There cannot be any dispute on the proposition of
law laid down by this Court in the case of Sadashiv Sutar.
But, in the present case, as contended by learned APP, merely
because the applicant was discharging a public duty, it cannot
be a reason for applicability of Section 2(c) of the Act to her. I
am, therefore, not able to persuade myself to accept the
contention of learned APP that the applicant is discharging
public duty and as such the applicant is a public servant and
Clause (viii) of Section 2(c) attracts against the applicant.
The Apex Court in the judgment reported in (2009) 13
Supreme Court Cases 418, in the case of State of
Punjab .vs. Nirmal Kaur, dealt with the aspect. The respondent
therein was running a private coaching center and was facing
the accusation of commission of offences punishable under
Section 420, 465, 467, 468, 470 and 120-B of the Indian Penal
Code and under Section 13(1)(d) read with Section 13(2) of
the P.C. Act. It was the stand of the appellant/State that as
the respondent was running a coaching center, the
respondent was performing public duty. The Apex Court, by
quoting the provisions of Section 2(c), clauses (i) to (xii),
observed that the stand of the applicant/State is that in any
event, by running coaching centre, the respondent was
performing public duty. The Apex Court in clear words held
that the submission overlooks basic requirement of clause
(vii) of Section 2(c) which is applicable only when a public
servant holds an office by which he is authorised or required
to perform any public duty. Here, it is nobody’s case that the
applicant was holding any office by which she was authorized
or required to perform the public duty and as such the
judgment in Nirmal Kaur’s case is applicable in the present
matter as the applicant is similarly situated. The applicant
was though running a counseling centre, she was neither
authorized nor holding any office to perform public duty.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO. 25 OF 2014
Smt. Sumitra W/o Prabhakar Thakre
..VERSUS..
State of Maharashtra,
C ORAM : PRASANNA B. VARALE, J.
DATED : 28th MARCH, 2014.
Citation; 2014 ALLMR(cri) 2438 Bom
Heard Mr. Shashibhushan Wahane, learned counsel
for the applicant and Mr. P. V. Bhoyar, learned Additional
Public Prosecutor for the non-applicant/State. ADMIT. By
consent of the learned counsel for the parties, the matter is
taken up forthwith for final disposal.
2] The applicant, being aggrieved by the order dated
21.1.2014 passed by the learned Special Judge, A.C.B. Court,
Nagpur, thereby rejecting the application (Exh.9) filed by the
present applicant under Section 227 of the Criminal Procedure
Code seeking discharge in Special Criminal Case No. 3/2011,
is before this Court by this Revision Application under Section
397 read with Section 482 of the Criminal Procedure Code.
3] Brief facts giving rise to the present revision
application can be summarized as under :
The applicant is a social worker. She is a found
member and Secretary of one organization namely Shri
Ganesh Bahuuddeshiya Mahila Gramin Vikas Sanstha. The
applicant runs a Counseling Center namely Stree
Sashaktikaran Mahila Takrar Niwaran Kendra at Nagpur. She
is working as a Coordinator in the Center voluntarily for
rehabilitation of the victims of domestic violence.
On a complaint received from one Sheikh Karim
Sheikh Ibrahim in respect of demand of an amount by the
appllicant to settle the matter, the officials of Anti Corruption
Bureau arranged a trap. The trap was successful and led to
lodgment of Crime No. 3195/2010 against the applicant/
accused for committing offences punishable under Sections 7,
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988. (hereinafter referred to as ‘the P.C.
Act’)
After completion of investigation and filing of the
charge-sheet, the applicant preferred an application (Exh.9)
under Section 227 of the Criminal Procedure Code, seeking
discharge, before the learned Ad-hoc District Judge and
Additional Sessions Judge, Nagpur. The application was, in
turn, heard and decided by the learned Special Judge, A.C.B.
Court, Nagpur, which resulted in rejection of the same.
Therefore, the applicant/accused is before this Court.
4] Mr. Wahane, learned counsel for the applicant, in
challenge to the impugned order passed by the learned
Special Judge, submitted that the applicant, who is a
Coordinator of a Counseling Center and working voluntarily
for redressal of grievances of women in respect of
matrimonial discord, is falsely implicated in the present crime.
It is the submission of the learned counsel that even taking
the case as it is against the applicant, on the backdrop of the
fact that the applicant/accused is not a ‘public servant’, the
provisions of P.C. Act does not attract and no case is made out
against the applicant. Learned counsel further submitted that
the applicant is neither appointed by the State Government or
the Central Government, nor the applicant is discharging any
‘public duty’. Learned counsel for the applicant, by inviting
my attention to the provisions of P.C. Act, more particularly
Section 2(c), submitted that the word ‘Public Servant’ is
defined under the Act and is having a definitive meaning
categorized under various Clauses. He further submitted that
the basic requirement are three fold for compliance of Section
2(c) and those are – (i) any person in the service or pay of the
Government (2) receiving remuneration, fees or commission
for the performance by the Government ; and (3)
performance of a public duty. Learned counsel for the
applicant submitted that the factor of performance of ‘public
duty’ will have to be read conjointly with the words ‘in the
service or pay of the Government or receiving remuneration
or fees or commission by the Government’. Thus, it was the
bone of contention of learned counsel for the applicant that as
the material falls too short against the applicant to attract any
of above referred qualifying material, the prosecution against
the applicant is throughly unsustainable.
