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Rajasthan High Court · body

2011 DIGILAW 1169 (RAJ)

Ashok Kumar Badola v. State of Rajasthan

2011-05-30

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—An interesting legal issue has been raised in this petition, whether a Chairman of the Municipal Council falls within the definition of term "public servant" as defined under the Prevention of Corruption Act, 1988 or not? 2. The said issue arises under the following background: the petitioner, Mr. Ashok Kumar Badola, is the Chairman of the Municipality, Vijay Nagar, District Ajmer. One, Mr. Chain Singh had lodged a complaint with the Anti Corruption Bureau, wherein he claimed that this elder brother, Chittar Singh, is a registered contractor with the Public Works Department. The department owed Rs. 3,84,000/- to him for the construction of public toilets, which were constructed before 1.6.2004. Subsequently, his brother and submitted a final bill for a sum of Rs. 1,38,000/- to the Municipality, Vijay Nagar. In order to pass the said bill, he claimed that Mr. Ashok Kumar Badola, the petitioner, demanded a bribe of Rs. 6,000/- to Rs. 7,000/-. On 3.6.2004, the trap proceedings were carried out, and the petitioner was caught red handed. Subsequently, the Anti-Corruption Bureau filed a charge-sheet for offences under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act of 1988"). Vide order dated 22.7.2009, the learned trial Court framed charges against the petitioner for the aforementioned offences. Subsequently, the petitioner moved an application under Section 216 Cr.P.C., for amending the charges. However, vide order dated 19.2.2011, the learned Designated Court, Ajmer, dismissed the said application. Hence, this petition before this Court. 3. Mr. V.S. Gurjar, the learned counsel for the petitioner, has strenuously contended that since the petitioner happens to be the Chairman of a Municipality, he does not fall within the definition of "public servant" as defined under Section 2(c) of the Act of 1988. He has further contended that a public servant is an authority who must be appointed by the Government or a semi-governmental body and should be in the pay or salary of the same and must discharge his duties in accordance with the rules and regulations made by the Government. A Municipal Council or the Chairman 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. A Municipal Council or the Chairman 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 he gets allowance by way of honorarium does not convert his status into that of a 'public servant'. Therefore, neither a Municipal Councilor, nor the Chairman is a public servant. In order to buttress his contention, the learned counsel has relied upon the cases of Ramesh Balkrishna Kulkarni vs. State of Maharashtra ( (1985) 3 SCC 606 ), State of Tamil Nadu vs. T. Thulasingam & Ors. (1994 Supp. (2) SCC 405) and Sumitra Kanthiya (Smt.) & Ors. vs. State of Rajasthan (2009(1) Cr.L.R. (Raj.) 222). Hence, the petitioner cannot be prosecuted under the provisions of the Act of 1988. 4. On the other hand, Mr. N.A. Naqvi, the learned Additional Advocate General for the State of Rajasthan, has contended that there is a vast change in the definition of "public servant" as given in the Prevention of Corruption Act, 1947 (hereinafter referred to as the "Act of 1947") and as given in the act of 1988. In the Act of 1947, the term "Public Servant" meant "as defined under Section 21 of the Indian Penal Code". However, in the Act of 1988, the said definition was enlarged to include any person who holds as public office and discharges public duty. Thus, the definition under the Act of 1988 would include a Municipal Councilor or a Chairman of a Municipality. After all, the Municipal Councilor or the Chairman would be holding a public office and would be discharging a public duty. Secondly, the cases relied upon the learned counsel for the petitioner were decided under the Act of 1947. Therefore, after changes in the definition of the term "public servant", the said cases are inapplicable to the present case. He has further pointed out that this Court in the case of Sumitra Kanthiya (Smt.) has overlooked the fact that even the case of Sumitra Kanthiya (Smt.) was under the Act of 1988. It was not a case under the Act of 1947. Yet still relying upon the case of Ramesh Balkrishna Kulkarni (supra) and on the case of T. Thulasingam & Ors. It was not a case under the Act of 1947. Yet still relying upon the case of Ramesh Balkrishna Kulkarni (supra) and on the case of T. Thulasingam & Ors. (supra), this Court had held hat Municipal Councilors are not public servant within the meaning of Section 2(c) of the Act of 1988. According to the learned counsel, since the learned judge has completely ignored the change in the definition of the term public servant" introduced by the Act of 1988, the said judgment is per incurrium. Thus, the said judgment is also inapplicable. 5. Heard the learned counsel for the parties and perused the case law cited at the Bar. 6. Section 2 of the Act of 1947 defines the words "public servant" as meaning, "a public servant defined in Section 21 of the Indian Penal Code, 1860". Section 21(12) of the IPC, in turn, defines the term, "public servant" to mean, (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service of pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956. Since Municipal Councilors and the Chairmans of the Municipalities are elected by the public and not appointed by the Government, obviously under Section 21 they are not included in the category of "public servant". 7. However, the said definition does not exist in the Act of 1988. After repealing of the Act of 1947 by the Act of 1988. Since Municipal Councilors and the Chairmans of the Municipalities are elected by the public and not appointed by the Government, obviously under Section 21 they are not included in the category of "public servant". 7. However, the said definition does not exist in the Act of 1988. After repealing of the Act of 1947 by the Act of 1988. A fresh definition of the words "public servant" has been given introduced under Section 2(c) of the Act of 1988 defines the words "public servant" as under :- (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 matter of any body of persons, any adjudicatory functions; (v) any person authorized 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. (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 authorized or required to perform any public duty; (ix) any person who is the president, Secretary or of 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 Bord 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 of 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 or 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". 8. Under the said definition, a person who holds a public office and discharges public duty is certainly included in the definition of term "public servant". 8. Under the said definition, a person who holds a public office and discharges public duty is certainly included in the definition of term "public servant". A Municipal Councilor certainly holds a public office and obviously discharges public duty. Therefore, the Municipal Councilor would be included in the term "public servant". Moreover, since the Chairman is appointed from amongst the Municipal Councilors clearly even the Chairman holds a public office and discharges public duties. Thus, even the chairman of the municipal council would be included in the definition of terms "public servant" as defined in Section 2(c) of the Act of 1988. 9. A bare perusal of the cases of Ramesh Balkrishna Kulkarni (supra) and T. Thulasingam & Ors. (supra) clearly reveal that both the cases were decided under the Act of 1947. Since the definition of public servant has been changed by the Parliament and has been expanded to include holders of public office, who discharge public duties, the said cases do not rush to the rescue of the petitioner. 10. In the case of Sumitra Kanthiya (Smt.) (supra), the learned Co-ordinate Bench of this Court has overlooked the fact that the case of Sumitra Kanthiya (supra) was under the Act of 1988. Moreover, it has ignored the vast change in the definition of term "public servant" contained in Section 2(c) of the Act of 1988. Furthermore, it has erroneously relied upon the case of Ramesh Balkrishna Kulkarni (supra) and t. Thulasingam & Ors. (supra) without realizing that both the cases, decided by the Apex Court, were under the Act of 1947 and not under the Act of 1988. Thus, the learned Judge has ignored the relevant law and has relied upon the case law which would be irrelevant for the definition of the term "public servant" as contained in Section 2(c) of the Act of 1988. Hence, the said judgment is per incurrium. Thus, this Court is not bound by the opinion expressed by the learned Co-ordinate Bench. 11. Since the petitioner is covered by the definition of the term "public servant" as defined under the Act of 1988, the contention raised by the learned counsel is unacceptable. Therefore, this Court does not find any illegality or perversity in the impugned judgment, whereby the learned Judge had rejected the contention raised by he counsel for the petitioner which has been raised before this Court. Therefore, this Court does not find any illegality or perversity in the impugned judgment, whereby the learned Judge had rejected the contention raised by he counsel for the petitioner which has been raised before this Court. Hence, this revision petition is devoid of any merit; it is, hereby, dismissed.