1. This criminal revision under Section 397/401 Cr.P.C. has been filed by Accused-Revisionist, Ravinder Talwar challenging order dated 03.08.2004 passed by Additional Sessions Judge, Court No. 5, Saharanpur in Criminal Revision No. 131 of 1996.
2. Additional Chief Judicial Magistrate-II, Saharanpur, vide order dated 04.01.1996 has rejected protest petition and accepted final report, whereagainst Respondent-2 preferred criminal revision which has been allowed vide impugned judgment and Trial Court has been directed to summon Accused-Revisionist under Sections 406, 409, 420 IPC.
3. Brief facts emerging from First Information Report (hereinafter referred to as the "FIR") and record are that Accused-Revisionist who was Chairman, Nagar Palika Parishad, Saharanpur, at the relevant time, in connivance with Contractors and officials of Nagar Palika Parishad got computation of cost increased multifold against sanctioned tender rates and thereafter allotted on such accepted rates though he had no jurisdiction or authority to do so. As per rules there could be no deviation of more than 10% from estimated cost but he got variation done by more than 100%. As per rules he was required to got separate work orders and call for separate tenders, Instead, in an illegal manner and in connivance with Contractors he caused misfeasance of public funds for personal interest by getting revised work done from Contractors on earlier rates. FIR further states that in some construction work, amount was paid to Contractors, 400 times above approved original tender amount. It further gives details of various financial irregularities and illegalities committed by Accused-Revisionist in wasting public fund.
4. After registering FIR as Case Crime No. 315 of 1992 under Sections 406, 409, 467, 468, 420 IPC at Police Station Kutub Sher, District Saharanpur, investigation was made by police and ultimately final report was submitted on 11.10.1993.
5. Dissatisfied with submission of final report, Complainant-Executive Engineer, Nagar Palika Parishad, Saharanpur filed a protest petition in the Court of Second Additional Chief Judicial Magistrate, Saharanpur which was registered as Misc. Case No. 12 of 1994. Trial Court vide judgment and order dated 04.01.1996 rejected protest petition and accepted final report. Aggrieved thereto, Complainant-Respondent-2 preferred Criminal Revision No. 131 of 1996 which has been allowed and Revisionist is directed to be summoned to face trial under Section 409, 420, 406 IPC.
6. Sri Samit Gopal, learned counsel appearing for revisionist contended that revisionist was Chairman, Nagar Palika Parishad and hence a "public servant" within the meaning of Section 21 IPC, therefore, without obtaining sanction from Government it was not open to Court below to take cognizance of an offence and initiate criminal proceedings against him. It is said that since no sanction under Section 197 Cr.P.C. has been obtained, therefore, impugned order passed by Revisional Court is bad in law. He placed reliance on Bhairon Prasad Vs. Emperor, AIR 1928 All 756; Dayachand (Chanchal) Ramdas Jain Vs. State, 1959 MPLJ 163; Maharudrappa Danappa Kesarappanavar Vs. The State of Mysore, AIR 1961 SC 785; and, Prem Narain and another Vs. State of U.P., 1975 Cr.L.J. 1783. On the question of applicability of Section 197 Cr.P.C. learned counsel for the revisionist relied on three decisions Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh and another, AIR 2006 SC 389; D.T. Virupakshappa Vs. C. Subash, AIR 2015 SC 2022; and, N.K. Ganguly Vs. Central Bureau of Investigation, New Delhi, 2016(2) SCC 143.
7. Sri Syed Ali Murtaza, learned Additional Government Advocate, per contra, submitted that at the time when criminal proceedings were initiated, revisionist was not holding any public office, hence Section 197 Cr.P.C. is not attracted in the case in hand.
8. Revisionist held office of Chairman, Nagar Palika Parishad, Saharanpur from 08.02.1989 to 08.02.1991 as stated in para 17 of memo of revision. During this period it is alleged that he caused loss to public revenue of Nagar Palika Parishad by colluding with Contractors, awarding contracts to them in an illegal manner, paying huge amount than it was actually payable and thus committed offence under Sections 406, 409, 467, 468, 420 IPC.
