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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

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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

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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

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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

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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

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    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

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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