●This appeal is from the impugned judgement and final order passed by the High court of Gujarat at Ahmedabad in Criminal revision Application against order passed by subordinate court.
No Acts & Articles mentioned in this case
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.989 OF 2018
State of Gujarat …APPELLANT
Versus
Mansukhbhai Kanjibhai Shah …RESPONDENT
JUDGMENT
N. V. RAMANA
1.Corruption is the malignant manifestation of a malady menacing
the morality of men. There is a common perception that
corruption in India has spread to all corners of public life and is
currently choking the constitutional aspirations enshrined in the
Preamble. In this context, this case revolves around requiring
this Court to facilitate making India corruption free.
2.This Appeal is from the impugned judgment and final order
dated 02.02.2018, passed by the High Court of Gujarat at
Ahmedabad in Criminal Revision Application (against Order
passed by Subordinate Court) No. 1188 of 2017.
3.The respondent herein is allegedly a Trustee of a trust called the
Sumandeep Charitable Trust, which established and sponsors
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REPORTABLE
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‘Sumandeep Vidyapeeth’, a deemed University, which is the
institution concerned herein.
4.Brief facts necessary for the disposal of the case are that an FIR,
being IER No. 3 of 2017, dated 28.02.2017 was filed by one Dr.
Jasminaben, wife of Dilipbhai Devda, before the Vadodara City
A.C.B. Police Station against four accused persons including the
present respondent. Broadly, the allegations were that the
complainant’s elder daughter was admitted to the MBBS Course
in the abovementioned Deemed University in the year 2012. Her
daughter’s course fee was completely paid up as per the annual
fee slab. In the year 2017, her elder daughter while filling up her
final examination form, was asked to meet the respondent
herein. On meeting, the respondent, in conspiracy with others,
had communicated that the complainant’s husband had to
further pay Rupees Twenty Lakhs for allowing the complainant’s
daughter to take the examination. Further, it is alleged that the
accusedrespondent had communicated that they can deposit a
cheque and the same would be returned on payment of cash,
considering that demonetization had recently taken place. In lieu
of the same, cheques were deposited with the accused
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respondent herein. Thereafter, the complainant, who was
unwilling to pay the amount, filed the FIR.
5.After following the necessary procedure, phenolphthalein powder
was applied to the currency notes and were delivered to accused
Vinod alias Bharatbhai Savant (the alleged companion/agent of
respondent through whom the demand was facilitated).
Thereafter, accused Vinod confirmed the receipt of money to the
respondent over the telephone. The aforesaid incriminating
conversation stood intercepted in an audio video camera set up
by the complainant. Further, separate raids were conducted
whereupon several undated cheques drawn in the name of the
institution worth more than Rs. 100 crores and certain fixed
deposits were recovered.
6.The chargesheet came to be filed on 25.04.2017 against several
accused persons, including the present respondent for various
offences under Sections 7, 8, 10 and 13 (1)(b) and 13(2) of the
Prevention of Corruption Act, 1988 [hereinafter referred to as the
‘PC Act’] read with Section 109 of Indian Penal Code, 1860
[hereinafter referred to as the ‘IPC’],.
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7.The respondent herein filed a discharge application under
Section 227 of CrPC before the District and Sessions Court in
Special ACB Case No. 2 of 2017. The District and Sessions Court
by an order dated 29.11.2017, rejected the application.
8.Aggrieved by the rejection of the aforesaid application, the
respondent herein filed a criminal revision application, being
Criminal Revision Application No. 1188 of 2017, before the High
Court of Gujarat, at Ahmedabad. The High Court, by the
impugned judgment and order dated 02.02.2018, allowed the
revision and discharged the accusedrespondent herein.
9.Aggrieved by the impugned order, the State of Gujarat is in
appeal before this Court.
10.The senior counsel on behalf of the appellant submitted that the
PC Act is a comprehensive statute which was passed to prevent
corruption and therefore, should be construed liberally as the
legislature intended to include the abovementioned acts, which
harm the public at large, within the ambit of the PC Act. The PC
Act is a social legislation intended to curb illegal activities of
public servants and is designed to be construed so as to advance
its objectives. The Courts, while keeping the public interest in
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mind, must ensure that technicalities should not defeat the
object sought to be achieved.
11.The counsel further argued that public function need not be the
exclusive domain of the State; private institutions such as
universities may also perform a public function. The counsel
placed reliance upon Modern Dental College & Research
Centre v. State of Madhya Pradesh ., (2016) 7 SCC 353 and
Janet Jeyapaul v. SRM University., (2015) 16 SCC 530 to state
that imparting education to the public is a welfare activity and
hence can be called as an activity done for public good.
Considering the UGC guidelines, the counsel submitted that
Deemed Universities effectively discharge the public function of
imparting education to the public.
12.Moreover, the counsel placed reliance upon the case of K.
