Kumar Madan Vs. State of Madhya Pradesh  Insc 384 (10 April 2007)
S.B. Sinha & Markandey Katju
CRIMINAL APPEAL NO. 519 OF 2007 [Arising out of S.L.P. (Crl.) No. 4529 of
2006] S.B. SINHA, J :
Appellant is a Civil Engineer. He is employed in the Madhya Pradesh
Electricity Board constituted in terms of Section 5 of the Electricity (Supply)
Act, 1948 (for short, 'the 1948 Act'). It is a body corporate and can sue and
be sued in its own name under Section 12 thereof.
He allegedly took illegal gratification from the complainant for the purpose
of grant of an electrical connection. A trap was laid and Appellant was
allegedly caught red handed with a sum of Rs.1,000/-, which was accepted by him
by way of illegal gratification from the complainant.
A charge-sheet was filed against him under Section 7 read with Section
13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (for short 'the 1988
Act'). An application was filed by him contending that he being not a public
servant, his prosecution under the 1988 Act was not maintainable. The learned
Trial Judge rejected the said contention. A Revision Application was filed by
the appellant thereagainst before the High Court, which was dismissed by the
learned Single Judge of the High Court by reason of the impugned judgment dated
Before the courts below as also before us, the contention of Appellant has
been that 'public servant' having been defined in Section 81 of the 1948 Act,
the same does not satisfy the requirements of the definition as contained in
Section 21 of the Indian Penal Code. Strong reliance, in this behalf, has been
placed on Bimal Kumar Gupta v. Special Police Establishment Lokayukt [2001 (1)
MPHT 330 : (2001) 3 JLJ 2], wherein it has been held that employees of the
Madhya Pradesh State Electricity Board are not public servants.
Different statutes may use the same term for different purposes. A term or a
word may be interpreted in the statute itself for fulfilling the purport and
object mentioned therein whereas in another statute it may be defined
Interpretation of a term in one statute, however, cannot be done with
reference to its definition contained in another. [See Raymond Ltd. v. State of
Chhattisgarh and Others (2007) 3 SCALE 341] Keeping in view the
aforementioned legal proposition, it may be necessary to construe the
definition of the term 'public servant' occurring in the relevant statutes.
Section 2(1) (c) of the 1988 Act defines 'public servant' in the following
"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;
xxx xxx xxx (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);"
xxx xxx xxx Explanation 1. Persons falling under any of the above
sub-clauses are public servants, whether appointed by the Government or not.
Explanation 2. Wherever the words "public servant" occur, they
shall be understood of every person who is in actual possession of the
situation of a public servant, whatever legal defect there may be in his right
to hold that situation."
Section 21 of the Indian Penal Code defines 'public servant' to mean :
"The words "public servant" denote a person falling under any
of the descriptions hereinafter following;
namely:- xxx xxx xxx 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 (1 of 1956)."
Section 81 of the 1948 Act provides that members, officers and servants of
the Board to be public servant, stating :
"81. Members, officers and servants of the Board to be public
servants.-All members and officers and other employees of the Board shall be
deemed, when acting or purporting to act in pursuance of any of the provisions
of this Act, to be public servants within the meaning of section 21 of the
Indian Penal Code (45 of 1860)."
The object and purport of the provisions of the 1948 Act is different from
the 1988 Act. It, as noticed hereinbefore, provides for constitution and
composition of such Electricity Board. Each State is indeed enjoined with a
duty to constitute a Board. [See Madhya Pradesh Electricity Board v. Union of
India and Others [2006 (9) SCALE 194].
Section 12 of the 1948 Act provides for incorporation of Board stating :
"Incorporation of Board.-The Board shall be a body corporate by the
name notified under sub-section (1) of section 5, having perpetual succession
and a common seal, with power to acquire and hold property both movable and
immovable, and shall by the said name sue and be sued."