9. Matter was enquired on administrative side by City Magistrate, Saharanpur and he submitted report on 21.06.1990. State Government vide order dated 02.09.1992 directed District Magistrate, Saharanpur to initiate criminal proceedings against revisionist, whereupon Additional District Magistrate (Executive) directed Circle Officer to proceed and as a result thereof FIR was lodged by Circle Officer at Police Station Kutub Sher on 19.10.1992 being Case Crime No. 315 of 1992 under Sections 406, 409, 467, 468, 420 IPC.
10. Revisionist challenged FIR in Writ Petition No. 37035 of 1992. This Court vide order dated 30.10.1992 stayed arrest of revisionist but directed Investigating Officer to proceed with investigation. Investigating Officer then submitted final report, whereagainst Executive Officer, Nagar Palika Parishad suubmitted protest petition which was rejected by Magistrate but now the matter has been reversed by Revisional Court.
11. First question to be considered in this case is, whether a "Chairman, Nagar Palika Parishad" is a "public servant" as defined under Section 21 IPC.
12. Section 21 IPC, relevant and the part relied by revisionist, reads as under:
"21. "Public servant".--The words "public servant" denote a person falling under any of the descriptions hereinafter following; namely:
......
Ninth--Every officer whose duty it is, as such officer, to take, receive, keep or expand any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;
Tenth-- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
Eleventh--Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
Twelfth--Every person--
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956." (emphasis added)
13. In Bhairon Prasad Vs. Emperor (supra) District Magistrate, who at that time also had judicial powers, proceeded against a 'Member' of Municipal Board alleging that he has contravened Section 82(1) of U.P. Municipalities Act, 1916 (hereinafter referred to as the "U.P. Act, 1916"), hence committed an offence under Section 168 IPC. Court held that sanction under Section 197 Cr.P.C. was necessary. In aforesaid judgment which has been rendered by an Hon'ble Single Judge, I do not find that any dispute was raised, whether a 'Member' of Municipal Board is a "public servant" or not within the meaning of Section 21 IPC and it appears that Court proceeded as if he is, as agreed by the parties. Aforesaid judgment, in my view, is not an authority on the question raised, whether Chairman, Nagar Palika Parishad is a "public servant" under Section 21 IPC or not, since this issue was neither raised nor argued nor decided so as to constitute a precedent but in that case parties proceeded on assumption that Member of Municipal Board is a public servant.
14. In Dayachand (Chanchal) Ramdas Jain (supra) an Hon'ble Single Judge of Madhya Pradesh High Court had an occasion to consider, whether "Chairman, Municipal Board", Tikamgarh is a "public servant" within the meaning of Section 21 IPC or not. Court noticed that Clause Tenth of Section 21 covers a Municipal Commissioner as a "public servant". In Nanhe Vs. The Municipal Committee, Jubbulpore, 25 NLR 194 and Suganchand Vs. Naraindas, AIR 1932 Sind 177 it was held that Municipal Commissioner, an archaic expression, would include a member of Municipal Committee. However, in the case before Sindh High Court provisions of C.P. Municipalities Act, 1922 were considered and Section 46 thereof specifically provided that every 'member' of a committee shall be deemed to be a "Municipal Commissioner" within the meaning of any enactment for the time being in force. Madhya Pradesh High Court in Dayachand (Chanchal) Ramdas Jain (supra) considering provisions of Sections 3(20), 39 and 267 of Rewa Municipalities Act, 1946 held that "Chairman" is an "officer of Board" and, therefore, a "public servant" within the meaning of Section 21 IPC. In the aforesaid judgments of Sindh and Madhya Pradesh High Courts, since provincial statutes declare under that a Member of Municipal Committee shall be deemed to be a Municipal Commissioner and Municipal Commissioner is an officer and in service of local authority by virtue of deeming clause, Court held him to be a "public servant" under Section 21 IPC. There is no bar that legislature by making a specific provision can create a fiction by a deeming clause in respect of something which is not there otherwise. Therefore, aforesaid judgments also would not help revisionist to hold that he is/was a "public servant" under Section 21 IPC.
