REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 866 OF 2009
(Arising out of SLP (Crl.) No. 4907 of 2006)
State of Punjab ....Appellant
Versus
Nirmal Kaur ....Respondent
1
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single
Judge holding that the respondent cannot be proceeded against in terms of
Section 13(2) of the Prevention of Corruption Act, 1988 (in short the `Act’).
3. Factual position in a nutshell needs to be noted.
2
Respondent-Nirmal Kaur was running a coaching centre. On the
accusation of commission of offences punishable under Sections 420, 465,
467, 468, 471 and 120B of the Indian Penal Code, 1860 (in short the `IPC’)
and Section 13(1)(d) read with Section 13(2)
of the Act investigation was undertaken, charges were framed by learned
Sessions Judge Ferozepur, under Section 13(1)(d) read with Section 13(2)
of the Act as well as the offences punishable under IPC. A petition under
Section 401 of the Code of Criminal Procedure, 1973 (in short the `Code’)
was filed inter alia taking the stand that since the respondent was not a
public servant, there was no question of framing charges in terms of Section
13(1)(d) read with Section 13(2) of the Act. The trial court relied on clauses
(viii) (xi) and (xii) of sub-clause 2(c) of the Act to hold that the charges
3
were framed legally. The High Court held that clauses (viii) (xi) and (xii) of
sub-section 2(c) of the Act have no application to the facts of the case. It
was pointed out that the accused was running a coaching centre and
therefore she was not performing any public duty. The framing of charge so
far as Section 13 of the Act is concerned was to be quashed while the
accused was to face trial for the aforesaid offences punishable under the
IPC.
4. Learned counsel for the appellant submitted that since the accused
was running a coaching centre, she was carrying on public duty.
5. Section 2(c) reads as follows:
4
(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 the local
authority;
(iii) any person in the service or pay of a corporation
established by or under a Central, Provincial or State
Act, or any 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 member of
anybody of persons, any adjudicatory functions;
5
(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.
(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 president, secretary or other
office bearer of a registered co-operative society engaged
6
in agriculture, industry, trade or banking, receiving or
having received any financial aid from the Central
Government or a State Government or form 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 Boar, 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
7
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.”
6. Stand of the appellant-State is that in any event by running coaching
centre, the respondent was performing public duty. The submission
overlooks basic requirement of clause (vii) of Section 2(c) which is
applicable only when a public servant holds an office by which he
authorized or required to perform any public duty. In the instant case it is
8
nobody’s case that the respondent was holding an office by virtue of which
she was authorized to perform any public duty. That being so there is no
merit in this appeal which is accordingly dismissed.
…………………………………….J.
(Dr. ARIJIT PASAYAT)
……………………………………..
J.
(ASOK KUMAR GANGULY)
New Delhi,
April 28, 2009
9