The main legal point established in the judgment is the distinction between 'person in the service of the Government' and 'public servant', and the interpretation of this distinction in the context of the provisions of the Representation of the People Act, 1951.

This Criminal Miscellaneous Case is filed by the accused in Crime No. 43/98 registered by the Sub Inspector of Police, Kasaba Police Station, Palakkad, alleging the offence punishable under S. 134-A of the Representation of the People Act, 1951 (for short 'the Act') to quash the entire proceedings under S. 482 of the Code of Criminal Procedure.

2. The allegation made against the petitioner is that the petitioner herein, who is an employee in the Indian Telephone Industries with is a semi Government concern, acted as polling agent for Shri. V. S. Vijayaraghavan, a candidate in the General Election held on 28-2-1998 in polling booth No. 77 Pudussery U.P. School, and as such he committed the offence alleged against him.

3. The petitioner has contended that he is only an employee in the Indian Telephone Industries which is a company under the Government of India the employees of which are not Government servants and, therefore, he was not in the service of the Government so as to attract the offence punishable under S. 134-A of the Act. The only question to be considered in this case is whether the petitioner is in the service of the Government so as to attract the provisions of S. 134-A of the Act.

4. The Representation of the People Act has not defined "a person in the service of the Government". Therefore, the Public Prosecutor submitted that the definition of "public servant" given in S. 21 of the Indian Penal Code has to be accepted to find whether a person is in the service of the Government as provided under S. 134-A of the Act. On the other hand, the counsel for the petitioner submitted that the definition of "public servant" in S. 21 of the IPC cannot be imported to the provisions of the Act since the provisions of the Act refer to not public servant but any person in the service of the Government and both the expressions are entirely different. Section 21 of the IPC defines "public servant" which reads as follows :

"S. 21. "Public servant". - The words "public servant" denote a person falling under any of the descriptions hereinafter following, namely :-

xx xx xx xx xx

Twelfth. - Every person -

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act, or a Government company as defined in S. 617 of the Companies Act, 1956 (1 of 1956)".

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5. The Public Prosecutor submitted that in several cases persons performing public duty and discharging public functions have been construed to be an officer of the Government to be prosecuted for the offence committed by them being public servants, In the decision reported in State of M.P. v. M. V. Narasimhan, AIR 1975 SC 1835 : (1975 Cri LJ 1639) the Supreme Court has held that an employee of the Heavy Electricals (India) Ltd., Bhopal is a public servant within the meaning of S. 2 of the Prevention of Corruption Act. In the decision reported in Bajrang Lal v. State of Rajasthan, (1976) 2 SCC 217 : (1976 Cri LJ 727) the Supreme Court has held that a person in the railway service is a public servant to be found guilty under S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act and Ss. 120-B and 465 of the IPC. In that decision the Supreme Court has observed as followed (at pp. 730-731 of Cri LJ) :

"Thus, the position that emerges is, that although Bajrang Lal and Ram Kishan were not formally appointed to work in the pass section, the posts held by them being of Khalasis drawing pay from the railway carriage section, there services were actually utilised in the pass section of the office of the Works Manager. The appellant, was, therefore, in actual possession of the situation of a public servant, and in view of Explanation II to S. 21, Penal Code, would be a 'public servant' notwithstanding the defect in his right to hold that situation."

6. In the