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2025 DIGILAW 222 (KER)

Sreenivasan Namboothiri v. State Of Kerala

2025-02-10

G.GIRISH

body2025
ORDER : Aggrieved by the observations of the Sessions Court, Kottayam in an anticipatory bail order that an employee of the Devaswom Board is not a public servant coming under the purview of Sections 332 and 353 I.P.C, the de facto complainant in Crime No.1211/2020 of Kanjirappally Police Station, who works as permanent Shanti (Priest) in a temple under the Travancore Devaswom Board, has filed this petition under Section 482 Cr.P.C to set aside the above conclusion of the Sessions Court and to expunge the findings in the above regard in the relevant paragraphs of the bail order. According to the petitioner, the investigating agency, getting misguided by the above findings of the learned Sessions Judge, dropped Sections 332 and 353 I.P.C which were initially slapped against respondents 2 and 3 herein who allegedly physically assaulted the petitioner inside the temple where he works, and prevented him from the discharge of his official duty. 2. The aforesaid observation was made by the learned Sessions Judge, Kottayam in the order dated 08.12.2020 in Crl.M.P. (Temporary) No.455/2020 in Crime No.1211/2020 of Kanjirappally Police Station while granting pre-arrest bail to respondents 2 and 3 herein. The accusation against respondents 2 and 3 was that on 27.10.2020 at about 7:30 a.m, they physically assaulted the petitioner herein near the Nalambalam of Madura Meenakshi Temple, Kovilkadavu, Kanjirappally while he was engaged in his official duty as Melshanti of that temple, with the intention to deter him from the discharge of his official duty. After elaborately dealing with Section 21 of the Indian Penal Code, the learned Sessions Judge embarked upon an analysis as to whether an employee of Devaswom Board could be considered as a person ‘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 contained in Clause (b) of the twelfth description of Section 21 of the Indian Penal Code. By adverting to the law laid down by this Court in C.R.Chandrasekhara Menon v. State [ 1958 KLT 1190 ], Abdul Rehman v. State of Kerala [ 2020 (3) KLT 628 ], T.V.Krishna Das v. Guruvayoor Devaswom Managing Committee and Others [W.P.(C) No.29018/2010 (DB)] and Accountant General of Kerala v. N.Bhaskaran Nair [W.A.No.621/1994], the learned Sessions Judge held that an employee of the Devaswom Board is not a Government Servant and that he is not doing any public duty. On the basis of the above finding, pre-arrest bail was granted to respondents 2 and 3 herein. 3. Heard the learned counsel for the petitioner, the learned Public Prosecutor representing the first respondent and the learned counsel for respondents 2 and 3. 4. The learned counsel for the petitioner submitted that the observation of the learned Sessions Judge that an employee of Devaswom Board will not come under the definition of public servant under the relevant provisions of the Indian Penal Code had resulted in gross miscarriage of justice since the investigating agency had decided to drop Section 353 I.P.C and Section 332 I.P.C which were initially slapped against respondents 2 and 3 who had mounted physical assault upon the petitioner inside the temple premises where he works and prevented him from the discharge of his official duty as a Melshanti. According to the learned counsel for the petitioner, the above finding of the learned Sessions Judge is per incuriam in view of the provisions contained in Section 59 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 and Section 2 of the Kerala Criminal Law Amendment Act, 1962 (Act 27 of 1962). Adverting to the contents of Section 59 of the Travancore-Cochin Hindu Religious Institutions Act, 1950, and Sections 4 and 5 of the Part B States (Laws) Act, 1951, the learned counsel for the petitioner argued that the reference “Travancore Penal Code” in the Travancore-Cochin Hindu Religious Institutions Act, 1950 has to be taken as Indian Penal Code, and that the Legislature, by the aforesaid provisions incorporated in the relevant law, has made it abundantly clear that the employees of Devaswom Board would come under the definition of public servants within the meaning of Section 21 of the Indian Penal Code. The learned counsel for the petitioner further relied on Section 2 of the Kerala Criminal Law Amendment Act, 1962 (Act 27 of 1962) to contend that every officer in the service or pay of the Travancore Devaswom Board or Cochin Devaswom Board would come under the definition of public servant. Thus, it is submitted that it is highly necessary in the interests of justice to expunge the above observations of the learned Sessions Judge from the impugned order. 5. The learned Public Prosecutor representing the first respondent, and the learned counsel for respondents 2 and 3 submitted that the observations of the learned Sessions Judge in that anticipatory bail order cannot have any binding effect over any investigating agency and hence the prayer in this petition for setting aside the above conclusions of the Sessions Judge and to expunge the observations from the relevant paragraphs is totally unfounded. It is further submitted by the learned Public Prosecutor that the decision to drop Section 332 I.P.C and Section 353 I.P.C from the final report has been taken by the Investigating Officer on the basis of the findings during investigation, and not due to the observations of the learned Sessions Judge in the anticipatory bail order. 