CR.MA/397720/2004 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3977 of 2004 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JASHWANTBHAI CHELABHAI OZA - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR JB PARDIWALA for Applicant(s) : 1, MR MUKESH PATEL, APP for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 14/10/2008 ORAL JUDGMENT 1. The facts of the case stated briefly are that one Babubhai Mangaldas Patel lodged a complaint against the present applicant alleging that the applicant who used to sit near the Sub-Registry Office, Unjha had charged Rs.1000/- to Rs.1,200/- towards typing, Xerox, writing etc. which was much in CR.MA/397720/2004 2/13 JUDGMENT excess of the charges permissible under the Rules governing the licence issued in favour of the applicant. Pursuant to the complaint, a first information report came to be registered against the applicant vide Mehsana ACB Police Station C.R.No.6 of 2000 for the offences punishable under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (“the Act”). 2. By this application under section 482 of the Code of Criminal Procedure, 1973 (“the Code”), the applicant has prayed to quash the aforesaid first information report, the charge sheet submitted pursuant thereto as well as ACB Special Case No.6 of 2003 pending in the Court of the Special Judge, Mehsana. 3. Heard Mr JB Pardiwala, learned advocate for the applicant and Mr Mukesh Patel, learned Additional Public Prosecutor for the respondent – State of Gujarat. 4. Mr JB Pardiwala, learned advocate for the applicant has submitted that the issues that arise for consideration in the present case are as follows:- (i) Whether a person who has been issued licence by the Collector and District Registrar for working as a Bond Writer in the office premises of the Sub- Registrar can be termed as a “public servant” within CR.MA/397720/2004 3/13 JUDGMENT the meaning of Section 2(c)(i) of the Act. (ii) Whether a person working as a Bond Writer can be said to be a person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty. (iii) Whether a Bond Writer can be said to be occupying a public office or can be said to be in the employment of the State. 5. It is submitted that the applicant had two licences issued by the Collector and District Registrar - one for selling stamps i.e. licence as a stamp vendor and the other licence of a Bond Writer. If a person wants to work as a Bond Writer sitting in the compound of the office premises of the Sub- Registrar, then it is mandatory for that person to obtain a licence which is issued by the Collector and District Registrar. It is submitted that the applicant was issued a licence and on the strength of that licence, he was working as a Bond Writer sitting in the compound of the Sub-Registry office. It is pointed out that the licence only entitles a person to occupy some place in the compound of the Sub- Registry office and attend persons desirous of getting documents like sale deed, gift deed, etc. executed. The licence provides that Bond Writer shall charge fees as per the prescribed rates. The case against the present applicant is that he had CR.MA/397720/2004 4/13 JUDGMENT demanded more money from the complainant for writing a document of sale deed than the prescribed fees. It is submitted that, assuming without admitting that such a demand was made by the applicant, the same can never be said to be illegal gratification other than legal remuneration as envisaged under the Act. According to the learned advocate, the applicant who merely has a licence to sit near the office of the Sub-Registry or in the compound of the revenue office can neither be said to be holding any office i.e. a public office nor can he be said to be in the employment of the State. It is submitted that the applicant as a Bond Writer is not paid fees or remuneration from the Government funds and as a Bond Writer is not performing any public duty, more so when the applicant is not holding a public office. It is contended that at best, it can be said that the applicant as a Bond Writer enters into a contract and agrees to abide by the terms and conditions of the licence and nothing beyond that. If there is any breach of the terms and conditions, the consequence which would entail would be cancellation of licence and not prosecution under the Prevention of Corruption Act. In support of his submissions, the learned advocate for the applicant has placed reliance upon a decision of this Court in the case of Dr. Arvind C. Shah Vs. State of Gujarat, 1986 GLH 150 to submit that in a similar set of facts, the Court had held that CR.MA/397720/2004 5/13 JUDGMENT once it is held that the accused is not in contract of service, but he renders the service pursuant to the contract and if he is paid for his services rendered, he cannot be said to be a person holding any office under the Government and unless a man holds an office under the Government he cannot be designated to be a public servant in terms of Section 21 of the Act. 6. On the other hand, Mr Mukesh Patel, learned Additional Public Prosecutor has vehemently opposed the application. It is submitted that the applicant would be directly covered by the definition of “public