IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 Crl.MC.No. 2726 of 2009() ------------------------- CMP.2777/2008 of ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR .................... PETITIONER(S): ------------------------- K.BALAJI IYENGAR, CHARTERED ACCOUNTANT, RANGAMANI ASSOCIATES, 2ND FLOOR, ASWATHY TOWERS, THEKKUMGOPURAM, KOTTAYAM. BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE, BY ADV. SRI.T.RAMPRASADUNNI, SRI.K.C.SURESH, SRI.S.K.AJAY KUMAR. RESPONDENT(S): STATE: -------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MR.T.C.MATHEW, SECRETARY, KERALA CRICKET ASSOCIATION AND PRESIDENT, IDUKKI DISTRICT CRICKET ASSOCIATION, IDUKKI. 3. MR.T.R.BALAKRISHNAN, PRESIDENT, KERALA CRICKET ASSOCIATION & NOMINEE MEMBER OF WAYANADU DCA, WAYANAD. 4. THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE & ANTI CORRUPTION BUREAU, ERNAKULAM. R1 & R4 BY PUBLIC PROSECUTOR SRI. B. VINOD R2 & R3 BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE, BY ADV. SRI.BABU PAUL, SRI.SHAJI P.CHALY, SRI.A.V.THOMAS, SRI.G.SHRIKUMAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/09/2010,THE COURT ON 26/10/2010 PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2726 OF 2009 =========================== Dated this the 26th day of October,2010 ORDER Whether office bearers of Kerala Cricket Association are public servants as defined under section 2(c) of Prevention of Corruption Act, 1988 is the question to be settled in the petition. 2. Petitioner filed Annexure A complaint before Special Judge (Vigilance), Thrissur against respondents 2 and 3, who are respectively the Secretary and President of Kerala Cricket Association and 91 others, including the players and office bearers of District Cricket Association alleging that they committed various corruption and misappropriation as alleged in the complaint and therefore a detailed and in-depth Crl.M.C.2726/2009 2 investigation is necessary. Petitioner sought an order under section 156(3) of Code of Criminal Procedure to register and investigate a case for the offence under sections 13(1)(c)and (d) read with section 13(2) of Prevention of Corruption Act, 1988 and Sections 201, 409, 420, 468, 471, 477 and S.120B of Indian Penal Code. The Special Judge (Vigilance) forwarded the complaint to the Director of Vigilance and Anti Corruption Bureau under section 156(3) of Code of Criminal Procedure, to register a case and investigate. Based on the order, Crime 1/2009 of Vigilance and Anti Corruption Bureau, Ernakulam was registered under Annexure B F.I.R. Respondents 2 and 3 challenged the said order passed by the Special Judge before this Court in W.P.(C)15682/2009 contending that Special Judge mechanically sent the complaint for investigation without considering the question whether respondents 2 and 3 would come within the definition of public servants as defined under the Crl.M.C.2726/2009 3 Prevention of Corruption Act and without conducting an inquiry as provided in Sirajudeen v. State of Madras (AIR 1971 SC 520) the F.I.R could not have been registered. This Court by Annexure C judgment dated 30.3.2009 found that the learned Special Judge has not applied his mind to the crucial facts raised by respondents 2 and 3 and directed registration of the crime. Therefore the order passed by the Special Judge(Vigilance) was set aside and remitted the CMP to the Special Judge to reconsider the question after hearing all the concerned on the points raised and to proceed in accordance with law. Petitioner challenged Annxure C order before the Honourable Supreme Court by filing Annexure R2(q) Special Leave Petition (Civil). By Annexure R2(r) order dated 17.7.2009, the Special Leave Petition was dismissed. Learned Special Judge thereafter heard the petitioner as well as respondents 2 and 3 and by Annxure D order found that respondents 2 and 3 are not public Crl.M.C.2726/2009 4 servants as defined under section 2(c) of Prevention of Corruption Act and therefore the Special Court is not having jurisdiction to take cognizance of the offences and returned the complaint for presentation before the proper court. Annexure D order is challenged in this petition filed under section 482 of Code of Criminal Procedure. 