Report No. 42
2.31. Clause eleventh.- Clause eleventh needs no change of substance.
2.32. Clause twelfth.-
Clause twelfth is a residuary clause. The ninth clause (before the relevant portion was transferred from the ninth clause to the twelfth clause in 1964), emphasised the performance of a "public duty". The relevant words in the ninth clause (before 1964) were "and every officer in the service or pay of the Governments or remunerated by fees or commission for the performance of any 'public duty". The words "public duty" seem to have been read in some cases as governing the whole of this residuary provision,1 i.e. as also applicable to those in the "service or pay" of Government.
Sometimes, emphasis was placed on the word "officer". In a Bombay case,2 it was observe.-
"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 etc., which differ widely from that of steward of a manor. 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 coercive powers, or who is appointed to represent 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 armed."
In a Calcutta case3, a peon attached to the Superintendent of the Salt Department was found to have taken a bribe. When he was tried for an offence under section 161, it was contended that he was not an "officer" within the meaning of clause nine of section 21 (as it stood then). Since he was not an "officer", he was not a public servant; this was the basis of the argument. The contention was rejected by the High Court, stating that even though the peon did not exercise any delegated function of the Government4, yet his duties were immediately auxiliary to those of the Superintendent, who was performing such delegated functions. The Court added, that an "officer in the service or pay of Government", within section 21(9), is one appointed for the performance of some public duty.
But a different view was also prevalent. In one case, it was stated that in the case5 of persons in the pay etc. of Government, it had been presumed that they are performing a public duty. In another case, it was clearly stated that the words "for the performance of any public duty" (in section 21, clause ninth, as it stood before 1964), governed only the words "remunerated by fee or commission".6
Two judgments of the Supreme Court seem to indicate that the requirements of pay and public duty are cumulative. In one case7, the applicant was a class III servant, employed as a metal examiner in the Railway Carriage Workshop at Ajmer. He was convicted by the Special Judge, State of Ajmer, of the offences under section 161, Indian Penal Code for having accepted from one Nanak Singh the sum of Rs. 150 as illegal gratification as a motive for securing a job for someone.
He was also convicted of an offence under section 5(1)(d) of the Prevention of Corruption Act, 1947, for abusing his position as a public servant and obtaining for himself by corrupt or illegal means pecuniary advantages in the shape of Rs. 150 from the said Nanak Singh. The case was taken up to the Supreme Court on appeal and the main question for consideration by that Court was whether a class III railway servant was an "officer" within the meaning of clause nine as it stood prior to 1964.
The Court laid down two tests, namely, whether he is in the service or pay of the Government and whether he is entrusted with the performance of a public duty, and held that "if both these requirements are satisfied, it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed". It further observed.-
"If, therefore, on the facts of a particular case, the Court comes to the conclusion that a person is not only in the service or pay of the Government but is also performing a public duty, he has delegated to him the functions of the Government or is in any event performing duties immediately auxiliary to those of someone who is an officer of the Government and is therefore an officer of the Government within the meaning of section 21(9), Indian Penal Code."
In another case8, the appellant was a teacher in a railway school and the main question before the Supreme Court was whether he was a "public servant" within the meaning of section 21. The Supreme Court reiterated the test laid down by it in C.A. Montorio v. State of Ajmer, 1956 SCR 682 (supra), and held that the appellant was in the service of Government and was being paid by Government. The Court observed.-
"It cannot, in our opinion, be doubted that he was entrusted with the performance of a public duty inasmuch as he was a teacher in a school maintained by Government and it was a part of his public duty to teach boys."
In clause 12(a), after the amendment of 1964, any person in the service or pay of the Government is a public servant and it is not necessary to consider whether he performs any public duty or not. But as regards those persons who are remunerated by fees or commissions, such as part-time public prosecutors, the performance of public duty is material.
1. Cf. Nazamud Din v. Q.E., 1900 ILR 28 Cal 344: 4 CWN 798.
2. Reg. v. Ramaji Rao, (1875) 12 Bom HCR 1 (5) (West J.)
3. Nazamud Din v. Q.E., 1900 ILR 28 Cal 344: 4 CWN 798.
4. The test of "delegated functions of the Government" had been employed in the Bombay case, Reg. v. Ramajirao, (1875) 12 Born High Court Report 1. See also Emperor v. Karam Chand, AIR 1943 Lah 255.
5. Cf. Bansi Lal v. Mohammad Hafiz, AIR 1939 Pat 77 (79) (Case under the Code of Civil Procedure).
6. fugal Singh v. Emperor, AIR 1943 Pat 315 (316).
7. G.A. Monterio v. State of Ajmer, 1956 SCR 682.
8. State of Ajmer v. Shivaji Lal, 1959 SCR 912 (913).
2.33. Meaning of "public duty".-
The expression "public duty" cannot be easily defined and no Court has attempted any such definition. A Sind case1 contains an instructive discussion as to the import of the words "public duty". There, the Court was required to decide whether the Courts of Wards under section 4, Bombay Court of Wards Act, 1905, was a "public officer" or not.
The Court referred to an old Bombay case2 where the Bombay High Co .rt had referred to the definition of the word "officium" or duty given in the Bacons' Abridgement at Vol. VI, page 2, and observed that an "officer" was one to whom was delegated, by the supreme authority, some portion of its regulating or coercive powers or who was appointed to represent the State in its relation to individual subjects, and that an "officer" in section 21, clause (9) Indian Penal Code, meant some person employed to exercise, to some extent and in certain circumstances, a delegated function of Government. The Sind Court then cited with approval a more comprehensive American definition3 running as follows.-
"It has been defined as the right, authority and duty created and conferred by law by which, for a given period, either fixed by law or ending at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the Government, either executive, legislative or judicial, to be exercised for the benefit of the public."
In a Rajasthan case,4 the question was whether a Superintending Engineer and an Assistant Engineer, both officers of the State of Rajasthan and functioning on deputation with the Rajasthan State Electricity Board, a statutory corporation, were "public officers" within the meaning of section 56(2) of the Indian Electricity Act of 1910. (This Act does not define the words "public officer"). While not professing to lay down any precise test for ascertaining the "public nature of an office or duty", the High Court observed.-
"The expression 'public officers' appear to refer to an officer who discharges functions or duties in relation to the public, and not in relation to private individuals. This may be accepted as a rough and general test for determining as to who should be treated as a public officer. All the same, it must be recognised that the expression 'public officer' cannot be held to have a precise meaning".
Referring to the definition of "public officer" in section 2(17), Code of Civil Procedure, and that of "public servant" in section 21, Indian Penal Code, the Court observed.-
"The definitions of both terms are quite comprehensive and wide, and include all Government servants and other officers concerned in the performance of duties of a public nature. They certainly discharge functions and duties in relation to the public and not in relation to private individuals."
A Patna case5 illustrates the tendency of judicial decisions in interpreting the words 'public duty'. An issue in this case was whether an advocate engaged by the Provincial Government to conduct a civil suit for the recovery of public money was a 'public officer' within clause (h) of section 2(17) of the Code of Civil Procedure. The Court said.-
"In the second category are those who are in the pay of the Government. Here the Legislature has not specified the work which these persons are to perform, that is to say, it has been presumed that when an officer is in the pay of the Government, he must have been performing a public duty. In the third category are those who are remunerated by fees or commission, and in order that they may be held to be public officers, it is necessary that the payment should be for the performance of any public duty. Conduct of a suit on behalf of the Government for the recovery of the public money is performing a public duty which an advocate undertakes."
Under English law also, no general definition of what is and what is not 'public duty' has been attempted by the Courts. The question has been decided in specific instances and in the particular context in which the word 'public' occurred. One of the tests laid down by the English Courts is that the duty must be legally enforceable. Thus the "public duty" referred to in section 1(a) of the Public Authorities Protection Act, 1893, was held by Avory J. to mean6 "a duty which can be legally enforced, having regard particularly to the succeeding words relating to neglect or default of the duty." Enforceability, however, may not be the only test.
The position in England seems to be that Courts tend to visualise 'public duty' as a duty relatable to the sovereign functions of the Government in which the public are directly interested or which is for the benefit of the public; and one of the criteria for deciding this point is that the duty is enforceable by any member of the public, in his right as such member, in a Court of law, but this is not the only criterion.
1. Vishnomal v. Court of Wards, AIR 1928 Sind 76.
2. Reg. v. Ramajirao, (1875).12 BHCR I (West J.).
3. Vol. III of Judicial and Statutory definitions of Words and Phrases, compiled by the Editorial staff of the American National Reporting System.
