The State Of Gujarat vs Mansukhbhai Kanjibhai Shah

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.989 OF 2018 State of Gujarat …APPELLANT Versus Mansukhbhai Kanjibhai Shah …RESPONDENT

JUDGMENT

N. V. RAMANA

1. Corruption is the malignant manifestation of a malady menacing

the morality of men. There is a common perception that

corruption in India has spread to all corners of public life and is

currently choking the constitutional aspirations enshrined in the

Preamble. In this context, this case revolves around requiring

this Court to facilitate making India corruption free.

2. This Appeal is from the impugned judgment and final order

dated 02.02.2018, passed by the High Court of Gujarat at

Ahmedabad in Criminal Revision Application (against Order

passed by Subordinate Court) No. 1188 of 2017. Signature Not Verified Digitally signed by GEETA AHUJA

3. The respondent herein is allegedly a Trustee of a trust called the Date: 2020.04.27 20:32:20 IST Reason:

Sumandeep Charitable Trust, which established and sponsors

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‘Sumandeep Vidyapeeth’, a deemed University, which is the

institution concerned herein.

4. Brief facts necessary for the disposal of the case are that an FIR,

being I­ER No. 3 of 2017, dated 28.02.2017 was filed by one Dr.

Jasminaben, wife of Dilipbhai Devda, before the Vadodara City

A.C.B. Police Station against four accused persons including the

present respondent. Broadly, the allegations were that the

complainant’s elder daughter was admitted to the MBBS Course

in the above­mentioned Deemed University in the year 2012. Her

daughter’s course fee was completely paid up as per the annual

fee slab. In the year 2017, her elder daughter while filling up her

final examination form, was asked to meet the respondent

herein. On meeting, the respondent, in conspiracy with others,

had communicated that the complainant’s husband had to

further pay Rupees Twenty Lakhs for allowing the complainant’s

daughter to take the examination. Further, it is alleged that the

accused­respondent had communicated that they can deposit a

cheque and the same would be returned on payment of cash,

considering that demonetization had recently taken place. In lieu

of the same, cheques were deposited with the accused­

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respondent herein. Thereafter, the complainant, who was

unwilling to pay the amount, filed the FIR.

5. After following the necessary procedure, phenolphthalein powder

was applied to the currency notes and were delivered to accused

Vinod alias Bharatbhai Savant (the alleged companion/agent of

respondent through whom the demand was facilitated).

Thereafter, accused Vinod confirmed the receipt of money to the

respondent over the telephone. The aforesaid incriminating

conversation stood intercepted in an audio video camera set up

by the complainant. Further, separate raids were conducted

whereupon several undated cheques drawn in the name of the

institution worth more than Rs. 100 crores and certain fixed

deposits were recovered.

6. The chargesheet came to be filed on 25.04.2017 against several

accused persons, including the present respondent for various

offences under Sections 7, 8, 10 and 13 (1)(b) and 13(2) of the

Prevention of Corruption Act, 1988 [hereinafter referred to as the

‘PC Act’] read with Section 109 of Indian Penal Code, 1860

[hereinafter referred to as the ‘IPC’],.

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7. The respondent herein filed a discharge application under

Section 227 of CrPC before the District and Sessions Court in

Special ACB Case No. 2 of 2017. The District and Sessions Court

by an order dated 29.11.2017, rejected the application.

8. Aggrieved by the rejection of the aforesaid application, the

respondent herein filed a criminal revision application, being

Criminal Revision Application No. 1188 of 2017, before the High

Court of Gujarat, at Ahmedabad. The High Court, by the

impugned judgment and order dated 02.02.2018, allowed the

revision and discharged the accused­respondent herein.

9. Aggrieved by the impugned order, the State of Gujarat is in

appeal before this Court.

10. The senior counsel on behalf of the appellant submitted that the

PC Act is a comprehensive statute which was passed to prevent

corruption and therefore, should be construed liberally as the

legislature intended to include the abovementioned acts, which

harm the public at large, within the ambit of the PC Act. The PC

Act is a social legislation intended to curb illegal activities of

public servants and is designed to be construed so as to advance

its objectives. The Courts, while keeping the public interest in 4 5

mind, must ensure that technicalities should not defeat the

object sought to be achieved.

11. The counsel further argued that public function need not be the

exclusive domain of the State; private institutions such as

universities may also perform a public function. The counsel

placed reliance upon Modern Dental College & Research

Centre v. State of Madhya Pradesh., (2016) 7 SCC 353 and

Janet Jeyapaul v. SRM University., (2015) 16 SCC 530 to state

that imparting education to the public is a welfare activity and

hence can be called as an activity done for public good.

