As per Section 87 of the Rajasthan Municipalities Act as also Section 2(c) of the Prevention of Corruption Act, 1988 -a Municipal Councillor and Board member is a public servant and as such the petitioner can not challenge his prosecution for an offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act =
Councillors and members of the Board are positions
which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above,
it is evident that appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988.
Now we revert to the authorities relied on by Mr. Adhiyaru i.e.
R.S.Nayak (supra), Ramesh Balkrishna Kulkarni (supra) and T.Thulasingam
(supra).
In all these decisions, this Court was considering the scope of
Section 21 of the Indian Penal Code which defines ‘public servant’.
It was
necessary to do so as Section 2 of the Prevention of Corruption Act, 1947
defined ‘public servant’ to mean as defined under Section 21 of the Indian
Penal Code.
A member of the Board, or for that matter, a Councillor per
se, may not come within the definition of the public servant as defined
under Section 21 of the Indian Penal Code but this does not mean that they
cannot be brought in the category of public servant by any other enactment.
In the present case, the Municipal Councillor or member of the Board does
not come within the definition of public servant as defined under Section
21 of the Indian Penal Code, but in view of the legal fiction created by
Section 87 of the Rajasthan Municipalities Act, they come within its
definition.
It is an admitted position that in none of the aforesaid judgments
relied on by the appellant, this Court had considered any provision similar
to Section 87 of the Rajasthan Municipalities Act and, therefore, those
judgments cannot be read to mean that a Municipal Councillor in no
circumstance can be deemed to be a public servant.
The ratio of
those cases is that Municipal Councillors are not public servants under Section 21 of the Indian Penal Code.
But Section 87 of the Rajasthan Municipalities Act, as discussed above, make Councillor and member of Board a public servant within the meaning of Section 21 of the Indian Penal Code.
Hence, all the judgments of this Court referred to above are clearly distinguishable.
Not only this, in the case in hand, we are concerned with the meaning
of the expression ‘public servant’ as defined under Section 2(c) of the
Prevention of Corruption Act, 1988 and, hence, decisions rendered by this
Court while interpreting Section 21 of the Indian Penal Code, which in
substance and content are substantially different than Section 2(c)
aforesaid, shall have no bearing at all for decision in the present case.
As regards the decision of the learned Single Judge of the Rajasthan High
Court in the case of Sumitra Kanthiya (supra), it has also not considered
Section 87 of the Rajasthan Municipalities Act.
In fact, to come to the
conclusion that the Municipal Councillor would not come within the
definition of public servant, it has mainly placed reliance on a judgment
of this Court in the case of Ramesh Balkrishna Kulkarni (supra).
We have
considered this judgment in little detail in the preceding paragraphs of
the judgment and found the same to be distinguishable as the said decision
did not consider the statutory provision in the present format.
Further,
the aforesaid case does not lay down an absolute proposition of law that
Municipal Councillor in no circumstances can be treated as a public
servant.
The learned Judge has also not at all adverted to Section 87 of
the Rajasthan Municipalities Act as also Section 2(c) of the Prevention of Corruption Act, 1988 and, hence, the judgment rendered by the Rajasthan High Court in Sumitra Kanthiya (supra) does not lay down the law correctly and is, therefore, overruled.
As the trial is pending since long, we deem it expedient that the
learned Judge in seisin of the trial makes an endeavour to dispose of the
trial expeditiously and in no case later than six months from the date of
receipt of a copy of this order.
In the result, we do not find any merit in the appeal and it is
dismissed accordingly.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1881 OF 2013
(@SPECIAL LEAVE PETITION (CRL) NO. 7511 OF 2013)
MANISH TRIVEDI … APPELLANT
VERSUS
STATE OF RAJASTHAN …RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
The petitioner’s challenge to his prosecution for an offence under
Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act has been turned down by the trial court and
the said order
has been affirmed by the High Court by its order dated 1st of March, 2013
passed in Criminal Miscellaneous Petition No. 1686 of 2009.
It is against
this order that the petitioner has preferred this special leave petition.
Delay condoned.
Leave granted.
Shorn of unnecessary details, facts giving rise to the present appeal
are that the appellant at the relevant time was a Councillor elected to the
Municipal Council, Banswara and a Member of the Municipal Board.
According
to the prosecution, one Prabhu Lal Mochi lodged a report in the Anti-
Corruption Bureau, inter alia, alleging that he had a shoe repair shop near
the gate of Forest Department, Banswara and the employees of the Municipal
Council had seized his cabin in the year 2000 rendering him unemployed.
According to the allegation, he applied for the allotment of a kiosk before
the Municipal Council but did not succeed. On enquiry the informant was
told that it is the appellant who can get the allotment made in his favour
and accordingly he contacted the appellant.
It is alleged that the
appellant demanded a sum of Rs. 50,000/- for getting the allotment done in
his name and ultimately it was agreed that initially the informant would
pay Rs. 5,000/- to the appellant and the rest amount thereafter.
On the
basis of the aforesaid information, according to the prosecution, a trap
was laid and the appellant was caught red-handed and a sum of Rs. 5,000/-
was recovered from him.
After usual investigation, charge-sheet was submitted against the
appellant and he was put on trial.
During the trial evidence of one of the
witnesses was recorded and thereafter, the appellant filed an application
before the trial court for dropping the proceeding, inter alia, contending
that he being a Councillor does not come within the definition of ‘public servant’ and as such, he cannot be put on trial for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
The trial court rejected the said prayer vide its
order dated 13th of October, 2009. The appellant assailed this order
before the High Court in an application filed under Section 482 of the Code
of Criminal Procedure and the High Court by the impugned judgment has
rejected his prayer.
It is against this order that the appellant is before us with the
leave of the court.
We have heard Mr. Yashank Adhiyaru, Senior Counsel for the appellant
while respondent is represented by Mr. Milind Kumar.
Mr. Adhiyaru submits that
a Municipal Councillor is not a public
servant and, therefore, his prosecution for the offence alleged is bad in
law.
According to him, for prosecuting an accused for offence under the
Prevention of Corruption Act, 1988 the accused charged must be a public
servant and the appellant not being a public servant cannot be prosecuted
under the said Act. Further, for a person to have the status of a public
servant he must be appointed by the Government and must be getting pay or
salary from the Government.
Not only this, to be a public servant, such a
person has to discharge his duties in accordance with the rules and
regulations made by the Government. According to him, the appellant was
elected as a Municipal Councillor and he does not owe his appointment to
any governmental authority.
Being a person elected by the people, the
commands and edicts of a Government authority do not apply to him.
In
support of the submission he has placed reliance on a judgment of this
Court in the case of R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183. He has
drawn our attention to the following passage from the said judgment.
“41…….Whatever that may be the conclusion is inescapable that
till 1964 at any rate MLA was not comprehended in the definition
of ‘public servant’ in Section 21. And the Santhanam Committee
did not recommend its inclusion in the definition of ‘public
servant’ in Section 21.
42…….Now if prior to the enactment of Act 40 of 1964 MLA was not
comprehended as a public servant in Section 21, the next
question is: did the amendment make any difference in his
position. The amendment keeps the law virtually unaltered. Last
part of clause (9) was enacted as clause (12)(a). If MLA was not
comprehended in clause (9) before its amendment and dissection,
it would make no difference in the meaning of law if a portion
of clause (9) is re-enacted as clause (12)(a). It must follow as
a necessary corollary that the amendment of clauses (9) and (12)
by Amending Act 40 of 1964 did not bring about any change in the
interpretation of clause (9) and clause (12)(a) after the
amendment of 1964………..
Xxx xxx xxx
……….Therefore, apart from anything else, on historical
evolution of Section 21, adopted as an external aid to
construction,
one can confidently say that MLA was not and is not a ‘public servant’ within the meaning of the expression in any of the clauses of Section 21 IPC.”
Another decision on which the counsel has placed reliance is the
judgment of this Court in the case of Ramesh Balkrishna Kulkarni v. State
of Maharashtra, (1985) 3 SCC 606, and he has drawn our attention to
Paragraph 5 from the said judgment which reads as follows:
“5. In view of this decision, therefore, we need not go to the
other authorities on the subject. Even so, we are of the opinion
that the concept of a “public servant” is quite different from
that of a Municipal Councillor. A “public servant” is an
authority who must be appointed by Government or a semi-
governmental body and should be in the pay or salary of the
same. Secondly, a “public servant” is to discharge his duties in
accordance with the rules and regulations made by the
Government. On the other hand, a Municipal Councillor does not
owe his appointment to any governmental authority. Such a person is elected by the people and functions undeterred by the commands or edicts of a governmental authority.
The mere fact
that an MLA gets allowance by way of honorarium does not convert
his status into that of a “public servant”.
In R.S. Nayak v.
A.R. Antulay, (1984) 2 SCC 183 the learned Judges of the
Constitution Bench have referred to the entire history and
evolution of the concept of a “public servant” as contemplated
by Section 21 of the IPC.”
Yet another decision on which counsel has placed reliance is the
judgment of this Court in the case of State of T.N. v. T. Thulasingam, 1994
Supp (2) SCC 405, and he has drawn our attention to Paragraph 76 from the
said judgment which reads as follows:
“76. The High Court was, however, right in acquitting various
Councillors of the charge under the Prevention of Corruption Act
as they are not public servants, in view of the decision of this
Court in Ramesh Balkrishna Kulkarni v. State of Maharashtra
(1985) 3 SCC 606.
The acquittal of the Councillors (A-75 to A-80
and A-82);
Chairman and Member of the Accounts Committee (A-84
to A-86);
Members of the Works Committee (A-87);
Members of the
Education Committee (A-94 to A-96);
Member of the Town Planning
Committee (A-98) and
Councillors (A-102 and A-104) under the
provisions of the Prevention of Corruption Act is thus upheld.
However, their respective convictions and sentences for other
charges as found by the trial court are upheld and their
acquittal by the High Court for those other charges was not
justified.
All the public dignitaries themselves had become the
kingpin of the criminal conspiracy to defraud the Corporation of
Madras.”
Counsel for the appellant has also placed reliance on an unreported
judgment of the Rajasthan High Court in the case of Smt. Sumitra Kanthiya
vs. State of Rajasthan, disposed of on 30th of July, 2008 passed in
Criminal Revision Petition No. 453 of 2008 and our attention has been drawn
to the following passage from the said judgment:
“In view of the above decision of the Hon’ble Supreme
Court, the petitioners being municipal councillors are not
public servant and charges framed against them without giving
them opportunity of hearing on 18.7.2007 cannot be sustainable,
specially when the State refused to sanction prosecution and the
Anti Corruption Department submitted final report but the
learned Judge took the cognizance overlooking the above legal
aspects.”
Mr. Milind Kumar, learned counsel appearing on behalf of the
respondent State of Rajasthan, however, submits that the appellant,
undisputedly being the Municipal Councillor and a Member of the Board,
comes within the definition of public servant and, hence, he cannot escape
from the prosecution for the offence punishable under the Prevention of
Corruption Act, 1988.
We have bestowed our consideration to the rival submission and we do
not find any substance in the submission of Mr. Yashank Adhiyaru and the
authorities relied on are clearly distinguishable.
As stated earlier, it is an admitted position that the appellant
happens to be an elected Councillor and a Member of the Municipal Board.
Section 3(2) of the Act defines Board.
Section 7 provides for its
establishment and incorporation and Section 9 provides for composition
thereof.
Section 3(15) defines ‘Member’ to mean a person who is lawfully a
Member of a Board.
Section 87 of the Rajasthan Municipalities Act, 1959
makes every Member to be public servant within the meaning of Section 21 of
the Indian Penal Code and the same reads as follows:
“87. Members etc., to be deemed public servants.-
(1) Every
member, officer or servant, and every lessee of the levy of any
municipal tax, and every servant or other employee of any such
lessee shall be deemed to be a public servant within the meaning
of Section 21 of the Indian Penal Code, 1860 (Central Act XLV of
1860).
(2) The word “Government” in the definition of “legal
remuneration” in Section 161 of that Code shall, for the
purposes of sub-section (1) of this section, be deemed to
include a municipal board.”
From a plain reading of the aforesaid provision it is evident that by
the aforesaid section the legislature has created a fiction that every
Member shall be deemed to be a public servant within the meaning of Section
21 of the Indian Penal Code.
It is well settled that the legislature is
competent to create a legal fiction. A deeming provision is enacted for
the purpose of assuming the existence of a fact which does not really
exist.
When the legislature creates a legal fiction, the court has to
ascertain for what purpose the fiction is created and after ascertaining
this, to assume all those facts and consequences which are incidental or
inevitable corollaries for giving effect to the fiction.
In our opinion,
the legislature, while enacting Section 87 has, thus, created a legal
fiction for the purpose of assuming that the Members, otherwise, may not be
public servants within the meaning of Section 21 of the Indian Penal Code
but shall be assumed to be so in view of the legal fiction so created.
In
view of the aforesaid, there is no escape from the conclusion that the
appellant is a public servant within the meaning of Section 21 of the
Indian Penal Code.
To put the record straight, we must incorporate an ancillary
submission of Mr. Adhiyaru. He submits that ‘Every member’ used in Section
87 relates to such members who are associated with any ‘lessee of the levy
of any Municipal tax’. This submission has only been noted to be rejected.
The expression ‘Every member’ in Section 87 is independent and not
controlled by the latter portion at all and in view of the plain language
of the section, no further elaboration is required.
Under the scheme of the Rajasthan Municipalities Act it is evident
that the appellant happens to be a Councillor and a Member of the Board.
Further in view of language of Section 87 of the Rajasthan Municipalities
Act, he is a public servant within the meaning of Section 21 of the Indian
Penal Code. Had this been a case of prosecution under the Prevention of
Corruption Act, 1947 then this would have been the end of the matter.
Section 2 of this Act defines ‘public servant’ to mean public servant as
defined under Section 21 of the Indian Penal Code. However, under the
Prevention of Corruption Act, 1988, with which we are concerned in the
present appeal, the term ‘public servant’ has been defined under Section
2(c) thereof. In our opinion, prosecution under this Act can take place
only of such persons, who come within the definition of public servant
therein. Definition of public servant under the Prevention of Corruption
Act, 1947 and Section 21 of the Indian Penal Code is of no consequence.
The appellant is sought to be prosecuted under the Prevention of Corruption
Act, 1988 and, hence, to determine his status it would be necessary to look
into its interpretation under Section 2(c) thereof, read with the
provisions of the Rajasthan Municipalities Act.
The view which we have
taken finds support from the judgment of this Court in State of Maharashtra
v. Prabhakarrao, (2002) 7 SCC 636, wherein it has been held as follows:
“5. Unfortunately, the High Court in its order has not
considered this question at all. It has proceeded on the
assumption that Section 21 of the Indian Penal Code is the
relevant provision for determination of the question whether the
accused in the case is a public servant.
As noted earlier,
Section 21 IPC is of no relevance to consider the question which
has to be on interpretation of provision of Section 2(c) of the
Prevention of Corruption Act, 1988 read with the relevant
provisions of the Maharashtra Cooperative Societies Act, 1960.”
Now we proceed to consider
whether or not the appellant, a Councillor
and the member of the Board, is a public servant under Section 2(c) of the
Prevention of Corruption Act, 1988. Section 2(c) of this Act reads as
follows:
“2. Definitions.-In this Act, unless the context otherwise
requires,-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) " public servant" means,-
(i) any person in the service or pay of the Government or
remunerated by the Government by fees or commission for the
performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation
established by or under a Central, Provincial or State Act,
or an authority or a body owned or controlled or aided by
the Government or a Government company as defined in
section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to
discharge, whether by himself or as a member of any body of
persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform
any duty, in connection with the administration of justice,
including a liquidator, receiver or commissioner appointed
by such court;
(vi) any arbitrator or other person to whom any cause or
matter has been referred for decision or report by a court
of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he
is empowered to prepare, publish, maintain or revise an
electoral roll or to conduct an election or part of an
election;
(viii) any person who holds an office by virtue of which he
is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other
office-bearer of a registered co-operative society
engaged in agriculture, industry, trade or banking,
receiving or having received any financial aid from the
Central Government or a State Government or from any
corporation established by or under a Central, Provincial
or State Act, or any authority or body owned or controlled
or aided by the Government or a Government company as
defined in section 617 of the Companies Act, 1956 (1 of
1956);
(x) any person who is a chairman, member or employee of any
Service Commission or Board, by whatever name called, or a
member of any selection committee appointed by such
Commission or Board for the conduct of any examination or
making any selection on behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of
any governing body, professor, reader, lecturer or any
other teacher or employee, by whatever designation called,
of any University and any person whose services have been
availed of by a University or any other public authority in
connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee
of an educational, scientific, social, cultural or other
institution, in whatever manner established, receiving or
having received any financial assistance from the Central
Government or any State Government, or local or other
public authority.
Explanation 1.-Persons falling under any of the above sub-
clauses are public servants, whether appointed by the Government
or not.
Explanation 2.-Wherever the words “public servant” occur, they
shall be understood of every person who is in actual possession
of the situation of a public servant, whatever legal defect
there may be in his right to hold that situation.”
The present Act envisages widening of the scope of the definition of
the expression ‘public servant’. It was brought in force to purify public
administration. The legislature has used a comprehensive definition of
‘public servant’ to achieve the purpose of punishing and curbing corruption
among public servants. Hence, it would be inappropriate to limit the
contents of the definition clause by a construction which would be against
the spirit of the statute. Bearing in mind this principle, when we
consider the case of the appellant, we have no doubt that he is a public
servant within the meaning of Section 2(c) of the Act.
Sub-section (viii)
of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorized or required to perform any public duty, to be a public servant.
The word ‘office’ is of indefinite connotation and,
in the present context, it would mean a position or place to which certain
duties are attached and has an existence which is independent of the
persons who fill it.
Councillors and members of the Board are positions
which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above,
it is evident that appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988.
Now we revert to the authorities relied on by Mr. Adhiyaru i.e.
R.S.Nayak (supra), Ramesh Balkrishna Kulkarni (supra) and T.Thulasingam
(supra).
In all these decisions, this Court was considering the scope of
Section 21 of the Indian Penal Code which defines ‘public servant’.
It was
necessary to do so as Section 2 of the Prevention of Corruption Act, 1947
defined ‘public servant’ to mean as defined under Section 21 of the Indian
Penal Code.
A member of the Board, or for that matter, a Councillor per
se, may not come within the definition of the public servant as defined
under Section 21 of the Indian Penal Code but this does not mean that they
cannot be brought in the category of public servant by any other enactment.
In the present case, the Municipal Councillor or member of the Board does
not come within the definition of public servant as defined under Section
21 of the Indian Penal Code, but in view of the legal fiction created by
Section 87 of the Rajasthan Municipalities Act, they come within its
definition.
It is an admitted position that in none of the aforesaid judgments
relied on by the appellant, this Court had considered any provision similar
to Section 87 of the Rajasthan Municipalities Act and, therefore, those
judgments cannot be read to mean that a Municipal Councillor in no
circumstance can be deemed to be a public servant.
Mr. Adhiyaru points out
that provisions pari materia to that of Section 87 of the Rajasthan
Municipalities Act did exist in the respective enactments under
consideration in these cases and, therefore, it has to be assumed that this
Court, while holding that Municipal Councillors are not public servant,
must have taken note of the similar provision.
However, in fairness to
him, he concedes that such a provision, in fact, has not been considered in
these judgments.
We are of the opinion that for ascertaining the binding
nature of a judgment, what needs to be seen is the ratio.
The ratio of
those cases is that Municipal Councillors are not public servants under Section 21 of the Indian Penal Code.
But Section 87 of the Rajasthan Municipalities Act, as discussed above, make Councillor and member of Board a public servant within the meaning of Section 21 of the Indian Penal Code.
Hence, all the judgments of this Court referred to above are clearly distinguishable.
Not only this, in the case in hand, we are concerned with the meaning
of the expression ‘public servant’ as defined under Section 2(c) of the
Prevention of Corruption Act, 1988 and, hence, decisions rendered by this
Court while interpreting Section 21 of the Indian Penal Code, which in
substance and content are substantially different than Section 2(c)
aforesaid, shall have no bearing at all for decision in the present case.
As regards the decision of the learned Single Judge of the Rajasthan High
Court in the case of Sumitra Kanthiya (supra), it has also not considered
Section 87 of the Rajasthan Municipalities Act.
In fact, to come to the
conclusion that the Municipal Councillor would not come within the
definition of public servant, it has mainly placed reliance on a judgment
of this Court in the case of Ramesh Balkrishna Kulkarni (supra).
We have
considered this judgment in little detail in the preceding paragraphs of
the judgment and found the same to be distinguishable as the said decision
did not consider the statutory provision in the present format.
Further,
the aforesaid case does not lay down an absolute proposition of law that
Municipal Councillor in no circumstances can be treated as a public
servant.
The learned Judge has also not at all adverted to Section 87 of
the Rajasthan Municipalities Act as also Section 2(c) of the Prevention of Corruption Act, 1988 and, hence, the judgment rendered by the Rajasthan High Court in Sumitra Kanthiya (supra) does not lay down the law correctly and is, therefore, overruled.
As the trial is pending since long, we deem it expedient that the
learned Judge in seisin of the trial makes an endeavour to dispose of the
trial expeditiously and in no case later than six months from the date of
receipt of a copy of this order.
In the result, we do not find any merit in the appeal and it is
dismissed accordingly.
……………………..………………………………..J.
(CHANDRAMAULI KR. PRASAD)
…….….……….………………………………..J.
