Orissa High Court

Biplaba Jena vs State Of Odisha ....... Opposite Party on 29 January, 2025

       THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLREV No.512 of 2024

(In the matter of an application under Sections 401 read with Section 397 of the
Criminal Procedure Code, 1973)



Biplaba Jena                      .......                 Petitioner

                                  -Versus-

State of Odisha                    .......                  Opposite Party


For the Petitioner     : Mr. Manoj Kumar Mohanty, Advocate

For the Opp. Party       : Mr. Sangram Das, SC (Vigilance)


CORAM:

     THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

 Date of Hearing: 25.11.2024        ::    Date of Judgment: 29.01.2025

S.S. Mishra, J.

1. This Criminal Revision Petition has been filed by the petitioner

assailing the order dated 20.04.2024 passed by the learned Special Judge

(Vigilance), Cuttack in T.R. Case No.34 of 2017, whereby the application

of the petitioner seeking discharge from the offences under Sections 13(2)

read with Sections 13(1)(d)/7 of the Prevention of Corruption Act (for short <P.C. Act=), cognizance of which has been taken against him has

been turned down.

2. Heard Mr. Manoj Kumar Mohanty, learned counsel for the

petitioner and Mr. Sangram Das, learned Standing Counsel for the

Vigilance Department.

3. The petitioner on the selfsame ground had approached this Court

by filing CRLMC No.17 of 2018. This Court while disposing of the said

petition on 12.03.2019 has passed the following order:-

<Heard learned counsel for the petitioner and learned Addl. Standing Counsel (Vigilance). Learned counsel for the petitioner submits that the petitioner has never functioned as a public servant as defined U/s.2(c) of the Prevention of Corruption Act, 1988, inasmuch as he was engaged by a service provider, namely Dart Consultancy. It is further submitted that he has never performed any public duty as defined U/s.2(c)(viii) of the Prevention of Corruption Act, 1988. Learned Addl. Standing Counsel (Vigilance), per contra, submits that the petitioner had given his joining to the Odisha Agro Industries Corporation Ltd., Jajpur and continued to perform public duty on their instruction and in the year 2015 he was entrusted with the charge of Store Room and as Store Keeper he not only conducted enquiry but also discharged public duty prior to the incident and in that view of the matter he is a public servant.

Having regards to the above contentions, I am of the considered view that such contention as to whether the petitioner is a public servant as defined U/s.2(c) of the P.C. Act, 1988 or not, can well be considered at the time of consideration of Charge by the learned Trial Court, as such the petitioner is given liberty to raise this point at that stage. Hench I am not inclined to invoke the inherent jurisdiction U/s.482 Cr.P.C. to quash the proceeding on this ground.

Accordingly the CRLMC stands disposed of.=

Pursuant to the aforementioned order, the petitioner had filed an

application before the Court below seeking discharge from the case,

which has been turned down by the impugned order. Feeling aggrieved

by the same, the petitioner has approached this Court by filing the present

Criminal Revision Petition.

4. The criminal law is set in motion against the present petitioner on

the basis of the complaint filed by one Bhabagrahi Behera, inter alia,

alleging that the petitioner being a public servant had demanded and

accepted illegal gratification of Rs.3,000/- from him for supply of the

electricity connection and installation of the works of the Jalanidhi

Project. A trap was conducted and the petitioner has been apprehended

while accepting the alleged bribe.

5. The prosecution case in brief is that the complainant lodged a

complaint before the Jajpur Vigilance Police Station alleging therein that

the accused-petitioner was working as Electrician-cum-Store Keeper in

the office of the District Manager, Orissa Agro Industries Corporation

Limited, Jajpur. Under <Jalanidhi= project, the complainant, one Kapila

Behera and Saran Behera of Jafarpur combinedly made an application for

lift irrigation from the river which is called as cluster project consisting of

three beneficiaries. Each beneficiary has to deposit Rs.4,625/- and the

Agro Industries Corporation shall provide a 25 K.V. Transformer along

with 5 hp motor to each beneficiaries and 75 pieces of PVC Pipe. The

cluster point was sanctioned in favour of the said three beneficiaries and

they have to deposit the abovementioned amount, i.e., Rs.4,625/- each

which in toto comes to Rs.13,875/-. It is alleged that as the delay caused

in sanctioning the said cluster project by the higher authorities from the

date of application made by the beneficiaries, one of the beneficiary,

namely, Bhagirathi Behera, the complainant in the present case alleged

that the present petitioner demanded Rs.3,000/- for providing the

materials to the beneficiaries. It is also alleged that the initial deposit had

not been made by the beneficiaries and no sanction order was made by

the higher authorities to provide the materials for cluster points. As the

complainant made the complaint regarding demand of Rs.3,000/- bribe by

the petitioner towards sanctioning the materials for the cluster point under

<Jalanidhi Project=, the vigilance trap party of Jajpur Vigilance Police

Station chalked out a plan by providing Rs.16,875/-, which were

chemically processed. The said amount was wrapped inside four-fold

white papers and the same was handed over to the petitioner. Without

counting the said amount, the petitioner kept it inside left side chest

pocket of his shirt. Thereafter, the petitioner wrote three money receipts

bearing Nos.585758, 585759 and 585760 and when he counted the said

amount, the vigilance party trapped him and recovered the amount of

Rs.16,875/- from him. The F.I.R. was accordingly registered.

6. Mr. Mohanty, learned counsel for the petitioner has submitted that

the petitioner being an outsource employee of Darks Security Consultant

Private Limited, is not a public servant. Hence, he cannot be prosecuted

for the alleged offences under the P.C. Act. He has emphasized Section

2(c) of the P.C. Act to demonstrate that the petitioner is not a public

servant. Section 2(c) of P.C. Act defines a public servant, 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 defined in Section 617 of the Companies Act, 1956 (1 of 1956).=

7. It is contended by the learned counsel for the petitioner that the

petitioner was working as an Electrician-cum-Store Keeper through

outsourcing basis and was receiving the remuneration from M/s. Dark

Security Consultant Private Limited (DSCPL). The DSCPL had taken the

contract to electrify the cluster points and the petitioner was engaged by

the said Agency to do the electrification work of cluster points in Jajpur

District under the Agro Industries Corporation Limited, Jajpur. The

petitioner has been paid the remuneration by DSC Private Limited and he

has nothing to do with the Odisha Agro Industries Corporation Limited,

Jajpur. His service is being controlled by the DSC Private Limited. On

being directed and permitted by the District Manager of Odisha Agro

Industries Corporation Limited, Jajpur, the petitioner was only assigned

to give the electricity connection to the Lift Irrigation Points, i.e., cluster

points under Jalanidhi Scheme. Therefore, he was at no point of time

discharging any public duty. For the work assigned to him, the

Corporation has been making payment to the DSC Private Limited.

Therefore, his services and duty is not coming under <the colour of duty=

described under Section 2(c) of the P.C. Act. He further contended that

the petitioner being not an employee of the Odisha Agro Industries

Corporation Limited, he is neither the Sanctioning Authority for Jalanidhi

Scheme nor the authority to release the materials directly from the store

without any specific order of the District Manager of Odisha Agro

Industries Corporation Limited, Jajpur. As the District Manager of Jajpur

was absent, he had received the amount on his behalf from the

beneficiaries for a short period. The petitioner has also put forth his

defense explaining as to why he has accepted the alleged bribe amount of

Rs.3,000/- from the complainant. In nutshell, the entire case of the

petitioner in the present Revision is that the petitioner is not a public

servant. Hence, he cannot be prosecuted for the offences punishable

under the P.C. Act.

8. On contrary, Mr. Das, learned Standing Counsel for the Vigilance

Department has vehemently opposed the prayer made by the petitioner

and contended that the duty performed by the petitioner is a public duty

and during the course of performance of such duty, admittedly, he has

demanded bribe. Therefore, the prosecution is rightly launched against

him for the alleged offences under Sections 13(2)/13(1)(d)/7 of the P.C.

Act.

9. I have perused the entire record placed before me. Factually, it is

undisputed that Odisha Agro Industries Corporation Limited, Jajpur has

employed DSC Private Limited. Through the said private outsourcing

company, the petitioner has been employed. The petitioner has been

entrusted the job of Electrician and was in-charge of the store. It is

apparent on record that the petitioner has been working as an Electrician

since 2011. He was in-charge of the store since February, 2014. The

petitioner has been supervising the Jalanidhi-II Project. He was entrusted

to collect the documents like application form, copy of RoR of the land,

Votor Id card, Caste Certificate and photos etc. from the beneficiaries of

the Scheme. The petitioner has been collecting the documents and

sending the documents to the Head Office for sanction. On receipt of the

sanction from the Head Office, the petitioner used to ensure the deposit of

Government dues and also he collects the farmer's share of the project in

the office. He used to issue money receipts by taking the signature from

the District Manager. Primarily, he used to perform the duty of an

Electrical J.E. As the petitioner has been working as Electrician and Store

Keeper in the absence of the Electrical J.E., his duty was to assist for

installation of the project work. The work profile of the petitioner and the

duty and functions assigned to the petitioner during his office has the

colour of the official duty.

10. In that regard, it is apt to cite the judgment of the Hon'ble Supreme

Court in the case of Central Bureau of Investigation, Bank Securities

and Fraud Cell vrs. Ramesh Gelli and others, reported in (2016) 3 SCC

788. Relevant would be to reproduce paragraph-22 of the said judgment:-

<22. In a recent case of State of Maharashtra v. Brijlal Sadasukh Modani4, this Court has observed as under:

(SCC para 24) <24. As we notice, the High Court5 has really been swayed by the concept of Article 12 of the Constitution, the provisions contained in the 1949 Act and in a mercurial manner taking note of the fact that the multi-State society is not controlled or aided by the Government has arrived at the conclusion. In our considered opinion, even any grant or any aid at the time of establishment of the society or in any construction or in any structural concept or any aspect would be an aid. We are inclined to think so as the term <aid= has not been defined. A sprinkle of aid to the society will also bring an employee within the definition of <public servant=. The concept in entirety has to be observed in the backdrop of corruption.=

The Hon'ble Supreme Court in unequivocal terms has held that

even the sprinkle of aid to the society bring the employee within the

definition of public servant. In paragraph-25 of the Central Bureau of

Investigation (supra), the Hon'ble Supreme Court has also held as

under:-

<25. In Manish Trivedi v. State of Rajasthan, which pertains to a case registered against the councilor under the Prevention of Corruption Act, 1988, this Court, while interpreting the words <public servant=, made the following observations: (SCC pp. 426-29, paras 14, 16 &

19)

<14. Section 87 of the Rajasthan Municipalities Act, 1959 makes every Member to be public servant within the meaning of Section 21 of the Penal Code, 1860 and the same reads as follows:

<87. Members, etc. to be deemed public servants- (1) Every member, officer or servant, and every lessee of the levy of any municipal tax, and every servant or other employee of any such lessee shall be deemed to be a public servant within the meaning of Section 21 of the Penal Code, 1860 (Central Act 45 of 2860).

(2) The word <Government= in the definition of <legal remuneration= in Section 161 of that Code shall, for the purposes of sub-section (1) of this section, be deemed to include a Municipal Board. From a plain reading of the aforesaid provision it is evident that by the aforesaid section the legislature has created a fiction that every Member shall be deemed to be a public servant within the meaning of Section 21 of the Penal Code. It is well settled that the legislature is competent to create a legal fiction. A deeming provision is enacted for the purpose of assuming the existence of a fact which does not really exist. When the legislature creates a legal fiction, the court has to ascertain for what purpose the fiction is created and after ascertaining this, to assume all those facts and consequences which are incidental or inevitable corollaries for giving effect to the fiction. In our opinion, the legislature, while enacting Section 87 has, thus, created a legal fiction for the purpose of assuming that the Members, otherwise, may not be public servants within the meaning of Section 21 of the Penal Code but shall be assumed to be so in view of the legal fiction so created. In view of the aforesaid, there is no scope from the conclusion that the appellant is a public servant within the meaning of Section 21 of the Penal Code.

16. Under the scheme of the Rajasthan Municipalities Act it is evidence that the appellant happens to be a Councillor and a Member of the Board. Further in view of language of Section 87 of the Rajasthan Municipalities Act, he is a public servant within the meaning of Section 21 of the Penal Code. Had this been a case of prosecution under the Prevention of Corruption Act, 1947 then this would have been the end of the matter. Section 2 of this Act defines <public servant= to mean public servant as defined under Section 21 of the Penal Code. However, under the Prevention of Corruption Act, 1988, with which we are concerned in the present appeal, the term <public servant= has been defined under Section 2© thereof. In our opinion, prosecution under this Act can take place only of such persons, who come within the definition of public servant therein. The definition of <public servant= under the Prevention of Corruption Act, 1947 and Section 21 of the Penal Code is of no consequence. The appellant is sought to be prosecuted under the Prevention of Corruption Act, 1988 and, hence, to determine his status it would be necessary to look into its interpretation under Section 2(c) thereof, read with the provisions of the Rajasthan Municipalities Act.

19. The present Act (the 1988 Act) envisages widening of the scope of the definition of the expression "public servant". It was brought in force to purify public administration. The legislature has used a comprehensive definition of "public servant"

to achieve the purpose of punishing and curbing corruption among public servants. Hence, it would be inappropriate to limit the contents of the definition clause by a construction which would be against the spirit of the statute. Bearing in mind this principle, when we consider the case of the appellant we have no doubt that he is a public

servant within the meaning of Section 2(c) of the Act. Sub-clause (viii) of Section 2(c) of the present Act makes any person, who holds an office by virtue of which he is authorised or required to perform any public duty, to be a public servant. The word "office"

is of indefinite connotation and, in the present context, it would mean a position or place to which certain duties are attached and has an existence which is independent of the persons who fill it.

Councillors and Members of the Board are positions which exist under the Rajasthan Municipalities Act. It is independent of the person who fills it. They perform various duties which are in the field of public duty. From the conspectus of what we have observed above, it is evident that the appellant is a public servant within Section 2(c)(viii) of the Prevention of Corruption Act, 1988."

11. The position of law is well settled that any person who holds an

office by virtue of which he is authorized or required to perform any

public duty is a public servant. In the instant case, from the documents on

record, it is evidently clear that the petitioner has been authorized to carry

out the functions of Electrical J.E. On the basis of the authorization given

by the District Manager of the Corporation, the petitioner had been

performing the public duty. Hence, the act complained of is definitely has

the color of the official duty. In that view of the matter, the petitioner is

being rightly prosecuted for the offences under the P.C. Act. The learned

trial Court has passed the impugned order holding the petitioner as a

public servant. I find no reason to interfere with the impugned order dated

20.04.2024 passed by the learned Special Judge (Vigilance), Cuttack in