http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: DATTATRAYA NARAYAN PATIL

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT16/04/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. FAZALALI, SYED MURTAZA

CITATION:  1975 AIR 1685            1975 SCR  145  1976 SCC  (1)  11  CITATOR INFO :  R          1979 SC 898  (51)

ACT: I.P.C. Sec. 21, 353, 355--Public servant-Duty assigned to  a public servant by an executive order whether public duty.

HEADNOTE: Shri  Antulay,  a Minister presided over a  meeting  of  the District  Advisory Committee.  The appellant  attended  that meeting  as an M.L.A. and his brother attended is  a  Sabha- Patai  of  the  Building Department of  the  Zila  Parishad. According to the prosecution, the appellant and his  brother assaulted Shri Antulay, a public servant in the execution of his duty, as such public servant within the meaning of  Sec. 353 of the Code.  The Magistrate held that Shri Antulay  was a  public servant and that, therefore, the charge  could  be framed  under Section 353.  On revision, the Sessions  Court held  that  charges could be framed  against  the  appellant under  Sec.  353 and 355 of the Code,  A  revision  petition filed by the appellant in the High Court was dismissed.   On appeal by Special Leave, it was contended before this  Court by the appellant: (1)That the District Advisory Committee is not a Statutory Committee.  It was constituted under an administrative order of the Government.  It exercised no Governmental  authority. Its  function  is  only  to  make  recommendations  to   the Government. (2)The Chairman presiding at a meeting of the Committee is not acting as a Public servant. (3)When  an  assault was made or criminal force  was  used against the Chairman as alleged by the prosecution at such a meeting it was directed against the person presiding at  the meeting and not against a public servant. (4)A Minister may be a public servant but while  presiding over  a  meeting  of  the  Advisory  Committee  he  was  not functioning as a Minister but as a Chairman. (5)  That the Judicial Magistrate committed an error of  law in treating the charge sheet as a complaint and framing  the charge  against the appellant for a  non-cognizable  offence tinder section 3551511 of the Code. Dismissing the appeal, HELD : The District Advisory Committee was constituted by  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

notification  of  the  Government  of  Maharashtra  for  the purpose of reviewing the work of Zila Parishad and Panchayat Samities.  The Minister a public servant was the Chairman of the  Committee.  The Divisional Commissioner was to  be  the conveyor  and  the  Deputy Commissioner was to  act  as  the Secretary.   They  were  ill  public  servants.   The   duty assigned  to a public servant by his master whether under  a statute or by the executive order, will assume the character of public duty provided the duty assigned is not illegal  or against the public policy. [148B-C, 149-B-C] Shri Antulay, therefore, was a public servant.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 257 of 1972, 146 Appeal  by special leave from the judgment and  order  dated the  29th  June, 1972 of the Bombay High Court  in  Criminal Revision Appln.  No. 1129 of 1971. M.C.  Bhandare, R Nagaratnam and Manju Jaitley,  for  the appellant. H. R. Khanna, for the respondent. The Judgment of the Court was delivered by UNTWALIA,  J.-This  is  an appeal  by  special  leave.   The question  which falls for determination is whether a  charge could be legally and validly framed on the facts alleged  by the  prosecution against the appellant under section 353  of the Indian Penal Code--hereinafter called the code. An incident is said to have taken place in a meeting of  the District  Advisory Committee of Kolaba District held on  the 22nd of August, 1970 at about 3.00 p.m. in a panda near  the Nehru  Hall at Alibag under the Chairmanship of Shri  A.  R. Antulay  a Minister of the Government of  Maharashtra.   The appellant  was a member of The Legislative Assembly and  his brother was the Sabhapati of the Building Department of  the Zilla Parishad.  Both of them attended the meeting.  Certain incidents took place in that meeting, which according to the prosecution, amounted to assault or use of criminal force by the  appellant  to  the  Minister-a  public  servant-in  the execution  of  his duty as such public  servant  within  the meaning of section 353 of the Code.  It was further  alleged that  the  action  of both the  brothers  also  amounted  to assault  or use of criminal force to Shri Antulay  intending thereby to dishonour him, otherwise than on grave and sudden provocation given by that person, within meaning of  section 355.   A  complaint  of the incident  was  lodged  with  the police.    Investigation  was  made  and  Charge-sheet   was submitted in the court of the Judicial Magistrate at  Alibag against  both the accused for offences alleged to have  been committed  by  them  under sections 353 and  355  read  with section  34  of  the  Code.  On perusal  of  the  papers  in accordance  with  section  251 A of  the  Code  of  Criminal Procedure,   1898  and  after  hearing  the  arguments   the Magistrate found that Shri Antulay, being a Minister, was  a public servant.  In that capacity he was presiding over  the meeting  of  the  District  Advisory  Committee  of   Kolaba District.   He,  however,  held  that  the  meeting  of  the Committee  was  illegal because it was not convened  at  the instance of the Commissioner of the Division as required  by the Rules.  He also held that the appellant who was  accused no. 1, at the most, had prepared to assault the Minister and not   actually  assaulted  or  used  criminal  force.    The appellant  was discharged by the Magistrate in  relation  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