5] Learned counsel for the applicant invited my
attention to the documents placed on record in support of his
submission i.e. annexure-C, which is a reply to an application
moved by the applicant to the office of Commissioner of
Police under the Right to Information Act, 2005, seeking
information whether the organization of the applicant receives
any remuneration or honorarium. By the said reply, it was
informed to the applicant that no information is available with
the office in that respect. Learned counsel for the applicant,
therefore, submitted that even the police administration itself
is not sure whether the applicant receives any remuneration
or honorarium and on the backdrop of this fact, the
application of the applicant seeking discharge ought to have
been allowed by the learned Special Judge.
6] Learned counsel for the applicant then invited my
attention to the document at Annexure-B, which is an
application filed by the applicant/accused before the learned
Sessions Judge, for directing the investigating agency to
produce the appointment letter of the accused. Learned
counsel submitted that there was no reply to the application.
7] Per contra, learned Additional Public Prosecutor for
the State supports the impugned order passed by the learned
Specual Judge and submits that the applicant was permitted
to run the Counseling Center. In this respect, he invited my
attention to the document R-1, placed on record along with
the reply of the State. In the course of argument, learned APP
submitted that the applicant by submitting applications had
requested the Additional Commissioner of Police for providing
place to run the Counseling center either at Ajani police
station or Nandanwan police station. Learned APP placed on
record the copies of those applications and the
communication issued by the office of Additional
Commissioner of Police, dated 24.03.2009. The same are
taken on record and collectively marked as “X” for
identification. The communication dated 24.03.2009 is
addressed to the Senior Police Inspector of Nandanwan Police
station calling for the report in respect of the premises taken
for running Mahila Cell. It is stated in said communication
that the applicant had submitted an application seeking space
for running counseling center and on receiving information
that there is no space available in the police stations and if
the applicant wish to start the Counseling Center in rental
premises on her own, there is no objection from the police
station. It is further stated in the communication that on
receipt of report from the police station, the applicant opted
for running counseling center in rented premises available
behind the police station. Learned APP, on the basis of these
documents, submitted that the applicant is performing the
public duty and as such is a ‘public servant’ within the
meaning of Clause (viii) of Section 2(c) of the P.C. Act. He
further submitted that as the applicant was performing ‘public
duty’ and instead of attempting to settle the disputes through
counseling, she indulged in an activity of demand of bribe and
as such the applicant has committed a serious offence. He
further submitted that as there is prima facie material against
the applicant, the learned Special Judge rightly rejected the
application of the applicant seeking discharge.
8] Learned counsel for the applicant, to substantiate
his case, placed reliance on the judgments reported in 2008
All M.R. (Cri.) 733, in the case of Brijlal Sadasukh
Modani .vs. State of Maharashtra and others, 1998 Cri.L.J.
311 in the case of A.R. Puri .vs. State, AIR 2000 Supreme
Court 937, in the case of State of Maharashtra .vs. Laljit
Rajshi Shah and others.
Learned APP, in support of his submissions, placed
reliance on the judgment of the Apex Court reported in
(2002) 7 Supreme Court Cases 636, in the case of State of
Maharashtra and another .vs. Prabhakarrao and another.
9] As the controversy in the present application
revolves around the issue whether the applicant satisfies the
requirement of Section 2(c) so as to treat her as a ‘public
servant’ and in turn attract the provisions of Sections 7, 13(1)
(d) read with Section 13(2) of the P.C. Act, it will be useful to
refer to the provisions of Section 2(c). The relevant provision
is clause (i) of Section 2(c), which reads thus -
“Section 2 – (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) .............
10] Learned APP submitted that clause (viii) of Section
2(c) takes in its compass the act of the applicant. Thus, it will
be useful to refer to the provision of clause (viii) of Sec.2(c),
which reads thus :-
“Section 2 - (c) “public servant” means -
(viii) any person who holds an office by
virtue of which he is authorised or required to
perform any public duty.”
11] Insofar as the contentions of learned counsel for
the applicant in respect of requirements of Clause (i) of
Section 2(c) are concerned, on a perusal of the material, I find
considerable merit in the submissions of learned counsel for
the applicant. Though, learned APP made an attempt to
submit that the applicant is discharging ‘public duty’ and
therefore, provision of Clause (i) of Section 2(c) attracts
against the applicant, I am unable to accept the the
submission of learned APP.
12] Learned counsel for the applicant was justified in
submitting that the words ‘performance of public duty’ cannot
be read independently and these words will have to be read
conjointly with the earlier part of clause (i) and that part deals
with ‘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’. (emphasis supplied). In
the present case, there was no material placed before the
learned Special Judge by the prosecution to show that the
applicant was receiving either pay from the Government or
remuneration or fees or commission from the Government.
