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TMI Blog2019 (8) TMI 1658X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Special Court (Vigilance), Kozhikode, and the petitioner in Crl.M.C. No. 8548/2016 is the 8th accused therein. The petitioner in W.P.(C) No. 3612/2017 is the 2nd accused in C.C. No. 880/2015 of the Judicial First Class Magistrate Court-III, Punalur, and the petitioner in Crl.M.C. No. 5155/2013 is the 3rd accused therein. All the petitioners, including the writ petitioner seek orders quashing the prosecution as against them on factual as well as legal grounds. The common legal grounds involved in the four matters are:- (a) Whether the cognizance is barred under sub-section (4) of Section 95 of the Co-operative Societies Act, and (b) Whether there is total immunity from prosecution under Section 106 of the Co-operative Societies Act. Though factual grounds are also alleged to obtain relief quashing the whole prosecution, I find, on a perusal of the materials, that, on factual aspects, there are prima facie materials to proceed, and I do not find any reason or ground to allow the request. Before going to the legal aspects, let me see the factual allegations in the two cases. 2. In C.C. 16/2008 of the Special Court (Vigilance), Kozhikode, the trial court has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed criminal misappropriation of a huge amount of Rs. 25,31,281/-, without accounting the sale of medicines, and they also caused another wrongful loss of Rs. 9,17,683/- to the Co-operative Bank without returning the huge quantity of medicines before the date of expiry. The offences alleged therein are under Section 409 IPC and also under Section 94(8) of the Kerala Co-operative Societies Act (for short, 'the Act'). What is punishable under sub-section (8) of Section 94 of the Act is criminal misappropriation, or unauthorised or illegal keeping of money of any Co-operative Society by any officer, employee or agent or servant of a Co-operative Society. Section 409 IPC deals with criminal breach of trust generally, and sub-section (8) of Section 94 of the Act deals with specific instances of misappropriation by any officer or employee or agent or servant of a Co-operative Society. 4. In both the cases, the prosecution has produced materials substantiating the allegations under the IPC and also under the PC Act. In C.C. 880/2015 of the Judicial First Class Magistrate Court-III, Punalur, the prosecution has produced all the available records to prove non-accounting of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 8th accused on factual aspects is that, he was only a member of the Board of Directors, and that he had no direct dealings or complicity or involvement in the transactions of the Co-operative Bank made by the President and the Secretary. The case of the 4th accused is that he had no vicious role or involvement in the transactions by which, he was appointed and authorised to procure copra for the Co-operative Bank, that he had not done anything illegal or unlawful in the matter of procuring copra, and that he had not done anything dishonestly, or derived any illegal benefit. In this case also, the prosecution has furnished prima facie materials to substantiate the allegations in the final report. Once the stage of framing charge is over, the High Court must be slow to act under Section 482 Cr.P.C., when the Court is called upon to quash the prosecution. On a perusal of the proceedings, I find that the two petitioners seek orders mainly on legal grounds, and that the factual grounds projected by them for getting orders are not very serious. Here also, I find some documents and registers to substantiate the allegations of the prosecution prima facie, and to form a judicious opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l with commission of offences by members of Cooperative Societies, or even non-members. In C.C. No. 880/2015, the offence alleged by the prosecution under the Act is under Section 94(8). Sub-section (8) of Section 94 of the Act provides that, if any officer or employee or agent or servant of a society, or any other person dealing with the society, misappropriates or unauthorisedly or illegally keeps any money belonging to that society, he shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to twice the amount of money involved in the offence. The final report in this case shows that what is practically alleged against the accused is criminal misappropriation of the funds of a cooperative society, and this comes specifically under sub-section (8) of Section 94 of the Act, though such allegations may come under Section 409 IPC also. Anyway, sub-section (4) of Section 95 of the Act provides that no prosecution shall be instituted under sub-sections (2), (3), (4), (5), (6) and (7) of Section 94 of the Act without the previous sanction of the Registrar. The Registrar meant therein is the Registrar of Co-operative Societies. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act or rules or bye-laws." The immunity from prosecution, or from any sort of legal action, provided under Section 106 of the Act is only in respect of anything done in good faith, or purporting to be done in good faith, under the provisions of the Act or the Rules or the bye-laws made thereunder. Such a protection or immunity cannot be used as a shield when a prosecution is initiated under the PC Act or any other law. In C.C. No. 16/2008 of the Special Court, what is alleged by the VACB is that by abusing their official position as public servants, the accused committed criminal misappropriation amounting to breach of trust, and thereby, made unlawful financial gain for themselves and also for the 4th accused. Abusing official position as a public servant, and thereby making unlawful gain or pecuniary advantage for the public servant or for somebody else, is an act of criminal misconduct punishable under the PC Act. It cannot at all be said to be an act done or purported to be done in good faith under the provisions of the Act, or in discharge of the functions under the provisions of the Act or the Rules, or the bye-laws thereunder. The protection or immunity granted under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there, and when the PC act exclusively deals with corruption and misconduct on the part of members of public service there cannot be any other conflicting provision in a State law in view of Article 251 of the Constitution. No State law can give any protection or immunity from prosecution under the PC Act, when the PC Act is the general Central law dealing with the subject of eradication of corruption from the whole public service, including State and Central service, and any provision of any State law or local law in conflict with the provisions of the PC Act, cannot have any validity, or overriding effect over the Central law in view of Article 251 of the Constitution. Thus, I find that prosecutions under the provisions of the PC Act must be governed by the PC Act itself, and such a prosecution cannot be, in any manner, controlled by the provisions of any special or local law by way of protection from prosecution, or immunity from prosecution. A public servant facing proceedings or prosecution under the PC Act cannot avail any other protection under any special or local law than what is provided to him under the PC Act. Thus, I find that the immunity granted under Section 106 of ..... 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