Considering the UGC guidelines, the counsel submitted that

Deemed Universities effectively discharge the public function of

imparting education to the public.

12. Moreover, the counsel placed reliance upon the case of K.

Veeraswami v. Union Of India, (1991) 3 SCC 655 to submit

that there is no requirement of having a master­servant

relationship between the competent authority and the public

servant. The PC Act does not define public servant, rather, it

provides categories of the same. The counsel further stated that

the lack of any authority to grant the sanction cannot result in

non­prosecution. In such situations, there is no necessity for 5 6

obtaining sanction. In any case, the sanction was obtained from

the Charity Commissioner out of abundant caution.

13. Lastly, the counsel submitted that the respondent was

discharging a public duty. In the present facts, it was a pre­

condition to pay the respondent before obtaining an examination

pass, although he was never formally assigned this task or role.

The counsel therefore concluded that there need not be a

requirement of positive command under the law to discharge his

public duty. In fact, there may not be any formal requirement of

providing remuneration or payment in lieu of the service

rendered.

14. On the contrary, the counsel on behalf of the respondent

submitted that it is a settled principle of law that a criminal

statute has to be construed strictly. In cases where two

interpretations are possible, the Courts must lean towards the

construction which exempts the subject from penalty rather than

the one which imposes the same.

15. The counsel further vehemently argued that the respondent,

being a trustee, cannot be termed as a Public Servant. There is

no allegation in the charge sheet that the respondent was holding

any position or post in the institution which was Deemed to be

University or that he was engaged by the institution for rendering 6 7

any service. In light of the above fact, the High Court was correct

in discharging the respondent as he does not qualify within the

ambit of Section 2 (c)(xi) of the PC Act.

16. Moreover, the counsel argued that the High Court has correctly

held that the relevant provision as laid down under Section 2 (c)

(xi) is inapplicable in the present case as the said Institution was

a “deemed to be university”. Finally, the counsel argued that no

valid or proper sanction was obtained for prosecuting the

respondent. The sanction obtained from the Charity

Commissioner is not valid as he cannot be considered as a

Competent Authority, since he does not have the power to remove

or appoint a Trustee.

17. Having heard the learned counsel for the parties, the questions to

be answered herein are­ i. Whether the respondent­trustee is a ‘public servant’ covered under Section 2(c) of the PC Act?

ii. Whether the accused­respondent can be discharged under Section 227 of CrPC?

18. The first question before us, that is, whether the respondent­who

is allegedly a trustee in the Sumandeep Charitable Trust which

established and sponsors the said University (‘Deemed to be

University’) is a ‘public servant’ covered under Section 2(c) of the

PC Act, can be broken up into two parts: first, whether the

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‘Deemed University’ is covered under the provisions of the

Prevention of Corruption Act, 1988, and secondly, whether the

‘respondent­trustee’ can be termed as ‘public servant’ under

Section 2(c)(xi) of the PC Act?

19. Before we proceed further, we need to observe the relevant

provisions under the PC Act:

2(c.). "public servant" means­

…

(xi) any person who is a Vice­Chancellor 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;

20. Simply speaking, any person, who is a Vice­Chancellor, any

member of any governing body, professor, reader, lecturer, any

other teacher or employee, by whatever designation called, of any

University, is said to be a public servant. Further, the definition

inter alia, covers any person whose services have been availed of

by a University, or any other public authority in connection with

holding or conducting examinations.

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21. However, the interpretative necessity arises in this case due to

the fact that the ambit of the term ‘University’, as occurring

under Section 2(c)(xi) of the PC Act, has not been clearly defined

and the question arises as to whether the same covers ‘deemed to

be University’ as well. In this regard, we need to observe certain

ground rules on interpretation, concerning the PC Act.

22. There is no gainsaying that nations are built upon trust. It is

inevitable that in a democracy one needs to rely on those with

power and influence and to trust them of being transparent and

fair. There is no doubt that any action which is driven by the self­

interest of these powerful individuals, rather than the public

interest, destroys that trust. Where this becomes the norm,

democracy, the economy and the rule of law, all take a beating,

ultimately putting the whole nation at risk. Corrupt societies

often spring from the examples set at the highest levels of

government, but small­scale corruption can be equally insidious.

In this regard, the PC Act was formulated to bring about

transparency and honesty in public life, as indicated by its

objects and reasons. We need to keep the aforesaid legislative

intention in mind while interpreting the provisions of the PC Act.

