THIRU V THANIGACHALAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The appellant is a Councillor representing Perambur Division of the Madras Corporation. He was also a member of the Taxing Committee ofthe Municipal Council. He along with other accused is standing trial in the Court of the Fifth Additional Special Judge, Madras City on four charges namely:

(2.) He approached the High Court under Section 482, Code of Criminal Procedure praying that the last four charges framed againsthim be quashed on the ground that he is not a public servant within the meaning of Section 21 ofthe Penal Code. No evidence in respect of any of these charges has so far been recorded. The High Court has dismissed the petition holding that the appellant is a public servant within the comption of clause 12 (b)of Section 21 of the Penal Code. Hence this appeal.

(3.) We have partly heard thearguments of the learned counsel for the parties. The learned Advocate General has contended that cl. 10th of Section 21 of the Penal Code will also cover the case. The argument is that as a member of the Taxing Committee, the appellant was concerned with expenditure and preparation of budget and sponsoring proposals of financial character. It is submitted that evidence will be let to establish facts showing that the appellant is a public servant within the meaning of Section 21 of theCode and decision of this question at this stage when no evidence has at all been recorded, would be purely hypothetical and divorced from facts. We also feel that the question involved is a mixedquestion of law and fact. It requires evidence for its determination. We, therefore,think that the High Court was in error in deciding this question purely in the abstract without there being any evidence before it.