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PETITIONER: BAJRANG LAL & ANR.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT24/02/1976

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH SHINGAL, P.N.

CITATION:  1976 AIR 1008            1976 SCR  (3) 497  1976 SCC  (2) 217  CITATOR INFO :  F          1989 SC1367  (9)

ACT:      Prevention of  Corruption Act  (2 of  1947), s. S(l)(d) and (2),  and Indian  Penal Code  (Act 45  of 1860),  s. 21, Ninth-Railway Khalasis  associated in  the work  of  issuing passes to Railway employees-If ’public servants’.

HEADNOTE:      Two  khalasis   were  convicted   for  the  offence  of conspiracy to  secure railway passes on forged applications, and under  s. 5(1)(d) and (2), Prevention of Corruption Act, 1947. It  was the duty of the office of the Works Manager of the Railway to issue passes to railway employees for railway travel. The two khalasis were not formally appointed to work in the  Pass  section,  but  their  services  were  actually utilised in the office for issuing passes.      In appeal  to this  Court it was contended on behalf of the khalasis, inter alia, that they are not public servants.      Dismissing the appeal, ^      HELD: (1) Section 21, Ninth. I.P.C., as it stood at the reievant time included in the definition of ’public servant’ every officer  in the  service or pay of the Government. The tests for  determining whether a person is an officer of the Government‘ are : (a) whether he is in the service or pay of the Government:  and (b)  Whether he  is entrusted  with the performance of  any public  duty whether  of an  exalted  or humble character. [500G-50IB]      In the  present case.  the two  khalasis were  actually allowed to deal with the preparation and issuance of railway passes. and  as such. were in fact, performing public duties and dicharging  public functions  auxiliary to  those of the Works Manager-who  is an  officer of  the Government-and his office. They  were. therefore.  in actual  possession of the situation of  a public servant and in view of Explanation II to s.  21, I.P.C.,  would be  ’public servants’.  They were, therefore. rightly  convicted  under  s.  5(1)(d)  and  (2), Prevention of Corruption Act. [50IE-G]      G. A.  Monterio v.  State of  Aimer [1956]  S.C.R. 682. followed.

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JUDGMENT:      CRIMINAL APPELLATE  JURISDlCTION: Criminal  Appeal  No. 198 of 1971.      Appeal by  special leave  from the  judgment and  order date the  27th July,  1971 of  the Rajasthan  High Court  at Jodhpur in Criminal Appeal No. 666 of 1969.      A. N.  Mulla, S.  K. Mehta  and M.  Qamaruddin, for the appellant.      Subhag Mal lain, for the respondent.      The Judgment of the Court was delivered by      SARKARIA, J.  This appeal  by special leave is directed against a judgment of the High Court of Rajasthan. It arises out of these facts:      There is  an office  of  the  Works  Manager,  Northern Railway at Bikaner. Among others, the duty of this office is to issue  Railway Passes  to the Railway employees and their dependent family  members ‘for  railway travel. Sita Ram and Ganesh Ram  were at the relevant time April 11, 1963 working as Pass Clerks in the office of the 498 Works Manager.  Bajrang Lal and Ram Kishan, though posted as Khalasis in  the Railway Carriage Shop, were associated with the work  of issuing  passes in  the office  of  the  Works. Manager.  The  office  used  to  receive  applications  from Railway employees  of the different sections under the Works Manager duly  forwarded  by  the  Foreman  Incharge  of  the respective sections  for issue of the Railway passes. It was the duty of the office hands to check the correctness of the application and  the genuineness  of the  signatures of  the forwarding officers  before  preparing  the  passes  in  the Railway Pass  Books  maintained  by  them.  After  checking, preparing and  initialling the  passes they  were put to the Works Manager.  If the  passes were  meant for a local line, they were  put to  the Chief  Clerk of  the Works  Manager’s office for  signature. Thereafter,  it was  the duty  of the Clerks to  send the  passes to  the concerned  sections with acknowledgement slips,  and the  Foreman of  the section was expected to pass them on to the applicants concerned.      According to  the prosecution  case, during this period from December  23, 1961 and April 11, 1963, Bajrang Lal, Ram Kishan, Sita  Ram and  Ganesh Ram,  all hatched a conspiracy for securing  passes on  forged applications. The scheme, as unfolded at the trial was that false and forged applications were prepared in collaboration by Bajrang Lal and Ram Kishan with the object of causing wrongful loss to the Railway.      The prosecution  has brought  material on the record to show that  15 forged  applications were  prepared by them to secure such  passes Ex.  P-46 is  one of  such  applications prepared  in  the  name  of  one  Narain  (P.W.  6).  It  is admittedly in  the hand  of Ram  Kishan, appellant. It bears the endorsement  purporting to be under the signature of the forwarding officer,  Kishan (P.W. 20). The signature on this forwarding endorsement  is in  the hand  of Bajrang Lal. The passes, Exts.  P-47 and  P-48 were  prepared by  Ram Kishan. They were  checked by  Sita Ram.  Ram  Kishan  prepared  the acknowledgement receipt  in respect  of the passes, Exts. P- 47, and  P-48 on  Ext. P-140  to show  that  they  had  been delivered to the persons in whose names they were prepared.      Similarly,  the  forged  application,  Ext.  P-78,  was prepared by  Bajrang Lal,  while the  Pass,  Ext.  P-79,  in respect thereof was prepared by Ram Kishan. The slip Ext. P- 140 containing  an  entry  about  the  pass  Ext.  P-79  was prepared by Ram Kishan.

