List of Current Affairs

Source: Delhi High Court

Why in News?

Justice Tushar Rao Gedela has observed that an Insolvency Resolution Professional (IRP) does not fall within the meaning of ‘public servant’ under Section 2(c) of the Prevention of Corruption Act, 1988.

• The Delhi High Court gave this judgment in the case of Dr. Arun Mohan v. Central Bureau of Investigation.

What is the Background of Dr. Arun Mohan v. Central Bureau of Investigation Case?

• The First Information Report (FIR) was registered under Sections 7 and 7A of the Prevention of Corruption Act, 1988, read with Section 120B of Indian Penal Code, 1860 (IPC).
• An Insolvency Professional does not fall within the meaning of ‘public servant’ as ascribed in any of the clauses of sub-section (c) of Section 2 of the Prevention of Corruption Act, 1988.
• So, the FIR registered by the respondent no.1/CBI is quashed and set aside.
• The court said that even if the roles and duties ascribed to the IRP may be bordering or falling within ‘public duties’, the same would still not assume ‘public character’.
• The omission to include IP in Section 232 Insolvency and Bankruptcy Code, 2016 (IBC) is not inadvertent but a thoughtful, willful and deliberate one by the Legislature, and the courts of law being empowered to interpret the same, ought not to legislate or supply casus omissus, which in any case is prohibited.
• Whether the IP is or is not a ‘public servant’ according to IBC or PC Act 1988 or Section 21 IPC, 1860, is purely the domain of the Legislature and if required and necessitated, the legislature may carry out necessary amendments to the legislations.

What was the Court’s Observation?

• It is not necessary that all duties which are broadly defined as ‘public duty’ would encompass within itself ‘public character’.
• Merely because the IP is vested with certain roles, responsibilities and duties which could partake the nature of ‘public duties’, it is not a necessary conclusion or a definite inference that the same are being discharged in the nature of ‘public character’.

What are the Legal Provisions Involved?

• Prevention of Corruption Act, 1988:
  • The Prevention of Corruption Act, 1988 is an act of the Parliament of India enacted to combat corruption in government agencies and public sector businesses in India.
  • Section2(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);

(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

(v)a ny person authorized by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;

(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;

(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

(viii) any person who holds an office by virtue of which he is authorized or required to perform any public duty;

(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or 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);

(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;

(xi) any person who is a Vice-Chancellor 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.

• Sections 7: Offence relating to public servant being bribed

Any Public Servant who -

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation 1. —For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

Illustration. —A public servant, ‘S’ asks a person, ‘P’ to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.

Explanation 2. —For the purpose of this section —

(i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

(ii) it shall be immaterial whether such person being a public servant obtains or accepts or attempts to obtain the undue advantage directly or through a third party.

• Section 7A deals with ‘Taking Undue Advantage to Influence Public Servant by Corrupt or Illegal means or by exercise of Personal Influence’.
• Section 232 IBC deals with ‘Members, Officers and employees of Board to the Public Servant’.
  • The Chairperson, Members, officers and other employees of the Board shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this code, to be public servants within the meaning of Section 21 of the IPC.
• Section 120B of IPC deals with ‘Punishment for Criminal Conspiracy’.
• Section 21 IPC provides the meaning of ‘Public Servant’.

Source: Andhra Pradesh High Court

Why in News?

Recently, the Andhra Pradesh High Court in the matter of Vundi Sankar Vijaya Bhaskaram v. The State of Andhra Pradesh, has held that Magistrate has the discretion in forwarding the complaint to the police as it disclosed various cognizable offences, and the police can thoroughly investigate the matter.

What was the Background of Vundi Sankar Vijaya Bhaskaram v. The State of Andhra Pradesh?

