K J SAHADEVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners in these Criminal Miscellaneous Petitions are employees of certain cooperative societies. They are figuring as accused in certain cases now pending trial before the Special Judge, Trivandrum wherein the petitioners stand charged for offences under S.5(1)(c) and (d) read with S.5(2) of the Prevention of Corruption Act and S.408 I.P.C. The petitioner in Criminal M. P. 1001 of 1975 is also facing a charge under S.409 I.P.C. before the Special Judge. When those cases were taken up for trial by the Special Judge a preliminary objection was raised on behalf of these accused that they are not public servants liable to be proceeded against either' under S.5 of the Prevention of Corruption Act or under S.409 IPC and that hence the Court of the Special Judge has no jurisdiction to try the cases. By separate but similar orders the learned Special Judge overruled the said contention and held that he has jurisdiction to proceed with the trial of the cases. These Miscellaneous Petitions have been preferred against the said decision rendered by the Special Judge on the preliminary point raised before him.

(2.) Counsel appearing on behalf of the petitioners placed strong reliance on the decision reported in Arunanchalam v. State of Kerala ( 1974 KLT 7 ) wherein a learned single Judge of this Court has observed that the Secretary of a Cooperative Society cannot be said to be a public servant inasmuch as he does not come within any of the categories of officers mentioned in clauses (1) to (9), (11) and (12) of S.21 IPC. and that the evidence in that case did not also establish that the Secretary of the particular Cooperative Society came within the description contained in clause (10) of S.21 IPC. In our opinion this decision is not of any assistance to the petitioners in these cases nor can it be treated as an authority laying down that a Secretary or any other employee of a Cooperative Society cannot be regarded as a "public servant "for the purpose of any of the provisions of the Indian Penal Code. The only provision of the Indian Penal Code which fell to be considered by the learned Judge in that case was S.409 and as we understand the decision what was held therein was only that on the evidence adduced in that case it would not be said that the duties of the Secretary of the particular cooperative society concerned in the case were such as to fall within the description contained in clause (10) of S.21.

(3.) By S.2 and 3 of the Kerala Criminal Law Amendment Act, 1962 -- Act 27 of 1962 - S.161 of the Indian Penal Code was amended by inserting the following explanation: