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TMI Blog2023 (12) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... to enter into contracts on behalf of the CD or amend or modify the pending contracts; raise interim finance subject to Section 28 of the Code; issue appropriate instruction as may be necessary to keep the CD as a going concern apart from appointing accountants, legal or other professionals as may be necessary. It is also a responsibility of the IP under the IBC to preserve and protect the assets of the CD including the continued business operations of the CD. Section 28 is a relevant provision which restricts, prohibits and curtails certain rights and duties of the IP as enumerated above, subject to the approval of the Committee of Creditors (CoC) - Section 21 of the IBC mandates formation of CoC by the IP, which decides on the ultimate fate of the CD viz., whether to resolve the insolvency or to liquidate the CD. According to Section 23, the IP shall conduct the Corporate Insolvency Resolution Process during the interregnum till a final decision is reached insofar as the fate of the CD is concerned. Issue regarding 'public duty', 'public character' and 'public servant' - HELD THAT:- It is trite that every duty, even if has a colour of public dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bited and not within the jurisdiction of the Courts - it is manifest, that the IP was not included within the ambit of Section 232 of IBC. As a necessary corollary, it can be safely inferred that the IP, according to the provisions of IBC as it stands today, was not considered to be a public servant by the legislature. While examining the present legal issue is the promulgation of Securities and Exchange Board of India (Appointment of Administrator and Procedure for Refunding to the Investors) Regulations, in the year 2018, whereby the Administrator to be appointed ought to be an IRP registered with IBBI and who according to sub regulation (5) of Regulation 5 of the said Regulations, is deemed to be a Public Servant within the meaning of Section 21 of the IPC. If the Legislature had intended, at any point of time, even after IBC was codified in the year 2016 to include IP in Section 232 of IBC, the same could have been engrafted or inserted in Section 232 itself or elsewhere, in or about the time when the aforesaid SEBI Regulations were brought into effect in the year 2018. The same has not been done till now. This itself is a strong indicator and a clear pointer towards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make any observations/findings on facts would not arise in as much as the arguments on facts were predicated on the assumption of the Petitioner falling within the ambit and definition of a Public Servant , as stipulated in Section 2(c) of the PC Act, 1988 which has been held in the negative - 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. Petition disposed off. - HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case: For the Petitioner : Mr. Arshdeep Singh Khurana and Ms. Tannavi Sharma, Advocates. For the Respondent : Mr. Prasanta Varma, SPP for CBI with Ms. Pragrya Verma and Mr. Pankaj Kumar, Advocates. Mr. Ram Niwas Buri and Mr. Rishabh Sharma, Advocates for R-2. JUDGMENT TUSHAR RAO GEDELA, J. [The proceeding has been conducted through Hybrid mode ] 1. The present petition is filed on behalf of the petitioner under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C. ) seeking writ of Mandamus or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be liable for the offence punishable under Prevention of Corruption Act. 4. Also, vide Order dated 13.09.2022, notice was issued on an intervention/impleadment application moved by Insolvency Bankruptcy Board of India (in short IBBI ), while considering the role played by the IBBI in giving recognition to the Insolvency Resolution Professionals, assuming the roles of Interim Resolution Professional/ Resolution Professional (in short IRP / RP ) under the Insolvency and Bankruptcy Code, 2016 (in short IBC ), which even finds mention in the impugned order dated 14.01.2020. That vide Order dated 27.07.2023, the impleadment application on behalf of IBBI was allowed only to the extent of assisting the Court on the legal issue which arises in the present petition. FACTS OF THE PRESENT PETITION:- 5. The brief facts as culled out from the list of dates as provided in the petition are as follows:- 5.1 The petitioner was approached by Mr. Karan Lalwani, Financial Creditor of FR Tech Innovations Private Limited (CD) for proposing the name of the petitioner as IRP in the company petition to be filed by the Financial Creditor under Section 7 of IBC, 2016 in the NCLT, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to finalize the list of creditors/claimants within the stipulated period as provided under the IBC. 5.6 After collation of all the claims received, the petitioner constituted the CoC of the Corporate Debtors. The CoC was constituted only with one Financial Creditor, Mr. Karan Lalwani with 100% voting rights. 5.7 The petitioner circulated the notice and agenda of the first CoC meeting to the members of CoC, through e-mail by giving 5 days notice and the first CoC meeting was scheduled to be held on 28.12.2019. 5.8 The first meeting of the CoC was held in the office of petitioner at Noida. That in the first meeting, the CoC resolved inter alia to appoint the petitioner as RP of the CD with effect from 28.12.2019. The IRP had consented to act as RP as per Section 22(3)(a) of IBC, 2016. Consequently, upon appointment of the petitioner as RP by the CoC on 28.12.2019, the term/tenure of the petitioner as IRP pursuant to the provisions of Section 16(5) of IBC, 2016 was completed on the same day. 5.9 The minutes of the CoC meeting were recorded and circulated within 48 hours amongst the members of CoC through e-mail. 5.10 The minutes of the CoC meeting, appointing the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registering the FIR, the respondent No. 1 did not inquire into the alleged claims raised by the complainant from the Corporate Debtor. In the verification reports dated 10.01.2020 and 11.01.2020, the role of the petitioner was not verified. 5.15 The petitioner was produced before the learned Duty Judge and his 14 days Judicial Remand was sought. The petitioner questioned the jurisdiction of the respondent on the ground that he is not a Public Servant as defined under PC Act and the CBI does not have jurisdiction to investigate the case and any action by them is void ab initio and that he has been illegally detained at the instance of the complainant. The learned Duty Judge, Special Judge PC Act, CBI-15 was pleased to remand the petitioner to 1 day Judicial Custody with the direction to produce him before the concerned court on 13.01.2020 on the ground that the issue needs to be heard and considered in detail. 5.16 That the petitioner was produced before the concerned court of special Judge, CBI-13, New Delhi, on question of whether the petitioner was a public servant under the PC Act. 5.17 On 14.01.2020, the impugned order of judicial remand for 2 weeks was passed by lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 2 of the PC Act. 9.2 Continuing further, Mr. Khurana, learned counsel takes this Court to each and every relevant provision, rule and regulation provided under the IBC, governing the entire realm of existence, subsistence, and functions of an IRP/RP for the purposes of the insolvency resolution process to be undertaken for the Corporate Debtor (for short referred to as CD ). 9.3 Mr. Khurana, learned counsel for the petitioner, refers to Sections 2(19) and 5(27), Chapter II - Corporate Insolvency Resolution Process of the IBC alongwith the regulations governing the said aspect, to submit that:- a. The Insolvency and Bankruptcy Code is a special legislation and a complete code in itself to deal with matters of insolvency and bankruptcy in India. b. The National Company Law Tribunal/Adjudicating Authority (NCLT) has no power to reject the nominated IRP unless there are disciplinary proceedings against the IRP. c. The duties of the IRP are limited to those enumerated under the IBC. They are only required to follow the directions of Committee of Creditors and have no powers to take any decisions without the approval of the CoC. These duties only deal with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised by a Court of Justice . Even assuming an IRP or RP are authorised by a Court of Justice , the IRP or an RP is not performing any duty in connection with the administration of justice . Section 2(c)(v) also does not include all persons appointed to perform any duty by a Court of Justice. It only includes those persons who are appointed to perform any duty, in connection with the administration of justice. c. Public Duty as defined under Section 2(b) of the PC Act means a duty in the discharge of which the State, the public or the community at large has an interest. d. In the instant case, the IRP or the RP only has a duty towards the Committee of Creditors and the Corporate Debtor under management and not to any other person or the public at large, while reading the provisions under Section 18 and 25 of IBC. e. Therefore, it is evident that the IRP or RP is not covered in any of the foregoing sections of the PC Act. Consequently, the classification of the Petitioner as being a public servant is incorrect and his prosecution under the PC Act is illegal and void and ought to be quashed. 9.8 Mr. Khurana, learned counsel next contended that the Insolvenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the IPC. Therefore, the provisions of the IBC ought to override the PC Act. He argues that Hon ble Supreme Court has also time and again reaffirmed the principle of leges posteriors priores conterarias abrogant (a latter law will prevail over an earlier law). The only exception to this rule is that a later general law would not automatically override an earlier special law. However, in this case, the IBC is the special legislation. Reliance was placed on Bharat Petroleum Corporation Ltd. v. P. Kesavan and Anr. reported in (2004) 9 SCC 772. 9.12 Lastly, Mr. Khurana, while concluding his first fold of arguments, reiterates that the IBC creates a deeming fiction to include certain officers (excluding IRP or RP) within the meaning of Section 21, IPC. This necessarily implies that but for the deeming fiction under Section 232 IBC, these persons would not be public servants under the meaning of Section 21, IPC and therefore, it is clear that an IRP/RP would not be a public servant within the meaning of Section 21, IPC or under the PC Act. 10. The second limb of argument of Mr. Khurana, learned counsel for the petitioner is the non-maintainability of the FIR against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to the concerned official and proper follow up of the complaint on the basis of the particular diary number allotted to such complaint. 13. Mr. Khurana points out the inherent defects with which the CBI has proceeded with the investigation of the complaint in question, and has thus, argued that being suffering from such incurable procedural defects, the very veracity of the complaint is in question and thus, indicates the questionable truthfulness and mala fide, and thus, such investigation cannot stand the scrutiny of law. 14. Mr. Khurana, learned counsel lastly argued that, therefore, the Respondent/Complainant has filed the impugned FIR purely to harass and persecute the Petitioner and conceal his own mala fides and submits that the quashing of this FIR is, therefore, necessary to ensure that the process of the Court is not abused and that the ends of justice are secured while relying upon the judgment of State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335. CONTENTIONS OF THE RESPONDENT/CBI:- 15. Mr. Prashanta Verma, learned SPP appearing on behalf of Respondent/CBI, had sought to argue the present matter directly and submits that all the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned SPP contends that on mere examination of the complaint received by the CBI against the IRP/RP, it was prima facie apparent that the person against whom the allegations are made is a person who is appointed during the process of judicial delivery system. Further, that the said person is actually performing the duties of reporting on the subject matter to a Court which had appointed him, and allegations of demanding money and of having recorded certain phone calls gave sufficient cause for the CBI to initiate the present criminal proceedings against the said person. 22. On that basis, learned SPP argues that whether the act of demanding bribe was actually done in pursuance of the public duty or not is a matter of trial, and thus, the same cannot be agitated here, since the case is at its very nascent stage. 23. Mr. Verma, learned SPP heavily relied upon the judgement of the learned Single Judge of High Court of Jharkhand at Ranchi in Cr.M.P.1048 of 2021 titled as Sanjay Kumar Aggarwal v. Central Bureau of Investigation reported in 2023 SCC OnLine Jhar 394, to submit that the said judgement unequivocally held that the Resolution Professionals are Public Servant fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th majority vote can only propose and recommend for replacement of IRP or RP to the Adjudicating Authority (NCLT) and it is only the NCLT which appoints or replace the IRP or RP after seeking report regarding pendency of any disciplinary proceedings from IBBI, therefore, the office of IRP or RP is statutorily perpetual in nature and attached to the public authority i.e., NCLT and IBBI. An IRP or RP held/holds substantive position to discharge public duty in public interest of community at large under provisions of IBC, 2016 and IBC Regulations, 2016. e) It transpires from the scheme of IBC, 2016 that an IRP or RP is mandatorily bound to report his actions and decisions to the CoC and the NCLT for its approval besides IBBI. In case of any dispute in the resolution process, RP is also bound to get orders from the NCLT regarding his proposed action. f) Moreover, RP is issued a Certificate of Registration in terms of Regulation 7 of IBC Regulations, 2016 with conditions and is subjected to disciplinary proceedings under Regulation 11. The IBBI may take action or punish an IRP or RP as provided u/s 220 IBC, 2016 in pursuance of recommendation of the Disciplinary Committee or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CD, therefore, they were appointed as consultant by the CD in March, 2017. R-2 and his wife worked for the CD from March, 2017 to November, 2017 and received payment of Rs. 15.20 Lakhs for their work/services. As against claim of Rs. 18 Lakhs, a sum Rs. 2.8 lakhs including TDS was owed by the CD. b) The CD was proceeded for Corporate Insolvency Resolution Process (CIRP) in the NCLT, Mumbai by one Financial Creditor (FC) and Petitioner was appointed Interim Resolution Professional (IRP) vide order dated 14.11.2019 of the NCLT, Mumbai in CP No. 2891/I BC/2019. c) Petitioner is an Advocate possessing Ph.D. in law besides other professional degrees and is registered with IBBI in terms of Section 207 of IBC and Regulation 7 of IBC (Insolvency Professionals) Regulations, 2016. d) Petitioner took over the charge of CD and vide e-mail dated 14.12.2019 and 16.12.2019, asked for information and documents in support of the claim of R-2's wife which were provided to the Petitioner despite the Petitioner being already in possession of the same from the CD. Petitioner found an irregularity/inconsistency in recording the date in the Confidentiality Agreement and for the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofessional or a Resolution Professional or any other persons/ authorities under the IBC as Public Servants under the PC Act. 30. He also submits that a Resolution Professional is not a public servant which is evident from the fact that where the RP is to be treated as a public servant, the Legislature has expressly provided for the same. Reliance is placed upon Securities and Exchange Board of India (Appointment of Administrator and Procedure for Refunding to the Investors) Regulations, 2018. He relies upon sub-regulations (1) and (5) of Regulation 5 which is reproduced below: 5. (1) The Administrator shall be a person registered with the Insolvency and Bankruptcy Board of India as an Insolvency Resolution Professional and empanelled by the Board from time to time. (5) For the purposes of these regulations, the Administrator shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860) and sections 22 and 23 of the Act shall accordingly apply to him. Therefore, as Section 232, IBC does not include an Insolvency Professional, it is evident that the Legislature never intended making an Insolvency Professional a publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction with other provisions relatable to the role and responsibility of the IP as ascribed under various provisions of the IBC, 2016. It would be apposite to extract Section 232 and Section 233 IBC hereunder : 232. Members, officers and employees of Board to the public servants. 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). 233. Protection of action taken in good faith. No suit, prosecution or other legal proceeding shall lie against the Government or any officer of the Government, or the Chairperson, Member, officer or other employee of the Board or an insolvency professional or liquidator for anything which is in done or intended to be done in good faith under this Code or the rules or regulations made thereunder. It is well settled that the golden rule of interpretation of statutes is to read the particular provision in its plain and simple language and unless there is any ambiguity or lack of clarity, the exercise of taking aid of either the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the Companies Act, 2013. These statutes provide for creation of multiple fora such as Board of Industrial and Financial Reconstruction (BIFR), Debt Recovery Tribunal (DRT) and National Company Law Tribunal (NCLT) and their respective Appellate Tribunals. Liquidation of companies is handled by the High Courts. Individual bankruptcy and insolvency is dealt with under the Presidency Towns Insolvency Act, 1909, and the Provincial Insolvency Act, 1920 and is dealt with by the Courts. The existing framework for insolvency and bankruptcy is inadequate, ineffective and results in undue delays in resolution, therefore, the proposed legislation. 2. The objective of the Insolvency and Bankruptcy, 2015 is to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximization of value of assets of such person, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the priority of payment of government du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would also be relevant to keep in mind the Preamble to the IBC, which is hereunder :- An Act to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India, and for matters connected therewith or incidental thereto. It is manifest that the codification of the previous laws on the said subject was necessitated due to delays and protracted trials in Insolvency laws, recovery of debts due to the Financial institutions, matters relating to revival or liquidation of sick industries or companies. 38. It would also be relevant to examine, in brief, various provisions of IBC relating to the IP before embarking upon the interpretation of Section 232 IBC and as to whether the IP could be a public servant . On a general perusal of the IBC, it appears that the IP has been given various roles, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... And Anr. vs. Union of India And Ors. reported in (2019) 4 SCC 17 and ArcelorMittal India Private Limited vs. Satish Kumar Gupta And Ors. reported in (2019) 2 SCC 1, whereby, after having examined in detail various provisions conferring duties and responsibilities upon the RP by the IBC, it was categorically held that the RP is merely a facilitator . The relevant paragraphs of the aforesaid judgments are as under :- (1) Swiss Ribbons :- 89. Under the CIRP Regulations, the resolution professional has to vet and verify claims made, and ultimately, determine the amount of each claim as follows: 10. Substantiation of claims. The interim resolution professional or the resolution professional, as the case may be, may call for such other evidence or clarification as he deems fit from a creditor for substantiating the whole or part of its claim. * * * * 12. Submission of proof of claims. ( 1) Subject to sub-regulation (2), a creditor shall submit claim with proof on or before the last date mentioned in the public announcement. (2) A creditor, who fails to submit claim with proof within the time stipulated in the public announcement, may submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential and other transactions. ( 1) On or before the seventy-fifth day of the insolvency commencement date, the resolution professional shall form an opinion whether the corporate debtor has been subjected to any transaction covered under Sections 43, 43, 30 or 66. (2) Where the resolution professional is of the opinion that the corporate debtor has been subjected to any transactions covered under Sections 43,43,30 or 66, he shall make a determination on or before the one hundred and fifteenth day of the insolvency commencement date, under intimation to the Board. (3) Where the resolution professional makes a determination under sub-regulation (2), he shall apply to the adjudicating authority for appropriate relief on or before the one hundred and thirty-fifth day of the insolvency commencement date. 90. As opposed to this, the liquidator, in liquidation proceedings tinder the Code, has to consolidate and verify the claims, and either admit or reject such claims under Sections 38 to 40 of the Code. Sections 41 and 42, by way of contrast between the powers of the liquidator and that of the resolution professional, are set out hereinbelow: 41. Determination o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to achieve its object. A construction which leads to such a result must, if that is possible, be avoided, on the principle expressed in the maxim, ut res magis valeat quam pereat . Vide Curtis v. Stovin and in particular the following observations of Fry, L.J., at QBD p. 519: The only alternative construction offered to us would lead to this result, that the plain intention of the legislature has entirely failed by reason of a slight inexactitude in the language of the section. If we were to adopt this construction, we should be construing the Act in order to defeat its object rather than with a view to carry its object into effect. Vide also Craies on Statute Law, p. 90 and Maxwell on the Interpretation of Statutes, Tenth Edn., pp. 236-37. A statute is designed , observed Lord Dunedin in Whitney v. IRC, TC at p. 110 (at AC p. 52) '... to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. 79. Given the timeline referred to above, and given the fact that a resolution applicant has no vested right that his resolution plan be considered, it is cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court) Though the aforesaid ratio laid down by the Hon ble Supreme Court was in context of the provisions of the IBC itself, without having any reference to the provisions of either the Penal Code, 1860 or the Prevention of Corruption Act, 1988, yet what would be relevant for the consideration of this Court is that the nature of the role and responsibility of RP have been examined in great detail and from the aforesaid paragraphs, it does not appear to this Court that any of such role would assume the nature of public duties of a public character . 42. The reason which propelled this Court to the aforesaid conclusion is as follows. It is trite that every duty, even if has a colour of public duty , may necessarily not be of a character which is public in nature. There could be many instances where a role or a responsibility of an individual in a particular statute would assume the nature of public duty but sans the Public Character . This view is fortified by the judgment of the Hon ble Supreme Court in the case of Central Bureau of Investigation, Bank Securities and Fraud Cell vs. Ramesh Gelli and Ors. reported in (2016) 3 SCC 788 , wherein Ranjan Gogoi, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... individuals or institutions, as the case may be, as public servants for the purposes of Section 21 IPC or Section 2(c) PC Act, 1988. That too, when the Legislature appears to have deliberately omitted such individual or institution from such ambit. Thus, in the opinion of this Court, the Constitutional Courts would be loath in reaching such drastic conclusion, that too by process of judicial interpretation. CODIFICATION OF IBC: THE NEED AND HISTORICAL PERSPECTIVE: 43. Having said that, it would be now relevant to consider the emergence and development of the IBC itself. The statement of objects and reasons gives a broad background which would also be relevant to consider in the present case. It is clear from the said objects and reasons that various acts like The Presidency Towns Insolvency Act, 1909, Provincial Insolvency Act, 1920, The Sick Industrial Companies (Special Provisions) Act, 1985 (SICA), The Recovery of Debt Due to Banks and Financial Institutions Act, 1993 and The Securitization and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) were codified to formulate the IBC. This was necessitated as the legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 233 to save the IP from any act done in good faith, had completely overlooked or suffered from temporary amnesia by not inserting the IP in section 232, which is the immediate previous section. While at the same time, in section 232, the Legislature had included other officers of the Board to be deemed public servants for the purposes of section 21 IPC. Thus, it is clear as crystal that the omission was nothing but willful and deliberate. 46. It is trite that Legislature is deemed to be aware of all the laws while enacting a particular law. In the present case, this gathers a great significance since the legislature had all the relevant laws before it while codifying IBC, 2016. It is also trite that the Courts would lean in favour of Constitutionality of the provisions of any enactment and would be loath in drawing conclusions against it, without any cogent and relevant material. Considering both the aforesaid Sections, it can be safely said that the omission in Section 232 was not inadvertent but a deliberate omission to not include IP within its ambit. It is trite that Courts would not interfere if the omission is deliberate since that would tantamount to legislating and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended, at any point of time, even after IBC was codified in the year 2016 to include IP in Section 232 of IBC, the same could have been engrafted or inserted in Section 232 itself or elsewhere, in or about the time when the aforesaid SEBI Regulations were brought into effect in the year 2018. The same has not been done till now. This itself is a strong indicator and a clear pointer towards the fact that the omission to not include the IP within Section 232 is willful and deliberate and therefore, it cannot be a case of casus omissus. DOCTRINE OF CASUS OMISSUS: 49. The law in respect of the doctrine of casus omissus is fairly well settled. The jurisdiction and authority conferred upon the Constitutional Courts is to interpret the law and not legislate. It is also fairly well settled that if a provision of law is misused and subjected to abuse of the process of law, it is for the legislature to amend, modify or to repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process. The exception of judicial interpretation coming to the aid of filling up a gap would arise only and only in a case of clear necessity and when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. An intention to produce an unreasonable result , said Danckwerts, L.J. in Artemiou v. Procopioull (All ER p. 544 I) is not to be imputed to a statute if there is some other construction available . Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result , we must do some violence to the words and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. IRC where at AC p. 577 he also observed: (All ER p. 664 I) This is not a new problem, though our standard of drafting is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose, all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. 64. More recently, this Court amongst others in Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Ltd. [Petroleum and Natural Gas Regulatory Board v. Indraprastha Gas Ltd., (2015) 9 SCC 209] had propounded that when the legislative intention is absolutely clear and simple and any omission inter alia either in conferment of power or in the ambit or expanse of any expression used is deliberate and not accidental, filling up of the lacuna as perceived by a judicial interpretative process is impermissible. This was in reiteration of the proposition in Sree Balaji Nagar Residential Assn. v. State of T.N. to the effect that casus omissus cannot be supplied by the court in situations where omissions otherwise noticed in a statute or in a provision there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l justice into a statute which is a clear and complete Code, by itself: It is true of course that the courts will lean heavily against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him. Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment . (emphasis supplied by this Court) The ratio of the aforesaid judgments endorse the golden rule of interpretation of statutes, in that, the plain and simple language of the statute ought to be taken into consideration unless the same are ambiguous or appear to be repugnant to the aims and objects of the statutes when read as a whole or any absurdity arises while interpreting. In the present case, as could be seen, Section 232 brooks no ambiguity nor is it repugnant to the aims and objects of the IBC. APPLICABILITY OR OTHERWISE OF SECTION 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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; (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority. [(d) undue advantage means any gratification whatever, other than legal remuneration. Explanation. For the purposes of this clause, (a) the word gratification is not limited to pecuniary gratifications or to gratifications estimable in money; (b) the expression legal remuneration is not restricted to remuneration paid to a public servan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doctrine of ejusdem generis , it is apparent that individuals such as liquidator, receiver or commissioner, who have been conferred with the power to take decisions in respect of properties and other assets and dispose of the same entailing decisions effecting certain claims etc, could be the ones who are within the ambit of sub-section (v) and since no such role or responsibility is conferred upon the Resolution Professional, therefore, he cannot be stated to fall within the ambit of sub-section (v). 56. Now coming to the provisions of sub-section (viii) of Section 2(c) of the PC Act, 1988, it is clear that the same is in respect of an individual who holds an office by virtue of which he is authorized or required to perform any public duty, meaning thereby the nature of duty determines the individuals inclusion in the said provision. To examine this sub-section, it would be appropriate to consider the role of IP in various stages of the CIRP itself. The IP at the initial stage is appointed by the NCLT as an Interim Resolution Professional to take over the management, take control of the assets and properties, do acts necessary to keep such assets from withering away or being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the like, and having all relevant materials before it, the Legislature, in its wisdom, thought it fit and prudent not to include IP as public servant and such non inclusion was, thus, a willful and deliberate omission. It is trite that what is not specified may not be readily inferred, particularly if the same would be penal in nature. In other words, any provision of law entailing penal consequences ought to be strictly construed and nothing specified therein should not be read in or filled up readily. 59. After having examined and scrutinized in detail the entire legal conspectus, the legal issue which was raised in the present case for the consideration of this Court, is answered in the negative. 60. So far as the judgement rendered by the learned Single Judge of the High Court of Jharkhand at Ranchi, in Sanjay Kumar Aggarwal s case (supra) is concerned, this Court respectfully differs with the conclusion arrived at by esteemed learned brother Choudhary, J. for the reasons stated above. 61. Resultantly, the omission to include IP in section 232 IBC is not inadvertent but a thoughtful, willful and deliberate one by the Legislature, and the Courts of law being empowe ..... 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