Judgment :- Koshy, J. A learned single Judge, referred mainly two questions of law for consideration by a Division Bench, viz. (1) whether a President or an elected member of the governing body or Board of Directors of a co-operative Society is a “public servant” for proceedings against under the provisions of the Prevention of Corruption Act, 1947 (for short ‘the 1947 Act’); and (2) if so, who should grant sanction in such cases. 2. In the 1947 Act, the definition of Public Servant under Section 21 of the Indian Penal Code is adopted. Section 2 of the 1947 Act reads as follows: “2. Interpretation.—for the purpose of this Act, “public servant” means a public servant as defined in Section 21 of the Indian Penal Code.” Section 21 of the Indian Penal code reads as follows: “21. “Public Servant”.—the words “public servant” denote a person falling under any of the descriptions hereinafter following; namely:-- [***] Second.—Every commissioned Officer in the Military, Naval or Air Forces of India; Third.—Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; Fourth.—Every officer of a Court of Justice including a liquidator, receiver or Commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties; Fifth.—Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant. Sixth.—Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority; Seventh.— Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; Eighth.—Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety of convenience; Ninth.—Every officer whose duty is as such officer, to take receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government. Tenth.—Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district. Eleventh.—Every person who holds any office in virtue of which he is empowered to prepare public, maintain or revise an electoral role or to conduct and election or part of an election; Twelfth.—Every person – (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956). Illustration A Municipal commissioner is a public servant. Explanation 1. – Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not. Illustration A Municipal commissioner is a public servant. Explanation 1. – Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not. Explanation 2.—Wherever the words ‘public servant’ occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. Explanation 3.—The word ‘election’ denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.” 3. It is contention of the appellant that before the introduction of the 1988 Act, only if a person comes under the definition of public servant under Section 21 of the Indian Penal Code, he can be proceeded against under the Prevention of Corruption Act. The President or an elected member of the Governing Body or Board of Directors of a Co-operative Society is not mentioned in Section 21 and, therefore, the entire proceedings are illegal and the charges under provisions of the Prevention of Corruption Act will not lie against the appellant/accused, who is the President of a Co-operative Society. 4. This argument is rebutted by the Government Pleader, based on the provisions of the Kerala Criminal Law Amendment Act, 1962, (Act 27 of 1962), which received the assent of the President on 25-12-1962 and published in the Kerala Gazette, Extraordinary No.172 dated 31-12-1962. It amended Section 161 of the Indian Penal Code and certain provisions of the prevention of Corruption Act, 1947. Sections 2 and 3 of the Kerala Criminal Law Amendment Act, 1962 read as follows: “2. Amendment of Section 161, Central Act, XLV of 1860. It amended Section 161 of the Indian Penal Code and certain provisions of the prevention of Corruption Act, 1947. Sections 2 and 3 of the Kerala Criminal Law Amendment Act, 1962 read as follows: “2. Amendment of Section 161, Central Act, XLV of 1860. In Section 161 of the Indian Penal Code (Central Act XLV if 1860), after the explanation relating to “A motive or reward for doing”, the following explanation shall be inserted, namely:-- “public servant.” For the purposes of this Section and Section 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) Every officer in the service or pay of the Travncore Devaswom Board of the Cochin Devaswom Board; (ii) Every officer in the service or pay and every member of 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 of servant of a co-operative society registered or deemed to be registered or deemed to be registered under the law relating to co-operative society registered or deemed to be registered under the law relating to co-operative societies for time being in force; (v) Every member of 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 to Central Act II of 1947. In the Prevention of Corruption Act, 1947 (Central Act II of 1947)— (1) For Section 2, the following section shall be substituted, namely:-- “2. Interpretation. Amendment to Central Act II of 1947. In the Prevention of Corruption Act, 1947 (Central Act II of 1947)— (1) For Section 2, the following section shall be substituted, namely:-- “2. Interpretation. For the purpose of this Act, ‘public servant’ shall have the meaning assigned to it under the Explanation to section 161 of the Indian Penal Code 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 Section 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 or the Indian Penal Code as amended by the Kerala Criminal Law Amendment Act, 1962, save by or with the sanction of the State Government;” 5. According to us, this question is squarely covered by the decision of the Division Bench and Full Bench of this Court and Apex Court decisions on the point. The Division Bench of this Court in K.J. Sahadevan v. State of Kerala (1976 KLT 134) held that by virtue of the Kerala Criminal Law Amendment Act, 27 of 1962, officers and employees of co-operative societies comes under the definition of : “public Servant”. A full bench of this Court in Kochu Devassy v. State of Kerala, (1977 KLT 131) held that in view of the Kerala Criminal Law Amendment Act, 27 of 1962, officers and employees of co-operative societies would become “public servants” and the special Judge got jurisdiction to try officers and employees of co-operative societies for offences under the Prevention of Corruption Act, 1947. this decision was approved by the Supreme Court in M.K. Kochu Devassy v. State of Kerala (1979 (2) SCC 117), wherein identical question, as the one raised by the appellants in this case, was answered by the apex Court in paragraph 17 of judgment as follows: “17. this