Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
M. A. KOCHU DEVASSY ETC.
Vs.
RESPONDENT:
STATE OF KERALA
DATE OF JUDGMENT15/09/1978
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
SINGH, JASWANT
KAILASAM, P.S.
CITATION:
1979 AIR 358 1979 SCR (1) 797
1979 SCC (2) 117
ACT:
Indian Penal Code-Sec. 21-Public Servant-Kerala
Criminal Law Amendment Act, 1962-Secs. 2, 3-Prevention of
Corruption Act, 1947- Sec. 5-Effect of enlargement of
definition of a public servant by Kerala amendment.
HEADNOTE:
The appellants in the above appeal were tried and
convicted in respect of the offences inter-alia under
section 408, 465, 477 and 477A of the Indian Penal Code,
1860 read with s. 5 of the Prevention of Corruption Act,
1947 by a special judge. Both the appellants were members of
a registered cooperative society. The conviction of the
appellants, was confirmed by the High Court. Sec. 21 of the
Indian Penal Code defines a public servant "Members of the
Executive Committee or servants of a cooperative society are
not embraced by the categories mentioned in sec. 21" Chapter
9 of the Penal Code deals with offences by or relating to
public servant. Sec. 2 of the Prevention of Corruption Act,
1947 adopts definition of public servant from Sec. 21 of the
Penal Code. By the 1952 amendment of the Criminal Procedure
Code the provisions of appointment of a Special Judge to try
the offences have been provided. The said 1955 amendment
adds certain more offences which are to be tried by a
special judge. The Kerala Criminal Law Amendment Act, 1962
amended Sec. 161 of the Penal Code by adding an explanation
thereto. It provides that for the purpose of the said
section and certain other sections a public servant shall
denote, besides those who are public servants within the
meaning of that section, members of the Board of Directors
or the Executive or Managing Committee and other officer or
servant of a Co-operative Society registered or deemed to be
registered under the law relating to co-operative societies
for the time being in force. Sec. 3 of the Kerala. Act
provides that for the purpose of the Preventive of
Corruption Act, 1947, public servant shall have the meaning
assigned to it under the explanation to sec. 161 of the
Indian Penal Code as amended by the Kerala Criminal Law
Amendment Act, 1962.
(1) The appellants contended that sec. 2 of the Kerala
Act brought members of the executive committee or the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
servants of a registered co-operative society within the
ambit of the expression "public servant" only for the
purpose of Sections 161 to 165A of the Penal Code and for no
other purpose. Therefore, the use of the enlarged definition
cannot be made for the purpose of 1947 Act.
(2) If the intention of the legislature was to enlarge
the definition for all purposes, whatever, it would have
amended section 21 of the Indian Penal Code itself.
Dismissing the appeals the Court,
^
HELD: (1) The terms of sec. 2 of the 1947 Act as
substituted by sec. 3 of the Kerala Act are absolutely clear
and unambiguous and when they lay down that expression
public servant shall have a particular meaning for the
798
purpose of the Act, that meaning must be given to the
expression wherever it occurs in the Act. "For the purpose
of the Act" surely means for the purpose of all and not only
some of the provisions of the Act. [803E]
(2) The Kerala Act carried out amendment of the 1947
Act insofar as the State of Kerala was concerned. The 1947
Act deals not only with offences under sec. 161 to 165A of
the Penal Code but also and mainly with those falling under
various clauses of sub-section 1 to 5 of the 1947 Act. No
reasonable line of distinction between the offences under
sec. 161 to 165A of the Code on the one hand and those
punishable under sec. 5 of the 1947 Act on the other appears
feasible for the purpose of conferment of exclusive
jurisdiction on special judges to try them. From this point
of view also interpretation canvassed on behalf of the
appellants is untenable. [804C-E]
(3) The arguments that the legislature would have
incorporated the additional definition under sec. 21 if it
desired to extend the scope for all purposes is without
substance. If the definition had been enlarged by amendment
of sec. 21 it would have made the new categories of persons
brought by it within the ambit of the expression "public
servant" liable to punishment not only for Offences under
sec. 161 to 165A of the Code but also for numerous other
offences specified in the code relating to public servants
as also to offences so related and created by other Acts
wherein the definition of public servant occurring in sec.
21 of the Code has been adopted. [804F-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
178 and 248 of 1977.
Appeals by Special Leave from the Judgment and order
dated 25-1-77, 4-3-77 of the Kerala High Court in Criminal
Misc. Petition No. 862/76 and Criminal Appeal No. 416/75.
T. C. Raghavan (In Crl. A. 178/77) and P. K. Pillai for
the Appellant.
K. T. Narindranath (In Crl. A. 178/77) and K. R.
Nambiar for the Respondent.
The Judgment of the Court was delivered by
KOSHAL, J.-By this judgment we shall dispose of
Criminal Appeals Nos.178 and 248 of 1977, both of which were
admitted to a hearing by special leave and in each one of
which the sole point for determination is whether a member
of an executive committee or a servant of a registered co-
operative society is a public servant for the purpose of
clause (c) of sub-section (1) of section 5 of the Prevention
of Corruption Act (Central Act No. 2 of 1947, hereinafter
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
referred under the Criminal Law Amendment Act (Central Act
No. 46 of to as the 1947 Act) and whether, therefore, a
Special Judge appointed 1952, hereinafter called the 1952
Act) has jurisdiction to try him for an offence under that
clause.
799
2. The appellant in Criminal Appeal No. 178 of 1977 is
M.A. Kochu Devassy who was sent up, alongwith 11 others, for
trial in respect of offences under sections 120-B, 408, 465,
467, 477 and 477-A of the Indian Penal Code (hereinafter
described as the Code) and clause (c) of sub-section (1)
read with sub-section (2) of section 5 of the 1947 Act to
the Special Judge, Trichur by the Deputy Superintendent of
Police, Vigilance Department, Trichur. The allegations
against the accused were that while being members of the
Board of Directors or the servants of Cooperative Society
No. R-192, Chalakudy (hereinafter called the Society), they,
on the 18th of May 1972, entered into a conspiracy to
misappropriate the funds of the Society, that in pursuance
of that conspiracy they misappropriated a sum of Rs. 1900/-
on the same date and that they prepared false records in
order to conceal the misappropriation. Before the trial
commenced, however, a petition was made on behalf of the
accused to the High Court of Kerala praying that the charge
be quashed. That petition came up for hearing before Khalid,
J., who doubted the correctness of the dictum of a Division
Bench of that Court in Sahadevan v. State of Kerala to the
effect that a Special Judge has jurisdiction to try all
cases against employees of co-operative societies under all
or any of the provisions of section 5 of the 1947 Act. He
adverted to various provisions of that Act and the Kerala
Criminal Law Amendment Act (Kerala Act 27 of 1962 and
hereinafter referred to as the Kerala Act) and thought that
an important aspect of the amendment promulgated by the
Kerala Act was not brought to the notice of the Division
Bench and therefore referred the matter to a larger Bench by
an order dated the 7th of December 1976. The petition then
came up for final hearing before a Full Bench of the Kerala
High Court, which has, by the impugned judgment, held that
the dictum of the Division Bench mentioned above was
correct, that a member of the executive committee or a
servant of a registered co-operative society was a public
servant for the purposes of the 1947 Act as a whole in so
far as the State of Kerala was concerned and that,
therefore, such a member or servant could be tried by a
Special Judge. It is by that judgment that the appellant
feels aggrieved.
3. The appellant in Criminal Appeal No. 248 of 1977 is
one C.A. Thomas, who was convicted by the Special Judge,
Trichur, for offences under clause (c) of sub-section (1)
read with sub-section (2) of section 5 of the 1947 Act and
section 408 of the Code and was sentenced to rigorous
imprisonment for a year and a fine of Rs. 5000/-on the first
count, the sentence in default of payment of fine being
rigorous imprisonment for six months. No sentence was
awarded for
800
the offence under section 408 of the Code. The allegations
on the basis of which he was prosecuted and which were found
proved against him were that while being employed as a
store-keeper at the firewood depot at Punkunnam owned by the
Wholesale Co-operative Stores Ltd. Trichur, he
misappropriated profits accruing to his employers by abusing
his official position. He filed an appeal to the High Court
of Kerala which was dismissed by a learned Single Judge on
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
the 4th of March 1977 through the judgment impugned before
us. The pleas raised before the High Court on his behalf
included one that the Special Judge had no jurisdiction to
try him inasmuch as he was not a public servant for the
purposes of the 1947 Act. The plea was rejected by the High
Court in view of the dictum of the Full Bench which is
challenged before us in Criminal Appeal No. 178 of 1977.
4. At this stage we may usefully refer to various
provisions of the Code, the 1947 Act, the 1952 Act, the
Kerala Act and the Criminal Law Amendment Act (Central Act
No. 50 of 1955 and hereinafter called the 1955 Act). Section
21 of the Code defines what is a "public servant". In 12
clauses it lists various categories of persons who fall
within the definition. Members of the executive committee or
servants of a co-operative society are not embraced by any
of those categories. Chapter IX of the Code headed "Of
Offences by or relating to Public Servants" consists of
sections 161 to 171. Section 161 states the conditions on
the fulfilment of which a public servant would be guilty of
bribery and lays down the punishment therefor.
Section 2 of the 1947 Act as originally enacted was to
the following effect:
’2. For the purposes of this Act, "public servant"
means a public servant as defined in section 21 of the
Indian Penal Code.’
Sub-section (1) of section 5 of the 1947 Act states
when a public servant can be said to commit the offence of
criminal misconduct. It has five clauses of which the first
three run as follows:
"(a) if he habitually accepts or obtains or agrees
to accept or attempts to obtain from any
person for himself or for any other person,
any gratification (other than legal
remuneration) as a motive or reward such as
is mentioned in section 161 of the Indian
Penal Code, or
"(b) if he habitually accepts or obtains or agrees
to accept or attempts to obtain for himself
or for any other person, any valuable thing
without consideration or
801
for a consideration which he knows to be
inadequate, from any person whom he knows to
have been, or to be, or to be likely to be
concerned in any proceeding or business
transacted or about to be transacted by him,
or having any connection with the official
functions of himself or of any public servant
to whom he is subordinate, or from any person
whom he knows to be interested in or related
to the person so concerned, or
"(c) if he dishonestly or fraudulently
misappropriates or otherwise converts for his
own use any property entrusted to him or
under his control as a public servant or
allows any other person so to do, or"
Sub-section (2) of section 5 of the 1947 Act provides
for punishment in respect of an offence under sub-section
(1) thereof, while section 6 creates a bar against any court
taking cognizance of an offence under sections 161, 164 and
165 of the Code or sub-section (2) of section 5 of the 1947
Act unless previous sanction of certain authorities has been
obtained in that behalf.
Now we come to the provisions of the 1952 Act. Section
3 thereof added to the Code section 165-A which created and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
laid down the punishment for the offence of abetment of the
offences covered by sections 161 and 165 of the Code.
Section 6 of the 1952 Act dealt with the appointment of
Special Judges to try offences under sections 161, 165 or
165-A of the Code or sub-section (2) of section 5 of the
1947 Act, or conspiracy to commit any of those offences.
Sub-section (1) of section 7 of the 1952 Act barred the
jurisdiction of Courts other than those of Special Judges to
try the offences mentioned in section 6, while sub-section
(3) of section 7 provided that a Special Judge trying any of
the offences mentioned in section 6 could also try offences
with which the accused might be charged at the same trial in
accordance with the provisions of the Code of Criminal
Procedure.
The 1955 Act added offences under sections 162, 163 and
164 of the Code to the range of offences to try which the
Special Judge had exclusive jurisdiction, so that such
jurisdiction thenceforth extended to the trial of offences
under sections 161 to 165-A of the Code and subsection (2)
of section 5 of the 1947 Act.
Seven years later was promulgated the Kerala Act,
section 2 where of amended section 161 of the Code by adding
thereto an Explanation, the relevant part of which is
extracted below:
802
’"Public Servant"-For purposes of this section and
sections 162, 163, 164, 165 and 165-A, the words
"public servant" shall denote, besides those who are
"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).........................
(ii).........................
(iii)........................
(iv) Every member of the Board of Directors or the
executive or managing committee and every
officer or servant of a co-operative society
registered or deemed to be registered under
the law relating to co-operative societies
for the time being in force;
(v) ..........................
(vi) ...........................
(vii) ...........................
(viii) ...........................
