Report No. 42

9.11. Section 16.-amended.-

Section 167 punishes a public servant "charged with the preparation or translation of a document" who "frames or translates" a document in an incorrect manner with the requisite intent. There is some controversy as to whether the preparation of false uncertified copies falls under section 167.1 In our view, there can hardly be any doubt that a copy, whether certified or uncertified, is a 'document' within the meaning of section 167. If a copy is knowingly prepared incorrectly, then the act should be punishable under section 166. It is desirable to make the position clear.

The word 'frames' in section 167 should be replaced by the word 'prepares' . The earlier part speaks of a person charged with the preparation of a document, and not with the framing of a document. The expression 'preparation of a document' is comprehensive enough to cover preparation of the translation of a document. We propose to put that idea in an Explanation instead of specifically mentioning translation in the main section as at present.

Accordingly section 167 may be revised as follows.-

"167. Public servant preparing an incorrect document with intent to cause injury.- Whoever, being a public servant and being, as such public servant, charged with the preparation of any document, prepares that document in a manner which he knows or believes to be incorrect, intending thereby to cause, or knowing it to be likely that he will thereby cause, injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Explanation.- The expression 'preparation of a document' includes the preparation of a copy or translation of .a document."

1. Certified copies would be covered by section 197.

9.12. Corrupt dealing of public servants in regard to government contracts.-

The Law Commission had in an earlier Report1 considered how to tackle the problem of cheating of government on a large scale by dishonest contractors while supplying goods or executing works, and recommended a specific provision penalising it as an aggravated offence of cheating. Considering the wide range of State activity at present (and it is likely to grow wider), there are, we think, sound reasons for enacting a special provision expressly covering such fraudulent conduct. We are also conscious that such conduct is facilitated and furthered by official connivance, and we should take note, not only of fraudulent contractors, but also of those public 'officials who assist them.

The maximum punishment for such conduct, we think, could be more severe than that suggested in the 29th Report, and we propose a maximum of ten years' imprisonment. While the proper place for the provision for punishment of government contractors would be in Chapter 17 in the part relating to cheating2, we propose the following section to punish the corrupt public servant who assists them.-

"167A. Public servant knowingly authorising payment in respect of contracts, when the goods supplied or work done is not in accordance with the contract.- Whoever, being a public servant competent to authorise payment on behalf of the Government or other public authority in respect of any contract for the supply of any goods, the construction of any building or the execution of other work, authorises such payment, knowin.-

(a) in the case of a contract for the supply of goods, that the contractor has supplied goods which are less in quantity than, or inferior in quality to, those he contracted to supply or which are, in any manner whatever, not in accordance with the contract, or

(b) in the case of a contract for the construction of a building or execution of other work, that the contractor has used materials, which are less in quantity than, or inferior in quality to those he contracted to use, or which are, in any manner whatever, not in accordance with the contract, shall, in the absence of lawful excuse, the burden of proving which shall be on him, be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

Explanation.- In this section, 'public authority' means.

(a) a corporation established by or under a Central, Provincial or State Act;

(b) a Government company as defined in section 617 of the Companies Act, 1956; and

(c) a local authority."

1. 29th Repor.-proposal to include certain social and economic offences in the Indian Penal Cod.-paras. 137 to 139.

2. See para. 17.50, below.

9.13. Section 168.-

Section 168 deals with a public servant who unlawfully engages in any trade, when legally bound not to engage in that trade. The word 'trade' in this section was given a wide meaning in a Bombay case1, as including any business carried on with a view to profit. No contrary view has been taken by any other High Court, and we do not consider it necessary to make any amendment to this section.

1. Mulshankar v. Government of Bombay, AIR 1951 Bom 233.

9.14. Section 169.- No change is needed in section 169.

9.15. Section 170.-

Section 170 punishes a person who pretends to hold a particular office as a public servant, or falsely personates any other person holding such office and, in such assumed character, does any act under colour of such office. It is not necessary that the act should be done with a dishonest or corrupt motive. We considered the question whether the word 'dishonestly' or 'fraudulently' or 'corruptly" should be inserted to indicate the requisite mens rea.

It was apprehended that, if construed without some such words, the section might create hardship; for instance, even a person who, in assisting law enforcement, has to pose as an officer of a particular category, may be held guilty of this offence. But we do not think that this point is of any practical importance. It is not likely that an agent provocateur who entraps an accused and makes him commit a crime by pretending to be a public servant, will ever be prosecuted.

9.16. Section 17.-punishment increased.-

With reference to section 171 also, it was suggested that expressions indicating the mens rea should be added; but we regard this as unnecessary. The punishment provided in this section appears to be inadequate, and we recommend that it should be increased to "six months, or with fine, or with both."