Learned APP submitted that clause (viii) of Section 2(c) takes
in its sweep the act of the applicant. In support of his
submission, learned APP relied on the material namely the
application submitted by her and the Government Circular,
issued by the Home Department, Government of
Maharashtra, dated 29.05.2010. The application was
submitted by the applicant to the Commissioner of Police for
making available the space to the institute for running
Counseling Center either at Ajani police station or Nandanwan
police station. It is nobody’s case that the space was made
available to the applicant either in Ajani police station or
some other police station. On the contrary, the
communication dated 24.03.2009 (marked as ‘X’), on which
learned APP placed reliance, show that there was no space
available for the applicant in the police station and police
station informed the applicant to make arrangements for the
rented premises.
13] Perusal of Government Circular dated 29.05.2010,
issued by Home Department, Government of Maharashtra
show that on the backdrop of various directions of the Apex
Court, instructions are given to the police stations firstly to
make attempts to settle the matrimonial disputes by
providing counseling to both the parties and to establish such
counseling centers at police stations. Even on reading of this
Circular, an unescapable conclusion is, there may be a case in
in which if a misdeed is committed in a counseling center at
police station initiated by providing financial assistance by the
Government, but such is not the case in the present matter.
At the cost of repetition, it may be again observed that the
applicant was neither provided any space in the police station
to run the counseling center nor any financial assistance was
provided to the applicant for running the counseling center in
police station. Learned APP was right in submitting that the
scope is widened under clause (viii) of Section 2(c) of the new
Act i.e. Prevention of Corruption Act, 1988, but even
considering this widened scope of the Act under Clause (viii)
of Section 2(c), there is no material to attract Clause (viii)
against the applicant. Here again, learned APP has
emphasized on the words ‘public duty’ and made an attempt
to submit that the applicant, who was running a counseling
center, was discharging a ‘public duty’ and as such, the act of
the applicant comes within the scope of Clause (viii) of
Section 2(c). I am unable to accept the submission of learned
APP for the reason that here also the words ‘public duty’ will
have to be read with keywords ‘any person who holds an
office by virtue of which he is authorised or required to
perform any public duty. (emphasis supplied). There is no
material placed on record to show that the applicant was
holding any office and was authorized by the Government or
any authority to perform public duty.
14] In support of his submissions, learned counsel for
the applicant placed reliance on the judgment of this Court in
Brijlal Modani’s case (supra). In this case, the petitioner was
an employee of Osmanabad Janata Sahakari Bank Ltd.,
holding the post of General Manager. The Division Bench of
this Court, considering various provisions of the Maharashtra
Cooperative Societies Act, Banking Regulation Act and the
judgments of the Apex Court on the backdrop of Section 2(c)
of the P.C. Act, arrived at a conclusion that the petitioner
therein , who was discharging his duty as a General Manager,
cannot be termed as a ‘public servant’ ad defined in the P.C.
Act. As such, learned counsel for the applicant was justified in
submitting that the applicant is on better footing than
petitioner Brijlal Modani, as the applicant herein is running a
private counseling center.
15] Perusal of the impugned order passed by the
learned Special Judge show that though, learned Special
Judge observed that the applicant was not receiving any kind
of remuneration, merely on the consideration that permission
was granted to the applicant to run “Women Redressal Cell”,
held the applicant was a public servant within the meaning of
Section 2(c)(viii) and negated the contentions raised by the
applicant.
16] Though, learned APP placed reliance on the
judgment of the Apex Court in Prabhakarrao’s case (supra), in
my opinion, there cannot be any dispute on the proposition
laid down by the Apex Court in the reported judgment, but the
same would not be helpful to draw support for his
submissions.
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Bombay High Court
14 Revn.Appln.No.25/14
17] The Apex Court in the judgment reported in
(2002) 7 Supreme Court Cases 631, in the case of Govt.
of Andhra Pradesh and others .vs. P. Venku Reddy, hold that
the P.C. Act gives a wider definition of term “public servant”.
The Apex Court has observed thus -
“11. Under the repealed Act of 1947 as
provided in Section 2 of the 1988 Act, the
definition of “public servant” was restricted to
“public servants” as defined in Section 21 of the
Indian Penal Code. In order to curb effectively
bribery and corruption not only in government
establishments and departments but also in
other semi-governmental authorities and bodies
and their departments where the employees are
entrusted with public duty, a comprehensive
definition of “public servant has been given in
clause (c) of Section 2 of the 1988 Act.
12. In construing the definition of “public
servant” in clause (c) of Section 2 of the 1988
Act, the court is required to adopt a purposive
approach as would give effect to the intention of
the legislature. In that view the Statement of
Objects and Reasons contained in the Bill
leading to the passing of the Act can be taken
assistance of. It gives the background in which
the legislation was enacted. The present Act,
with a much wider definition of “public servant”,
was brought in force to purify public
administration. When the legislature has used
such a comprehensive definition of “public
servant” to achieve the purpose of punishing
and curbing growing corruption in government
and semi-government departments, it would be
appropriate not to limit the contents of the
definition clause by construction which would be
against the spirit of the statute. The definition
of “public servant”, therefore, deserves a wide
construction.”
18] In the reported judgment in 2013(3) Bom.C.R.
