Balu Kurane Vs. State of Maharashtra  Insc 7 (8 January 2002)
Shah Mohammed Quadri & S.N. Phukan Phukan, J.
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.
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 directed the
appellant to approach the trial court.
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.
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.
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
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
is a special provision in the Shivaji University Act, 1974, namely, sub-section
(4) of Section 73, which is extracted below:
: Section 73:
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.?
have to consider whether in view of the above sub-section, the appellant would
be deemed to be a public servant.
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:
salaried officers and employees of the university;
appointed by the university for specified purpose or for specified work;
who receive any remuneration such as allowances, fees or other payments from
the fund of the university.
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.
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.
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.
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.
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.
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)].
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.
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.
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.
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
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.
Shah Mohammed Quadri] ..........................J.