Allahabad High Court
R.E. Kil Roy Rocky vs State Of U.P. And 2 Ors. on 20 February, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 13.01.2020
Judgment delivered on 20.02.2020
Court No. - 69
Case :- CRIMINAL REVISION No. - 4447 of 2019
Revisionist :- R.E. Kil Roy Rocky
Opposite Party :- State Of U.P. And 2 Ors.
Counsel for Revisionist :- Mohammad Waseem
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Mohammad Waseem, learned counsel for the revisionist, Sri G.P. Singh, learned A.G.A. and perused the record.
2. The instant revision has been filed against the judgment and order dated 10.10.2018 passed by Additional Session Judge/Special Judge (Prevention of Corruption Act), Court No.2, Varanasi in Special Session Trial No. 29 of 2001 under sections 13 (1) (C) / 13 (2) of Prevention of Corruption Act and under sections 465, 467, 468, 471, 201, 408, 120-B IPC, Police Station U.P. Intelligence Department, Civil Lines, District Allahabad by which the application no. 45 Ka of the revisionist-accused R.E. Kil Roy Rocky has been rejected and 26.10.2018 was fixed for framing of charge.
3. It would be appropriate to give the facts of the present case before making final appreciation as to whether the impugned order suffers from any infirmity.
4. As per record, one private person who was the Corporator namely, Pravesh Tripathi has addressed a letter to the Home Minister of the State of U.P. stating therein that the Principal and the office member of Girls High School, Elgin Road, Allahabad which is a minority institution, was realizing fee illegally which required immediate enquiry against the Principal of the said school namely, Smt. Edna Revis. The Principal of the said college was having two buses which were plying every day between Allahabad and Varanasi without permit and fare was being realized and in this manner every month, Rs.20,000/- as passenger tax was being evaded. The son of the Principal namely Prashant is also residing in the bungalow situated inside the school and it was commonly known that he was indulging in nefarious activities such as gambling etc. The husband of the Vice Principal Smt. Tuppar, who lived in Ashok Nagar, used to consume intoxicant and her own son was living in a house of an Advocate namely, Sri Neeraj Kant Verma near the Girls College premises and he was also involved in nefarious activities. The father of Sri Neeraj Kant Verma was a High Court Judge. He has deserted his wife, Smt. Tuppar who has been seen with other ladies and girls in the huge bungalow at odd hours and also some men used to be seen. Sri Neeraj Kant Verma was also a counsel of railways where he was indulging in illegal activities. Smt. Tuppar, Sri Neeraj Kant Verma and Smt. Edna Revis and their sons used to charge Rs.10,000/- to Rs.50,000/- from each student for admission in the hostel and school. The students who are residing in the said hostel, their parents are anti-national. The son of Smt. Edna Revis was paid advance of Rs.50,000/- by cheque on 15.9.1990, no details thereof were given nor any work was performed by him. The said public funds have been embezzled by him for which he needs to be arrested forthwith. An amount of Rs.24,500/- was paid to Verma and Company although there was no shop by the said name available. The contractor used to supply furniture etc. in the said college whose firm was by the name of Company Enterprises, which was fake firm and during sessions 1985-86, 1986-87 there were paid bills of worth Rs.2.00 lacs through cheques. The said firm was being run by Prashant Revis and his daughter Ankani Revis and their current account no. 693 is existing in Syndicate Bank, Civil Lines Branch, Allahabad. In 1987-88, the bills were arbitrarily prepared to be paid to the big contractors which were fake. Cheques were prepared in their name for example Shushil Sharma who was shown to run a company in the name of Sharma and Company, 504, Purana Mumfordganj, Allahabad, a fake payment of Rs.4.00 lacs was made to him. Further in the name of B. Sriviastava, an amount of Rs.2.00 lacs was paid and to M/s. M.S. Company, 33/40 Dondipur, Allahabad was paid Rs.5.00 lacs. These informations were obtained from the Chartered Accountant of M/s. B.P. Jaisawal and Company who was Auditor of the said school till March 1988. In the audit report 1987-88, it has been mentioned that these people had spent money illegally. Each institution has to obtain NOC from the State Government which is being obtained every year by paying illegal money, therefore, such certificate should be suspended in future.