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23. Learned senior counsel for the appellant­State, vehemently

contended that the PC Act, being a welfare legislation, cannot be

narrowly interpreted, and rather, that a broad interpretation

needs to be provided for the same [refer State of Madhya

Pradesh v. M. V. Narasimhan, (1975) 2 SCC 377; M.

Narayanan Nambiar v. State of Kerala, (1963) Supp. (2) SCR

724].

24. The golden rule of interpretation for any penal legislation is to

interpret the same strictly, unless any constitutional

considerations are involved, and in cases of ambiguity, the

benefit of the same should enure in favour of the accused. Having

said so, we need to clarify that strict interpretation does not

necessarily mean literal interpretation in all cases, rather the

interpretation should have regards to the genuine import of the

words, taken in their usual sense [refer Commissioner of

Customs (Import), Mumbai v. Dilip Kumar & Company, (2018)

9 SCC 1].

25. However, we are concerned herein with interpreting the

provisions of the PC Act. There is no dispute that corruption in

India is pervasive. Its impact on the nation is more pronounced,

due to the fact that India is still a developing economy. Presently, 10 11

it can be stated that corruption in India has become an issue

which affects all walks of life. In this context, we must state that

although anti­corruption laws are fairly stringent in India, the

percolation and enforcement of the same are sometimes criticized

as being ineffective. Due to this, the constitutional aspirations of

economic and social justice are sacrificed on a daily basis. It is in

the above context that we need to resolve the issues concerned

herein.

26. In Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC

64, this Court observed:

“68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti­corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.” 11 12

(emphasis supplied)

27. We shall accordingly have due regard to the aforesaid principles

while interpreting the provisions herein. The point of contention

relates to whether a deemed University would be included within

the ambit of the PC Act, particularly under Section 2(c)(xi) of the

same, where the word used is “University”. The learned senior

counsel for the appellant­State submits that the word

“University” as used in Section 2(c)(xi) of the Act, must be

purposively interpreted. An institution which is “deemed to be a

University” under the University Grants Commission Act, 1956

[UGC Act] plays the same role in society as a “University”. These

institutions have the common public duty of granting degrees,

which are ultimately qualifications recognized in society. As such,

an institution which is “deemed to be University”, such as the

institution in the present case, is included within the ambit of the

term “University” used under the Act.

28. On the other hand, the learned senior counsel for the

respondent, supporting the decision of the High Court in the

impugned judgment, submits that the term “University” as used

in Section 2(c)(xi) of the PC Act, does not include an institution

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which is “deemed to be a University”. The learned senior counsel

submitted that the inclusive definition of a “University” under the

UGC Act is only for the limited purpose of funding, and an

institution which is “deemed to be a University” is not a

University for any other purpose. The learned senior counsel

submitted that the same is abundantly clear from the provisions

of the UGC Act, which makes a distinction between a

“University”, and an institution “other than a University” which is

“deemed to be a University”.

29. At this juncture, it would be apposite to look to the holding of the

High Court in the impugned judgment on this point:

“27.…However, the fact remains that either as a trustee or in any other capacity, even if applicant is connected with Sumandeep Vidyapith, which is not a regular University getting Government grant in any manner whatsoever and thereby, when there is no dispute that it is only a Deemed University, the submissions recorded herein above on behalf of the applicant makes it clear that such Deemed University cannot considered as a regular University and thereby, applicant cannot be termed as a public servant and therefore, irrespective of such change report after the complaint, it is clear and obvious that applicant cannot be termed as a public servant.” (emphasis supplied)

30. The counsel for the respondent has contended that the term

“University” needs to be read in accordance with the Section 2(f),

13 14 3 and 23 of the UGC Act, wherein a “deemed University” is

different from a “University”, stricto sensu. However, we do not

subscribe to such contention for the reasons provided below.

31. The contention of the respondent is that the term “University”

needs to be read in accordance with the UGC Act, wherein only

those Universities covered under the Section 2(f) of the UGC Act

are covered under the PC Act. Such an interpretation, by

importing the technical definition under a different Act may not

be feasible herein. It is a settled law that technical definitions

under one statute should not be imported to another statute

which is not in pari materia with the first. The UGC Act and the

PC Act are enactments which are completely distinct in their

purpose, operation and object. The preamble of the UGC Act

states that it is ‘an Act to make provision for the co­ordination and

determination of standards in Universities, and for that purpose, to

establish a University Grants Commission’. On the other hand,

the PC Act is an enactment meant to curb the social evil of

corruption in the country. As such, the extension of technical

definitions used under one Act to the other might not be

appropriate, as the two Acts are not in pari materia with one

another.