3. Petitioner would contend that Kerala Cricket Association is a member of BCCI and is the recognised association for promotion of cricket within the State of Kerala under the overall control of BCCI and Kerala Cricket Association received huge amount of funds from BCCI and Kerala Sports Council. It is alleged that for promotion of cricket, Kerala Cricket Association received Rs.28 crores 41 lakhs from the BCCI and it is a registered society under the Travancore Cochin Literary Scientific and Charitable Societies Act and it received a grant of Rs.1,88,000/- from the Crl.M.C.2726/2009 5 State Government and the Association is exempted from stamp duties and entertainment taxes by the Government of Kerala during 2007-2008 and the funds received by the Association from BCCI and Sports Council are exclusively meant for promotion and betterment of cricket and cannot be misappropriated or used for the pecuniary advantage of its office bearers and respondents 2 and 3 abused their official position as public servants and committed the offences under section 13(1)(c) and (d) read with section 13(2) of Prevention of Corruption Act. It is alleged that the Special Judge(Vigilance) did not consider the question in the proper perspective and instead based on the fact that Cricket Association is not a State as provided under Article 12 of the Constitution of India, held that respondents 2 and 3 are not public servants and the Special Judge did not even consider the nature of the duties required to be performed by respondents 2 and 3 in their capacity as office bearers of Crl.M.C.2726/2009 6 Kerala Cricket Association and they are public servants under section 21 of Indian Penal Code and the impugned order was passed without considering the relevant facts. It is contended that the accused are performing public duties which are wholly public in nature and confers exclusive powers and privileges on them affecting interest of the public, and is State financed and the rights of the cricketers in the whole State are regulated by the Association and therefore it should have been found that they are public servants. It is also contended that the Special Judge without jurisdiction afforded a hearing to the accused when they are not entitled to be heard at that stage and a direction to investigate the case should have been passed. 4. Second and third respondents also filed a counter affidavit contending that Kerala Cricket Association is a society registered under Travancore-Cochin Literary, Scientific and Crl.M.C.2726/2009 7 Charitable Societies Act and functioning under a bye-law. There are 14 District Associations as units of Kerala Cricket Association to achieve the aim and object as laid down in the bye-laws. Petitioner was the Vice President of Kottayam District Cricket Association for the period 2001- 2005. Though Kerala Cricket Association convened annual General Body Meeting of Kottayam District Cricket Association, election did not take place as there was dispute between two factions. Kerala Cricket Association appointed a four member enquiry committee to assess the affairs of Kerala Cricket Association and on the report so submitted appointed an adhoc committee to take charge the affairs of the District Association and decided to dissolve the District Committee. Kerala Cricket Association convened an Annual General Body meeting as directed by this court to elect the office bearers and petitioner and his followers did not attend the meeting. Though petitioner filed a Writ Crl.M.C.2726/2009 8 petition to set aside the election, it was dismissed by Annexure R2(a) judgment. Though petitioner filed O.S.438/2006 before Munsiff Court, Kottayam suppressing Annexure R2(a), it was dismissed under Annexure R2(b) judgment. Petitioner is thus nurturing ill will against Kerala Cricket Association. Kerala Cricket Association received Rs.28.42 crore from 2004-2008 from BCCI for promotion of cricket. Rs.1,88,342/- was received from Kerala Sports Council in 2007- 2008 for payment of travelling expenses to Kerala State players and it was returned by cheque and Annexure R2 (c) letter was sent. Annexure R2(d) certificate issued by Kerala Sports Council prove that fact. Kerala Cricket Association is not functioning under Kerala Sports Council and is not an instrumentality of the State. The case of misappropriation or deriving pecuniary advantages are all denied. Kerala Cricket Association is not performing any public duty as provided in Section 2 Crl.M.C.2726/2009 9 (b) of Prevention of Corruption Act. Respondents 2 and 3 are not authorised or required to perform any public duty and are not public servants. 5. Learned senior counsel appearing for the petitioner and learned counsel appearing for respondents 2 and 3 and learned Public Prosecutor were heard. 