Judgment

FAZAL ALI, J.:- This appeal by Certificate Under Art. 134 of the Constitution of India arises out of a judgment dated 3/6-9-76 of the Bombay High Court affirming the conviction and sentence of the appellant imposed by the trial Court

2. The short point on which certificate was granted and the case has been argued by both the parties falls within a very narrow compass. The appellant, who was a Municipal Councillor, was prosecuted under Section 161 of the Indian Penal Code and S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act (hereinafter referred to as the Act). The High Court, after holding that sanction by the competent authority to prosecute the appellant was valid, confirmed his conviction and sentence. Hence, this appeal.

3. The counsel for the appellant argued that as a Municipal Councillor was not a public servant within the meaning of S. 21 of the IPC, he could not be prosecuted under the Act even if sanction for his prosecution was obtained. The High Court, however, negatived this contention and held that a Municipal Councillor was undoubtedly a public servant and affirmed the conviction of the appellant.

4. The only point for consideration in this appeal before us is whether or not a Municipal Councillor who was not assisting any public servant is a public servant within the meaning of S. 21 of the IPC. It is not necessary for us to go into further details as the matter, is no longer res integra and is covered by a recent decision of this Court in the case of R. S. Nayak v. A. R. Antulay AIR 1984 SC 684 : (1984 Cri LJ 613) where this Court made the following observations :

"Whatever that may be, the conclusion is inescapable that fill 1964 at any rate M.L.A. was not comprehended in the definition of public servant in S. 21. And the Santhanam Committee did not recommend its inclusion in the definition of public servant in Section 21 .............Now if prior to the enactment of Act 40 of 1964 M.L.A. was not comprehended as a public servant in S. 21, the next question is : did the amendment make any difference in his position. The amendment keeps the law virtually unaltered. Last part of Clause 9 was enacted as Clause 12(a). If M.L.A. was not comprehended in Clause 9 before its amendment and dissection, it would make no difference in the meaning of law if a portion of Clause 9 is reenacted as Cl. 12(a). It must follow as a necessary corollary that the amendment of Cls. (9) and (12) by Amending Act 40 of 1964 did not bring about any change in the interpretation of Cl. (9) and Cl. (12)(a) after the amendment of 1964.

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Therefore, apart from anything else, on historical evolution of Section 21, adopted as an external aid to construction, one can confidently say that M.L.A. was not and is not public servant within the meaning of the expression in any of the clauses of Section 21, IPC." (Emphasis ours)

5. In view of this decision, therefore, we need not go to the other authorities on the subject. Even so, we are of the opinion that the concept of a public servant is quite different from that of a Municipal Councillor. A public servant is an authority who must be appointed by Government or a semi-governmental body and should be in the pay or salary of the same. Secondly, a public servant is to discharge his duties in accordance with the rules and regulations made by the Government. On the other hand, a Municipal Councillor 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 a MLA gets allowance by way of honorarium does not convert his status into that of a public servant. In Antulays case (supra), the learned Judges of the Constitution Bench have referred to the entire history and evolution of the concept of a public servant as contemplated by S. 21 of the IPC.

6. In these circumstances, we hold that the appellant, not being a public servant, could not be pros