Criminal Revision Application No.25 of 2014

28th March, 2014

Petitioner Counsel: Mr. SHASHIBHUSHAN WAHANE
Respondent Counsel: Mr. P.V. BHOYAR

Cases Cited:
Brijlal Sadasukh Modani Vs. State of Maharashtra and others, 2008 ALL MR (Cri) 733 [Para 8,14]
A.R. Puri Vs. State, 1998 Cri.L.J. 311 [Para 8]
State of Maharashtra Vs. Laljit Rajshi Shah and others, 2000 ALL MR (Cri) 1370 (S.C.)=AIR 2000 SC 937 [Para 8]
State of Maharashtra and another Vs. Prabhakarrao and another, (2002) 7 SCC 636 [Para 8,16]
Govt. of Andhra Pradesh and others Vs. P. Venku Reddy, 2002 ALL MR (Cri) 2568 (S.C.)=(2002) 7 SCC 631 [Para 17]
Sadashiv Sutar Vs. State of Maharashtra thru. ACB, 2013(3) Bom.C.R. (Cri.) 31 [Para 18]
P.V. Narsimha Rao Vs. State (CBI/SPE) etc., AIR 1998 SC 2120 [Para 18]
McMillan Vs. Guest, (1942) AC 561M [Para 18]
Statesman (Private) Ltd. Vs. H.R. Deb and ors., (1968) 3 SCR 614 [Para 18]
Mahadeo Vs. Shantibhai and ors., (1969) 2 SCR 422 [Para 18]
State of Punjab Vs. Nirmal Kaur, (2009) 13 SCC 418 [Para 20]

JUDGMENT

JUDGMENT :- Heard Mr. Shashibhushan Wahane, learned counsel for the applicant and Mr. P. V. Bhoyar, learned Additional Public Prosecutor for the non-applicant/State. ADMIT. By consent of the learned counsel for the parties, the matter is taken up forthwith for final disposal.

2. The applicant, being aggrieved by the order dated 21.1.2014 passed by the learned Special Judge, A.C.B. Court, Nagpur, thereby rejecting the application (Exh.9) filed by the present applicant under Section 227 of the Criminal Procedure Code seeking discharge in Special Criminal Case No. 3/2011, is before this Court by this Revision Application under Section 397 read with Section 482 of the Criminal Procedure Code.

3. Brief facts giving rise to the present revision application can be summarized as under :

The applicant is a social worker. She is a found member and Secretary of one organization namely Shri Ganesh Bahuuddeshiya Mahila Gramin Vikas Sanstha. The applicant runs a Counseling Center namely Stree Sashaktikaran Mahila Takrar Niwaran Kendra at Nagpur. She is working as a Coordinator in the Center voluntarily for rehabilitation of victims of domestic violence.

On a complaint received from one Sheikh Karim Sheikh Ibrahim in respect of demand of an amount by the appllicant to settle the matter, the officials of Anti Corruption Bureau arranged a trap. The trap was successful and led to lodgment of Crime No. 3195/2010 against the applicant/ accused for committing offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. (hereinafter referred to as 'the P.C. Act')

After completion of investigation and filing of the charge-sheet, the applicant preferred an application (Exh.9) under Section 227 of the Criminal Procedure Code, seeking discharge, before the learned Ad-hoc District Judge and Additional Sessions Judge, Nagpur. The application was, in turn, heard and decided by the learned Special Judge, A.C.B. Court, Nagpur, which resulted in rejection of the same. Therefore, the applicant/accused is before this Court.

4. Mr. Wahane, learned counsel for the applicant, in challenge to the impugned order passed by the learned Special Judge, submitted that the applicant, who is a Coordinator of a Counseling Center and working voluntarily for redressal of grievances of women in respect of matrimonial discord, is falsely implicated in the present crime. It is the submission of the learned counsel that even taking the case as it is against the applicant, on the backdrop of the fact that the applicant/accused is not a 'public servant', the provisions of P.C. Act does not attract and no case is made out against the applicant. Learned counsel further submitted that the applicant is neither appointed by the State Government or the Central Government, nor the applicant is discharging any 'public duty'. Learned counsel for the applicant, by inviting my attention to the provisions of P.C. Act, more particularly Section 2(c), submitted that the word 'Public Servant' is defined under the Act and is having a definitive meaning categorized under various Clauses. He further submitted that the basic requirement are three fold for compliance of Section 2(c) and those are - (i) any person in the service or pay of the Government (2) receiving remuneration, fees or commission for the performance by the Government ; and (3) performance of a public duty. Learned counsel for the applicant submitted that the factor of performance of 'public duty' will have to be read conjointly with the words 'in the service or pay of the Government or receiving remuneration or fees or commission by the Government'. Thus, it was the bone of contention of learned counsel for the applicant that as the material falls too short against the applicant to attract any of above referred qualifying material, the prosecution against the applicant is throughly unsustainable.

