Nandkishor S/O Panjabrao Gawarkar vs State Of Maharashtra Thr Anti ...
2026 Latest Caselaw 1108 Bom

Bombay High Court

Nandkishor S/O Panjabrao Gawarkar vs State Of Maharashtra Thr Anti ... on 2 February, 2026

2026:BHC-NAG:1787-DB




              Judgment

                                                                 apl 1121.25

                                             1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                    CRIMINAL APPLICATION (APL) NO.1121 OF 2025

              Nandkishor s/o Panjabrao Gawarkar,
              aged: 61 years, occupation: private security
              agency,
              proprietor of M/s.Abhijeet Intelligence
              Security & Labour Services,
              r/o plot No.07, Abhay Nagar, Omkar
              Nagar Chowk, Bajaj Nagar, Nagpur. ..... Applicant.

                                     :: V E R S U S ::

              1. State of Maharashtra,
              through Anti-Corruption Bureau,
              Nagpur.

              2. State of Maharashtra,
              through Police Station Officer,
              Police Station : Bajaj Nagar, Nagpur.

              3. Pradip s/o Balakdas Meshram,
              aged: 38 years, occupation: not known,
              r/o Shankarpur, tahsil Chimur,
              district Chandrapur.             ..... Non-applicants.
              ==============================
              Shri J.M.Gandhi, Counsel for the applicant.
              Shri N.B.Jawade, APP for the State.
              ==============================
              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 19/01/2026
              PRONOUNCED ON : 02/02/2026



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                                                  apl 1121.25

                            2

JUDGMENT

1. Heard learned counsel Shri J.M.Gandhi for the

applicant and learned APP Shri N.B.Jawade for the State.

Admit. Heard finally by consent.

2. By this application, the applicant seeks quashing of

the FIR in connection with Crime No.0003/2025

registered for offence under Section 7 of the Prevention of

Corruption Act, 1988 (the P.C.Act).

3. The applicant is working in the field of providing

Intelligence Security as well as Labour Services in the

name and style as "M/s.Abhijeet Intelligence Security and

Labour Supplier" having its office at F/4, MIG Colony,

Tukdoji Square, Manewada Road, Nagpur. The applicant

participated into the tender process floated by various

departments in the State of Maharashtra and submitted

his bids and various other Tenderers also submitted their

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bids and whoever he is found eligible and beneficial, he

provides services as per requirement of the Government

or the Semi Government Organizations subject to terms

and conditions duly agreed between parties. He does not

fall at all within category of "public servant" as provided

under Section 2(28) of the BNS, 2023 as well as under

Section 2 of the P.C.Act.

4. The crime was registered against him on the basis a

report lodged by the non-applicant No.3 (the

complainant) on allegations that the applicant has

demanded amount Rs.25,000/- from him for appointing

him as "Sweeper." Therefore, the complainant approached

the Office of the Anti Corruption Bureau at Nagpur (the

bureau). After verification panchanama, a raid was

conducted and the applicant was found accepting amount

Rs.35,000/- from the complainant. After following a due

process, he was arrested by registering the crime against

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him. On the basis of the said report, the police registered

the crime against the applicant.

5. Learned counsel for the applicant submitted that as

far as allegations against the applicant are concerned, the

same are false and baseless. He submitted that the

applicant is not a "public servant" within the meaning of

Section 2(28) of the BNS and under 2 of the P.C.Act.

Therefore, the provisions of the P.C.Act are not applicable

against him. He is working on contractual basis and,

therefore, person working on contractual basis is not

within the category of "public servant" and on this count

alone, the entire process adopted by the investigating

agency deserves to be vitiated and the FIR is liable to be

quashed and set aside.

.....5/-

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6. In support of his contentions, learned counsel for

the applicant placed reliance on following decision:

1. Union Public Service Commission vs. Girish Jayantilal Vaghela and ors, reported in (2006)2 SCC 482; and

2. Special Leave Petition (Civil) Nos.17711-

17713 of 2019 (Municipal Council, Rep.by its Commissioner Nandyal Municipality, Kurnool District, A.P. vs. K.Jayaram and ors, etc.) decided by the Supreme Court in 16.12.2025.

7. Per contra, learned APP for the State strongly

opposed the said contentions and submitted that services

rendered by the applicant come within the definition of

"public servant" defined under Section 2 of the P.C.Act.

He specifically placed reliance on the definition of Section

2(c)(i) of the P.C.Act, which deals with "public servant

means," "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".

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He further submitted that the applicant has provided

services on contractual basis and he was remunerated by

the Government and, therefore, he is within the definition

of "public servant". The allegations levelled against the

applicant are substantiated by material collected during

the investigation. He is not only found demanding the

gratification amount but also he was found accepting the

same. In view of that, the application deserves to be

rejected.

