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2019 Supreme(Bom) 1939
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRAKASH D. NAIK, J.
Anup Kumar Gond – Appellant
Versus
Central Bureau of Investigation – Respondent
Writ Petition No.4306 of 2014, Criminal Revision Application No. 332, 333 of 2013
Decided on : 08-07-2019
Advocate Appeared:
Mr. Niteen Pradhan with Siddharth Sharma, Mr. H.S. Venegaonkar with A.L. Bhise, Mr. Jahangir Khajotia, Mrs. M.R. Tidke, Adv
Headnote:
Constitution of India, 1950 - Articles 12 and 254 - Indian Penal Code, 1860 - Sections 21, 105A, 120B, 161, 165A, 166, 167, 168, 169, 170, 171, 409, 420, 465, 467, 468, 471 and 477A - Criminal Procedure Code, 1973 - Section 197 - Prevention of Corruption Act, 1988 – Sections 2, 7, 13, 19, 30 and 31 - Seamen Provident Fund Act, 1966 – Sections 2, 3, 4, 5, 7, 8, 15, 44 and 48 - Companies Act, 1956 - Section 617 - Acquisition and Transfer of Undertaking Act - Section 46A - Banking Regulation Act, 1949 - Sections 5 and 46A- Cooperative Societies Act - Section 161 - Public Debt Act, 1944 - Section 2 - Punishing And Curbing Growing Corruption - Petitioner had preferred an application for discharge in special case before special judge CBI which was rejected vide order rejecting discharge application was set aside by this court and matter was remanded back to learned special judge to consider issue as to whether petitioner is a public servant or not in light of observation of apex court - Trial Court thereafter heard application for discharge in special case and by order petitioner/accused was discharged - Said order of discharge is challenged by CBI by preferring criminal revision application - Accused in special case had also preferred an application for discharge before special judge - Said application was also allowed and accused was discharged of offence - Said order discharging accused has been challenged by CBI by preferring criminal revision application - By preferring writ petition petitioner/accused in special case had prayed that special judge be directed to pass appropriate orders expeditiously in said proceeding by following judgment and order passed by this court in writ petition and order passed by special judge in special case - Held, Thus it cannot be said that government has no control over SPF and that duty performed by respondents herein is not a public duty - From statement of objects and reasons of pc bill it is clear that act was intended to mark anticorruption law more effective by widening its coverage - It is also clear that bill was introduced to widen scope of definition of public servant which were governing filed of law relating to prevention of corruption - Parliament repealed and omitted as provided - In decision of apex court in state while interpreting words public servant following observation - In construing definition of public servant in court is required to adopt a purposive approach as would give effect to intention of legislature - In that view statement of objects and reasons contained in bill leading to passing of act can be taken assistance of - It gives background in which legislation was enacted - Present Act with a much wider definition of public servant was brought in force to purify public administration - When legislature has used such a comprehensive definition of public servant to achieve purpose of punishing and curbing growing corruption in government and semi government departments it would be appropriate not to limit contents of definition clause by construction which would be against spirit of statute - Definition of public servant therefore deserves a wide construction - Order Accordingly.
JUDGMENT
Prakash D. Naik, J.
With the consent of both the parties, matters are heard for final disposal.
The petitioner in Criminal Writ Petition No. 4306 of 2014 (Herein after referred to as Petitioner) is prosecuted vide Special Case No. 83 of 2003 for the offence punishable under Section 120B read with 409, 420, 465, 467 and 477A of Indian Penal Code (hereinafter referred to as IPC) and Section 13(1) (d) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act). In the proceeding arising out of Special Case No. 12 of 2006, the petitioner is prosecuted for offence under Section 13(1) (e) of Prevention of Corruption Act. The matters were listed for directions/clarification on 1st July 2019 and again closed for Judgment.
2. The petitioner had preferred an application for discharge in Special Case 83 of 2003 before the Special Judge, CBI which was rejected vide order dated 07th July 2010. The petitioner thereafter preferred Criminal Writ Petition No. 675 of 2011 before this Court.
By order dated 03.08.2011, the order rejecting discharge application was set aside by this Court and the matter was remanded back to the learned Special Judge to consider the issue as to whether the petitioner is a public servant or not in the light of the observation of the Apex Court in the case of S.S. Dhanoa versus Municipal Corporation of Delhi, (1981 (3) SCC 431).
3. The trial Court thereafter heard the application for discharge in Special Case No. 83/2003 and by order dated 02.07.2012, the petitioner/accused No.3 was discharged. The said order of discharge dated 02.07.2012 is challenged by the CBI by preferring Criminal Revision Application No.332 of 2013. The accused No.4 in Special Case No. 83 of 2003 had also preferred an application for discharge before the Special Judge. The said application was also allowed and the accused was discharged of the offence under Section 13(2) read with 13(1) (c) (d) of Prevention of Corruption Act, 1988. The said order dated 02.07.2012 discharging accused No.4 Chandulal Thadani has been challenged by the CBI by preferring Criminal Revision Application No. 333 of 2013.
4. By preferring Writ Petition No. 4306 of 2014, the petitioner/accused No. 1 in Special Case No. 12 of 2006, had prayed that the Special Judge be directed to pass appropriate orders expeditiously in the said proceeding by following judgment and order dated 03.08.2011 passed by this Court in Writ Petition No. 675 of 2011 and order dated 02.07.2012 passed by the Special Judge in Special Case No. 83 of 2003.
5. The prosecution case is that the CBI registered a case on 10.05.2002 against Sanjay Agrawal, Ketan Sheth, Anupkumar Gond (petitioner) for commission of offences punishable under Section 120B, 409, 420, 467, 468 and 477A of IPC and Section 13(2) read with 13(1) (c) (d) of the PC Act on the basis of complaint dated 09.05.2002 received from Shri D.T. Joseph, Director General, Shipping, Mumbai. It is alleged that the petitioner, while working as Commissioner of Seamen's Provident Fund (hereinafter referred to as SPF), during the year 1998-2002 entered into criminal conspiracy with Sanjay Agrawal, Director of M/s. Lloyds Brokerage/Euroasian Securities, Shri. Ketan Seth, Director of M/s. Ketan Seth & Company, Shri. Chandulal Thadani, Senior Assistant Seamen's Provident Fund and others, the object of which was to commit criminal breach of trust and cheating the SPF which was entrusted to the petitioner, in the matter of purchase and sale of Government Securities for and on behalf of Seamen's Fund by dishonest delivery of available securities for sale to brokerage firms and not receiving the proceed and also not taking delivery of securities for which he had placed money of SPF with a broker and in pursuance of the conspiracy, the account books of SPF were falsified by petitioner Anupkumar and accused Chandulal Thadani and private persons had dishonestly received the money and securities from SPF and had never delivered the securities or sa