(JAGDISH SINGH KHEHAR)
NEW DELHI,
OCTOBER 29, 2013
-----------------------
23
Councillors and members of the Board are positions
which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above,
it is evident that appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988.
Now we revert to the authorities relied on by Mr. Adhiyaru i.e.
R.S.Nayak (supra), Ramesh Balkrishna Kulkarni (supra) and T.Thulasingam
(supra).
In all these decisions, this Court was considering the scope of
Section 21 of the Indian Penal Code which defines ‘public servant’.
It was
necessary to do so as Section 2 of the Prevention of Corruption Act, 1947
defined ‘public servant’ to mean as defined under Section 21 of the Indian
Penal Code.
A member of the Board, or for that matter, a Councillor per
se, may not come within the definition of the public servant as defined
under Section 21 of the Indian Penal Code but this does not mean that they
cannot be brought in the category of public servant by any other enactment.
In the present case, the Municipal Councillor or member of the Board does
not come within the definition of public servant as defined under Section
21 of the Indian Penal Code, but in view of the legal fiction created by
Section 87 of the Rajasthan Municipalities Act, they come within its
definition.
It is an admitted position that in none of the aforesaid judgments
relied on by the appellant, this Court had considered any provision similar
to Section 87 of the Rajasthan Municipalities Act and, therefore, those
judgments cannot be read to mean that a Municipal Councillor in no
circumstance can be deemed to be a public servant.
The ratio of
those cases is that Municipal Councillors are not public servants under Section 21 of the Indian Penal Code.
But Section 87 of the Rajasthan Municipalities Act, as discussed above, make Councillor and member of Board a public servant within the meaning of Section 21 of the Indian Penal Code.
Hence, all the judgments of this Court referred to above are clearly distinguishable.
Not only this, in the case in hand, we are concerned with the meaning
of the expression ‘public servant’ as defined under Section 2(c) of the
Prevention of Corruption Act, 1988 and, hence, decisions rendered by this
Court while interpreting Section 21 of the Indian Penal Code, which in
substance and content are substantially different than Section 2(c)
aforesaid, shall have no bearing at all for decision in the present case.
As regards the decision of the learned Single Judge of the Rajasthan High
Court in the case of Sumitra Kanthiya (supra), it has also not considered
Section 87 of the Rajasthan Municipalities Act.
In fact, to come to the
conclusion that the Municipal Councillor would not come within the
definition of public servant, it has mainly placed reliance on a judgment
of this Court in the case of Ramesh Balkrishna Kulkarni (supra).
We have
considered this judgment in little detail in the preceding paragraphs of
the judgment and found the same to be distinguishable as the said decision
did not consider the statutory provision in the present format.
Further,
the aforesaid case does not lay down an absolute proposition of law that
Municipal Councillor in no circumstances can be treated as a public
servant.
The learned Judge has also not at all adverted to Section 87 of
the Rajasthan Municipalities Act as also Section 2(c) of the Prevention of Corruption Act, 1988 and, hence, the judgment rendered by the Rajasthan High Court in Sumitra Kanthiya (supra) does not lay down the law correctly and is, therefore, overruled.
As the trial is pending since long, we deem it expedient that the
learned Judge in seisin of the trial makes an endeavour to dispose of the
trial expeditiously and in no case later than six months from the date of
receipt of a copy of this order.
In the result, we do not find any merit in the appeal and it is
dismissed accordingly.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1881 OF 2013
(@SPECIAL LEAVE PETITION (CRL) NO. 7511 OF 2013)
MANISH TRIVEDI … APPELLANT
VERSUS
STATE OF RAJASTHAN …RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
The petitioner’s challenge to his prosecution for an offence under
Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act has been turned down by the trial court and
the said order
has been affirmed by the High Court by its order dated 1st of March, 2013
passed in Criminal Miscellaneous Petition No. 1686 of 2009.
It is against
this order that the petitioner has preferred this special leave petition.
Delay condoned.
Leave granted.
Shorn of unnecessary details, facts giving rise to the present appeal
are that the appellant at the relevant time was a Councillor elected to the
Municipal Council, Banswara and a Member of the Municipal Board.
According
to the prosecution, one Prabhu Lal Mochi lodged a report in the Anti-
Corruption Bureau, inter alia, alleging that he had a shoe repair shop near
the gate of Forest Department, Banswara and the employees of the Municipal
Council had seized his cabin in the year 2000 rendering him unemployed.
According to the allegation, he applied for the allotment of a kiosk before
the Municipal Council but did not succeed. On enquiry the informant was
told that it is the appellant who can get the allotment made in his favour
and accordingly he contacted the appellant.
It is alleged that the
appellant demanded a sum of Rs. 50,000/- for getting the allotment done in
his name and ultimately it was agreed that initially the informant would
pay Rs. 5,000/- to the appellant and the rest amount thereafter.
On the
basis of the aforesaid information, according to the prosecution, a trap
was laid and the appellant was caught red-handed and a sum of Rs. 5,000/-
was recovered from him.
After usual investigation, charge-sheet was submitted against the
appellant and he was put on trial.
During the trial evidence of one of the
witnesses was recorded and thereafter, the appellant filed an application
before the trial court for dropping the proceeding, inter alia, contending
that he being a Councillor does not come within the definition of ‘public servant’ and as such, he cannot be put on trial for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
The trial court rejected the said prayer vide its
order dated 13th of October, 2009. The appellant assailed this order
before the High Court in an application filed under Section 482 of the Code
of Criminal Procedure and the High Court by the impugned judgment has
rejected his prayer.
