RAMESH BALKRISHNA KULKARNI versus STATE OF MAHARASHTRA

Citation: [1985] SUPP. 2 S.C.R. 345 · Decided: 31-07-1985 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

345 
RAMESH llALKRISllNA ·1WLKA&NI 
v. 
STATE OF MAllAllASl!l'RA 
JULY 31, 1985 
[S.MURTAZA FAZAL ALI AND A. VARADARAJAN JJ.j 
Indian Penal Code, 1860, Sec. 21 -
"Public Servant" and 
"Municipal Councillor" - Distinction between- Municipal Council-
lor is not a "Public Servant". 
Section 161 IPC and Sec. 5 (l)(d) read with. sec. 5(2) of 
Prevention of Corruption Act.- Prosecution of a "Municipal Coun-
cillor" under - Whether legal. 
The appellant, a Mund pal Councillor, .was prosecuted u/ s 
161, lPC and s.5 (l)(d) read with Sec. 5(2) of the Prevention of 
Corruption Act_. 
The trial Court convicted him of the aforesaid 
charges. 
On appeal, the High Court, confirmed his conviction and 
sentence. 
In apppal to this Court, the appellant contended that as a 
Municipal Couocillor was not a 1 public servant' within the mean-
ing of Section 21 of the Indian Penal Code, he could not be 
prosecuted under the Act even if sanction for his prosecution.was 
obtained. 
Allowing the appeal, 
HELD : l. The appellant, not being a public servant, could 
not be prosecuted under the provisiona of the Act - whether or 
not sanction to prosecute him is 
obtained which 
is wholly 
irrelevant to the issue. [348 B-Cj 
2. 
The concept· of a 'public servant' is quite different 
from that of a · Municipal Councillor. 
A 'public servant' is an . 
authority who must be appointed by Government or a semi-govero-
mental body and shoul\i be ·in the pay or salary of the same. 
Secondly, a 'public servant' is to discharge his duties in 
accordance with the rules and regulationa 
made by the Govero-· 
ment; 
On the other hand, a Municipal Couocillot does not owe his 
appointment . to any governmental authority. 
Such a person is 
elected by the people and functions undeterred by the commands or 
A 
ll 
c 
lJ 
F 
G 
A 
lS 
c 
346 
SUPREME COURT Rl>PORTS 
[1985] SUPP.2 s.c.R. 
edicts of 
a governmental authority. 
Therefore, a Municipal 
Councillor is not a 'public servant' within the meaning of Sec. 
21 IPC. [347 G-1!, 348 A] 
a.s. Nayak v. A.R.Antulay, AIR 1984 s.c.684, followed. 
CRIMINAL APPELLATE JURISDIC.'TION : Criminal Appeal No. 140 
of 1977. 
From the Judgment and Order dated 3/6.9.1976 of the !Sombay 
High Court in Criminal Appeal No. 103 of 1975. 
S.K. Agnihotri and V.N. Ganpule for the Appellant. 
V.B. Joshi and M.N. Shroff for the Respondents. 
The Judgment of the Court was delivered by 
FAZAL ALI, J. 
This appeal by Certificate under Article 134 
of the Constitution of India arises out of a judgment dated 
D 
3/6.9.76 of the !Sombay High Court affirming the conviction and 
sentence of the appellant imposed by the trial court. 
The short point on which certificate was granted and the 
case has been argued by both the parties falls within a very 
narrow compass. The appellant, who was a Municipal Councillor, 
E 
was prosecuted under section 161 of the Indian Penal Code and 
s.5(l)(d) read with s.5(2) of the Prevention of Corruption Act 
(hereinafter referred to as the 'Act'). 
The High Court, after 
holding that sanction by the competent authority to prosecute the 
appellant was valid, confirmed his conviction and sentence. 
Hence, this appeal. 
F , 
The counsel for the appellant argued that as a Municipal 
Councillor was not a 'public servant' within the meaning of s .21 
of the IPC, he could not be prosecuted under the Act even if 
sanction for his prosecution was obtained. 
The High Court, 
how-
ever, negatived this contention and held that a Municipal Coun-
G 
cillor was undoubtedly a 
'public servant' and affirmed the 
conviction of the appellant. 
the only point for consideration in thi.s appeal before us is 
whether or not a Municipal Councillor who was not assisting any 
public servant is a 'public servant' within the meaning of s.21 
I! 
of the IPC. 
It is not necessary for us to go into further 
R.B.KULKARNI v. STATE 
[FAZAL ALI, J ·] 
347 
details as the matter is no longer res integra and is·covered by 
a recent decision of this Court in the case of R.S. Nayalt v. A.R. 
Antulay, A.I.R. 1984 s.c. 684, where this Court made the follow-
ing observations : 
"Whatever that may be, the conclusion is inescapable 
that till 1964 at any rate M.L.A. was not comprehended 
in the definition of 'public servant' in s.21. And the 
Santhanam Committee did not recommend its inclusion in 
the definition of 'public servant' in section 21 
•••••• Now if prior to the enactment of Act 40 of 1964. 
M. L.A. was not comprehended as a public servant in
Excerpt shown. Read the full judgment & AI analysis in Lexace.