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    The application  Ext. P-87  was written by Bajrang Lal, while the  acknowledgement receipt  Ex. P-88 in the slip Ex. P-140 was  prepared by  Ram Kishan. Ram Kishan also prepared the  false   acknowledgement  receipt,  Ex.  P-76,  and  the acknowledgement receipt in respect of Pass No. 812080 in the slip, Ex. P-140.      On the  preceding facts,  Sita Ram, Ganesh Ram, Bajrang Lal and  Ram Kishan  were tried in respect of offences under ss. 120B,  420, 465,  471, Penal  Code and  under s. S(l)(d) read with s. S(2) of the Prevention of Corruption Act, 1947, by the Special Judge. Sita Ram and Ganesh Ram were acquitted of all the charges. Bajnang 499 Lal and  Ram Kishan were convicted on charges under ss. 420, 468 and 471, Penal Code and sentenced to one year’s rigorous imprisonment and  a fine  of Rs. 200/- each on each of these counts. They  were further  convicted under  s. 120B,  Penal Code and sentenced to 6 months’ rigorous imprisonment, each. They were  also convicted  under o  S. S(1) (d) read with s. S(2) of  the Prevention  of Corruption  Act and sentenced to one year’s  rigorous imprisonment  and a  fine of Rs. 200/-, each. It  was not  thought necessary  to record  a  separate conviction under  s. 465,  Penal Code.  The sentences on all the counts were directed to run concurrently.      On appeal  by the  convicts, the  High Court  set aside their conviction under ss. 420, 468 and 471, Penal Code. It, however, maintained their conviction and sentence in respect of the offence under s. 120B, Penal Code and s. S(1)(d) read with s. S(2) of the Prevention of Corruption Act. It further altered the  conviction of  the appellant  under s. 468/471, Penal Code  to one  under s. 465, Penal Code and reduced the sentence on  this count to six months’ rigorous imprisonment with a fine of Rs. 200/- only.      Hence this  appeal by the convicts, Bajrang Lal and Ram Kishan.      Bajrang Lal  has since  died. Ram  Kishan’s appeal only survives ,; for decision.      The first  contention of Shri A. N. Mulla appearing for the appellants  is, that Ram Kishan and Bajrang Lal were not ’public servants’  within the  definition of  the term in s. 21, Penal Code. It is urged that the High Court was wrong in assuming that  at the  relevant time  every  person  in  the service or  pay of  the Government  was a  ’public  servant’ within the meaning of clause (10) of s. 21, Penal Code. Sub- Clause (a)  of clause  (10) of s. 21, it is pointed out, was introduced by  the Amending  Act 40 of 1964 and not by Act 2 of 1958  referred to  by the  High Court in its judgment. In the alternative,  it is  submitted that  clause (9) of s. 21 also, as  it stood  at the  relevant time, did not cover the case of  the appellants, Ram Kishan and Bajrang Lal, because they were mere khalasis or menial servants and not "officers in the  service  or  pay  of  the  Government",  within  the contemplation of that clause.      We are  unable to  accept these contentions. True, that the High  Court has  wrongly referred to the Amending Act of 1958. The relevant period is from December 23, 1961 to April 11, 1963  Clause (9)  of s. 21 as it stood at that time, was as follows:           "Ninth.-Every officer  whose duty  it is,  as such      officer to  take, receive, keep, or expend any property      on behalf  of the  Government or  to make  any  survey,      assessment, or  contract on behalf of the Government or      to execute  any revenue-process,  or to investigate, or      to  report,  on  any  matter  affecting  the  pecuniary      interest of the Government, or to make, authenticate or