It is against this order that the appellant is before us with the
leave of the court.
We have heard Mr. Yashank Adhiyaru, Senior Counsel for the appellant
while respondent is represented by Mr. Milind Kumar.
Mr. Adhiyaru submits that
a Municipal Councillor is not a public
servant and, therefore, his prosecution for the offence alleged is bad in
law.
According to him, for prosecuting an accused for offence under the
Prevention of Corruption Act, 1988 the accused charged must be a public
servant and the appellant not being a public servant cannot be prosecuted
under the said Act. Further, for a person to have the status of a public
servant he must be appointed by the Government and must be getting pay or
salary from the Government.
Not only this, to be a public servant, such a
person has to discharge his duties in accordance with the rules and
regulations made by the Government. According to him, the appellant was
elected as a Municipal Councillor and he does not owe his appointment to
any governmental authority.
Being a person elected by the people, the
commands and edicts of a Government authority do not apply to him.
In
support of the submission he has placed reliance on a judgment of this
Court in the case of R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183. He has
drawn our attention to the following passage from the said judgment.
“41…….Whatever that may be the conclusion is inescapable that
till 1964 at any rate MLA was not comprehended in the definition
of ‘public servant’ in Section 21. And the Santhanam Committee
did not recommend its inclusion in the definition of ‘public
servant’ in Section 21.
42…….Now if prior to the enactment of Act 40 of 1964 MLA was not
comprehended as a public servant in Section 21, the next
question is: did the amendment make any difference in his
position. The amendment keeps the law virtually unaltered. Last
part of clause (9) was enacted as clause (12)(a). If MLA was not
comprehended in clause (9) before its amendment and dissection,
it would make no difference in the meaning of law if a portion
of clause (9) is re-enacted as clause (12)(a). It must follow as
a necessary corollary that the amendment of clauses (9) and (12)
by Amending Act 40 of 1964 did not bring about any change in the
interpretation of clause (9) and clause (12)(a) after the
amendment of 1964………..
Xxx xxx xxx
……….Therefore, apart from anything else, on historical
evolution of Section 21, adopted as an external aid to
construction,
one can confidently say that MLA was not and is not a ‘public servant’ within the meaning of the expression in any of the clauses of Section 21 IPC.”
Another decision on which the counsel has placed reliance is the
judgment of this Court in the case of Ramesh Balkrishna Kulkarni v. State
of Maharashtra, (1985) 3 SCC 606, and he has drawn our attention to
Paragraph 5 from the said judgment which reads as follows:
“5. In view of this decision, therefore, we need not go to the
other authorities on the subject. Even so, we are of the opinion
that the concept of a “public servant” is quite different from
that of a Municipal Councillor. A “public servant” is an
authority who must be appointed by Government or a semi-
governmental body and should be in the pay or salary of the
same. Secondly, a “public servant” is to discharge his duties in
accordance with the rules and regulations made by the
Government. On the other hand, a Municipal Councillor does not
owe his appointment to any governmental authority. Such a person is elected by the people and functions undeterred by the commands or edicts of a governmental authority.
The mere fact
that an MLA gets allowance by way of honorarium does not convert
his status into that of a “public servant”.
In R.S. Nayak v.
A.R. Antulay, (1984) 2 SCC 183 the learned Judges of the
Constitution Bench have referred to the entire history and
evolution of the concept of a “public servant” as contemplated
by Section 21 of the IPC.”
Yet another decision on which counsel has placed reliance is the
judgment of this Court in the case of State of T.N. v. T. Thulasingam, 1994
Supp (2) SCC 405, and he has drawn our attention to Paragraph 76 from the
said judgment which reads as follows:
“76. The High Court was, however, right in acquitting various
Councillors of the charge under the Prevention of Corruption Act
as they are not public servants, in view of the decision of this
Court in Ramesh Balkrishna Kulkarni v. State of Maharashtra
(1985) 3 SCC 606.
The acquittal of the Councillors (A-75 to A-80
and A-82);
Chairman and Member of the Accounts Committee (A-84
to A-86);
Members of the Works Committee (A-87);
Members of the
Education Committee (A-94 to A-96);
Member of the Town Planning
Committee (A-98) and
Councillors (A-102 and A-104) under the
provisions of the Prevention of Corruption Act is thus upheld.
However, their respective convictions and sentences for other
charges as found by the trial court are upheld and their
acquittal by the High Court for those other charges was not
justified.
All the public dignitaries themselves had become the
kingpin of the criminal conspiracy to defraud the Corporation of
Madras.”
Counsel for the appellant has also placed reliance on an unreported
judgment of the Rajasthan High Court in the case of Smt. Sumitra Kanthiya
vs. State of Rajasthan, disposed of on 30th of July, 2008 passed in
Criminal Revision Petition No. 453 of 2008 and our attention has been drawn
to the following passage from the said judgment:
“In view of the above decision of the Hon’ble Supreme
Court, the petitioners being municipal councillors are not
public servant and charges framed against them without giving
them opportunity of hearing on 18.7.2007 cannot be sustainable,
specially when the State refused to sanction prosecution and the
Anti Corruption Department submitted final report but the
learned Judge took the cognizance overlooking the above legal
aspects.”
Mr. Milind Kumar, learned counsel appearing on behalf of the
respondent State of Rajasthan, however, submits that the appellant,
undisputedly being the Municipal Councillor and a Member of the Board,
comes within the definition of public servant and, hence, he cannot escape
from the prosecution for the offence punishable under the Prevention of
Corruption Act, 1988.
