JUDGMENT 1. - This is a revision against the order of learned Special Judge, Anti Corruption Cases, Jodhpur dated 31.7.1997 by which he ordered that charges under sections 409, 467, 477-A, 120-B IPC and Sections 5(1)(c)(d) & 5(2) of the Prevention of Corruption Act, 1947 and 120-B IPC be framed against all the accused persons. 2. I have heard the learned counsel for the petitioners as well as learned Public Prosecutor at length. 3. The case of the prosecution is that a complaint was lodged by the villagers to the Anti Corruption police that Sarpanch Mishrilal and Rameshwar Gram Sewak, without auctioning the abadi land bearing numbers 109 to 118 was given to the relations of the sarpanch at different rates ranging from Rs. 900/- to Rs. 1,200/- while the actual value of each of the plots was in between Rs. 10,000/- to Rs. 15,000/-. The complaint was investigated and it so revealed that both of them along with other persons had hatched a conspiracy and the sarpanch and gram sewak had misused their public offices and on 19.4.1988 the plots of land bearing numbers 109 to 118 were sold to the relations of sarpanch. The record was fabricated and pattas were issued. After investigation challan was presented before the Special Judge who framed the charges as stated above. Learned counsel for the petitioners submitted that Mishrilal was sarpanch while Rameshwarlal was group secretary and rest of the persons were private persorhs. So charge under section 409 IPC and Section 5(1) of the Prevention of Corruption Act could not have been made against private persons. 4. On the other hand, learned Public Prosecutor has tried to support the order. 5. Charge under section 409 IPC can be framed only against a public servant. Charge under sections 5(1)(c)(d) & 5(2) of the Prevention of Corruption Act, 1947 could be levelled only against public servants. But so far as private persons are concerned, I have been able to lay hands upon a judgment of Bombay High Court Major E.G. Barsay & Ors. v. The State, reported in AIR 1958 Bombay page 354, (D.B. Judgment) wherein it has been observed that it is an error in law to have charged accused who are not public servants with having committed the offences under sections 5(1)(c) & 5(1)(d) punishable under section 5(2) of the Prevention of Corruption Act r/w Section 34 of the Penal Code. v. The State, reported in AIR 1958 Bombay page 354, (D.B. Judgment) wherein it has been observed that it is an error in law to have charged accused who are not public servants with having committed the offences under sections 5(1)(c) & 5(1)(d) punishable under section 5(2) of the Prevention of Corruption Act r/w Section 34 of the Penal Code. The punishing section being Section 5(2), along, the addition of Section 34 of the Penal Code does not make those accused liable under section 5(1)(c) and Section 5(1)(d) of the Prevention of Corruption Act. But when these offences are said to have been committed in pursuance of the criminal conspiracy then it would be proper if a charge under section 5(1)(c) and (d) r/w Section 109 of the Penal Code is framed against those accused. The position of law is that the learned Special Judge could not have charged the private persons for offences under section 409 IPC and directly for offences under sections 5(1)(c)(d) & 4(2) of the Prevention of Corruption Act. He can charge these private persons if he finds that they are involved by way of criminal conspiracy for offence under section 5(1)(c) & (d) with the aid of Section 109 of IPC as per E.G. Barsay's case (supra). 6. The result is that the petition is partly allowed and the order framing charge under section 409 IPC against private persons viz. Bhanwarlal, Manak Chand, Birma Ram, Narayanlal, Mangilal, Smt. Phaudi, Smt. Phephi, Shri Narayanlal, Naresh, Pramod, Kukaram and Shri Rugha is set aside. They can be charged for offence under section 5(1)(c)(d) & 5(2) of the Prevention of Corruption Act r/w Section 109 IPC.Revision partly allowed. *******