IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 Crl.Rev.Pet.No. 2040 of 2008() ------------------------------ CC.16/2008 of ENQUIRY COMMR. & SPL.JUDGE, KOZHIKODE .................... REVN. PETITIONER: ------------------ K.PRAVEENKUMAR, S/O.KESAVAN NAIR PARAKKAL HOUSE, NADUVATHOOR PO, KEEZHARIYOOR, KOYILANDY, KOZHIKODE BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: ------------- 1. DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI CORRUPTION BUREAU NORTHERN RANGE, KOZHIKODE 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.P.N.SUKUMARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.2040 of 2008 = = = = = = = = = = = = = = Dated this the 15 th day of July, 2008 ORDER The revision petitioner who is the 8th accused in C.C.No.16/2008 on the file of the Enquiry Commissioner and Special Judge, Kozhikode, challenges Annexure V order passed by the Special Judge issuing process to the accused after taking cognizance of the offences. The revision petitioner along with 7 others have been charge sheeted by the 1st respondent- Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Northern Range, Kozhikode for offences under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act,1988 (hereinafter referred to as the P.C.Act for short) and Sections 420, 468, 471 and 120B of IPC. Accused Nos.1,2,& 3 are respectively the President, Secretary and Senior clerk and A5 to A8 are the members of the Board of Directors of the Keezhariyoor Service Co- operative Bank. The 4th accused is a person appointed by the 1st accused as an agent for the purchase of copra. The charge against the accused is that A1 and A2 while officiating as President and Secretary of the Bank and A3 while officiating as Senior clerk of Crl.R.P.No.2040 of 2008 2 the Bank and A5,A6.A7 & A8 while officiating as members of the Director Board of the Bank abused their official position by entering into a criminal conspiracy with A4, a private person and appointed him as an agent, for procuring copra under support price scheme from 3.5.2000 to 7.8.2000 violating the guidelines issued thereof and A2 and A3 with the connivance and support of the other accused abused their official position and committed irregularities and mal practices in the procurements of copra during the period from 3.5.2000 to 27.5.2001 and they with the connivance and support of the other accused made undue pecuniary advantage of Rs.3,21,572/- being the difference in open market price and support price and made unscrupulous deduction of copra on account of dryage worth Rs.1,13,450/- and thereby made corresponding pecuniary gain. 2. The case was originally registered suo motu as crime No.V.C 4/2001. 3. I heard Adv.Sri.T.G.Rajendran, the learned counsel for the petitioner and Sri P.N.Sukumaran, the learned Public Prosecutor. 4. The petitioner would contend as follows:- The Keezhariyoor Service Co-operative Bank is a Co-operative Society registered under the Kerala Co-operative Societies Act Crl.R.P.No.2040 of 2008 3 bearing Registration No.F 772. The Society has not received any financial aid from the Central Government or State Government or from any corporation established by or under a Central/Provincial or State Act or any authority owned or controlled or aided by the Government or a Government company as defined under Section 617 of the Companies Act 1956 in which case alone the petitioner who is a member of Board of Directors will become a public servant within the meaning of Section 2(c) (ix) of the P.C.Act, 1988. The petitioner is prosecuted on the premise that he is a public servant and the aforesaid society falls under Clause (ix) of Section 2(c) of the P.C.Act. If the petitioner is a public servant then he can be prosecuted only on the strength of a valid sanction issued both under Sections 19 of the P.C.Act and 197 of the Cr.P.C. But no sanction has been obtained for prosecuting the petitioner. Therefore the cognizance taken and the summons issued are both illegal. 5. The learned Public Prosecutor, on the other hand, would submit as follows:- The society in question is receiving aid from NAFED and KERAFED and therefore it falls under Clause ix of Section 2(c) of the P.C.Act. On the date of cognizance the petitioner had ceased to Crl.R.P.No.2040 of 2008 4 be a Member of the Board of Directors. The offences alleged against the petitioner were not committed while acting or purporting to act in the capacity of such public servant and it is not part of his duty as such public servant to commit those offences and therefore even if the petitioner is a public servant no prosecution sanction is necessary to prosecute him both under the P.C.Act as well as under the Cr.P.C. 5. The final report filed by the court below does not contain any indication either way regarding the question as to whether the aforesaid society falls under any of the clauses under Section 2(c) of the P.C. Act so as to treat the revision petitioner as a public servant. Hence this Court may not be able to go into the aforementioned aspects of the matter without the aid of the prosecution records which are before the Special Court at Kozhikode. Pre-eminently this is a fit case where the petitioner can raise the question of sanction before the trial court which will have to consider this after scanning through the prosecution records. If the petitioner files a petition before that court, the said court shall go into the question and decide the matter either way based on the materials before that court. If there is no material before the Special Court to decide the question as to whether the society falls Crl.R.P.No.2040 of 2008 5 under any of the clauses of Section 2(c) of the P.C.Act, it shall be open to that court to direct a further investigation into this limited question under Section 173(8) Cr.P.C. Similarly, if that court is of the view that the question of sanction can be decided only after the trial of the case, that court may also relegate the consideration of the question to the stage of trial. This revision is accordingly disposed of reserving the right to the petitioner to raise the question of sanction before the court below. It shall be open to the petitioner to file the said application before the court below through his counsel, and for the disposal of the said application, the learned Special Judge need not insist on the personal appearance of the petitioner. The petitioner shall file the necessary petition within three weeks from today. Dated this the 15th day of July, 2008. V. RAMKUMAR, JUDGE sj