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32. The above principle of law was recently applied by a 3­Judge

Bench of this Court in Bangalore Turf Club Ltd. v. Regional

Director, ESI Corporation, (2014) 9 SCC 657, where an

argument was advanced by counsel that the interpretation of the

term ‘shop’ under the ESI Act should be determined in light of

the definition of the same under the relevant Shops and

Commercial Establishments Act. Negativing this contention of the

counsel, the Court went on to hold that:

“52. An argument raised by the appellants herein is the issue relating to the “doctrine of pari materia”. It is contended that since the ESI Act does not define the term “shop”, the said definition may be ascertained in the light of the definitions under the relevant Shops and Commercial Establishments Act as enacted by the respective State Legislatures, since the purpose and object of both the enactments are one and the same.

53. For the above purpose, it would be necessary to look into the concept of “doctrine of pari materia” and further ascertain whether the given statutes are in fact pari materia with the ESI Act. It is settled law that two statutes are said to be in pari materia with each other when they deal with the same subject­ matter. The rationale behind this rule is based on the interpretative assumption that words employed in legislations are used in an identical sense. However, this assumption is rebuttable by the context of the

15 16

statutes. According to Sutherland in Statutes and Statutory Construction, Vol. 2, 3rd Edn.:

“Statutes are considered to be in pari materia to pertain to the same subject­ matter when they relate to the same person or things, or to the same class of persons or things, or have the same purpose or object.”

…

58. It can be concluded that though the ESI Act, the 1948 Act and the 1961 Act deal with labour and workmen, in essence and spirit they have a different scope and application. The Acts do not appear to have any overlap in their fields of operation and have mutually exclusive schemes.

Therefore, the argument that the Acts are pari materia with each other, must fail.

59. This Court must also address the issue that arose in the course of the arguments that the word “shop” has been used in the impugned notifications as well as the 1948 Act and the 1961 Act and therefore assistance may be taken from the latter statutes to interpret the notification. This argument, in light of the above discussion, does not appeal to us…”

(emphasis supplied)

It is for the same reasoning that we are of the opinion that the

High Court’s reliance on the judgment of this Court in Orissa 16 17

Lift Irrigation Corporation Ltd. v. Rabi Sankar Patro, (2018)

1 SCC 468 was not appropriate, as the same was with reference

to enactments relating to administration/regulation of

universities, and is unconnected with the objects of the PC Act.

33. This brings us to the conclusion that purport of UGC Act cannot

be borrowed under the PC Act, and that an independent meaning

needs to be provided for the term “University” as occurring under

the PC Act. In India, there are 12,206 Universities under Section

2(f) and 12B of the UGC Act, as of 31.07.2019. While there are

about 124 deemed universities across India, as of 23.06.2008.

The education sector in India has seen a general rise. There is no

dispute that the education sector, which is a very important

service sector in the country, has seen various scandals. In this

context, we need to understand whether a deemed university

would be covered within the ambit of the Section 2(c)(xi) of the PC

Act.

34. On a perusal of Section 2(c) of the PC Act, we may observe that

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

it is on the public duty performed by him/her. In this regard, the

legislative intention was to not provide an exhaustive list of

authorities which are covered, rather a general definition of

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‘public servant’ is provided thereunder. This provides an

important internal evidence as to the definition of the term

“University”.

35. The use of ‘any’ is critical in our understanding as to the term

University. We are aware of the line of authorities, wherein this

Court has reduced the impact of term ‘any’ to not mean ‘every’

[See Hira Devi v. District Board, Shahjahanpur, (1952) S.C.R.

1122]. However, we cannot accept such a view as the context in

which the present dispute emanates, differs from the above.

36. Our attention was also drawn to the notes on clauses of

Prevention of Corruption Bill dated 20.02.1987. 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:

“2. 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. The definition of ‘election’ is based on the definition of this expression in the Penal Code, 1860.”

(emphasis supplied)

18 19

37. Additionally our attention is drawn to the legislative debates

which took place prior to the enactment of the PC Act. It was

uniform across the party line that the purpose of preventing

corruption in educational institutions was emphasised.

38. Coming to external aids of interpretation, the word “University” is

etymologically derived from the Latin, universitas magistrorum et

scholarium, which roughly means "community of teachers and

scholars". Black’s Law dictionary defines “University” as:

“An institution of higher learning, consisting of an assemblage of colleges united under one corporate organization and government, affording instruction in the arts and sciences and the learned professions. and conferring degrees. See Com. v. Banks, 198 Pa.