8. On hearing both the sides and perusing the entire

investigation papers, it reveals that the applicant is

running a firm in the name and style as "M/s.Abhijeet

Intelligence Security and Labour Supplier." He is

proprietor of the said firm. As per the allegations, on

8.1.2025, the complainant lodged the report alleging that

the applicant has given offer to recruit the complainant as

well one Mrs.Alka Italwar on the posts of "Craft

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Instructor" and "Sweeper". The complainant was working

as "Craft Instructor" and at the Government Industrial

Training Institute, Nagbhid, district Chandrapur on hourly

basis. The applicant, who runs the business of man power

supply to the Government Agency by tender, has got bid

for supplying man power to the Government Industrial

Training Institute, Nagbhid, district Chandrapur. The

applicant has been on the contract with the Government

Industrial Training Institute for supply of man power by

external agency on a commission basis. As per the

allegations, for providing the recruitment, the applicant

has demanded amount Rs.25,000/- from him and

Rs.10,000/- from Mrs.Alka Italwar who was appointed as

"Sanitary Worker" on contract basis. Thus, the applicant

allegedly demanded Rs.25,000/- from the complainant

and Rs.10,000/- from Mrs.Alka Italwar. On filing the

complaint with the bureau, verification panchanama was

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drawn and the applicant was found accepting the amount

when the raid was conducted. The allegations,

admittedly, were substantiated by verification

panchanama which shows that there was a demand by

the applicant and post-panchanama shows that he has

accepted the amount as per the demand.

9. Now, only question is, whether the applicant is

"public servant" within the meaning of Section 2(28) of

the BNS and Section 2 of the P.C.Act.

10. Learned counsel for the applicant has placed

reliance on the decision in the case of Union Public

Service Commission vs. Girish Jayantilal Vaghela and ors

supra, wherein the definition of the "Government

Servant" is defined in view of Rule 2(h) of Central Civil

Service (Classification, Control and Appeal) Rules and it is

observed that, "a private employer in India enjoys almost

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a complete freedom to select and appoint anyone he likes

and there is no statutory provision mandating

advertisement of the post or selection being made strictly

on merit, even where some kind of competitive

examination is held. The employment under the

Government is a matter of status and not a contract even

though the acquisition of such a status may be preceded

by a contract, namely, an offer of appointment is accepted

by the employee. The rights and obligations are not

determined by the contract of the two parties but by

statutory rules which are framed by the Government in

exercise of power conferred by Article 309 of the

Constitution and the service rules can be unilaterally

altered by the rule making authority, namely, the

Government".

It has further been held, by referring the decision

of the Constitution Bench in State of Gujarat vs. Framan

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Lal Keshav Lal Soni, reported in AIR 1984 SC 161, as

under:

"We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee's manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may

.....11/-

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have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not."

11. In another judgment, in the case of Municipal

Council, Rep.by its Commissioner Nandyal Municipality,

Kurnool District, A.P. supra, point involved was, whether

the employment/relationship of the appellant with the

respondent and its nature and it is observed that, "when

employees/workmen are taken through a contractor, it is

the absolute discretion of the contractor as to whom and

through which mode he would choose such persons to be

sent to the principal".

12. Thus, learned counsel for the applicant submitted

that the applicant was providing services on contractual

basis and, therefore, he is not within the definition of

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"public servant". He also referred Section 2(c) of the

P.C.Act and submitted that by no stretch of imagination,

even accepting the definition as it is, the applicant can be

said to be "public servant".

13. Section 2(28) of the BNS, which is relevant, is

reproduced below for reference:

"Section 2(28). public servant means a person falling under any of the descriptions, namely:-

(a) every commissioned officer in the Army, Navy or Air Force;

(b) every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

(c) every officer including a liquidator, receiver or commissioner whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or

.....13/-

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to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorised to perform any of such duties;

(d) every assessor or member of a panchayat assisting a Court or public servant;

(e) every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court, or by any other competent public authority;

(f) every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

(g) every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

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(h) every officer whose duty it is as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;

(i) every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

(j) every person who holds any office by virtue of which he is empowered to prepare, publish,

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maintain or revise an electoral roll or to conduct an election or part of an election;

(k) every person-

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

(ii) in the service or pay of a local authority as defined in clause (31) of section 3 of the General Clauses Act, 1897, a corporation established by or under a Central or State Act or a Government company as defined in clause (45) of section 2 of the Companies Act, 2013.