5. Upon receipt of the said information, it appears that the Deputy Secretary of Government of U.P. vide letter dated 22.09.1993 addressed a letter to Sri Shashank Shekhar Mishra, Director, Vigilance, U.P. mentioning therein that after consideration of the matter, from the perusal of recommendation dated 21.9.1992 of the Joint Director (Vigilance), it is required that investigation be got done in respect of six charges/allegations and a report be submitted thereafter. Further, it appears that pursuant to the said investigation, charge sheet has been submitted against co-accused Smt. Edna Revis, Prashant Revis and R.E. Kil Roy Rocky, R.D.D. Camp Sachiv, Allahabad under sections 465, 467, 468, 471, 420, 201, 408 and 120B IPC and sections 13 (2) (C) and 13 (2) of the P.C. Act.
6. In the impugned order dated 10.10.2018, it is mentioned by the trial court that in the application 45-Kha which was submitted from the side of the revisionist it is stated that other accused in this case have already expired and the revisionist is the sole accused who is alive. The accused is said to be a Public Servant and that the educational institution namely, Girls High School, Elgin Road, Civil Lines, Allahabad is being run by a private management committee, which is not taking any financial aid from the Government, therefore, under the P.C. Act, the revisionist would not be covered under the definition of Public Servant. The complaint, upon which the then Government had given permission to make investigation into the said complaint, the complainant of the said complaint is not aggrieved party nor has he shown anyone to be aggrieved person, therefore, no offence of P.C. Act is made out. Further, it was mentioned that no sanction for prosecution was obtained, therefore, he should be discharged.
7. Against the discharge application, objection 47-Kha was filed from the side of the State in which it was stated that as per definition under section 2 (b) of the P.C. Act, 1988 "public duty" means of duty in the discharge of which the State, the public or the community at large has an interest and therefore, the accused-revisionist would fall in the definition of Public Servant as the definition of Public Servant has been given under the said Act. Under Section 2 (c) (viii) "any person who holds office by virtue of which he is authorized or required to perform any public duty". Further it was mentioned that the said school was affiliated to ICSE Board which was a Central Board and according to the said Board whatever fees was fixed that was charged from the students and education was imparted to them. Therefore, all the teachers as well as officials of the said institution would be covered under the definition of Public Servant. There is plenty of evidence available against the revisionist on record to frame charge and that because the revisionist is not Government servant, hence there was no necessity for obtaining legal sanction to prosecute him and application deserves to be dismissed.
8. After having heard the learned counsel for the parties, the trial court has recorded finding that the institution in question i.e. Girls High School, Elgin Road, Allahabad is an educational institution being run by a private committee of management, of which the revisionist is an employee, as has been stated from the side of the revisionist and it is also the version of the revisionist that the said institution does not obtain any financial support, therefore, the revisionist should not be treated to be a public servant while against the said version, the prosecution version is that the school being recognized from ICSE Board, Delhi in which large number of students are receiving education, employees of such an institution would fall in the category of public servant. Further, the trial court has held that in such situation where the institution is recognized by ICSE Board, the employees would be treated to be a public servant under section 2(b) read with section 2 (c) (viii) and reliance is also being placed upon the judgement of Hon'ble Supreme Court passed in Central Bureau of Investigation, Bank Securities & Fraud Cell vs. Ramesh Gelli and others, Criminal Appeal No.1077-1081 of 2013, Paragraph nos. 24 to 27 of which are as under:
24. Attention of this Court is drawn on behalf of the accused to Housing Board of Haryana v.Employees' Union [Housing Board of Haryana v.Employees' Union, (1996) 1 SCC 95 : 1996 SCC (L&S) 278] , wherein this Court has held that when particular words pertaining to a class of genus are followed by general words, the latter, namely, the general words are construed as limited to the things of the same kind as those specified, and this is known as the rule of ejusdem generis reflecting an attempt to reconcile incompatibility between the specified and general words. This case is of little help to the accused in the present case as Managing Director and Director are specifically mentioned in Section 46-A of the Banking Regulation Act, 1949.
