The court clarified that employees of the Devaswom Board are public servants under IPC, and the investigating agency must base its decisions on evidence, not influenced by prior court observations.

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 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 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 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