6. The argument of the learned senior counsel is that respondents 2 and 3 are public servants as provided under sub clause (viii) and (xii) of clause (c) of Section 2 of Prevention of Corruption Act (hereinafter referred to as the Act). The argument is that respondents 2 and 3 are holding the offices of Secretary and President of Kerala Cricket Association and in that capacity they are required to perform public duty as defined under clause (b) of Section 2 of the Act. Learned counsel also argued that Kerala Cricket Association though registered under the Travancore Cochin Literary Scientific and Charitable Societies Act, Crl.M.C.2726/2009 10 is getting financial assistance from the Kerala State Sports Council and respondents 2 and 3 being the office bearers of the Association are public servants as defined under section 2(c)(xii) of the Act. Learned senior counsel relied on the decision of the Apex Court in Zee Telefilms Ltd and another v. Union of India (2005(4) SCC 649) and submitted that eventhough Cricket Association may not be a State for the purpose of Article 12 of the Constitution of India, as they are required to do public duty which are for the benefit of the public, they would definitely be public servants. Learned senior counsel also argued that as Kerala Cricket Association had received financial aid from Kerala Sports Council, they would definitely come within the ambit of public servants as provided under section 2(c) (xii) of the Act as ambit of public servants under the Act is much wider than the public servant as defined under section 21 of Indian Penal Code. Learned senior counsel also Crl.M.C.2726/2009 11 relied on the decision in State of Punjab v. Nirmal Kaur( CDJ 2009 SC 937.) 7. Learned Public Prosecutor supporting respondents 2 and 3 argued that as Kerala Cricket Association had received financial assistance from the Sports Council, respondents 2 and 3 cannot contend that they will not be public servants as provided under sub clause (xii) of Clause 2(c) of the Act. Learned Public Prosecutor also submitted that consequent to the registration of the case, during investigation materials could be unearthed to show that Kerala Cricket Association had received funds from the State and had not properly accounted the collections in the one day matches held at Kochi and in such circumstances a detailed and effective investigation is necessary. 8. Learned counsel appearing for respondents 2 and 3 submitted that though on two occasions financial assistance was provided by the Kerala Sports Council, it was not a financial aid to Crl.M.C.2726/2009 12 Kerala Cricket Association but travelling allowances to the players and it was only routed through the Kerala Cricket Association and for the second time the amount was repaid to the Sports Council as Kerala Cricket Association is having sufficient financial capacity. Learned counsel pointed out that to attract sub clause (xii) of clause (c) of Section 2 of the Act, respondents 2 and 3 must be office bearers or employees of an educational, scientific, social, cultural or other institution, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority and when the Cricket Association has not received or is receiving any financial assistance from either the Central Government or the State Government or local or other public authority, the office bearers cannot be public servants as canvassed by the petitioner. Learned counsel also argued that to attract sub clause (viii) of clause Crl.M.C.2726/2009 13 (c) of Section 2 of the Act, respondents 2 and 3 should hold an office by virtue of which they are authorised or required to perform any public duty and under clause (b) of Section 2 of the Act, such duty must be in discharge of which the State, public or community at large has an interest and respondents 2 and 3 in their capacity as Secretary and President of the Kerala Cricket Association are neither authorised nor required to perform any public duty. It was pointed out that the duty to be performed by respondents 2 and 3 in their capacity as Secretary and President are enumerated in the bye-laws of the Cricket Association, a copy of which was produced by petitioner as Annexure F and Annexure F shows that they are not required to perform any public duty as provided under clause (b) of Section 2 of the Act and therefore they cannot be public servants. 9. The learned counsel appearing for the petitioners and respondents and learned Public Crl.M.C.2726/2009 14 Prosecutor submitted that the question whether an office bearer of the State Cricket Association or the BCCI is a public servant as defined under section 2(c) of the Act has not been decided by the Honourable Supreme Court or any other High Court. Therefore the question has to be decided on proper analysis of the provisions. 10. The definition of 'public servant' under section 2(c) of the Act is much wider than the definition of public servant under section 21 of Indian Penal Code. As the only contention is that respondents 2 and 3 are public servants as defined under sub clause (viii) and (xii) of Section 2 (c), it is not necessary to consider the other sub clauses in clause (c) of Section 2. The relevant sub clauses as defined under section 2(c) reads:- “viii) any person who holds an office by virtue of which he is authorised or required to perform any Crl.M.C.2726/2009 15 public duty; xii)any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.” 