Veeraswami v. Union Of India , (1991) 3 SCC 655 to submit
that there is no requirement of having a masterservant
relationship between the competent authority and the public
servant. The PC Act does not define public servant, rather, it
provides categories of the same. The counsel further stated that
the lack of any authority to grant the sanction cannot result in
nonprosecution. In such situations, there is no necessity for
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obtaining sanction. In any case, the sanction was obtained from
the Charity Commissioner out of abundant caution.
13.Lastly, the counsel submitted that the respondent was
discharging a public duty. In the present facts, it was a pre
condition to pay the respondent before obtaining an examination
pass, although he was never formally assigned this task or role.
The counsel therefore concluded that there need not be a
requirement of positive command under the law to discharge his
public duty. In fact, there may not be any formal requirement of
providing remuneration or payment in lieu of the service
rendered.
14.On the contrary, the counsel on behalf of the respondent
submitted that it is a settled principle of law that a criminal
statute has to be construed strictly. In cases where two
interpretations are possible, the Courts must lean towards the
construction which exempts the subject from penalty rather than
the one which imposes the same.
15.The counsel further vehemently argued that the respondent,
being a trustee, cannot be termed as a Public Servant. There is
no allegation in the charge sheet that the respondent was holding
any position or post in the institution which was Deemed to be
University or that he was engaged by the institution for rendering
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any service. In light of the above fact, the High Court was correct
in discharging the respondent as he does not qualify within the
ambit of Section 2 (c)(xi) of the PC Act.
16.Moreover, the counsel argued that the High Court has correctly
held that the relevant provision as laid down under Section 2 (c)
(xi) is inapplicable in the present case as the said Institution was
a “deemed to be university”. Finally, the counsel argued that no
valid or proper sanction was obtained for prosecuting the
respondent. The sanction obtained from the Charity
Commissioner is not valid as he cannot be considered as a
Competent Authority, since he does not have the power to remove
or appoint a Trustee.
17.Having heard the learned counsel for the parties, the questions to
be answered herein are
i.Whether the respondenttrustee is a ‘public servant’
covered under Section 2(c) of the PC Act?
ii.Whether the accusedrespondent can be discharged
under Section 227 of CrPC?
18.The first question before us, that is, whether the respondentwho
is allegedly a trustee in the Sumandeep Charitable Trust which
established and sponsors the said University (‘Deemed to be
University’) is a ‘public servant’ covered under Section 2(c) of the
PC Act, can be broken up into two parts: first, whether the
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‘Deemed University’ is covered under the provisions of the
Prevention of Corruption Act, 1988, and secondly, whether the
‘respondenttrustee’ can be termed as ‘public servant’ under
Section 2(c)(xi) of the PC Act?
19.Before we proceed further, we need to observe the relevant
provisions under the PC Act:
2(c.). "public servant" means
…
(xi) any person who is a ViceChancellor
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;
20.Simply speaking, any person, who is a ViceChancellor, any
member of any governing body, professor, reader, lecturer, any
other teacher or employee, by whatever designation called, of any
University, is said to be a public servant. Further, the definition
inter alia, covers any person whose services have been availed of
by a University, or any other public authority in connection with
holding or conducting examinations.
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21.However, the interpretative necessity arises in this case due to
the fact that the ambit of the term ‘University’, as occurring
under Section 2(c)(xi) of the PC Act, has not been clearly defined
and the question arises as to whether the same covers ‘deemed to
be University’ as well. In this regard, we need to observe certain
ground rules on interpretation, concerning the PC Act.
22.There is no gainsaying that nations are built upon trust. It is
inevitable that in a democracy one needs to rely on those with
power and influence and to trust them of being transparent and
fair. There is no doubt that any action which is driven by the self
interest of these powerful individuals, rather than the public
interest, destroys that trust. Where this becomes the norm,
democracy, the economy and the rule of law, all take a beating,
ultimately putting the whole nation at risk. Corrupt societies
often spring from the examples set at the highest levels of
government, but smallscale corruption can be equally insidious.
In this regard, the PC Act was formulated to bring about
transparency and honesty in public life, as indicated by its
objects and reasons. We need to keep the aforesaid legislative
intention in mind while interpreting the provisions of the PC Act.
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23.Learned senior counsel for the appellantState, vehemently
contended that the PC Act, being a welfare legislation, cannot be
narrowly interpreted, and rather, that a broad interpretation
needs to be provided for the same [refer State of Madhya
Pradesh v. M. V. Narasimhan, (1975) 2 SCC 377; M.
Narayanan Nambiar v. State of Kerala , (1963) Supp. (2) SCR
724].
24.The golden rule of interpretation for any penal legislation is to
interpret the same strictly, unless any constitutional
considerations are involved, and in cases of ambiguity, the
benefit of the same should enure in favour of the accused. Having
said so, we need to clarify that strict interpretation does not
necessarily mean literal interpretation in all cases, rather the
interpretation should have regards to the genuine import of the
words, taken in their usual sense [refer Commissioner of
Customs (Import), Mumbai v. Dilip Kumar & Company , (2018)
9 SCC 1].
25.However, we are concerned herein with interpreting the
provisions of the PC Act. There is no dispute that corruption in
India is pervasive. Its impact on the nation is more pronounced,
due to the fact that India is still a developing economy. Presently,
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it can be stated that corruption in India has become an issue
which affects all walks of life. In this context, we must state that
although anticorruption laws are fairly stringent in India, the
percolation and enforcement of the same are sometimes criticized
as being ineffective. Due to this, the constitutional aspirations of
economic and social justice are sacrificed on a daily basis. It is in
the above context that we need to resolve the issues concerned
herein.
26.In Subramanian Swamy v. Manmohan Singh , (2012) 3 SCC
64, this Court observed:
“68. Today, corruption in our country not only
poses a grave danger to the concept of
constitutional governance, it also threatens the
very foundation of Indian democracy and the
Rule of Law. The magnitude of corruption in
our public life is incompatible with the concept
of a socialist, secular democratic republic. It
cannot be disputed that where corruption
begins all rights end. Corruption devalues
human rights, chokes development and
undermines justice, liberty, equality, fraternity
which are the core values in our preambular
vision. Therefore, the duty of the Court is
that any anticorruption law has to be
interpreted and worked out in such a
fashion as to strengthen the fight against
corruption. That is to say in a situation
where two constructions are eminently
reasonable, the Court has to accept the one
that seeks to eradicate corruption to the
one which seeks to perpetuate it.”
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(emphasis supplied)
27.We shall accordingly have due regard to the aforesaid principles
while interpreting the provisions herein. The point of contention
relates to whether a deemed University would be included within
the ambit of the PC Act, particularly under Section 2(c)(xi) of the
same, where the word used is “University”. The learned senior
counsel for the appellantState submits that the word
“University” as used in Section 2(c)(xi) of the Act, must be
purposively interpreted. An institution which is “deemed to be a
University” under the University Grants Commission Act, 1956
[UGC Act] plays the same role in society as a “University”. These
institutions have the common public duty of granting degrees,
which are ultimately qualifications recognized in society. As such,
an institution which is “deemed to be University”, such as the
institution in the present case, is included within the ambit of the
term “University” used under the Act.
28.On the other hand, the learned senior counsel for the
respondent, supporting the decision of the High Court in the
impugned judgment, submits that the term “University” as used
in Section 2(c)(xi) of the PC Act, does not include an institution
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which is “deemed to be a University”. The learned senior counsel
submitted that the inclusive definition of a “University” under the
UGC Act is only for the limited purpose of funding, and an
institution which is “deemed to be a University” is not a
University for any other purpose. The learned senior counsel
submitted that the same is abundantly clear from the provisions
of the UGC Act, which makes a distinction between a
“University”, and an institution “other than a University” which is
“deemed to be a University”.
29.At this juncture, it would be apposite to look to the holding of the
High Court in the impugned judgment on this point:
“27.…However, the fact remains that either as a
trustee or in any other capacity, even if applicant is
connected with Sumandeep Vidyapith, which is not
a regular University getting Government grant in
any manner whatsoever and thereby, when there is
no dispute that it is only a Deemed University, the
submissions recorded herein above on behalf of the
applicant makes it clear that such Deemed
University cannot considered as a regular
University and thereby, applicant cannot be
termed as a public servant and therefore,
irrespective of such change report after the
complaint, it is clear and obvious that applicant
cannot be termed as a public servant.”
(emphasis supplied)
30.The counsel for the respondent has contended that the term
“University” needs to be read in accordance with the Section 2(f),
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3 and 23 of the UGC Act, wherein a “deemed University” is
different from a “University”, stricto sensu. However, we do not
subscribe to such contention for the reasons provided below.
31.The contention of the respondent is that the term “University”
needs to be read in accordance with the UGC Act, wherein only
those Universities covered under the Section 2(f) of the UGC Act
are covered under the PC Act. Such an interpretation, by
importing the technical definition under a different Act may not
be feasible herein. It is a settled law that technical definitions
under one statute should not be imported to another statute
which is not in pari materia with the first. The UGC Act and the
PC Act are enactments which are completely distinct in their
purpose, operation and object. The preamble of the UGC Act
states that it is ‘an Act to make provision for the coordination and
determination of standards in Universities, and for that purpose, to
establish a University Grants Commission’. On the other hand,
the PC Act is an enactment meant to curb the social evil of
corruption in the country. As such, the extension of technical
definitions used under one Act to the other might not be
appropriate, as the two Acts are not in pari materia with one
another.
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32.The above principle of law was recently applied by a 3Judge
Bench of this Court in Bangalore Turf Club Ltd. v. Regional
Director, ESI Corporation, (2014) 9 SCC 657, where an
argument was advanced by counsel that the interpretation of the
term ‘shop’ under the ESI Act should be determined in light of
the definition of the same under the relevant Shops and
Commercial Establishments Act. Negativing this contention of the
counsel, the Court went on to hold that:
“52. An argument raised by the appellants herein is
the issue relating to the “doctrine of pari materia”. It is
contended that since the ESI Act does not define the
term “shop”, the said definition may be ascertained in
the light of the definitions under the relevant Shops
and Commercial Establishments Act as enacted by
the respective State Legislatures, since the purpose
and object of both the enactments are one and the
same.
53. For the above purpose, it would be necessary to
look into the concept of “doctrine of pari materia” and
further ascertain whether the given statutes are in
fact pari materia with the ESI Act. It is settled law
that two statutes are said to be in pari materia with
each other when they deal with the same subject
matter. The rationale behind this rule is based on the
interpretative assumption that words employed in
legislations are used in an identical sense. However,
this assumption is rebuttable by the context of the
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statutes. According to Sutherland in Statutes and
Statutory Construction, Vol. 2, 3rd Edn.:
“Statutes are considered to be in pari
materia to pertain to the same subject
matter when they relate to the same
person or things, or to the same class of
persons or things, or have the same
purpose or object.”
…
58. It can be concluded that though the ESI Act,
the 1948 Act and the 1961 Act deal with labour
and workmen, in essence and spirit they have a
different scope and application. The Acts do not
appear to have any overlap in their fields of
operation and have mutually exclusive schemes.
Therefore, the argument that the Acts are pari
materia with each other, must fail.
59. This Court must also address the issue that
arose in the course of the arguments that the
word “shop” has been used in the impugned
notifications as well as the 1948 Act and the 1961
Act and therefore assistance may be taken from
the latter statutes to interpret the notification.
This argument, in light of the above discussion,
does not appeal to us…”
(emphasis supplied)
It is for the same reasoning that we are of the opinion that the
High Court’s reliance on the judgment of this Court in Orissa
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Lift Irrigation Corporation Ltd. v. Rabi Sankar Patro, (2018)
1 SCC 468 was not appropriate, as the same was with reference
to enactments relating to administration/regulation of
universities, and is unconnected with the objects of the PC Act.
33.This brings us to the conclusion that purport of UGC Act cannot
be borrowed under the PC Act, and that an independent meaning
needs to be provided for the term “University” as occurring under
the PC Act. In India, there are 12,206 Universities under Section
2(f) and 12B of the UGC Act, as of 31.07.2019. While there are
about 124 deemed universities across India, as of 23.06.2008.
The education sector in India has seen a general rise. There is no
dispute that the education sector, which is a very important
service sector in the country, has seen various scandals. In this
context, we need to understand whether a deemed university
would be covered within the ambit of the Section 2(c)(xi) of the PC
Act.
34.On a perusal of Section 2(c) of the PC Act, we may observe that
the emphasis is not on the position held by an individual, rather,
it is on the public duty performed by him/her. In this regard, the
legislative intention was to not provide an exhaustive list of
authorities which are covered, rather a general definition of
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‘public servant’ is provided thereunder. This provides an
important internal evidence as to the definition of the term
“University”.
35.The use of ‘any’ is critical in our understanding as to the term
University. We are aware of the line of authorities, wherein this
Court has reduced the impact of term ‘any’ to not mean ‘every’
[See Hira Devi v. District Board, Shahjahanpur , (1952) S.C.R.
1122]. However, we cannot accept such a view as the context in
which the present dispute emanates, differs from the above.
36.Our attention was also drawn to the notes on clauses of
Prevention of Corruption Bill dated 20.02.1987. Clause 2 of the
Notes on Clauses in the Gazette of India, Extraordinary, Part II,
Section 2, clarifies the legislative intent, wherein it was
commented as under:
“2. This clause defines the expressions used in the
Bill. Clause 2(c) defines ‘public servant’. In the
existing definition the emphasis is on the
authority employing and the authority
remunerating. In the proposed definition the
emphasis is on public duty. The definition of
‘election’ is based on the definition of this expression
in the Penal Code, 1860.”
(emphasis supplied)
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37.Additionally our attention is drawn to the legislative debates
which took place prior to the enactment of the PC Act. It was
uniform across the party line that the purpose of preventing
corruption in educational institutions was emphasised.
38.Coming to external aids of interpretation, the word “University” is
etymologically derived from the Latin, universitas magistrorum et
scholarium, which roughly means "community of teachers and
scholars". Black’s Law dictionary defines “University” as:
“An institution of higher learning, consisting of an
assemblage of colleges united under one corporate
organization and government, affording instruction in
the arts and sciences and the learned professions.
and conferring degrees. See Com. v. Banks, 198 Pa.
397. 48 Atl. 277.”
39.Law Lexicon, defines the same as:
“A corporation of teachers or assemblage of learned
men or colleges for teaching the higher branches of
learning: ;and having power to confer degrees.
University. A place where all kinds of literature are
universally taught. (Tomlin’s Law Dic.) See also Act
VIII of 1904, S.2, Cl. (2)(c).
A University, of normal type, may be described in
popular language as an organization of teachers and
learners, settled in a fixed locality, for the purpose of
nature study, in which the body of teachers has
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authority to attest the proficiency of the learners, by
bestowing upon them titles, signifying that they also
possess the qualifications and are admitted to the
rank of those that are learned in the particular
branch of knowledge in which they are taught.
