Society Secretary is a Public Servant : Madras High Court

By Legal Bureau

In a land mark judgement, Madras High Court had decided that Secretary of a co-operative society is a public servent hence corruption charges if proved, he can be booked. he learned Government Advocate (Criminal side) would submit referring to three Government Orders passed by the Government of Tamil Nadu that the Inspector of Police has been conferred with the power to investigate and arrest without warrant any of the public servants as contemplated under the definition part of the Prevention of Corruption Act, 1988. It is his submission that the petitioner has set up a very technical stand on the premises, that no power was conferred on the Inspector of Police either to investigate the case or to arrest an accused public servant under the Prevention of Corruption Act, 1988. Therefore, he would submit that the plea for discharge is not at all tenable.
There is no dispute to the fact that the petitioner is a public servant as defined under section 2(c)(ix) of the Prevention of Corruption Act, 1988 as he was serving as the Secretary of the Avinashi Co-operative Housing Society Limited, Avinashi. As rightly pointed out by the learned counsel appearing for the petitioner, the trial court has gone out of track and has passed an order that the petitioner is not entitled to discharge as prayed for without determining the point in issue raised by the petitioner herein. The petitioner had not challenged the sanction accorded in this case for prosecution against the petitioner. The only challenge made by the petitioner is that as per section 17(c) of the Prevention of Corruption Act, 1988 only the District Superintendent of Police or a police officer of equivalent rank alone is empowered to investigate the case.
The first proviso found under section 17(c) of the Prevention of Corruption Act, 1988 would read that, if a police officer not below the rank of Inspector of Police is authorised by the State Government to investigate the case arisen under the Prevention of Corruption Act, 1988, he may also investigate any such offence and can also effect arrest without any warrant from the competent Judicial Magistrate concerned.
8. The question is whether the Government of Tamil Nadu has conferred any power on the Inspector of Police to investigate the cases arisen under the Prevention of Corruption Act, 1988. Let me straight away refer to G.O.Ms.No.269!Personal and Administrative Reforms (Personal N Department)! dated 04.06.1990 which empowers the Inspector of Police of the Directorate of Vigilance and Anti-Corruption, Madras under the aforesaid proviso to section 17 of the said Act to exercise the powers of investigation and arrest without warrant. But as far as the officers belonging to Groups A and B involved in any of the offence under the Prevention of Corruption Act, 1988 are concerned, the Inspectors of Police of the Directorate of Vigilance and Anti-Corruption, Madras so empowered have been deprived of the power of arrest without a warrant.
9. Subsequently, the Government of Tamil Nadu passed G.O.Ms.No. 15, Personal and Administrative Reforms (N) Department, dated 19.02.2003 whereunder taking into consideration the jump in the pay scale of officers belonging to Groups A and B, the ceiling of the Pay structure found in the earlier G.O.Ms.No.269 dated 04.06.1990 was enhanced to Rs.11,100/-.