5. Learned counsel for the applicant invited my attention to the documents placed on record in support of his submission i.e. annexure-C, which is a reply to an application moved by the applicant to the office of Commissioner of Police under the Right to Information Act, 2005, seeking information whether the organization of the applicant receives any remuneration or honorarium. By the said reply, it was informed to the applicant that no information is available with the office in that respect. Learned counsel for the applicant, therefore, submitted that even the police administration itself is not sure whether the applicant receives any remuneration or honorarium and on the backdrop of this fact, the application of the applicant seeking discharge ought to have been allowed by the learned Special Judge.

6. Learned counsel for the applicant then invited my attention to the document at Annexure-B, which is an application filed by the applicant/accused before the learned Sessions Judge, for directing the investigating agency to produce the appointment letter of the accused. Learned counsel submitted that there was no reply to the application.

7. Per contra, learned Additional Public Prosecutor for the State supports the impugned order passed by the learned Specual Judge and submits that the applicant was permitted to run the Counseling Center. In this respect, he invited my attention to the document R-1, placed on record along with the reply of the State. In the course of argument, learned APP submitted that the applicant by submitting applications had requested the Additional Commissioner of Police for providing place to run the Counseling center either at Ajani police station or Nandanwan police station. Learned APP placed on record the copies of those applications and the communication issued by the office of Additional Commissioner of Police, dated 24.03.2009. The same are taken on record and collectively marked as "X" for identification. The communication dated 24.03.2009 is addressed to the Senior Police Inspector of Nandanwan Police station calling for the report in respect of the premises taken for running Mahila Cell. It is stated in said communication that the applicant had submitted an application seeking space for running counseling center and on receiving information that there is no space available in the police stations and if the applicant wish to start the Counseling Center in rental premises on her own, there is no objection from the police station. It is further stated in the communication that on receipt of report from the police station, the applicant opted for running counseling center in rented premises available behind the police station. Learned APP, on the basis of these documents, submitted that the applicant is performing the public duty and as such is a 'public servant' within the meaning of Clause (viii) of Section 2(c) of the P.C. Act. He further submitted that as the applicant was performing 'public duty' and instead of attempting to settle the disputes through counseling, she indulged in an activity of demand of bribe and as such the applicant has committed a serious offence. He further submitted that as there is prima facie material against the applicant, the learned Special Judge rightly rejected the application of the applicant seeking discharge.

8. Learned counsel for the applicant, to substantiate his case, placed reliance on the judgments reported in 2008 ALL MR (Cri) 733, in the case of Brijlal Sadasukh Modani .vs. State of Maharashtra and others, 1998 Cri.L.J. 311 in the case of A.R. Puri .vs. State, AIR 2000 Supreme Court 937 : [2000 ALL MR (Cri) 1370 (S.C.)], in the case of State of Maharashtra .vs. Laljit Rajshi Shah and others.

Learned APP, in support of his submissions, placed reliance on the judgment of the Apex Court reported in (2002) 7 Supreme Court Cases 636, in the case of State of Maharashtra and another .vs. Prabhakarrao and another.

9. As the controversy in the present application revolves around the issue whether the applicant satisfies the requirement of Section 2(c) so as to treat her as a 'public servant' and in turn attract the provisions of Sections 7, 13(1) (d) read with Section 13(2) of the P.C. Act, it will be useful to refer to the provisions of Section 2(c). The relevant provision is clause (i) of Section 2(c), which reads thus -

"Section 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) .............

10. Learned APP submitted that clause (viii) of Section 2(c) takes in its compass the act of the applicant. Thus, it will be useful to refer to the provision of clause (viii) of Sec.2(c), which reads thus :-

"Section 2 - (c) "public servant" means -

(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty."

11. Insofar as the contentions of learned counsel for the applicant in respect of requirements of Clause (i) of Section 2(c) are concerned, on a perusal of the material, I find considerable merit in the submissions of learned counsel for the applicant. Though, learned APP made an attempt to submit that the applicant is discharging 'public duty' and therefore, provision of Clause (i) of Section 2(c) attracts against the applicant, I am unable to accept the the submission of learned APP.

