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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 ..... prosecution under any other law, the members or office bearers of the Co-operative Society cannot avail the protection under sub-section (4) of Section 95 of the Act. Of course, in C.C. No. 16/2008 of the Special Court, what the petitioners seek is total immunity from prosecution under Section 106 of the Act. The protection given to the members or office bearers of any Co-operative Society under sub-section (4) of Section 95 of the Act cannot be extended to other prosecutions than those under sub-section (2), (3), (4), (5), (6) or (7) of Section 94 of the Act. Thus, I find that the contention raised by the petitioners, or the legal objection raised by them, that the prosecution against them in C.C. 880/2015 is barred under sub-section (4) of Section 95 of the Act, is quite unsustainable. Total immunity from prosecution - HELD THAT:- 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejith and Abdul Jaleel Onath, Advs. For the Respondent : A. Rajesh, Spl. Public Prosecutor, K.V. Sohan, State Attorney, V. Philip Mathews, Gibi C. George, Jeph Joseph, Radhakrishnan C., K. Jayesh Mohankumar, Pushparajan Kodoth and Vandana Menon, Advs. ORDER P. Ubaid, J. 1. The petitioners in these proceedings are the different accused in two prosecutions; one pending before the Special Court (Vigilance), Kozhikode, and the other pending before the Judicial First Class Magistrate Court-III, Punalur. Common questions of law are involved in all these petitions, and so, all these petitions were heard together, and are being disposed of by this common judgment. The petitioner in Crl.M.C. No. 9110/2016 is the 4th accused in C.C. No. 16/2008 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 120B IPC as the person, who had active participation and complicity with the President and the other office bearers of the Co-operative Bank. 3. The prosecution in C.C. No. 880/2015 of the Judicial First Class Magistrate Court - III, Punalur relates to some mal practices and misappropriation of funds of the Pathanapuram Service Co-operative Bank. The 1st accused therein was the Secretary of the said Co-operative Bank, the 2nd accused was the Pharmacist-cum-Manager of a Neethi Medical Store under the Cooperative Bank, and the 3rd accused was the President of the said Co-operative Bank. The prosecution case in the final report submitted by the Additional Sub Inspector of the Pathanapuram Police Station is that, during the relevant period, the accused jointly committed criminal misappropriation of a huge amount of ₹ 25,31,281/-, without accounting the sale of medicines, and they also caused another wrongful loss of ₹ 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, &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the main allegation is one of breach of trust, and criminal misappropriation from the funds of a Cooperative Bank by the office bearers of the said Bank, including the President, the Secretary, the clerical staff, and also the members of the Board of Directors by abusing their official position as public servants. On the basis of the materials furnished by the prosecution along with the final report, the trial court has already framed charge against the accused. What is under challenge in Crl.M.C. 8548/2016 or in Crl.M.C. 9110/2016 is not the court charge as such, and the attack therein is not that there is anything illegal or irregular in the charge framed by the trial court. The two accused seek orders quashing the whole prosecution under Section 482 Cr.P.C. The case of 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-operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med by the accused is the immunity from prosecution under Section 106 of the Act, and the other is, the bar of cognizance provided under sub-section (4) of Section 95 of the Act. Before discussing the issue as regards the immunity under Section 106 of the Act, let me see what is the protection under sub-section (4) of Section 95 of the Act. Section 94 of the Act contains a general prohibition with penal consequences, that no person other than a society shall carry on any trade or business under a title or banner of which the word co-operative will form a part in any Indian language, without the sanction of the Government. Sub-section (2) provides punishment for violation of the general provisions in sub-section (1) by any person other than a society. The other sub-sections deal 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 mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against them in C.C. 880/2015 is barred under sub-section (4) of Section 95 of the Act, is quite unsustainable. 7. Now let me see whether Section 106 of the Act gives total immunity from prosecution. In C.C. No. 16/2008 of the Special Court, the prosecution has obtained the required sanction under Section 19 of the PC Act. The learned senior counsel argued on this aspect that the said prosecution sanction obtained under Section 19 of the PC Act will have no value at all, when there is total immunity from prosecution, under Section 106 of the Act. Section 106 of the Act reads as follows: No suit, prosecution or legal proceedings shall lie against any officer or the Government for anything which is in good faith done or purporting to be done under the provisions of this 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovince of the Centre, and in such cases of conflict between a Central law and the State law, the Central law will prevail, as provided under Article 251 of the Constitution. 8. The PC Act is a Central law exclusively dealing with instances of corruption and criminal misconduct on the part of public servants. This law is applicable to every public servant irrespective of whether he/she is a member of the State service or the Central service. Section 19 of the PC Act gives a protection to public servants, that cognizance under some specified provisions of the PC Act shall not be taken against any public servant without the previous sanction obtained from the Government concerned, or from the authority competent to remove the public servant from service. When such a protection is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is one of criminal misconduct amounting to act of corruption under the PC Act, and in the other, the main allegation is criminal breach of trust punishable under Section 409 IPC, and also under Section 94(8) of the Act. Such acts of offence amounting to criminal misappropriation or breach of trust, or act of corruption or misconduct, will never get the protection or immunity under Section 106 of the Act. In short, what is protected by way of immunity under Section 106 of the Act is not criminal act or criminal offence made punishable otherwise by any Central or State law. So, I find that the immunity claimed by the petitioners under Section 106 of the Act is also quite unacceptable and unsustainable. 10. On factual as well as legal grounds urged by the petitioners to claim orders quashing the prosecution under Section 482 Cr.P.C. and also under Article 226 of the Constitution of India, I have come to a finding that prima facie materials are there on facts to proceed against the petitioners, and that the legal objections raised by them are quite unsustainable. I find that the prosecution against the petitioners in C.C. No. 16/2008 of the Special Court (Vigilance), Kozhikode, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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