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    keep any  document relating  to the pecuniary interests      of the  Government or  to prevent the infraction of any      law for  the protection  of the  pecuniary interests of      the Government and every officer in the service 500      or pay  of the  Government or  remunerated by  fees  or      commission for the performance of any public duty."      The question, is whether the appellants, Ram Kishan and Bajrang Lal,  were "officers  in the  service or  pay of the Government" within  tho meaning  of this  clause?  The  term ’officer’ has not been defined by the Code.      Mr.  Mulla   contends  that  the  appellants  were  not "officers" within  the contemplation of this clause, because (a)  they   were  mere  Khalasis  and,  as  such,  were  not exercising any delegated function of the Government, and (b) they were  never appointed to perform any public duty in the office of  the Works  Manager. In this connection, reference has been  made to  Reg v.  Ramajivrao(l) and  Nizamuddin  v. E.(2).      In Ramajivrao’s  case (supra),  the Bombay  High  Court held that  the word  ’officer’ in  this clause  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."      Ramajivrao’s  case  was  noticed  by  a  Bench  of  the Calcutta High  Court in  Nizamuddin v. Queen Empress (supra) and it  was ruled  that an  ’officer’ within the terms of s. 21, clause  Ninth of  the Penal Code is one who is appointed to some  office for  the performance  of some  public  duty. Accordingly, it  was held that a neon attached to the office of the Superintendent of the Salt Department was are officer in the  service or  pay of  the Government and as such was a public servant.      The meaning of the term ’officer’ was considered by the Lahore High  Court also  in Abad Shah v. Emperor (3). lt was opined that the term ’officer’ in the aforesaid clause means a functionary  or holder of some officium or office, however humble  to   whom  in  some  degree  are  delegated  certain functions of the Government.      These cases  were considered  by this  Court in  G.  A. Monterio v.  State of Ajmer(4). Approving the law enunciated by the Calcutta High Court in Nizamuddin’s case (supra), the Court speaking  through Bhagwati J., explained the position, thus:           "The true  test.. in  order to determine whether a      person is an officer of the Government is:           (1)  whether he  is in  the service  or pay of the                Government. and           (2)  whether he  is entrusted with the performance                of any public duty.      (1) (1875) 12 Bom. H.C. R. 1.  (2) I.L.R. 28, Cal. 344.      (3) A.l.R. 1918 Lah. 152.        (4) [1956] S.C.R. 682. 501           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."      By the  application of  these tests, in the above case, it was  held that  a Class  III servant  working as  a Metal Examiner under the control of the Railway Works Manager, was an "officer"  of the Government within the meaning of s. 21, Clause Ninth, Penal Code.      The instant case is within the ratio of the decision in

