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Rajasthan High Court · body

2015 DIGILAW 1059 (RAJ)

Kaushlendra Kumar Yadav v. State of Rajasthan

2015-05-13

M.N.BHANDARI

body2015
JUDGMENT 1. - By this petition, a challenge is made to the order dated 02.06.2014, by which charges were framed against the petitioner. Prior to the aforesaid, application for discharge was dismissed vide order dated 31.03.2012. 2. Learned counsel submits that the petitioner was a Reader in private college, thus does not fall in the definition of "public servant" so as to apply Prevention of Corruption Act, 1988 (in short "the Act of 1988"). He further states that sanction for prosecution was given by the NCTE, whereas he was not employee of NCTE, thus even sanction for prosecution is defective and by the authority not competent for it. Hence, on that ground also, impugned order, framing charges, deserves to be quashed. 3. Learned Public Prosecutor appearing for the CBI opposed the petition. He submits that the petitioner was nominated as Visiting Expert by NCTE and while discharging the duties as Visiting Expert, occurrence took place. The petitioner, thus falls in the definition of "public servant" as given under Section 2(c) of the Act of 1988. Since the petitioner was discharging the duties as Visiting Expert, sanction for prosecution was given by NCTE who had nominated him to discharge those duties. The sanction for prosecution was, thus by the competent authority, accordingly no case is made out for challenge to the order framing charges against the petitioner. 4. I have considered the rival submissions made by the parties and perused the record. 5. It is not in dispute that petitioner was a Reader in the private college but offence was committed while discharging duties as Visiting Expert on nomination by the NCTE. In view of the above, question would be as to whether he falls in the definition of "public servant as given under Section 2(c) of the Act of 1988. 5. It is not in dispute that petitioner was a Reader in the private college but offence was committed while discharging duties as Visiting Expert on nomination by the NCTE. In view of the above, question would be as to whether he falls in the definition of "public servant as given under Section 2(c) of the Act of 1988. For ready reference, aforesaid provision is quoted hereunder: 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) 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; (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; (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 subclauses 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." 6. The perusal of definition of "public servant" includes not only those employees who in the service of the Government but those who hold office which authorised or required to perform any public duty apart from those who are employee of the educational or other institution and receiving or having received any financial aid from the Central Government. The petitioner was employee of educational institution. It is not alleged that he was not receiving any financial aid. It is apart from the fact that petitioner was holding office and was authorised to perform public duties on his nomination as Visiting Expert by the NCTE. In view of the above, petitioner falls in the definition of "public servant" so as to apply the Act of 1988. 7. The other ground is regarding sanction for prosecution. Reference of Section 19 of the Act of 1988 would be relevant and is quoted hereunder: "19. Previous sanction necessary for prosecution. - (1) No court shall take cognisance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the code of Criminal Procedure, 1973,- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub6 section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.-For the purposes of this section,- (a) error includes competency of the authority to grant sanction; (b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature." 8. The sanction for prosecution is required when one is employed in the Government and his services are terminable save with the approval or by the Government. The sanction for prosecution is required when one is employed in the Government and his services are terminable save with the approval or by the Government. The petitioner was employed by the private institution but was discharging duties as Visiting Expert, however, it has not come that his service was removable save by or with the sanction of the Central or State Government being Visiting Expert, appointed by the NCTE. If argument of the petitioner is accepted that being employee of the private institution, the NCTE was not authorised to give sanction for prosecution. In that case, Section 19 of the Act of 1988 would not apply so as to require sanction for prosecution, however, taking into consideration that petitioner was discharging duties of Visiting Expert, the order for sanction for prosecution was passed by the NCTE and I do not find any illegality therein. 9. In view of the discussion made above, I do not find any substance in the petition. It is dismissed accordingly.Petition dismissed. *******