We have bestowed our consideration to the rival submission and we do
not find any substance in the submission of Mr. Yashank Adhiyaru and the
authorities relied on are clearly distinguishable.
As stated earlier, it is an admitted position that the appellant
happens to be an elected Councillor and a Member of the Municipal Board.
Section 3(2) of the Act defines Board.
Section 7 provides for its
establishment and incorporation and Section 9 provides for composition
thereof.
Section 3(15) defines ‘Member’ to mean a person who is lawfully a
Member of a Board.
Section 87 of the Rajasthan Municipalities Act, 1959
makes every Member to be public servant within the meaning of Section 21 of
the Indian Penal Code and the same reads as follows:
“87. Members etc., to be deemed public servants.-
(1) Every
member, officer or servant, and every lessee of the levy of any
municipal tax, and every servant or other employee of any such
lessee shall be deemed to be a public servant within the meaning
of Section 21 of the Indian Penal Code, 1860 (Central Act XLV of
1860).
(2) The word “Government” in the definition of “legal
remuneration” in Section 161 of that Code shall, for the
purposes of sub-section (1) of this section, be deemed to
include a municipal board.”
From a plain reading of the aforesaid provision it is evident that by
the aforesaid section the legislature has created a fiction that every
Member shall be deemed to be a public servant within the meaning of Section
21 of the Indian Penal Code.
It is well settled that the legislature is
competent to create a legal fiction. A deeming provision is enacted for
the purpose of assuming the existence of a fact which does not really
exist.
When the legislature creates a legal fiction, the court has to
ascertain for what purpose the fiction is created and after ascertaining
this, to assume all those facts and consequences which are incidental or
inevitable corollaries for giving effect to the fiction.
In our opinion,
the legislature, while enacting Section 87 has, thus, created a legal
fiction for the purpose of assuming that the Members, otherwise, may not be
public servants within the meaning of Section 21 of the Indian Penal Code
but shall be assumed to be so in view of the legal fiction so created.
In
view of the aforesaid, there is no escape from the conclusion that the
appellant is a public servant within the meaning of Section 21 of the
Indian Penal Code.
To put the record straight, we must incorporate an ancillary
submission of Mr. Adhiyaru. He submits that ‘Every member’ used in Section
87 relates to such members who are associated with any ‘lessee of the levy
of any Municipal tax’. This submission has only been noted to be rejected.
The expression ‘Every member’ in Section 87 is independent and not
controlled by the latter portion at all and in view of the plain language
of the section, no further elaboration is required.
Under the scheme of the Rajasthan Municipalities Act it is evident
that the appellant happens to be a Councillor and a Member of the Board.
Further in view of language of Section 87 of the Rajasthan Municipalities
Act, he is a public servant within the meaning of Section 21 of the Indian
Penal Code. Had this been a case of prosecution under the Prevention of
Corruption Act, 1947 then this would have been the end of the matter.
Section 2 of this Act defines ‘public servant’ to mean public servant as
defined under Section 21 of the Indian Penal Code. However, under the
Prevention of Corruption Act, 1988, with which we are concerned in the
present appeal, the term ‘public servant’ has been defined under Section
2(c) thereof. In our opinion, prosecution under this Act can take place
only of such persons, who come within the definition of public servant
therein. Definition of public servant under the Prevention of Corruption
Act, 1947 and Section 21 of the Indian Penal Code is of no consequence.
The appellant is sought to be prosecuted under the Prevention of Corruption
Act, 1988 and, hence, to determine his status it would be necessary to look
into its interpretation under Section 2(c) thereof, read with the
provisions of the Rajasthan Municipalities Act.
The view which we have
taken finds support from the judgment of this Court in State of Maharashtra
v. Prabhakarrao, (2002) 7 SCC 636, wherein it has been held as follows:
“5. Unfortunately, the High Court in its order has not
considered this question at all. It has proceeded on the
assumption that Section 21 of the Indian Penal Code is the
relevant provision for determination of the question whether the
accused in the case is a public servant.
As noted earlier,
Section 21 IPC is of no relevance to consider the question which
has to be on interpretation of provision of Section 2(c) of the
Prevention of Corruption Act, 1988 read with the relevant
provisions of the Maharashtra Cooperative Societies Act, 1960.”
Now we proceed to consider
whether or not the appellant, a Councillor
and the member of the Board, is a public servant under Section 2(c) of the
Prevention of Corruption Act, 1988. Section 2(c) of this Act reads as
follows:
“2. Definitions.-In this Act, unless the context otherwise
requires,-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) " public servant" means,-
(i) any person in the service or pay of the Government or
remunerated by the Government by fees or commission for the
performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation
established by or under a Central, Provincial or State Act,
or an authority or a body owned or controlled or aided by
the Government or a Government company as defined in
section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to
discharge, whether by himself or as a member of any body of
persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform
any duty, in connection with the administration of justice,
including a liquidator, receiver or commissioner appointed
by such court;
(vi) any arbitrator or other person to whom any cause or
matter has been referred for decision or report by a court
of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he
is empowered to prepare, publish, maintain or revise an
electoral roll or to conduct an election or part of an
election;
(viii) any person who holds an office by virtue of which he
is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other
office-bearer of a registered co-operative society
engaged in agriculture, industry, trade or banking,
receiving or having received any financial aid from the
Central Government or a State Government or from any
corporation established by or under a Central, Provincial
or State Act, or any authority or body owned or controlled
or aided by the Government or a Government company as
defined in section 617 of the Companies Act, 1956 (1 of
1956);
(x) any person who is a chairman, member or employee of any
Service Commission or Board, by whatever name called, or a
member of any selection committee appointed by such
Commission or Board for the conduct of any examination or
making any selection on behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of
any governing body, professor, reader, lecturer or any
other teacher or employee, by whatever designation called,
of any University and any person whose services have been
availed of by a University or any other public authority in
connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee
of an educational, scientific, social, cultural or other
institution, in whatever manner established, receiving or
having received any financial assistance from the Central
Government or any State Government, or local or other
public authority.