The term ‘University’ is usually understood to mean a
body incorporated for the purpose of learning, with
various endowments and privileges. Such bodies were
anciently founded by papal bull or charter, later by
royal charter or act of Parliament. University is a
corporation aggregateAggregation of corporations
The corporations are usually colleges or schools.”
40.Third Edition of Halsbury's, Volume 13, page 707, at para 1441
deals with the term “Universities”. According to the same:
“The word "university is not a word of art and,
although the institutions to which it refers are readily
identifiable, precise definition is difficult. The
essential features of a university seems to be that it
was incorporated as such by the sovereign power.
Other attributes of a university appear to be the
admission of students from all parts of the world, a
plurality of masters, the teaching of one at least of
the higher faculties, namely theology, law or
philosophy, which in some definitions are regarded as
identical, and medicine, provision for residence, and
the right to confer degrees, but possession of these
attributes will not make an institution a university in
the absence of any express intention of the sovereign
power to make it one.
Incorporation was anciently affected by papal bull or
charter later by royal charter or Act of Parliament.”
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41.In Words and Phrases, Permanent Edn. (West Publishing
Company), the word “Universities” is defined as follows:
“Universities:
Bodies politic and corporate have "been known to
exist as Far back at last as the time of Cicero, and
Gaius traces them even to the laws of Solon of
Athens, who lived some 500 years before…. And from
time immemorial, as at the present day, this privilege
of being a corporation or artificial body of individuals,
with power of holding their property, rights, and
immunities in common as a legally organized body
and of transmitting the same in such body by an
artificial succession different from the natural
succession of the property of individuals has been
considered a franchise which could not be lawfully
assumed by any associated body without a special
authority for that purpose from the government or
sovereign power."
42.Under the UGC Act, University is defined and recognized under
Section 2(f) in the following manner:
“University” means a University established or
incorporated by or under a Central Act, a Provincial
Act or a State Act, and includes any such institution
as may, in consultation with the University
concerned, be recoginsed by the Commission in
accordance with the regulations made in this behalf
under this Act.
43.A ‘deemed to be University’ is recognized under Section 3 of the
UGC Act, in the following manner:
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Application of Act to institutions for higher
studies other than Universities
3. The Central Government may, on the advice of the
Commission, declare by notification in the Official
Gazette, that any institution for higher education,
other than a University, shall be deemed to be a
University for the purposes of this Act, and on such a
declaration being made, all the provisions of this Act
shall apply to such institution as if it were a
University within the meaning of clause (f) of section
2.
44.As discussed earlier, the object of the PC Act was not only to
prevent the social evil of bribery and corruption, but also to make
the same applicable to individuals who might conventionally not
be considered public servants. The purpose under the PC Act was
to shift focus from those who are traditionally called public
officials, to those individuals who perform public duties. Keeping
the same in mind, as rightly submitted by the learned senior
counsel for the appellantState, it cannot be stated that a
“Deemed University” and the officials therein, perform any less or
any different a public duty, than those performed by a University
simpliciter, and the officials therein.
45.Therefore, for all the above reasons, we are of the opinion that
the High Court was incorrect in holding that a “Deemed
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University” is excluded from the ambit of the term “University”
under Section 2(c)(xi) of the PC Act.
46.Having come to the above conclusion, in the present case, the
pivotal question is whether the appellanttrustee in the Board of
‘Deemed to be University’ is a ‘public servant’ covered under
Section 2(c) of the PC Act. Recently, this Court in the case of CBI
v. Ramesh Gelli, (2016) 3 SCC 788, dealt with the question as to
whether Chairman, Directors and officers of a private bank before
its amalgamation with a public sector bank, can be classified as
public servants for prosecution under the PC Act. While dealing
with the aforesaid proposition of law, the Court analysed the
purpose and scope of the PC Act and made the following
observations:
“15. From the Statement of Objects and Reasons of
the PC Bill it is clear that the Act was intended to
make the anticorruption law more effective by
widening its coverage. It is also clear that the Bill
was introduced to widen the scope of the
definition of “public servant”. Before the PC Act,
1988, it was the Prevention of Corruption Act, 1947
and Sections 161 to 165A in Chapter IX IPC which
were governing the field of law relating to prevention
of corruption. Parliament repealed the Prevention of
Corruption Act, 1947 and also omitted Sections 161
to 165A IPC as provided under Sections 30 and 31 of
the PC Act, 1988. Since a new definition of “public
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servant” is given under the PC Act, 1988, it is not
necessary here to reproduce the definition of “public
servant” given in Section 21 IPC.
…
17. The above definition shows that under sub
clause (viii) contained in Section 2(c) of the PC
Act, 1988, a person who holds an office by virtue
of which he is authorised or required to perform
any public duty, is a public servant. Now, for the
purposes of the present case this Court is required to
examine as to whether the Chairman/Managing
Director or Executive Director of a private bank
operating under licence issued by RBI under the
Banking Regulation Act, 1949, held/holds an office
and performed/performs public duty so as to attract
the definition of “public servant” quoted above.”
(emphasis supplied)
47.This Court in the case of P.V. Narasimha Rao v. State
(CBI/SPE), (1998) 4 SCC 626, has clarified the word “office” in the
following manner:
“61. … The word ‘office’ is normally understood to
mean ‘a position to which certain duties are attached,
especially a place of trust, authority or service under
constituted authority’. (See Oxford Shorter English
Dictionary, 3rd Edn., p. 1362.) In McMillan v. Guest,
(1942) 1 All ER 606 (HL), Lord Wright has said:
‘…The word “office” is of indefinite
content. Its various meanings cover four
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columns of the New English Dictionary,
but I take as the most relevant for
purposes of this case the following:
“A position or place to which
certain duties are attached,
especially one of a more or less
public character.”’
In the same case Lord Atkin gave the following
meaning:
‘…“an office or employment which was
subsisting, permanent, substantive
position, which had an existence
independent of the person who filled it,
which went on and was filled in
succession by successive holders.”’
In Statesman (P) Ltd. v. H.R. Deb, AIR 1968 SC 1495
and Mahadeo v. Shantibhai, (1969) 2 SCR 422 this
Court has adopted the meaning given by Lord Wright
when it said:
‘An office means no more than a position
to which certain duties are attached.’”
48.This Court in the case of Manish Trivedi v. State of Rajasthan,
(2014) 14 SCC 420 further elucidated upon the ambit of the
phrase “public servant” by stressing upon the relevance of
“office”, wherein the emphasis was upon the duties performed.
The Court noted therein:
“19. The present Act (the 1988 Act) envisages
widening of the scope of the definition of the
expression “public servant”. It was brought in force to
purify public administration. The legislature has used
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a comprehensive definition of “public servant” to
achieve the purpose of punishing and curbing
corruption among public servants. Hence, it would be
inappropriate to limit the contents of the definition
clause by a construction which would be against the
spirit of the statute. Bearing in mind this principle,
when we consider the case of the appellant, we have
no doubt that he is a public servant within the
meaning of Section 2(c) of the Act. Clause (viii) of
Section 2(c) of the present Act makes any person,
who holds an office by virtue of which he is
authorised or required to perform any public duty,
to be a public servant. The word “office” is of
indefinite connotation and, in the present context,
it would mean a position or place to which certain
duties are attached and has an existence which is
independent of the persons who fill it.”
(emphasis supplied)
49.In order to appreciate the amplitude of the word “public servant”,
the relevance of the term “public duty” cannot be disregarded.
“Public duty” is defined under Section 2(b) of the PC Act, which is
reproduced below:
2(b) ‘public duty’ means a duty in the discharge of
which the State, the public or the community at large
has an interest.
50.Evidently, the language of Section 2(b) of the PC Act indicates
that any duty discharged wherein State, the public or community
at large has any interest is called a public duty. The first
explanation to Section 2 further clarifies that any person who
falls in any of the categories stated under Section 2 is a public
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servant whether or not appointed by the government. The second
explanation further expands the ambit to include every person
who de facto discharges the functions of a public servant, and
that he should not be prevented from being brought under the
ambit of public servant due to any legal infirmities or
technicalities.
51.In the present case, on a primafacie evaluation of the statements
of the Gaurav D. Mehta (the ViceChancellor); Mr.
Pragneshkumar Rameshbhai Trivedi (account officer of
Sumandeep Vidhyapith University) and other witnesses it
appears that the present respondent was the final authority with
regard to the grant of admission, collection of fees and donation
amount.
52.The charge sheet specifically discloses that the respondent
allegedly was collecting certain extra amount over the prescribed
fees on the pretext of allowing the students to fill up their
examination forms. Therefore, paying the respondent the alleged
amount was a condition precedent before filling up the forms, to
appear for the examinations. Specifically, in the complaint, it was
alleged that the respondent had demanded an amount of Rupees
Twenty Lakhs to be paid to the coaccused Bharat Savant, failing
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which the daughter of the complainant would not have been
permitted to appear in the examination. In our opinion, the fact
that there were a large number of cheques which were found
during the raid is more than sufficient to establish a grave
suspicion as to the commission of the alleged offence.
53.The respondent has vehemently stressed upon the fact that he is
admittedly a trustee of the “Sumandeep Charitable Trust” and
has no connection with the “Sumandeep University”. But, it
ought to be noted that the courts below have failed to analyze the
connection between the trust and the University, as well as the
relationship of the respondent with the university. Prima facie, a
grave suspicion is made out that the respondent was rendering
his service by dealing with the students and the examination
aspect of the University. But a detailed appreciation of evidence
is called for before one can reach a conclusion as to the exact
position of the respondent vis
àvis the University.
54.At this stage, we may note that the jurisdiction of this Court, with
regards to Section 227 of CrPC, is limited and should not be
excercised by conducting roving enquiries on the aspect of factual
inferences. This Court, in Union of India Vs. Prafulla Kumar
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Samal, 1979 (3) SCC 4, had an occasion to consider the scope of
Section 227 CrPC and it held as under:
“7. Section 227 of the Code runs thus:
“If, upon consideration of the record of
the case and the documents submitted
therewith, and after hearing the
submissions of the accused and the
prosecution in this behalf, the Judge
considers that there is not
sufficient ground for proceeding against
the accused, he shall discharge the
accused and record his reasons for
so doing.”
The words “not sufficient ground for proceeding
against the accused” clearly show that the Judge is
not a mere post office to frame the charge at the
behest of the prosecution, but has to exercise his
judicial mind to the facts of the case in order to
determine whether a case for trial has been made out
by the prosecution. In assessing this fact, it is not
necessary for the court to enter into the pros and cons
of the matter or into a weighing and balancing of
evidence and probabilities which is really his function
after the trial starts. At the stage of Section 227, the
Judge has merely to sift the evidence in order to find
out whether or not there is sufficient ground for
proceeding against the accused. The sufficiency of
ground would take within its fold the nature of the
evidence recorded by the police or the documents
produced before the court which ex facie disclose
that there are suspicious circumstances against
the accused so as to frame a charge against him.”
55.Further, in Sajjan Kumar v. Central Bureau of Investigation,
2010 (9) SCC 368, this Court, inter alia, observed :
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“21. On consideration of the authorities about the
scope of Sections 227 and 228 of the Code, the
following principles emerge:
…
(ii) 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…”
56.Therefore, in line with the aforesaid proposition, this case is not
an appropriate one to have exercised the power under Section
227 to discharge the accusedrespondent herein, having regards
to the facts and circumstances of the case. However, it should be
noted that this judgment is rendered for a limited purpose, and
we have not expressed any opinion on the merits of the case. The
trial court is directed to proceed with the case expeditiously.
57.Accordingly, the impugned judgment of the High Court is set
aside. Appeal is allowed.
……….........................J.
(N.V.Ramana)
……….........................J.
(Mohan M. Shantanagoudar)
NEW DELHI;
April 27, 2020.
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 989 OF 2018
STATE OF GUJARAT ….APPELLANT(S)
VERSUS
MANSUKHBHAI KANJIBHAI SHAH ….RESPONDENT(S)
J U D G M E N T
Ajay Rastogi, J.
1.I have had the advantage of going through the draft
judgment proposed by my esteemed Brother Mr. Justice N.V.
Ramana. I entirely agree with the conclusions which my erudite
Brother has drawn, based on the remarkable process of
reasoning. I would all the same like to add some of my views, not
because the judgment requires any further elaboration but
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looking for the question of law that emerged of considerable
importance.
2.The question that emerged for consideration in the present
appeal is whether the respondenttrustee in the board of ‘deemed
to be university’ is a ‘public servant’ covered under Section 2(c )
(xi) of the Prevention of Corruption Act, 1988(hereinafter being
referred to as “Act 1988”).
3.Zero tolerance towards corruption should be the topnotch
priority for ensuring system based and policy driven, transparent
and responsive governance. Corruption cannot be annihilated
but strategically be dwindled by reducing monopoly and enabling
transparency in decision making. However, fortification of social
and moral fabric must be an integral component of longterm
policy for nation building to accomplish corruption free society.
4.The Prevention of Corruption Act, 1947 was amended in
1964 based on the recommendations of the Santhanam
Committee. Although, there are provisions in Chapter IX of the
Indian Penal Code to deal with public servants and those who
abet them by way of criminal misconduct, they were found to be
inadequate to deal with the offence of corruption effectively.
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5.To make the anticorruption laws more effective, the
Prevention of Corruption Bill was introduced in the Parliament.
The object and statement of reasons of the Act, 1988 was
intended to make the existing anticorruption laws more effective
by widening their coverage and by strengthening the provisions.
The Act 1988 caters to its wide scope by providing for “different
paths to liability, some of which are especially suited to, but by
no means confined to, those who hold public office.”
6.There are number of judicial precedents dealing with the
definition and meaning of corruption. The simplest definition of
corruption is, any act or omission by a public servant for
securing pecuniary or other material advantage directly or
indirectly for himself, his family or friends. It will be apposite to
refer the provisions of the Act, 1988 relevant for the purpose ad
infra:
(c) “public servant” means—
(i)(x)…..
(xi) any person who is a ViceChancellor or member of any
governing body, professor, reader, lecturer or any their teacher
or employee, by whatever designation called, of any
University and any person whose services have been availed of
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34
by a University or any other public authority in connection with
holding or conducting examinations;
(xii)…”
(Emphasis supplied)
7.It will be relevant to note that prior to the Act, 1988,
employees of the university, professors, readers, etc. were not
covered within the definition of ‘public servant’ as it was
contained in Section 21 of the Indian Penal Code. Thrust of
submission of the learned counsel for the respondent is that
respondent herein who is a trustee of deemed to be university
which cannot by any stretch of imagination be construed to be a
public servant and would not fall within the ambit of Section 2(c )
(xi) of the Act, 1988. The High Court although has accepted the
contention of the learned counsel for the respondent on the said
premise but it needs to be examined in the context in which the
term “University” has been referred to under Section 2(c )(xi) of
the Act, 1988.
