Kerala High Court
Sreenivasan Namboothiri vs The State Of Kerala on 10 February, 2025
2025:KER:9927
Crl.M.C.No.5772/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 10TH DAY OF FEBRUARY 2025 / 21ST MAGHA, 1946
CRL.MC NO. 5772 OF 2020
AGAINST THE ORDER DATED IN CRMP NO.455 OF 2020 OF DISTRICT
COURT & SESSIONS COURT,KOTTAYAM
PETITIONER/DEFACTO COMPLAINANT:
SREENIVASAN NAMBOOTHIRI,
AGED 58 YEARS,
S/O. NARAYANAN ELAYATH, MELANNOOR ILLOM,
CHIRAKKADAVU, KANJIRAPPALLY,
KOTTAYAM - 686 520.
BY ADVS.S.NIDHEESH
SRI.C.S.MANILAL
RESPONDENTS/STATE AND ACCUSED NO.1 AND 2:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2 D. SABU
S/O. DAS, UTHIRAMKAVIL HOUSE, ANAKKALLU P. O.,
KANJIRAPPALLY, KOTTAYAM - 680306.
3 PRAKASH
S/O. RAJAPPAN PILLAI, PUTHENPARAMBIL HOUSE,
ANAKKALLU P. O., KANJIRAPPALLY, KOTTAYAM - 680306.
BY ADVS.ADVOCATE GENERAL OFFICE KERALA
SRI.GEO PAUL
SRI.C.R.PRAMOD
SRI.S.ASHOK KUMAR.
SRI.RADHIKA RAJASEKHARAN P.
SHRI.JACOB GEORGE PALLATH
SHRI.NAVEEN T.U.
SRI. SANGEETHARAJ N.R., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
05.02.2025, THE COURT ON 10.02.2025 PASSED THE FOLLOWING:
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Crl.M.C.No.5772/2020
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ORDER
Aggrieved by the observations of the Sessions Court, Kottayam
in an anticipatory bail order that an employee of the Devaswom Board
is not a public servant coming under the purview of Sections 332 and
353 I.P.C, the de facto complainant in Crime No.1211/2020 of
Kanjirappally Police Station, who works as permanent Shanti (Priest)
in a temple under the Travancore Devaswom Board, has filed this
petition under Section 482 Cr.P.C to set aside the above conclusion of
the Sessions Court and to expunge the findings in the above regard in
the relevant paragraphs of the bail order. According to the petitioner,
the investigating agency, getting misguided by the above findings of
the learned Sessions Judge, dropped Sections 332 and 353 I.P.C
which were initially slapped against respondents 2 and 3 herein who
allegedly physically assaulted the petitioner inside the temple where
he works, and prevented him from the discharge of his official duty.
2. The aforesaid observation was made by the learned
Sessions Judge, Kottayam in the order dated 08.12.2020 in Crl.M.P.
(Temporary) No.455/2020 in Crime No.1211/2020 of Kanjirappally
Police Station while granting pre-arrest bail to respondents 2 and 3
herein. The accusation against respondents 2 and 3 was that on
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27.10.2020 at about 7:30 a.m, they physically assaulted the petitioner
herein near the Nalambalam of Madura Meenakshi Temple,
Kovilkadavu, Kanjirappally while he was engaged in his official duty as
Melshanti of that temple, with the intention to deter him from the
discharge of his official duty. After elaborately dealing with Section 21
of the Indian Penal Code, the learned Sessions Judge embarked upon
an analysis as to whether an employee of Devaswom Board could be
considered as a person 'in the service or pay of a local authority, a
Corporation established by or under a Central, Provincial or State Act
or a Government Company' as contained in Clause (b) of the twelfth
description of Section 21 of the Indian Penal Code. By adverting to
the law laid down by this Court in C.R.Chandrasekhara Menon v.
State [1958 KLT 1190], Abdul Rehman v. State of Kerala
[2020 (3) KLT 628], T.V.Krishna Das v. Guruvayoor
Devaswom Managing Committee and Others [W.P.(C)
No.29018/2010 (DB)] and Accountant General of Kerala v.
N.Bhaskaran Nair [W.A.No.621/1994], the learned Sessions
Judge held that an employee of the Devaswom Board is not a
Government Servant and that he is not doing any public duty. On the
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basis of the above finding, pre-arrest bail was granted to respondents
2 and 3 herein.
