Full Judgment Text
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CASE NO.:
Appeal (crl.) 8 of 2002
PETITIONER:
DILAWAR BALU KURANE
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 08/01/2002
BENCH:
Syed Shah Mohammed Quadri & S.N. Phukan
JUDGMENT:
PHUKAN, J.
Leave is granted.
The appellant at the relevant time was a Lecturer in
Y.B. Chavan College, Kolhapur, State of Maharashtra , a
college run by the Municipal Corporation and affiliated to the
Shivaji University, Kolhapur. The appellant received a letter
from the University inviting him to evaluate the papers in
Accountancy (theory) at the B.Com. IInd Year examination,
which was accepted. On 1st May, 1986, one Ashok Salokhe,
who also appeared in the said examination, approached the
appellant and expressed his inability to clear the above paper
which was to be examined by the appellant. According to the
prosecution, the appellant demanded Rs.400/- from him and
on the next day, around 4.30 p.m., the appellant accepted
Rs.400/- from him and thereafter scored out the previous
marks given on the answer script and increased the number to
enable the said student to get through the paper in question.
It was the further case of the prosecution that private
individuals tried to lay trap on 2nd May to prove acceptance of
the amount by the appellant. The Registrar of the University
on getting information of the alleged occurrence took away all
the answer scripts from the appellant. After one week, i.e. on
9th May, 1986, the Deputy Registrar of the University filed a
First Information Report before the police against the
appellant. On the next day, the police searched the house of
the appellant in his absence but nothing incriminating was
found. Ten months after the above alleged occurrence,
statements of Salokhe and one Sawant were recorded by police
and thereafter charge sheet was filed against the appellant
under Section 161/477A of the Indian Penal Code and Section
5(2) read with Section 5(1)(d) of the Prevention of Corruption
Act, 1947 and process was issued to the appellant calling
upon him to stand trial for the alleged offences. The appellant
approached the High Court of Judicature of Bombay by filing a
Writ Petition under Article 227 of the Constitution read with
Section 482 of the Code of Criminal Procedure for quashing
the charges which was disposed of with the observation that
’prima facie the prosecution case seemed to be resting on
flimsy foundation’. However, instead of quashing the charges
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directed the appellant to approach the trial court.
Accordingly, an application under Section 227 of the Code of
Criminal Procedure was filed before the Special Judge, which
was dismissed. Being aggrieved by the said order, the
appellant filed a Revision Petition before the High Court, which
was also dismissed by the impugned judgment.
Two points need our consideration, namely, (1)
whether the appellant was a public servant at the relevant
time for invoking Section 5 of the Prevention of Corruption Act,
1947, and (2) whether the charges against the appellant on the
very face of it are redolent of improbability and absurdity and
there is not even remote chance of the charges ultimately
culminating into conviction.
We may state here that Special Judge while
considering the application under Section 227 of the Code of
Criminal procedure did not at all consider the application on
merit and mainly proceeded to decide whether the appellant
was a public servant. The High Court without analysing the
material on records rejected the contention on the ground that
’certainly a grave suspicion is created by the appellant
committing offences other than that under Section 477A.’ The
Special Judge held that the appellant was a public servant but
the High Court left this question open.
Admittedly, the appellant being a lecturer of a
private college would not come within the definition of public
servant as contained in Section 21 of the Indian Penal Code.
There is a special provision in the Shivaji University Act, 1974,
namely, sub-section (4) of Section 73, which is extracted
below:
?Conditions : Section 73:
of
Services 1)..........
2)..........
3)..........
4) All salaried officers and
employees of the University,
including those appointed by the
University for specified periods or
for specified work, or who receive
any remuneration such as
allowances, fees or other
payments from the University
Fund, shall be deemed to be
public servants for the purposes
of all criminal laws for the time
being in force.?
We have to consider whether in view of the above
sub-section, the appellant would be deemed to be a public
servant.
On a plain reading of the above sub-section, the
following categories of persons shall be deemed to be a public
servant for the purposes of all criminal laws. These categories
are:
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1. all salaried officers and employees of the university;
2. those appointed by the university for specified
purpose or for specified work;
3. persons who receive any remuneration such as
allowances, fees or other payments from the fund of
the university.
