Manoj Kumar @ Manoj Kumar Singh Vs. State of Jharkhand Through Vigilance and ors. - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]r.r. prasad, j.1. this application has been filed for quashing of the first information report of vigilance p.s. case no. 23 of 2009 (special case no. 27 of 2009) instituted under sections 467, 468, 469, 471, 406, 409, 420, 109/120b of the indian penal code and also under sections 7, 10, 13(1)(e) of the of the prevention of corruption act (hereinafter referred to as 'the act').2. the facts leading to filing of this case are that the income tax department laid a raid in the house of the petitioner on 15.10.2009 where 169 term deposit receipts worth rs. 12,54,23,337/- of north bihar regional gramin bank, murtuza branch, p.s. dariapur, district-chapra were found which were either in the name of the petitioner or his family members.3. that apart, 42 files of the government department relating to disciplinary proceeding, tender, transfer and posting were found. the said file as well as the aforesaid term deposit receipts were seized by the income tax department.4. on getting such information, the deputy superintendentcum-officer-in-charge of vigilance bureau, ranchi lodged the case alleging therein that the petitioner being a private secretary of the then minister, shri chandra prakash choudhary did acquire asset which is disproportionate to his known source of income and on that basis, vigilance p.s case no. 23 of 2009 was registered under sections 467, 468, 469, 471, 406, 409, 420, 109/120b of the indian penal code and also under sections 7, 10, 13(1)(e) of the prevention of corruption act.5. the said first information report has been sought to be quashed by way of the instant writ application.6. mr. y.v. giri, sr. counsel appearing for the petitioner submitted that the then minister of drinking water and sanitation and science and information technology, government of jharkhand, shri chandra prakash choudhary in order to avail the facility of having a private secretary (external quota), appointed this petitioner as private secretary (external quota) as it was within his competence to appoint any one on the said post which is not a government post and such private secretary is not supposed to discharge any government duty, rather private secretary (external quota) assists the minister in the matter other than the public duty and that such private secretary (external quota) is not paid from the public exchequer, rather he is being paid from the allowances which are admissible to the minister and in this view of the matter, the petitioner never comes within the purview of the public servant as defined in section 2 (c) of the act and as such, the petitioner, being not a public servant, cannot be prosecuted under the provision of the prevention of corruption act.7. learned counsel goes on further to elaborate his submission by referring to section 2(c) (i) of the act defining 'public servant' that any person in the service or pay of the government or remunerated by the government by fees or commission for the performance of any public duty can be a public servant but the petitioner has neither been appointed by the government nor did he receive his salary from the government nor was paid fees or commission for the performance of any public duty and as such, the petitioner cannot by any stretch of imagination be held to be a public servant.8. learned counsel further submitted that though the petitioner received remuneration but that was never paid from the government exchequer, rather it was being paid from the allowances given to the minister under the provision of the 'bihar ministers' salaries and allowances act, 1953' and under this circumstance, the petitioner can never be said to have received allowance/pay from the state government and as such, the petitioner being not in service of the government nor received the pay from the state government nor had been performing any public duty, never comes within the purview of public servant as defined under section 2 (c)(i) of the act.9. learned counsel in support of his submission referred to a decision rendered in the case of r.s. nayak v. a.r. antylay : air 1984 sc 684 wherein it has been held that the m.l.a, being not in government service, never receives pay from the state government rather he receives allowance/pay from the grant which is charged under the consolidated fund of the state, and hence, it was held that the m.l.a is not a public servant within the meaning of section 21 of the indian penal code and, therefore, the petitioner's case being similar to the case of the m.l.a, cannot be said to be a public servant within the meaning of section 2(c)(i) of the act and, therefore, the prosecution under the prevention of corruption act cannot be maintained and, therefore, the first information report is fit to be quashed.10. as against that, mr. a.k. kashyap, sr. counsel appearing for the vigilance submitted that public servant as defined under section 2(c)(i) of the act has been divided in three categories and if anyone comes within any of the categories, one can be held to be a public servant and there has been no doubt about this proposition as the same has been laid down by the hon'ble supreme court in the case of r.s. nayak v. a.r. antylay (supra) referred to on behalf of the petitioner.11. in this respect, it was further submitted that though the petitioner being a private secretary (external quota), may not be in the service of the government but he received his pay from the government department which would be evident from annexure a disclosing therein that the petitioner being a private secretary to the then minister received payment from the department of sanitation and drinking water and science and information technology which fact disproves the plea of the petitioner that pay/allowance was given to the petitioner from the allowances which the minister received and, therefore, under this situation, the petitioner can easily be said to be a public servant in terms of section 2 (c)(i) of the act and, therefore, this application is fit to be dismissed.12. in the context of the submission made on behalf of the petitioner one is required to take notice of the provision of the prevention of corruption act particularly section 2 (c) (i) of the act defining 'public servant' which reads as follows:2(c) 'public servant' means(i) any person in the service or pay of the government or remunerated by the government by fees or commission for the performance of any public duty;13. the expression 'or' used in the definition of the public servant appears to be a disjunctive and as such definition can be said to have been divided in three compartments (i) a person in the service of the government (ii) a person in the pay of the government and (iii) a person remunerated by fees or commission for the performance of any public duty by the government. this proposition was laid down by the hon'ble supreme court in the case of r.s. nayak v. a.r. antulay (supra) while taking note of clause 12(a) of section 21 of the indian penal code which is in para materia of the provision as contained in section 2(c)(i) of the act. the hon'ble supreme court while holding that a person can be a public servant if he falls in any one of the categories has also observed that one can be in the service of the government and may be paid for the same and that one can be in the pay of the government without being in the service of the government in the sense of manifesting master-servant or command-obedience relationship.14. thus, there has been no doubt that a person without being in service of the government if receives pay from the government, he is very much a public servant in terms of the definition as given under section 2 (c)(i) of the prevention of corruption act .15. admittedly, the petitioner is not in the service of the government but according to leaned counsel appearing for the vigilance, he while holding post of private secretary (external quota) to the minister of drinking water and sanitation drew pay from the department of drinking water and sanitation but stand of the petitioner is that the petitioner being a private secretary (external quota) drew his salary from the allowances made to the minister and as such, petitioner can never be said that he is in the pay of the government of the state as in the case of m.l.a. it is true that in a case of r.s. nayak v. a.r. antulay (supra), m.l.a was held to be not a public servant within the meaning of section 21 of the indian penal code on the premise that the m.l.a draws his allowance from the grant which is charged from the consolidated fund of the state and as such, m.la is not in the pay of the government of the state but here as has been shown by mr. kashyap by producing a document (annexure a) that the petitioner drew pay from the department of drinking water and sanitation and as such, at this stage, the plea of the petitioner that the petitioner did draw his salary from the allowance of the minister cannot be accepted, rather the petitioner in view of the statement made by the vigilance regarding pay being drawn from the government department can be said to be in the pay of the government and as such, the petitioner, prima facie, will be coming within the definition of public servant as defined in section 2(c)(i) of the act.16. once it has been found, prima facie, that the petitioner is a public servant, the prosecution under the act can easily be maintained and, therefore, i do not find any merit in this writ application and hence, it is dismissed.17. however, before parting with this order, it goes without saying that any observation made for the purpose of disposal of this case would not be prejudicial to the right of the parties.