8.The UGC Act was established by an Act of 1956 to make
provisions for the coordination and determination of standards of
education in universities. “University” has been defined under
Section 2(f) of the UGC Act and those who are declared as
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‘deemed to be university’, a declaration has to be notified under
Section 3 with restrictions which has been imposed upon the
deemed to be university as referred to under Section 23 of the
UGC Act. The relevant Sections of the UGC Act are as infra:
“Section 2(f) – “University” means a University established or
incorporated by or under a Central Act, a Provincial Act or a
State Act, and includes any such institution as may, in
consultation with the University concerned, be recognized by the
Commission in accordance with the regulations made in this
behalf under this Act.
Section 3 The Central Government may, on the advice of the
Commission, declare by notification in the Official Gazette, that
any institution for higher education, other than a University,
shall be deemed to be a University for the purposes of this Act,
and on such a declaration being made, all the provisions of this
Act shall apply to such institution as if it were a University
within the meaning of clause (f) of Section 2.
Section 23 – No institution, whether a corporate body or not,
other than a University established or incorporated by or under a
Central Act, a Provincial Act or a State Act shall be entitled to
have the word “University” associated with its name in any
manner whatsoever. Provided that nothing in this Section shall,
for a period of two years from the commencement of this Act,
apply to an institution which, immediately before such
commencement, had the word “University” associated with its
name.”
9.“University” under Section 2(f) of the UGC Act is established
either in the Central Act, a Provincial Act or a State Act. At the
same time, such of the institutions for higher education other
than the University created under the statutory enactment, after
being declared by the Central Government by notification in the
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Official Gazette, shall be deemed to be university for the purposes
of this Act and all provisions of the UGC Act shall apply to such
institutions as if it were a university within the meaning of clause
(f) of Section 2 of the Act.
10.It cannot be lost sight of that the Act, 1988, as its
predecessor that is the repealed Act of 1947 on the same subject,
was brought into force with avowed purpose of effective
prevention of bribery and corruption. The Act of 1988 which
repeals and replaces the Act of 1947 contains a definition of
‘public servant’ with vide spectrum in clause (c ) of Section 2 of
the Act, 1988, so as to purify public administration. The objects
and reasons contained in the Bill leading to passing of the Act
can be taken assistance of, which gives the background in which
the legislation was enacted. When the legislature has introduced
such a comprehensive definition of “public servant” to achieve the
purpose of punishing and curbing the growing menace of
corruption in the society imparting public duty, it would be
apposite not to limit the contents of the definition clause by
construction which would be against the spirit of the statute.
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11.By introduction of Section 2(c )(xi) of the Act, 1988, any
person or member of any governing body with whatever
designation called of any university has been included in the
definition of “public servant” and any university includes all
universities regardless of the fact whether it has been established
under the statute or declared deemed to be university under
Section 3 of the UGC Act. It is true that the distinction has been
pointed out by the Parliament under the provisions of the UGC
Act for consideration and determination of standards of
education in universities, but in my view, no distinction could be
carved out between the university and deemed to be university so
far it relates to the term ‘public servant’ as defined under Section
2(c ) (xi) of the Act 1988.
12.In construing the definition of ‘public servant’ in clause (c )
of Section 2 of the Act 1988, the Court is required to adopt an
approach as would give effect to the intention of the legislature.
The legislature has, intentionally, while extensively defining the
term ‘public servant’ in clause (c ) of Section 2 of the Act and
clause (xi) in particular has specifically intended to explore the
word ‘any’ which includes all persons who are directly or
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indirectly actively participating in managing the affairs of any
university in any manner or the form. In this context, the
legislature has taken note of ‘any’ person or member of “any”
governing body by whatever designation called of “any” university
to be termed as ‘public servant’ for the purposes of invoking the
provisions of Act 1988.
13.Heavy reliance was placed on the judgment in Orissa Lift
Irrigation Corporation Vs. Rabi Sankar
1
wherein, the scope
and parameters were examined by this Court under which the
deemed to be university would regulate its educational fora under
the regulations framed by the UGC for the purpose of imparting
education by the deemed to be university.
14.But so far as the present case is concerned, the question for
consideration is the term ‘any’ university in the broader spectrum
to curb corruption in the educational institutions as referred to
under Section 2(c )(xi) of Act 1988 and the legislature in its
wisdom has referred to the word “any university” which clearly
mandates the university referred to and controlled by its
statutory mechanism referred to under Section 2(f) and deemed
to be university under Section 3 of the UGC Act.
1 2018(1) SCC 468
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15.In my considered opinion, the view expressed by the High
Court is unsustainable in law and all the questions raised on
merits are left open to the respondent to urge during the course
of the trial. The appeal is accordingly allowed. The judgment of
the High Court of Gujarat dated 2
nd
February 2018 is hereby set
aside. No costs.
…………………………………… J.
(AJAY RASTOGI)
NEW DELHI
APRIL 27, 2020
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