Akhtar Alam Vs. The State of Bihar
[1968] INSC 276 (12 November 1968)
12/11/1968
ACT:
Prevention of Corruption Act 11 of 1947--s.
5(2) read with s. 5(1). Indian Penal Code 1860 s. 21 (12)--Head Clerk to
Executive Engineer taking bribe--whether "public servant"--principles
for determining whether Head Clerk was an officer of the Corporation within the
meaning of s. 21 (12) I.P.C.
HEADNOTE:
The appellant was the Head Clerk to the
Executive Electrical Enginear of the State Electricity Board He was convicted
under s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act on the
allegation that on July 8, 1961 he had committed an offence in obtaining a
bribe for the Executive Engineer by resorting to corrupt and illegal means or
by otherwise abusing his position 'as a public servant. An appeal against the
conviction was dismissed by the High Court.
In appeal to this Court by special leave, the
High Court's findings on questions of fact were not challenged but it was
contended that upon these findings the appellant could not be convicted of the
charges because he was not a "public servant" within the language of
s. 5(2) of the Prevention of Corruption Act or s. 21 at the Indian Penal Code.
It was further contended that the appellant was performing only routine
clerical duties and could not be treated as an 'officer' within the meaning of
s. 21(12)I.P'.C.
HELD: On the facts found the appellant was an
officer in the service or pay of a Corporation as defined in s. 21(12), I.P.C.
and therefore a public servant' within the meaning of that section and also of
s. 2 of the Prevention of Corruption Act. [691 D] The true test in order to
determine whether the appellant was 'an officer' of the Corporation within the
meaning of s. 21(12), Indian Penal Code, would be: (1) whether he was in the
service or pay of the Corporation, and (2) whether he was himself either armed
with some authority or representative character by the Corporation; or whether
his duties were immediately auxiliary to those of some one who was armed with
such authority or representative character. In the present case, the High Court
found that the appellant was a person performing duties immediately auxiliary
to those of the Executive Engineer who was the Head of the Office. The very
designation "Head Clerk" denotes that there are other clerks attached
to the office who occupy subordinate positions in relation to the Head Clerk
and the duties of the Head Clerk from the nature of things are bound to be
immediately auxiliary to the Head of the Office. [691 A] Reg. v. Ramaiirao
Jivbaji, 12 Bom. H.C.R. 1; Nazamuddin v.
Queen-Empress, I.L.R. 28 Cal. 344; Emperor v.
Karam Chand Gobind Ram,A.I.R. 1943 Lah. 255; and G..4. Monterio v.
The State of Ajmer, A.I.R.1957 S.C. 13;
referred to.
683 Held Also: The appellant cannot be deemed
to be a public servant within the meaning of s. 81 of the Electricity (Supply)
Act, 1948 because he was not acting or purporting to act in pursuance of any of
the provisions of that Act.
On a plain reading of s. 81 of the Electricity
(Supply) Act, 1948 the officers and servants of the State Electricity Board are
deemed to be public servants only when acting or purporting to act in pursuance
of any of the provisions of that Act. So far as the receiving of a bribe is
concerned, it cannot be brought within the scope of acting or purporting to act
in pursuance of any of the provisions of the Act. Therefore the appellant while
taking the bribe, cannot be deemed to be a public servant within the meaning of
s. 21, I.P.C. in view of the language of s. 81 of the Electricity (Supply) Act.
[687 E] Gill v. The King. 75 I. A. 41; Hori Ram Singh v. The Crown, [1939]
F.C.R. 159; and State of Maharashtra v. Jagatsing Charansingh, [1964] 4 S.C.R.
299'; referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 207 of 1966.
Appeal from the judgment and order dated
August 10, 1966 of the Patna High Court in Criminal Appeal No. 14 of 1964.
K.R. Chaudhuri, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by
Ramaswami, J. The question involved in this appeal is whether the appellant
Akhtar Alam was a "public servant" within the meaning of s. 5 (2) of
the Prevention of Corruption Act (Act 11 of 1947 ) and s. 21 of the Indian Penal
Code.
On or about December 11, 1962, the appellant
was charged in the Court of the Special Judge of Patna for an offence.
under s. 5(2), read with s. 5(1) of the
Prevention of Corruption Act and s. 161 of the Indian Penal Code. The case of
the prosecution was that on July 8, 1961, the appellant committed these
offences by obtaining a sum of Rs.