decision was approved by the Supreme Court in M.K. Kochu Devassy v. State of Kerala (1979 (2) SCC 117), wherein identical question, as the one raised by the appellants in this case, was answered by the apex Court in paragraph 17 of judgment as follows: “17. Not finding any merit in the contentions raided on behalf of the appellants, we hold that the enlarged definition of the expression ‘public servant’ as contained in the Explanation added to Section 161 of the Code by Section 2 of the Kerala Act governs all the provisions of the 1947 Act, that the appellants are public servants within the meaning of that enlarged definition by reason of the language employed in clause (iv) of the Explanation and that, therefore, the offences under clause (c) of sub-section (1) of Section 5 of the 1947 Act said to have been committed by them are triable exclusively by Special Judges appointed under the 1952 Act.” 6. In view of the above authoritative pronouncements, we are of the opinion that it is no more possible to contend that the President or members of the elected governing body or board of directors of a co-operative society are not public servants for the purpose of the Prevention of Corruption Act, 1947. 7. Then the question to be considered is as to who is to give sanction for prosecution. It is contended that under Section 6 of the Act, sanction is to be given by the general body of the co-operative society, as the General Body is the authority competent to remove him from service. Section 6 reads as follows: “6. 7. Then the question to be considered is as to who is to give sanction for prosecution. It is contended that under Section 6 of the Act, sanction is to be given by the general body of the co-operative society, as the General Body is the authority competent to remove him from service. Section 6 reads as follows: “6. Previous sanction necessary for prosecution.—(1) No Court shall take cognizance of an offence punishable under Section 161 or section 164 or section 165 of the Indian Penal Code or under sub-section (2) or sub-section (3A) of section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction,-- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his officer save by or with the sanction of the State government, of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office.” 8. We are not considering the question whether, in view of the power of the Government to supersede the managing committee of a co-operative society, government is competent to give sanction for prosecution. But, the position is now clear in view of Section 6(1)(bb) of the Act, introduced by Section 3(iii) of the Kerala Criminal Law Amendment Act, 1962. Section 6(1)(bb) of the Act reads as follows: “(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 Indian Penal Code as amended by the Kerala Criminal Law Amendment Act, 1962, save by or with the sanction of the State Government;” 9. In view of the above provision, the authority competent to give sanction for prosecution in respect of ‘public servants’ mentioned in items (i) to (viii) in the Explanation relating to “Public servant” in section 161 of the Indian Penal Code is the Government. In view of the above provision, the authority competent to give sanction for prosecution in respect of ‘public servants’ mentioned in items (i) to (viii) in the Explanation relating to “Public servant” in section 161 of the Indian Penal Code is the Government. How the State Government should issue sanction orders, in the light of Article 166(1) of the Constitution of India and Rules of business was considered by us in our order dated 13-9-2004 in Crl.A.383 of 1994 and connected cased. In this case, sanction was given by the Government of Kerala, by order of the Governor, and signed by the Commissioner and Secretary to Government. The order (Ext.P15) starts with the emblem of the Government of Kerala, with the caption “GOVERNMENT OF KERALA” and the last portion of the order is quoted as follows: AND WHEREAS, the Government of Kerala, after fully and carefully examining the evidence on records and the circumstances of the case, consider that the above said Sri Karunakaran Pillai, Sri. Satheesan Pillai, Sri Sagar Thomas and Smt. Sumangala Pillai had committed the offences u/s. 5(2) r/w sec.5(1) (c) and (d) of Prevention of Corruption Act, 1947 and Sections 408, 409, 420 and 120-B of Indian Penal Code (45 of 1860) for which they should be prosecuted; NOW THEREFORE, the government of Kerala do hereby accord sanction under Section 6(1) (bb) of Prevention of Corruption Act 1947 (Act 2 of 1947) as amended by the Kerala Criminal law Amendment Act, 1962 (27 of 1962) for the prosecution of the said Smt. Sumangala Pillai and u/s 6(1) (b) of Prevention of Corruption Act 1947 (Act 2 of 1947) for the prosecution of Sri. Satheesan Pillai and under Section 197(i) (b) of Code of Criminal Procedure 1973 (2 of 1974) for the prosecution of Sri. Karunakaran Pillai for the above said offences and any other offences punishable under any other provisions of law in respect of the acts aforesaid and for taking cognizance of the said offences in a Court of competent jurisdiction. By Order of the Governor, Sd/- C.P. Nair, Commissioner & Secretary to Government.” 10. Even otherwise, provision for sanction is made with the intention to avoid victimization and malicious prosecution of a ‘public servant”. By Order of the Governor, Sd/- C.P. Nair, Commissioner & Secretary to Government.” 10. Even otherwise, provision for sanction is made with the intention to avoid victimization and malicious prosecution of a ‘public servant”. Once conviction is entered, the question to be considered is whether the conviction is correct or not, as sanction is provided for as a filter check to safeguard the public servants from frivolous or mala fide or vindictive prosecution, as held by the Apex Court in Central Bureau of Investigation, v. V.K. Seghal (1999 SCC (Cri) 1494), in the absence of special provision like Section 19(3) of the 1988 Act, conviction and sentence cannot be set aside merely on the ground of absence of proper sanction, much less on the ground of want of competency of the authority who granted sanction. Question to be considered is whether any failure of justice has occurred due to the alleged defects in the sanction order. Here, we have found that sanction orders in these cases are proper. The reference is answered accordingly, Post both the criminal appeals for hearing on merits on 30th September, 2004.