(Cri.) 31 in case of Sadashiv Sutar .vs. State of Maharashtra
thru. ACB, this Court taking support from the judgment of the
Apex Court reported in A.I.R. 1998 S.C. 2120 in the case of
P.V. Narsimha Rao .vs. State (CBI/SPE) etc., reproduced the
observations dealing with the term “public servant”. On the
backdrop of an argument that the Member of Parliament does
not fall within the ambit of Section 2 Clause (viii) of P.C. Act,
the Apex Court examined the question as to whether a
Member of Parliament holds an office ?. The Apex Court
dealing with said issue, referred to quote of Lord Wright in
(1942) AC 561M in case of McMillan .vs. Guest. Lord Wright
has said -
“The word ‘office is of indefinite content.
Its various meanings cover four columns of the
New English Dictionary, but I take as the most
relevant for purposes of this case the
following : “A position or place to which certain
duties are attached, especially one of a more or
less public character.”
In the same case, Lord Atkin gave the following meaning -
“An office or employment which was subsisting,
permanent, substantive position, which had an
existence independent of the person who filled
it, which went on and was filled in succession by
successive holders.”
In Statesman (Private) Ltd. .vs. H.R. Deb and ors.,
reported in (1968) 3 S.C.R. 614 ; and in Mahadeo .vs.
Shantibhai and ors., reported in (1969) 2 S.C.R. 422, the Apex
Court has adopted the meaning given by Lord Wright when it
said : “An office means no more than a position to which
certain duties are attached.” The Apex Court then held that
we are, therefore, of the view that a Member of Parliament
holds an office and by virtue of such office, he is required or
authorised to perform duties and such duties are in the nature
of public duties. A Member of Parliament would, therefore,
fall within the ambit of sub-clause (viii) of Clause (c) of
section 2 of the 1988 Act.
19] On the backdrop of these fats, this Court in
Sadashiv Sutar’s case was considering the case of the
applicant, who was serving as a Branch Manager in a
Cooperative Bank under liquidation and had demanded
Rs.Five lakhs for vacation of premises and on a trap, he was
caught red handed. This Court, thus, in view of the provisions
of the P.C. Act and the Constitutional perspective, held that
the position of a Co-operative Society is not confined to local
limits, nor its functioning and working restricted to few
persons. This Court further observed that there is a definite
state of the society and the community at large in the
working and functioning of such societies.
20] There cannot be any dispute on the proposition of
law laid down by this Court in the case of Sadashiv Sutar.
But, in the present case, as contended by learned APP, merely
because the applicant was discharging a public duty, it cannot
be a reason for applicability of Section 2(c) of the Act to her. I
am, therefore, not able to persuade myself to accept the
contention of learned APP that the applicant is discharging
public duty and as such the applicant is a public servant and
Clause (viii) of Section 2(c) attracts against the applicant.
The Apex Court in the judgment reported in (2009) 13
Supreme Court Cases 418, in the case of State of
Punjab .vs. Nirmal Kaur, dealt with the aspect. The respondent
therein was running a private coaching center and was facing
the accusation of commission of offences punishable under
Section 420, 465, 467, 468, 470 and 120-B of the Indian Penal
Code and under Section 13(1)(d) read with Section 13(2) of
the P.C. Act. It was the stand of the appellant/State that as
the respondent was running a coaching center, the
respondent was performing public duty. The Apex Court, by
quoting the provisions of Section 2(c), clauses (i) to (xii),
observed that the stand of the applicant/State is that in any
event, by running coaching centre, the respondent was
performing public duty. The Apex Court in clear words held
that the submission overlooks basic requirement of clause
(vii) of Section 2(c) which is applicable only when a public
servant holds an office by which he is authorised or required
to perform any public duty. Here, it is nobody’s case that the
applicant was holding any office by which she was authorized
or required to perform the public duty and as such the
judgment in Nirmal Kaur’s case is applicable in the present
matter as the applicant is similarly situated. The applicant
was though running a counseling centre, she was neither
authorized nor holding any office to perform public duty.
21] Before parting with the judgment, it will be
interesting to note that the applicant has placed on record a
document “Annexure-D”, which is a sanction order issued by
the office of Deputy Commissioner of Police/Superintendent of
Police, ACB, Nagpur for filing charge-sheet against the
applicant. It is difficult to understand as to what was the
consideration and application of mind by the sanctioning
authority while issuing the sanction order against the
applicant. Be that as it may. Suffice it would be to say that
even this sanction order would be of no help to the
prosecution to establish its case.
22] Thus, taking into consideration all above referred
facts and the material on record, in my opinion, a case is
made out by the learned counsel for the applicant for
interference of this Court in exercise of its inherent powers
under Section 482 of Cr.P.C.
23] In the result, the revision application is allowed.
The order below Exh.9 passed by the learned
Special Judge, A.C.B. Court, Nagpur in Special Criminal Case
No. 3/2011, is quashed and set aside.
The applicant/accused is discharged in Crime No.
3195/2010 for the offences punishable under Sections 7,
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988., pending before the learned Special
Judge, A.C.B., Nagpur, vide Special Criminal Case No.3/2011.
24] With these observations, the revision application is
disposed of.