11.First Explanation of Clause (c) provides that persons falling under any of the sub clauses are public servants, whether appointed by the Government or not. Second Explanation provides Crl.M.C.2726/2009 16 that wherever the word '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. 12. Public duty is defined under clause (b) of Section 2 as follows:- “public duty” means a duty in the discharge of which the State, the public or the community at large has an interest.” 13. Under sub clause (viii), any person who holds an office by virtue of which he is authorized or required to perform any public duty is a public servant. Public duty as provided under the sub clause means a duty in the discharge of which the State, the public or the community at large has an interest. As rightly argued by the learned counsel Crl.M.C.2726/2009 17 appearing for respondents 2 and 3, the public or the community at large may have some interest in the performance of an act by a private individual. But for the reason that either the public or the community at large has an interest, on that act, it cannot be said that the private individual is a public servant as defined under sub clause (viii) of Section 2 (c). The performance of that public duty must be which, he is either authorized to do or required to perform, as he holds the office. Even if an act performed by a person is beneficial to the public or to the community at large and therefore the community has an interest on its performance, that by itself will not make the act a public duty or the person a public servant. It must be shown that the person is either required to perform or authorized to perform the same by virtue of the office which he is holding. The question is whether the duty to be performed by respondents 2 and 3 as Secretary Crl.M.C.2726/2009 18 and President of Kerala Cricket Association are public duties and if so, whether they are public servants as defined under sub clause (viii) of clause (c) of Section 2. 14. In order to attract sub clause (viii), the person must firstly hold an office. Secondly by virtue of that office he should be authorised to do a public duty or required to perform a public duty. Therefore even if a person is holding an office, but if by virtue of that office he is not authorised or required to perform any public duty, for the reason that he is holding an office, he will not be a public servant as defined under sub clause (viii). The essence of sub clause (viii) is that the person who holds the office, shall by virtue of that office, either be authorised or required to perform any public duty. The next question is what is public duty. Only if the public or the State or the community at large has an interest Crl.M.C.2726/2009 19 in that duty to be performed, it would be a public duty as provided under clause (b) of Section 2. Therefore if a person has to perform a duty and either the State, the Public or the community at large has an interest in that duty to be discharged by that person, the duty would be public duty as defined under clause (b) of Section 2 of the Act. The question then is what is the duty, in the discharge of which State, public or the community at large has an interest. 15. Word “duty” is not defined under the Act. Duty is defined in Encyclopedic Law Lexicon by Justice C.K.Thakkur Vol.2 2008 Edn. at page 1586 as follows:- “The word “duty” connotes obligation. A Court or individual is said to be under a duty only when such Court or the person concerned is bound to Crl.M.C.2726/2009 20 perform the function. The word “duty” will not be apt in the context of a discretion to do the particular thing. That expression denotes that one cannot refute to perform the act but is bound to do it.” Black's Law Dictionary 7th edn. page 521 gives the following meaning to “ duty”. “A legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right” 16. Annxure E bye-law of Kerala Cricket Association shows the following aims and objects namely:- a) To instill, promote and Crl.M.C.2726/2009 21 propagate interest in Cricket among the people. b) To popularize, regulate and control Cricket in the State. c) To participate in, conduct and regulate matches and tournaments. d) To arrange for the coaching of players. e) To train and maintain a panel of umpires. f) To organize and affiliate District Cricket Association; and g) To resort to all such measures and do all such acts as are conducive to the furtherance of Cricket. As per the bye-law, the office bearers of the Crl.M.C.2726/2009 22 Association are the President, Vice Presidents, Honorary Secretary, Honorary Joint Secretary and the Honorary