Learned counsel for the appellant has contended
that sub-section (4) consists of two categories of salaried
officers and employees, that is, (I) those officers or employees
who were appointed for a specified period or for a work or (II)
those officers and employees who receive remuneration such
as allowances, fees and other payments and in other words,
according to learned counsel to be a public servant under sub-
section (4) a person must be first of all salaried officers or
employee of the University. According to the learned counsel if
the intention of the legislature was to cover under this
provision all persons who receive any type of remuneration,
then the words ’any person’ would have been used instead of
using the word ’or’ before ’who’ and the word ’or’ indicates an
alternative and not addition.
This is a settled principle of interpretation that
words in a statute should not be brushed aside as the courts
always presume that legislature inserted every part thereof
for a purpose and the legislative intention is that every part of
the statute should have effect. Language of sub-section (4) is
clear and the intention of the legislature was to bring the
categories of persons, as indicated above, under the purview of
sub-section (4) and these persons would be deemed to be a
public servant. We are, therefore, unable to accept the
contention of the learned counsel as any other interpretation
would go contrary to the intention of the legislature.
Drawing our attention to the marginal note of
Section 73, learned counsel for the appellant contended that
sub-section (4) of Section 73 would apply as Conditions of
Service to the employees of the University. We need not refer
to the marginal note as the language of sub-section (4) is clear
and unambiguous and at any rate the marginal note cannot
restrict the meaning of the Section. Therefore, the said
contention is not acceptable to us.
Our attention was drawn to the decision of this
court in State of Gujarat versus Manshankar Prabhasankar
Dwivedi [ 1973 (1) SCC 313 ]. In that case, a lecturer of
Government College was appointed as an examiner by the
University and it was alleged that he took Rs. 400/- from a
candidate at the examination for showing favour. On these
facts, this court held that a person appointed as an examiner
by the University even if he was a lecturer of a Government
College would not be a public servant within the meaning of
Section 21 of the Indian Penal Code. We have already
observed that the appellant would not come under the purview
of the said Section 21 and therefore that decision is of no help.
In the case in hand, the appellant was appointed by the
University for a specified work, namely to evaluate answer
scripts and therefore he was a public servant at the relevant
time under sub-section (4) of Section 73 of the Act.
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Now the next question is whether a prima facie case
has been made out against the appellant. In exercising powers
under Section 227 of the Code of Criminal Procedure, the
settled position of law is that the Judge while considering the
question of framing the charges under the said section has the
undoubted power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out; where the materials
placed before the court disclose grave suspicion against the
accused which has not been properly explained the court will
be fully justified in framing a charge and proceeding with the
trial; by and large if two views are equally possible and the
Judge is satisfied that the evidence produced before him while
giving rise to some suspicion but not grave suspicion against
the accused, he will be fully justified to discharge the
accused, and in exercising jurisdiction under Section 227 of
the Code of Criminal Procedure, the Judge cannot act merely
as a post office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total effect of
the evidence and the documents produced before the court but
should not make a roving enquiry into the pros and cons of
the matter and weigh the evidence as if he was conducting a
trial [See Union of India versus Prafulla Kumar Samal &
Another (1979 3 SCC 5)].
As stated earlier, neither the Special Judge nor the
High Court considered the materials on records while framing
charge and there was no application of mind and the Special
Judge merely acted as a post office. All the materials
produced by the prosecution against the accused were duly
considered by the High Court while disposing of the Writ
Petition filed by the appellant. In coming to the conclusion
that the prosecution case rests upon flimsy foundation and it
is quite possible that the chances of a conviction are bleak, the
High Court recorded as follows:
? Without in any way prejudging the issue I
must say that the vital content of the
prosecution case seems somewhat amazing.
An association of students provides money to
an examinee to get his marks increased. This
is said to have been done and the answer-
books attached. The First Information Report
is given some seven days after this incident.
Information of the offence is conveyed to a
police station and yet investigation by the
A.C.B. is taken up as late as March 1987.
Nothing incriminating has been found with
the Petitioner.?
We have perused the records and we agree with the
above views expressed by the High Court. We find that in the
alleged trap no police agency was involved; the FIR was lodged
after seven days; no incriminating articles were found in the
possession of the accused and statements of witnesses were
recorded by police after ten months of the occurrence. We are,
therefore, of the opinion that not to speak of grave suspicion
against the accused, in fact prosecution has not been able to
throw any suspicion. We, therefore, hold that no prima facie
case was made against the appellant.
We find merit in the present appeal and accordingly
it is allowed by setting aside the impugned judgment and
consequently the criminal proceeding against the appellant is
quashed.
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..J.
[Syed Shah Mohammed Quadri]
..........................J.
[S. N. Phukan]
January 08, 2002