Case: Manish Trivedi Vs. State Of Rajasthan

the appellant at the relevant time was a Councillor elected to the Municipal Council, Banswara and a Member of the Municipal Board. According to the prosecution, one Prabhu Lal Mochi lodged a report in the Anti-Corruption Bureau, inter alia, alleging that he had a shoe repair shop near the gate of Forest Department, Banswara and the employees of the Municipal 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 a Councillor does not come within the definition of ‘publicand as such, he cannot be put on trial for the offence under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The trial court rejected the said prayer vide its order dated 13th of October, 2009. The appellant assailed this order before the High Court in an application filed under Section 482 of the Code of Criminal Procedure and the High Court by the impugned judgment has rejected his prayer.It is against this order that the appellant is before us with the leave of the court.

Reasoning:
From a plain reading of the aforesaid provision it is evident that by the aforesaid section the legislature has created a fiction that every Member shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. It is well settled that the legislature is competent to create a legal fiction. A deeming provision is enacted for the purpose of assuming the existence of a fact which does not really exist. When the legislature creates a legal fiction, the court has to ascertain for what purpose the fiction is created and after ascertaining this, to assume all those facts and consequences which are incidental or inevitable corollaries for giving effect to the fiction. In our opinion, the legislature, while enacting Section 87 has, thus, created a legal fiction for the purpose of assuming that the Members, otherwise, may not be public servants within the meaning of Section 21 of the Indian Penal Code but shall be assumed to be so in view of the legal fiction so created. In view of the aforesaid, there is no escape from the conclusion that the appellant is a public servant within the meaning of Section 21 of the Indian Penalare concerned with the meaning of the expression ‘publicas defined under Section 2(c) of the Prevention of Corruption Act, 1988 and, hence, decisions rendered by this Court while interpreting Section 21 of the Indian Penal Code, which in substance and content are substantially different than Section 2(c) aforesaid, shall have no bearing at all for decision in the present case. As regards the decision of the learned Single Judge of the Rajasthan High Court in the case of Sumitra Kanthiya (supra), it has also not considered Section 87 of the Rajasthan Municipalities Act. In fact, to come to the conclusion that the Municipal Councillor would not come within the definition of public servant, it has mainly placed reliance on a judgment of this Court in the case of Ramesh Balkrishna Kulkarni (supra). We have considered this judgment in little detail in the preceding paragraphs of the judgment and found the same to be distinguishable as the said decision did not consider the statutory provision in the present format. Further, the aforesaid case does not lay down an absolute proposition of law that Municipal Councillor in no circumstances can be treated as a public servant. The learned Judge has also not at all adverted to Section 87 of the Rajasthan Municipalities Act as also Section 2(c) of the Prevention of Corruption Act, 1988 and, hence, the judgment rendered by the Rajasthan High Court in Sumitra Kanthiya (supra) does not lay down the law correctly and is, therefore, overruled.