12. Learned counsel for the applicant was justified in submitting that the words 'performance of public duty' cannot be read independently and these words will have to be read conjointly with the earlier part of clause (i) and that part deals with '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'. (emphasis supplied). In the present case, there was no material placed before the learned Special Judge by the prosecution to show that the applicant was receiving either pay from the Government or remuneration or fees or commission from the Government. Learned APP submitted that clause (viii) of Section 2(c) takes in its sweep the act of the applicant. In support of his submission, learned APP relied on the material namely the application submitted by her and the Government Circular, issued by the Home Department, Government of Maharashtra, dated 29.05.2010. The application was submitted by the applicant to the Commissioner of Police for making available the space to the institute for running Counseling Center either at Ajani police station or Nandanwan police station. It is nobody's case that the space was made available to the applicant either in Ajani police station or some other police station. On the contrary, the communication dated 24.03.2009 (marked as 'X'), on which learned APP placed reliance, show that there was no space available for the applicant in the police station and police station informed the applicant to make arrangements for the rented premises.

13. Perusal of Government Circular dated 29.05.2010, issued by Home Department, Government of Maharashtra show that on the backdrop of various directions of the Apex Court, instructions are given to the police stations firstly to make attempts to settle the matrimonial disputes by providing counseling to both the parties and to establish such counseling centers at police stations. Even on reading of this Circular, an unescapable conclusion is, there may be a case in in which if a misdeed is committed in a counseling center at police station initiated by providing financial assistance by the Government, but such is not the case in the present matter. At the cost of repetition, it may be again observed that the applicant was neither provided any space in the police station to run the counseling center nor any financial assistance was provided to the applicant for running the counseling center in police station. Learned APP was right in submitting that the scope is widened under clause (viii) of Section 2(c) of the new Act i.e. Prevention of Corruption Act, 1988, but even considering this widened scope of the Act under Clause (viii) of Section 2(c), there is no material to attract Clause (viii) against the applicant. Here again, learned APP has emphasized on the words 'public duty' and made an attempt to submit that the applicant, who was running a counseling center, was discharging a 'public duty' and as such, the act of the applicant comes within the scope of Clause (viii) of Section 2(c). I am unable to accept the submission of learned APP for the reason that here also the words 'public duty' will have to be read with keywords 'any person who holds an office by virtue of which he is authorised or required to perform any public duty. (emphasis supplied). There is no material placed on record to show that the applicant was holding any office and was authorized by the Government or any authority to perform public duty.

14. In support of his submissions, learned counsel for the applicant placed reliance on the judgment of this Court in Brijlal Modani's case (supra). In this case, the petitioner was an employee of Osmanabad Janata Sahakari Bank Ltd., holding the post of General Manager. The Division Bench of this Court, considering various provisions of the Maharashtra Cooperative Societies Act, Banking Regulation Act and the judgments of the Apex Court on the backdrop of Section 2(c) of the P.C. Act, arrived at a conclusion that the petitioner therein , who was discharging his duty as a General Manager, cannot be termed as a 'public servant' ad defined in the P.C. Act. As such, learned counsel for the applicant was justified in submitting that the applicant is on better footing than petitioner Brijlal Modani, as the applicant herein is running a private counseling center.

15. Perusal of the impugned order passed by the learned Special Judge show that though, learned Special Judge observed that the applicant was not receiving any kind of remuneration, merely on the consideration that permission was granted to the applicant to run "Women Redressal Cell", held the applicant was a public servant within the meaning of Section 2(c)(viii) and negated the contentions raised by the applicant.

16. Though, learned APP placed reliance on the judgment of the Apex Court in Prabhakarrao's case (supra), in my opinion, there cannot be any dispute on the proposition laid down by the Apex Court in the reported judgment, but the same would not be helpful to draw support for his submissions.

17. The Apex Court in the judgment reported in (2002) 7 Supreme Court Cases 631 : [2002 ALL MR (Cri) 2568 (S.C.)], in the case of Govt. of Andhra Pradesh and others .vs. P. Venku Reddy, hold that the P.C. Act gives a wider definition of term "public servant".

The Apex Court has observed thus -

"11. Under the repealed Act of 1947 as provided in Section 2 of the 1988 Act, the definition of "public servant" was restricted to "public servants" as defined in Section 21 of the Indian Penal Code. In order to curb effectively bribery and corruption not only in government establishments and departments but also in other semi-governmental authorities and bodies and their departments where the employees are entrusted with public duty, a comprehensive definition of "public servant has been given in clause (c) of Section 2 of the 1988 Act.

12. In construing the definition of "public servant" in clause (c) of Section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of "public servant", was brought in force to purify public administration. When the legislature has used such a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing growing corruption in government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of "public servant", therefore, deserves a wide construction."

