Sarkaria, J. - (1.) The appellant is a Councillor representing Perambur Division of the Madras Corporation. He was also a member of the Taxing Committee ofthe Municipal Council. He along with other accused is standing trial in the Court of the Fifth Additional Special Judge, Madras City on four charges namely:"1. 328thly, that you Accused 78 between November 1971 and November 1973 at Madras, in furtherance of the said agreement and conspiracy and in the course of the same transaction accepted or obtained from Approver Kannappan gratification to the tune of Rs. 26,000/- as a motive or reward for inducingby corrupt or illegal means the public servants, to wit, the officials of the Electrical Department, Central Accounts Department Cash Section, Revenue Department of the Corporation of Madras to do or forbear from doing officials acts, to wit, prepare, process, negotiate and encash for disbursements bogus muster rolls relating to the employment of temporary labourers in the Electrical Department of the Corporation of Madras and that you thereby committed an offence punishable under Section 162 of the Indian Penal Code. 2. 329thly that you Accused-78 between August 1972and November 1973, at Madras in furtherance of the said agreement and conspiracy and in the course of the same transaction abetted Accused 1 to 74 bycorrupt or illegal means or other otherwise abusing their official position as public servants to obtain pecuniary advantage for yourselves and others to the tune of Rs.6,35,855-25 as set out in the Annexure to Charge No. 326 supra that you thereby committed an offence under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act (Central Act-II) 1947, read with Section 109, I. P. C., and within my cognizance. 3. 330thly, that you Accused-78 between November 1971 and November 1973, at the said place, in furtherance of the said agreement and conspiracy and in the course of the same transaction abetted Accused 1 to 74 by corrupt or illegal means or otherwise abusing their official position as public servants to obtain pecuniary advantage for yourselves and others to the tuneof Rs. 6,35,855-25 as set out in the annexure to charge No.326 supra and that you thereby committed an offence under Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act (Central Act II) 1947 read with Section 109, Indian Penal Code and within my cognizance. 4. 331stly that you Accused-78 between August 1972 and August 1973 at Madras in furtherance of the said agreement and conspiracy and in the courseof the sametransaction habitually accepted obtainedfrom approver Kannappan for yourself gratification (other than the legal remuneration as a motive or rewardas mentioned in Sec. 161 of the Indian Penal Code) at the rate of Rs.2,000/- per month from August, 1972 to August, 1973 and in all making Rs.26,000/- and that you thereby committed an offence punishable under Section 5 (2) read with Sec. 5 (1) (e) of the Prevention of Corruption Act (Central Act II) 1947 and within my cognizance.
(2.) He approached the High Court under Section 482, Code of Criminal Procedure praying that the last four charges framed againsthim be quashed on the ground that he is not a public servant within the meaning of Section 21 ofthe Penal Code. No evidence in respect of any of these charges has so far been recorded. The High Court has dismissed the petition holding that the appellant is a public servant within the comption of clause 12 (b)of Section 21 of the Penal Code. Hence this appeal.
(3.) We have partly heard thearguments of the learned counsel for the parties. The learned Advocate General has contended that cl. 10th of Section 21 of the Penal Code will also cover the case. The argument is that as a member of the Taxing Committee, the appellant was concerned with expenditure and preparation of budget and sponsoring proposals of financial character. It is submitted that evidence will be let to establish facts showing that the appellant is a public servant within the meaning of Section 21 of theCode and decision of this question at this stage when no evidence has at all been recorded, would be purely hypothetical and divorced from facts. We also feel that the question involved is a mixedquestion of law and fact. It requires evidence for its determination. We, therefore,think that the High Court was in error in deciding this question purely in the abstract without there being any evidence before it.;