In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.40 of 2010
Manoj Kumar @ Manoj Kumar Singh........................ Petitioner
VERSUS
State of Jharkhand through Vigilance and others.....Respondents
CORAM:HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner: Mr.Y.V.Giri, Sr. Advocate
For the Vigilance : Mr. A.K.Kashyap, Sr. Advocate
Reserved on 17.4.2010 Pronounced on 26.4.2010
7. 26.4.10
. This application has been filed for quashing of the first
information report of Vigilance P.S. Case No.23 of 2009 (Special
Case No.27 of 2009) instituted under Sections 467, 468, 469, 471,
406, 409, 420, 109/120B of the Indian Penal Code and also under
Sections 7, 10, 13(1)(e) of the of the Prevention of Corruption Act
(hereinafter referred to as ‘the Act’).
The facts leading to filing of this case are that the Income
Tax Department laid a raid in the house of the petitioner on
15.10.2009 where 169 term deposit receipts worth
Rs.12,54,23,337/- of North Bihar Regional Gramin Bank, Murtuza
Branch, P.S. Dariapur, District-Chapra were found which were
either in the name of the petitioner or his family members.
That apart, 42 files of the Government Department relating
to disciplinary proceeding, tender, transfer and posting were found.
The said file as well as the aforesaid term deposit receipts were
seized by the Income Tax Department.
On getting such information, the Deputy Superintendent-
cum-Officer-in-Charge of Vigilance Bureau, Ranchi lodged the case
alleging therein that the petitioner being a Private Secretary of the
then Minister, Shri Chandra Prakash Choudhary did acquire asset
which is disproportionate to his known source of income and on
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that basis, Vigilance P.S case no.23 of 2009 was registered under
Sections 467, 468, 469, 471, 406, 409, 420, 109/120B of the Indian
Penal Code and also under Sections 7, 10, 13(1)(e) of the
Prevention of Corruption Act.
The said first information report has been sought to be
quashed by way of the instant writ application.
Mr. Y.V.Giri, Sr. Counsel appearing for the petitioner
submitted that the then Minister of Drinking Water and Sanitation
and Science and Information Technology, Government of
Jharkhand, Shri Chandra Prakash Choudhary in order to avail the
facility of having a Private Secretary (external quota), appointed
this petitioner as Private Secretary (external quota) as it was within
his competence to appoint any one on the said post which is not a
Government post and such Private Secretary is not supposed to
discharge any Government duty, rather Private Secretary (external
quota) assists the Minister in the matter other than the public duty
and that such Private Secretary (external quota) is not paid from
the public exchequer, rather he is being paid from the allowances
which are admissible to the Minister and in this view of the matter,
the petitioner never comes within the purview of the public servant
as defined in Section 2 (c) of the Act and as such, the petitioner,
being not a public servant, cannot be prosecuted under the
provision of the Prevention of Corruption Act.
Learned counsel goes on further to elaborate his submission
by referring to Section 2(c) (i) of the Act defining ‘public servant’
that 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 can be a public servant but the
petitioner has neither been appointed by the Government nor did
he receive his salary from the Government nor was paid fees or
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commission for the performance of any public duty and as such,
the petitioner cannot by any stretch of imagination be held to be a
public servant.
Learned counsel further submitted that though the petitioner
received remuneration but that was never paid from the
Government exchequer, rather it was being paid from the
allowances given to the Minister under the provision of the ‘Bihar
Ministers’ Salaries and Allowances Act, 1953′ and under this
circumstance, the petitioner can never be said to have received
allowance/pay from the State Government and as such, the
petitioner being not in service of the Government nor received the
pay from the State Government nor had been performing any
public duty, never comes within the purview of public servant as
defined under Section 2 (c)(i) of the Act.
Learned counsel in support of his submission referred to a
decision rendered in the case of R.S.Nayak vs. A.R.Antylay (AIR
1984 SC 684) wherein it has been held that the M.L.A, being not
in Government service, never receives pay from the State
Government rather he receives allowance/pay from the grant which
is charged under the Consolidated Fund of the State, and hence, it
was held that the M.L.A is not a public servant within the meaning
of Section 21 of the Indian Penal Code and, therefore, the
petitioner’s case being similar to the case of the M.L.A, cannot be
said to be a public servant within the meaning of Section 2(c)(i) of
the Act and, therefore, the prosecution under the Prevention of
Corruption Act cannot be maintained and, therefore, the first
information report is fit to be quashed.
As against that, Mr. A.K.Kashyap, Sr. Counsel appearing for
the Vigilance submitted that public servant as defined under
Section 2(c)(i) of the Act has been divided in three categories and
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if anyone comes within any of the categories, one can be held to
be a public servant and there has been no doubt about this
proposition as the same has been laid down by the Hon’ble
Supreme Court in the case of R.S.Nayak vs. A.R.Antylay
(supra) referred to on behalf of the petitioner.
In this respect, it was further submitted that though the
petitioner being a Private Secretary (external quota), may not be in
the service of the Government but he received his pay from the
Government Department which would be evident from Annexure A
disclosing therein that the petitioner being a Private Secretary to
the then Minister received payment from the Department of
Sanitation and Drinking Water and Science and Information
Technology which fact disproves the plea of the petitioner that
pay/allowance was given to the petitioner from the allowances
which the Minister received and, therefore, under this situation, the
petitioner can easily be said to be a public servant in terms of
Section 2 (c)(i) of the Act and, therefore, this application is fit to be
dismissed.
In the context of the submission made on behalf of the
petitioner one is required to take notice of the provision of the
Prevention of Corruption Act particularly Section 2 (c) (i) of the Act
defining ‘public servant’ which reads as follows:
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;
The expression ‘or’ used in the definition of the public
servant appears to be a disjunctive and as such definition can be
said to have been divided in three compartments (i) a person in the
service of the Government (ii) a person in the pay of the
Government and (iii) a person remunerated by fees or commission
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for the performance of any public duty by the Government. This
proposition was laid down by the Hon’ble Supreme Court in the
case of R.S.Nayak vs. A.R.Antulay (supra) while taking note of
clause 12(a) of Section 21 of the Indian Penal Code which is in
para materia of the provision as contained in Section 2(c)(i) of the
Act. The Hon’ble Supreme Court while holding that a person can be
a public servant if he falls in any one of the categories has also
observed that one can be in the service of the Government and
may be paid for the same and that one can be in the pay of the
Government without being in the service of the Government in the
sense of manifesting master-servant or command-obedience
relationship.
Thus, there has been no doubt that a person without being
in service of the Government if receives pay from the Government,
he is very much a public servant in terms of the definition as given
under Section 2 (c)(i) of the Prevention of Corruption Act .
Admittedly, the petitioner is not in the service of the
Government but according to leaned counsel appearing for the
vigilance, he while holding post of Private Secretary (external
quota) to the Minister of Drinking Water and Sanitation drew pay
from the Department of Drinking Water and Sanitation but stand of
the petitioner is that the petitioner being a Private Secretary
(external quota) drew his salary from the allowances made to the
Minister and as such, petitioner can never be said that he is in the
pay of the Government of the State as in the case of M.L.A. It is
true that in a case of R.S.Nayak vs. A.R.Antulay (supra), M.L.A
was held to be not a public servant within the meaning of Section
21 of the Indian Penal Code on the premise that the M.L.A draws
his allowance from the grant which is charged from the
Consolidated Fund of the State and as such, M.LA is not in the pay
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of the Government of the State but here as has been shown by Mr.
Kashyap by producing a document (Annexure A) that the petitioner
drew pay from the Department of Drinking Water and Sanitation
and as such, at this stage, the plea of the petitioner that the
petitioner did draw his salary from the allowance of the Minister
cannot be accepted, rather the petitioner in view of the statement
made by the Vigilance regarding pay being drawn from the
Government Department can be said to be in the pay of the
Government and as such, the petitioner, prima facie, will be
coming within the definition of public servant as defined in Section
2(c)(i) of the Act.
Once it has been found, prima facie, that the petitioner is a
public servant, the prosecution under the Act can easily be
maintained and, therefore, I do not find any merit in this writ
application and hence, it is dismissed.
However, before parting with this order, it goes without
saying that any observation made for the purpose of disposal of
this case would not be prejudicial to the right of the parties.
( R.R.Prasad, J.)
ND/