IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.17 OF 2001 CRIMINAL REVISION APPLICATION NO.17 OF 2001 CRIMINAL REVISION APPLICATION NO.17 OF 2001 The State of Maharashtra .. Applicant. Versus Dr.(Ms.) Draupadi Parpiyani .. Respondent. Mr.H.J.Dedhia, A.P.P. for applicant. Mr.Niteen Pradhan i/b. Ms.S.D.Khot for respondent. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 21st April, 2008. DATED : 21st April, 2008. DATED : 21st April, 2008. P.C.: P.C.: P.C.: 1. Heard Mr.Dedhia for the petitioner and Mr.Niteen Pradhan for the respondent. 2. According to the petitioner - State, the respondent has committed an offence punishable under Section 7, 13(1)(d) r/w.Section 13(2) of Prevention of Corruption Act, 1988. The charge-sheet came to be filed against the respondent on 14.1.2000. According to the State, the offence is said to have taken place on 10.7.1997. The learned Special Judge, Greater Bombay to whom the case was assigned, considered the charge-sheet for the purposes of deciding whether the process should be issued or not. The learned Special Judge declined to grant process and passed an order dated 25.5.2000 thereby directing that the charge-sheet should be returned to the appropriate Officer of A.C.B. for taking further steps in accordance with provisions of law. This came to be done by the learned Special Judge mainly by coming to the conclusion that the respondent was not a public servant in view of the judgement delivered by this Court in Criminal Appeal No.344 of 1985. This order dated 25.5.2000 is the subject matter of this petition which is filed by the State. 3. I have heard learned A.P.P. Mr.Dedhia in support of the petition on behalf of the State and learned Advocate Mr.Niteen Pradhan on behalf of respondent - original accused. It is required to be noted that the date of alleged incident is 10.7.1997 and, therefore, the provisions of the Prevention of Corruption Act, 1988 would be attracted. There is no dispute about it. Learned A.P.P. Mr.Dedhia drew my attention to the fact that the learned Special Judge relied upon the views of this Court expressed in Criminal Appeal No.344 of 1985 based on the observations that the definition of "public servant" "public servant" "public servant" prior to 1988 was as per the provisions of Section 21 of the I.P.C. According to Mr.Dedhia, after the enactment of the Prevention of Corruption Act, 1988, the term "public servant" "public servant" "public servant" is defined in Section 2(c) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the said "Act") and that according to Mr.Dedhia, Clause 8 : "any person who holds an office "any person who holds an office "any person who holds an office by virtue of which he is authorised or required to by virtue of which he is authorised or required to by virtue of which he is authorised or required to perform any public duty" perform any public duty" perform any public duty" would be attracted and that the learned Special Judge ought to have observed that respondent is a public servant and ought to have proceeded in favour of the State. According to learned A.P.P. Mr.Dedhia, the view expressed by the learned Special Judge on the provisions of the Prevention of Corruption Act, 1947 are not applicable but according to him, looking to the facts of this case, the Prevention of Corruption Act, 1988 is attracted and that is how the learned Special Judge has committed an error. He had therefore submitted that the impugned order should be set aside and this Court should direct the learned Special Judge, Greater Bombay to consider the matter so as to issue process against the respondent. 4. The learned Advocate Mr.Pradhan appearing on behalf of the respondent submitted that as a result of new enactment, the Prevention of Corruption Act, 1988, the definition of the "public servant" "public servant" "public servant" is inbuilt and is contained in Section 2(c) of the Act. Learned Advocate Mr.Pradhan argued to justify the impugned order passed by the learned Special Judge, Greater Bombay and that according to him, the learned Trial Judge was right. He had therefore submitted that the impugned order should be confirmed. 5. After having considered the rival submissions, it is clear that the learned Special Judge for Greater Bombay did not consider as to which Act would be applicable to the facts of this case, namely; whether the Prevention of Corruption Act, 1947 or 1988. The learned Trial Judge proceeded to accept the views expressed by this Court in Criminal Appeal No.344 of 1985 which dealt with a case which was concerning to the provisions of the Prevention of Corruption Act, 1947. 6. It is required to be mentioned that the alleged incident has taken place on 10.7.1997. There is no doubt that the Prevention of Corruption Act, 1988 would be applicable to the facts of this case and, therefore, whether the respondent is a "public "public "public servant" servant" servant" or not and whether an offence as alleged in the charge-sheet is committed by the respondent or not will have to be decided on the basis of the term "public servant" "public servant" "public servant" appearing in Section 2(c) of the said Act. If this be so, it was necessary for the learned Special Judge to appreciate the provisions of Section 2(c) of the Prevention of Corruption Act, 1988 and then decide whether the respondent can be conveniently styled as "public servant" "public servant" "public servant" and then decide whether the process can be issued. The impugned judgement and order does not discuss the effect of the Prevention of Corruption Act, 1988 as well as the definition of the term "public servant" "public servant" "public servant" appearing in Section 2(c) of the said Act. In my view, instead of going into that question by this Court, in the fitness of the things, it would be proper to set aside the impugned order dated 25.5.2000 and call upon the learned Special Judge, Greater Bombay to decide the matter afresh on the question of issuance of process by allowing the petitioner as well as the respondent to advance their respective contentions as to whether the respondent should be styled as a "public servant" within the meaning of Section 2(c) of Prevention of Corruption Act, 1988 so that the learned Special Judge, Greater Bombay can look into the matter, apply his mind keeping in view the new definition of term "public servant" and decide the matter on merits. In my view, this would subserve interest of justice and it would provide one more opportunity to the petitioner as well as respondent to advance their submissions before the very forum, who would be deciding the question whether process may be issued or not rather than deciding the question by the Court having revisional jurisdiction. 7. For the reasons mentioned aforesaid, I am inclined to set aside the order dated 25.5.2000 and direct that the learned Special Judge, Greater Bombay shall consider the facts and circumstances of the case afresh, decide the matter in the light of the provisions of the Prevention of Corruption Act, 1988 and pass an order as may be found necessary. 8. It is also required to be noted that the provisions of the E.S.I. Act, 1948 would be attracted to the facts of this case because the respondent was working as a panel Doctor of the ESI Scheme. The provisions of the said Act will have to be looked by the learned Special Judge for the purposes of deciding the duties cast upon the respondent and the status of the respondents and question whether the respondent could be styled as a "public servant" within the meaning of Prevention of Corruption Act, 1988. 9. For the reasons mentioned above, I pass the following order :- a) The order dated 25.5.2000 passed by the learned Special Judge, Greater Bombay in Special Case No.6 of 2000 is set aside. The matter is remanded to the Court of Special Judge, Greater Bombay. b) The learned Principal Judge, City Civil & Sessions Court, Bombay shall assign this Special Case No.6 of 2000 to a Special Judge, Greater Bombay, taking up A.C.B. cases. c) Once the name of the Judge is nominated, the petitioner shall file the charge-sheet in the said Court before the learned Judge so that the said learned Judge can consider the matter and after hearing learned Advocates on both the sides decide the question : whether a process can be issued against the respondent or not. The learned Judge while deciding the matter shall consider the provisions of the Prevention of Corruption Act, 1988 as also the provisions of E.S.I. Act, 1948 and other applicable enactments. 10. No views are expressed on the merits of the matter. Revision stands disposed off accordingly. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)