The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.512 of 2024 (In the matter of an application under Sections 401 read with Section 397 of the Criminal Procedure Code, 1973) Biplaba Jena ……. Petitioner -Versus- State of Odisha ……. Opposite Party For the Petitioner : Mr. Manoj Kumar Mohanty, Advocate For the Opp. Party : Mr. Sangram Das, SC (Vigilance) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.11.2024 :: Date of Judgment: 29.01.2025 S.S. Mishra, J. 1. This Criminal Revision Petition has been filed by the petitioner assailing the order dated 20.04.2024 passed by the learned Special Judge (Vigilance), Cuttack in T.R. Case No.34 of 2017, whereby the application of the petitioner seeking discharge from the offences under Sections 13(2) read with Sections 13(1)(d)/7 of the Prevention of Corruption Act (for short <P.C. Act=), cognizance of which has been taken against him has been turned down. 2.
Legal Reasoning
Heard Mr. Manoj Kumar Mohanty, learned counsel for the petitioner and Mr. Sangram Das, learned Standing Counsel for the Vigilance Department. 3. The petitioner on the selfsame ground had approached this Court by filing CRLMC No.17 of 2018. This Court while disposing of the said petition on 12.03.2019 has passed the following order:- <Heard learned counsel for the petitioner and learned Addl. Standing Counsel (Vigilance). Learned counsel for the petitioner submits that the petitioner has never functioned as a public servant as defined U/s.2(c) of the Prevention of Corruption Act, 1988, inasmuch as he was engaged by a service provider, namely Dart Consultancy. It is further submitted that he has never performed any public duty as defined U/s.2(c)(viii) of the Prevention of Corruption Act, 1988. Learned Addl. Standing Counsel (Vigilance), per contra, submits that the petitioner had given his joining to the Odisha Agro Industries Corporation Ltd., Jajpur and continued to perform public duty on their instruction and in the year 2015 he was entrusted with the charge of Store Room and as Store Keeper he not only conducted enquiry but also discharged public duty prior to the incident and in that view of the matter he is a public servant. Page 2 of 14
Decision
Having regards to the above contentions, I am of the considered view that such contention as to whether the petitioner is a public servant as defined U/s.2(c) of the P.C. Act, 1988 or not, can well be considered at the time of consideration of Charge by the learned Trial Court, as such the petitioner is given liberty to raise this point at that stage. Hench I am not inclined to invoke the inherent jurisdiction U/s.482 Cr.P.C. to quash the proceeding on this ground. Accordingly the CRLMC stands disposed of.= Pursuant to the aforementioned order, the petitioner had filed an application before the Court below seeking discharge from the case, which has been turned down by the impugned order. Feeling aggrieved by the same, the petitioner has approached this Court by filing the present Criminal Revision Petition. 4. The criminal law is set in motion against the present petitioner on the basis of the complaint filed by one Bhabagrahi Behera, inter alia, alleging that the petitioner being a public servant had demanded and accepted illegal gratification of Rs.3,000/- from him for supply of the electricity connection and installation of the works of the Jalanidhi Project. A trap was conducted and the petitioner has been apprehended while accepting the alleged bribe. Page 3 of 14 5. The prosecution case in brief is that the complainant lodged a complaint before the Jajpur Vigilance Police Station alleging therein that the accused-petitioner was working as Electrician-cum-Store Keeper in the office of the District Manager, Orissa Agro Industries Corporation Limited, Jajpur. Under <Jalanidhi= project, the complainant, one Kapila Behera and Saran Behera of Jafarpur combinedly made an application for lift irrigation from the river which is called as cluster project consisting of three beneficiaries. Each beneficiary has to deposit Rs.4,625/- and the Agro Industries Corporation shall provide a 25 K.V. Transformer along with 5 hp motor to each beneficiaries and 75 pieces of PVC Pipe. The cluster point was sanctioned in favour of the said three beneficiaries and they have to deposit the abovementioned amount, i.e., Rs.4,625/- each which in toto comes to Rs.13,875/-. It is alleged that as the delay caused in sanctioning the said cluster project by the higher authorities from the date of application made by the beneficiaries, one of the beneficiary, namely, Bhagirathi Behera, the complainant in the