Kerala High Court
Purushothaman Nair vs State Of Kerala on 31 July, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3856 of 2008()
1. PURUSHOTHAMAN NAIR, S/O.SREEDHARAN NAIR
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.V.N.ACHUTHA KURUP (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :31/07/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.3856 of 2008
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Dated this the 31st day of July, 2009
O R D E R
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Question raised for a decision in this revision is whether a public servant who, while functioning as such entered into conspiracy with certain other persons and pursuant to that conspiracy forged documents to be produced in the Department, used such documents as genuine knowing the same to be forged documents and established, maintained or worked parallel telegraph, cheated the Department and thereby committed offences punishable under Sections 120(B), 468, 471, 420 of the Penal Code (for short, "the Code") and Sections 20 and 25 of the Indian Telegraph Act (for short, "the Act") is amenable to the jurisdiction of ordinary criminal court along with other perpetrators of the crime or they are liable to be tried only by the Special Judge appointed under Section 4 of the Prevention of Corruption Act (for short, "the PC Act")?
2. The CBCID, Thiruvananthapuram submitted final report against the petitioner/accused No.5 and others in the court of learned Judicial First Class Magistrate, Neyyattinkara for offences punishable under Sections 120B, 468, 471 & 420 of the Code and Secs.20 and 20 of the Act and Rule 425 of the Indian Telegraph Rules (for short, CRL. R.P. No.3856 of 2008 -: 2 :- "the Rules"). Petitioner, at the relevant time was working in the Telegraph Department. Charge against petitioner and others is that they entered into a criminal conspiracy to make unlawful gain for themselves, forged applications purporting to be made by charge witness Nos.4 and 5 to the Telegraph Department to get ISD connection for their telephone, obtained the service of accused No.6 who is working abroad to give a two way conference machine to accused No.2 to facilitate unmetered ISD calls from the said telephones to foreign countries, facilitated such calls and thus made unlawful gain of Rs.16,33,407/- and caused unlawful loss to the Telegraph Department. Learned magistrate took cognizance of the said offences and issued summons to the petitioner and others. Petitioner pleaded for a discharge vide C.M.P. No.2625 of 2007 contending that there are no materials on record which if unrebutted would warrant his conviction. Learned magistrate by the impugned order dismissed that petition. That order is under challenge in this revision.
3. Learned counsel for petitioner/accused No.5 contended that offence alleged against the petitioner comes squarely within the scope of Secs.3 and 13 of the PC Act and hence by virtue of Sec.4(1) CRL. R.P. No.3856 of 2008 -: 3 :- and (3) of the PC Act, the Special Judge appointed under Sec.4 of the PC Act alone can try the petitioner and even other perpetrators of the crime. It is also contended by learned counsel that in the above circumstances investigation of the case could have been conducted only in accordance with Chapter IV of the PC Act and not in the manner done. Hence the investigation is illegal. According to learned Public Prosecutor, offences triable exclusively by the Special Judge under the PC Act are not included in this case.