3. Heard the learned counsel for the petitioner, the learned
Public Prosecutor representing the first respondent and the learned
counsel for respondents 2 and 3.
4. The learned counsel for the petitioner submitted that the
observation of the learned Sessions Judge that an employee of
Devaswom Board will not come under the definition of public servant
under the relevant provisions of the Indian Penal Code had resulted in
gross miscarriage of justice since the investigating agency had
decided to drop Section 353 I.P.C and Section 332 I.P.C which were
initially slapped against respondents 2 and 3 who had mounted
physical assault upon the petitioner inside the temple premises where
he works and prevented him from the discharge of his official duty as
a Melshanti. According to the learned counsel for the petitioner, the
above finding of the learned Sessions Judge is per incuriam in view of
the provisions contained in Section 59 of the Travancore-Cochin Hindu
Religious Institutions Act, 1950 and Section 2 of the Kerala Criminal
Law Amendment Act, 1962 (Act 27 of 1962). Adverting to the
contents of Section 59 of the Travancore-Cochin Hindu Religious
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Institutions Act, 1950, and Sections 4 and 5 of the Part B States
(Laws) Act, 1951, the learned counsel for the petitioner argued that
the reference "Travancore Penal Code" in the Travancore-Cochin Hindu
Religious Institutions Act, 1950 has to be taken as Indian Penal Code,
and that the Legislature, by the aforesaid provisions incorporated in
the relevant law, has made it abundantly clear that the employees of
Devaswom Board would come under the definition of public servants
within the meaning of Section 21 of the Indian Penal Code. The
learned counsel for the petitioner further relied on Section 2 of the
Kerala Criminal Law Amendment Act, 1962 (Act 27 of 1962) to
contend that every officer in the service or pay of the Travancore
Devaswom Board or Cochin Devaswom Board would come under the
definition of public servant. Thus, it is submitted that it is highly
necessary in the interests of justice to expunge the above
observations of the learned Sessions Judge from the impugned order.
5. The learned Public Prosecutor representing the first
respondent, and the learned counsel for respondents 2 and 3
submitted that the observations of the learned Sessions Judge in that
anticipatory bail order cannot have any binding effect over any
investigating agency and hence the prayer in this petition for setting
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aside the above conclusions of the Sessions Judge and to expunge the
observations from the relevant paragraphs is totally unfounded. It is
further submitted by the learned Public Prosecutor that the decision to
drop Section 332 I.P.C and Section 353 I.P.C from the final report has
been taken by the Investigating Officer on the basis of the findings
during investigation, and not due to the observations of the learned
Sessions Judge in the anticipatory bail order.
6. As regards the argument advanced by the learned counsel
for the petitioner that Section 2 of the Kerala Criminal Law
Amendment Act, 1962 had brought every officer in the service or pay
of the Travancore Devaswom Board or the Cochin Devaswom Board
within the fold of the definition of 'public servant', it is argued by the
learned Public Prosecutor that the Kerala Criminal Law Amendment
Act, 1962 has lost its significance with the enactment of the
Prevention of Corruption Act, 1988 (Act 49 of 1988) with effect from
09.09.1988. It is further argued by the learned Public Prosecutor that
the Kerala Criminal Law Amendment Act, 1962 was enacted to amend
the Indian Penal Code and the Prevention of Corruption Act, 1947 in
order to incorporate an explanation in Section 161 of the Indian Penal
Code so as to include the eight categories of officers mentioned
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thereunder within the definition of public servant. Adverting to the
repeal of Section 161 to 165A of the Indian Penal Code by the
Prevention of Corruption Act, 1988, it is pointed out by the learned
Public Prosecutor that the petitioner cannot place reliance upon the
Kerala Criminal Law Amendment Act, 1962 any more. As regards the
applicability of Section 59 of the Travancore-Cochin Hindu Religious
Institutions Act, 1950, the learned Public Prosecutor argued that the
said provision cannot supersede the definition of public servant
contained in Section 21 of the Indian Penal Code.
7. The fact that the decision of the investigating agency to
drop Section 332 I.P.C and Section 353 I.P.C from the final report
proposed to be filed in this case, was influenced by the observations
of the learned Sessions Judge in the pre-arrest bail order, is writ large
from paragraph No.5 of the affidavit dated 22.01.2024 filed by the
Investigating Officer. Therefore, it is highly necessary to clarify the
legal point on this aspect so that the investigating agency would be
able to get corrected if the decision to drop Section 332 I.P.C and
Section 353 I.P.C from the final report was taken solely on the basis of
the observations in Annexure B bail order of the learned Sessions
Judge.
