TMI Blog2013 (10) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, what needs to be seen is the ratio. The ratio of those cases is that Municipal Councillors are not public servants under Section 21 of the Indian Penal Code. But Section 87 of the Rajasthan Municipalities Act, as discussed above, make Councillor and member of Board a public servant within the meaning of Section 21 of the Indian Penal Code. Hence, all the judgments of this Court referred to above are clearly distinguishable. Not only this, in the case in hand, we are concerned with the meaning of the expression ‘public servant’ as defined under Section 2(c) of the Prevention of Corruption Act, 1988 and, hence, decisions rendered by this Court while interpreting Section 21 of the Indian Penal Code, which in substance and content are substantially different than Section 2(c) aforesaid, shall have no bearing at all for decision in the present case. As the trial is pending since long, we deem it expedient that the learned Judge in seisin of the trial makes an endeavour to dispose of the trial expeditiously and in no case later than six months from the date of receipt of a copy of this order. - CRIMINAL APPEAL NO.1881 OF 2013, SPECIAL LEAVE PETITION (CRL) NO. 7511 OF 2013 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 an MLA gets allowance by way of honorarium does not convert his status into that of a public servant . In R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 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 Section 21 of the IPC. Yet another decision on which counsel has placed reliance is the judgment of this Court in the case of State of T.N. v. T. Thulasingam, 1994 Supp (2) SCC 405, and he has drawn our attention to Paragraph 76 from the said judgment which reads as follows: 76. The High Court was, however, right in acquitting various Councillors of the charge under the Prevention of Corruption Act as they are not public servants, in view of the decision of this Court in Ramesh Balkrishna Kulkarni v. State of Maharashtra (1985) 3 SCC 606. The acquittal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Board. Section 87 of the Rajasthan Municipalities Act, 1959 makes every Member to be public servant within the meaning of Section 21 of the Indian Penal Code and the same reads as follows: 87. Members etc., to be deemed public servants.-(1) Every member, officer or servant, and every lessee of the levy of any municipal tax, and every servant or other employee of any such lessee shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, 1860 (Central Act XLV of 1860). (2) The word Government in the definition of legal remuneration in Section 161 of that Code shall, for the purposes of sub-section (1) of this section, be deemed to include a municipal board. From a plain reading of the aforesaid provision it is evident that by the aforesaid section the legislature has created a fiction that every Member shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. It is well settled that the legislature is competent to create a legal fiction. A deeming provision is enacted for the purpose of assuming the existence of a fact which does not really exist. When the legislature creates a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(c) thereof, read with the provisions of the Rajasthan Municipalities Act. The view which we have taken finds support from the judgment of this Court in State of Maharashtra v. Prabhakarrao, (2002) 7 SCC 636, wherein it has been held as follows: 5. Unfortunately, the High Court in its order has not considered this question at all. It has proceeded on the assumption that Section 21 of the Indian Penal Code is the relevant provision for determination of the question whether the accused in the case is a public servant. As noted earlier, Section 21 IPC is of no relevance to consider the question which has to be on interpretation of provision of Section 2(c) of the Prevention of Corruption Act, 1988 read with the relevant provisions of the Maharashtra Cooperative Societies Act, 1960. Now we proceed to consider whether or not the appellant, a Councillor and the member of the Board, is a public servant under Section 2(c) of the Prevention of Corruption Act, 1988. Section 2(c) of this Act reads as follows: 2. Definitions.-In this Act, unless the context otherwise requires,- (a) xxx xxx xxx (b) xxx xxx xxx (c) public servant means, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a University or any 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. Explanation 1.-Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not. Explanation 2.-Wherever the words public servant occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. The present Act envisages widening of the scope of the definition of the expression public servant . It was brought in force to purify public administration. The legislature has used a comprehensive definition of public servant to achieve the purpose of punishing and curbing corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mr. Adhiyaru points out that provisions pari materia to that of Section 87 of the Rajasthan Municipalities Act did exist in the respective enactments under consideration in these cases and, therefore, it has to be assumed that this Court, while holding that Municipal Councillors are not public servant, must have taken note of the similar provision. However, in fairness to him, he concedes that such a provision, in fact, has not been considered in these judgments. We are of the opinion that for ascertaining the binding nature of a judgment, what needs to be seen is the ratio. The ratio of those cases is that Municipal Councillors are not public servants under Section 21 of the Indian Penal Code. But Section 87 of the Rajasthan Municipalities Act, as discussed above, make Councillor and member of Board a public servant within the meaning of Section 21 of the Indian Penal Code. Hence, all the judgments of this Court referred to above are clearly distinguishable. Not only this, in the case in hand, we are concerned with the meaning of the expression public servant as defined under Section 2(c) of the Prevention of Corruption Act, 1988 and, hence, decisions rendered by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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