SURENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE question raised in this petition under S. 482 of the Code of Criminal Procedure is one of some interest. THE petitioner in this case who was the Secretary of a Co-operative Society was charged with the commission of criminal breach of trust, forgery and falsification of accounts liable to be punished under S. 408, 468 and 477 A of the Indian Penal Code. During the pendency of the trial of the prosecution case before the Sub divisional Judicial Magistrate, Kunnamkulam the petitioner has moved this court to quash the proceedings in the case. In brief, the petitioner's contention is that he being a public servant within the meaning of the term as understood for the purpose of the Prevention of Corruption Act he should be prosecuted only before the Special Judge contemplated by S. 6 of the Criminal Law Amendment Act, 1952. Though the prosecution is for offences under the Indian Penal Code, according to the petitioner, if he is a public servant the offence of criminal breach of trust would also fall under S. 5 (1) (c) of the Prevention of corruption Act and if that be the case, the trial can be only before the special Judge and that after obtaining sanction from the Government. No such sanction has been obtained and therefore the case could not be tried before the special Judge. Consequently he would succeed in case it is found that the case ought to be tried by the Special Judge.

(2.) A Full Bench of this court in the decision in kochudevassy v. State of Kerala (1977 KLT. 131 F. B.) has found that by reason of the Kerala Criminal Law Amendment Act, 1962, the officers and servants of co-operative Societies are to be deemed public servants and the Special Judge has jurisdiction to try the offences charged against them. This decision has recently been affirmed by the Supreme Court in the decision in Crl. Appeal No. 178 of 1977. (1978 KLT. 860 ). It is therefore true that if the petitioner was charged with an offence under S. 5 (1) (c) punishable under S. 5 (2) of the Prevention of corruption Act, the trial should have been by a Special Judge and that after obtaining sanction contemplated by S. 6 (1) of the Prevention of Corruption Act. But the trial is not for the offence under S. 5 (1) (c) read with S. 5 (2) of the prevention of Corruption Act but only for offences under the Indian Penal Code.

(3.) TO persuade this court to consider the prosecution before the Sub Divisional Judicial Magistrate, Kunnamkulam as bad, learned counsel Sri. P. V. Ayyappan submits that had the petitioner been prosecuted for the offences under the Indian Penal Code before the Special Judge sanction would have been necessary and the petitioner is at a disadvantage because he is being prosecuted before the Magistrate without such sanction. There again I do not agree with counsel. If the petitioner is sought to be prosecuted only for the offence under the Indian Penal Code and not for any offence exclusively falling within the scope of the powers of the Special Judge he cannot be tried by the Special Judge, for, while the Special Judge can try other offences when he is trying the offence which he is empowered to try under S. 7 (1) of the criminal Law Amendment Act 1952 if such offences are those triable along with the offences falling under S. 7 (1) of the Criminal Law Amendment Act 1952, he cannot, in exercise of power under S. 7 (I) or 7 (3) try, an offence independent of the offences exclusively triable by him under S. 7 (I ). In other words while a person could be tried by the Special Judge at one trial for an offence under the Prevention of Corruption Act as well as an offence under the Indian Penal code he cannot try an offence under the Indian Penal Code alone if there be no trial for the offence under the Prevention of Corruption Act. That is the plain meaning of S. 7 (3) of the Criminal Law Amendment Act, 1952. If the case is one under S. 408 of the Indian Penal Code alone or for other offences under the indian Penal Code and if there be no prosecution for the offences under the prevention of Corruption Act the Special Judge would be incompetent to try. He can try the offence under the Indian Penal Code only when he is trying the offence exclusively triable by him under S. 7 (1) of the Criminal law Amendment act, 1952 and the question of trial for the offence under the Indian Penal Code arises in such circumstances as would justify one trial for both the offences under S. 220 of the Code of Criminal Procedure.