Indian Bare Acts .
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2590 OF 2010
Mrs. Vishakha Vilas Pednekar. ... Petitioner
Vs.
The State of Maharashtra. ... Respondent
Mr.Girish Kulkarni for the Petitioner.
Mr. J.P.Yagnik, APP for the State.
CORAM : A.M. KHANWILKAR and
U.D. SALVI, JJ.
DATE : 21st September, 2010.
P.C.
1 By this petition, it is prayed that the FIR registered against the Petitioner for the offence punishable under Section 7, 8, 13(1) (d) read with 13(3) of the Prevention of Corruption Act, 1988 be quashed. The only argument canvassed before us is that no Court can take cognizance in respect of the said offence in absence of sanction under Section 19 of the Act of 1988. Significantly, the Petitioner filed application before the lower Court raising this very contention by way of Exhibit3 in ACB Special Case No. 123 of 2009. That contention has been rejected by the trial Court, relying on the exposition of the Apex Court in the case of P.V.Narsimha Rao V/s. State (CBI/ SPE) reported in 1998 (4) SCC 626 in particular paragraph Nos.95 to 98 of the said decision, vide judgment and order dated 19th July, 2010. That decision of the trial Court has not 2 19 wp.2590.10 been challenged and in fact has been allowed to attain finality. Instead, the present petition for quashing of the FIR is filed, raising the same contention. We see no infirmity in the view taken by the trial Court in rejecting the argument of the Petitioner that the prosecution against the Petitioner cannot proceed.
2 The argument of the Petitioner that, if there is no appointing authority for the Petitioner being a corporator of the Corporation, it is the duty of the Respondents to take steps to create appointing authority. This argument is canvassed on the basis of the observations made by the Apex Court in paragraph No.96 of the reported decision. The reported decision pressed into service is not an authority on the proposition that so long as appointing authority is not created with regard to corporators no prosecution can be launched against them under the provision of Prevention of Corruption Act, 1988. In view of the wide definition of Public Servant under Section 2 (c)(viii), the corporator of the Corporation is a public servant; and can therefore, be proceeded under the said enactment. Suffice it to observe that this contention cannot be the basis to quash the FIR. No other argument is canvassed before us.
In the circumstances, petition is dismissed.
[ U.D. SALVI, J ] [ A.M. KHANWILKAR, J ]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 2554 OF 2009.
Shantinath S. Patil .... Petitioner
vs
State of Maharashtra,
through Dy. S.P. ACB, Kolhapur .... Respondent
Mr. V. N. Shingnapurkar for the petitioner.
Mr. J. P. Yagnik, APP for the State.
CORAM: B.H. MARLAPALLE &
ANOOP V. MOHTA, JJ.
DATE : 16th August, 2010
ORAL JUDGMENT(Per B.H.Marlapalle,J.):
This petition has been placed before us on account of the Referral Order dated 14.01.2010 passed by the learned Single Judge and the following two issues have been referred for consideration by the Division Bench:
(a) Whether a Public Prosecutor/Additional Public Prosecutor can be said to be a public servant within the meaning of the said term as defined in Section 2(c) of the Prevention of Corruption Act,1988?
(b) Whether the view taken in Adi P. Gandhi’s case lays down the correct test or whether the decision in Gawali’s case and Kulkarni’s 2 wp-2554-09.sxw case can be said to be laying down the correct law?
8 Section 2(c) of the Prevention of Corruption Act has defined the term “Public servant” and it means any of the persons enumerated therein. It would be appropriate to reproduce
Section 2(c) of the Prevention of Corruption Act to the extent relevant for the present case : 2 (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 6 wp-2554-09.sxw
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 th Companies Act, 1956 (1 of 1956).
The term “public duty’ has also been defined under Section 2(b) of the Prevention of Corruption Act and it means a duty in the discharge of which the State, the public or a community at large has an interest.
11 The Maharashtra Law Officers Rules, 1984 govern the appointment of Law Officers viz., the Government Pleaders and Public Prosecutors as well as Special Public Prosecutors. Rule 2 of the said Rules deals with the definitions and it would be appropriate to reproduce the following clauses:
2(g) “fee” means the fee as prescribed by Government in the Law and Judiciary Department in accordance with these rules or as taxed by the court in the bill of costs to which the Law Officer is entitled;
2(j) “Government Pleader” means an advocate appointed to that post under these rules by Government in the Law and Judiciary Department.
2(l) “Law Officer” means an advocate appointed by Government in the Law and Judiciary Department, under these rules, to conduct cases on behalf of the State or its officers before any court or the 8 wp-2554-09.sxw Maharashtra Revenue Tribunal and includes an Advocate General, a Government Pleader and Public Prosecutor.
2 (x) “Public Prosecutor” means an advocate appointed as a Public Prosecutor by Government in the Law and Judiciary Department under these rules for the High Court and for every district in the State under subsections
(1) and (3) of section 24 of the Code of Criminal Procedure, for conducting any prosecution, appeal, application or other proceedings on behalf of the State and includes
an Additional Public Prosecutor.
15 Hence, we answer Issue No.1 of the Referral Order in the affirmative and we need not answer issue no.2 in view of the observations made hereinabove, regarding the view taken by the respective Single Judges in the case of Adi. P. Gandhi (supra) on one hand and Suresh Gawali (supra) and Sulbha Kulkarni 12 wp-2554-09.sxw (supra) on the other hand. Consequently, the view taken in the case of Suresh Gawali (supra) and Smt.Sulbha Kulkarni (supra) is declared to be no more a good law. The view taken in Suresh Gawli and Smt.Sulbha Kulkarni (supra) stands overruled.
16 Petition be listed before the appropriate Bench for final disposal.
(ANOOP V. MOHTA, J.) ( B. H. MARLAPALLE, J.)
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