present case alleged that the present petitioner demanded Rs.3,000/- for providing the materials to the beneficiaries. It is also alleged that the initial deposit had Page 4 of 14 not been made by the beneficiaries and no sanction order was made by the higher authorities to provide the materials for cluster points. As the complainant made the complaint regarding demand of Rs.3,000/- bribe by the petitioner towards sanctioning the materials for the cluster point under <Jalanidhi Project=, the vigilance trap party of Jajpur Vigilance Police Station chalked out a plan by providing Rs.16,875/-, which were chemically processed. The said amount was wrapped inside four-fold white papers and the same was handed over to the petitioner. Without counting the said amount, the petitioner kept it inside left side chest pocket of his shirt. Thereafter, the petitioner wrote three money receipts bearing Nos.585758, 585759 and 585760 and when he counted the said amount, the vigilance party trapped him and recovered the amount of Rs.16,875/- from him. The F.I.R. was accordingly registered. 6. Mr. Mohanty, learned counsel for the petitioner has submitted that the petitioner being an outsource employee of Darks Security Consultant Private Limited, is not a public servant. Hence, he cannot be prosecuted for the alleged offences under the P.C. Act. He has emphasized Section Page 5 of 14 2(c) of the P.C. Act to demonstrate that the petitioner is not a public servant. Section 2(c) of P.C. Act defines a public servant, as under:- <Section 2(c):- <Public Servant= means,- any person in the service or pay of a local (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) authority; (iii) any person in the service or pay of a corporation established by or 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 the Companies Act, 1956 (1 of 1956).= 7. It is contended by the learned counsel for the petitioner that the petitioner was working as an Electrician-cum-Store Keeper through outsourcing basis and was receiving the remuneration from M/s. Dark Security Consultant Private Limited (DSCPL). The DSCPL had taken the contract to electrify the cluster points and the petitioner was engaged by the said Agency to do the electrification work of cluster points in Jajpur District under the Agro Industries Corporation Limited, Jajpur. The petitioner has been paid the remuneration by DSC Private Limited and he has nothing to do with the Odisha Agro Industries Corporation Limited, Page 6 of 14 Jajpur. His service is being controlled by the DSC Private Limited. On being directed and permitted by the District Manager of Odisha Agro Industries Corporation Limited, Jajpur, the petitioner was only assigned to give the electricity connection to the Lift Irrigation Points, i.e., cluster points under Jalanidhi Scheme. Therefore, he was at no point of time discharging any public duty. For the work assigned to him, the Corporation has been making payment to the DSC Private Limited. Therefore, his services and duty is not coming under <the colour of duty= described under Section 2(c) of the P.C. Act. He further contended that the petitioner being not an employee of the Odisha Agro Industries Corporation Limited, he is neither the Sanctioning Authority for Jalanidhi Scheme nor the authority to release the materials directly from the store without any specific order of the District Manager of Odisha Agro Industries Corporation Limited, Jajpur. As the District Manager of Jajpur was absent, he had received the amount on his behalf from the beneficiaries for a short period. The petitioner has also put forth his defense explaining as to why he has accepted the alleged bribe amount of Rs.3,000/- from the complainant. In nutshell, the entire case of the Page 7 of 14 petitioner in the present Revision is that the petitioner is not a public servant. Hence, he cannot be prosecuted for the offences punishable under the P.C. Act. 8. On contrary, Mr. Das, learned Standing Counsel for the Vigilance Department has vehemently opposed the prayer made by the petitioner and contended that the duty performed by the petitioner is a public duty and during the course of performance of such duty, admittedly, he has demanded bribe. Therefore, the prosecution is rightly launched against him for the alleged offences under Sections 13(2)/13(1)(d)/7 of the P.C. Act. 9. I have perused the entire record placed before me. Factually, it is undisputed that Odisha Agro Industries Corporation Limited, Jajpur has employed DSC Private Limited. Through the said private outsourcing company, the petitioner has been employed. The petitioner