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1978 DIGILAW 255 (KER)

SURENDRAN v. STATE OF KERALA

1978-09-28

P.SUBRAMONIAN POTI

body1978
Judgment :- 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. 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. S.7 (1) of the Criminal Law Amendment Act 1952 invests exclusive jurisdiction with Special Judges to try offences mentioned in S.6 (1) of that Act. Those are the offences contemplated in the Indian Penal Code. The offences punishable under sub-section (2) of S.5 of the Prevention of Corruption Act fall within the scope of S.6 (1) of the Criminal Law Amendment Act 1952. Therefore in a prosecution under the Prevention of Corruption Act only the Special Judge has jurisdiction to try. By sub-section (3) of S.7 of the Criminal Law Amendment Act 1952 such Special Judge is empowered when trying any case triable by him under S.6(1) of the Act to try any other offences with which the accused may, under the Code of Criminal Procedure, be charged at the same trial. S.220 of the Code of Criminal Procedure, 1973 enables a person to be charged and tried at one trial for every offence committed in one series of acts so connected together as to form the same transaction. If a person commits criminal breach of trust it may fall under S.408 of the Indian Penal Code and if it is a public servant who commits such act it may fall also under S.5 (1) of Prevention of Corruption of Act. If he is to be tried for the offence under the Indian Penal Code the Special Judge before whom the offence under S.5(1) (c) of the Prevention of Corruption Act is being tried has jurisdiction to try the offence under the Indian Penal Code under S.7 (3) of the Criminal Law Amendment Act, 1952. The question is whether a person could be tried for one only of the offences. 4. The question is whether a person could be tried for one only of the offences. 4. It may be that a person who has committed an act which is an offence under S.5 (1)(c) of the Prevention of Corruption Act may render himself by the same Act to be liable to be tried for an offence under S.408 of the Indian Penal Code, but he is sought to be prosecuted for an offence under the Prevention of Corruption Act alone. Counsel Sri. P. V. Ayyappan fairly concedes that in such a case the prosecution for offence under S.5 (1) (c) alone would not be bad. Of course it is open to the authorities to prosecute an offender for one of two offences committed by him. The same would be the position where he is prosecuted for the offence under S.408 of the Indian Penal Code leaving out the offence under S.5 (1) (c) of the Prevention of Corruption Act. In other words if a person could be prosecuted for an offence under the Indian Penal Code and is being prosecuted for the same such prosecution would not be bad merely because he has also committed an offence punishable under the Prevention of Corruption Act but is not prosecuted for that offence. In this case the prosecution is for the offences under the Indian Penal Code. The prosecutor has not sought to prosecute the petitioner for offences under the Prevention of Corruption Act. I see no reason why the prosecution must fail in the circumstances. 5. 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. 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. 6. I do not agree with the construction by learned counsel Sri. P. V. Ayyappan of S.6(1)(bb) of Kerala Criminal Law Amendment Act, 1962. 6. I do not agree with the construction by learned counsel Sri. P. V. Ayyappan of S.6(1)(bb) of Kerala Criminal Law Amendment Act, 1962. According to counsel S.6(1)(bb) introduced by Kerala Criminal Law Amendment Act, 1962 obliges sanction to be obtained for a prosecution in the case of offences tried against a public servant as the term is re-defined by reason of the provisions of the Amendment Act 1962. It is only by the said Amendment Act that the term public servant takes in a servant of a Co-operative Society also and to such a person, according to counsel, S.6(1)(bb) applies. That, it is said, obliges sanction to be obtained from the State Government for prosecuting such a person. I am afraid this is not the scope of S.6(1)(bb). That has to be obtained only in regard to trial of offences mentioned in the opening part of S.6(1) of the Criminal Law Amendment Act namely, S.161, or S.164 or S.165 of the Indian Penal Code or sub-section (2) or sub-section 3 A of S.5 of the Prevention of Corruption Act. Reference to 'State Government' is made because the other clause of the sub-section would show that the sanction may be of the State Government or of the competent authority. To indicate that the sanction is to be by the State Government in the case of persons covered by S.6(1)(b)(b) the section is added. Therefore if the offence had been one under the provisions of the Indian Penal Code and such offence was tried by the Special judge competent to try because he is also to try offence exclusively triable by him the prosecution for offence under the Indian Penal Could would not have required sanction because of S.6(1)(bb). Therefore the plea as to prejudice is also out of place. 7. Though I have gone elaborately into the matters urged before me, I feel there is no difficulty in deciding this question raised in this petition. The accused if proved guilty is punishable for the offence under the Indian Penal Code despite the fact that he may also be punishable under the provisions of the Prevention of Corruption Act because in addition to the facts necessary to prove the offences under the Indian Penal Code there is also the fact that he is a public servant and therefore S.5(1)(c) of the Prevention of Corruption Act is attracted. The prosecution may choose to prosecute him only for the offence under the Indian Penal Code. There can be no prejudice by reason of trial by a Magistrate. Hence there is no invalidity in the prosecution against the petitioner. For the reasons pointed out the petition must fail. It is dismissed. Dismissed.