• In this case, the petitioner was appointed as a single trustee of Sri Ramalingeswara Swamy temple in Polsanapalli Village.
• On emergence of allegations of mismanagement, dishonesty, lack of devotion, misappropriation of funds, the Deputy Commissioner of Endowments, Kakinada relieved the criminal petitioner from his duties.
• This was a result of a written complaint filed by respondent before the learned Judicial First-Class Magistrate, Bhimadole.
• The complaint that was presented before the learned Magistrate was forwarded by him under Section 156(3) of the Criminal Procedure Code, 1973 (CrPC) for investigation.
• The petitioner argued that an order of the Magistrate under Section 156(3) must contain brief reasons for forwarding the complaint to the police. But the order herein was bereft of reasons.
• Thereafter, a criminal petition was filed by the petitioner before the Andhra Pradesh High Court to quash the proceedings against him.
• Dismissing the appeal, the High Court held that the criminal proceedings cannot be quashed.

What were the Court’s Observations?

• Justice Dr VRK Krupa Sagar observed that the Magistrate was right in forwarding the complaint to the police as it disclosed various cognizable offences, and the police can thoroughly investigate the matter.
• The complaint alleged various cognizable offences, the Magistrate exercised its power under Section 156(3) of CrPC for police to investigate into the voluminous documents and records maintained by temple trustee. The complaint was thoroughly investigated, and a charge sheet was also filed.
• The Court also relied on the judgment of the Supreme Court in the case of M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd v. The State of Maharashtra (2021).
  • In this case, it was held that the order of Magistrate in forwarding a complaint to the police under Section 156(3) does not really require any elaboration except a direction.

What is Section 156 of CrPC?

About:

• This section deals with the police officer’s power to investigate cognizable cases. It states that -

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned.

Case Law:

• In the case of Mohd Yousuf v. Smt. Afaq Jahan and Anr.(2006), the Supreme Court stated that any judicial magistrate might order an investigation under Section 156(3) of the Code before taking notice of the offence.

Source: Delhi High Court

Why in News?

Acting Chief Justice Manmohan and Justice Mini Pushkarna have constituted a monitoring committee to periodically review the recruitment of public prosecutors for trial courts.

• The Delhi High Court gave this judgment in the case of the Court on its own motion v. State and other connected matters.

What is the Background of Court on its own motion v. State and other connected matters?

• The bench emphasized the need for recruiting more public prosecutors and also expressed concern over the pendency of cases in trial courts in the national capital.
• The matter will now be heard in February.
• The bench was hearing a bunch of petitions, including a suo moto case registered in 2009 after a letter petition was moved highlighting the issue of undertrials languishing in jail from 5 to 12 years without a trial.
• In September, the bench had directed the Delhi Government to conduct training of the newly recruited public prosecutors in coordination with Delhi Judicial Academy.
• It had directed the Delhi Government to file a status report regarding the conduct of training programmes and also the latest position of vacancies in respect of public prosecutors.

What was the Court’s Observation?

• The DHC ordered that the monitoring committee shall comprise of the officials from various government departments, including Delhi Government's Finance and Law & Justice department and directed that the monitoring committee shall also make recommendations to the Delhi Government regarding vacancies of public prosecutors.

What is a ‘Public Prosecutor’?

• Meaning:
  • A public prosecutor is one who represents the interest of the state. A ‘Public Prosecutor’ is considered as the agent of the state to represent the interest of common people in the criminal justice system.
• Role of Public Prosecutor:
  • It is the public prosecutor who represents the interests of the state. Their role begins after the police have conducted the investigation and filed the charge sheet in court.
  • They have no role to play in the investigation. The Prosecutor must conduct the prosecution on behalf of the State.
• Section 24 of Code of Criminal Procedure, 1973: Public Prosecutors-

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).

(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an Additional Public Prosecutor only from among the persons constituting such Cadre:

• • • Provided that where, in the opinion of the State Government, no suitable person is available in such Cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District Magistrate under sub-section (4).
      • Explanation. -For the purposes of this sub-section,

(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which includes therein the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant Public Prosecutors, by whatever name called, to that post;

(b) “Prosecuting Officer” means a person, by whatever name called, appointed to perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor:

Provided that the court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.

(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the commencement of this code) service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate.