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PETITIONER: RAMESH BALKRISHNA KULKARNI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT31/07/1985

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1985 AIR 1655            1985 SCR  Supl. (2) 345  1985 SCC  (3) 606        1985 SCALE  (2)254

ACT:      Indian Penal Code, 1860, Sec. 21 - "Public Servant" and "Municipal Councillor"  - Distinction  between  -  Municipal Councillor is not a "Public Servant".      Section 161  IPC and  Sec. 5 (1)(d) read with sec. 5(2) of  Prevention   of  Corruption   Act  -  Prosecution  of  a "Municipal Councillor" under - Whether legal.

HEADNOTE:      The appellant,  a Municipal  Councillor, was prosecuted u/s 161,  IPC and  s.5 (1)(d)  read with  Sec. 5(2)  of  the Prevention of  Corruption Act. The trial Court convicted him of  the  aforesaid  charges.  On  appeal,  the  High  Court, confirmed his conviction and sentence.      In appeal  to this  Court, the appellant contended that as a  Municipal Councillor was not a ’public servant’ within the meaning of Section 21 of the Indian Penal Code, he could not be  prosecuted under  the Act  even if  sanction for his prosecution was obtained.      Allowing the appeal, ^      HELD :  1. The  appellant, not  being a public servant, could not  be prosecuted  under the  provisions of the Act - whether or  not sanction  to prosecute him is obtained which is wholly irrelevant to the issue. [348 B-C]      2. The concept of a ’public servant’ is quite different from that  of a  Municipal Councillor. A ’public servant’ is an authority  who must be appointed by Government or a semi- governmental body  and should be in the pay or salary of the same. Secondly,  a ’public  servant’  is  to  discharge  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 346 edicts of  a governmental  authority. Therefore, a Municipal Councillor is  not a  ’public servant’ within the meaning of Sec. 21 IPC. [347 G-H, 348 A]      K.S. Nayak v. A.R.Antulay, AIR 1984 S.C.684, followed.

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 140 of 1977.      From the  Judgment and  Order dated  3/6.9.1976 of  the Bombay High Court in Criminal Appeal No. 103 of 1975.      S.K. Agnihotri and V.N. Ganpule for the Appellant.      V.B. Joshi and M.N. Shroff for the Respondents.      The Judgment of the Court was delivered by      FAZAL ALI,  J. This appeal by Certificate under Article 134 of  the Constitution  of India  arises out of a judgment dated 3/6.9.76  of  the  Bombay  High  Court  affirming  the conviction and  sentence of  the appellant  imposed  by  the trial court.      The short  point on  which certificate  was granted and the case  has been argued by both the parties falls within a very narrow  compass. The  appellant, who  was  a  Municipal Councillor, was  prosecuted under  section 161 of the Indian Penal Code  and s.5(1)(d) read with s.5(2) of the Prevention of Corruption  Act (hereinafter  referred to  as the ’Act’). The High Court, after holding that sanction by the competent authority to  prosecute the  appellant was  valid, confirmed his conviction and sentence. Hence, this appeal.      The  counsel   for  the  appellant  argued  that  as  a Municipal Councillor  was not  a ’public servant’ within the meaning of s.21 of the IPC, he could not be prosecuted under the Act  even if  sanction for his prosecution was obtained. The High  Court, however, negatived this contention and held that  a  Municipal  Councillor  was  undoubtedly  a  ‘public servant’ and affirmed the conviction of the appellant.      The only  point for consideration in this appeal before us is  whether or  not a  Municipal Councillor  who was  not assisting any  public servant  is a  ‘public servant’ within the meaning  of s.21  of the IPC. It is not necessary for us to go into further 347 details as  the matter  is no  longer  res  integra  and  is covered by  a recent  decision of  this Court in the case of R.S. Nayak v. A.R. Antulay, A.I.R. 1984 S.C. 684, where this Court made the following observations :           "Whatever  that   may  be,   the   conclusion   is           inescapable that  till 1964 at any rate M.L.A. was           not comprehended  in  the  definition  of  ‘public           servant’ in  s.21. And the Santhanam Committee did           not recommend  its inclusion  in the definition of           ‘public servant’ in section 21 ...... Now if prior           to the  enactment of Act 40 of 1964 M.L.A. was not           comprehended as a public servant in s.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  M.L.A. 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 1964.           ..           ..              ..                 ..           Therefore, apart from anything else, on historical           evolution of  Section 21,  adopted as  an external           aid to  construction, one can confidently say that

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         M.L.A. was  not and is not a public servant within           the meaning of the expression in any of the clause           of Section 21. IPC." (Emphasis ours)      In view  of this decision, therefore, we need not go to the other authorities on the subject. Even so, we are of the opinion that  the concept  of a  ‘public servant’  is  quite different from  that of  a Municipal  Councillor. A  ‘public servant’ is an authority who must be appointed by Government or a  semi-governmental body  and should  be in  the pay  or salary of  the same.  Secondly, a  ‘public  servant’  is  to discharge 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 348 and functions  undeterred by  the commands  or edicts  of  a governmental authority.  The  mere  fact  that  a  MLA  gets allowance by  way of  honorarium does not convert his status into that  of a  ‘public servant’. In Antuly’s case (supra), 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 s.21 of the IPC.      In these circumstances, we hold that the appellant, not being a  public servant,  could not  be prosecuted under the provisions of  the Act-whether or not sanction to prosecuted him is obtained which is wholly irrelevant to the issue.      For the  reasons given  above, we allow the appeal, set aside the  conviction and  sentence imposed on the appellant and acquit  him of  the  charges  framed  against  him.  The appellant, who  is on bail, shall now be discharged from his bail-bond. Fine if paid shall be refunded to the appellant. M.L.A.                                       Appeal allowed. 349