Explanations: -

(a) persons falling under any of the descriptions made in this clause are public servants, whether appointed by the Government or not;

(b) every person who is in actual possession of the situation of a public servant, whatever legal defect .....16/-

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there may be in his right to hold that situation is a public servant;

(c) "election" means an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of election to which is by, or under any law for the time being in force".

14. Section 2(c) of the P.C.Act is reproduced for

reference, as under:

"Section 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;

(ii) any person in the service or pay of a local authority;

(iii)any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as

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defined in section 617 of the Companies Act, 1956 (1 of 1956);

(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

(v) any person authorised by a Court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such Court;

(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a Court of justice or by a competent public authority;

(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;

(ix) any person who is the president, secretary or other office-bearer of a registered co- operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from .....18/-

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any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);

(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;

(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;

(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.

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Explanation 1. - Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.

Explanation 2. - Wherever the words public servant occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.

15. The Hon'ble Apex Court in the case of Aman Bhatia

vs. State (GNCT of Delhi), reported in

MANU/SC/0625/2025, by referring its earlier decision in

the case of State of Gujarat vs. Mansukhbhai Kanjibhai

Shah, reported in (2020) 20 SCC 360 observed as

follows:

"Our attention was also drawn to the notes on clauses of Prevention of Corruption Bill dated 20-2 1987. Clause 2 of the Notes on Clauses in the Gazette of India, Extraordinary, Part II, Section 2, clarifies the legislative intent, wherein it was commented as under:

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This clause defines the expressions used in the Bill. Clause 2(c) defines "public servant". In the existing definition the emphasis is on the authority employing and the authority remunerating. In the proposed definition the emphasis is on public duty."

16. In the case of State of M.P. vs. Ram Singh, reported

in (2000)5 SCC 88, the Hon'ble Apex Court observed as

under:

"The menace of corruption was found to have enormously increased by the First and Second World War conditions. Corruption, at the initial stages, was considered confined to the bureaucracy which had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities for corruption continued as large amounts of government surplus stores were required to be disposed of by the public servants. As a consequence of the wars the shortage of various

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goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them a wide discretion with the result of luring them to the glittering shine of wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act 49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of the 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, not as understood in common parlance but specifically defined in the Act."

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What is relevant to note from the aforesaid is that

the P.C.Act was enacted after the repeal of the 1947 Act

with the object of dealing with the circumstances,

contingencies and shortcomings which were noticed in

the working and implementation of the 1947 Act. While

holding that a deemed University would fall within the

ambit of the P.C.Act, a three-Judge Bench of the Hon'ble

Apex Court in State of Gujarat vs. Mansukhbhai Kanjibhai

Shah (supra) observed that it falls upon the courts to

interpret provisions of an anti-corruption legislation in a

manner to strengthen the fight against corruption. It was

further added that in case two views are possible, the

court should accept the one that seeks to eradicate

corruption over the one which seeks to perpetuate it.

17. The Hon'ble Apex Court in the case of Aman Bhatia

vs. State (GNCT of Delhi) supra, observed that heart of

the definition of "public servant" under Section 2(c)(i) of

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the P.C. Act lies in the expressions "remunerated by the

Government" and "for the performance of any public

duty", and not in the mode of remuneration, such as "fees

or commission". The 'commission' referred in

"remunerated by the Government by fees or commission

for the performance of public duty" is not analogous to

the 'commission' in Section 19H of the 1961 Act. It is

further observed that the definition of "public servant"

under Section 2(c)(i) of the P.C.Act can be said to have

three parts, as they are disjunctive: first, a person who is

in the service of the Government; secondly, a person who

is in the pay of the Government; thirdly, a person who is

remunerated by fees or commission for the performance

of any public duty. The expression "remunerated" in the

third part has to be read in context and in line with the

expressions in the first and the second part i.e., "in the

service" and "in the pay". The three key expressions, "in

.....24/-

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the service", "in the pay" and "remunerated" by the

Government belong to the same genus and have the same

flavour. In the first two parts, a person is rendering his

services for the Government which implicitly means

discharging a public duty. Whereas, in the third part, even

though a person is not rendering his services for the

Government but is being remunerated for discharging a

public duty. In this context, the terms "fees or

commission" must be construed so as to give full effect to

the definition and the other provisions of the statute.

18. The Hon'ble Apex Court in the case of State of

Gujarat vs. Mansukhbhai Kanjibhai Shah supra, held that

the emphasis is not on the position held by an individual,

rather, it is on the public duty performed by him/her. It is

observed in paragraph No.34 as under:

"On a perusal of Section 2(c) of the PC Act, we may observe that the emphasis is not on the

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position held by an individual, rather, it is on the public duty performed by him/her. In this regard, the legislative intention was not to provide an exhaustive list of authorities which are covered, rather a general definition of 'public servant' is provided thereunder. This provides an important internal evidence as to the definition of the term "University".

19. In the case of G.Krishnegowda vs. State of

Karnataka, reported in MANU/KARNATAKA/3037/2021

the Karnataka High Court dealt with the issue whether

project manager in a society registered under the

provisions of the Karnataka Societies Registration Act,

1960 is a "public servant" and the relevant observation

are as under:

"From the reading of the definition of the word 'public servant as found in the P.C.Act, it is very clear that a person who holds an office by virtue of which he is authorized or required to perform any

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public duty, and any person or employee of any institution if it has been receiving or if it has received any financial assistance from the State or Central Government, shall be considered as a public servant. The explanation to Section 2(c) of the P.C. Act would further go to show that such a person may be appointed by the Government or not. Therefore, a public servant need not be a Government/civil servant, but a Government/civil servant is always a public servant".

20. Section 2(b) defines "public duty" as a duty where

the State, the public, or the community at large has an

interest in its discharge.

Explanation - In this clause "State" includes a corporation

established by or under a Central, Provincial or State Act,

or an authority or a body owned or controlled or aided by

the Government or a Government company as defined in

Section 617 of the Companies Act, 1956.

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21. While analyzing the public duty, a bare perusal of

the aforesaid definition clause of the Act, it can be

inferred that to designate a person as a "public servant"

and to thereby hold such person liable under the P.C.Act,

the thrust lies upon the nature of duty i.e. public duty

carried out by such person and not the position held by

him or her. The term "public servant" lists down the

categories of individuals under sub-clauses (i) to (xii) of

Section 2(c) of the P.C.Act who shall be classified as a

'Public Servant'. The first explanation to the said provision

also clarifies that persons falling under the said sub-

clauses shall be deemed to be public servants irrespective

of their appointing authority. The second explanation

further expands the ambit to include every person who de

facto discharges the functions of a public servant, and

that he/she should not be prevented from being brought

under the ambit of "public servant" due to any legal

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infirmities or technicalities. There is no doubt that in the

objects and reasons stated for enactment of the P.C.Act it

has more clear and widens the scopes of definition of

"public servant".

22. Thus, a bare reading of the definition of word

'public servant' as defined in the P.C.Act, it is emphatically

clear that a person who holds the office by virtue of which

he is authorized or required to perform any public duty

and any person or employee of any institution, receiving

or having received any financial assistance from the

Central Government or State Government or local or

other public authority, shall be considered as "public

servant". The explanation to Section 2(c) of P.C.Act

would further go to show that such a person may be

appointed by the Government or not, therefore, a "public

servant" need not be a Government / civil servant, but a

Government / civil servant is always a "public servant".

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23. In the light of the above well settled law, if the

facts of the present case are considered, it would show

that the applicant was providing contractual services to

the various Government Sectors as well as Semi

Government Sectors. The prosecution case shows that he

has demanded and accepted the amount from the

complainant and one more person for providing them

contractual services through him as "Sweeper" and "Craft

Instructor." The entire investigation papers show that he

was running a firm in the name and style as "M/s.Abhijeet

Intelligence Security and Labour Supplier."

24. After applying the law laid down by the Hon'ble

Apex Court, by no stretch of imagination, it can be said

that the applicant is a "public servant" and was

discharging public duty.

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25. While analyzing the public duty, a bare perusal of

the aforesaid definition shows that to designate a person

as a "public servant" and to thereby hold such person

liable under the P.C.Act, the thrust lies upon the nature of

duty i.e. public duty carried out by such person and not

the position held by him or her. The term "public

servant" lists down the categories of individuals under

sub-clauses (i) to (xii) of Section 2(c) of the P.C.Act who

shall be classified as a 'Public Servant'. The first

explanation to the said provision also clarifies who is

covered under the said definition.

26. In the present case, by applying the same to the

applicant, admittedly, he is not within the domain of

"public servant" and he was not discharging the public

duty and, therefore, the contentions of learned counsel

for the applicant, that the applicant is not "public servant"

and the provisions of the P.C.Act are not applicable against

.....31/-

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him and application of Section 7 of the P.C.Act is wrong

and erroneous and, therefore, the FIR deserves to be

quashed and set aside, are sustainable. In view of that, I

proceed to pass following order:

ORDER

(1) The Criminal Application is allowed.

(2) The FIR in connection with Crime No.0003/2025

registered for offence under Section 7 of the Prevention of

Corruption Act, 1988 is hereby quashed and set aside to

the extent of the applicant.

Application stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 04/02/2026 11:05:30