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TMI Blog2023 (4) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... rawing salary from the public exchequer. Apart from the list of the functionaries given in Section 2 (c), the definition also lays down the functional criteria to include within its fold those discharging public duty or any duty authorized by a court of justice, in connection with administration of justice. Under Section 16 (1) an interim resolution professional is appointed by the adjudicating authority on the insolvency commencement date. Under section 22 (3)(a), the committee of creditors after taking a decision to continue the interim resolution professional as the resolution professional, is required to communicate its decision to Adjudicating Authority and others - Against this scheme of the I B Code the plea advanced on behalf of the petitioner that Adjudicating Authority had no role in the appointment of Resolution Professional is not sustainable. Thus, the appointment of Resolution Professional is made during the resolution process before the Company Law Tribunal with its approval, he will be a public servant under Section 2(c)(v) of the P.C. Act. Whether the functions of a Resolution Professional partake the character of a public duty ? - HELD THAT:- The appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ping in re-possession of plant/company. The petitioner had offered him that SME, the complainant was entitled to participate in the auction proceeding of the Bank and if he met the demands, he would prepare his report leniently enabling him re-possess his plant/company. 8. The complaint was discreetly verified. Trap team was constituted and raid was conducted at Giridih at the Company office, where the petitioner was caught read handed on 11.2.2020 in the presence of independent witnesses accepting the illegal gratification from the complainant. 9. Instant petition for quashing of the F.I.R. is premised mainly on the ground that Section 7 of PC Act will not apply to this petitioner as a Resolution Professional is not a public servant within the meaning of Section 2(C) of the Prevention of Corruption Act or under Section 21of the IPC. 10. It is argued that he is neither public servant nor he is appointed by any Court or is performing any public duty. The appointment process of resolution professional is provided under Section 22 of the Code, 2016 under which he is appointed by the committee of the creditors. The duty which has been detailed in Section 25 are not in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Section 232 of the I B Code provides that 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 Indian Penal Code (45 of 1860). The list does not include Insolvency Professionals. Section 233 gives protection to resolution professional, insolvency professional from any criminal prosecution or other legal action for the act done in good faith. 13. It is submitted by Mr. P.A.S. Pati, learned counsel on behalf of C.B.I. that the instant matter involves a case where the petitioner was caught red handed by the trap team constituted by the CBI, while accepting Rs. Two Lakh as illegal gratification in connection with discharge of his duty as Resolution Professional from the complainant. 14. On the question whether a Resolution Professional is a public servant or not, it is argued that the process of appointment of a Resolution Professional commences from Section 16 of the I B Code, 2016 wherein it has been submitted that the adjudicating authority shall appoint an interim resolution professional. His ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be in his right to hold that situation . In State of Gujarat v. Mansukhbhai Kanjibhai Shah, (2020) 20 SCC 360 the nature of duty exercised was regarded as the determinative factor to decide whether the person sought to be proceeded was a public servant or not. If he was held to be exercising public duty, he can be held to be a public servant. The emphasis was not on the mode of appointment or remuneration, but if he was exercising a public duty or not. On this test it was held that the trustee in the Board of deemed university came withing the meaning of a public servant covered under Section 2(c) of the PC Act. The Court held as under, 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 not to provide an exhaustive list of authorities which are covered, rather a general definition of public servant is provided thereunder. This provides an important internal evidence as to the definition of the term university 44. As discussed earlier, the object of the PC Act was not only to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) public duty means a duty in the discharge of which the State, the public or the community at large has an interest. The Hon ble Supreme Court held that they were public servant as they were discharging public duty. 19. The petitioner was appointed as an interim resolution professional under Section 16 of the I B Code, 2016 and later his appointment was confirmed by the committee of creditors under Section 22. 20. Under Section 16 (1) an interim resolution professional is appointed by the adjudicating authority on the insolvency commencement date. Under section 22 (3)(a), the committee of creditors after taking a decision to continue the interim resolution professional as the resolution professional, is required to communicate its decision to Adjudicating Authority and others. Even in cases where resolution professional appointed under section 22 is replaced by the committee of creditors under section 27, the name of the insolvency professional proposed to be appointed is to be forwarded to the Adjudicating Authority under Section 22(3), and thereafter the Adjudicating Authority is to forward the name of the proposed resolution professional to the Board for its ..... 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