15. In Maharudrappa Danappa Kesarappanavar, Court considered similar question. Accused person was a "Municipal Counselor" and "Chairman" of Managing Committee of Navalgund Municipality. The provisions of Bombay District Municipal Act, 1901 were applicable in that case. Court held that since as "Chairman" he could spent money of Municipality by ordering payment of bills and, therefore, is a "public servant" as defined in Clause Tenth of Section 21 IPC. Court while upholding the view taken by High Court that he was a "public servant" held as under:
"9. The aforesaid power is conferred on the Chairman for the benefit of the persons who have served the Municipality and have got the right to receive their pay or money for articles provided. There may arise circumstances when any delay in payment may affect those persons adversely. The pay is due on the first day of the month and it may not be convenient to fix a meeting of the Committee at a date for early payment of the pay due. A meeting already fixed may have to be adjourned for want of quorum. The passing of the pay bills, in the circumstances, is more or less a formal matter and therefore the rules empower the Chairman of the Managing Committee to order payment of the pay bills in anticipation of sanction by the Committee. The Chairman can exercise this power for the benefit of the employees voluntarily or when requested by those persons to exercise it. The mere fact that this power of the Chairman was to be exercised only with respect to fixed recurring charges and in anticipation of the Committee passing the bills for those charges therefore does not affect the question in any way. Clause ten of Section 21 of the Indian Penal Code merely requires that the person should have the duty to expend property for certain purposes. It is not restricted to such cases only where there is no limitation on the exercise of that power of expending property. The Chairman has the duty to order payment and to spend the money of the Municipality in certain circumstances. We therefore hold that the appellant was a 'public servant' when the alleged offence was committed." (emphasis added)
16. This judgment was rendered by analyzing provisions of Bombay District Municipal Act, 1901 and since it has not been brought to this Court whether provisions of said Act are pari materia with statutory provisions of U.P. Act, 1916, therefore, it is difficult to hold that for the reasons stated therein, in the present case also a Chairman can be held a "public servant" under Section 21 IPC.
17. In the context of U.P. Act, 1916, question related to Municipal Commissioner was considered by a learned Single Judge in Prem Narain (supra). The discussion made in paras 4 and 5 read as under:
"4. There is no dispute about Mayaram being a public servant. Section 84 of the U. P. Municipalities Act provides that every officer or servant of a Board shall be deemed to be public servant within the meaning of the Indian Penal Code. There was a controversy on the point whether Prem Narain in the capacity of Municipal Board Commissioner was also a public servant or not. Illustration to Section 21 (12th) of the I.P.C. clearly indicates that a Municipal Commissioner is a public servant, The Rajas-than High Court in the case of State v. Bansilal Luhadia held that the word 'Commissioner' in this Illustration has been used in the sense of Municipal member or councillor and not in the sense of an officer in the employment of a Municipality who is sometimes designated by that name. A learned single Judge of this Court also held in the case of Bhairaon Pd. v. Emperor AIR 1928 All 756 : 30 Cri LJ 62 that a member of the Municipal Board was covered by the definition of public servant and sanction of the local Government under Section 197, Cr. P. C. was necessary for prosecuting him. Their Lordships of the Supreme Court also held in the case of Maharudrappa Danappa Kesarappanavar vs. State of Mysore that, the Chairman of a managing committee of the Municipal Board is a public servant within Clause (10) of Section 21, I.P.C.
5. Section 40 of the U. P. Municipalities Act provides that a member of the Municipal Board can be removed by the State Government only. In my opinion, there is no doubt that a member of the Municipal Board when he is entrusted with certain duties and he acts in discharge of those duties, he does act as a public servant. It is not disputed that he is being prosecuted for acts done by him in the discharge of his duties as & member of the Municipal Board. Sanction of the State Government was, therefore, necessary for his prosecution. Similarly, sanction of the State Government was necessary for prosecution of Mayaram applicant No. 2. His service too is now centralised; the appointing and removing authority being the State Government. The entire proceedings were, therefore, vitiated in the absence of sanction. It was held by the Supreme Court in the case of R.P. Kapoor v. State that the entire proceedings are liable to be quashed under Section 561-A, Cr. P. C. if there was lack of legal sanction." (emphasis added)
18. This court finds nothing in U.P. Act, 1916 to show that a Municipal Commissioner is same as Chairman of Municipality. The term "servants of Municipality" is defined under Section 2(22) of U.P. Act, 1916 as under:
"(22) "Servant of the Municipality" means any person in the pay and service of the Municipality."
