

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 cooperative 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.

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
142 INDIAN LAW REPORTS ALLAHABAD SERIES
affidavit wherein it has been stated that the
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.

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.

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.

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 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.

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.

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.
----------
(2024) 1 ILRA 142
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.01.2024