Treasurer. Under clause 11 of the bye-law, affairs of the Association shall be governed and controlled by the General Body and managed by the Central Council. Under the bye- law Central council shall have the powers as may be specifically allotted to by the General Body in addition to the following powers specifically provided which include- (a) to carry out the objects of the Association specified in the Memorandum of the Association. (b) to interpret, make, repeal, amend, add to and maintain or public all necessary regulations, bye- laws. etc. (c) To allocate the duties of Crl.M.C.2726/2009 23 the Honorary Secretaries as between themselves and to define whenever necessary the powers of the office bearers association. (d)(i) To prohibit any act or practice by any member or by cricketer or professional cricketer serving the Association or an official coach or umpire appointed by the Association which in the opinion of the Council us detrimental to the interests of the game and deal with any member disregarding such prohibition in such manner as it may in its discretion think proper (ii) To take such action as it Crl.M.C.2726/2009 24 deems fit against a District Association including disaffiliation (e) To arbitrate and to decide all disputes or questions referred to it by the members or by any other person or Association. (f) To inflict penalties on any member or any person for the infringement of the laws of cricket or the rules of the Association. (g) To appoint a manager or managers and get his or their assistance to manage tours undertaken by the Association (h) To invite the co-operation of persons other than its members for any special Crl.M.C.2726/2009 25 purpose and to select them as members of any sub-committee. (i) To reinstate upon teams or otherwise and for good causes any player who has ceased to be an amateur or a professional as the case may be. (o) To maintain a panel of first class umpires. (p) To execute, sign, seal, deliver or cause to be executed, signed, sealed and delivered all such agreements, deeds, documents and assurances as may be necessary to carry out the objects of the Association. (u) To appoint the various selection committees. Crl.M.C.2726/2009 26 (v) To prescribe norms for the satisfactory conduct of tournaments by affiliated clubs etc. Hence being the Secretary and President of the Association, respondents 2 and 3 are required and authorised to perform the duty in furtherance of the said aims and objects of the Association. The question is whether the office bearers of the Cricket Association, who hold office, by virtue of holding the office are authorised or required to perform any public duty. 17. On certain aspects there is no dispute between the parties. The Kerala Cricket Association is a Society registered under Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The Association was not created under any statute. The Association has not only the monopoly status as regards the regulation of the game of cricket Crl.M.C.2726/2009 27 in Kerala but can also lay down criteria for its development for all intend and purport. Kerala Cricket Association is recognized by the State of Kerala as the body to promote and regulate the game of cricket. The Kerala Cricket Association has to select the team to represent the State of Kerala in the Ranji Trophy and other allied tournaments. It has to select not only the teams but also umpires. The Association has to organize one day internationals. The team is not known as the team of Kerala Cricket Association but the team representing State of Kerala. If a player is not selected to State team, he cannot aspire to play for the Indian team. Cricket is now not a mere game. The very future of young cricketers, who are professionals thus depend on the Kerala Cricket Association.The decision taken by the Association would thus affect materially the players who have thus an interest on the performance of the duty by the Crl.M.C.2726/2009 28 office bearers. Hence for all intent and purport Cricket Association exercises the monopoly of cricket. 18. The Honourable Supreme Court in Zee Telefilms Ltd. and another v. Union of India and others (2005(4) SCC 649)had occasion to consider the character of BCCI to which Kerala Cricket Association is affiliated. Their Lordships held:- 219. “The Board’s activities representing” the country are not confined to international forums only. The Board within the country organises and conducts the Ranji Trophy, the Irani Trophy, the Duleep Singh Trophy, the Deodhar Trophy and the N.K.P. Salve Challenge Trophy. Although, these are domestic events, indisputably Crl.M.C.2726/2009 29 only those who are members of the Board and/or recognised by it can take part therein and none else. This also goes to show