4. It is by Sec.3 of the PC Act that Secs.161 to 165A (both inclusive) of the Code were omitted. Section 4(1) of the PC Act states that offences specified in sub-sec.(1) of Sec.3 of the PC Act shall be tried by the Special Judges only. Section 3(1) of the PC Act refers to any offence punishable under that Act and any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a) of Sec.3(1) of the PC Act. Sub-section (3) of Sec.4 of the PC Act states that while trying any case a special Judge may also try any offence other than an offence specified in Sec.3 with which the accused may, under the Code of Criminal Procedure be charged at the same trial. Sections 7 and 13 of the PC Act deal with the offences triable under that Act. Section 7 deals with public servant CRL. R.P. No.3856 of 2008 -: 4 :- taking gratification other than legal remuneration in respect of an official act. That provision says that whoever being or expecting to be a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification whatever other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions favour or disfavour in the manner stated therein is liable for the punishment stated therein. Explanation (b) states that the word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
5. It is by omitting Secs.161 to 165A of the Code that Sec.7 of the PC Act has been enacted. Section 161 refers to public servant taking gratification other than legal remuneration in respect of an official act. Section 162 refers to taking gratification in order by corrupt or illegal means to influence public servant. Section 163 refers to taking gratification for exercise of personal influence with public servant. Section 164 refers to punishment for abetment by public servant of offences defined in Section 162 or 163. Section 165 refers to public servant obtaining valuable thing without consideration from CRL. R.P. No.3856 of 2008 -: 5 :- persons concerned in proceeding or business transacted by such public servant. Section 165A refers to punishment for abetment of offences defined in Section 161 or 163. In other words what is made punishable under Sec.7 of the PC Act is public servant taking gratification other than legal remuneration in respect of his official act. The ingredients of Sec.7 of the PC Act are that the person charged against must be a public servant or expecting to be a public servant at the time he accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person for himself or for any other person such gratification was not a remuneration to which he was legally entitled or, that he accepted such gratification as a motive or reward for doing or forbearing to do any official act or doing or forbearing to show favour or disfavour to someone in the exercise of his official act or rendering or attempting to render any service or disservice to someone with the Central or State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government Company referred to Sec.2(c) of the PC Act or with any public servant whether named or otherwise. Section 13 of the PC Act deals with criminal misconduct by public servant. Section 13(1)(a) deals with the public servant who habitually accepting or CRL. R.P. No.3856 of 2008 -: 6 :- obtaining or agreeing to accept gratification in the manner stated therein or dishonestly or otherwise converts for his own use any property entrusted to him or under his control or allows any other person so to do or if he by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as public servant or by holding office as a public servant he obtained for any person any valuable thing or pecuniary advantage without any public interest. The ingredients of the offence charged against the petitioner and others are different from that of offences referred to in Secs.7 and 13 of the PC Act though there may be some common features for both. What could be seen from the PC Act is that while Secs.161 to 165A of the Code were omitted from the Code those offences have been brought into the purview of the PC Act.
6. In the statement of objects and reasons of the Bill (No.36 of 1987) it is stated that the Bill is intended to make the existing anti- corruption laws more effective by widening their coverage and by strengthening the provisions. The Bill also envisaged widening of the scope of the definition of the expression "public servant", incorporation of offences under Secs.161 to 165A of the Code and CRL. R.P. No.3856 of 2008 -: 7 :- enhancement of penalties provided for those offences. Provision is also made in the PC Act for obtaining sanction so that a pubic servant is not unnecessarily vexed on frivolous allegations.
7. Now the question is whether petitioner could be tried in the ordinary criminal court for the offences attributed to him. It is not the case of prosecution that petitioner received any gratification as understood in Sec.7 or 13 of the PC Act and did some favour for other accused. According to the prosecution, petitioner was a party to the criminal conspiracy with other accused consequent to which the applications purported to be submitted by the prosecution witnesses were forged and unmetered ISD connection was provided for the telephones of those witnesses making use of the service of accused Nos.1 and 6 also. It is the further allegation that petitioner and others who forged the applications used the same as genuine knowing or having reason to believe that those applications are forged. Unauthrosed and unmetered ISD calls were facilitated from the telephones of the prosecution witnesses. Thus, petitioner cheated the Department. It is also alleged that petitioner and others established, maintained or worked a parallel telegraph within India in contravention of the provisions of the Act, intentionally damaged or CRL. R.P. No.3856 of 2008 -: 8 :- tampered with the telephone connection given to the prosecution witnesses and thereby committed offence punishable under Secs.20 and 25 of the Act. Rule 425 of the Rules refers to damage or alteration of equipment which also is said to have violated by the petitioner and others. These are not offences coming within the purview of Secs.7 and 13 of the PC Act. Therefore in my view the offences attributed to the petitioner and others are not exclusively triable by the Special Judge. The contention that the ordinary criminal court has no jurisdiction to try the offences in question, therefore has to fail.
This revision fails. It is dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv