Deciding Authority: The Supreme Court of India
Name of the Judges: Syed Shah Mohammed Quadri & S.N. Phukan
Date of Judgement: 08/01/2002
Facts: The appellant at the relevant time was a Lecturer in Y.B. Chavan College, Kolhapur, State of Maharashtra, a college run by the Municipal Corporation and affiliated to the Shivaji University, Kolhapur. The appellant received a letter from the University inviting him to evaluate the papers in Accountancy (theory) at the B.Com. IInd Year examination, which was accepted. On 1st May, 1986, one Ashok Salokhe, who also appeared in the said examination, approached the appellant and expressed his inability to clear the above paper which was to be examined by the appellant. According to the prosecution, the appellant demanded Rs.400/- from him and on the next day, around 4.30 p.m., the appellant accepted Rs.400/- from him and thereafter scored out the previous marks given on the answer script and increased the number to enable the said student to get through the paper in question. It was the further case of the prosecution that private individuals tried to lay trap on 2nd May to prove acceptance of the amount by the appellant. The Registrar of the University on getting information of the alleged occurrence took away all the answer scripts from the appellant. After one week, i.e. on 9th May, 1986, the Deputy Registrar of the University filed a First Information Report before the police against the appellant. On the next day, the police searched the house of the appellant in his absence but nothing incriminating was found. Ten months after the above alleged occurrence, statements of Salokhe and one Sawant were recorded by police and thereafter charge sheet was filed against the appellant under Section 161/477A of the Indian Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and process was issued to the appellant calling upon him to stand trial for the alleged offences. The appellant approached the High Court of Judicature of Bombay by filing a Writ Petition under Article 227 of the Constitution read with Section 482 of the Code of Criminal Procedure for quashing the charges which was disposed of with the observation that ’prima facie the prosecution case seemed to be resting on flimsy foundation’. However, instead of quashing the charges directed the appellant to approach the trial court. Accordingly, an application under Section 227 of the Code of Criminal Procedure was filed before the Special Judge, which was dismissed. Being aggrieved by the said order, the appellant filed a Revision Petition before the High Court, which was also dismissed by the impugned judgment.
Judgement: Two issues are needed consideration, namely, (1) whether the appellant was a public servant at the relevant time for invoking Section 5 of the Prevention of Corruption Act, 1947, and (2) whether the charges against the appellant on the very face of it are redolent of improbability and absurdity and there is not even remote chance of the charges ultimately culminating into conviction. In case of State of Gujarat versus Manshankar Prabhasankar Dwivedi [ 1973 (1) SCC 313 ] this court held that a person appointed as an examiner by the University even if he was a lecturer of a Government College would not be a public servant within the meaning of Section 21 of the Indian Penal Code.But, under a special provision in the Shivaji University Act, 1974, namely, sub-section (4) of Section 73, the appellant was appointed by the University for a specified work, namely to evaluate answer scripts and therefore, he was a public servant at the relevant time.
Now the next question is whether a prima facie case has been made out against the appellant. After perusing the records the Court agreed with the views expressed by the High Court. The Court found that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by police after ten months of the occurrence. The Court is, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact prosecution has not been able to throw any suspicion. In case of Union of India versus Prafulla Kumar Samal & Another (1979 3 SCC 5)], the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused under Section 227 of the Code of Criminal Procedure. The Court, therefore, held that no prima facie case was made against the appellant.
Decision: The appeal is allowed.
Sudipta Bhowmick, 4th year, KIIT University
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