397. 48 Atl. 277.”

39. Law Lexicon, defines the same as:

“A corporation of teachers or assemblage of learned men or colleges for teaching the higher branches of learning: ;and having power to confer degrees.

University. A place where all kinds of literature are universally taught. (Tomlin’s Law Dic.) See also Act VIII of 1904, S.2, Cl. (2)(c).

A University, of normal type, may be described in popular language as an organization of teachers and learners, settled in a fixed locality, for the purpose of nature study, in which the body of teachers has 19 20

authority to attest the proficiency of the learners, by bestowing upon them titles, signifying that they also possess the qualifications and are admitted to the rank of those that are learned in the particular branch of knowledge in which they are taught.

The term ‘University’ is usually understood to mean a body incorporated for the purpose of learning, with various endowments and privileges. Such bodies were anciently founded by papal bull or charter, later by royal charter or act of Parliament. University is a corporation aggregate­Aggregation of corporations­ The corporations are usually colleges or schools.”

40. Third Edition of Halsbury's, Volume 13, page 707, at para 1441

deals with the term “Universities”. According to the same:

“The word "university is not a word of art and, although the institutions to which it refers are readily identifiable, precise definition is difficult. The essential features of a university seems to be that it was incorporated as such by the sovereign power.

Other attributes of a university appear to be the admission of students from all parts of the world, a plurality of masters, the teaching of one at least of the higher faculties, namely theology, law or philosophy, which in some definitions are regarded as identical, and medicine, provision for residence, and the right to confer degrees, but possession of these attributes will not make an institution a university in the absence of any express intention of the sovereign power to make it one.

Incorporation was anciently affected by papal bull or charter later by royal charter or Act of Parliament.”

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41. In Words and Phrases, Permanent Edn. (West Publishing

Company), the word “Universities” is defined as follows:

“Universities:

Bodies politic and corporate have "been known to exist as Far back at last as the time of Cicero, and Gaius traces them even to the laws of Solon of Athens, who lived some 500 years before…. And from time immemorial, as at the present day, this privilege of being a corporation or artificial body of individuals, with power of holding their property, rights, and immunities in common as a legally organized body and of transmitting the same in such body by an artificial succession different from the natural succession of the property of individuals has been considered a franchise which could not be lawfully assumed by any associated body without a special authority for that purpose from the government or sovereign power."

42. Under the UGC Act, University is defined and recognized under

Section 2(f) in the following manner:

“University” means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recoginsed by the Commission in accordance with the regulations made in this behalf under this Act.

43. A ‘deemed to be University’ is recognized under Section 3 of the

UGC Act, in the following manner:

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Application of Act to institutions for higher studies other than Universities

3. The Central Government may, on the advice of the Commission, declare by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of section

2.

44. As discussed earlier, the object of the PC Act was not only to

prevent the social evil of bribery and corruption, but also to make

the same applicable to individuals who might conventionally not

be considered public servants. The purpose under the PC Act was

to shift focus from those who are traditionally called public

officials, to those individuals who perform public duties. Keeping

the same in mind, as rightly submitted by the learned senior

counsel for the appellant­State, it cannot be stated that a

“Deemed University” and the officials therein, perform any less or

any different a public duty, than those performed by a University

simpliciter, and the officials therein.

45. Therefore, for all the above reasons, we are of the opinion that

the High Court was incorrect in holding that a “Deemed

22 23

University” is excluded from the ambit of the term “University”

under Section 2(c)(xi) of the PC Act.

46. Having come to the above conclusion, in the present case, the

pivotal question is whether the appellant­trustee in the Board of

‘Deemed to be University’ is a ‘public servant’ covered under

Section 2(c) of the PC Act. Recently, this Court in the case of CBI

v. Ramesh Gelli, (2016) 3 SCC 788, dealt with the question as to

whether Chairman, Directors and officers of a private bank before

its amalgamation with a public sector bank, can be classified as

public servants for prosecution under the PC Act. While dealing

with the aforesaid proposition of law, the Court analysed the

purpose and scope of the PC Act and made the following

observations:

“15. From the Statement of Objects and Reasons of the PC Bill it is clear that the Act was intended to make the anti­corruption law more effective by widening its coverage. It is also clear that the Bill was introduced to widen the scope of the definition of “public servant”. Before the PC Act, 1988, it was the Prevention of Corruption Act, 1947 and Sections 161 to 165­A in Chapter IX IPC which were governing the field of law relating to prevention of corruption. Parliament repealed the Prevention of Corruption Act, 1947 and also omitted Sections 161 to 165­A IPC as provided under Sections 30 and 31 of the PC Act, 1988. Since a new definition of “public

23 24

servant” is given under the PC Act, 1988, it is not necessary here to reproduce the definition of “public servant” given in Section 21 IPC.

…

17. The above definition shows that under sub­ clause (viii) contained in Section 2(c) of the PC Act, 1988, a person who holds an office by virtue of which he is authorised or required to perform any public duty, is a public servant. Now, for the purposes of the present case this Court is required to examine as to whether the Chairman/Managing Director or Executive Director of a private bank operating under licence issued by RBI under the Banking Regulation Act, 1949, held/holds an office and performed/performs public duty so as to attract the definition of “public servant” quoted above.” (emphasis supplied)

47. This Court in the case of P.V. Narasimha Rao v. State

(CBI/SPE), (1998) 4 SCC 626, has clarified the word “office” in the

following manner:

“61. … The word ‘office’ is normally understood to mean ‘a position to which certain duties are attached, especially a place of trust, authority or service under constituted authority’. (See Oxford Shorter English Dictionary, 3rd Edn., p. 1362.) In McMillan v. Guest, (1942) 1 All ER 606 (HL), Lord Wright has said:

‘…The word “office” is of indefinite content. Its various meanings cover four 24 25

columns of the New English Dictionary, but I take as the most relevant for purposes of this case the following:

“A position or place to which certain duties are attached, especially one of a more or less public character.”’

In the same case Lord Atkin gave the following meaning:

‘…“an office or employment which was subsisting, permanent, substantive position, which had an existence independent of the person who filled it, which went on and was filled in succession by successive holders.”’

In Statesman (P) Ltd. v. H.R. Deb, AIR 1968 SC 1495 and Mahadeo v. Shantibhai, (1969) 2 SCR 422 this Court has adopted the meaning given by Lord Wright when it said:

‘An office means no more than a position to which certain duties are attached.’”

48. This Court in the case of Manish Trivedi v. State of Rajasthan,

(2014) 14 SCC 420 further elucidated upon the ambit of the

phrase “public servant” by stressing upon the relevance of

“office”, wherein the emphasis was upon the duties performed.

The Court noted therein:

“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 25 26

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. 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.” (emphasis supplied)

49. In order to appreciate the amplitude of the word “public servant”,

the relevance of the term “public duty” cannot be disregarded.

“Public duty” is defined under Section 2(b) of the PC Act, which is

reproduced below:

2(b) ‘public duty’ means a duty in the discharge of which the State, the public or the community at large has an interest.

50. Evidently, the language of Section 2(b) of the PC Act indicates

that any duty discharged wherein State, the public or community

at large has any interest is called a public duty. The first

explanation to Section 2 further clarifies that any person who

falls in any of the categories stated under Section 2 is a public 26 27

servant whether or not appointed by the government. The second

explanation further expands the ambit to include every person

who de facto discharges the functions of a public servant, and

that he should not be prevented from being brought under the

ambit of public servant due to any legal infirmities or

technicalities.

51. In the present case, on a prima­facie evaluation of the statements

of the Gaurav D. Mehta (the Vice­Chancellor); Mr.

Pragneshkumar Rameshbhai Trivedi (account officer of

Sumandeep Vidhyapith University) and other witnesses it

appears that the present respondent was the final authority with

regard to the grant of admission, collection of fees and donation

amount.

52. The charge sheet specifically discloses that the respondent

allegedly was collecting certain extra amount over the prescribed

fees on the pretext of allowing the students to fill up their

examination forms. Therefore, paying the respondent the alleged

amount was a condition precedent before filling up the forms, to

appear for the examinations. Specifically, in the complaint, it was

alleged that the respondent had demanded an amount of Rupees

Twenty Lakhs to be paid to the co­accused Bharat Savant, failing

27 28

which the daughter of the complainant would not have been

permitted to appear in the examination. In our opinion, the fact

that there were a large number of cheques which were found

during the raid is more than sufficient to establish a grave

suspicion as to the commission of the alleged offence.

53. The respondent has vehemently stressed upon the fact that he is

admittedly a trustee of the “Sumandeep Charitable Trust” and

has no connection with the “Sumandeep University”. But, it

ought to be noted that the courts below have failed to analyze the

connection between the trust and the University, as well as the

relationship of the respondent with the university. Prima facie, a

grave suspicion is made out that the respondent was rendering

his service by dealing with the students and the examination

aspect of the University. But a detailed appreciation of evidence

is called for before one can reach a conclusion as to the exact

position of the respondent vis­à­vis the University.

54. At this stage, we may note that the jurisdiction of this Court, with

regards to Section 227 of CrPC, is limited and should not be

excercised by conducting roving enquiries on the aspect of factual

inferences. This Court, in Union of India Vs. Prafulla Kumar

28 29

Samal, 1979 (3) SCC 4, had an occasion to consider the scope of

Section 227 CrPC and it held as under:

“7. Section 227 of the Code runs thus:

“If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

The words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.”

55. Further, in Sajjan Kumar v. Central Bureau of Investigation,

2010 (9) SCC 368, this Court, inter alia, observed : 29 30

“21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

…

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial…”

56. Therefore, in line with the aforesaid proposition, this case is not

an appropriate one to have exercised the power under Section

227 to discharge the accused­respondent herein, having regards

to the facts and circumstances of the case. However, it should be

noted that this judgment is rendered for a limited purpose, and

we have not expressed any opinion on the merits of the case. The

trial court is directed to proceed with the case expeditiously.

57. Accordingly, the impugned judgment of the High Court is set

aside. Appeal is allowed.

……….........................J. (N.V.Ramana)

……….........................J. (Mohan M. Shantanagoudar)

NEW DELHI;

April 27, 2020.

30 31

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO(S). 989 OF 2018

STATE OF GUJARAT ….APPELLANT(S)

VERSUS

MANSUKHBHAI KANJIBHAI SHAH ….RESPONDENT(S)

JUDGMENT

Ajay Rastogi, J.

1. I have had the advantage of going through the draft

judgment proposed by my esteemed Brother Mr. Justice N.V.

Ramana. I entirely agree with the conclusions which my erudite

Brother has drawn, based on the remarkable process of

reasoning. I would all the same like to add some of my views, not

because the judgment requires any further elaboration but

31 32

looking for the question of law that emerged of considerable

importance.

2. The question that emerged for consideration in the present

appeal is whether the respondent­trustee in the board of ‘deemed

to be university’ is a ‘public servant’ covered under Section 2(c )

(xi) of the Prevention of Corruption Act, 1988(hereinafter being

referred to as “Act 1988”).

3. Zero tolerance towards corruption should be the top­notch

priority for ensuring system based and policy driven, transparent

and responsive governance. Corruption cannot be annihilated

but strategically be dwindled by reducing monopoly and enabling

transparency in decision making. However, fortification of social

and moral fabric must be an integral component of long­term

policy for nation building to accomplish corruption free society.

4. The Prevention of Corruption Act, 1947 was amended in

1964 based on the recommendations of the Santhanam

Committee. Although, there are provisions in Chapter IX of the

Indian Penal Code to deal with public servants and those who

abet them by way of criminal misconduct, they were found to be

inadequate to deal with the offence of corruption effectively. 32 33

5. To make the anti­corruption laws more effective, the

Prevention of Corruption Bill was introduced in the Parliament.

The object and statement of reasons of the Act, 1988 was

intended to make the existing anti­corruption laws more effective

by widening their coverage and by strengthening the provisions.

The Act 1988 caters to its wide scope by providing for “different

paths to liability, some of which are especially suited to, but by

no means confined to, those who hold public office.”

6. There are number of judicial precedents dealing with the

definition and meaning of corruption. The simplest definition of

corruption is, any act or omission by a public servant for

securing pecuniary or other material advantage directly or

indirectly for himself, his family or friends. It will be apposite to

refer the provisions of the Act, 1988 relevant for the purpose ad

infra:­

(c) “public servant” means—

(i)­(x)…..

(xi) any person who is a Vice­Chancellor or member of any governing body, professor, reader, lecturer or any their teacher or employee, by whatever designation called, of any University and any person whose services have been availed of

33 34

by a University or any other public authority in connection with holding or conducting examinations;

(xii)…” (Emphasis supplied)

7. It will be relevant to note that prior to the Act, 1988,

employees of the university, professors, readers, etc. were not

covered within the definition of ‘public servant’ as it was

contained in Section 21 of the Indian Penal Code. Thrust of

submission of the learned counsel for the respondent is that

respondent herein who is a trustee of deemed to be university

which cannot by any stretch of imagination be construed to be a

public servant and would not fall within the ambit of Section 2(c )

(xi) of the Act, 1988. The High Court although has accepted the

contention of the learned counsel for the respondent on the said

premise but it needs to be examined in the context in which the

term “University” has been referred to under Section 2(c )(xi) of

the Act, 1988.

8. The UGC Act was established by an Act of 1956 to make

provisions for the coordination and determination of standards of

education in universities. “University” has been defined under

Section 2(f) of the UGC Act and those who are declared as

34 35

‘deemed to be university’, a declaration has to be notified under

Section 3 with restrictions which has been imposed upon the

deemed to be university as referred to under Section 23 of the

UGC Act. The relevant Sections of the UGC Act are as infra:­

“Section 2(f) – “University” means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under this Act.

Section 3 ­ The Central Government may, on the advice of the Commission, declare by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of clause (f) of Section 2.

Section 23 – No institution, whether a corporate body or not, other than a University established or incorporated by or under a Central Act, a Provincial Act or a State Act shall be entitled to have the word “University” associated with its name in any manner whatsoever. Provided that nothing in this Section shall, for a period of two years from the commencement of this Act, apply to an institution which, immediately before such commencement, had the word “University” associated with its name.”

9. “University” under Section 2(f) of the UGC Act is established

either in the Central Act, a Provincial Act or a State Act. At the

same time, such of the institutions for higher education other

than the University created under the statutory enactment, after

being declared by the Central Government by notification in the

35 36

Official Gazette, shall be deemed to be university for the purposes

of this Act and all provisions of the UGC Act shall apply to such

institutions as if it were a university within the meaning of clause

(f) of Section 2 of the Act.

10. It cannot be lost sight of that the Act, 1988, as its

predecessor that is the repealed Act of 1947 on the same subject,

was brought into force with avowed purpose of effective

prevention of bribery and corruption. The Act of 1988 which

repeals and replaces the Act of 1947 contains a definition of

‘public servant’ with vide spectrum in clause (c ) of Section 2 of

the Act, 1988, so as to purify public administration. The objects

and reasons contained in the Bill leading to passing of the Act

can be taken assistance of, which gives the background in which

the legislation was enacted. When the legislature has introduced

such a comprehensive definition of “public servant” to achieve the

purpose of punishing and curbing the growing menace of

corruption in the society imparting public duty, it would be

apposite not to limit the contents of the definition clause by

construction which would be against the spirit of the statute.

36 37

11. By introduction of Section 2(c )(xi) of the Act, 1988, any

person or member of any governing body with whatever

designation called of any university has been included in the

definition of “public servant” and any university includes all

universities regardless of the fact whether it has been established

under the statute or declared deemed to be university under

Section 3 of the UGC Act. It is true that the distinction has been

pointed out by the Parliament under the provisions of the UGC

Act for consideration and determination of standards of

education in universities, but in my view, no distinction could be

carved out between the university and deemed to be university so

far it relates to the term ‘public servant’ as defined under Section

2(c ) (xi) of the Act 1988.

12. In construing the definition of ‘public servant’ in clause (c )

of Section 2 of the Act 1988, the Court is required to adopt an

approach as would give effect to the intention of the legislature.

The legislature has, intentionally, while extensively defining the

term ‘public servant’ in clause (c ) of Section 2 of the Act and

clause (xi) in particular has specifically intended to explore the

word ‘any’ which includes all persons who are directly or

37 38

indirectly actively participating in managing the affairs of any

university in any manner or the form. In this context, the

legislature has taken note of ‘any’ person or member of “any”

governing body by whatever designation called of “any” university

to be termed as ‘public servant’ for the purposes of invoking the

provisions of Act 1988.

13. Heavy reliance was placed on the judgment in Orissa Lift

Irrigation Corporation Vs. Rabi Sankar1 wherein, the scope

and parameters were examined by this Court under which the

deemed to be university would regulate its educational fora under

the regulations framed by the UGC for the purpose of imparting

education by the deemed to be university.

14. But so far as the present case is concerned, the question for

consideration is the term ‘any’ university in the broader spectrum

to curb corruption in the educational institutions as referred to

under Section 2(c )(xi) of Act 1988 and the legislature in its

wisdom has referred to the word “any university” which clearly

mandates the university referred to and controlled by its

statutory mechanism referred to under Section 2(f) and deemed

to be university under Section 3 of the UGC Act. 1 2018(1) SCC 468 38 39

15. In my considered opinion, the view expressed by the High

Court is unsustainable in law and all the questions raised on

merits are left open to the respondent to urge during the course

of the trial. The appeal is accordingly allowed. The judgment of

the High Court of Gujarat dated 2 nd February 2018 is hereby set

aside. No costs.

……………………………………J. (AJAY RASTOGI)

NEW DELHI APRIL 27, 2020

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