RAMESH BALKRISHNA KULKARNIversusSTATE OF MAHARASHTRA

                                                             345

                                                                    A
                    RAMESH llALKRISllNA ·1WLKA&NI
                                 v.
                        STATE OF MAllAllASl!l'RA

                            JULY 31, 1985
                                                                    ll
             [S.MURTAZA FAZAL ALI AND A. VARADARAJAN JJ.j

     Indian Penal Code, 1860, Sec. 21 - "Public Servant" and
"Municipal Councillor" - Distinction between- Municipal Council-
lor is not a "Public Servant".

     Section 161 IPC and Sec. 5 (l)(d) read with. sec. 5(2) of
                                                                    c
Prevention of Corruption Act.- Prosecution of a "Municipal Coun-
cillor" under - Whether legal.

     The appellant, a Mund pal Councillor, .was prosecuted u/ s
161, lPC and s.5 (l)(d) read with Sec. 5(2) of the Prevention of
                                                                     lJ
Corruption Act_. The trial Court convicted him of the aforesaid
charges. On appeal, the High Court, confirmed his conviction and
sentence.

     In apppal to this Court, the appellant contended that as a
Municipal Couocillor was not a 1 public servant' within the mean-
ing of Section 21 of the Indian Penal Code, he could not be
prosecuted under the Act even if sanction for his prosecution.was
obtained.

     Allowing the appeal,

     HELD : l. The appellant, not being a public servant, could
                                                                         F
not be prosecuted under the provisiona of the Act - whether or
not sanction to prosecute him is obtained which is wholly
irrelevant to the issue. [348 B-Cj

     2. The concept· of a 'public servant' is quite different
from that of a · Municipal Councillor. A 'public servant' is an .
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authority who must be appointed by Government or a semi-govero-
mental body and shoul\i be ·in the pay or salary of the same.
Secondly, a 'public servant' is to discharge his duties in
accordance with the rules and regulationa made by the Govero-·
ment; On the other hand, a Municipal Couocillot does not owe his
appointment .to any governmental authority. Such a person is
elected by the people and functions undeterred by the commands or
      346                SUPREME COURT Rl>PORTS     [1985] SUPP.2 s.c.R.


A     edicts of a governmental authority.     Therefore, a Municipal
      Councillor is not a 'public servant' within the meaning of Sec.
      21 IPC. [347 G-1!, 348 A]

            a.s. Nayak v. A.R.Antulay, AIR 1984 s.c.684, followed.
lS         CRIMINAL APPELLATE JURISDIC.'TION : Criminal   Appeal No. 140
      of 1977.

           From the Judgment and Order dated 3/6.9.1976 of the !Sombay
      High Court in Criminal Appeal No. 103 of 1975.

            S.K. Agnihotri and V.N. Ganpule for the Appellant.
c
            V.B. Joshi and M.N. Shroff for the Respondents.

            The Judgment of the Court was delivered by

           FAZAL ALI, J. This appeal by Certificate under Article 134
      of the Constitution of India arises out of a judgment dated
D     3/6.9.76 of the !Sombay High Court affirming the conviction and
      sentence of the appellant imposed by the trial court.

           The short point on which certificate was granted and the
      case has been argued by both the parties falls within a very
      narrow compass. The appellant, who was a Municipal Councillor,
E     was prosecuted under section 161 of the Indian Penal Code and
      s.5(l)(d) read with s.5(2) of the Prevention of Corruption Act
      (hereinafter referred to as the 'Act'). The High Court, after
      holding that sanction by the competent authority to prosecute the
      appellant was valid, confirmed his conviction and sentence.
      Hence, this appeal.
F ,
           The counsel for the appellant argued that as a Municipal
      Councillor was not a 'public servant' within the meaning of s .21
      of the IPC, he could not be prosecuted under the Act even if
      sanction for his prosecution was obtained. The High Court, how-
      ever, negatived this contention and held that a Municipal Coun-
 G    cillor was undoubtedly a 'public servant' and affirmed the
      conviction of the appellant.

           the only point for consideration in thi.s appeal before us is
      whether or not a Municipal Councillor who was not assisting any
      public servant is a 'public servant' within the meaning of s.21
 I!   of the IPC.    It is not necessary for us to go into further
              R.B.KULKARNI v. STATE   [FAZAL ALI, J ·]            347

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details as the matter is no longer res integra and is·covered by
a recent decision of this Court in the case of R.S. Nayalt v. A.R.
Antulay, A.I.R. 1984 s.c. 684, where this Court made the follow-
ing observations :

           "Whatever that may be, the conclusion    is     inescapable
                                                                         B
           that till 1964 at any rate M.L.A. was not comprehended
           in the definition of 'public servant' in s.21. And the
           Santhanam Committee did not recommend its inclusion in
           the definition of 'public servant' in section 21
           •••••• Now if prior to the enactment of Act 40 of 1964.
           M. L.A. was not comprehended as a public servant in
           s.21, the next question is : did the amendment make
                                                                         c
           any difference in his position. The amendment keeps
           the law virtually unaltered. Last part of Clause 9 was
           enacted as Clause 12(a). If M.L.A. was not comprehen-
           ded 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 amend-
           ment of Clauses (9) and (12) by Amending Act 40 of
           1964 did not bring about any change in the interpreta-
            tion of Clause (9) and Clause (12) (a) after the
           amendment of 1964.



           Therefore, apart from anything else,          on historical
           evolution 6£ Section 21, adopted as an external aid to
           construction, one can confidently say that M.L.A. was
           not and is not a public servant within the mean! ng of
                                                                         F
           the expression in any of the clause of Section 21.
           IPC ••.
                                                     (limphasis ours)

      In view of this decision, therefore, we need not go to the
other authorities on the subject. Even so, we are of the opinion
                                                                             G
that the concept of a 'public servant' is quite different from
that of a Municipal Councillor. A 'public servant' is an autho-
rity who must be appointed by Government or a semi-goverrunental
body and should be in tne pay or salary of the same. Secondly, a
'public servant 1 is to discharge his duties in accordance with
the rules and· regulations made by the Government. On the ·other
                                                                             H
hand, a Municipal Councillor does not owe his appointment to any
governmental authority. Such a person is elected by the people
        348               SUPREME COURT REPORTS      [1985J.SUPP.2 s.c.a.

    A   and functions undeterred by the conmands or edicts of a govern-
        mental authority. The mere fact that a Mi.A gets allowance by way
        of honorariun does not convert his status into that of a 'public
        ser\lant 1 • Ill 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
    B   s.21 of the lPC.

             In these circunstiinces, we hold that the appellant, not
        being a public servant, could not be prosecuted under the provi-
        sions of the Act-whether or not sanction to prosecute him is
        obtained which is wholly irrelevant to. the issue.

    C        For the reasons given above, we allow the appeal, set aside'
        the conviction and sentence imposed on the appellant and acquit
        him of the charges framed against him. The appellant, who is on
        bail, shall now be discharged from his bail-bond. Fine if paid
        shall be refunded to the appellant.
    D




        M.L.A. I                                          Appeal all~ed.




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