Skip to content


M.A. Kochudevassy and ors. Vs. the State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal M.P. Nos. 862, 910, 1076, 1093 and 1096 of 1976
Judge
Reported inAIR1977Ker113
ActsCriminal Law (Amendment) Act, 1952 - Sections 2(1); Prevention of Corruption Act, 1947 - Sections 2, 5(1), 5(2) and 6; Kerala Prevention of Corruption (Amendment) Act, 1962 - Sections 3; Indian Penal Code (IPC) - Sections 21 and 161 to 165A; Code of Criminal Procedure (CrPC)
AppellantM.A. Kochudevassy and ors.
RespondentThe State of Kerala
Appellant Advocate P.V. Ayyappan,; N.K. Sridharan,; M.A.T. Pai,;
Respondent AdvocateAdv. General
DispositionPetitions dismissed
Cases ReferredState of Andhra Pradesh v. Kandimalla Subbaiah
Excerpt:
.....by section 3 of the state amendment than an assignment of the extended meaning of the term 'public servant' effected by section 2 of the state amendment for the purposes of act ii of 1947 as well. , that the extended concept of 'public servant',introduced by section 2 of the state amendment act should apply for purposes of the prevention of corruption act as well, without any limitation that it should operate only within the sphere of chap. 12. clearly, therefore, accused no. the view of the high court is thus erroneous and its directionswith respect to those offences are set aside'.therefore in this case, the foundation of jurisdiction of the special judge being satisfied with reference to the offence under section 5 (2) of the prevention of corruption act, he could, subject to..........of the wadakkancherry service co-operative society.6. section 21 of the i.p.c. defines the term 'public servant'. as it now stands there are twelve clauses with three explanations to the last one. clause (1) has been deleted; clauses (11) and (12) are later additions; and the explanations appear in their present form -- all as a result of amendments effected from time to time. none of the clauses take in directors executive committee members or servants or employees etc. of a cooperative society within the definition.7. there are a series of special acts which contain provisions that certain classes of persons shall be deemed to be public servants within the meaning of section 21 of the i.p.c. a list of such acts would be found collected and set out, for instance, in sir hari singh.....
Judgment:

Gopalan Nambiyar, Ag. C.J.

1. These petitions were heard together by a Full Bench as they raised the question of the correctness of a Division Bench ruling of this Court in Sahadevan v. State of Kerala (1976 KLT 134). The questions raised are: whether the Special Judge Trichur, appointed under the Criminal Law Amendment Act 1952 had jurisdiction to try the cases in question in respect of the offences charged; and whether the reasoning and the conclusion of the Division Bench ruling in 1976 KLT 134, which had considered a similar question, can be said to be correct.

2. Crl. M. P. No. 862 of 1976 is by the 10th accused in C. C. No. 76 of 1976 on the file of the Special Judge, Trichur. The offences charged are under Sections 120-B, 408, 465, 467, 477 and 477-A of the I.P.C. and Sections 5(1)(c) and 5(2) of the Prevention of Corruption Act. The 10th accused is a Member of the Executive Committee of the Co-operative Society No. Rule 192, Chalakudy.

3. In Crl. M. P. No. 1096 of 1976 the two petitioners are charged in C. C. No. 32 of 1975, with offences under Sections 408 and 477-A of the I.P.C. and Sections 5(1)(c) and 5(2) of the Prevention of Corruption Act, for misappropriation of funds of the Arimbur Service Co-operative Society. The 1st petitioner is the Secretary and the 2nd, petitioner is the Head-clerk of the Society.

4. In Crl. M. P. No. 1093 of 1976 the sole accused is charged under Sections 408,465, 471 and 477-A of the I.P.C. and Sections 5(1)(c) and 5(2) of the Prevention of Corruption Act, 1947. The accused was the Secretary of the Arimbur Service Cooperative Society.

5. Counsel for the petitioners in the above three petitions alone addressed arguments before us. No arguments were addressed in Crl. M. P. Nos. 910 and 1076 of 1976. In Crl. M. P. No. 910 of 1976, the charge is under Sections 408 and 477-A of the I.P.C. and Sections 5(1)(c) and 5(2) of the Prevention of Corruption Act. The accused was the Secretary of the Ernakulam Milk Supply Union. In Crl. M. P. No. 1076 of 1976 the charge is under Section 408 of the I.P.C. and Sections 5(1)(c) and 5(2) of the Prevention of Corruption Act. The accused was the Secretary of the Wadakkancherry Service Co-operative Society.

6. Section 21 of the I.P.C. defines the term 'public servant'. As it now stands there are twelve clauses with three explanations to the last one. Clause (1) has been deleted; Clauses (11) and (12) are later additions; and the explanations appear in their present form -- all as a result of amendments effected from time to time. None of the clauses take in Directors Executive Committee Members or Servants or employees etc. of a Cooperative Society within the definition.

7. There are a series of special acts which contain provisions that certain classes of persons shall be deemed to be public servants within the meaning of Section 21 of the I.P.C. A list of such acts would be found collected and set out, for instance, in Sir Hari Singh Gour's Commentary on the Indian Penal Code (9th Edn. (1972) Vol. I Footnote 3 at pp. 179, 184 and 194). To mention only a few, such provisions are found in the Railways Act, the Presidency Small Cause Courts Act, the Factories Act, the Merchant Shipping Act, etc.

8. Chapter IX of the I.P.C. is entitled: 'Offences by or relating to public servants', and comprises of Sections 161 - 171. In regard to the offence under Section 161 of the I.P.C. (Bribery) the question arose whether prior sanction under Section 197 of the Cr.P.C. and under Section 270 of the Government of India Act 1935, were necessary before the commencement of a criminal prosecution. It was held in Gill's case (AIR 1948 P.C. 128) : (49 Cri LJ 503) and in Phanindra Chandra v. The King (AIR 1949 PC 117): (50 Cri LJ 395) that sanction under neither of the Sections was necessary, as bribery was not something which a public servant was required orexpected to commit in the discharge of his duties as a public servant, and the sections required sanction only for such acts.

9. Meanwhile, even before the above rulings of the Privy Council, the Prevention of Corruption Act II of 1947 (referred to also as the Anti-Corruption Act) had been passed by the Indian Legislature, 'for the more effective prevention of bribery and corruption' (vide the preamble). Section 5 (1) specifies when a public servant can be said to commit the offence of 'criminal misconduct', and Section 5 (1) (c), (with which we are concerned in these cases) specifies one of the modes, as dishonest or fraudulent misappropriation or conversion of property entrusted or allowing any person to do so. Section 5 (2) provides the punishment for the offence under Section 5 (1). Section 6 provides that no Court shall take cognizance of an offence under Section 161 or 164 or 165 of the Penal Code or under Sub-section (2) or Sub-section (3-A) of Section 5 of Act 2 of 1947 alleged to have been committed by a public servant except with the previous sanction (a) of the Central Government in case of persons employed in connection with the affairs of the Union; (b) of the State Government in case of persons employed in connection with the affairs of a State; and (c) of the competent authority in case of other persons. The Act has been amended from time to time adding substituting and amending certain sections or clauses or sub-clauses therein. Some of these may be noticed.

10. By the Criminal Law Amendment Act XLVI of 1952, various amendments were effected to the Prevention of Corruption Act, the I.P.C. and the Code of Criminal Procedure. By Section 3 of this Act, a new Section 165A was added to the Penal Code punishing as a separate and independent offence abetment of the offence under Section 161 or 165. Section 6 conferred the power to appoint special judges to try the offences under Section 161, 165 or 165A of the I. P. C. or Section 5 (2) of the Anti-Corruption Act, or conspiracy to commit those offences. By the Criminal Law Amendment Act 50 of 1955, Sections 162, 163 and 164 of the I.P.C. were added to the range of offences for the trial of which special judges could be appointed; so that, after these amendments the foundation of jurisdiction for the appointment of a special judge is the commission of offences under Sections 161 and 165A of the I.P.C. or under Section 5 (2) of the Anti-Corruption Act. Section 7 (1) of the Criminal Law Amendment Act 1952 makes the jurisdiction of the special judge to try the aforementioned offences, an exclusive one; and Section 7 (3) provides that while trying any of those offences the special judge may also try any of the other offences with which the accused may under the Cr.P.C. be charged at the same trial.

11. The Criminal Law Amendment Act 2 of 1958 and Act 30 of 1964 are two further Statutes which amended the provisions of the Penal Code and the Anti-Corruption Act. It is unnecessary to notice their provisions.

12. Meanwhile, by an amendment effected by the Kerala State Legislature, by Act 27 of 1962, certain important amendments were effected to the I.P.C. and to the Prevention of Corruption Act 1947. As these amendments are important for the purpose of these cases, Sections 2 and 3 thereof are quoted in full:

'2. Amendment of Section 161, Central Act XLV of 1860.

In Section 161 of the I.P.C. (Central Act XLV of 1860), after the explanation relating to 'A motive or reward for doing', the following explanation shall be inserted, namely:

'Public servant'.