servant” as envisaged under Section 2(c)(i) and (viii) of the Act. It is further submitted that the petitioner has been granted a licence as a Bond Writer which is governed by the Rules in that regard. It is submitted that bond writing is a public duty as envisaged under Section 2(b) of the Act and as such, the applicant is a public servant within the meaning of the said expression as defined under Section 2(c) of the Act. It is pointed out that the Rules provide for a prescribed rate of fees, to submit that it was, therefore, not permissible for the applicant to charge fees in excess of the prescribed rates. It is contended that, thus, the demand for fees in excess of prescribed rates would amount to illegal gratification as envisaged under the provisions of the Act and as such, no case is made out for quashing the complaint. CR.MA/397720/2004 6/13 JUDGMENT 7. In the background of the facts and contentions noted hereinabove, the issue that arises for consideration is as to whether the applicant – a Bond Writer who has been issued a licence by the Collector and the District Registrar for writing documents which authorises him to sit near the Sub- Registry Office or in the compound of the revenue office can be said to be a “public servant” as envisaged under the provisions of the Act so as to fall within the ambit of the said Act. 8. Clause (c) section 2 of the Act which defines “public servant” as is relevant for the purpose of the present case reads as under: “(c) “public servant” means – (i) any person in the service or pay of the Government or remunerated by the Government by fees or commission in the performance of any public duty; (viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty; Explanation 1.- Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not, CR.MA/397720/2004 7/13 JUDGMENT Explanation 2.- Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.” 9. On a plain reading of the aforesaid provision, it is apparent that to fall within the ambit of the definition of “public servant” under sub-clause (i) of clause (c) the conditions which are required to be satisfied are that the person (i) should be in the service of the Government; or (ii) he should be in the pay of the Government, or (iii) he should be remunerated by the Government by fees or commission for the performance of any public duty. Thus, if a persons fall in any of the above three categories he would be a public servant. 10. Examining the facts of the present case in the light of the aforesaid provision, it is an undisputed position that the applicant is not in service of the Government, nor is he in the pay of the Government. On the facts emerging from the record, there is nothing to show that the applicant receives any remuneration from the Government by way of fees or commission insofar as bond writing is concerned. Neither do the licence or the Rules referred to hereinafter provide for payment of fees CR.MA/397720/2004 8/13 JUDGMENT or commission by the Government. Hence, there is no material on record to show that the applicant falls within the ambit of sub-clause (i) of clause (c) of section 2 of the Act. 11. The next step, therefore, would be to examine as to whether the applicant falls within the purview of sub-clause (viii) of clause (c) as is sought to be contended on behalf of the prosecution. Insofar as clause (viii) is concerned, the said clause postulates that the person (i) must hold an office and (ii) by virtue of that office (iii) he must be authorized or required to perform (iv) a public duty. 12. The expression ‘public duty’ is defined in Section 2(b) in these terms: “2. (b) ‘Public duty’ means a duty in the discharge of which the State, the public or the community at large has an interest.” 13. The word ‘office’ is normally understood to mean “a position to which certain duties are attached, especially a place of trust, authority or service under constituted authority”. Office has also been understood to mean a position or a place to which certain duties are attached, especially one of a more or less public character. CR.MA/397720/2004 9/13 JUDGMENT 14. Insofar as the present case is concerned, the applicant is the holder of a licence dated 28.2.1995, issued on behalf of the Collector and District Registrar, Mehsana which reads as follows: “Shri Oza Jashwantlal Chelabhai of Unjha is here by granted/renewed for the year 1995 a Licence for writing documents which authorises him to sit near the sub Registry Office Unjha or in the Compound of the Revenue Office on the Conditions State below viz. that he undertakes to act according to the Rules and to follow the instructions issued by the District Registrar from time to time and copy of the Rules and of the statement showing the scale of fees (maximum) to be charged are put up on the notice board.” The said licence has been renewed from time to time. 15. A perusal of the Rules referred to in the Licence shows that the same have been framed as it was deemed proper, that in general there should be some sort of control over the persons engaged in the profession of writing documents meant for registration, in the interest of persons who desire to get documents registered. These Rules are called the Rules for granting licence to Bond/document CR.MA/397720/2004 10/13 JUDGMENT writers and are applicable to the persons who remain present to write documents in the sub-Registry office. Rule 9 thereof, interalia provides that any person holding a licence shall, for the purpose of writing a document, not charge fees in excess of the rate fixed by the Collector and District Registrar. Rule 11 provides that in case of any proved misconduct, the District Collector shall have the power to cancel the licence. Rule 13 of the said Rules provides that these Rules do not empower the sub-registry officer to refuse to register a document on the ground that the same is not written by a person holding a licence to write documents. 16. The applicant holds a licence and is therefore governed by the aforesaid Rules. The aforesaid Rules merely authorize the applicant to sit near the sub Registry Office, Unjha or in the Compound of the Revenue Office. In the opinion of this Court, mere authorization to write documents cannot be said to be a public duty within the meaning of the said expression as defined under section 2 (b) of the Act inasmuch as writing documents meant for registration, cannot be said to be a duty in the discharge of which the State, the public or the community at large has an interest. Besides, the licence issued to the applicant has no statutory backing and is more in the nature of an authorization. Accordingly, for breach of any of the conditions of licence, it is open for the concerned authority to cancel the same under Rule 11 of the CR.MA/397720/2004 11/13 JUDGMENT said Rules. 17. In the present case the allegation against the applicant is that he has charged more than the prescribed rate towards typing, Xerox and writing pursuant to which he is charged with the offence under sections 7, 13(1)(d) and 13(2) of the Act. Section 7 of the Act provides for the punishment in case of a public servant taking gratification other than legal remuneration in respect of an official act. Section 13 (1) lays down as to when a public servant can be said to commit the offence of criminal misconduct. Section 13(2) provides for the punishment for commission of criminal misconduct by a public servant. In the context of the aforesaid provisions, the question that arises for consideration is as to whether charging more than the prescribed fees can be said amount to taking illegal gratification as contemplated under section 7 of the Act. To attract the provisions of section 7, firstly the person has to be a public servant; secondly the illegal gratification should be in respect of an official act. In the facts of the present case, as discussed hereinabove, the applicant cannot be said to be a public servant within the meaning of the expression as defined under section 2(c) of the Act. The nature of work carried out by the applicant cannot be said to be a public duty as defined under section 2 (b) of the Act, inasmuch as the applicant does not discharge any duty in which the State, the public or the community at large have any interest. As is apparent CR.MA/397720/2004 12/13 JUDGMENT from the Rules referred to hereinabove, bond writing is a profession in respect of which a licence is issued in case such person desires to sit near the sub-registry office or in the compound of the Revenue Office. Though the licence holder has certain advantages as against a person who does not hold a licence, as laid down in Rule 13, these Rules do not empower the sub-registry officer to refuse to register a document on the ground that the same is not written by a person holding such a licence. Even without such a licence, it is permissible to write such documents, except that it would not be permissible for such person to sit near the office of the sub-registry or in the compound of the Revenue office and he would not be said to be an authorised licensed Bond Writer. In the circumstances, the duty associated with bond writing cannot in any manner be said to be a public duty as defined under the Act. In view of the aforesaid discussion, the applicant not being a public servant as defined under the Act, the provisions of section 7, 13(1) (d) and 13(2) of the Act will not be attracted. As rightly submitted by the learned Advocate for the applicant, at best it can be said that the Bond Writer has entered into a contract and has agreed to abide by the terms and conditions of licence, breach of which would entail cancellation of the licence, but not prosecution under the Prevention of Corruption Act. 18. For the foregoing reasons, this Court is of the view that the applicant, not being a public CR.MA/397720/2004 13/13 JUDGMENT servant, cannot be prosecuted under the provisions of the Act. This is, therefore, a fit case for exercise of powers under section 482 of the Code to prevent abuse of the process of Court. 19. In the result, the application succeeds and it is accordingly allowed. The FIR registered with ACB Police Station, Mehsana vide CR No. 6 of 2000 and the charge-sheet filed by ACB, Mehsana in the Court of Special Judge, Mehsana for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 are hereby quashed. Rule is made absolute. (Harsha N. Devani, J.) mrpandya*