180/- for Sri A.D. Singh, Executive Engineer
(Electrical) from Ramprit Singh, P.W. 2 by resorting to corrupt and illegal
means or by-otherwise abusing his position as public servant. It is said that
on the morning of July 6, 1961, the Electrical Executive Engineer, Sri A.D.
Singh, accompanied by his Head Clerk, the appellant paid a visit to Janta Oil
Mills situated at Fatuhas. Ramprit Singh, P.W. 2 was the lessee of the Mills.
The Executive Engineer met P.W. 2 in the mill premises and told him that the
outer seal of the meter, technically called the body seal, was in a tampered
condition. P.W. 2 maintained that the seal was not tampered but on a threat by
the Executive Engineer, P.W. 2 was compelled to give a written statement that
684 the outer seal was tampered with. Thereafter the Executive Engineer cut the
inner seal, technically known as the loop seal, of the meter and fixed two
fresh seals on the meter, one in the terminal 'and the other in the body of the
meter. The Executive Engineer and the appellant thereafter left the mill
premises. At about 10 a.m. on the same day the appellant had gone again to the
mill premises and told P.W. 6, Basudeo Singh, the Munshi of the proprietor that
P.W. 2 the lessee 'and P.W. 9, Bishna Prasad Yadav, the proprietor of the mill
should meet him at his office at Patna within two days and get the matter
settled, otherwise they would be put to a big loss. Thereafter, P.W. 2 went to
the office of the Anti-Corruption Department at Patna and handed over a
petition to P.W. 11 Girjanandan Sinha expressing his apprehension that the
Executive Engineer or his Head Clerk, the appellant would demand some bribe
from him. It is alleged that on July 8, 1961 a trap was laid and under the
direction of the Deputy Superintendent of Police, P.W. 7 a raiding was
organised. Ramprit, P.W. 2 along with other witnesses proceeded to the
'appellant's office. After some conversation the appellant demanded money and
P.W. 2 Ramprit gave him eighteen ten-rupee currency notes, the serial numbers
of which had been previously noted down by the Magistrate, P.W. 20. P.W. 16,
Raghuraj was also present at the time. After the 'appellant had received money,
the Deputy Superintendent of Police, P.W. 7 and other members of the raiding
party arrived inside. The appellant thereafter dropped the bundle of currency
notes on the floor below the table and made an attempt to get away but he was
taken under arrest .and after his person was searched the currency notes were
found lying on the floor near the seat. The Deputy Superintendent of Police,
P.W. 7 picked up the currency notes and upon comparison he found them to bear
the same serial numbers which had been noted down in the statement, Ex. 2. The
Deputy Superintendent of Police then lodged the First Information Report, Ex.
11 .at the Gardanibagh police station. On the basis of that report
investigation was made by Deputy Superintendent of Police Sri Ramlakhan Prasad,
P.W. 19 and subsequently by Inspector Shahidhar Putt, P.W.
17 under the orders of the Sub-Divisional
Magistrate. After concluding the investigation the police submitted a
chargesheet against the appellant. The appellant denied the charges and pleaded
that the entire case had been fabricated against him by Raghuraj, P.W. 16 The
Special Judge, however, accepted the prosecution case as true and convicted the
appellant under s. 5 (2) read with s. 5(1 )(d) of the Prevention of Corruption
Act and sentenced him to undergo rigorous imprisonment for five years. The
appellant was' also convicted and sentenced to undergo rigorous imprisonment
for two years under s. 161 of the Indian Penal Code. The appellant took the
matter in appeal to the Patna High Court which dismissed the appeal and
affirmed the judgment of the Special Judge.
685 This appeal is brought by special leave
from the judgment of the Patna High Court dated August 10, 1966 in Criminal
Appeal No. 134 of 1964.
On behalf of the appellant Mr. K.R. Chaudhury
did not challenge the findings of the High Court on questions of fact but the
argument was put forward that upon the findings recorded by the High Court the
appellant could not be convicted of the charges because he was not a
"public servant" within the language of s. 5(2) of the Prevention of
Corruption Act or s. 21 of the Indian Penal Code.
