Members of a Co-operative Society receiving government aid are considered public servants under the Prevention of Corruption Act, necessitating sanction for prosecution.

JUDGMENT :

The common petitioner is the complainant in Crl.M.P. No.213 of 2019 which he has filed before the Court of the Enquiry commissioner and Special Judge, Kottayam.

2. The allegation in the complaint is that the accused, being public servants as president, members of the Managing Committee and staffers of the Thankey Service Co-Operative Bank Ltd. No.1003, Kadakkarappally, Cherthala, by abusing their official powers misappropriated funds of the bank which was provided by the National Bank for Agriculture and Rural Development (NABARD) and the State Government for the purpose of extending various benefits to the loanees, particularly those who availed agriculture loans. The offences alleged in the complaint are punishable under Sections 120B, 409, 465 and 471 of the Indian Penal Code, 1860 and Section 13(2) of the Prevention of Corruption Act, 1988.

3. The petitioner filed W.P.(C) No.20552 of 2021 in order to ventilate his grievance that as per Ext.P14, the 3rd respondent refused to accord sanction to prosecute the accused. He seeks the following reliefs in the writ petition:

(i) issue a writ of certiorari or such other writ, direction or order quashing Exhibit P14 as arbitrary, illegal and unjust;

(ii) issue a writ of mandamus or such other writ, direction or order directing the 3rd respondent to grant sanction to the petitioner to prosecute the offenders, within a time frame to be fixed by this Honourable Court.

4. In O.P.(Crl.) No.98 of 2021, the grievance espoused by the petitioner is that the Special Judge did not oblige his request to initiate prosecution proceedings against the accused without insisting on a sanction as contemplated in Section 19(1) of the PC Act, 1988. He therefore seeks an order directing the Special Court to proceed with the complaint, a copy of which was produced as Ext. P4, without insisting the petitioner to obtain sanction for prosecution.

5. The learned counsel, who filed this writ petition and original petition on behalf of the petitioner relinquished vakalath. The petitioner appeared in person and expressed his desire to prosecute the matter on his own. This Court, considering the seriousness of the matter involved, as per the order dated 15.02.2023 appointed Adv. K.K.Dheerendrakrishnan as Amicus Curiae.

6. Heard the petitioner in person, the learned Amicus Curiae, the learned Special Public Prosecutor (Vigilance), learned counsel for Respondent No. 4 and learned counsel for Additional Respondents No. 5 to 9 in W.P.(C) No.20552 of 2021, and the learned counsel for Respondents No. 1 to 6 in O.P.(Crl). No.98 of 2021.

7. Parties and documents are referred to hereunder as arrayed and marked in W.P.(C) No.20552 of 2021.

8. This Court on 15.02.2023, raised two questions in order to adjudicate these matters, which are (1) Whether the President and Board of Directors of the Co-operative Society are public servants and (2) Whether sanction is necessary to prosecute them?

9. The learned Special Judge took the view that sanction under Section 19(1) of the P.C. Act was required to proceed further on the complaint. It is seen that the petitioner submitted Ext.P12 before the 2nd respondent-Registrar of Co-operative Societies requesting to initiate action against the accused persons who are respondents No.5 to 9 in respect of the alleged misdeeds. It is mentioned in Ext.P12 that the petitioner had earlier approached the Joint Registrar of Co-operative Societies, Alappuzha-the 3rd respondent, seeking sanction for prosecuting the accused. That request was not soon decided, but eventually it was rejected as per Ext. P14 dated 06.09.2021. In Ext.P14 order, the Joint Registrar took the view that the members of the managing committee and members of the staff of a Co-operative Society/Bank would not come within the definition of public servant and that the Joint Registrar was not competent to accord sanction for prosecution under Section 19(1) of the PC Act. In the light of Ext.14, the petitioner was left with no other