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Report No. 156

Clause 9

12.04. By virtue of this clause, sections 18 to 21 are right to be substituted. Existing section 18 says- "India" means the territory of India excluding the State of Jammu & Kashmir. As pointed out by the Law Commission, there is a need to amend this definition to make it clear that the Indian Penal Code extends to the territorial waters of India in the same manner as it extends to the land territory. The Law Commission, in its 42nd Report suggested an amendment to section 18, namely, "India means a territory of India including territorial waters but does not include the territory of Jammu & Kashmir."

In recommending this amendment, the Law Commission laid more stress in extending the Code to the land territory as well as internal waters of India. Though clause 2 has more clearly covered the territorial jurisdiction, it is silent as to the extension of the Code to the State of Jammu & Kashmir. It has been voiced in many workshops as well as observed in court judgments and suggestions from the members of legal fraternity and jurists to extend the applicability of Indian Penal Code to the entire country (including Jammu & Kashmir). Though this is a laudable object, new section 18 is not in conformity with the same.

The existing section 1 reads, "the title and extent of operation of the Code -this Act shall be called the Indian Penal Code and shall extend to the whole of India except the State of Jammu & Kashmir". The words "extend to the whole of

India" were introduced by way of an amendment in the year 1950 and the words "except the State of Jammu & Kashmir" were substituted in the year 1951. The existing section 18 defines India as "India means the territory of India excluding the State of Jammu & Kashmir". It may be noted that this section was substituted in the year 1950. By reading these two sections together it appears that the intention was not to extend the Penal Code to the State of Jammu & Kashmir as can be noticed from section 1.

But India as defined in section 18 is somewhat incongruous, i.e., as the territory of India excluding the State of Jammu & Kashmir. However, in the Bill the existing section 1 is not touched upon whereas the existing definition of India as found in section 18 is sought to be substituted by new section 18 which reads, "the word 'India' wherever it occurs in this Code means the territories to which this Code extends".

When the existing section 1 is not modified then the definition of India in the new section does not carry the matter further because it says that India means ale territories to which this Code extends, thereby clearly implying that this Code would not be applicable to the State of Jammu & Kashmir. In the 42nd Report, the Law Commission made a recommendation for amendment of section 18 in a slightly different way than what we find in the new section 18 sought to be substituted under the Bill.

Having examined the matter carefully and also bearing in mind that in the Bill there is no reference to section 1 at all, there is no need to substitute the existing section 18 by the proposed new section. However, to make things clear if necessary and to remove any ambiguity, namely, that the restricted meaning of India for the purpose of applicability of this Code would be the territories to which this Code extends, as found in the existing section 1, the proposed new section 18 may suitably be worded.

The existing section 19 defines 'judge' and section 20 'Court of Justice'. There was some confusion as to the interpretation of the expression 'judge'. Section 19 is sought to be substituted by the new section. The existing section 19 reads-

"Judge - the word "judge" denotes not only every person who is officially designated as a Judge, but also every person-

who is empowered by law to give, in any legal proceeding, civil or criminal, definitive judgment or a judgment which, if not appealed against, would be definitive, or a judgment which is confirmed by some other authority, would be definitive, or who is one of a body of person, which body of persons is empowered by law to give such a judgment."

The Law Commission in its 42nd Report noticed some lacunae in this and recommended that illustrations can be omitted and section suitably be amended. Now the section that is sought to be substituted reads as follows:-

"The word "judge" denotes not only every person who is officially designated as a Judge, but also-

(a) every person

(i) who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive or a judgment which, if confirmed by some authority, would be definitive, or

(ii) who is one of a body of persons, which body of persons is empowered by law to give such a judgment; and

(b) a magistrate."

While retaining the emphasis on giving a 'definitive judgment' and while recommending it, the only change brought out is inclusion of magistrate. We endorse the changes sought to be introduced by the Bill.

The existing section 20 defines a "court of justice" as meaning a judge or body of judges empowered by law to act judicially when such judge or body of judges is acting judicially. The Law Commission, in its 42nd Report, having examined the language of the section, observed that the definition is unnecessarily lengthy and suggested that the same may be simplified. As mentioned above, section 19 defining 'judge' as we find in the Bill comprehensive and all those words need not be repeated again. Section 20, as we find in the Bill after the change is simple and sufficient.

The existing section 21 defines 'public servant'. The same contains the categories of persons which come within the meaning of 'public servant'. The concept of 'public servant' is quite important from the point of view of administration of criminal justice. The definition of 'public servant' in section 21 has nexus to section 197, Cr. P.C. whereunder sanction is necessary for prosecuting a public servant. Now, it is well-settled that if the act complained of is connected with official duties of the accused and if reasonably found that it was done in the course of discharging of his official duties, section 197 is attracted and sanction is essential for his prosecution.

