Criminal Appeal No.1881 of 2013 (@special Leave Petition (Crl) No. 7511 of 2013). Case: Manish Trivedi Vs State of Rajasthan. Supreme Court (India)

Case NumberCriminal Appeal No.1881 of 2013 (@special Leave Petition (Crl) No. 7511 of 2013)
JudgesChandramauli Kr. Prasad and Jagdish Singh Khehar, JJ.
IssuePrevention of Corruption Act - Sections 2(c), 7, 13(1)(d), 13(2); Code of Criminal Procedure - Section 482; Indian Penal Code - Section 21; Rajasthan Municipalities Act, 1959 - Section 87; Maharashtra Cooperative Societies Act, 1960; Companies Act, 1956 - Section 617
Judgement DateOctober 29, 2013
CourtSupreme Court (India)


Chandramauli Kr. Prasad, J.

The petitioner's challenge to his prosecution for an offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act has been turned down by the trial court and the said order has been affirmed by the High Court by its order dated 1st of March, 2013 passed in Criminal Miscellaneous Petition No.1686 of 2009. It is against this order that the petitioner has preferred this special leave petition.

Delay condoned.

Leave granted.

Shorn of unnecessary details, facts giving rise to the present appeal are that the appellant at the relevant time was a Councillor elected to the Municipal Council, Banswara and a Member of the Municipal Board. According to the prosecution, one Prabhu Lal Mochi lodged a report in the Anti- Corruption Bureau, inter alia, alleging that he had a shoe repair shop near the gate of Forest Department, Banswara and the employees of the Municipal Council had seized his cabin in the year 2000 rendering him unemployed. According to the allegation, he applied for the allotment of a kiosk before the Municipal Council but did not succeed. On enquiry the informant was told that it is the appellant who can get the allotment made in his favour and accordingly he contacted the appellant. It is alleged that the appellant demanded a sum of Rs. 50,000/- for getting the allotment done in his name and ultimately it was agreed that initially the informant would pay Rs. 5,000/- to the appellant and the rest amount thereafter. On the basis of the aforesaid information, according to the prosecution, a trap was laid and the appellant was caught red-handed and a sum of Rs. 5,000/- was recovered from him.

After usual investigation, charge-sheet was submitted against the appellant and he was put on trial. During the trial evidence of one of the witnesses was recorded and thereafter, the appellant filed an application before the trial court for dropping the proceeding, inter alia, contending that he being a Councillor does not come within the definition of 'public servant' and as such, he cannot be put on trial for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The trial court rejected the said prayer vide its order dated 13th of October, 2009. The appellant assailed this order before the High Court in an application filed under Section 482 of the Code of Criminal Procedure and the High Court by the impugned judgment has rejected his prayer.

It is against this order that the appellant is before us with the leave of the court.

We have heard Mr. Yashank Adhiyaru, Senior Counsel for the appellant while respondent is represented by Mr. Milind Kumar.

Mr. Adhiyaru submits that a Municipal Councillor is not a public servant and, therefore, his prosecution for the offence alleged is bad in law. According to him, for prosecuting an accused for offence under the Prevention of Corruption Act, 1988 the accused charged must be a public servant and the appellant not being a public servant cannot be prosecuted under the said Act. Further, for a person to have the status of a public servant he must be appointed by the Government and must be getting pay or salary from the Government. Not only this, to be a public servant, such a person has to discharge his duties in accordance with the rules and regulations made by the Government. According to him, the appellant was elected as a Municipal Councillor and he does not owe his appointment to any governmental authority. Being a person elected by the people, the commands and edicts of a Government authority do not apply to him. In support of the submission he has placed reliance on a judgment of this Court in the case of R.S. Nayak v. A.R. Antulay, (1984) 2 SCC183 He has drawn our attention to the following passage from the said judgment.

41.......Whatever that may be the conclusion is inescapable that till 1964 at any rate MLA was not comprehended in the definition of 'public servant' in Section 21. And the Santhanam Committee did not recommend its inclusion in the definition of 'public servant' in Section 21.

42.......Now if prior to the enactment of Act 40 of 1964 MLA was not comprehended as a public servant in Section 21, the next question is: did the amendment make any difference in his position. The amendment keeps the law virtually unaltered. Last part of clause (9) was enacted as clause (12)(a). If MLA was not comprehended in clause (9) before its amendment and dissection, it would make no difference in the meaning of law if a portion of clause (9) is re-enacted as clause (12)(a). It must follow as a necessary corollary that the amendment of clauses (9) and (12) by Amending Act 40 of 1964 did not bring about any change in the interpretation of clause (9) and clause (12)(a) after the amendment of...

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