6. As regards the argument advanced by the learned counsel for the petitioner that Section 2 of the Kerala Criminal Law Amendment Act, 1962 had brought every officer in the service or pay of the Travancore Devaswom Board or the Cochin Devaswom Board within the fold of the definition of ‘public servant’, it is argued by the learned Public Prosecutor that the Kerala Criminal Law Amendment Act, 1962 has lost its significance with the enactment of the Prevention of Corruption Act, 1988 (Act 49 of 1988) with effect from 09.09.1988. It is further argued by the learned Public Prosecutor that the Kerala Criminal Law Amendment Act, 1962 was enacted to amend the Indian Penal Code and the Prevention of Corruption Act, 1947 in order to incorporate an explanation in Section 161 of the Indian Penal Code so as to include the eight categories of officers mentioned thereunder within the definition of public servant. Adverting to the repeal of Section 161 to 165A of the Indian Penal Code by the Prevention of Corruption Act, 1988, it is pointed out by the learned Public Prosecutor that the petitioner cannot place reliance upon the Kerala Criminal Law Amendment Act, 1962 any more. As regards the applicability of Section 59 of the Travancore-Cochin Hindu Religious Institutions Act, 1950, the learned Public Prosecutor argued that the said provision cannot supersede the definition of public servant contained in Section 21 of the Indian Penal Code. 7. The fact that the decision of the investigating agency to drop Section 332 I.P.C and Section 353 I.P.C from the final report proposed to be filed in this case, was influenced by the observations of the learned Sessions Judge in the pre-arrest bail order, is writ large from paragraph No.5 of the affidavit dated 22.01.2024 filed by the Investigating Officer. Therefore, it is highly necessary to clarify the legal point on this aspect so that the investigating agency would be able to get corrected if the decision to drop Section 332 I.P.C and Section 353 I.P.C from the final report was taken solely on the basis of the observations in Annexure B bail order of the learned Sessions Judge. 8. Section 59 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 reads as follows: “The members of the Board and officers and servants of the Devaswom Department, the members of the Sree Padmanabhaswamy Temple Committee and the Executive Officer and other officers and servants of the said temple shall be deemed to be public servants within the meaning of Section 15 of the Travancore Penal Code.” Going by the provisions contained in Sections 4 and 5 of the Part B States (Laws) Act, 1951 (Act No.3 of 1951 dated 22.02.1951), the term “Section 15 of the Travancore Penal Code” contained in Section 59 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 has to be considered as Section 21 of the Indian Penal Code which corresponds to Section 2(28) of the Bharatiya Nyaya Sanhita, 2023. Thus, Section 59 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 leaves no room for any doubt on the proposition of law that the servants of Devaswom Department would come under the definition of public servant as envisaged under the relevant provisions of the Indian Penal Code. Thus, Section 59 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 leaves no room for any doubt on the proposition of law that the servants of Devaswom Department would come under the definition of public servant as envisaged under the relevant provisions of the Indian Penal Code. The argument of the learned Public Prosecutor that the definition of public servant under Section 21 I.P.C would supersede Section 59 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 cannot be accepted since it is clear from the wordings in Section 59 of the Travancore-Cochin Hindu Religious Institutions Act, 1950 as well as the provisions contained in Sections 4 and 5 of the Part B States (Laws) Act, 1951, which have the effect of importing “Indian Penal Code” wherever “Travancore Penal Code” is referred in the Travancore-Cochin Hindu Religious Institutions Act, 1950, that the persons under the service of Travancore Devaswom Board and Cochin Devaswom Board are brought under the definition of public servant envisaged under Section 21 I.P.C. 9. As rightly pointed out by the learned counsel for the respondents 2 and 3 and the learned Public Prosecutor, the observations of the learned Sessions Judge in Annexure B anticipatory bail order has to be construed as one made solely for the purpose of deciding the limited question as to whether pre-arrest bail could be granted to the respondents 2 and 3 herein; and it has no applicability or binding effect in any other proceedings related to investigation, enquiry or trial. In that view of the matter, the prayer in this petition to set aside the conclusions of the learned Sessions Judge in the above regard, and to expunge the relevant paragraphs from the bail order, is not having any significance in the normal course. However, the statement made by the Investigating Officer in paragraph No.5 of the affidavit dated 22.01.2024 which would give the indication that Section 332 and Section 353 I.P.C have been dropped in the light of the observations in the bail order of the Sessions Court, makes it imperative to have a clarification on the legal aspects on this point. However, the statement made by the Investigating Officer in paragraph No.5 of the affidavit dated 22.01.2024 which would give the indication that Section 332 and Section 353 I.P.C have been dropped in the light of the observations in the bail order of the Sessions Court, makes it imperative to have a clarification on the legal aspects on this point. In the result, the petition is disposed of as follows: i) It is made clear that the observations of the Sessions Court, Kottayam in Annexure B bail order that the employee of a Devaswom Board will not come under the definition of public servant under the relevant provisions of the Indian Penal Code need not be followed by the investigating agency while deciding the offences to be incorporated in the final report in connection with the criminal acts attributed against the respondents 2 and 3. (ii) The investigating agency shall file the final report on the basis of the findings on the evidence gathered during investigation, untrammeled by the aforesaid observations of the Sessions Court, Kottayam in Annexure B bail order.