Print Page
law laid down by this Court in the case of Sadashiv Sutar.
But, in the present case, as contended by learned APP, merely
because the applicant was discharging a public duty, it cannot
be a reason for applicability of Section 2(c) of the Act to her. I
am, therefore, not able to persuade myself to accept the
contention of learned APP that the applicant is discharging
public duty and as such the applicant is a public servant and
Clause (viii) of Section 2(c) attracts against the applicant.
The Apex Court in the judgment reported in (2009) 13
Supreme Court Cases 418, in the case of State of
Punjab .vs. Nirmal Kaur, dealt with the aspect. The respondent
therein was running a private coaching center and was facing
the accusation of commission of offences punishable under
Section 420, 465, 467, 468, 470 and 120-B of the Indian Penal
Code and under Section 13(1)(d) read with Section 13(2) of
the P.C. Act. It was the stand of the appellant/State that as
the respondent was running a coaching center, the
respondent was performing public duty. The Apex Court, by
quoting the provisions of Section 2(c), clauses (i) to (xii),
observed that the stand of the applicant/State is that in any
event, by running coaching centre, the respondent was
performing public duty. The Apex Court in clear words held
that the submission overlooks basic requirement of clause
(vii) of Section 2(c) which is applicable only when a public
servant holds an office by which he is authorised or required
to perform any public duty. Here, it is nobody’s case that the
applicant was holding any office by which she was authorized
or required to perform the public duty and as such the
judgment in Nirmal Kaur’s case is applicable in the present
matter as the applicant is similarly situated. The applicant
was though running a counseling centre, she was neither
authorized nor holding any office to perform public duty.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO. 25 OF 2014
Smt. Sumitra W/o Prabhakar Thakre
..VERSUS..
State of Maharashtra,
C ORAM : PRASANNA B. VARALE, J.
DATED : 28th MARCH, 2014.
Citation; 2014 ALLMR(cri) 2438 Bom
Heard Mr. Shashibhushan Wahane, learned counsel
for the applicant and Mr. P. V. Bhoyar, learned Additional
Public Prosecutor for the non-applicant/State. ADMIT. By
consent of the learned counsel for the parties, the matter is
taken up forthwith for final disposal.
2] The applicant, being aggrieved by the order dated
21.1.2014 passed by the learned Special Judge, A.C.B. Court,
Nagpur, thereby rejecting the application (Exh.9) filed by the
present applicant under Section 227 of the Criminal Procedure
Code seeking discharge in Special Criminal Case No. 3/2011,
is before this Court by this Revision Application under Section
397 read with Section 482 of the Criminal Procedure Code.
3] Brief facts giving rise to the present revision
application can be summarized as under :
The applicant is a social worker. She is a found
member and Secretary of one organization namely Shri
Ganesh Bahuuddeshiya Mahila Gramin Vikas Sanstha. The
applicant runs a Counseling Center namely Stree
Sashaktikaran Mahila Takrar Niwaran Kendra at Nagpur. She
is working as a Coordinator in the Center voluntarily for
rehabilitation of the victims of domestic violence.
On a complaint received from one Sheikh Karim
Sheikh Ibrahim in respect of demand of an amount by the
appllicant to settle the matter, the officials of Anti Corruption
Bureau arranged a trap. The trap was successful and led to
lodgment of Crime No. 3195/2010 against the applicant/
accused for committing offences punishable under Sections 7,
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988. (hereinafter referred to as ‘the P.C.
Act’)
After completion of investigation and filing of the
charge-sheet, the applicant preferred an application (Exh.9)
under Section 227 of the Criminal Procedure Code, seeking
discharge, before the learned Ad-hoc District Judge and
Additional Sessions Judge, Nagpur. The application was, in
turn, heard and decided by the learned Special Judge, A.C.B.
Court, Nagpur, which resulted in rejection of the same.
Therefore, the applicant/accused is before this Court.
4] Mr. Wahane, learned counsel for the applicant, in
challenge to the impugned order passed by the learned
Special Judge, submitted that the applicant, who is a
Coordinator of a Counseling Center and working voluntarily
for redressal of grievances of women in respect of
matrimonial discord, is falsely implicated in the present crime.
It is the submission of the learned counsel that even taking
the case as it is against the applicant, on the backdrop of the
fact that the applicant/accused is not a ‘public servant’, the
provisions of P.C. Act does not attract and no case is made out
against the applicant. Learned counsel further submitted that
the applicant is neither appointed by the State Government or
the Central Government, nor the applicant is discharging any
‘public duty’. Learned counsel for the applicant, by inviting
my attention to the provisions of P.C. Act, more particularly
Section 2(c), submitted that the word ‘Public Servant’ is
defined under the Act and is having a definitive meaning
categorized under various Clauses. He further submitted that
the basic requirement are three fold for compliance of Section
2(c) and those are – (i) any person in the service or pay of the
Government (2) receiving remuneration, fees or commission
for the performance by the Government ; and (3)
performance of a public duty. Learned counsel for the
applicant submitted that the factor of performance of ‘public
duty’ will have to be read conjointly with the words ‘in the
service or pay of the Government or receiving remuneration
or fees or commission by the Government’. Thus, it was the
bone of contention of learned counsel for the applicant that as
the material falls too short against the applicant to attract any
of above referred qualifying material, the prosecution against
the applicant is throughly unsustainable.
5] Learned counsel for the applicant invited my
attention to the documents placed on record in support of his
submission i.e. annexure-C, which is a reply to an application
moved by the applicant to the office of Commissioner of
Police under the Right to Information Act, 2005, seeking
information whether the organization of the applicant receives
any remuneration or honorarium. By the said reply, it was
informed to the applicant that no information is available with
the office in that respect. Learned counsel for the applicant,
therefore, submitted that even the police administration itself
is not sure whether the applicant receives any remuneration
or honorarium and on the backdrop of this fact, the
application of the applicant seeking discharge ought to have
been allowed by the learned Special Judge.
6] Learned counsel for the applicant then invited my
attention to the document at Annexure-B, which is an
application filed by the applicant/accused before the learned
Sessions Judge, for directing the investigating agency to
produce the appointment letter of the accused. Learned
counsel submitted that there was no reply to the application.
7] Per contra, learned Additional Public Prosecutor for
the State supports the impugned order passed by the learned
Specual Judge and submits that the applicant was permitted
to run the Counseling Center. In this respect, he invited my
attention to the document R-1, placed on record along with
the reply of the State. In the course of argument, learned APP
submitted that the applicant by submitting applications had
requested the Additional Commissioner of Police for providing
place to run the Counseling center either at Ajani police
station or Nandanwan police station. Learned APP placed on
record the copies of those applications and the
communication issued by the office of Additional
Commissioner of Police, dated 24.03.2009. The same are
taken on record and collectively marked as “X” for
identification. The communication dated 24.03.2009 is
addressed to the Senior Police Inspector of Nandanwan Police
station calling for the report in respect of the premises taken
for running Mahila Cell. It is stated in said communication
that the applicant had submitted an application seeking space
for running counseling center and on receiving information
that there is no space available in the police stations and if
the applicant wish to start the Counseling Center in rental
premises on her own, there is no objection from the police
station. It is further stated in the communication that on
receipt of report from the police station, the applicant opted
for running counseling center in rented premises available
behind the police station. Learned APP, on the basis of these
documents, submitted that the applicant is performing the
public duty and as such is a ‘public servant’ within the
meaning of Clause (viii) of Section 2(c) of the P.C. Act. He
further submitted that as the applicant was performing ‘public
duty’ and instead of attempting to settle the disputes through
counseling, she indulged in an activity of demand of bribe and
as such the applicant has committed a serious offence. He
further submitted that as there is prima facie material against
the applicant, the learned Special Judge rightly rejected the
application of the applicant seeking discharge.
8] Learned counsel for the applicant, to substantiate
his case, placed reliance on the judgments reported in 2008
All M.R. (Cri.) 733, in the case of Brijlal Sadasukh
Modani .vs. State of Maharashtra and others, 1998 Cri.L.J.
311 in the case of A.R. Puri .vs. State, AIR 2000 Supreme
Court 937, in the case of State of Maharashtra .vs. Laljit
Rajshi Shah and others.
Learned APP, in support of his submissions, placed
reliance on the judgment of the Apex Court reported in
(2002) 7 Supreme Court Cases 636, in the case of State of
Maharashtra and another .vs. Prabhakarrao and another.
9] As the controversy in the present application
revolves around the issue whether the applicant satisfies the
requirement of Section 2(c) so as to treat her as a ‘public
servant’ and in turn attract the provisions of Sections 7, 13(1)
(d) read with Section 13(2) of the P.C. Act, it will be useful to
refer to the provisions of Section 2(c). The relevant provision
is clause (i) of Section 2(c), which reads thus -
“Section 2 – (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) .............
10] Learned APP submitted that clause (viii) of Section
2(c) takes in its compass the act of the applicant. Thus, it will
be useful to refer to the provision of clause (viii) of Sec.2(c),
which reads thus :-
“Section 2 - (c) “public servant” means -
(viii) any person who holds an office by
virtue of which he is authorised or required to
perform any public duty.”
11] Insofar as the contentions of learned counsel for
the applicant in respect of requirements of Clause (i) of
Section 2(c) are concerned, on a perusal of the material, I find
considerable merit in the submissions of learned counsel for
the applicant. Though, learned APP made an attempt to
submit that the applicant is discharging ‘public duty’ and
therefore, provision of Clause (i) of Section 2(c) attracts
against the applicant, I am unable to accept the the
submission of learned APP.
12] Learned counsel for the applicant was justified in
submitting that the words ‘performance of public duty’ cannot
be read independently and these words will have to be read
conjointly with the earlier part of clause (i) and that part deals
with ‘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’. (emphasis supplied). In
the present case, there was no material placed before the
learned Special Judge by the prosecution to show that the
applicant was receiving either pay from the Government or
remuneration or fees or commission from the Government.
