Smt.Sumitra Kanthiya & Ors vs State on 30 July, 2008

                                 1


          S.B. CRIMINAL REVISION PETITION NO.453/2008

                   Smt. Sumitra Kanthiya & Ors.
                                Vs.
                        State of Rajasthan

                    Date of Order :: 30-07-2008


          HON'BLE MR. JUSTICE DEO NARAYAN THANVI


Mr. Sandeep Mehta, for the petitioner.
Mr. L.R. Upadhyay, Public Prosecutor.


            This revision petition has been filed against the

judgment of the learned Special Judge, Prevention of Corruption

Act Cases, Udaipur dated 12.12.2007 whereby he dismissed the

application of the petitioners dated 16.10.2007 in which it was

prayed for their discharge under Section 7, 13(1)(d) read with

Section 13(2) of P.C. Act and Section 120-B IPC. All the petitioners

pleaded not guilty to the above charge and claimed trial and the

case was fixed for prosecution evidence.



            It was alleged that the petitioners are not public

servant within the definition of Section 2(c) of the Prevention of

Corruption Act, 1988 as they are not being paid any salary or

remuneration in lieu of their services. Learned trial court observed
                                  2

that the cognizance was taken against the accused petitioners on

7.4.2004 under Section 13(1)(d) read with Section 13(2) of the P.C.

Act and Section 120-B IPC. Against that order, a revision petition

was filed in the High Court being S.B. Criminal Revision Petition

No.106/2006    which   was   dismissed   on   26.2.2007   with   the

observation that accused petitioners are at liberty to raise the

objections at the time of framing charges.



            Learned trial court observed that on 18.7.2007, when

the charges were framed, no such objection was raised, therefore,

the present application is not maintainable and the court cannot

review its own order dated 18.7.2007.



            Having perused the order dated 18.7.2007 of the trial

court, it appears that in the order itself, the trial court has

nowhere observed that it heard the petitioners or the Public

Prosecutor by marking the attendance of the Public Prosecutor and

all the accused petitioners and on perusing the record, order for

framing charge was pronounced and the charges were framed and

the case was fixed for prosecution evidence. Thus, the order dated

18.7.2007 is in clear violation of the directions given by this Court
                                  3

on 26.2.2007 in Criminal Revision No.106/06.



            That apart, as held by the Hon'ble Supreme Court,

reference of which has been given in the impugned order as well,

i.e. AIR 1995 SC 1314, State of Tamilnadu Vs. T. Thulasingam &

Ors. it has been observed that for finding the scope of Section 21

of the Indian Penal Code and Section 2(c) of the P.C. Act,

municipal councilors are not public servant because they are not

drawing salary. This decision of the Hon'ble Supreme Court was

based on the earlier decision of Ramesh B. Kulkarni Vs. State of

Maharashtra, reported in AIR 1985 SC 1655 wherein while

discussing the scope of Section 21 IPC vis.a.vis Section 5(1)(d) and

(2) of the P.C.Act, it was observed as under:-



         "The concept of a 'public servant' is quite
         different from that of a Municipal Councillor.
         A 'public servant' is an authority who muyst be
         appointed by Government or a semi-
         governmental body and should be in the pay or
         salary of the same. Secondly, a 'public servant'
         is to discharge his duties in accordance with
         the rules and regulations made by the
         Government. On the other hand, a Municipal
         Councillor 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 a
                                  4

          MLA gets allowance by way of honorarium does
          not convert his status into that of a 'public
          servant'. In Antulay's case (supra), the learned
          Judges of the Constitution Bench have
          referred to the entire history and evolution of
          the concept of a 'public servant' as
          contemplated by S.21 of the IPC."


            In view of the above decision of the Hon'ble Supreme

Court, the petitioners being municipal councilors are not public

servant and charges framed against them without giving them

opportunity of hearing on 18.7.2007 cannot be sustainable,

specially when the State refused to sanction prosecution and the

Anti Corruption Department submitted final report but the learned

Judge took the cognizance overlooking the above legal aspects.



            Consequently, this revision petition is allowed. The

order of the learned Special Judge, Prevention of Corruption Act

Cases, Udaipur dated 12.12.2007 is set aside and the petitioners

are discharged for the charges levelled against them.



                                        [DEO NARAYAN THANVI],J.

Praveen