The central legal point established in the judgment is that private medical practitioners under the E.S.I. Scheme are not considered public servants within the meaning of the relevant legal provisions, and therefore cannot be prosecuted under the Prevention of Corruption Act.

JUDGMENT - B.H. MARLAPALLE, J.:---This is an appeal against the order of acquittal passed by the learned Special Judge, in Special Case No. 37/82, wherein, the accused was charged with an offence punishable under section 161 of the I.P.C. and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act for short).

2. The prosecution case unfolds thus :---

The accused Dr. Rustom Franroze Hakim, was a registered medical practitioner with his dispensary at Lemington Road, Bombay-7 and he was a panel doctor under the Employees State Insurance Scheme (E.S.I. Scheme for short). He was an Insurance Medical Officer as defined under Rule 2(n) of the Employees State Insurance (General) Regulations, 1950. The complainant Shashikant was an insured person covered under the E.S.I. Scheme and he had registered his card with the accused. The complainant was entitled to free medical treatment and for the reimbursement of medical benefits. It was alleged that on 27-2-82 the complainant went to the dispensary of the accused as he was not feeling well, the accused examined him and gave an injection and charged Rs. 8/- for his treatment. The complaint again went to him on 1-3-1982 and he was treated and charged Rs. 14/- as medical fees. In a similar manner the accused treated the complainant on 3-3-1982 and 4-3-1982 and charged Rs. 15/- and Rs. 12/- respectively as his fees. The complainant went to the Anti Corruption Bureau on 19-1-1983 and lodged a report against the accused. Consequently a trap was arranged for the accused on 6-3-1982. The complainant went to the dispensary of the accused, where he was treated by the accused and when accused demanded Rs. 14/- for the treatment, the complaint handed over a currency note of Rs. 20/- to which anthracene powder was applied. The raiding party entered the dispensary of the accused after the complainant gave the agreed signal and the currency note of Rs. 20/- was recovered from a lady to whom the accused had given the note for change. The said lady was accused No. 2, who was subsequently discharged by the Special Court. Traces of anthracene powder were found on the hand of the accused. The police completed the investigation and filed the charge-sheet against the accused after the necessary sanction was received from the Director, E.S.I. Scheme, Bombay, for the prosecution of the accused.

3. During the course of trial the learned Special Judge, framed in all 8 issues for his determinations. Issues Nos. 6 and 7 read thus:---

"6. Did he accept the aforesaid amount as a gratification other than legal remuneration as a reward for giving medical treatment in the exercise of his official functioning as a public servant?

7. Did he accept Rs. 14/- from the complainant on 6-3-1982 by corrupt or illegal means or by otherwise abusing his position as a public servant?"

4. On examining the evidence and on taking into consideration the rival submissions made before him, the learned Special Judge decided the issue as to whether the accused was a public servant within the meaning of section 21 of the I.P.C. The learned Special Judge held that though the Insurance Medical Officers are paid by the Corporation for treating the insured persons who had registered their cards in their dispensaries, it could not be said that such accused were performing any public duty for the Government and that the payment by way of fees paid to the insurance medical officers was not out of the Government revenue but out of a special fund consisting of the contributions made by the employees. The learned Special Judge concluded that it could not be held that the insurance medical officers were paid fees or commission by the Government for the performance of a public duty.

5. We are therefore, required to decide the only question as to whether private medical practitioners who are enrolled as panel doctors under the E.S.I. Scheme and are called as insurance medical officers are p

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