19. Composition of Municipality is provided under Section 9 comprising of a President, who shall be its Chairman and elected and other members as stated in Section 9. The process of bringing in 'President' is election vide Section 43 of Act, 1916. It clearly provides, if a Member is elected as 'President' also, he shall cease to be a Member except as provided in Section 49. Section 49 provides that 'President' shall be ex-officio Member of Municipality. Therefore, the term 'Member' as such does not include 'President' since Member is elected as Member and 'President' is elected as 'President' directly on the basis of adult suffrage by electors in municipal area. In certain circumstances, provided in Section 48, a President can be removed from office by State Government. Functions and additional duties to be performed by a 'President' are provided in Sections 50 and 51 of Act, 1916. There is no term like "Municipal Commissioner" used in Act, 1916. Section 84 declares "officers" and "servants" of a Municipality to be deemed "public servants" but looking to the definition of "officers" and "servants" under Section 2(12) and (22) it cannot be said that the same would include a Member or President of Municipality.
20. It is no doubt true that in the context of U.P. Act, 1916 in Prem Narain (supra) a learned Single Judge specifically considered the question, whether Prem Narain, a Municipal Commissioner is a "public servant" or not but nothing is shown for U.P. Act, 1916 that it is the President of Municipality and both are interchangeable. Prem Narain being a Municipal Commissioner was held to be a "public servant" hence aforesaid judgment also would not help revisionist. It is true that in para 5 of judgment, Court has observed that a Member of Municipal Board when entrusted with certain duties, acts as a "public servant" but that was not an issue before Court.
21. In the later decisions, however, I find that there is a different view taken and they also need be noticed hereat.
22. A Constitution Bench in R.S. Nayak Vs. A.R. Antulay, 1984(2) SCC 183 had an occasion to consider a question, whether a Member of Legislative Assembly is a "public servant" under Section 21 IPC or not. Court framed two issues in this respect as under:
"(d) Is M.L.A. a public servant within the meaning of the expression in Sec. 21(12)(a) IPC?
(e) Is M.L.A. a public servant within the meaning of the expression in Sec.21(3) and Sec. 21(7) IPC?"
23. Court held that, "one can justifiably say that M.L.A. could not be comprehended in any of the clauses of Sec. 21 to be a public servant when the Indian Penal Code was enacted in 1860." Then changes brought in Clauses (9) and (12) of Section 21 IPC were considered and Court held that expression 'Government' in Section 21 (12)(a) clearly denotes the Executive and not Legislature. M.L.A. is certainly not in the pay of Executive. Therefore, even if he receives pay and allowances, can not be said to be in the pay of Government i.e. Executive. Similarly, it also cannot be said that he is remunerated by fees for performance of any public duty by Government, i.e., Executive. It ultimately held:
"74. If M.L.A. is not in the pay of the Government in the sense of Executive government or is not remunerated by fees for performance of any public duty by the Executive Government, certainly he would not be comprehended in the expression 'public servant' within the meaning of the expression in Clause (12) (a). He is thus not a public servant within the meaning of the expression in Clause (12) (a). This conclusion reinforces the earlier conclusion reached by us after examining the historical evolution of Clause (12) (a)."
24. For answering Question (e) Court held that Section 21(3) and (7) are not applicable to M.L.A.
25. A specific question came up for consideration, whether a Municipal Councilor is a "public servant" or not, in Ramesh Balkrishna Kulkarni vs. State of Maharashtra, 1985(3) SCC 606. Relying on the decision in R.S. Nayak Vs. A.R. Antulay (supra) Court held that a "Municipal Councilor" is a person different from the concept of a "public servant". It observed:
"..... we are of the opinion that the concept of a 'public servant' is quite different from that of a Municipal Councilor. 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 the other hand, a Municipal Councilor 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 a MLA gets allowance by way of honorarium does not convert his status into that of a 'public servant'. In 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 Section 21 of the IPC." (emphasis added)
26. This decision was followed in State of Tamil Nadu vs. T. Thulasingam and others, 1994(2) SCC (Suppl.) 405 and in para 76 of judgment, Court held that "Councilors" are not "public servants" and for that purpose relied on earlier decision in Ramesh Balkrishna Kulkarni (supra).
