Indian Kanoon - Search engine for Indian Law

(xxv) Lastly, the learned Senior Counsel submits that the learned Trial Court has erroneously convicted the Appellant under Section 376(2) IPC and Sections 5(c) and 6 POCSO relying on the judgement of L.K. Advani v. CBI, 1997 Crl. L. J. 2559, wherein the accused MLA was held to be a public servant within the meaning of Section 2(c) the Prevention of Corruption Act, while on the contrary, the law is clear that in terms of Section 2(2) of POCSO, the definition of a „public servant‟ is imported from the definition prescribed under Section 21 IPC according to which an MLA is not a public servant.

[Emphasis Supplied]

30. The Trial Court has placed reliance primarily on the decision of the Apex Court L.K. Advani (supra) and by extension, on the definition of „Public Servant‟ provided in the Prevention of Corruption Act, 1988. However, in the opinion of this Court, the definition of „public servant‟ in the Prevention of Corruption Act would be of no use in the present case, for the reason that Section 2 of the POCSO Act does not include Prevention of Corruption Act. In view of the specific inclusion of IPC, Cr.P.C, JJ Act and IT Act in Section 2 of the POCSO Act, this Court cannot take aid of definition of „public servant‟ on any other Act other than IPC, Cr.P.C, JJ Act and IT Act. Notably, Cr.P.C, JJ Act and IT Act do not provide for the definition of „public servant‟. Therefore, for the purpose of this Application, this Court is inclined to come to the conclusion that Appellant cannot come within the scope of Section 5(c) of the POCSO Act, and the same reasoning applies for the Appellant‟s conviction under Section 376(2)(b) of the IPC.