MADRAS HIGH COURT
Crl.R.C.No. 1099 of 2006
S. Karunakaran
vs.
The State rep. by the Inspector of Police,Vigilance and Anti Corruption Coimbatore
DATED 29.07.2009
CORAM :
THE HONOURABLE MR.JUSTICE.M.JEYAPAUL
Criminal Revision Case filed under section 397 & 401 of Cr.P.C. against the order made in Spl. CMP No.525 of 05 in Spl. CC No.4 of 05 dated 6.4.06 on the file of the Spl. Judge cum Chief Judicial Magistrate, Coimbatore, Coimbatore District. For petitioner : M/s.R.Saseetharan
For respondent : Mr.N.Kumanan, Govt. Advocate. ORDER
The petitioner who was serving as the Secretary of the Avinashi Co-operative Housing Society Limited, Avinashi was charged with offences punishable under section 7 and 13(2) r/w. 13( 1)(d) of the Prevention of Corruption Act, 1988.
2. Specifically referring to the embargo found under section 17(c) of the Prevention of Corruption Act, 1988, the petitioner who stood charged as stated above moved a petition invoking the provision under section 239 of Code of Criminal Procedure praying for discharge from the criminal prosecution launched by the respondent in Special CC No.4 of 2005. The trial court having referred to the sanction accorded for prosecution as against the petitioner herein without actually adverting to the ambit of section 17(c) of the Prevention of Corruption Act, 1988 which was the main crux of the issue dismissed the petition filed by the petitioner seeking discharge.
3. As already pointed out by this court, the petitioner was serving as the Secretary of the Avinashi Co-operative Housing Society Limited, Avinashi. No doubt he comes under the definition of public servant as per section 2(c)(ix) of the Prevention of Corruption Act, 1988 in as much as he was serving as a Secretary of the Avinashi Co-operative Housing Society Limited, Avinashi.
4. The learned counsel appearing for the petitioner would vehemently submit that the petitioner does not fall under the category of the officer belonging to Group A or Group B of the service of the Government of Tamilnadu. Therefore the G.O.’s referred to by the respondent police, as though the Inspector of Police has been conferred with the power to investigate and arrest without warrant for the offence punishable under the Prevention of Corruption Act, 1988 would not apply to the petitioner. He would also submit that the Inspector of police who has investigated the case in this matter has not been empowered either to investigate or to arrest without warrant. The petitioner has been serving as the Secretary of the Co-operative Society and was not in the services of the Government. Therefore, he would submit that the whole investigation embarked upon by the respondent police is tainted with illegality and as a result of which discharge as prayed for is warranted.
5. The learned Government Advocate (Criminal side) would submit referring to three Government Orders passed by the Government of Tamil Nadu that the Inspector of Police has been conferred with the power to investigate and arrest without warrant any of the public servants as contemplated under the definition part of the Prevention of Corruption Act, 1988. It is his submission that the petitioner has set up a very technical stand on the premises, that no power was conferred on the Inspector of Police either to investigate the case or to arrest an accused public servant under the Prevention of Corruption Act, 1988. Therefore, he would submit that the plea for discharge is not at all tenable.
6. There is no dispute to the fact that the petitioner is a public servant as defined under section 2(c)(ix) of the Prevention of Corruption Act, 1988 as he was serving as the Secretary of the Avinashi Co-operative Housing Society Limited, Avinashi. As rightly pointed out by the learned counsel appearing for the petitioner, the trial court has gone out of track and has passed an order that the petitioner is not entitled to discharge as prayed for without determining the point in issue raised by the petitioner herein. The petitioner had not challenged the sanction accorded in this case for prosecution against the petitioner. The only challenge made by the petitioner is that as per section 17(c) of the Prevention of Corruption Act, 1988 only the District Superintendent of Police or a police officer of equivalent rank alone is empowered to investigate the case.
7. The first proviso found under section 17(c) of the Prevention of Corruption Act, 1988 would read that, if a police officer not below the rank of Inspector of Police is authorised by the State Government to investigate the case arisen under the Prevention of Corruption Act, 1988, he may also investigate any such offence and can also effect arrest without any warrant from the competent Judicial Magistrate concerned.
8. The question is whether the Government of Tamil Nadu has conferred any power on the Inspector of Police to investigate the cases arisen under the Prevention of Corruption Act, 1988. Let me straight away refer to G.O.Ms.No.269!Personal and Administrative Reforms (Personal N Department)! dated 04.06.1990 which empowers the Inspector of Police of the Directorate of Vigilance and Anti-Corruption, Madras under the aforesaid proviso to section 17 of the said Act to exercise the powers of investigation and arrest without warrant. But as far as the officers belonging to Groups A and B involved in any of the offence under the Prevention of Corruption Act, 1988 are concerned, the Inspectors of Police of the Directorate of Vigilance and Anti-Corruption, Madras so empowered have been deprived of the power of arrest without a warrant.
9. Subsequently, the Government of Tamil Nadu passed G.O.Ms.No. 15, Personal and Administrative Reforms (N) Department, dated 19.02.2003 whereunder taking into consideration the jump in the pay scale of officers belonging to Groups A and B, the ceiling of the Pay structure found in the earlier G.O.Ms.No.269 dated 04.06.1990 was enhanced to Rs.11,100/-.
10. The cumulative reading of these two Government Orders in G.O.Ms. No.269 dated 04.06.1990 and G.O.Ms.No. 15 dated 19.02.2003 would read that the inspectors of police of the Directorate of Vigilance and Anti-Corruption, Madras has been authorised by the Government of Tamil Nadu invoking the powers contemplated under the proviso to section 17 of the Prevention of Corruption Act, 1988 to exercise the powers of investigation and arrest in connection with any case for that matter arisen under the Prevention of Corruption Act, 1988 but only in a case where the arrest of officers belonging to Groups A and B, formerly in the pay scale of Rs.3,500/- and now in the pay scale of Rs.11,100/-, shall not be arrested without warrant of arrest issued by the competent Judicial Magistrate. In other words, it is only the District Superintendent of Police who has been empowered under section 17(c) of the said Act can effect arrest without warrant those officers belonging to Group A and B.
11. As general power of investigation under arrest with the specific exclusion of the power of arrest of certain category of employee of Government without warrant has been contemplated in those two G.O’s., the petitioner being a public servant cannot contend that the aforesaid G.O’s would not apply to the public servants who are not Government servants. It is held emphatically that those two G.O’s. do apply to the public servants who are not Government servants also but the Government servants working in Group A and B in the maximum pay scale of above Rs. 11,100/- shall claim exemption from the purview of the power of arrest by the inspector of police attached to the Directorate of Vigilance and Anti-Corruption as referred in those two G.O’s.
12. The court finds that the respondent police in this case has got ample power as per the authorisation made by the Government of Tamil Nadu in G.O.Ms. No.269 dated 04.06.1990 and G.O.Ms.No.15 dated 19.02.2003 not only to investigate the case under the Prevention of Corruption Act, 1988 as against the accused petitioner but also to arrest him without warrant.
13. In view of the above facts and circumstances, the plea for discharge on the aforesaid premises is found not sustainable and therefore the said plea stands dismissed. Though the trial court has not adverted to the actual point in issue arisen in this matter, the ultimate decision to reject the plea for discharge stands confirmed and the revision is dismissed. The observations made herein for the purpose of disposal of the plea for discharge shall not have bearing on the merit of the case.