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Individual Performing ‘Public Duty’ Will Come Under Prevention Of Corruption Act Though Not A ‘Public Servant’ : Karnataka High Court

It is a matter of great solace to note that the Karnataka High Court has just recently on July 15, 2021 in a learned, laudable, latest and landmark judgment titled G Krishnegowda vs The State of Karnataka in CRL.P.No.2801/2021 has observed in no uncertain terms that even if an individual is not a public servant, but if he is discharging “public duty” by virtue of his office, he is answerable to the State and public and he comes within the ambit of the Prevention of Corruption Act. This clearly demonstrates that Karnataka High Court favours zero tolerance for corruption and very rightly so! The court clarified in the FIR quashing the petition that, “The offences under the Prevention of Corruption Act can be invoked not only against a public servant but also against a person, who by virtue of his office has been discharging public duty”.

At the outset, the single Judge Bench comprising of Justice S.Vishwajith Shetty of Karnataka High Court first and foremost dwells on corruption saying that, “Corruption hurts everyone. Corruption erodes the trust of a common man in the system. Corruption affects the society, the industry, the economy, the mankind and the nation at large. Corruption has been in existence even during ancient times and it will continue to exist and our vision has to be to curb the same and make our nation corruption free.”

Simply put, the Bench then states in para 2 that, “Petitioner who is the sole accused in Crime No.2/2021 registered by the Anti Corruption Bureau (ACB), Chickkaballapura, for the offences punishable under Sections 13(1)(b) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘P.C. Act’), has filed this petition under Section 482 Cr.PC with a prayer to quash the FIR and all further proceedings in Crime No.2/2021 which is now pending before the Court of Principal District & Sessions Judge, Chickkaballapura.”

While elaborating on the facts of the case, the Bench then envisages in para 3 that, “Brief facts of the case as revealed from the records are, petitioner is working as a Project Manager in Nirmithi Kendra, Chikkaballapura Taluk and District, which is a society registered in the year 2008 under the provisions of the Karnataka Societies Registration Act, 1960. The Governing Body of the Nirmithi Kendra comprises of the Deputy Commissioner of the District as the Chairman, Chief Executive Officer of the Zilla Panchayat as the Executive Chairman, Deputy Secretary (Development) of the Zilla Panchayat as the Member Secretary, the Project Manager of Kolar District Nirmithi Kendra, the Executive Engineer, Zilla Panchayat Engineering Division, the District Welfare Officer, Chikkaballapur, the DDPI, Chikkaballapura, the Project Manager, Chickkaballapura Nirmithi Kendra, amongst others as members. The administration of the Kendra is governed by the Governing Body. The principal object of the Kendra is to develop skills in construction and to undertake the civil construction works assigned by the Government.”

To put things in perspective, the Bench then enunciates in para 4 that, “On receipt of a source report that the petitioner who is working as a Project Manager in District Nirmithi Kendra, Chikkaballapura, was possessing disproportionate assets as against the known sources of his income, the Inspector of Police, ACB, Chikkaballapura, had forwarded the said report to the Superintendent of Police, ACB Central Zone, Bengaluru, based on which, FIR in Crime No.2/2021 was registered against the petitioner. Being aggrieved by the same, petitioner has approached this Court with a prayer to quash the same.”

Needless to say, the Bench then puts forth in para 10 that, “The undisputed facts of this case are, petitioner is an employee of Nirmithi Kendra, Chikkaballapura, which is a society registered under the Karnataka Societies Registration Act, 1960. The said Kendra has been undertaking civil construction works of the State Government assigned to it. Petitioner who is working as Project Manager of the Kendra has been looking after the said construction works in various sites.”

Be it noted, the Bench then observes in para 13 that, “From the reading of the definition of the word ‘public servant’ as found in the P.C.Act, it is very clear that a person who holds an office by virtue of which he is authorized or required to perform any public duty, and any person or employee of any institution if it has been receiving or if it has received any financial assistance from the State or Central Government, shall be considered as a public servant. The explanation to Section 2(c) of the P.C.Act would further go to show that such a person may be appointed by the Government or not. Therefore, a public servant need not be a Government/civil servant, but a Government/civil servant is always a public servant.”

While citing the relevant case law, the Bench then observes in para 14 that, “The Hon’ble Supreme Court in Manusukhbhai Kanjibhai Shah’s case (supra) has held that an employee of a co-operative society which is controlled or aided by the Government is covered within the comprehensive definition of the word ‘public servant’ as defined under the P.C. Act.”

As it turned out, the Bench then holds in para 15 that, “The judgment of this Court in Gopinath’s case was rendered having regard to the fact that the Nirmithi Kendra of which the petitioner therein was employed had not received any funds from the State or the Central Government or any other public authority. There is a specific finding to the said effect in the said judgment. However, in the case on hand, the records would reveal that the Nirmithi Kendra in which the petitioner is employed has been receiving funds from the Central as well as the State Government. Therefore, the judgment of this Court in Gopinath’s case will not be applicable to the facts of this case.”

Adding more to it, the Bench then also specified in para 19 that, “Having regard to the aforesaid pronouncements of the Hon’ble Supreme Court in Indian Oil Corporation Limited case and in M.V. Mohanan Nair’s case (supra), it cannot be said that the judgment of this Court in Gopinath’s case (supra) has been affirmed by the Supreme Court.”

