TMI Blog2002 (1) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... , who also appeared in the said examination, approached the appellant and expressed his inability to clear the above paper which was to be examined by the appellant. According to the prosecution, the appellant demanded ₹ 400/- from him and on the next day, around 4.30 p.m., the appellant accepted ₹ 400/- from him and thereafter scored out the previous marks given on the answer script and increased the number to enable the said student to get through the paper in question. It was the further case of the prosecution that private individuals tried to lay trap on 2nd May to prove acceptance of the amount by the appellant. The Registrar of the University on getting information of the alleged occurrence took away all the answer script ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant at the relevant time for invoking Section 5 of the Prevention of Corruption Act, 1947, and (2) whether the charges against the appellant on the very face of it are redolent of improbability and absurdity and there is not even remote chance of the charges ultimately culminating into conviction. We may state here that Special Judge while considering the application under Section 227 of the Code of Criminal procedure did not at all consider the application on merit and mainly proceeded to decide whether the appellant was a public servant. The High Court without analysing the material on records rejected the contention on the ground that 'certainly a grave suspicion is created by the appellant committing offences other than that unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat sub-section (4) consists of two categories of salaried officers and employees, that is, (I) those officers or employees who were appointed for a specified period or for a work or (II) those officers and employees who receive remuneration such as allowances, fees and other payments and in other words, according to learned counsel to be a public servant under sub- section (4) a person must be first of all salaried officers or employee of the University. According to the learned counsel if the intention of the legislature was to cover under this provision all persons who receive any type of remuneration, then the words 'any person' would have been used instead of using the word 'or' before 'who' and the word 'or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, this court held that a person appointed as an examiner by the University even if he was a lecturer of a Government College would not be a public servant within the meaning of Section 21 of the Indian Penal Code. We have already observed that the appellant would not come under the purview of the said Section 21 and therefore that decision is of no help. In the case in hand, the appellant was appointed by the University for a specified work, namely to evaluate answer scripts and therefore he was a public servant at the relevant time under sub-section (4) of Section 73 of the Act. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the prosecution against the accused were duly considered by the High Court while disposing of the Writ Petition filed by the appellant. In coming to the conclusion that the prosecution case rests upon flimsy foundation and it is quite possible that the chances of a conviction are bleak, the High Court recorded as follows: ? Without in any way prejudging the issue I must say that the vital content of the prosecution case seems somewhat amazing. An association of students provides money to an examinee to get his marks increased. This is said to have been done and the answer- books attached. The First Information Report is given some seven days after this incident. Information of the offence is conveyed to a police station and yet in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