has been entrusted the job of Electrician and was in-charge of the store. It is apparent on record that the petitioner has been working as an Electrician since 2011. He was in-charge of the store since February, 2014. The petitioner has been supervising the Jalanidhi-II Project. He was entrusted Page 8 of 14 to collect the documents like application form, copy of RoR of the land, Votor Id card, Caste Certificate and photos etc. from the beneficiaries of the Scheme. The petitioner has been collecting the documents and sending the documents to the Head Office for sanction. On receipt of the sanction from the Head Office, the petitioner used to ensure the deposit of Government dues and also he collects the farmer’s share of the project in the office. He used to issue money receipts by taking the signature from the District Manager. Primarily, he used to perform the duty of an Electrical J.E. As the petitioner has been working as Electrician and Store Keeper in the absence of the Electrical J.E., his duty was to assist for installation of the project work. The work profile of the petitioner and the duty and functions assigned to the petitioner during his office has the colour of the official duty. 10. In that regard, it is apt to cite the judgment of the Hon’ble Supreme Court in the case of Central Bureau of Investigation, Bank Securities and Fraud Cell vrs. Ramesh Gelli and others, reported in (2016) 3 SCC 788. Relevant would be to reproduce paragraph-22 of the said judgment:- Page 9 of 14 <22. In a recent case of State of Maharashtra v. Brijlal Sadasukh Modani4, this Court has observed as under: (SCC para 24) <24. As we notice, the High Court5 has really been swayed by the concept of Article 12 of the Constitution, the provisions contained in the 1949 Act and in a mercurial manner taking note of the fact that the multi-State society is not controlled or aided by the Government has arrived at the conclusion. In our considered opinion, even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. We are inclined to think so as the term <aid= has not been defined. A sprinkle of aid to the society will also bring an employee within the definition of <public servant=. The concept in entirety has to be observed in the backdrop of corruption.= The Hon’ble Supreme Court in unequivocal terms has held that even the sprinkle of aid to the society bring the employee within the definition of public servant. In paragraph-25 of the Central Bureau of Investigation (supra), the Hon’ble Supreme Court has also held as under:- <25. In Manish Trivedi v. State of Rajasthan, which pertains to a case registered against the councilor 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) Page 10 of 14 that by the aforesaid section <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 (Central Act 45 of 2860). (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 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 scope from the conclusion that the appellant is a public servant within the meaning of Section 21 of the Penal Code. Page 11 of 14 the the Rajasthan scheme of 16. Under Municipalities Act it is evidence 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© 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 to be consequence. The appellant 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 appellant we have no doubt that he is a public the case of is sought Page 12 of 14 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." 11. The position of law is well settled that any person who holds an office by virtue of which he is authorized or required to perform any public duty is a public servant. In the instant case, from the documents on record, it is evidently clear that the petitioner has been authorized to carry out the functions of Electrical J.E. On the basis of the authorization given by the District Manager of the Corporation, the petitioner had been performing the public duty. Hence, the act complained of is definitely has the color of the official duty. In that view of the matter, the petitioner is being rightly prosecuted for the offences under the P.C. Act. The learned Page 13 of 14 trial Court has passed the impugned order holding the petitioner as a public servant. I find no reason to interfere with the impugned order dated 20.04.2024 passed by the learned Special Judge (Vigilance), Cuttack in T.R. Case No.34 of 2017. 12. Accordingly, the CRLREV is dismissed. The High Court of Orissa, Cuttack Dated the 29th January, 2025/ Swarna ……………… S.S. Mishra (Judge) Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 31-Jan-2025 19:02:15 Page 14 of 14