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High Court of Judicature at Bombay
REVATI MOHITE DERE, J.
Shailesh Ramanlal Mahimtura
Versus
The State of Maharashtra
Criminal Application No. 267 of 2014
Decided On : 12-09-2014
Prevention of Corruption Act, 1988 - Section 2(c)(viii) Criminal Procedure Code, 1973, Section 482 "Public servant". Since applicant, a Structural Engineer, appointed under a Notification not flowing from a statute, is not a "public servant" hence criminal proceeding against him quashed. In the present case, the appointment of the applicant is not under any statute, but pursuant to a GR which was issued on a recommendation of a study group, that a Technical Committee be appointed to scrutinize development proposal of all buildings having height more than 70 mtrs and that experts from various fields be appointed on such Committees. The applicant’s appointment on the said Committee was made, keeping in mind his expertise in his field as a Structural Engineer, specifically for a period of three years. The applicant’s role as a non-official-member of the Committee was purely advisory and recommendatory and that the Municipal Commissioner was under no obligation to accept the recommendation and if required, the Commissioner could override the said recommendations of the Technical Committee. Similarly, the honorarium that was being paid to the applicant for every meeting did not come from the Government but came from the scrutiny charges, which were deposited by architects, builders, etc. in a separate fund i.e. the Scrutiny fund maintained by the Municipal Commissioner’s Office.
The applicant was to receive honorarium contingent on the number of meetings, he attended and the site visits and not monthly. The honorarium to be paid to the Chairman was Rs. 15,000/- per month and Rs. 3,500/- for each meeting to the non-Government officials, like the applicant. The honorarium to be paid to the non-official members of the Committee was to be decided by the Commissioner. Clearly, in the facts, the applicant cannot be said to have been holding an office or be said to be in the employment of the Government.
There was no permanency attached to the applicant’s job, as the appointment was only for a period of 3 years. Although, there may be in a sense, public duty attached to the job assigned to the applicant who was appointed as a non-official-member of the Technical Committee, but merely because he was performing a public duty does not make him ipso facto a public servant. Unlike a private person appointed as a member of a Regional Board or Planning Authority or Divisional Authority, as discussed hereinabove, who, under the Statute becomes a ’public servant’, the ’applicant’ appointed under a notification, which does not flow from a statute, cannot be held to be a ’public servant’. It cannot be said that the applicant was ’holding an office’ and consequently that he is a ’public servant’, within the meaning of Section 2(c)(viii) of the PC Act. Thus, the cognizance taken by the Judge, is wholly without jurisdiction.
1. Rule. Rule made returnable forthwith with the consent of the parties and taken up for final disposal.
2. By this application, the applicant has impugned the order dated 17th January, 2014 passed by the learned Special Judge (Prevention of Corruption Act), Mumbai in Special Case No. 90/2010, by which the applicant's application seeking quashing of the criminal proceedings, instituted against him under the Prevention of Corruption Act, 1988 ('PC Act'), came to be rejected.
3. The short question that arises for determination in the present petition is, whether the applicant can be termed as a 'public servant' within the meaning of Section 2(c)(viii) of the Prevention of Corruption Act (hereinafter referred to as the 'PC' Act), in the facts of the present case.
4. The applicant is stated to be a highly qualified and renowned Structural Engineer with expertise of three decades in the said field. He is also stated to have been professionally trained in space analysis and finite element analysis and to have completed an intensive course in project management in conservation repairs targeted towards restoration of heritage structures. It is stated that he is running a company by the name M/s. Mahimtura Consultants Pvt. Ltd., of which he is the Managing Director and that the said company is providing consultancy services throughout India. It is not in dispute, that considering the applicant's expertise in his field, as a structural engineer, the applicant was appointed on a Committee constituted by the Government of Maharashtra i.e. the High Rise Committee pursuant to a Government Resolution ('GR') of 2007. It is not in dispute that, as a member of the said High Rise Committee, a complaint came to be filed by one, Pankaj Goshar as against the applicant with the Anti Corruption Bureau, Worli, Mumbai. It is also not in dispute, that pursuant to the complaint, the Anti Corruption Bureau registered a case as against the applicant alleging offences punishable under Sections 7, 12, 13(c)(d) r/w Section 13(2) of the PC Act and that after investigation, filed a charge-sheet as against the applicant.
5. A few facts as are necessary to decide the present controversy are as under :
In the year 2004 i.e. on 28th July, 2004 for the first time, the Government of Maharashtra issued a Government Resolution for the purpose of constituting a Technical Committee to scrutinise development proposals of all the buildings, having height more than 70 meters and that experts in the field of structural engineering, soil mechanics, architecture, environmental engineering came to be included as members of the Technical Committee. Accordingly, the Technical Committee was appointed by a Government Resolution under the Chairmanship of a retired Judge i.e. the former Chief Justice of the Tamil Nadu High Court. In the said Technical Committee, four members came to be appointed by names and two members came to be appointed by virtue of their office. The tenure of the said Committee was for three years and which was to be reconstituted thereafter. The terms of the said Committee were advisory in nature and it was open for the Municipal Commissioner to overrule the said recommendations of the Committee. The present applicant was not a member of the Technical Committee which was appointed in the year 2004. After three years, the Government of Maharashtra vide GR dated 27th July, 2007 reconstituted a new Technical Committee as the term of the earlier Committee was to expire on 28th July, 2007. In the newly appointed Technical Committee, one former High Court Judge was appointed as its Chairman and the present applicant was appointed as a member by name along with four other persons. As far as the non-official members of the Committee were concerned, i.e. the Chairman and the applicant, they were to receive an honorarium as would be decided by the Commissioner. The said Committee was appointed for a period of three years i.e. from 28th July, 2007 to 28th July, 2
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