# RAMESH llALKRISllNA ·1WLKA&NI v. STATE OF MAllAllASl!l'RA

- **Citation:** [1985] Supp. 2 S.C.R. 345
- **Court:** Supreme Court of India
- **Decided:** 1985-07-31
- **Case number:** CRIMINAL APPELLATE JURISDIC.'TION : Criminal Appeal No. 140 of 1977
- **Bench:** S.Murtaza Fazal Ali, A. Varadarajan Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramesh-llalkrisllna-1wlka-ni-v-state-of-mallallasl-l-ra-9211
- **Pages:** 4

## Headnote

Indian Penal Code, 1860, Sec. 21 -
"Public Servant" and
"Municipal Councillor" - Distinction between- Municipal Councillor 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 Councillor" 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 meaning 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-goveromental 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
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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.

## Text

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 Councillor 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 Councillor" 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 meaning 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-goveromental 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,
however, negatived this contention and held that a Municipal CounG
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 following 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
s.21, the next question is : did the amendment make
any difference in his position. The amendment keeps
the law virtually unaltered. Last part of Clause 9 was
enacted as Clause 12(a). If M.L.A. was not comprehended in Clause 9 before its amendment and dissection,
it would make no difference in the meaning of law if a
portion of Clause 9 is re-enacted as Clause 12(a). It
must follow as a necessary corollary that the amendment of Clauses (9) and (12) by Amending Act 40 of
1964 did not bring about any change in the interpretation of Clause (9) and Clause (12) (a) after the
amendment of 1964.
Therefore, apart from anything else, on historical
evolution 6£ Section 21, adopted as an external aid to
construction, one can confidently say that M.L.A. was
not and is not a public servant within the mean! ng of
the expression in any of the clause of Section 21.
IPC ••.
(limphasis ours)
In view of this decision, therefore, we need not go to the
other authorities on the subject. Even so, we are of the opinion
that 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-goverrunental
body and should be in tne pay or salary of the same. Secondly, a
'public servant 1 is to discharge his duties in accordance with
the rules and· regulations made by the Government. On the ·other
hand, a Municipal Councillor does not owe his appointment to any
governmental authority.
Such a person is elected by the people
A
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F
G
H
I
I
348
SUPREME COURT REPORTS
[1985J.SUPP.2 s.c.a.
A
and functions undeterred by the conmands or edicts of a governmental authority. The mere fact that a Mi.A gets allowance by way
of honorariun does not convert his status into that of a 'public
ser\lant 1 • Ill Antulay's case (supra), the learned Judges of the
Constitution Bench have referred to the entire history and
evolution of the concept of a 'public servant' as contemplated by
B
s.21 of the lPC.
In these circunstiinces, we hold that the appellant, not
being a public servant, could not be prosecuted under the provisions of the Act-whether or not sanction to prosecute him is
obtained which is wholly irrelevant to. the issue.
C
For the reasons given above, we allow the appeal, set aside'
D
the conviction and sentence imposed on the appellant and acquit
him of the charges framed against him.
The appellant, who is on
bail, shall now be discharged from his bail-bond.
Fine if paid
shall be refunded to the appellant.
M.L.A. I
Appeal all~ed.
I
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