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CASE NO.:

Appeal (crl.) 8 of 2002

PETITIONER:

DILAWAR BALU KURANE

Vs.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT: 08/01/2002

BENCH:

Syed Shah Mohammed Quadri & S.N. Phukan

JUDGMENT:

PHUKAN, J.

Leave is granted.

The 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.

It was 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

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directed the appellant to approach the trial court.

Accordingly, 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.

Two 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.

We may 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 question open.

Admittedly, 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 Code.

There is a special provision in the Shivaji University Act, 1974,

namely, sub-section (4) of Section 73, which is extracted

below:

?Conditions : Section 73:

of

Services 1)..........

2)..........

3)..........

4) All 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.?

We have to consider whether in view of the above

sub-section, the appellant would be deemed to be a public

servant.

On a 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:

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1. all salaried officers and employees of the university;

2. those appointed by the university for specified

purpose or for specified work;

3. persons who receive any remuneration such as

allowances, fees or other payments from the fund of

the university.

Learned 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.

This 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.

Drawing 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.

Our 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.

In the 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.

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Now 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)].

As 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.

An 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.

Information 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.

Nothing 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 the appellant.

We 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.

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..J.

[Syed Shah Mohammed Quadri]

..........................J.

[S. N. Phukan]

January 08, 2002