TaxTMI 
TaxTMI 
2013 (10) TMI 1413
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....on Bureau, inter alia, alleging that he had a shoe repair shop near the gate of Forest Department, Banswara and the employees of the aMunicipal 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....
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....lause (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 1964........... Xxx xxx xxx ..........Therefore, apart from anything else, on historical evolution of Section 21, adopted as an external aid to construction, one can confidently say that MLA was not and is not a 'public servant' within the meaning of the expression in any of the clauses of Section 21 IPC." Another decision on which the counsel has placed reliance is the judgment of this Court in the case of Ramesh Balkrishna Kulkarni v. State of Maharashtra, (1985) 3 SCC 606, and he has drawn our attention to Paragraph 5 from the said judgment which reads as follows: "5. 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 qu....
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....g passage from the said judgment: "In view of the above decision of the Hon'ble Supreme Court, the petitioners being municipal councillors are not public servant and charges framed against them without giving them opportunity of hearing on 18.7.2007 cannot be sustainable, specially when the State refused to sanction prosecution and the Anti Corruption Department submitted final report but the learned Judge took the cognizance overlooking the above legal aspects." Mr. Milind Kumar, learned counsel appearing on behalf of the respondent State of Rajasthan, however, submits that the appellant, undisputedly being the Municipal Councillor and a Member of the Board, comes within the definition of public servant and, hence, he cannot escape from the prosecution for the offence punishable under the Prevention of Corruption Act, 1988. We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Yashank Adhiyaru and the authorities relied on are clearly distinguishable. As stated earlier, it is an admitted position that the appellant happens to be an elected Councillor and a Member of the Municipal Board. Section 3(2) of the Ac....
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....mber' in Section 87 is independent and not controlled by the latter portion at all and in view of the plain language of the section, no further elaboration is required. Under the scheme of the Rajasthan Municipalities Act it is evident that the appellant happens to be a Councillor and a Member of the Board. Further in view of language of Section 87 of the Rajasthan Municipalities Act, he is a public servant within the meaning of Section 21 of the Indian Penal Code. Had this been 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 Indian 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. Definition of public servant under the Prevention of Corruption Act, 1947 and Section 21 of the Indian Penal Code is of no consequence. The appellant is sought....
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....mpowered 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 public duty; (ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); (x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board; (xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of an....
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....m (supra). In all these decisions, this Court was considering the scope of Section 21 of the Indian Penal Code which defines 'public servant'. It was necessary to do so as Section 2 of the Prevention of Corruption Act, 1947 defined 'public servant' to mean as defined under Section 21 of the Indian Penal Code. A member of the Board, or for that matter, a Councillor per se, may not come within the definition of the public servant as defined under Section 21 of the Indian Penal Code but this does not mean that they cannot be brought in the category of public servant by any other enactment. In the present case, the Municipal Councillor or member of the Board does not come within the definition of public servant as defined under Section 21 of the Indian Penal Code, but in view of the legal fiction created by Section 87 of the Rajasthan Municipalities Act, they come within its definition. It is an admitted position that in none of the aforesaid judgments relied on by the appellant, this Court had considered any provision similar to Section 87 of the Rajasthan Municipalities Act and, therefore, those judgments cannot be read to mean that a Municipal Councillor in no circumstance can be d....