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8. Section 59 of the Travancore-Cochin Hindu Religious
Institutions Act, 1950 reads as follows:
"The members of the Board and officers and servants of the
Devaswom Department, the members of the Sree
Padmanabhaswamy Temple Committee and the Executive
Officer and other officers and servants of the said temple shall
be deemed to be public servants within the meaning of
Section 15 of the Travancore Penal Code."
Going by the provisions contained in Sections 4 and 5 of the
Part B States (Laws) Act, 1951 (Act No.3 of 1951 dated 22.02.1951),
the term "Section 15 of the Travancore Penal Code" contained in
Section 59 of the Travancore-Cochin Hindu Religious Institutions Act,
1950 has to be considered as Section 21 of the Indian Penal Code
which corresponds to Section 2(28) of the Bharatiya Nyaya Sanhita,
2023. Thus, Section 59 of the Travancore-Cochin Hindu Religious
Institutions Act, 1950 leaves no room for any doubt on the proposition
of law that the servants of Devaswom Department would come under
the definition of public servant as envisaged under the relevant
provisions of the Indian Penal Code. The argument of the learned
Public Prosecutor that the definition of public servant under Section 21
I.P.C would supersede Section 59 of the Travancore-Cochin Hindu
Religious Institutions Act, 1950 cannot be accepted since it is clear
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from the wordings in Section 59 of the Travancore-Cochin Hindu
Religious Institutions Act, 1950 as well as the provisions contained in
Sections 4 and 5 of the Part B States (Laws) Act, 1951, which have
the effect of importing "Indian Penal Code" wherever "Travancore
Penal Code" is referred in the Travancore-Cochin Hindu Religious
Institutions Act, 1950, that the persons under the service of
Travancore Devaswom Board and Cochin Devaswom Board are
brought under the definition of public servant envisaged under Section
21 I.P.C.
9. As rightly pointed out by the learned counsel for the
respondents 2 and 3 and the learned Public Prosecutor, the
observations of the learned Sessions Judge in Annexure B anticipatory
bail order has to be construed as one made solely for the purpose of
deciding the limited question as to whether pre-arrest bail could be
granted to the respondents 2 and 3 herein; and it has no applicability
or binding effect in any other proceedings related to investigation,
enquiry or trial. In that view of the matter, the prayer in this petition
to set aside the conclusions of the learned Sessions Judge in the
above regard, and to expunge the relevant paragraphs from the bail
order, is not having any significance in the normal course. However,
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the statement made by the Investigating Officer in paragraph No.5 of
the affidavit dated 22.01.2024 which would give the indication that
Section 332 and Section 353 I.P.C have been dropped in the light of
the observations in the bail order of the Sessions Court, makes it
imperative to have a clarification on the legal aspects on this point.
In the result, the petition is disposed of as follows:
i) It is made clear that the observations of the Sessions
Court, Kottayam in Annexure B bail order that the employee of a
Devaswom Board will not come under the definition of public servant
under the relevant provisions of the Indian Penal Code need not be
followed by the investigating agency while deciding the offences to be
incorporated in the final report in connection with the criminal acts
attributed against the respondents 2 and 3.
(ii) The investigating agency shall file the final report on the
basis of the findings on the evidence gathered during investigation,
untrammeled by the aforesaid observations of the Sessions Court,
Kottayam in Annexure B bail order.
(Sd/-)
G. GIRISH, JUDGE
jsr
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APPENDIX
PETITIONER ANNEXURES
ANNEXURE A TRUE COPY OF THE F.I.R.NO.1211/2020 DATED
28.10.2020 REGISTERED BY KANJIRAPPILLY POLICE
STATION.
ANNEXURE B TRUE COPY OF THE ORDER DATED 08.12.2020 IN
CRL.M.P.(TEMPORARY) NO.455/2020 PASSED BY
SESSIONS COURT, KOTTAYAM.
ANNEXURE C TRUE COPY OF THE AMENDMENT ACT 27/962.
ANNEXURE D TRUE COPY OF THE JUDGMENT OF THE HON'BLE
OF 1977 DATED 15.09.78.
