TMI Blog2016 (2) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... be clearly unintended and hence capable of admitting a judicial exercise to fill up the same. The unequivocal legislative intent to widen the definition of public servant by enacting the PC Act cannot be allowed to be defeated by interpreting and understanding the omission in Section 46A of the BR Act to be incapable of being filled up by the court. It is thus concluded that thhe accused Respondents are public servants for the purpose of the PC Act by virtue of the provisions of Section 46A of the Banking Regulation Act, 1949 and the prosecutions launched against the accused Respondents are maintainable in law - petition dismissed. As per Prafulla C. Pant, J., Whether the Chairman, Directors and Officers of Global Trust Bank Ltd. (a private bank before its amalgamation with the Oriental Bank of Commerce), can be said to be public servants for the purposes of their prosecution in respect of offences punishable under Prevention of Corruption Act, 1988 or not? - HELD THAT:- Section 46A was inserted in Banking Regulation Act, 1949 by Act No. 95/56 with effect from 14.01.1957. The expression every chairman who is appointed on a whole time basis, managing director, direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the same get attracted. The courts below have erred in law in holding that accused Ramesh Gelli and Sridhar Subasri, who were Chairman/Managing Director and Executive Director of GTB respectively, were not public servants for the purposes of Prevention of Corruption Act, 1988 - Application disposed off. - Criminal Appeal Nos. 1077-1081 of 2013 and W.P. (Crl.) No. 167 of 2015 - - - Dated:- 23-2-2016 - Ranjan Gogoi and Prafulla C. Pant, JJ. For Appearing Parties: Tushar Mehta, ASG, Rana Mukherjee, Mohan Parasaran, Sidharth Luthra, Sr. Advs., Ranjana Narayan, T.A. Khan, B.V. Balaram Das, Arvind Kumar Sharma, G. Umapathy, R. Mekhala, Rakesh K. Sharma, Bina Gupta, Viraj Gandhi, Sameer Chaudhary, Purnima Raj, Abhisaar Bairagi and Pallav Palit, Advs. for Khaitan and Co. JUDGMENT Authored By : Ranjan Gogoi, Prafulla C. Pant Ranjan Gogoi, J. 1. I have had the privilege of going through the judgment of my learned brother Prafulla C. Pant, J. Though I am in full agreement with the conclusions reached by my learned brother, I would like to give my own reasons for the same. 2. The question arising has to be answered firstly within the four corners of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression 'office' to be referable to a position which has existence independent of the person who fills up the same and which is required to be filled up in succession by successive holders. 7. While there can be no manner of doubt that in the Objects and Reasons stated for enactment of the Prevention of Corruption Act, 1988 it has been made more than clear that the Act, inter alia, envisages widening of the scope of the definition of public servant, nevertheless, the mere performance of public duties by the holder of any office cannot bring the incumbent within the meaning of the expression 'public servant' as contained in Section 2(c) of the PC Act. The broad definition of 'public duty' contained in Section 2(b) would be capable of encompassing any duty attached to any office inasmuch as in the contemporary scenario there is hardly any office whose duties cannot, in the last resort, be traced to having a bearing on public interest or the interest of the community at large. Such a wide understanding of the definition of public servant may have the effect of obliterating all distinctions between the holder of a private office or a public office which, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition of public servant as made by Section 2(c) of the PC Act. Be that as it may, in a situation where the legislative intent behind the enactment of the PC Act was, inter alia, to expand the definition of public servant , the omission to incorporate the relevant provisions of the PC Act in Section 46A of the BR Act after deletion of Sections 161 to 165A of the Indian Penal Code from Chapter IX can be construed to be a wholly unintended legislative omission which the Court can fill up by a process of interpretation. Though the rule of casus omissus i.e. what has not been provided for in the statute cannot be supplied by the Courts is a strict rule of interpretation there are certain well known exceptions thereto. The following opinion of Lord Denning in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 155 at page 164 noticed and approved by this Court may be taken note of. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were....He (The Judge) must set to work in the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd Denning to make ambiguous legislation more comprehensible. Lord Simonds found it to be a naked usurpation of the legislative function under the thin disguise of interpretation . Lord Morton (with whom Lord Goddard entirely agreed) observed: These heroics are out of place and Lord Tucker said Your Lordships would be acting in a legislative rather than a judicial capacity if the view put forward by Denning, L.J., were to prevail. 148. Perhaps, with the passage of time, what may be described as the extension of a method resembling the arm-chair rule in the construction of wills. Judges can more frankly step into the shoes of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a state. In M. Pentiah v. Muddala Veeramallappa [(1961) 2 SCR 295], Sarkar, J., approved of the reasoning, set out above, adopted by Lord Denning. And, I must say that, in a case where the definition of industry is left in the state in which we find it, the situation perhaps calls for some judicial heroics to cope with the difficulties raised. (Underlining is mine) 12. There are other judicial precedents for the view that I have preferred to take and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tood to be clearly unintended and hence capable of admitting a judicial exercise to fill up the same. The unequivocal legislative intent to widen the definition of public servant by enacting the PC Act cannot be allowed to be defeated by interpreting and understanding the omission in Section 46A of the BR Act to be incapable of being filled up by the court. 14. In the above view of the matter, I also arrive at the same conclusion as my learned Brother Prafulla C. Pant, J. has reached, namely, that the accused Respondents are public servants for the purpose of the PC Act by virtue of the provisions of Section 46A of the Banking Regulation Act, 1949 and the prosecutions launched against the accused Respondents are maintainable in law. Consequently, the criminal appeals filed by the C.B.I. are allowed and Writ Petition (Criminal) No. 167 of 2015 is dismissed. Prafulla C. Pant, J. 15. Appellant Central Bureau of Investigation (C.B.I) has challenged the judgment and order dated 13.07.2009, passed by the High Court of Judicature at Bombay whereby Criminal Revision Application No. 131 of 2007 (filed by CBI) has been dismissed, and Criminal Writ Petition Nos. 2400, 2401, 2402 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o CBI, the investigation further revealed that in pursuance to the alleged conspiracy of the accused the funds of GTB were diverted, and release of ₹ 5.00 crores was made in the name of M/s. Beautiful Realtors Ltd. on the request of Directors of M/s. Beautiful Diamonds Ltd. Said amount was further transferred to already overdrawn account of M/s. Beautiful Diamonds Ltd. In April, 2001, Directors of Beautiful Group of Companies in pursuance of conspiracy with other accused submitted another application for sanction of ₹ 3.00 crores as diamond loan in the name of M/s. Crystal Gems. Ramesh Gelli, Sridhar Subasri and other accused, who were Directors of Beautiful Group of Companies, said to have caused total wrongful loss of about ₹ 41.00 crores to GTB. The accounts of Beautiful Diamonds Ltd. and other companies, which availed funds from GTB, should have been declared Non Performing Assets (NPA), but accused Ramesh Gelli and Sridhar Subasri allegedly manipulated and showed the accounts of Beautiful Realtors Ltd. and Crystal Gems as higher profit yielding accounts. The scam did not come to the light till 2005. 18. On 14.08.2004 GTB merged/amalgamated with Oriental Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Special Judge directed that the charge sheet may be returned for being submitted to appropriate Metropolitan Magistrate for taking cognizance in respect of offences punishable under Indian Penal Code, i.e. for offence other than punishable under the P.C. Act, 1988. 20. Since the High Court of Judicature at Bombay has upheld the order dated 05.02.2007 by the impugned order, the CBI has approached this Court through Special Leave. Further, since W.P.(Crl.) No. 167/2015 filed by accused Ramesh Gelli also involves similar question of law in the case at Delhi, as such both the connected matters are being disposed of by this common order. 21. The common question of law involved in these criminal appeals and connected writ petition, filed before us, is: Whether the Chairman, Directors and Officers of Global Trust Bank Ltd. (a private bank before its amalgamation with the Oriental Bank of Commerce), can be said to be public servants for the purposes of their prosecution in respect of offences punishable under Prevention of Corruption Act, 1988 or not ? 22. It is admitted fact that GTB was a private sector bank operating under banking licence dated 06.09.1994, issued by RBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Venku Reddy (2002) 7 SCC 631). Lastly, it is submitted that a private body discharging public duty or positive obligation of public nature actually performs public function. In this connection, reference was made to the observations made by this Court in paragraph 18, in Federal Bank Ltd. v. Sagar Thomas and Ors. (2003) 10 SCC 733. 25. We have considered the arguments and the counter arguments and also gone through the relevant case laws on the issue. 26. Before further discussion it is just and proper to examine the object for which the Prevention of Corruption Act, 1988 was enacted by the Parliament. The Statement of Objects and Reasons of the Bill is reproduced below: 1. The bill is intended to make the existing anti-corruption laws more effective by widening their coverage and by strengthening the provisions. 