Explanation 1.-Persons falling under any of the above sub-
clauses are public servants, whether appointed by the Government
or not.
Explanation 2.-Wherever the words “public servant” occur, they
shall be understood of every person who is in actual possession
of the situation of a public servant, whatever legal defect
there may be in his right to hold that situation.”
The present Act envisages widening of the scope of the definition of
the expression ‘public servant’. It was brought in force to purify public
administration. The legislature has used a comprehensive definition of
‘public servant’ to achieve the purpose of punishing and curbing corruption
among public servants. Hence, it would be inappropriate to limit the
contents of the definition clause by a construction which would be against
the spirit of the statute. Bearing in mind this principle, when we
consider the case of the appellant, we have no doubt that he is a public
servant within the meaning of Section 2(c) of the Act.
Sub-section (viii)
of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorized or required to perform any public duty, to be a public servant.
The word ‘office’ is of indefinite connotation and,
in the present context, it would mean a position or place to which certain
duties are attached and has an existence which is independent of the
persons who fill it.
Councillors and members of the Board are positions
which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above,
it is evident that appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988.
Now we revert to the authorities relied on by Mr. Adhiyaru i.e.
R.S.Nayak (supra), Ramesh Balkrishna Kulkarni (supra) and T.Thulasingam
(supra).
In all these decisions, this Court was considering the scope of
Section 21 of the Indian Penal Code which defines ‘public servant’.
It was
necessary to do so as Section 2 of the Prevention of Corruption Act, 1947
defined ‘public servant’ to mean as defined under Section 21 of the Indian
Penal Code.
A member of the Board, or for that matter, a Councillor per
se, may not come within the definition of the public servant as defined
under Section 21 of the Indian Penal Code but this does not mean that they
cannot be brought in the category of public servant by any other enactment.
In the present case, the Municipal Councillor or member of the Board does
not come within the definition of public servant as defined under Section
21 of the Indian Penal Code, but in view of the legal fiction created by
Section 87 of the Rajasthan Municipalities Act, they come within its
definition.
It is an admitted position that in none of the aforesaid judgments
relied on by the appellant, this Court had considered any provision similar
to Section 87 of the Rajasthan Municipalities Act and, therefore, those
judgments cannot be read to mean that a Municipal Councillor in no
circumstance can be deemed to be a public servant.
Mr. Adhiyaru points out
that provisions pari materia to that of Section 87 of the Rajasthan
Municipalities Act did exist in the respective enactments under
consideration in these cases and, therefore, it has to be assumed that this
Court, while holding that Municipal Councillors are not public servant,
must have taken note of the similar provision.
However, in fairness to
him, he concedes that such a provision, in fact, has not been considered in
these judgments.
We are of the opinion that for ascertaining the binding
nature of a judgment, what needs to be seen is the ratio.
The ratio of
those cases is that Municipal Councillors are not public servants under Section 21 of the Indian Penal Code.
But Section 87 of the Rajasthan Municipalities Act, as discussed above, make Councillor and member of Board a public servant within the meaning of Section 21 of the Indian Penal Code.
Hence, all the judgments of this Court referred to above are clearly distinguishable.
Not only this, in the case in hand, we are concerned with the meaning
of the expression ‘public servant’ as defined under Section 2(c) of the
Prevention of Corruption Act, 1988 and, hence, decisions rendered by this
Court while interpreting Section 21 of the Indian Penal Code, which in
substance and content are substantially different than Section 2(c)
aforesaid, shall have no bearing at all for decision in the present case.
As regards the decision of the learned Single Judge of the Rajasthan High
Court in the case of Sumitra Kanthiya (supra), it has also not considered
Section 87 of the Rajasthan Municipalities Act.
In fact, to come to the
conclusion that the Municipal Councillor would not come within the
definition of public servant, it has mainly placed reliance on a judgment
of this Court in the case of Ramesh Balkrishna Kulkarni (supra).
We have
considered this judgment in little detail in the preceding paragraphs of
the judgment and found the same to be distinguishable as the said decision
did not consider the statutory provision in the present format.
Further,
the aforesaid case does not lay down an absolute proposition of law that
Municipal Councillor in no circumstances can be treated as a public
servant.
The learned Judge has also not at all adverted to Section 87 of
the Rajasthan Municipalities Act as also Section 2(c) of the Prevention of Corruption Act, 1988 and, hence, the judgment rendered by the Rajasthan High Court in Sumitra Kanthiya (supra) does not lay down the law correctly and is, therefore, overruled.
As the trial is pending since long, we deem it expedient that the
learned Judge in seisin of the trial makes an endeavour to dispose of the
trial expeditiously and in no case later than six months from the date of
receipt of a copy of this order.
In the result, we do not find any merit in the appeal and it is
dismissed accordingly.
……………………..………………………………..J.
(CHANDRAMAULI KR. PRASAD)
…….….……….………………………………..J.
(JAGDISH SINGH KHEHAR)
NEW DELHI,
OCTOBER 29, 2013
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