Section 5(1)(d) of the Prevention of
Corruption Act states:
"5. (1)A public servant is said to
commit the offence of criminal misconduct in the discharge of duty,-- (d) if
he, by corrupt or illegal means or by otherwise abusing his position as a
public servant, obtains for himself or for any other person any valuable thing
or pecuniary advantage." Section 5(2) is to the following effect:
"(2) Any public servant who commits criminal
misconduct in the discharge of his duty shall be punishable with imprisonment
for a term which shall not be less than one year but which may extend to seven
years and shall also be liable to fine:
Provided that the Court may, for any special
reasons recorded in writing, impose a sentence of imprisonment of less than one
year." Section 2 provides as follows:
"For the purposes of this Act, 'public
servant' means a public servant as defined in section 21 of the Indian Penal
Code." By s. 2 of the Criminal Law (Amendment) Act, 1958 (Act 11 of 1958)
el. 12 was inserted in s. 21 of the Indian Penal Code and Explanation 4 was
added thereto. Section 2 was to the following effect:
"2. In section 21 of the Indian Penal
Code,-- (a) after clause Eleventh, the following clause shall be inserted,
namely :-- Twelfth.--Every officer in the service or pay of a local authority
or of a corporation engaged in any trade or industry which is established by a
Central, |Sup.
4Sup C.I./69--11 686 Provincial or State Act
or of a Government company as defined in section 617 of the Companies Act, 1956.
(b) after Explanation 3, the following
Explanation shall be inserted, namely :-- Explanation 4.--The expression
corporation engaged in any trade or industry' includes a banking, insurance or
financial corporation, a river valley corporation and a corporation for
supplying power, light or water to the public.' The scope of cl. (12) of s. 21
of the Indian Penal Code was enlarged by s. 2 of the Anti Corruption Laws
(Amendment) Act, 1964 (Act 40 of 1964). By s. 2 of the amendment Act of 1964,
cl. (12) was substituted by 'a new clause in the following terms:
"Twelfth.--Every person-- (a) in the
service or pay of the Government or remunerated by fees or commission for the
performance of any public duty by the Government;
(b) in the service or pay of a local
authority a corporation established by or under a Central, Provincial or State
Act or a Government Company as defined in section' 617 of the Companies Act,
1956." By the amending Act Explanation 4 of s. 21, Indian Penal Code was also
omitted. In the present case, however, we are not concerned with the amendment
effected by Act 40 of 1964 because the occurrence took place before the coming
into force of this amending Act but after the enactment of the Criminal Law
(Amendment) Act, 1958 (Act 11 of 1958) which came into force on February 27,
1958.
It is not disputed in this case that the
appellant was not a Government servant but he was the servant of the State
Electricity Board constituted under the provisions of the Electricity (Supply)
Act, 1948 (Act 54 of 1948). The State Electricity Board so constituted is not a
department of the State Government. It is a body corporate having the power to
appoint the Secretary and such other officers and servants as may be required
to enable the Board to carry out the functions of the Board. Section 5( 1 ) of
the Act states:
"5. (1 ) The State Government shall, as
soon as may be after the issue of the notification under subsection (4) of
section 1, constitute by notification in the Official Gazette a State
Electricity Board under such name as shall be specified in the
notification." 687 Section 12 provides for incorporation of the Board and
reads as follows:
"12. The Board shall be a body corporate
by the name notified under sub-section ( 1 ) of section 5, having perpetual
succession and a common seal with power to acquire and hold property both
movable and immovable, and shall by the said name sue and be sued."
Section 15 is to the following effect:
"The Board may appoint a Secretary and
such other officers and servants as may be required to enable the Board to
carry out its functions under this Act:
Provided that the appointment of the
Secretary shall be subject to the ,approval of the State Government."
Section 81 enacts:
"81. All members, officers and servants
of the Board shall be deemed, when acting or purporting to act in pursuance of
any of the provisions of this Act, to be public servants within the meaning of
section 21 of the Indian Penal Code." On a plain reading of s. 81, the
officers and servants of the Board are deemed to be public servants only when
acting or purporting to act in pursuance of any of the provisions of the Electricity
(Supply) Act, 1948. So far as the receiving of a bribe is concerned, it cannot
be brought within the scope of acting or purporting to act in pursuance of any
of the provisions of the Electricity (Supply) Act. Therefore, the appellant
while taking the bribe, cannot be deemed to be a public servant within the
meaning of s. 21, Indian Penal Code in view of the language of s. 81 of the Electricity
(Supply) Act, 1948.
The question whether sanction of the
Government was required under s. 197 of the Criminal Procedure Code where any
public servant is accused of an offence alleged to have been committed by him
while acting or purporting to act in the discharge of his official duty came up
for consideration by the Judicial Committee in cases under ss. 161 and 409 of
the Indian Penal Code against public servants. In Gill v. The King(1), it was
held by the Judicial Committee that prosecution for taking a bribe under s.
161, Indian Penal Code did not require sanction under s. 197 because taking of
a bribe was not acting or purporting to act in the discharge of the official
duty of a public servant. Again in Hori Ram Singh v. The Crown(2), the Federal
Court held that sanction was required for prosecution of a public servant for
an (1) 75 I.A, 41. (2) [1939] F.C.R. 159.
688 offence under s. 477-A as his official
capacity was involved in the very act complained of as amounting to a crime;
but that no sanction was required for a charge under s. 409, because the
official capacity is material only in connection with the entrustment and does
not necessarily enter into the later 'act of misappropriation or conversion
which is the act complained of This view of the Federal Court was approved by
the Judicial Committee in Gill's case(1). The same view has been expressed by
this Court in State of Maharashtra v. Jagatsing Charansingh(2) in which it was
held that only when an officer or servant of a corporation was acting or purporting
to act in pursuance of any of the provisions of the Transport Corporation Act,
1950 (Act 64 of 1950) or of any other law that he could be said to be a public
servant within s. 43 of that Act. Therefore a person taking a bribe could not
be said to be a public servant within the meaning of s. 21, Indian Penal Code
in view of the language of s.43 of the Transport Corporation Act.
Applying a similar line of reasoning to the
present case, we are of opinion that the appellant cannot be deemed to be a
public servant within the meaning of s. 81 of the Electricity (Supply) Act,
1948 because he was not acting or purporting to act in pursuance of any of the
provisions of that Act.
We pass on to consider the alternative
question raised on behalf of the respondent, namely, whether the appellant was
a public servant within the meaning of the twelfth clause in s. 21, Indian
Penal Code as it stood after the Criminal Law (Amendment) Act, 1958 (Act 11 of
1958). Under this clause the words "public servant" include 'every
officer in the service or pay of a local authority or of a corporation engaged
in any trade or industry which is established by a Central, Provincial or State
Act or of a Government company as defined in section 617 of the Companies Act,
1956'. In view of Explanation 4 the expression 'corporation engaged in any
trade or industry' includes a banking, insurance 'or financial corporation, a
river valley corporation and a corporation for supplying power, light Or water
to the public. It is not disputed in the present case that the appellant was in
the service of the State Electricity Board which falls within the language of
Explanation 4. But it was contended for the appellant that its was performing
only routine clerical duties and cannot be treated as an officer within the
meaning of cl.
(12) to s. 21, Indian Penal Code. The
question to be considered therefore is whether as Head Clerk employed under the
State Electricity Board and attached to the office of the Executive Engineer,
the appellant could be said to be an officer within the meaning of el. (12) of
s. 21, Indian Penal Code. In Reg. v. Ramajirao Jivbaji(3) it was held by West,
J. that the word 'officer' meant some person employed to exercise to some
extent and in certain circumstances a delegated function (1)751.A. 41 (2) [1964]4S.C.R.
299.
(3) 12 Born. H.C.R. 1.
689 of Government. He was either himself
armed with some authority or representative character or his duties were
immediately auxiliary to those of some one who was so armed.
In the course of his judgment, West J.
observed as follows:
"Seeking the help of English law, we
find, in Bacon's Abridgement at Vol. 6, page 2, the article headed `of the
nature of an officer, and the several kinds of officers,' commencing thus: 'It
is said that the word 'officium' principally implies 'a duty, and, in the next
place, the charge of such duty;
and that it is a rule where one man bath to
do with another's affairs against his will, and without his leave, that this is
an office, 'and he who is in it is an officer.' And the next paragraph goes on
to say: 'There is a difference between 'an office and an employment, every
office being an employment;
but there are employments which do not come
under the denomination of offices; such as ,an agreement to make hay, herd a
flock, & c.;
which differ widely from that of steward of a
manor,' &c. The first of these paragraphs implies that an officer is one to
whom is delegated. by the supreme authority, some portion of its regulating and
coercitive powers, or who is appointed to repre sent the State in its relations
to individual subjects.
This is the central idea; and applying it to
the clause which we have to construe, we think that the word 'officer' there
means some person employed to exercise, to some extent, and in certain
circumstances, a delegated function of Government. He is either himself ,armed
with some authority or representative character, or his duties are immediately
auxiliary to those of some one who is so The decision in Reg. v. Ramajirao
Jivbaji(1) was considered by the Calcutta High Court in Nazamuddin v. Queen-
Empress(a). The petitioner in that case was a peon attached to the office of
the Superintendent of the Salt Department in the district of Mozafferpur and he
had been convicted under s. 161 Indian Penal Code. The contention urged on
behalf of the petitioner was that he did not fall within the terms of the last
portion of cl. (9) of s. 21, Indian Penal Code. The
contention was rejected and the learned Judges observed at page 346 of the
Report 'as follows:
"The Learned Judges in that case had to
consider whether a lessee from Government was on the conditions of his lease a
public servant, and, in doing so, they considered generally the meaning of the
term 'officer'.
(1) 12 Born. H.C.R. 1 (2) I.L.R.:28.Cal. 344.
690 It was there held that an officer means
'some person employed to exercise, to some extent and in certain circumstances,
a delegated function of Government. He is either armed with some authority or
representative character, or his duties are immediately auxiliary to those of
some person who is so armed.' The meaning which we are asked to put on those
words seems to us to be too narrow as applied to the present case. The peon who
has been convicted as a public servant is in service and pay of the Government
and he is attached to the office of the Superintendent of the Salt Department.
The exact nature of his duties is not stated, because this objection was not
taken at the trial, but we must take it that, from the nature of his
appointment, it was his duty to carry out the orders of his official superior,
who undoubtedly is a public servant, and in that capacity to assist the
Superintendent in the performance of the public duties of his office. In that
sense he would be an officer of Government, although he might not possibly
exercise 'any delegated function of the Government'. Still his duties would be
'immediately auxiliary to those of the Superintendent who is so armed.' We
think that an 'officer in the service or pay of Government' within the terms of
s. 21, Penal Code is one who is appointed to some office for the performance of
some public duty. In this sense the peon would come within s. 2 1, el. 9".
In Emperor v. Karam Chand Gobind Ram(1), it
was held by the Lahore High Court that a Head Clerk in the Supply Depot at
Sialkot whose duty was to put up bills to his officer, vas a public officer
within the meaning of s. 21, cl. (9) of the Indian Penal Code. It was pointed
out that even if 'a Head Clerk cannot be said to be employed to exercise to
some extent, and in certain circumstances, a delegated function of Government,
his duties were "immediately 'auxiliary to the Head of the Office or other
officer empowered with official responsibility of accepting and passing his
work". In G. A. Monterio v. The State of Ajmer(2), it was held by this
Court that a person, who was a Class Iii servant and was employed as a metal
examiner known as Chaser in the Railway Carriage Workshops and was working
under the Works Manager who was an officer of the Government and the duties
which he performed were immediately auxiliary to those of the Works Manager who
was an officer in the service or pay of the Government and was therefore a
public servant within the meaning of s. 21 (9), Indian Penal Code and s. 2,
Prevention of Corruption Act.
(1) A.I.R. 1943 Lab. 255.
(2) A.I.R. 1957 s. 13.
691 The true test, therefore, in order to
determine whether the appellant is ,an officer of the Corporation within the
meaning of 21, cl. (12), Indian Penal Code, is: (1) whether he is in the
service or pay of the Corporation, and (2) whether he is himself other armed
with some authority or representative character by the Corporation; or whether
his duties are immediately auxiliary to those of someone who is .armed with
such authority or representative character;
In the present case, the High Court has found
that the appellant was a person performing duties immediately auxiliary to
those of the Executive Engineer who was the lead of the office. The very
designation "Head Clerk" denotes that there are other Clerks attached
to the office who occupy subordinate positions in relation to the Head Clerk
and the duties of he Head Clerk from the nature of things are bound to be
immediately auxiliary to the Head of the office.
Upon the facts found in the present case we
are of the opinion hat the appellant was an officer in the service or pay of
the Corporation as defined in s. 21, cl. (12), Indian Penal Code and therefore
a 'public servant' within the meaning of that section 'and also of s. 2 of the
prevention of Corruption Act.
For the reasons expressed we affirm the
judgment of the High Court dated August 10, 1966 in Criminal Appeal no. 134 of
1964 and dismiss this appeal.
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