25. In Manish Trivedi v. State of Rajasthann, (2014) 14 SCC 420 : , which pertains to a case registered against a councillor under the Prevention of Corruption Act, 1988, this Court, while interpreting the words "public servant", made the following observations: (SCC pp. 426-29, paras 14, 16 & 19) "14. Section 87 of the Rajasthan Municipalities Act, 1959 makes every Member to be public servant within the meaning of Section 21 of the Penal Code, 1860 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 Penal Code, 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 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 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 Penal Code.
16. 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 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 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. The definition of "public servant" under the Prevention of Corruption Act, 1947 and Section 21 of the 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.
19. The present Act (the 1988 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-clause (viii) of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorised or required to perform any public duty, to be a public servant. The word "office" is of indefinite connotation and, in 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 the appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988."
26. At the end it is relevant to mention that in State of A.P. v. Venku Reddy [State of A.P. v. P. Venku Reddy, (2002) 7 SCC 631 : 2002 SCC (Cri) 1826] , in which while interpreting words "public servant" this Court has made the following observations: (SCC p. 636, para 12) "12. In construing the definition of "public servant" in clause (c) of Section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of the legislature. In that view the Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken assistance of. It gives the background in which the legislation was enacted. The present Act, with a much wider definition of "public servant", was brought in force to purify public administration. When the legislature has used such a comprehensive definition of "public servant" to achieve the purpose of punishing and curbing growing corruption in Government and semi-government departments, it would be appropriate not to limit the contents of the definition clause by construction which would be against the spirit of the statute. The definition of "public servant", therefore, deserves a wide construction. (See State of M.P. v. Ram Singh [State of M.P. v. Ram Singh, (2000) 5 SCC 88 : 2000 SCC (Cri) 886] .)"
27. In the light of law laid down by this Court as above, it is clear that object of enactment of the PC Act, 1988, was to make the anti-corruption law more effective and widen its coverage. In view of the definition of "public servant" in Section 46-A of the Banking Regulation Act, 1949 as amended the Managing Director and Executive Director of a banking company operating under the licence issued by Reserve Bank of India, were already public servants, as such they cannot be excluded from the definition of "public servant". We are of the view that over the general definition of "public servant" given in Section 21 IPC, it is the definition of "public servant" given in the PC Act, 1988, read with Section 46-A of the Banking Regulation Act, which holds the field for the purposes of offences under the said Act. For banking business what cannot be forgotten is Section 46-A of the Banking Regulation Act, 1949 and merely for the reason that Sections 161 to 165-A IPC have been repealed by the PC Act, 1988, relevance of Section 46-A of the Banking Regulation Act, 1949, is not lost.
9. In the light of the above position of law, the trial court has held the revisionist to be a public servant and has dismissed the application.
10. Learned counsel for the revisionist has argued that the said judgment cited above would not be applicable here as the same relates to banking proceedings and he proceeded with the argument that the revisionist being an employee of an institution which was not Government aided institution, which was being run by a management of private committee, by which the employees of the said institution, by no stretch of imagination, would fall in the category of public servant. Learned counsel for the revisionist has also argued that in case the revisionist is found public servant that would require sanction under section 19 of the P.C. Act from appropriate authority to prosecute him therefore, in view of the said sanction not being obtained, the proceedings cannot lie and the accused-revisionist deserves to be discharged and the impugned order deserves to be set aside.
