By this Revision, the applicant has challenged the validity, legality, propriety and correctness of the impugned judgment and order dated 4.7.2007 passed by learned Additional Sessions Judge, Darvah District Yavatmal in Criminal Appeal No.3/2004 (old No.15/1997) whereby the conviction of the revision applicant for offence punishable under section 332 of the Indian Penal Code ( in short “IPC”) awarded by the trial Court , was confirmed.

2. Briefly stated, it is the prosecution case that first informant one Shri Gahankari informed Jawala outpost of Arni Police Station that while he was working as Invigilator in Gurudeo Vidya Mandir, Jawala in Room No.4A of the School for written examination in the subject of History of XII standard held during the period between 3.00 and 6.00 p.m., the accused Sunil Chavan who was appearing in the said examination, was caught with chits, papers and guide. While the Invigilator was trying to take the same from the accused, the accused gave fist blow on the nose of the Invigilator. In the result spectacle worn by the invigilator fell down on the ground and bleeding from the nose of the Invigilator followed. It is further alleged that accused had also assaulted the Invigilator on his chest. Thus, after the incident was reported, head Constable Pathan investigated into the crime, referred the Invigilator for medical examination, recorded statements of witnesses concerned and upon completion of the investigation, the accused was chargesheeted before the Judicial Magistrate, First Class, Digras. The accused was charged with accusations punishable under sections 332, 353 and 186 of the IPC. He pleaded not guilty and claimed to be tried. The prosecution led as many as five witnesses in order to prove that the accused had caused hurt to Invigilator. It is also prosecution case that said first informant Shri Gahankari was a “public servant” and discharging his duty as such. The case of the prosecution was sought to be defended on the ground that the scuffle had taken place between Shri Gahankari and the accused and that there was no evidence of alleged possession of papers or guide for copying. It is also pleaded in defence that at the relevant time, the first informant Shri Gahankari was not a public servant within the meaning of Section 21 of the IPC but was wrongly convicted u/s 332 of the IPC by the Courts below.

3. Mr C N Adgokar, learned APP submitted that first informant Shri Gahankari was a Invigilator/teacher working in Zilla Parishad High School, Loni and working as Invigilator at the relevant point of time. Therefore, he is a public servant within the meaning of section 21 Clause twelfthly as according to learned APP, he was in the service or pay of the government or remunerated by the fees or the commission for the performance of public duty by the Government. However, it could not be disputed before me that the remuneration of Invigilator was paid by Maharashtra State Board of Secondary and Higher Secondary Education and not by the Government.

4. Learned Advocate for the revisionapplicant submitted that there was no evidence whatsoever to prove the prosecution case that first informant was acting as a 'public servant' at the relevant time and was paid by the Government as such. Therefore, it is contended that the first informant Shri Gahankari could not have been considered within the scope of definition of the term “public servant “ as defined in section 21 of the IPC, more so when evidence of the prosecution is stonesilent on this point.

5. It is true that Section 21 of the IPC contains number of clauses Nos. (2) to (12) which includes every Commissioned Officer in the Military ( Naval or Air) Forces; every Judge including any person empowered by law to discharge, whether by himself or as a member ofany body of persons, any adjudicatory functions; every Officer of a Court of Justice ( including a liquidator, receiver or commissioner) whose duty it is, as such officer, to invest