2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanan Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by fees or commission for the performance of any public duty; (ii) any person in the service or pay of a local authority; (iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an 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; (iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; (v) any person authorised 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 authorised or required to perform any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. 29. Section 2(b) of P.C. Act, 1988 defines 'public duty' as under: public duty means a duty in the discharge of which the State, the public or the community at large has an interest. 30. But, what is most relevant for the purpose of this case is Section 46A of Banking Regulation Act, 1949, which reads as under: 46A. Chairman, director etc., to be public servants for the purposes of Chapter IX of the Indian Penal Code.-Every chairman who is appointed on a whole-time basis, managing director, director, auditor, liquidator, manager and any other employee of a banking company shall be deemed to be a public servant for the purposes of Chapter IX of the Indian Penal Code (45 of 1860). (Emphasis supplied) 31. Section 46A was inserted in Banking Regulation Act, 1949 by Act No. 95/56 with effect from 14.01.1957. The expression every chairman who is appointed on a whole time basis, managing director, director, auditor was substituted by Act No. 20/94 with effect from 31.01.1994 in place of every chairman, director, auditor . As such managing director of a banking company is also deemed to be a public servant. In the present case transactions in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 (P) Ltd. v. H.R. Deb (AIR 1968 SC 1495) and Mahadeo v. Shantibhai [(1969) 2 SCR 422] this 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. 35. Attention of this Court is drawn on behalf of the accused to the case of Housing Board of Haryana v. Haryana Housing Board Employees' Union and Ors. (1996) 1 SCC 95, wherein this Court has held that when particular words pertaining to a class of genus are followed by general words, the latter, namely, the general words are construed as limited to the things of the same kind as those specified, and this is known as the rule of ejusdem generis reflecting an attempt to reconcile incompatibility between the specified and general words. This case is of little help to the accused in the present case as managing director and director are specifically mentioned in Section 46A of Banking Regulation Act, 1949. 36. In Manish Trivedi v. State of Rajasthan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a case of prosecution under the Prevention of Corruption Act, 1947 then this would have been the end of the matter. Section 2 of this Act defines public servant to mean public servant as defined Under Section 21 of the Penal Code. However, under the Prevention of Corruption Act, 1988, with which we are concerned in the present appeal, the term public servant has been defined Under Section 2(c) thereof. In our opinion, prosecution under this Act can take place only of such persons, who come within the definition of public servant therein. The definition of public servant under the Prevention of Corruption Act, 1947 and Section 21 of the Penal Code is of no consequence. The Appellant is sought to be prosecuted under the Prevention of Corruption Act, 1988 and, hence, to determine his status it would be necessary to look into its interpretation Under Section 2(c) thereof, read with the provisions of the Rajasthan Municipalities Act. xxx 19. The present Act (the 1988 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Singh (2000) 5 SCC 88) 38. In the light of law laid down by this Court as above, it is clear that object of enactment of P.C. Act, 1988, was to make the anti corruption law more effective and widen its coverage. In view of definition of public servant in Section 46A of Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a Banking Company operating under licence issued by Reserve Bank of India, were already public servants, as such they cannot be excluded from definition of 'public servant'. We are of the view that over the general definition of 'public servant' given in Section 21 of Indian Penal Code, it is the definition of 'public servant' given in the P.C. Act, 1988, read with Section 46-A of Banking Regulation Act, which holds the field for the purposes of offences under the said Act. For banking business what cannot be forgotten is Section 46A of Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165A of Indian Penal Code have been repealed by the P.C. Act, 1988, relevance of Section 46A of Banking Regulation Act, 1949, is not lost. 39. Be it noted that when Prevention of Corruption ..... X X X X Extracts X X X X X X X X Extracts X X X X
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