11. I do not find the argument of the learned counsel for the revisionist to be impressive and would like to cite the judgment of Hon'ble Supreme Court in Station House Officer, CBI/ACB/ Bangalore vs. B.A. Srinivasan and another, 2019 SCC Online SC 1555 in which the respondent no. 1 had retired on 31.10.2012 as Assistant General Manager, Vijaya Bank and on 28.10.2013 an FIR was lodged against him pursuant to the complaint given by the General Manager, Vijaya Bank in respect of the offences under sections 419, 420, 467, 468, 471 read with section 120-B IPC and also under sections 13 (1) (d) and 13 (2) of the P.C. Act with the allegation that the respondent while working as Assistant General Manger in the said Bank during 11.1.2010 to 20.10.2012 entered into a criminal conspiracy with co-accused B. Lakshman and several others to cheat and defraud the Vijay Bank and to extend undue financial accommodation to M/s. Nikhara Electronics and Allied Techniques (also co-accused) on the basis of fake and fabricated documents and in furtherance of the said criminal conspiracy, the respondent no. 1 sanctioned and disbursed Rs.200 lacs of term loan and Rs.100 lacs of cash credit hypothecation in favour of M/s. Nikhara Electronics and Allied Techniques without proper due diligence and in gross violation of all rules and regulations and thus diverted the loan funds against the terms and conditions thereby causing wrongful loss to Vijaya Bank and corresponding gain to himself and other co-accused. In this matter, cognizance was taken by the concerned Court and respondent no. 1 sought discharge under section 227 and 239 Cr.P.C. which was rejected by the Additional City Civil and Sessions Judge and Principal Special Judge for CBI Cases, Bangalore vide order dated 13.04.2015 but the said order was set aside by the High Court and discharged the respondent no. 1. Thereafter, the matter came for consideration before Hon'ble Apex Court which has relied upon large number of citations contained in this judgment and after having considered the entire matter at great length, held that the High Court had clearly erred in allowing the criminal revision and accepting the challenge raised by the respondent no. 1 on the issue of sanction. The appeal was allowed and the order of the High Court was set aside and the trial court's order was restored whereby the discharge application was dismissed. It would be pertinent to quote hereinbelow the relevant paragraph nos. 14 to 20 of the said judgment, which are as follows:
14. In S.A. Venkataraman v. The State [1958] SCR 1037 while dealing with the requirement of sanction under the pari materia provisions of the Prevention of Corruption Act, 1947, it was laid down that the protection under the concerned provisions would not be available to a public servant after he had demitted his office or retired from service. It was stated:--
"... ...if an offence under s. 161 of the Indian Penal Code, 1860 was committed by a public servant, but, at the time a court was asked to take cognizance of the offence, that person had ceased to be a public servant one of the two requirements to make s. 6 of the Act applicable would be lacking and a previous sanction would be unnecessary. The words in s. 6(1) of the Act are clear enough and they must be given effect to. There is nothing in the words used in s. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. ... ..."
15. The law so declared by this Court has consistently been followed. For example, in State of Punjab vs. Labh Singh, (2014) 16 SCC 807 it was observed:--
"9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to their retirement i.e. first on 13-9-2000 and later on 24-9-2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A. Venkataraman (Supra) while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A. Venkataraman6 (Supra) was adopted by this Court in C.R. Bansi v. State of Maharashtra (1970) 3 SCC 537 and in Kalicharan Mahapatra v. State of Orissa, (1998) 6 SCC 411 and by the Constitution Bench of this Court in K. Veeraswami v.Union of India, (1991) 3 SCC 655. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned."
16. Consequently, there was no occasion or reason to entertain any application seeking discharge in respect of offences punishable under the Act, on the ground of absence of any sanction under Section 19 of the Act. The High Court was also not justified in observing ''that the protection available to a public servant while in service, should also be available after his retirement'. That statement is completely inconsistent with the law laid down by this Court in connection with requirement of sanction under Section 19 of the Act.
17. Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed ''while acting or purporting to act in discharge of their official duty', but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected. The statements of law in some of the earlier decisions were culled out by this Court in Inspector of Police v.Battenapatla Venkata Ratnam, (2015) 13 SCC 87 as under:
"7. No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants. The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them "while acting or purporting to act in discharge of their official duty". That question is no more res integra. In Shambhoo Nath Misra v. State of U.P. (1997) 5 SCC 326 at para 5, this Court held that: (SCC p. 328) "5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained."
8. In Parkash Singh Badal v. State of Punjab, (2007) 1 SCC1, at para 20 this Court held that: (SCC pp. 22-23) "20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity."
and thereafter, at para 38, it was further held that: (Parkash Singh Badal case, (Supra) "38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage."