18. In the reported judgment in 2013(3) Bom.C.R. (Cri.) 31 in case of Sadashiv Sutar .vs. State of Maharashtra thru. ACB, this Court taking support from the judgment of the Apex Court reported in A.I.R. 1998 S.C. 2120 in the case of P.V. Narsimha Rao .vs. State (CBI/SPE) etc., reproduced the observations dealing with the term "public servant". On the backdrop of an argument that the Member of Parliament does not fall within the ambit of Section 2 Clause (viii) of P.C. Act, the Apex Court examined the question as to whether a Member of Parliament holds an office?. The Apex Court dealing with said issue, referred to quote of Lord Wright in (1942) AC 561M in case of McMillan .vs. Guest. Lord Wright has said -

"The word 'office is of indefinite content. Its various meanings cover four columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following : "A position or place to which certain duties are attached, especially one of a more or less public character."

In the same case, Lord Atkin gave the following meaning -

"An office or employment which was subsisting, permanent, substantive position, which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders."

In Statesman (Private) Ltd. .vs. H.R. Deb and ors., reported in (1968) 3 S.C.R. 614; and in Mahadeo .vs. Shantibhai and ors., reported in (1969) 2 S.C.R. 422, the Apex Court has adopted the meaning given by Lord Wright when it said : "An office means no more than a position to which certain duties are attached." The Apex Court then held that we are, therefore, of the view that a Member of Parliament holds an office and by virtue of such office, he is required or authorised to perform duties and such duties are in the nature of public duties. A Member of Parliament would, therefore, fall within the ambit of sub-clause (viii) of Clause (c) of section 2 of the 1988 Act.

19. On the backdrop of these facts, this Court in Sadashiv Sutar's case was considering the case of the applicant, who was serving as a Branch Manager in a Cooperative Bank under liquidation and had demanded Rs.Five lakhs for vacation of premises and on a trap, he was caught red handed. This Court, thus, in view of the provisions of the P.C. Act and the Constitutional perspective, held that the position of a Co-operative Society is not confined to local limits, nor its functioning and working restricted to few persons. This Court further observed that there is a definite state of the society and the community at large in the working and functioning of such societies.

20. There cannot be any dispute on the proposition of law laid down by this Court in the case of Sadashiv Sutar. But, in the present case, as contended by learned APP, merely because the applicant was discharging a public duty, it cannot be a reason for applicability of Section 2(c) of the Act to her. I am, therefore, not able to persuade myself to accept the contention of learned APP that the applicant is discharging public duty and as such the applicant is a public servant and Clause (viii) of Section 2(c) attracts against the applicant. The Apex Court in the judgment reported in (2009) 13 Supreme Court Cases 418, in the case of State of Punjab .vs. Nirmal Kaur, dealt with the aspect. The respondent therein was running a private coaching center and was facing the accusation of commission of offences punishable under Section 420, 465, 467, 468, 470 and 120-B of the Indian Penal Code and under Section 13(1)(d) read with Section 13(2) of the P.C. Act. It was the stand of the appellant/State that as the respondent was running a coaching center, the respondent was performing public duty. The Apex Court, by quoting the provisions of Section 2(c), clauses (i) to (xii), observed that the stand of the applicant/State is that in any event, by running coaching centre, the respondent was performing public duty. The Apex Court in clear words held that 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 is authorised or required to perform any public duty. Here, it is nobody's case that the applicant was holding any office by which she was authorized or required to perform the public duty and as such the judgment in Nirmal Kaur's case is applicable in the present matter as the applicant is similarly situated. The applicant was though running a counseling centre, she was neither authorized nor holding any office to perform public duty.

21. Before parting with the judgment, it will be interesting to note that the applicant has placed on record a document "Annexure-D", which is a sanction order issued by the office of Deputy Commissioner of Police/Superintendent of Police, ACB, Nagpur for filing charge-sheet against the applicant. It is difficult to understand as to what was the consideration and application of mind by the sanctioning authority while issuing the sanction order against the applicant. Be that as it may. Suffice it would be to say that even this sanction order would be of no help to the prosecution to establish its case.

22. Thus, taking into consideration all above referred facts and the material on record, in my opinion, a case is made out by the learned counsel for the applicant for interference of this Court in exercise of its inherent powers under Section 482 of Cr.P.C.

23. In the result, the revision application is allowed.

The order below Exh.9 passed by the learned Special Judge, A.C.B. Court, Nagpur in Special Criminal Case No. 3/2011, is quashed and set aside.

The applicant/accused is discharged in Crime No. 3195/2010 for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988., pending before the learned Special Judge, A.C.B., Nagpur, vide Special Criminal Case No.3/2011.

24. With these observations, the revision application is disposed of.

Revision allowed.