K. BALAJI IYENGAR Vs. STATE OF KERALA, MR. T.C. MATHEW, MR. T.R. BALAKRISHNAN AND THE DEPUTY SUPERINTENDENT OF POLICE

JUDGEMENT

(1.) WHETHER office bearers of Kerala Cricket Association are public servants as defined under section 2(c) of Prevention of Corruption Act, 1988 is the question to be settled in the petition. Petitioner filed Annexure A complaint before Special Judge (Vigilance), Thrissur against respondents 2 and 3, who are respectively the Secretary and President of Kerala Cricket Association and 91 others, including the players and office bearers of District Cricket Association alleging that they committed various corruption and misappropriation as alleged in the complaint and therefore a detailed and in -depth investigation is necessary. Petitioner sought an order under section 156(3) of Code of Criminal Procedure to register and investigate a case for the offence under sections 13(1)(c) and (d) read with section 13(2) of Prevention of Corruption Act, 1988 and Sections 201, 409, 420, 468, 471, 477 and S. 120B of Indian Penal Code. The Special Judge (Vigilance) forwarded the complaint to the Director of Vigilance and Anti Corruption Bureau under section 156(3) of Code of Criminal Procedure, to register a case and investigate. Based on the order, Crime 1/2009 of Vigilance and Anti Corruption Bureau, Ernakulam was registered under Annexure B F.I.R. Respondents 2 and 3 challenged the said order passed by the Special Judge before this Court in W.P. (C)15682/2009 contending that Special Judge mechanically sent the complaint for investigation without considering the question whether respondents 2 and 3 would come within the definition of public servants as defined under the Prevention of Corruption Act and without conducting an inquiry as provided in Sirajudeen v. State of Madras ( : AIR 1971 SC 520) the F.I.R. could not have been registered. This Court by Annexure C judgment dated 30.3.2009 found that the learned Special Judge has not applied his mind to the crucial facts raised by respondents 2 and 3 and directed registration of the crime. Therefore the order passed by the Special Judge (Vigilance) was set aside and remitted the CMP to the Special Judge to reconsider the question after hearing all the concerned on the points raised and to proceed in accordance with law. Petitioner challenged Annexure C order before the Honourable Supreme Court by filing Annexure R2(q) Special Leave Petition (Civil). By Annexure R2(r) order dated 17.7.2009, the Special Leave Petition was dismissed. Learned Special Judge thereafter heard the petitioner as well as respondents 2 and 3 and by Annexure D order found that respondents 2 and 3 are not public servants as defined under section 2(c) of Prevention of Corruption Act and therefore the Special Court is not having jurisdiction to take cognizance of the offences and returned the complaint for presentation before the proper court. Annexure D order is challenged in this petition filed under section 482 of Code of Criminal Procedure.

(2.) PETITIONER would contend that Kerala Cricket Association is a member of BCCI and is the recognised association for promotion of cricket within the State of Kerala under the overall control of BCCI and Kerala Cricket Association received huge amount of funds from BCCI and Kerala Sports Council. It is alleged that for promotion of cricket, Kerala Cricket Association received Rs. 28 crores 41 lakhs from the BCCI and it is a registered society under the Travancore Cochin Literary Scientific and Charitable Societies Act and it received a grant of Rs. 1,88,000/ - from the State Government and the Association is exempted from stamp duties and entertainment taxes by the Government of Kerala during 2007 -2008 and the funds received by the Association from BCCI and Sports Council are exclusively meant for promotion and betterment of cricket and cannot be misappropriated or used for the pecuniary advantage of its office bearers and respondents 2 and 3 abused their official position as public servants and committed the offences under section 13(1)(c) and (d) read with section 13(2) of Prevention of Corruption Act. It is alleged that the Special Judge (Vigilance) did not consider the question in the proper perspective and instead based on the fact that Cricket Association is not a State as provided under Article 12 of the Constitution of India, held that respondents 2 and 3 are not public servants and the Special Judge did not even consider the nature of the duties required to be performed by respondents 2 and 3 in their capacity as office bearers of Kerala Cricket Association and they are public servants under section 21 of Indian Penal Code and the impugned order was passed without considering the relevant facts. It is contended that the accused are performing public duties which are wholly public in nature and confers exclusive powers and privileges on them affecting interest of the public, and is State financed and the rights of the cricketers in the whole State are regulated by the Association and therefore it should have been found that they are public servants. It is also contended that the Special Judge without jurisdiction afforded a hearing to the accused when they are not entitled to be heard at that stage and a direction to investigate the case should have been passed.

(3.) LEARNED senior counsel appearing for the petitioner and learned counsel appearing for respondents 2 and 3 and learned Public Prosecutor were heard.