S. Murtaza Fazal Ali, J.— This appeal by certificate under Article 134 of the Constitution of India arises out of a judgment dated September 3/6, 1976 of the Bombay High Court affirming the conviction and sentence of the appellant imposed by the trial court.
2. 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, was prosecuted under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 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.
3. The counsel for the appellant argued that as a Municipal Councillor was not a “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. The High Court, however, negatived this contention and held that a Municipal Councillor was undoubtedly a ‘public servant’ and affirmed the conviction of the appellant.
4. The only point for consideration in this 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 Section 21 of the Indian Penal Code . It is not necessary for us to go into further 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 Nayak v. A.R Antulay (1984) 2 SCC 183, AIR 1984 SC 684 where this Court made the following observations:( and 42)
“Whatever that may be the conclusion is inescapable that till 1964 at any rate MLA was not comprehended in the definition of ‘public servant’ in Section 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 MLA was not comprehended as a public servant in Section 21, the next question is: did the amendment make any difference in his position. The amendment keens the law virtually unaltered. Last part of clause (9) was enacted as clause (12)(a). If MLA 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.
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Therefore, apart from anything else, on historical evolution of Section 21, adopted as an external aid to construction, one can confidently say that MLA was not and is not a ‘public servant’ within the meaning of the expression in any of the clauses of Section 21 Indian penal code .”
(emphasis supplied)
5. 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-governmental body and should be in the pay or salary of the same. Secondly, a “public servant” 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 and functions undeterred by the commands or edicts of a governmental authority. The mere fact that an MLA gets allowance by way of honorarium does not convert his status into that of a “public servant”. In Antulay case (1984) 2 SCC 183, AIR 1984 SC 684 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 Section 21 of the Indian Penal Code .
6. In these circumstances, 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.
7. For the reasons given above, we allow the appeal, set aside 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.