For purposes of this section and Sections 162, 163, 164, 165 and 165A, the words 'public servant' shall denote, besides those who are public servants under Section 21 or who are deemed to be 'public servants' within the meaning of that section under any law for the time being in force, persons falling under any of the descriptions hereinafter following, namely:

(i) Even officer in the service or pay of the Travancore Devaswom Board or the Cochin Devaswom Board;

(ii) Every officer in the service or pay and every member of the Wakfs Board constituted under the Wakfs Act, 1954 (Central Act, XXIX of 1954);

(iii) The President and every member of a Village Court or Village Panchayat Court;

(iv) Every member of the Board of Directors or of the executive or managing Committee and every officer or servant of a co-operative society registered or deemed to be registered under the law relating to co-operative societies for the time being En force;

(v) Every member of the governing body and every officer or servant in the service or pay of a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 or the Societies Registration Act 1860, and receiving aid or grant from the Government;

(vi) Every teacher or other officer or servant of the University of Kerala;

(vii) Every examiner of a University Examination or a Government Examination;

(viii) Every Manager, or teacher or servant of an educational institution which receives or has received aid or grant from the Government or the University of Kerala'.

3. Amendment of Central Act II of 1947.

In the Prevention of Corruption Act, 1947 (Central Act II of 1947)-

(i) for Section 2, the following section shall be substituted, namely,--

'2. Interpretation.

For the purposes of this Act, 'public servant' shall have the meaning assigned to it under the Explanation to Section 161 of the I.P.C. as amended by the Kerala Criminal Law Amendment Act, 1962':

(ii) in Section 5A, for the words, figures and letter, 'under Section 161, Section 165 or Section 165A,' the words, figures, and letter 'under Sections 161, 162, 163, 164, 165 or 165A' shall be substituted.

(iii) in Sub-section (1) of Section 6, after Clause (b), the following clause shall be inserted, namely:

'(bb) in the case of a person falling under any of the descriptions mentioned in items (i) to (viii) in the Explanation relating to 'Public servant' in Section 161 of the I.P.C. as amended by the Kerala Criminal Law Amendment Act, 1962, save by or with the sanction of the State Government'.

It will be noticed that the definition of the term 'public servant' in Section 21 of the I.P.C. has been widened for the purposes of Sections 161 and 165A of the Penal Code, by Clauses (i) to (viii) introduced by Section 2 of the Kerala Amendment Act. Counsel for the petitioners was anxious to record that he should not be understood as having advanced any arguments in regard to the validity of the amendment. Section 3 of the Kerala Amendment Act amended the Prevention of Corruption Act by substituting a new Section 2 in the said Act. The enlarged meaning of the term 'public servant' is to apply for the purpose of the Prevention of Corruption Act. Although this appears comprehensive and rune through the entire gamut of the Prevention of Corruption Act, Counsel for the petitioners urged that the comprehensiveness is considerably curtailed, if not altogether destroyed, by the operation of the amended definition of 'public servant' introduced by Section 2 of the State Amendment,

By that section, according to Counsel, the definition of 'public servant' is only for the limited purpose of Sections 161 162, 163, 164, 165 and 165A of the I.P.C.; and if this definition is read into Section 3 of the State amendment, the apparent comprehensiveness of the latter section is cut down. If that be so, Directors, Executive Committee Members etc. of a Co-operative Society would not be 'public servants' except for the limited purpose of Chap. IX offences of the I.P.C. As no such offence has been charged in any of these cases, the special judge will have no jurisdiction -- So ran the argument of Counsel.

13. We think there is a fallacy in the above argument. Section 3 of the State Amendment Act of 1962 only provides that the term 'public servant' 'shall have the meaning assigned to if under the Explanation to Section 161 of the I.P.C as amended by the State Amendment Act of 1962. It does not bodily transplant or incorporate into Section 2 of the 1947 Act the amendment effected by Section 2 of the State Amendment Act to Section 161 of the Penal Code. Indeed, to understand Section 3 of the State Amendment Act as having introduced such a bodily transplantation or incorporation, would be to make a mockery of the amendment and to defeat its very purpose.

It is purposeless to confine the amendments for purposes of the Anti-Corruption Act, to the provisions of Chap. IX of the I.P.C. only, and to leave Act II of 1947 untouched : A literal reading of Sections 2 and 3 of the State Amendment might support such a construction. But understanding the State Amendment in the light of the object sought to be achieved, it seems reasonable to conclude that nothing more was contemplated by Section 3 of the State Amendment than an assignment of the extended meaning of the term 'public servant' effected by Section 2 of the State Amendment for the purposes of Act II of 1947 as well. So understood, the concept of the term 'public servant' would stand enlarged for the purpose of Act II of 1947 by the addition of Clauses (i) to (viii) in Section 2 of the State Amendment, to the clauses in Section 21 of the I.P.C.