Section 3 of the Kerala Act may be reproduced in
extenso:
’In the Prevention of Corruption Act, 1947
(Central Act 2 of 1947)-
(i) for section 2, the following section shall be
substituted, namely:-
"2. Interpretation-For the purposes 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 sections
161, 162, 163, 164, 165 or 165A" shall be substituted;
(iii) in subsection (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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
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;"
803
4. The contentions raised on behalf of the appellants
may be summarised thus. Section 2 of the Kerala Act brought
members of the executive committee or the servants of a
registered co-operative society within the ambit of the
expression "public servant" only for the purposes of
sections 161 to 165A of the Code and for no other purpose
and therefore the use of the enlarged definition could not
be made for the purposes of the 1947 Act. It is true that
section 2 of the 1947 Act as substituted by the Kerala Act
states that the expression "public servant" shall have the
same meaning for the purposes of the 1947 Act as have been
assigned to it under the enlarged definition of that
expression in the Explanation added to section 161 of the
Code, but then the phrase "for the purposes of this Act"
occurring in the said section 2 must be deemed to have a
limited meaning and should be read down as if they are
restricted to only those purposes of the Act which concern
sections 161 to 165A of the Code. Had the intention of the
framers of the substituted section been not to give such a
limited meaning to the said phrase but to use it in its
literal sense, there was no point in enlarging the
definition of the expression "public servant" by adding an
Explanation to section 161 of the Code; for, in that case,
the proper and direct method of carrying out the intention
would have been to amend section 21 of the Code itself, so
as to make the definition therein embrace all the eight
categories of persons mentioned in the added Explanation.
5. We find ourselves wholly unable to accept any of the
contentions. The terms of section 2 of the 1947 Act as
substituted by section 3 of the Kerala Act are absolutely
clear and unambiguous and when they lay down that the
expression "public servant" shall have a particular meaning
for the purposes of the Act, that meaning must be given to
the expression wherever it occurs in the Act. "For the
purposes of the Act" surely means for the purposes of all
and not only some of the provisions of the Act. If the
intention was to limit the applicability of the definition
of the expression "public servant" as contended, the
language used would not have been "for the purposes of the
Act" but something like "for the purposes of the Act insofar
as they relate to the offences under sections 161 to 165A of
the Indian Penal Code."
It may be noted here that section 2 of the 1947 Act as
substituted by the Kerala Act does not reproduce the
definition of the expression "public servant" as contained
in section 161 of the Code, but states in so many words that
the expression shall have the meaning assigned to it in the
Explanation to the said section 161. It follows that what is
brought into section 2 of the 1947 Act is the meaning of the
expression as contained in the Explanation and not the
entire Ex-
804
planation itself, so that the words "for the purposes of
this section and sections 162, 163, 164, 165 and 165A"
occurring in the Explanation are not transplanted into
section 2 of the 1947 Act as substituted. If the contrary
were true and the Explanation had to be read word for word
into the said section 2, the result would entail an
absurdity; for then the section last mentioned would read
thus :
‘For purposes of this Act, for purposes of the section
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
and sections 162, 163, 164, 165 and 165A, the words "public
servant" shall denote ........’ So read, the section makes
no sense and the method of incorporation of the Explanation
into the substituted section 2 cannot be accepted as a
correct method of interpretation of the section.
Nor do we see any cogent reason why the legislature
should have intended to limit the applicability of the
enlarged definition as contended. The Kerala Act carried out
amendments to the 1947 Act insofar as the State of Kerala
was concerned and the 1947 Act deals not only with offences
under sections 161 to 165A of the Code but also, and mainly,
with those falling under various clauses of sub-section (1)
of section 5 of the 1947 Act. No reasonable line of
distinction between the offences under sections 161 to 165A
of the Code on the one hand and those punishable under sub-
section (2) of section 5 of the 1947 Act on the other
appears feasible for the purpose of conferment or exclusive
jurisdiction on Special Judges to try them. From this point
of view also, the interpretation canvassed on behalf of the
appellants is untenable.
And the argument that the enlarged definition of the
expression "public servant" would not have been adopted in
the form of the Explanation to section 161 of the Code but
would have been incorporated in section 21 thereof if it was
to apply to the 1947 Act as a whole, though attractive at
first sight, is really without substance. In our view, the
method adopted is not without purpose. Had the definition
been enlarged by an amendment of section 21 of the Code, it
would have made the eight new categories of persons brought
by it within the ambit of the expression "public servant"
liable to punishment not only for offences under sections
161 to 165A of the Code but also for numerous other offences
specified in the Code relating to public servants, as also
to offences so related and created by other Acts wherein the
definition of "public servant" occurring in section 21 of
the Code has been adopted as such. It was presumably to
avoid such a result and to limit the scope of the
applicability of the
805
definition to bribery, criminal misconduct and allied
offences committed by public servants, that the legislature
in its wisdom adopted the device of amending section 161 of
the Code by adding the Explanation to it and by providing
also that the enlarged definition shall govern all the
provisions of the 1947 Act.
6. Not finding any merit in the contentions raised 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.
7. Both the appeals are accordingly dismissed.
P.H.P. Appeals dismissed.
806