9. In a recent decision in Rajib Ranjan v. R. Vijaykumar (2015) 1 SCC 513 at para 18, this Court has taken the view that: (SCC p. 521) "18. ... even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted."
(emphasis already supplied)
18. It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression ''while acting or purporting to act in discharge of their official duty', would get crystalized only after evidence is led and the issue of sanction can be agitated at a later stage as well. In P.K. Pradhan v. State of Sikkim represented by the Central Bureau of Investigation, (2001) 6 SCC 704 this Court stated:--
"15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial."
19. The offences involved in the case of N.K. Ganguly vs. CBI New Delhi (2016) 2 SCC 143 were under Section 120-B IPC read with Sections 13(1)(d) and 13(2) of the Act i.e. relating to conspiracy to commit offences punishable under the provisions of the Act. Secondly, the conclusion was drawn in the context of the facts available therein which is evident from the following:--
"35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate Government under Section 197 CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate Government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence."
20. We now turn to the cases relied upon by Mrs. V. Mohana, learned Senior Advocate. In Rishipal Singh v.State of Uttar Pradesh (2014) 7 SCC 215 this Court observed:--
"13. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 CrPC. While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact."
12. It transpires from the above cited law in the said judgments that the protection under section 19 of the Prevention of Corruption Act, to the Public Servant would be available only during his being in service and not after his demitting the office. Further, it is clear that to get the umbrella of protection of the said provision, the act which has been performed by the accused ought to have been performed while acting or purporting to act in discharge of his official duty. It is also apparent from the above citations that any kind of embezzlement or illegal activity under the cloak of official duty would not give protection to a public servant and sometimes it became very difficult for the Court to reach the conclusion as to whether an act which is said to be an offence actually was performed in discharge of official duty or not and for that to be decided it requires sometimes to take evidence on record to reach the conclusion whether the act which is said to be an offence was performed in course of official duty. This plea can be taken at any stage even after framing of charge etc. Therefore, in the case at hand, this Court comes to the conclusion that the revisionist falls under the category of public servant and as per the argument of the learned counsel for the revisionist that he should be granted protection under section 19 of the P.C. Act in this case, as sanction has not been taken criminal proceedings would not lie against him, does not appear to be a reasonable argument because the acts which are stated to have been committed by the revisionist in this case, whether they fall within the official domain would require evidence to be recorded and a finding can be given thereafter by the court in this regard. Therefore, at the initial stage it need not be held that the said acts fall in the official duty of the accused and hence protection should be given of section 19 of the P.C. Act.
13. It would be further pertinent to mention here that the revisionist in this case has not only been alleged to have committed offence under section 13 (1) (c) and 13 (2) of P.C. Act, rather offence under sections 465, 467, 468, 471, 201, 4088, 120B IPC are also said to have been committed which do not require any kind of prosecution sanction. Therefore, in the case at hand, the argument of the learned counsel for the revisionist that for want of prosecution sanction the revisionist deserves to be discharged, does not hold good.
14. This Court has gone through the contents of the FIR which contains several allegations against the accused as well as other co-accused for embezzlement of the amount by filing false receipts of payment made to the fake firm by the name of Company Enterprises etc., this all would show that whether such offence has been committed by the revisionist or not, can be decided only after evidence has come on record.
15. As regards the accused being held to be public servant, I am absolutely convinced with the interpretation made by the court below which has been cited above and find that it has not committed any error in holding the revisionist to be a public servant as the same has been defined under section 2 (C) (viii) read with section 2(b) of P.C. Act, which defines public duty and it has been mentioned therein that discharge of duty relating to community at large would constitute a public duty and in this case college, despite being not aided college was recognized by ICSE Board, performance of such kind of duty shall certainly be covered under public duty and the revisionist being an employee of the said college, would certainly be treated to be public servant.
16. In view of above, I find that there is no infirmity in the impugned order. The revision deserves to be dismissed and is accordingly dismissed.
Order Dated:20.02.2020 AU