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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1881 OF 2013  

(@SPECIAL LEAVE PETITION (CRL) NO. 7511 OF 2013) MANISH TRIVEDI     … APPELLANT

VERSUS STATE OF RAJASTHAN     …RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

The petitioner’s challenge to his prosecution for  

an  offence  under  Sections  7,  13(1)(d)  read  with  

Section 13(2) of the Prevention of Corruption Act has  

been  turned  down  by  the  trial  court  and  the  said  

order  has  been  affirmed  by  the  High  Court  by  its  

order  dated  1st of  March,  2013  passed  in  Criminal  

Miscellaneous  Petition  No.  1686  of  2009.  It  is  

against this order that the petitioner has preferred  

this special leave petition.

Delay condoned.

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Leave granted.

Shorn of unnecessary details, facts giving rise  

to the present appeal are that 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.  

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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 ‘public servant’ and 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.

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It is against this order that the appellant is  

before us with the leave of the court.

We  have  heard  Mr.  Yashank  Adhiyaru,  Senior  

Counsel  for  the  appellant  while  respondent  is  

represented by Mr. Milind Kumar.

Mr. Adhiyaru submits that a Municipal Councillor  

is  not  a  public  servant  and,  therefore,  his  

prosecution for the offence alleged is bad in law.  

According  to  him,  for  prosecuting  an  accused  for  

offence under the Prevention of Corruption Act, 1988  

the accused charged must be a public servant and the  

appellant  not  being  a  public  servant  cannot  be  

prosecuted under the said Act.  Further, for a person  

to have the status of a public servant he must be  

appointed by the Government and must be getting pay  

or salary from the Government.  Not only this, to be  

a public servant, such a person has to discharge his  

duties in accordance with the rules and regulations  

made  by  the  Government.   According  to  him,  the  

appellant was elected as a Municipal Councillor and  

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he does not owe his appointment to any governmental  

authority.  Being a person elected by the people, the  

commands and edicts of a Government authority do not  

apply to him.  In support of the submission he has  

placed reliance on a judgment of this Court in the  

case of R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183.  

He has drawn our attention to the following passage  

from the said judgment.

“41…….Whatever  that  may  be  the  conclusion  is  inescapable  that  till  1964  at  any  rate  MLA  was  not  comprehended  in  the  definition  of  ‘public  servant’  in  Section  21.  And  the  Santhanam  Committee  did  not  recommend  its  inclusion  in  the  definition  of  ‘public  servant’  in  Section 21.

42…….Now if prior to the enactment of  Act  40  of  1964  MLA  was  not  comprehended  as  a  public  servant  in  Section 21, the next question is: did  the amendment make any difference in  his position. The amendment keeps the  law virtually unaltered. Last part of  clause (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  

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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  quite  different  from  that  of  a  Municipal  Councillor. A “public servant” is an  authority  who  must  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  

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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 an MLA gets allowance by way  of  honorarium  does  not  convert  his  status  into  that  of  a  “public  servant”.  In  R.S.  Nayak  v.  A.R.  Antulay, (1984) 2 SCC 183 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 Section 21  of the IPC.”

Yet another decision on which counsel has placed  

reliance is the judgment of this Court in the case of  

State of T.N. v. T. Thulasingam, 1994 Supp (2) SCC  

405, and he has drawn our attention to Paragraph 76  

from the said judgment which reads as follows:

“76. The  High  Court  was,  however,  right  in  acquitting  various  Councillors  of  the  charge  under  the  Prevention of Corruption Act as they  are not  public  servants, in  view  of  the decision of this Court in  Ramesh  Balkrishna  Kulkarni v.  State  of  Maharashtra  (1985)  3  SCC  606.  The  acquittal of the Councillors (A-75 to  A-80 and A-82); Chairman and Member of  the Accounts Committee (A-84 to A-86);  Members of the Works Committee (A-87);  Members of the Education Committee (A- 94  to  A-96);  Member  of  the  Town  Planning  Committee  (A-98)  and  

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Councillors  (A-102  and  A-104)  under  the  provisions  of  the  Prevention  of  Corruption  Act  is  thus  upheld.  However, their respective convictions  and  sentences  for  other  charges  as  found by the  trial court  are  upheld  and their acquittal by the High Court  for  those  other  charges  was  not  justified. All the public dignitaries  themselves had become the kingpin of  the criminal conspiracy to defraud the  Corporation of Madras.”

Counsel  for  the  appellant  has  also  placed  

reliance on an unreported judgment of the Rajasthan  

High Court in the case of Smt. Sumitra Kanthiya vs.  State of Rajasthan, disposed of on 30th of July, 2008  passed in Criminal Revision Petition No. 453 of 2008  

and our attention has been drawn to the following  

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.”

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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 Act defines Board.  Section 7  

provides for its establishment and incorporation and  

Section 9 provides for composition thereof.  Section  

3(15)  defines  ‘Member’  to  mean  a  person  who  is  

lawfully a Member of a Board.  Section 87 of the  

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Rajasthan Municipalities Act, 1959 makes every Member  

to be public servant within the meaning of Section 21  

of  the  Indian  Penal  Code  and  the  same  reads  

as follows:

“87. Members etc., to be deemed public  servants.-(1) Every member, officer or  servant, and every lessee of the levy  of  any  municipal  tax,  and  every  servant or other employee of any such  lessee shall be deemed to be a public  servant within the meaning of Section  21  of  the  Indian  Penal  Code,  1860  (Central Act XLV of 1860).

(2) The  word  “Government”  in  the  definition of “legal remuneration” in  Section 161 of that Code shall, for  the  purposes  of  sub-section  (1)  of  this section, be deemed to include a  municipal board.”

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  

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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 Penal Code.

To put the record straight, we must incorporate  

an ancillary submission of Mr. Adhiyaru. He submits  

that ‘Every member’ used in Section 87 relates to  

such members who are associated with any ‘lessee of  

the levy of any Municipal tax’.  This submission has  

only  been  noted  to  be  rejected.   The  expression  

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‘Every member’ 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.  

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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  to  be  prosecuted  under  the  Prevention  of  

Corruption  Act,  1988  and,  hence,  to  determine  his  

status  it  would  be  necessary  to  look  into  its  

interpretation under Section 2(c) thereof, read with  

the provisions of the Rajasthan Municipalities Act.  

The view which we have taken finds support from the  

judgment of this Court in  State of Maharashtra v.  

Prabhakarrao, (2002) 7 SCC 636,  wherein it has been  

held as follows:

“5. Unfortunately, the High Court in  its  order  has  not  considered  this  question at all. It has proceeded on  the assumption that Section 21 of the  Indian  Penal  Code  is  the  relevant  provision  for  determination  of  the  question  whether  the  accused  in  the  case  is  a  public  servant.  As  noted  earlier,  Section  21  IPC  is  of  no  relevance  to  consider  the  question  which has to be on interpretation of  provision  of  Section  2(c)  of  the  Prevention  of  Corruption  Act,  1988  read with the relevant provisions of  the Maharashtra Cooperative Societies  Act, 1960.”

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Now we proceed to consider whether or not the  

appellant, a Councillor and the member of the Board,  

is  a  public  servant  under  Section  2(c)  of  the  

Prevention of Corruption Act, 1988.  Section 2(c) of  

this Act reads as follows:

“2.  Definitions.-In  this  Act,  unless  the context otherwise requires,-

(a) xxx xxx xxx

(b) xxx xxx xxx

(c) " public servant" means,-

(i) any 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;  

(ii) any person in the service or  pay of a local authority;  

(iii) any person in the service or  pay of  a  corporation  established  by or under a Central, Provincial  or State Act, or an authority or a  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);  

(iv) any  Judge,  including  any  person  empowered  by  law  to  discharge,  whether  by himself  or  as  a  member  of  any  body  of  

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actual possession of the situation of  a  public  servant,  whatever  legal  defect there may be in his right to  hold that situation.”

The present Act envisages widening of the scope  

of the definition of the expression ‘public servant’.  

It  was  brought  in  force  to  purify  public  

administration.   The  legislature  has  used  a  

comprehensive  definition  of  ‘public  servant’  to  

achieve  the  purpose  of  punishing  and  curbing  

corruption among public servants.  Hence, it would be  

inappropriate to limit the contents of the definition  

clause by a construction which would be against the  

spirit  of  the  statute.   Bearing  in  mind  this  

principle,  when  we  consider  the  case  of  the  

appellant,  we  have  no  doubt  that  he  is  a  public  

servant within the meaning of Section 2(c) of the  

Act.   Sub-section  (viii)  of  Section  2(c)  of  the  

present Act makes any person, who holds an office by  

virtue  of  which  he  is  authorized  or  required  to  

perform any public duty, to be a public servant.  The  

word ‘office’ is of indefinite connotation and, in  

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the  present  context,  it  would  mean  a  position  or  

place to which certain duties are attached and has an  

existence  which  is  independent  of  the  persons  who  

fill it.  Councillors and members of the Board are  

positions  which  exist  under  the  Rajasthan  

Municipalities Act.  It is independent of the person  

who fills it.  They perform various duties which are  

in the field of public duty.  From the conspectus of  

what  we  have  observed  above,  it  is  evident  that  

appellant  is  a  public  servant  within  Section  2(c)

(viii) of the Prevention of Corruption Act, 1988.

Now we revert to the authorities relied on by Mr.  

Adhiyaru  i.e.  R.S.Nayak  (supra),  Ramesh  Balkrishna  Kulkarni  (supra)  and T.Thulasingam  (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  

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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  

deemed to be a public servant.  Mr. Adhiyaru points  

out that provisions pari materia to that of Section  

87 of the Rajasthan Municipalities Act did exist in  

the  respective  enactments  under  consideration  in  

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these cases and, therefore, it has to be assumed that  

this Court, while holding that Municipal Councillors  

are not public servant, must have taken note of the  

similar provision.  However, in fairness to him, he  

concedes that such a provision, in fact, has not been  

considered in these judgments.  We are of the opinion  

that  for  ascertaining  the  binding  nature  of  a  

judgment, what needs to be seen is the ratio.  The  

ratio of those cases is that Municipal Councillors  

are  not  public  servants  under  Section  21  of  the  

Indian Penal Code.  But Section 87 of the Rajasthan  

Municipalities  Act,  as  discussed  above,  make  

Councillor  and  member  of  Board  a  public  servant  

within the meaning of Section 21 of the Indian Penal  

Code.   Hence,  all  the  judgments  of  this  Court  

referred to above are clearly distinguishable.   

Not  only  this,  in  the  case  in  hand,  we  are  

concerned with the meaning of the expression ‘public  

servant’  as  defined  under  Section  2(c)  of  the  

Prevention  of  Corruption  Act,  1988  and,  hence,  

decisions rendered by this Court while interpreting  

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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  

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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.   

As the trial is pending since long, we deem it  

expedient that the learned Judge in seisin of the  

trial  makes  an  endeavour  to  dispose  of  the  trial  

expeditiously and in no case later than six months  

from the date of receipt of a copy of this order.

In the result, we do not find any merit in the  

appeal and it is dismissed accordingly.     

     ……………………..………………………………..J.  (CHANDRAMAULI KR. PRASAD)

 …….….……….………………………………..J.                       (JAGDISH SINGH KHEHAR)

NEW DELHI, OCTOBER 29, 2013  

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