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PETITIONER: AKHTAR ALAM

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 12/11/1968

BENCH:

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

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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.

JUDGMENT: 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

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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

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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

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             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

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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

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             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

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             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 some  one  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. R.K.P,S.                                   Appeal dismissed 692

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