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’.