Therefore, it becomes necessary to find out whether the accused is a public servant as defined in section 21. The Law Commission having examined the existing section observed that the elaborate enumeration of various categories of public servants in section 21 is primarily based on the functions discharged by such servants and further noted that there is considerable overlapping particularly after the recast of clause twelve by the amending Acts of 1958 and 1964 and that some of the clauses require drastic revision. In the Bill, the new section 21 reads as follows-

"21. "Public Servant" means,-

(i) any person in the service or pay of the Government, or remunerated by the Government by fees or commission for the performance of any public duty;

(ii) any person in the service or pay of a local authority;

(iii) any person in the service or pay of a corporation owned or controlled by the Government;

(iv) any judge, including any person empowered by law to discharge, whether by himself or as a member of a body of persons, any adjudicatory functions;

(v) 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;

(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or Report by a court of justice or by a competent authority;

(vii) any person employed or engaged as an examiner or as an invigilator by any public body in connection with any examination recognised or approved by or under any law.

Explanation.-The expression "public body", includes-

(a) a University, Board of Education or other body or institution, either established by or under a Central, State or Provincial Act or constituted by the Government;

(b) a local authority;

(viii) any person who holds an office by 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

(ix) any person who holds an office by virtue of which he is authorised or required by law to perform any public duty.

Explanation 1.-Persons falling under any of the above clauses are public servants whether appointed by the Government or not.

Explanation 2.-A person calling 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."

The Law Commission in its 42nd Report having carefully examined the various clauses in section 21 suggested certain changes which are incorporated in the new section. In this context, the Law Commission has examined various judgments of the High Courts and Supreme Court.

The corresponding provisions in existing section reads as follows-"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 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(1 of 1956 )."

It can be seen that in this clause there is emphasis on public duty. In G.A. Monterio v. State of Ajmer, 1956 SCR 682, the Supreme Court indicated that the requirements of pay and public duty are cumulative.

The court 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 some one who is an officer of the government and is, therefor, an officer of the government within the meaning of section 21(9), Indian Penal Code.

The Supreme Court reiterated the same view in State of Ajmer v. Shivji Lai, 1959 Supp (2) SCR 739. After noting these observations, the Law Commission opined that the expression "public servant" cannot be easily defined and no court has attempted any such definition.

Taking into consideration various aspects mentioned above, the Law Commission recommended in its 42nd Report substitution of section 21. The definition of "public servant" as found in the Bill (new section 21) elaborately contains the recommendations made by the Law Commission. However, the Law Commission specifically mentioned one clause to be included, namely - "any person who is a Member of Parliament or of a State Legislature". In view of the various political developments and where numerous instances of criminalisation of politics are alleged it is necessary to have a provision, but in what manner can it be effectively done?

The existing provisions to the effect that any person receiving remuneration for discharging public duty may in a general way cover them since they are receiving some remuneration and also discharging a public duty. The Law Commission in its 42nd Report clearly recommended that these people should specifically be included as public servants under the relevant provisions.

But the question would be whether or not suitable amendments are also necessary to section 19 of the Prevention of Corruption Act and correspondingly section 197 of Cr. P.C. because a reading of these provisions would show that the emphasis is on the government service and the power to remove the delinquent officer by the State Government or the Central Government as the case may be.

But in the case of legislators these provisions providing for grant of sanction as such do not contemplate as to who should be the sanctioning authority in case a legislator is to be prosecuted for an act of criminal misconduct while discharging or purporting to discharge his official duties which to whatever limited extent may be a public duty performed by them, namely, being members of the legislatures.

It is but logical that the power should rest only with the presiding officer of the legislature since the proceedings or any acts connected with such proceedings including voting or defecting also are within the privileged category and it is only the presiding officer who can take a decision whether the act has any nexus of public duty of a legislator. Consequently, in case of legislators committing misconduct, the sanctioning authority can be only the presiding officers of the legislatures.

Unless such changes in the provisions providing for sanction are also brought about it may not be appropriate to just include them as public servants in the relevant provisions. If for argument's sake no sanction would be necessary under section 19 of the Prevention of Corruption Act or section 197 of Cr. P.C., then it would be ironical to say that only such protection can be extended to the other public servants and not to the members of the legislatures who are also by virtue of performance of public duty fall in the category of public servants.

Unless such major changes are brought about, it is not desirable and highly inappropriate to just merely bring them within the purview of public servants under section 21 by inserting a new clause and make them amenable to any of the relevant penal provisions.



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