State of Punjab Vs.
Nirmal Kaur [2009] INSC 848 (28 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 866 OF 2009
(Arising out of SLP (Crl.) No. 4907 of 2006) State of Punjab ....Appellant
Versus Nirmal Kaur ....Respondent 1
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the order passed by a learned Single Judge holding that
the respondent cannot be proceeded against in terms of Section 13(2) of the
Prevention of Corruption Act, 1988 (in short the `Act').
3.
Factual
position in a nutshell needs to be noted.
Respondent-Nirmal
Kaur was running a coaching centre. On the accusation of commission of offences
punishable under Sections 420, 465, 467, 468, 471 and 120B of the Indian Penal
Code, 1860 (in short the `IPC') and Section 13(1)(d) read with Section 13(2) of
the Act investigation was undertaken, charges were framed by learned Sessions
Judge Ferozepur, under Section 13(1)(d) read with Section 13(2) of the Act as
well as the offences punishable under IPC. A petition under Section 401 of the
Code of Criminal Procedure, 1973 (in short the `Code') was filed inter alia
taking the stand that since the respondent was not a public servant, there was
no question of framing charges in terms of Section 13(1)(d) read with Section
13(2) of the Act. The trial court relied on clauses (viii) (xi) and (xii) of
sub-clause 2(c) of the Act to hold that the charges were framed legally. The
High Court held that clauses (viii) (xi) and (xii) of sub-section 2(c) of the
Act have no application to the facts of the case. It was pointed out that the
accused was running a coaching centre and therefore she was not performing any
public duty. The framing of charge so far as Section 13 of the Act is concerned
was to be quashed while the accused was to face trial for the aforesaid
offences punishable under the IPC.
4.
Learned
counsel for the appellant submitted that since the accused was running a
coaching centre, she was carrying on public duty.
5.
Section
2(c) reads as follows:
(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 the local authority;
(iii) any person in
the service or pay of a corporation established by or under a Central,
Provincial or State Act, or any 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);
(iv) any judge,
including any person empowered by law to discharge, whether by himself or as a
member of anybody of persons, any adjudicatory functions;
(v) any person
authorized by a Court of justice to perform any duty, in connection with the
administration of justice, including a liquidator, receiver or commissioner
appointed by such Court;
(vi) any arbitrator
or other person to whom any cause or matter has been referred for decision or
report by a Court of justice or by a competent public authority.
(vii) any person who
holds an office by virtue of which he is empowered to prepare, publish,
maintain or revise an electoral roll or to conduct an election or part of an
election.
(viii) any person who
holds an office by virtue of which he is authorized or required to perform any
public duty;
(ix) any person who
is president, secretary or other office bearer of a registered co-operative
society engaged 6 in agriculture, industry, trade or banking, receiving or
having received any financial aid from the Central Government or a State
Government or form any corporation established by or under a Central,
Provincial or State Act, or any authority or 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);
(x) any person who is
a chairman, member or employee of any Service Commission or Boar, by whatever
name called or a member of any selection committee appointed by such Commission
or Board for the conduct of any examination or making any selection on behalf
of such Commission or Board;
(xi) any person who
is a Vice-Chancellor or member of any governing body, professor, reader,
lecturer or any other teacher or employee by whatever designation called, of
any University and any person whose services have been availed of by a University
or any other public authority in connection with holding or conducting
examinations;
(xii) any person who
is an office-bearer or an employee of an educational, scientific, social,
cultural or other institution, in whatever manner established, receiving or
having received any financial assistance from the Central Government or any
State Government or local or other public authority."
6.
Stand
of the appellant-State is that in any event by running coaching centre, the
respondent was performing public duty. The submission overlooks basic
requirement of clause (vii) of Section 2(c) which is applicable only when a
public servant holds an office by which he authorized or required to perform
any public duty. In the instant case it is nobody's case that the respondent
was holding an office by virtue of which she was authorized to perform any
public duty. That being so there is no merit in this appeal which is
accordingly dismissed.
...........................................J.
(Dr. ARIJIT PASAYAT)
............................................
J.
Back
Pages: 1 2