Quite significantly, the Bench then minces no words to makes it clear in para 20 that, “Be that as it may, having regard to the fact that the Nirmithi Kendra in which the petitioner is employed has been receiving funds from the State and the Central Government and taking into consideration the definition of the word ‘public servant’ as found in the P.C. Act, it cannot be but said that the petitioner is a public servant. Even if a person is not a public servant, but by virtue of his office if he is discharging public duty, then he is covered under the ambit of the P.C. Act.”

Briefly stated, the Bench then discloses in para 21 that, “Corruption in our country is a growing menace and P.C. Act being a welfare legislation is required to be interpreted keeping in mind the object and spirit of the statute. In furtherance of the fight against corruption a broad interpretation to the provisions of this statute is required to be given and the arms of this Act is required to be extended to the maximum. The offences under the P.C. Act can be invoked not only against a public servant but also against a person, who by virtue of his office has been discharging ‘public duty’.” In this para, the Bench then also discusses about Manusukhbhai Kanjibhai Shah’s case (supra) what the Hon’ble Supreme Court has observed at paragraphs 26, 27, 44 to 46, 49 & 50 and we shall discuss here only para 26 which is most relevant. It states that, “26. In Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64, this Court observed: “68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.” (emphasis supplied).”

To be sure, the Bench then puts across in para 23 that, “The Hon’ble Supreme Court in Manusukhbhai Kanjibhai Shah’s case (supra), taking into consideration the rampant corruption that has been affecting the public life, with an object of making India corruption free, has observed that to achieve the purpose of punishing and curbing the corruption in society, the definition clause of the words ‘public servant’ and ‘public duty’ should not be limited affecting the very spirit of the statute.”

Most remarkably and also most significantly, what forms the cornerstone of this notable judgment is then put forth in para 24 wherein it is held that, “Petitioner is an employee of the Nirmithi Kendra which is undertaking civil construction work for the Government and has been receiving funds from the State and Central Government. Since the Kendra has been receiving funds from the Government, it can be termed that the said Kendra is under the control of the State Government and having regard to the nature of work discharged by the petitioner in a society which is under the control of the Government, it can be clearly said that the petitioner has been discharging public duty. The Kendra has been receiving funds from the Government and the works entrusted by the Government is performed by the Kendra, and therefore, the Kendra as well as its employees are answerable to the State as well as to the public. Petitioner is working as a Project Manager of Nirmithi Kendra and the nature of work carried on by him will fall within the definition of the word ‘public duty’ as defined under the P.C. Act. It is now well settled that even if a individual is not a public servant, but if he is discharging “public duty” by virtue of his office, he is answerable to the State and public and he comes within the ambit of the Prevention of Corruption Act. Therefore, even if the Nirmithi Kendra is not receiving or has not recovered any fund from the Central or State Government, but if the employees of the Kendra by virtue of his office is discharging public duty, then he is answerable to the State, Community and the public, and can be prosecuted for the offences under the P.C. Act. Accordingly, I answer the question framed for consideration in the affirmative.”

In hindsight, it may be recalled that the Bench had put across in para 9 that, “The question that would arise for consideration in this petition would be, “whether the petitioner who is an employee of Nirmithi Kendra which is a body registered under the Karnataka Societies Registration Act, 1960, can be prosecuted for the offences under the P.C.Act?”” It is this very question that is answered succinctly in para 24 as stated hereinabove.

No less significant is what is then stated in para 25 that, “Corruption is considered the single biggest problem faced by our country. It undermines democracy and rule of law and violates human rights. The corrupt take advantage of the loopholes in the legal system and that is why it has become a low risk but high profit business. Corruption to do the wrong thing is one thing, but when corruption reaches the stage of getting right things done which a citizen is legally entitled for, then the very moral fabric of the society is destroyed.”

Equally significant is what is then underscored in para 26 that, “Good laws alone would be not sufficient to make our country corruption free, but there has to be effective enforcement of the same and efforts should be towards making the concerned accountable. Demanding bribe is a crime so is offering a bribe.”

Finally and far most significantly, the Bench then holds in para 27 that, “The ACB has registered an FIR against the petitioner for the offences under Sections 13(1)(b) read with 13(2) of the P.C.Act, for the reason that the petitioner is possessing assets disproportionate to his known source of income. Since the Nirmithi Kendra wherein the petitioner is employed is said to have received funds from Central and State Government, it cannot be but said petitioner is a public servant. Petitioner by virtue of his office is discharging public duty, and therefore, is answerable to the State as well as the public and even if it can be said that he is not a public servant, he cannot be left out of the hook. The criminal petition, therefore, does not merit consideration and the petitioner is not entitled for the reliefs as prayed for by him. Accordingly, I proceed to pass the following order:

Criminal petition is dismissed.”

In conclusion, we thus see that the Karnataka High Court very well justifies with elegance the reasons why the petitioner’s criminal petition is dismissed. The Court found prima facie no bona fide reason for accepting the same. It also took a very strict, stern and strong view of corruption and this can be seen in most of the paras of this judgment. As we all know, corruption is eating into the vitals of our country and so there has to be zero tolerance for it which is precisely what the Karnataka High Court has made clear also in this very brief, brilliant, bold and balanced judgment.  It also defined the ambit as to which all can come under the class of public servants even if the individual is not a public servant but is discharging “public duty” by virtue of his office, he is answerable to the State and the public and he comes within the ambit of Prevention of Corruption Act and also cited the most relevant case laws to substantiate what it said as discussed also. Very rightly so!

Sanjeev Sirohi

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