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G. A. Monterio v. State of Ajmer (supra). As was pointed out in that case, the Railway Works Manager is an officer of the Government, armed  with  some  authority  or  representative character qua  the Government.  The appellants  were holding the posts  of Khalasis  in the Railway Carriage Section, but were actually  allowed to  deal  with  the  preparation  and issuance of  Railway Passes  in  the  Office  of  the  Works Manager and  as such  they were,  in fact, performing public duties and  discharging public  functions auxiliary to those of the Works Manager and his office. On "the strength of the evidence" and  the statement of the accused, the trial court unhesitatingly found it as an "established fact that Bajrang Lal and Ram Kishan worked in the Pass Section". This finding which is  borne by  the evidence of Sadhu Ram (P.W. 32), the Head-Clerk of  the Works Manager, Mohd. Sajjad (P.W. 19) and Mohd. Ibrahim  (P.W. 34), was affirmed by the High Court. We also find  no good reason to disturb this concurrent finding of fact.      Thus,  the  position  that  emerges  is  that  although Bajrang Lal  and Ram  Kishan were  not formally appointed to work in  the Pass  Section, the  posts held by them being of Khalasis drawing  pay from  the  Railway  Carriage  Section, their services were actually utilised in the Pass Section of the  Office   of  the  Works  Manager.  The  appellant  was, therefore, in actual possession of the situation of a public servant, and in view of Explanation II to s. 21, Penal Code, would be  a ’public  servant’ notwithstanding  the defect in his right to hold that situation.      We therefore  negative the  contention of Mr. Mulla and hold that  the appellant  Ram Kishan  was a ’public servant’ within the  9th Clause  of s.  21, Penal Code as it stood at the material  time. Consequently, the appellant’s conviction for an  offence under  s. 5(1)(d)  read with  s. 5(2) of the Prevention of  Corruption Act  cannot be  assailed  on  that score.      It is next contended on behalf of the appellant that he had admitted  only the  execution of the body writing of the application  Ex.   P-46,  and   not  the  signature  thereon purporting to be that of Narain. The point sought to be made out is  that without  signature, the  body  writing  of  the application would  not be  a "document" as defined in s. 29, nor would  the mere  scribing of  the application  amount to "forgery" under  s. 463  or to  ’making  a  false  document’ within the meaning of s. 464, Penal Code. 502      The contention  must be  repelled. There  is no  record before us to show that Ram Kishan appellant had specifically denied the  execution of  that part  of  the  writing  which purports to  be the  signature of  "Narayan"  applicant.  No request was made by the appellant for summoning the original record. On  the contrary,  from the  judgments of the courts below, it appears that Ram Kishan had categorically admitted that the  application, Ex.  P-46, had  been written  by him. Narayan’s (P.W.  6) testified  that  he  had  made  no  such application, nor  had he  ever asked the appellant to scribe it. The  witness unequivocally  stated that this application does not  bear his  signature. Narayan’s  evidence has  been believed by  the courts  below.  There  was  thus  no  doubt whatever  that  this  application  including  the  signature thereon, is a false document. The passes, Ex. P-47, P-48, P- 47 and the receipt, P-88, were also proved to be in the hand of the  appellant. The  charge under  s. 465  was thus fully brought home to him.      The charge of criminal conspiracy to prepare and obtain false Railway  Passes with  a view to cause wrongful loss to

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the Railway  had been  fully established  against Ram Kishan and Bajrang  Lal. The  forged Passes  Ex. P-47 and P-48 were admittedly in  the hand  of Ram  Kishan, and  the forwarding endorsement on  the application  Ex. P-46  pursuant to which these forged  Passes were  prepared, was proved to be in the hand of  Bajrang Lal.  Kishan (P.W.  20) who was supposed to have made  and signed this forwarding endorsement, testified that this writing did not bear his signature. Again. Bajrang Lal made  the false  entries in  the Railway  Pass  Book  in respect of  the Passes,  Ex. P-47,  P-48,  Ram  Kishan  then prepared the  acknowledgement receipt  on Ex.  P-140 showing that these Passes had been delivered to the persons in whose names they were prepared. Similarly, the forged application, Ex. P-78,  was prepared  Bajrang Lal  and the  Pass relating thereto was  prepared by  Ram Kishan. The slip in respect of this forged  Pass is also in the hand of Ram Kishan. Another instance was furnished by the application Ex. P-87 which was in the  hand  of  Bajrang  Lal,  while  the  acknowledgement receipt Ex. P-88 was prepared by Ram Kishan.      From the  concerted conduct  of  Bajrang  Lal  and  Ram Kishan  in   preparing  these   forged  writings,  it  could unerringly be  inferred that  they  had  agreed  to  prepare forged Railway Passes with the intention of causing wrongful loss to  the Railway.  And, in  pursuance of  the conspiracy they did prepare the forged passes aforesaid.      We  therefore  find  no  good  reason  to  disturb  the conviction of  the appellant  recorded by  the High Court in respect of  offences under ss. 120-B, 465, Penal Code and s. 5(2) of the Prevention Corruption Act.      Lastly Mr.  Mulla submitted that the appellant was only a small  fry. The bigger fish, the clerks had gone scot free and the  it was unfair to inflict so harsh a sentence on the appellant. Might  be that  some bigger partners in the crime have escaped punishment 503 for want of proof. But the sentence awarded to the appellant is the  minimum prescribed  by law  for an  offence under s. 5(2) of  the Prevention  of Corruption Act. The Court had no discretion to inflict a lesser sentence on that court.      For the  foregoing reasons,  we dismiss this appeal and uphold the conviction and sentence of the appellant. V.P.S.                                     Appeal dismissed. 504