ASHOK KUMAR BADOLA Vs. STATE OF RAJSHTAN

JUDGEMENT

(1.) An interesting legal issue has been raised in this petition, whether a Chairman of the Municipal Council falls within the definition of term "public servant" as defined under the Prevention of Corruption Act, 1988 or not?

(2.) The said issue arises under the following background: the petitioner, Mr. Ashok Kumar Badola, is the Chairman of the Municipality, Vijay Nagar, District Ajmer. One, Mr. Chain Singh had lodged a complaint with the Anti Corruption Bureau, wherein he claimed that this elder brother, Chittar Singh, is a registered contractor with the Public Works Department. The department owed Rs. 3,84,000/- to him for the construction of public toilets, which were constructed before 1.6.2004. Subsequently, his brother and submitted a final bill for a sum of Rs. 1,38,000/- to the Municipality, Vijay Nagar. In order to pass the said bill, he claimed that Mr. Ashok Kumar Badola, the petitioner, demanded a bribe of Rs. 6,000/-to Rs. 7,000/-. On 3.6.2004, the trap proceedings were carried out, and the petitioner was caught red handed. Subsequently, the Anti-Corruption Bureau filed a charge-sheet for offences under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act of 1988"). Vide order dated 22.7.2009, the learned trial Court framed charges against the petitioner for the aforementioned offences. Subsequently, the petitioner moved an application under Section 216 Cr.P.C., for amending the charges. However, vide order dated 19.2.2011, the learned Designated Court, Ajmer, dismissed the said application. Hence, this petition before this Court.

(3.) Mr. V.S. Gurjar, the learned counsel for the petitioner, has strenuously contended that since the petitioner happens to be the Chairman of a Municipality, he does not fall within the definition of "public servant" as defined under Section 2(c) of the Act of 1988. He has further contended that a public servant is an authority who must be appointed by the Government or a semi-governmental body and should be in the pay or salary of the same and must discharge his duties in accordance with the rules and regulations made by the Government. A Municipal Council or the Chairman does not owe his appointment to any governmental authority. Such a person is elected by the people and functions undeterred by the commands or edicts of a governmental authority. The mere fact that he gets allowance by way of honorarium does not convert his status into that of a 'public servant'. Therefore, neither a Municipal Councilor, nor the Chairman is a public servant. In order to buttress his contention, the learned counsel has relied upon the cases of Ramesh Balkrishna Kulkarni v. State of Maharashtra, 1985 2 RCR(Cri) 275, State of Tamil Nadu v. T. Thulasingam & Ors., 1995 3 RCR(Cri) 179 and Sumitra Kanthiya (Smt.) & Ors. v. State of Rajasthan,2009 1 CrLR 222. Hence, the petitioner cannot be prosecuted under the provisions of the Act of 1988.