14. It remains now to notice the Division Bench ruling of this Court in Sahadevan v. State of Kerala (1976 Ker LT 134): (1977 Cri LJ 637). The prosecution there was for offences under Section 5 (1) (c) and (d) read with Section 5 (3) of the Prevention of Corruption Act and Sections 408 and 409 of the I.P.C. The Division Bench referred to an earlier judgment of a learned Judge of this Court in Arunachalam v. State of Kerala (1974 Ker LT 7) holding that the Secretary of the Co-operative Society cannot be said to be a public servant as he did not fall in any of the categories in Clauses (1) to (9) and (11) and (12) of the I.P.C., nor even Clause (10) thereof. The decision did not notice the amendment effected by the State Amendment Act 27 of 1962. We agree with the Division Bench ruling in Sahadevan's case (1976 Ker LT 134): (1977 Cri LJ 637) that the learned Judge's decision in 1974 Ker LT 7 cannot be regarded as authority for the view that employees of a Co-operative Society are not 'public servants' for the purpose of Chap. IX of the I.P.C.

The learned Judges of the Division Bench held that under the amended provisions of Section 2 of the Prevention of Corruption Act, the expression 'public servant' is to be assigned the same meaning as has been given to it in the Explanation to Section 161 of the Penal Code as amended by Section 2 of the State Amendment Act 1962. Therefore the officers and servants of Co-operative Societies were deemed public servants and the Special Judge had jurisdiction. Apparently, the Division Bench proceeded on the view that we have expressed, viz., that the extended concept of 'public servant', introduced by Section 2 of the State Amendment Act should apply for purposes of the Prevention of Corruption Act as well, without any limitation that it should operate only within the sphere of Chap. IX offences under the I.P.C. We think the conclusion of the Division Bench was right

15. Our attention was called to Zahoor Ahmed v. State of Rajasthan (1975 Cri LJ 978) (Raj). The police report in that case was to the effect that no case has been made out under Section 5 (2) of Act 2 of 1947 and Section 161 of the I.P.C. Cognizance was taken only of the offence under Section 409 of the I.P.C. by the Special Judge constituted to try the offences. It was rightly held that the Special Judge had no jurisdiction. Reference was made to Ramautar Mahton v. State (AIR 1961 Pat 203): (1961-1 Cri LJ 694) where the proceedings wereheld to be without jurisdiction for want of sanction under Section 6 of Act 2 of 1947; and to Sahabhan Umerkhan v. State (1963) 2 Cri. L.J. 556 (Guj) where the proceedings were held to be without jurisdiction on similar reasoning. There can be no quarrel with these decisions. But the point for decision in these cases is somewhat different.

The learned Advocate General pointed out that the definition of the term 'public servant' given by Section 2 of the State Amendment of 1962 is an incorporated definition with the result that the subsequent amendments effected to the incorporated Act would be available to the incorporating Statute. The conditions and circumstances under which the principle operates have been explained in the recent decision of the Supreme Court in State of Madhya Pradesh v. M. V. Narasimhan (AIR 1975 SC 1835) : (1975 Cri LJ 1639) to which our attention was drawn. But the question is whether the amplitude of the incorporating Act is cut down by the terms of the incorporated Act.

16. The learned Advocate General drew our attention to State of Andhra Pradesh v. Kandimalla Subbaiah (AIR 1961 SC 1241 : (1961-2 Cri LJ 302). There the question considered was regarding the jurisdiction of the Special Judge to try offences other than those mentioned in Section 6 of the Criminal Law Amendment Act (46 of 1952). That section specifies only offences under Sections 161 and 165A of the Penal Code and Sections 5 (1) and 5 (2) of the Prevention of Corruption Act 1947. In the case before the Supreme Court, the charges were under Sections 109 of the I.P.C. read with Sections 420, 466 and 467 of the I.P.C. and Sections 5 (1) (c) and (d) read with Section 5 (2) of the Prevention of Corruption Act and also under Section 120-B of the I.P.C. (against accused 2 to 9). It was held:

'11. Sub-section (3) of Section 7 provides that when trying any case, a special judge may also try any offences other than an offence specified in Section 6 with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial.

12. Clearly, therefore, accused No. 1 could be tried by the Special Judge for offences under Section 120-B read with Ss 466, 467 and 420, I. P. C. Similarly, the other accused who are said to have abetted those offences could also be tried by the Special Judge. The view of the High Court is thus erroneous and its directionswith respect to those offences are set aside'.

Therefore in this case, the foundation of jurisdiction of the Special Judge being satisfied with reference to the offence under Section 5 (2) of the Prevention of Corruption Act, he could, subject to the provisions of the Cri. P. C., try any other offence with which the accused were charged (besides the Chapter IX offences under the Penal Code and under Sections 5 (1) and 5 (2) of the Anti-Corruption Act.) 17. In the result, we hold that the Special Judge. Trichur has jurisdiction to try the cases involved in these petitions and the objection to his jurisdiction is groundless. These petitions are accordingly dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //