Maharudrappa Danappa Kesarappanavar Vs.
The State of Mysore  INSC 51 (16 February 1961)
DAYAL, RAGHUBAR SUBBARAO, K.
CITATION: 1961 AIR 785 1962 SCR (1) 129
Municipality Chairman of Managing Committee
empowered to order payment of bills for fixed recurring charges-If public
servant Prevention of Corruption Act, 1947, (Act 11 of 1947), ss. 2,
5(2)-Indian Penal Code, (Act 45 of 1860), s. 21, cl 10,--Bombay District
Municipal Act, 1901 (Bom.III of 1901), r. 68.
The question arising for determination was
whether the Chairman of the Managing Committee of a Municipality who could
order payment of bills for fixed recurring charges was a "public
servant" within the meaning of s. 21 of the Indian Penal Code.
Held, that the power to make payment of fixed
recurring charges, such as pay bills, imposed a "duty" on the
Chairman to do so when necessary as the power was vested in the Chairman for
the benefit of the persons entitled to receive those recurring charges.
Julius v. Lord Bishop of Oxford, (1880) 5
App. CaS. 214, referred to.
Section 21, Cl. 1O of the Indian Penal Code
merely requires that the person should have the "duty" to expend
property for certain purposes and is not restricted to such cases only where there
is no limitation on the exercise of that power of expending property. The
Chairman had the duty to order payment and spend money of the Municipality in
certain circumstances and as such was a "public servant".
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 154 of 1959.
Appeal by special leave from the judgment and
order dated March 27, 1959, of the Mysore High Court in Criminal Appeal No. 168
S....N. Andley, J. B. Dadachanji, RameShwar
Nath and Bavinder Narain, for the appellant.
B....Gopalakrishnan and T. M. Sen, for the
1961. February 16. The Judgment of the Court
was delivered by 130 RAGHUBAR DAYAL, J.-This is an appeal by special leave
against the judgment of the High Court of Mysore at Bangalore confirming the
appellant's conviction for an offence under s. 5(2) of the Prevention of
Corruption Act, 1947 (Act 11 of 1947), by the Special Judge, Dharwar.
The appellant is alleged to have committed
the offence while he was a Municipal Councillor and Chairman of the Managing
Committee of the Navalgund Municipality. The only question for determination in
this appeal is whether the appellant was a 'Public servant' contemplated by S.
2 of the Prevention of Corruption Act. The contention for the appellant is that
he was not such a 'public servant'.
Section 2 of the Prevention of Corruption Act
"For the purposes of this Act, 'public
servant' means a public servant as defined in section 21 of the Indian Penal
Section 21 of the Indian Penal Code defines
the persons coming within the expression 'public servant' and its Tenth Clause
"Every officer whose duty it is, as such
officer, to take, receive, keep or expend any property, to make any survey or
assessment or to levy any rate or tax for any secular common purpose of any
village, town or district, or to make, authenticate or keep any document for
the ascertaining of the rights of the people of any village, town or
The Rule 68 framed under the Bombay District
Municipal Act, 1901 (Bombay Act III of 1901) and admittedly applicable to the
"The Chairman of an Executive Committee
shall sign payment orders on behalf of the Committee after the Committee have
passed the bills and may also order payment of bills for fixed recurring charges
such as pay bills in anticipation of the Committee passing them".
The High Court held that the appellant, as
Chairman of the Managing Committee, could expend the money of the Municipality
as he could order payment of bills for fixed recurring charges and that
therefore he 131 came within the purview of the expression 'public servant'
defined in the Tenth Clause of s. 21 of the Indian Penal Code.
The only criticism which the learned counsel
for the appellant has urged against this view is that the High Court did not
keep the distinction between the words ,duty' and 'power' in mind and that rule
68 empowers the Chairman to order payment and does not impose a duty on him to
order payment. We are of opinion that the power to make payment of fixed
recurring charges such as pay bills imposes a duty on the Chair. man to do so
when necessary as the power it;
vested in the Chairman for the benefit of the
persons entitled to receive those recurring charges.
Reference may usefully be made here to what
was said in this connection in Julius v. The Lord, Bishop of Oxford (1).
Earl Cairns, the Lord Chancellor, said in
connection with the interpretation to be put on the expression 'it shall be
lawful' in a certain statute:
"The words 'it shall be lawful' are not
equivocal. They are plain and 'unambiguous.
They are words merely making that legal and
possible which there would otherwise be no right 'or authority to do. They
confer a faculty or and they do not of themselves do more than confer a faculty
or power, But there may be something in the nature of the thing empowered to be
done, something in the object for which it is to be done, something in the
conditions under which it is to be done, something in the title of the person
or persons for whose benefit the power is to be exercised, which may couple the
power with a duty, and make it the duty of the person in whom the power is
reposed, to exercise that power when called upon to do so".
The aforesaid power is conferred on the
Chairman for the benefit of the persons who have served the Municipality and
have got the right to receive their pay or money for articles provided. There
may arise circumstances when any delay in payment may affect those persons
adversely. The pay is due on the first day of (1)..(1880) 5 App. Cas. 214, 222.
132 the month and it may not be convenient to
fix a meeting of the Committee at a date for early payment of the pay due. A
meeting already fixed may have to be adjourned for want of quorum. The passing
of the pay bills, in the circumstances, is more or less a formal matter and
therefore the rules empower the Chairman of the Managing Committee to order
payment of the pay bills in anticipation of sanction by the Committee. The
Chairman can exercise this power for the benefit of the employees voluntarily
or when requested by those persons to exercise it. The mere fact that this
power of the Chairman was to be exercised only with respect to fixed recurring
charges and in anticipation of the Committee passing the bills for those
charges therefore does not affect the question in any way. Clause ten of s. 21
of the Indian Penal Code merely requires that the person should have the duty
to expend property for certain purposes. It is not restricted to such cases
only where there is no limitation on the exercise of that power of expending
property. The Chairman has the duty to order payment and to spend the money of
the Municipality in certain circumstances. We therefore hold that the appellant
was a (public servant' when the alleged offence was committed.
In view of our opinion, we do not discuss the
effect of s. 45 of the Bombay District Municipal Act which lays down that every
municipal councilor shall be deemed to be a public servant within the meaning
of s. 21 of the Indian Penal Code, or the question whether the appellant, as a
mere Municipal Councilor, comes within the definition of 'public servant' in S.
21 of the Indian Penal Code. These questions were not considered by the High
We therefore dismiss the appeal.