Section 15 of the 1948 Act empowers the Board to appoint a Secretary and
such other officers and employees as may be required to enable it to carry out
its functions under the said Act. Appointment of a Secretary of the Board is
subject to the approval of the State Government. Section 65 of the 1948 Act
provides for power of the Board to borrow funds for the purposes mentioned
therein wherefor however, previous sanction of the State Government would be
required to be obtained. Section 66 thereof provides for furnishing of
guarantee in respect of such loan advanced by the State Government. Section 78
of the 1948 Act empowers the State Government to make rules for the purposes
mentioned therein. Section 78A empowers the State Government to issue
directions upon the Board in the discharge of its functions. Such directions
are binding upon the Board. State, therefore, exercises a deep and pervasive
control over the affairs of the Board.
The officers of the State Electricity Board are required to carry out public
functions. They are public authorities. Their action in one way or the other
may entail civil or evil consequences to the consumers of electrical energy.
They may prosecute a person. They are empowered to enter into the house of the
Board's consumers. It is only for proper and effective exercise of those
powers, the statute provides that they would be public servants, wherefor a
legal fiction has been created in favour of those employees, when acting or
purported to act in pursuance of any of the provisions of the Act within the
meaning of Section 21 of the Indian Penal Code. Indian Penal Code denotes
various persons to be public servants. It is, however, not exhaustive. A person
may be a public servant in terms of another statute. However, we may notice that
a person who, inter alia, is in the service or pay of the Government
established by or under a Central, Provincial or State Act, would also come
within the purview thereof. Section 2(1)(c) of the 1988 Act also brings within
its embrace a person in the service or pay of a corporation established by or
under a Central Act.
We, therefore, fail to see any reason as to why the appellant would not
answer the description of public servant within the provisions of the said Act.
The decision of the learned Single Judge of the Madhya Pradesh High Court in
Bimal Kumar Gupta (supra), in our opinion, does not lay down the correct law.
Referring to Section 81 of the 1948 Act, it held :
"14. Considering the aforesaid provisions of law, it emerged that for
the purpose of the Act of 1947, a "public servant" is a person who is
covered under the definition of 'public servant' as given under Section 21 of
the IPC On careful perusal of the definition of 'public servant' as given in
Section 21 of the IPC, it is found that the employees of the Electricity Board
are not covered under any of the clauses of the said Section. However, by
virtue of Section 81 of the Electricity Supply Act, 1948, all the members,
officers and employees of the Board when acting or purporting to act in
pursuance of any of the provisions of the Act are deemed to be public servant
under Section 21 of the IPC. As such, it can be inferred that by virtue of
Section 81 of the Electricity Supply Act, the Board employees when acting in
pursuance of the provisions of the Act are considered 'deemed public servants'
under Section 21 of the IPC. But as held by the Rajashi Shah (supra) on the
ground of 'deemed provision' a person covered under the definition of Section
21 of the IPC cannot be considered 'public servant' for the purpose of
prosecution under the provisions of the Prevention of Corruptions Act, 1947. In
the aforesaid case, in view of the analogous provision of 'deemed to be public
servant' for certain employees of the Cooperative Societies under Maharashtra
Cooperative Societies Act, were not considered as public servant for the
purpose of the Act of 1947"
With respect we do not agree with the aforementioned inference of the
The Prevention of Corruption Act, 1947 was repealed and enacted in the year
1988. The definition of 'public servant', as contained in Section 2(c) thereof,
is a broad based one. Reliance was placed by the learned Judge in the case of
State of Maharashtra v. Laljit Rajashi Shah and Others [AIR 2000 SC 937].
Therein the court was dealing with a case of a member of a cooperative society.
It was not dealing with the case of an employee of a statutory corporation. The
said decision, therefore, has no application to the facts of the present case.
Definition of 'public servant' will have to be construed having regard to
the provisions of the 1988 Act. By giving effect to the definition of 'public
servant' in the 1988 Act, the legal fiction is not being extended beyond the
purpose for which it was created or beyond the language of the section in which
it was created.
For the reasons aforementioned, we find no merits in this appeal, which is