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2000 Supreme(MP) 922
2001 (1) JLJ 267
S.B. Sakrikar, J.
Simal Kumar Gupta v. Special Police Establishment, Lokayukt
Cr. Appeal No. 96 of 1996; against the judgment of
1st Addl. Special Judge, Ujjain passed in Special Case No. 11 of 1993;
Decided on 29.9.2000.
M. Bhatnagar with V.S. Chouhan for appellant, Girish Desai, Deputy
Advocate General with M. Upadhyaya for State/respondent.
Headnote:(1) Electricity (Supply) Act, 1948 -- S. 81 -- Penal Code, 1860 -- Ss. 21 and 161 -- Prevention of Corruption Act, 1947 -- Ss. 2, 5(1)(d) and 5(2) -- employee of electricity board -- is deemed ‘public servant‘ -- he cannot be prosecuted for offences under Ss. 5(1) (d) and 5(2) of the 1947 Act read with S. 161, IPC.
It emerged that the employees of the Electricity Board are not specifically covered under any of the clauses of section 21 of the IPC. But by virtue of section 81 of the Electricity Supply Act, the Board employees can be considered ‘deemed public servants‘ when exercising powers under the Act but they cannot be considered to be ‘public servants‘ for the purpose of initiating prosecutions under the Act of 1947 or section 161 of the IPC. AIR 2000 SC 937 followed. [Paras 15 & 16
(2) Prevention of Corruption Act, 1947 -- Ss. 5(1)( d) and 5(2) -- Penal Code, 1860 -- S. 161 -- demand of illegal gratification -- not proved by reliable evidence -- recovery of amount not from person of accused but from almirah -- police party not giving its own search -- planting of notes cannot be ruled out. 1981 JLJ 518 relied on. [Paras 19 & 20
¼1½ fo|qr ¼iznk;½ vf/kfu;e] 1948 && /kkjk 81 && naM lafgrk] 1860 && /kkjk 21 rFkk 161 && Hkz"Vkpkj fuokj.k vf/kfu;e] 1947 && /kkjk 2] 5¼1½¼?k½ rFkk 5¼2½ && fo|qr eaMy dk deZpkjh && ^yksd lsod* le>k tkrk gS && mls 1947 ds vf/kfu;e dh /kkjk 5¼1½¼?k½ rFkk 5¼2½ lgifBr naM lafgrk dh /kkjk 161 ds v/khu vijk/kksa ds fy, vfHk;ksftr ugha fd;k tk ldrkA
izdV gqvk fd fo|qr eaMy ds deZpkjh fofufnZ"Vr% naM lafgrk dh /kkjk 21 ds fdlh Hkh [kaM dh O;kfIr esa ugha vkrsA ijarq fo|qr iznk; vf/kfu;e dh /kkjk 81 ds vk/kkj ij] vf/kfu;e dh /kkjk ds v/khu ‘kfDr;k¡ iz;qDr djrs le; eaMy deZpkfj;ksa dks ^le>s x, yksd lsod* le>k tk ldrk gS ijarq vf/kfu;e vFkok naM lafgrk dh /kkjk 161 ds v/khu vfHk;kstu izkjaHk djus ds iz;kstukFkZ mUgsa ^yksd lsod* ugha le>k tk ldrkA , vkb vkj 2000 ,l lh 937 vuqlfjrA ¿ iSjk 15 ,oa 16
¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e] 1947 && /kkjk 5¼1½¼?k½ rFkk 5¼2½ && naM lafgrk] 1860 && /kkjk 161 && voS/k ifjrks"k.k dh ek¡x && fo‘oluh; lk{; }kjk lkfcr ugha && jde dh cjkenxh vfHk;qDr ds ‘kjhj ij ls ugha vfirq vyekjh esa ls && iqfyl ny dh Lo;a dh ryk‘kh ugha yh xbZ && uksVksa ds vkjksi.k dk otZu ugha fd;k tk ldrkA 1981 ts ,y ts 518 voyafcrA ¿ iSjk 19 ,oa 20
Sakrikar, J. -- 1. Accused-appellant has directed this appeal against the judgment dated 25th January, 1996 rendered by Special Judge and 1st Addl. Sessions Judge Ujjain in Special Case No. 11/93, thereby convicted the appellant for the offence punishable under section 5(1)(d) read with section 5(2) of the Prevention of Corruptions Act, 1947 and also under section 161, IPC and he was sentenced to undergo two years RI, Rs. 2,000/- fine and one year RI, Rs. 1,000/- fine under each count. In default of payment of fine he is further directed to undergo one year simple imprisonment and six months simple imprisonment respectively. All the sentences passed against the appellant are directed to run concurrently.
2. As per case of the prosecution, the appellant between 5.9.1986 to 10.9.1986 working as Assistant Engineer in the Office of the M.P. Electricity Board at Tarana as public servant, demanded Rs. 1,500/- as bribe for installation of Electricity connection on the well situated in the agricultural field and also obtained Rs. 800/- from the complainant Chandersingh, thereby committed an offence punishable under section 161, IPC and section 5(1)(d) read with section 5(2) of the Prevention of Corruptions Act, 1947 (for short 'the Act').
3. It is alleged that the complainant did not want to pay any amount to the appellant as illegal gratification other than the legal remuneration for installation of the alleged electricity connection. As such, he went to the office of the DSP Lokayukta Organization, Ujjain and submitted a written report Ex. P-1 for taking action against the appellant. On the report of the complainant, a trap was arranged to catch the appellant red-handed while accepting the alleged bribe from the complainant. On the date of the incident, at about 9.30 or 10 p.m. when the appellant returned from Ujjain and went inside his bungalow at Tarana; at the same time complainant Chandersingh PW 6 entered the house of the appellant and paid the marked and powder treated currency notes of Rs. 800/- to the appellant. On accepting the said currency notes, the complainant came out of the house of the appellant and as per plan, gave signal to the members of the trap party. The members of the trap party immediately entered the house of the appellant and caught hold the hands of the appellant. The members of the trap party gave their identity and thereafter took search of the appellant for the alleged currency notes. No currency notes were recovered from the person of the appellant in his search. On taking the search of the room, it is said that the alleged currency notes of Rs. 800/- were found in one Almirah and were seized. The hands of the accused were washed in the solution of the Sodium Carbonate which turned pink. A portion of the said solution was preserved in a bottle and it was duly sealed. The appellant was arrested and on performing the other formalities as also the usual investigation, a challan was filed against the appellant before the Trial Court.
4. The accused appellant was charged and tried for the alleged offences punishable under section 5(1)(d) read with section 5(2) of the Act and section 161 of the IPC, and on completion of the trial he was convicted and sentenced for the alleged offences as indicated above. Aggrieved the appellant has filed this appeal.
5. During the pendency of this appeal, on behalf of the appellant I.A. No. 2332/2000 was filed on the averments that at the relevant time, appellant was in the employment of the MPEB on the post of Assistant Engineer and not covered under the definition of the 'public servant' as given under section 21 of the IPC. As such, the appellant cannot be prosecuted or tried for the alleged offences under the Prevention of Corruptions Act, 1947 as also under section 161, IPC and on this count he deserves acquittal. This application was directed to be heard alongwith the final hearing of the appeal.
6. The counsel for the appellant contended that section 2 of the Act