27. In a matter went from judgment of Rajasthan High Court to Supreme Court, i.e. Manish Trivedi vs. State of Rajasthan, AIR 2014 SC 648 the authorities in Ramesh Balkrishna Kulkarni (supra) and T. Thulasingam (supra) have been distinguished and it is held that a member, officer or servant of Municipality shall be a "public servant". The reason being that there was a specific provision in Section 87 of Rajasthan Municipalities Act, 1959 declaring that every Member, Officer or Servant etc. shall be deemed to be "public servant". Referring to specific provision contained in Section 87 of Rajasthan Municipalities Act, Court held that since every member of Municipality was specifically declared to be a deemed public servant, decisions in Ramesh Balkrishna Kulkarni (supra) and its follow up would not apply to the case governed by Rajasthan Municipalities Act. Court further held that case before it relates to prosecution under Prevention of Corruption Act, 1988 and since there is a separate definition of "public servant" under Section 2(c), the matter has to be looked into in the light of such definition and not under Section 21 IPC. It was held that under Prevention of Corruption Act there is a wide definition of "public servant" with a purpose to purify public administration and such widened scope cannot be restricted as that would be against spirit of statute. Court distinguished judgments in Ramesh Balkrishna Kulkarni (supra), R.S. Nayak Vs. A.R. Antulay (supra) and T. Thulasingam (supra) by observing as under:
"20. 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 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 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 of the Rajasthan Municipalities Act, they come within its definition." (emphasis added)
28. The decision in Ramesh Balkrishna Kulkarni (supra) was also followed in State of Maharashtra vs. Laljit Rajshi Shah and others, 2000(2) SCC 699.
29. In view of above discussion and finding that no specific provision like I find in Rajasthan Municipalities Act, 1959 declaring a Member or Chairman as "public servant" exist in U.P. Act, 1916, I am of the opinion that a Chairman of Municipal Board under Act, 1916 is not a "public servant" and for this purpose follow law laid down in Ramesh Balkrishna Kulkarni (supra); T. Thulasingam (supra); and, Laljit Rajshi Shah (supra).
30. However, even otherwise I find that objection regarding sanction in the present case is wholly irrelevant for the reason that order taking cognizance and summoning revisionist has been passed by Magistrate on 04.01.1996 when revisionist had already ceased to hold office of Chairman, Nagar Palika Parishad. As already said he functioned as Chairman, Nagar Palika Parishad from February, 1989 to February, 1991. In R.S. Nayak Vs. A.R. Antulay (supra) a question has been considered as to what is the relevant date with reference to a sanction as a pre-requisite for prosecution of a "public servant". The same has been answered by observing that it is the date on which cognizance is taken by Court. Court has said:
"...terminus a quo for a valid sanction is the time when the court is called upon to the cognizance of the offence. If therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant, he has ceased to be public servant, no sanction would be necessary for taking cognizance of the offence against him. ..... If he has ceased to be a public servant in the meantime, this vital consideration ceases to exist." (emphasis added)
31. In the present case also on the date when cognizance was taken revisionist was not holding office of Chairman, Nagar Palika Parishad and, therefore, plea of lack of sanction is not available. For this reason also objection raised by revisionist against summoning order passed by Court below, assailed in this revision, deserves to be rejected.
32. Even on the question of sanction I find that there is no specific mode or manner prescribed following whereto State Government is required to grant sanction. Sanction normally means that permission should be granted by State to initiate criminal proceedings against a person where such sanction is required by any statutory provision. In the present case City Magistrate, Saharanpur made an inquiry and submitted report, whereupon State Government passed order on 02.09.1992 to initiate criminal proceedings against revisionist. I find no reason not to treat said document as a sanction granted by Government for initiating criminal proceedings against revisionist. Therefore, even otherwise it cannot be said that there is no sanction of Government.
33. In the result, I find no merit in revision. Dismissed accordingly.
34. Interim order, if any, stands vacated.
35. Certify this judgment to the lower Court immediately.
Order Date :-09.09.2016 AK