4. Nand Lal v. Prithvi Singh, ILR (1965) 15 Raj 1184: 1966 Cr LJ 868.
5. Bans Lal v. Mohammad Hafiz, AIR 1939 Pat 77 (79).
6. Martain v London Court Council, (1929) 141 LT 120. Cited in Roland Burrows Words and Phrases Judicially Defined, (1944 Edn.), Vol. 4, p. 424.
2.34. Suggestion to add clause referring to other laws considered.-
Apart from the twelve clauses, in some of the special and local acts, it is expressly declared in the statute itself that specified persons are "public servants" for the purposes of section 21 of the Indian Penal Code. This avoids unnecessary controversy and may be conveniently adopted in other statutes also. It is unnecessary to refer to such a provision in section 21 of the Code.
2.35. Members of Parliament, State Legislature and local authorities.-
It was suggested that members of Parliament, State Legislatures and local authorities should be regarded as 'public servants'. Though the new test which we propose, namely, "any persons holding any office by virtue of which he is authorised or required by law to perform a public duty" should cover them, we think that it would be better to mention them specifically.
2.36. Explanation .- deletion recommended.-
Explanation 1 to section 21 is unnecessary. The substantive clauses of the section do not themselves require that the person concerned should be appointed by the Government. The Explanation should, therefore, be omitted.
2.37. Explanation .-amendment recommended.-
Explanation 2 needs no change of substance. The word 'situation' is, however, not expressive, and we propose to add the word 'office', to indicate the meaning more clearly.
2.38. Explanation .-amendments recommended.-
The definition of 'election' in Explanation 3 is not very happily worded. It speaks of "any legislative, municipal or other public authority". Though the residual item is wide enough to cover local bodies other than municipal corporations, the definition could more aptly and usefully refer to "local authority." The words "the method of selection to which is, by or under any law, prescribed as by election" seem rather tautologous, and the word "selection" is not very appropriate, when speaking of an election. It should be replaced by the word "choosing". The definition may be re-drafted as follows.-
"The word 'election' denotes an election, by whatever system, held under any law for the purpose of choosing members of any legislature, local authority or other public authority."
The definition could be appropriately placed in a separate section, as it is not confined in its application to section 21 but applies also to other sections of the Code1.
1. E.g. Chapter 9A (sections 171A to 171 I).
2.39. Section 2.-various suggestions considered.-
We have considered various suggestions for extending the definition in section 21 and making it more comprehensive, e.g. so as to include
(i) heads and executive authorities of public institutions and non-official bodies;
(ii) presidents of co-operative societies;
(iii) office-bearers, officers or servants of any society registered under the Societies Registration Act, 1860, or of any public or charitable institutions;
(iv) persons licensed to sell controlled commodities; and
(v) pleaders, advocates and attorneys.
In our view, it will be inadvisable to include these persons in section 21 of the Indian Penal Code. It must be left to the Legislature to expressly declare in the special or local laws dealing with the aforesaid persons, that they are "public servants" for the purpose of section 21, Indian Penal Code.
2.40. Redraft of section 2.-recommended.-
We recommend in the light of the above discussion that section 21 may be replaced by the following two sections.-
"21. Public Servant.- The words 'public servant' denot.-
(a) any person who is a member of Parliament or of a State Legislature;
(b) any person who is in the service or pay of the Government, or who is remunerated by the Government by fees or commission for the performance of any public duty;
(c) any person who is a member, or is in the service or pay, of a local authority;
(d) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or of a Government company as defined in section 617 of the Companies Act, 1956;
(e) any Judge, including any person empowered by law to discharge, whether by himself or as a member or a body of persons, any adjudicatory functions;
(f) any person specially authorised by a Court of Justice to perform any duty in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such Court;
(g) any arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice or by any other competent public authority;
(h) any person who holds an office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; or
(i) any person who holds an office by virtue of which he is authorised or required by law to perform any public duty.
Explanation.- A person falling under any of the above clauses by virtue of any office or situation he is actually holding is a public servant, whatever legal defect, there may be in his right to hold that office or situation.
21A. Election.- The word "election" denotes an election, by whatever system held, under any law for the purpose of choosing members of any legislature, local authority or other public authority".
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