Learned APP submitted that clause (viii) of Section 2(c) takes
in its sweep the act of the applicant. In support of his
submission, learned APP relied on the material namely the
application submitted by her and the Government Circular,
issued by the Home Department, Government of
Maharashtra, dated 29.05.2010. The application was
submitted by the applicant to the Commissioner of Police for
making available the space to the institute for running
Counseling Center either at Ajani police station or Nandanwan
police station. It is nobody’s case that the space was made
available to the applicant either in Ajani police station or
some other police station. On the contrary, the
communication dated 24.03.2009 (marked as ‘X’), on which
learned APP placed reliance, show that there was no space
available for the applicant in the police station and police
station informed the applicant to make arrangements for the
rented premises.
13] Perusal of Government Circular dated 29.05.2010,
issued by Home Department, Government of Maharashtra
show that on the backdrop of various directions of the Apex
Court, instructions are given to the police stations firstly to
make attempts to settle the matrimonial disputes by
providing counseling to both the parties and to establish such
counseling centers at police stations. Even on reading of this
Circular, an unescapable conclusion is, there may be a case in
in which if a misdeed is committed in a counseling center at
police station initiated by providing financial assistance by the
Government, but such is not the case in the present matter.
At the cost of repetition, it may be again observed that the
applicant was neither provided any space in the police station
to run the counseling center nor any financial assistance was
provided to the applicant for running the counseling center in
police station. Learned APP was right in submitting that the
scope is widened under clause (viii) of Section 2(c) of the new
Act i.e. Prevention of Corruption Act, 1988, but even
considering this widened scope of the Act under Clause (viii)
of Section 2(c), there is no material to attract Clause (viii)
against the applicant. Here again, learned APP has
emphasized on the words ‘public duty’ and made an attempt
to submit that the applicant, who was running a counseling
center, was discharging a ‘public duty’ and as such, the act of
the applicant comes within the scope of Clause (viii) of
Section 2(c). I am unable to accept the submission of learned
APP for the reason that here also the words ‘public duty’ will
have to be read with keywords ‘any person who holds an
office by virtue of which he is authorised or required to
perform any public duty. (emphasis supplied). There is no
material placed on record to show that the applicant was
holding any office and was authorized by the Government or
any authority to perform public duty.
14] In support of his submissions, learned counsel for
the applicant placed reliance on the judgment of this Court in
Brijlal Modani’s case (supra). In this case, the petitioner was
an employee of Osmanabad Janata Sahakari Bank Ltd.,
holding the post of General Manager. The Division Bench of
this Court, considering various provisions of the Maharashtra
Cooperative Societies Act, Banking Regulation Act and the
judgments of the Apex Court on the backdrop of Section 2(c)
of the P.C. Act, arrived at a conclusion that the petitioner
therein , who was discharging his duty as a General Manager,
cannot be termed as a ‘public servant’ ad defined in the P.C.
Act. As such, learned counsel for the applicant was justified in
submitting that the applicant is on better footing than
petitioner Brijlal Modani, as the applicant herein is running a
private counseling center.
15] Perusal of the impugned order passed by the
learned Special Judge show that though, learned Special
Judge observed that the applicant was not receiving any kind
of remuneration, merely on the consideration that permission
was granted to the applicant to run “Women Redressal Cell”,
held the applicant was a public servant within the meaning of
Section 2(c)(viii) and negated the contentions raised by the
applicant.
16] Though, learned APP placed reliance on the
judgment of the Apex Court in Prabhakarrao’s case (supra), in
my opinion, there cannot be any dispute on the proposition
laid down by the Apex Court in the reported judgment, but the
same would not be helpful to draw support for his
submissions.
::: Downloaded on - 30/07/2014 12:18:52 :::
Bombay High Court
14 Revn.Appln.No.25/14
17] The Apex Court in the judgment reported in
(2002) 7 Supreme Court Cases 631, in the case of Govt.
of Andhra Pradesh and others .vs. P. Venku Reddy, hold that
the P.C. Act gives a wider definition of term “public servant”.
The Apex Court has observed thus -
“11. Under the repealed Act of 1947 as
provided in Section 2 of the 1988 Act, the
definition of “public servant” was restricted to
“public servants” as defined in Section 21 of the
Indian Penal Code. In order to curb effectively
bribery and corruption not only in government
establishments and departments but also in
other semi-governmental authorities and bodies
and their departments where the employees are
entrusted with public duty, a comprehensive
definition of “public servant has been given in
clause (c) of Section 2 of the 1988 Act.
12. In construing the definition of “public
servant” in clause (c) of Section 2 of the 1988
Act, the court is required to adopt a purposive
approach as would give effect to the intention of
the legislature. In that view the Statement of
Objects and Reasons contained in the Bill
leading to the passing of the Act can be taken
assistance of. It gives the background in which
the legislation was enacted. The present Act,
with a much wider definition of “public servant”,
was brought in force to purify public
administration. When the legislature has used
such a comprehensive definition of “public
servant” to achieve the purpose of punishing
and curbing growing corruption in government
and semi-government departments, it would be
appropriate not to limit the contents of the
definition clause by construction which would be
against the spirit of the statute. The definition
of “public servant”, therefore, deserves a wide
construction.”
18] In the reported judgment in 2013(3) Bom.C.R.
(Cri.) 31 in case of Sadashiv Sutar .vs. State of Maharashtra
thru. ACB, this Court taking support from the judgment of the
Apex Court reported in A.I.R. 1998 S.C. 2120 in the case of
P.V. Narsimha Rao .vs. State (CBI/SPE) etc., reproduced the
observations dealing with the term “public servant”. On the
backdrop of an argument that the Member of Parliament does
not fall within the ambit of Section 2 Clause (viii) of P.C. Act,
the Apex Court examined the question as to whether a
Member of Parliament holds an office ?. The Apex Court
dealing with said issue, referred to quote of Lord Wright in
(1942) AC 561M in case of McMillan .vs. Guest. Lord Wright
has said -
“The word ‘office is of indefinite content.
Its various meanings cover four columns of the
New English Dictionary, but I take as the most
relevant for purposes of this case the
following : “A position or place to which certain
duties are attached, especially one of a more or
less public character.”
In the same case, Lord Atkin gave the following meaning -
“An office or employment which was subsisting,
permanent, substantive position, which had an
existence independent of the person who filled
it, which went on and was filled in succession by
successive holders.”
In Statesman (Private) Ltd. .vs. H.R. Deb and ors.,
reported in (1968) 3 S.C.R. 614 ; and in Mahadeo .vs.
Shantibhai and ors., reported in (1969) 2 S.C.R. 422, the Apex
Court has adopted the meaning given by Lord Wright when it
said : “An office means no more than a position to which
certain duties are attached.” The Apex Court then held that
we are, therefore, of the view that a Member of Parliament
holds an office and by virtue of such office, he is required or
authorised to perform duties and such duties are in the nature
of public duties. A Member of Parliament would, therefore,
fall within the ambit of sub-clause (viii) of Clause (c) of
section 2 of the 1988 Act.
19] On the backdrop of these fats, this Court in
Sadashiv Sutar’s case was considering the case of the
applicant, who was serving as a Branch Manager in a
Cooperative Bank under liquidation and had demanded
Rs.Five lakhs for vacation of premises and on a trap, he was
caught red handed. This Court, thus, in view of the provisions
of the P.C. Act and the Constitutional perspective, held that
the position of a Co-operative Society is not confined to local
limits, nor its functioning and working restricted to few
persons. This Court further observed that there is a definite
state of the society and the community at large in the
working and functioning of such societies.
20] There cannot be any dispute on the proposition of
law laid down by this Court in the case of Sadashiv Sutar.
But, in the present case, as contended by learned APP, merely
because the applicant was discharging a public duty, it cannot
be a reason for applicability of Section 2(c) of the Act to her. I
am, therefore, not able to persuade myself to accept the
contention of learned APP that the applicant is discharging
public duty and as such the applicant is a public servant and
Clause (viii) of Section 2(c) attracts against the applicant.
The Apex Court in the judgment reported in (2009) 13
Supreme Court Cases 418, in the case of State of
Punjab .vs. Nirmal Kaur, dealt with the aspect. The respondent
therein was running a private coaching center and was facing
the accusation of commission of offences punishable under
Section 420, 465, 467, 468, 470 and 120-B of the Indian Penal
Code and under Section 13(1)(d) read with Section 13(2) of
the P.C. Act. It was the stand of the appellant/State that as
the respondent was running a coaching center, the
respondent was performing public duty. The Apex Court, by
quoting the provisions of Section 2(c), clauses (i) to (xii),
observed that the stand of the applicant/State is that in any
event, by running coaching centre, the respondent was
performing public duty. The Apex Court in clear words held
that the submission overlooks basic requirement of clause
(vii) of Section 2(c) which is applicable only when a public
servant holds an office by which he is authorised or required
to perform any public duty. Here, it is nobody’s case that the
applicant was holding any office by which she was authorized
or required to perform the public duty and as such the
judgment in Nirmal Kaur’s case is applicable in the present
matter as the applicant is similarly situated. The applicant
was though running a counseling centre, she was neither
authorized nor holding any office to perform public duty.
21] Before parting with the judgment, it will be
interesting to note that the applicant has placed on record a
document “Annexure-D”, which is a sanction order issued by
the office of Deputy Commissioner of Police/Superintendent of
Police, ACB, Nagpur for filing charge-sheet against the
applicant. It is difficult to understand as to what was the
consideration and application of mind by the sanctioning
authority while issuing the sanction order against the
applicant. Be that as it may. Suffice it would be to say that
even this sanction order would be of no help to the
prosecution to establish its case.
22] Thus, taking into consideration all above referred
facts and the material on record, in my opinion, a case is
made out by the learned counsel for the applicant for
interference of this Court in exercise of its inherent powers
under Section 482 of Cr.P.C.
23] In the result, the revision application is allowed.
The order below Exh.9 passed by the learned
Special Judge, A.C.B. Court, Nagpur in Special Criminal Case
No. 3/2011, is quashed and set aside.
The applicant/accused is discharged in Crime No.
3195/2010 for the offences punishable under Sections 7,
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988., pending before the learned Special
Judge, A.C.B., Nagpur, vide Special Criminal Case No.3/2011.
24] With these observations, the revision application is
disposed of.
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