ONKAR CHAND Vs. STATE OF PUNJAB

JUDGEMENT

(1.) ONE Jagdev Singh, son of Sher Singh, of village Rattangarh Sindhran, addressed an application to the Senior Superintendent of Police, Patiala, alleging therein that his son Jasbir Singh sought employment in Food Corporation of India and had been called for interview, -vide interview -card No. 15880, that he talked to Joginder Singh in that regard, and the latter assured him that he could get his son employed in the Food Corporation of India, as he had an approach with Onkar Chand, a big officer there; that he accompanied Joginder Singh to Chandigarh on 15th December, 1976 along with his son that Joginder Singh on reaching Chandigarh took them to Kothi No. 330, Sector 9 -A(sic) that the said Joginder Singh told them to wait outside and himself went inside the said Kothi, telling that he would have a talk with Onkar Chand; that after sometime, Joginder Singh and Onkar Chand both came out of the said Kothi; that Onkar Chand told him (Jagdev Singh) and his son that their work would be done and that they should pay Rs. 12,000 to Joginder Singh. After saying this, Onkar Chand went inside the Kothi, while Joginder Singh remained with them. Jagdev Singh asked Joginder Singh as to what was that talk of payment of money to him as he (Joginder Singh) had earlier merely said that he would help in getting the job without any condition regarding payment. Thereupon, Joginder Singh told him that without payment of money it was difficult to secure the job as vacancies were few and the applicants were too many and further if the job could be secured by paying money then why one should go after anything else. Joginder Singh asked Jagdev Singh to pay Rs. 5,000 in advance and the balance of Rs. 7,000 after the job in question was secured. Jagdev Singh believed Joginder Singh and paid Rs. 5,000 to him on 1st of January, 1977 after withdrawing the said amount from his account in the Punjab and Sind Bank. Some time past when his son still did not get the job, Joginder Singh told him that more payment should be made and only then the job would be secured. He (Jagdev Singh) finding, no way out -having already given Rs. 5,000, paid Rs. 5,000 more to Joginder Singh. The latter kept on putting off the former whenever he met him by saying that since the officials were busy in doing election duty, the work could not be done and that it would be done soon. When he (Jagdev Singh) thought that there was no hope of his son getting the job in question, he pressed Joginder Singh to return the money, who in the beginning tried to put him off, but eventually on 22nd June, 1977 and 22nd July, 1977 executed 2 separate pronotes of Rs. 5,000 each without any attesting witness and handed over the same to him (Jagdev Singh), saying that if they had no faith in his words then they could keep those pronotes by way of security. When his (Jagdev Singh's) son, Jasbir Singh still did not get the job he (Jagdev Singh) again asked Joginder Singh to pay back the money, but the latter told him that some money had been spent and some money had been passed on to Onkar Chand, and so he would not return the money to him (Jagdev Singh) and that he could do whatever he liked. That last refusal of Joginder Singh then led him to address the present complaint on 3rd August, 1977. On the basis of the aforesaid complaint, First Information Report No. 208 came to be recorded in Police Station Ghagga District Patiala, for offences under Sections 406, 420, 161, 162, 165A of the Indian Penal Code (hereinafter to be referred as the Penal Code), and Section 5(2) of the Prevention of Corruption Act, against Onkar Chand and Joginder Singh. The trial proceeded against them in the Court of Shri Mukhtiar Singh Gill, Special Judge, Patiala. Both Onkar Chand and Joginder Singh aforesaid challenged the jurisdiction of the Special Judge to try them on the ground that no offence triable by the Special Judge was made out as neither Onkar Chand nor Joginder Singh was a public servant. It was contended before the Special Judge that while Joginder Singh admittedly held no office of any kind, Onkar Chand at the relevant date was merely a Part -time member of the Punjab State Electricity Board (hereinafter to be referred as the Board) and hence, he being a part time member of the Board could not be considered a public servant which is a necessary ingredient of Section 161 of the Penal Code and Section 5(1)(d), read with Section 5(2) of the Prevention of Corruption Act.

(2.) THE learned Special Judge relying on the provisions of Section 6 of the Criminal Law Amendment Act, 1952, as amended upto date, Section 21 Clause 12(b) of the Penal Code, and Section 81 of the Electricity (Supply) Act, 1948, held that Onkar Chand was a public servant and the offences, with which he and his co -accused were charged were clearly triable by him. Both Joginder Singh and Onkar Chand have challenged in this Court the aforesaid order as also the charges that have been framed against them (Joginder Singh through Cr. Revision No. 874 of 1977 and Onkar Chand through Cr. Revision No. 904 of 1977). Since both revision petitions are directed against a common order and a common question of law and facts is involved, these petitions are proposed to be disposed of by a common judgment.

(3.) BEFORE dealing with the first contention advanced by the learned Counsel for the Petitioners, let us be clear about the exact status of Onkar Chand Petitioner. Onkar Chand Petitioner was admittedly appointed by the Governor of Punjab vide Notification No. 12801 -IW(7) -72/18073, dated 8th September, 1972 in exercise of powers under Section 5 of the Electricity (Supply) Act, 1948 (hereinafter referred to as the Act), read with Rule 3 of Punjab State Electricity Rules, 1959 (hereinafter referred to as the rules) a part time Member of the Punjab State Electricity Board with immediate effect for a period of five years. Rule 3 of the rules provides term of office, remuneration, allowance and conditions of service of the Chairman and the Members of the Board. Sub -rule (4) of Rule 5, which deals with the remuneration of a part -time non -official Member, is in the following terms: