1 S.B. CRIMINAL REVISION PETITION NO.453/2008 Smt. Sumitra Kanthiya & Ors. Vs. State of Rajasthan Date of Order :: 30-07-2008 HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Sandeep Mehta, for the petitioner. Mr. L.R. Upadhyay, Public Prosecutor. This revision petition has been filed against the judgment of the learned Special Judge, Prevention of Corruption Act Cases, Udaipur dated 12.12.2007 whereby he dismissed the application of the petitioners dated 16.10.2007 in which it was prayed for their discharge under Section 7, 13(1)(d) read with Section 13(2) of P.C. Act and Section 120-B IPC. All the petitioners pleaded not guilty to the above charge and claimed trial and the case was fixed for prosecution evidence. It was alleged that the petitioners are not public servant within the definition of Section 2(c) of the Prevention of Corruption Act, 1988 as they are not being paid any salary or remuneration in lieu of their services. Learned trial court observed 2 that the cognizance was taken against the accused petitioners on 7.4.2004 under Section 13(1)(d) read with Section 13(2) of the P.C. Act and Section 120-B IPC. Against that order, a revision petition was filed in the High Court being S.B. Criminal Revision Petition No.106/2006 which was dismissed on 26.2.2007 with the observation that accused petitioners are at liberty to raise the objections at the time of framing charges. Learned trial court observed that on 18.7.2007, when the charges were framed, no such objection was raised, therefore, the present application is not maintainable and the court cannot review its own order dated 18.7.2007. Having perused the order dated 18.7.2007 of the trial court, it appears that in the order itself, the trial court has nowhere observed that it heard the petitioners or the Public Prosecutor by marking the attendance of the Public Prosecutor and all the accused petitioners and on perusing the record, order for framing charge was pronounced and the charges were framed and the case was fixed for prosecution evidence. Thus, the order dated 18.7.2007 is in clear violation of the directions given by this Court 3 on 26.2.2007 in Criminal Revision No.106/06. That apart, as held by the Hon'ble Supreme Court, reference of which has been given in the impugned order as well, i.e. AIR 1995 SC 1314, State of Tamilnadu Vs. T. Thulasingam & Ors. it has been observed that for finding the scope of Section 21 of the Indian Penal Code and Section 2(c) of the P.C. Act, municipal councilors are not public servant because they are not drawing salary. This decision of the Hon'ble Supreme Court was based on the earlier decision of Ramesh B. Kulkarni Vs. State of Maharashtra, reported in AIR 1985 SC 1655 wherein while discussing the scope of Section 21 IPC vis.a.vis Section 5(1)(d) and (2) of the P.C.Act, it was observed as under:- “The concept of a 'public servant' is quite different from that of a Municipal Councillor. A 'public servant' is an authority who muyst 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 edicts of a governmental authority. The mere fact that a 4 MLA gets allowance by way of honorarium does not convert his status into that of a 'public servant'. In Antulay'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 view of the above decision of the Hon'ble Supreme Court, the petitioners being municipal councilors 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. Consequently, this revision petition is allowed. The order of the learned Special Judge, Prevention of Corruption Act Cases, Udaipur dated 12.12.2007 is set aside and the petitioners are discharged for the charges levelled against them. [DEO NARAYAN THANVI],J. Praveen