the charge under section 353, but a charge under section 355 read  with section 511 was framed against him  His  brother, accused  no. 2, was however completely exonerated  and  dis- charged.                             147 Two revisions were filed before the Sessions Judge,  Kolaba- One by the State and the other by the appellant.  The  State wanted  charges  to be framed against  the  appellant  under sections  353  and 355 and also against accused no.  2.  The appellant,  however, wanted the Sessions Judge to quash  the charge  framed  against him under section 355/  511  of  the Code.  The learned Sessions Judge allowed the revision filed by  the  State in part and dismissed the one  filed  by  the appellant.   Be directed the framing of charges against  the appellant  under both the sections, viz. 353 and 355 of  the Code.   The  discharge  of  accused  no.  2  was,   however, maintained.  The matter was taken further in revision before the Bombay High Court by the appellant only.  The High Court has directed the framing of the charge against the appellant both  under  section 353 and 355 of the  Code.   Hence  this appeal by special leave. Learned counsel for the appellant did not canvass before  us the justification of the discharge of the appellant for  the offence  under section 353 of the Code on the ground of  the allegedly  illegal convening of the meeting of the  Advisory Committee.   We are, therefore, not called upon  to  express any  opinion of ours in this judgment in that  regard.   Nor should we be deemed to have expressed, any opinion, even  by implication, as to the truth or falsehood of the allegations made  against the appellant, or, whether the prosecution  by its  evidence  win be able to prove the charge  against  the appellant.   We confine our judgment to the decision of  the only question which falls, for our determination. Learned counsel for the appellant submitted :               (1)That the District Advisory Committee  is               not a Statutory Committee.  It was constituted               under   an   administrative   order   of   the               Government.   It  exercised  no   Governmental               authority.   Its  function  is  only  to  make               recommendations to the Government.               (2)The  Chairman presiding at a meeting  of               the  Cornmittee  is  not acting  as  a  public               servant.               (3)   When  an  assault was made  or  criminal               force was used againstthe   Chairman    as               alleged by the prosecution at such a meetingit                             was  directed against the person  pres iding  at               the meeting and not against a public servant.               (4)   A  Minister may be a public servant  but               while presiding over a meeting of the Advisory               Committee he was not functioning as a Minister               but as a Chairman.               (5)That  the Judicial Magistrate  committed               an  error of law in treating the  Charge-Sheet               as a complaint and framing the charge  against               the  appellant  for a  non-cognizable  offence               under section 355/511 of the Code. The  decision  on  the last point urged  on  behalf  of  the appellant would have been necessitated provided the argument advanced  on  his behalf in relation to the  charge  of  the cognizable offence under section 148 353  of  the Code would have been well-founded and  correct; otherwise  not. Since in our opinion it is not so we do  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

deal with the lastpoint and take up the discussion of  the first four points together, as really speaking, they are all off-shoots of one and one point only, namely, whether  while presiding  over  the meeting of the Advisory  Committee  the Minister  was executing or discharging his duty as a  public servant. As  stated  in the judgment of the High Court  the  District Advisory Committee was constituted by a notification of  the Government of Maharashtra, Cooperation and Rural Development Department  dated 5-8-1964 for the purpose of reviewing  the work of Zilla Parishads and Panchayat Samitis.  The circular Ext-15 issued by the Maharashtra Government on 5-8-1964  was obviously not in exercise of any statutory power.  It was in exercise  of the executive power which is co-extensive  with the  legislative power of the State.  In the circular it  is stated               "For  quite  some time Government has  had  in               view the question of reviewing the working  of               Zilla  Parishads and Panchayat  Samitis  (Plan               and  Development  Works)  in the  State  as  a               regular feature.  It is, therefore, felt  that               this  object  in  view  can  be  substantially               achieved  by  holding sixmonthly  meetings  of               Regional Officers, District Officers,  Office-               Bearers  or  Zilla  Parishads  and   Panchayat               Samitis and M.Ps., M.L.Cs., and M.L.As., under               the Chairmanship of the Minister in-charge  of               the  District.   Government  has,   therefore,               decided that such meetings should be  convened               twice  a year in each of the Districts in  the               Revenue    Division    by    the    Divisional               Commissioner in consultation with the Minister               in  charge  of  the  District.   The  meetings               should  be  held at the  Headquarters  of  the               District  concerned.  The Deputy  Commissioner               (Development) of the Division concerned should               work as the Secretary of the Committee.   The,               work  pertaining to these meetings  should  be               carried  out by the Development Branch of  the               Commissioner’s  Office and various actions  to               be taken as a result of deliberations in these               meetings  should  be  pursued  by  the  Deputy               Commissioner (Development) under the  guidance               and    supervision    of    the     Divisional               Commissioner." The  terms of reference for the working of the Committee  as also  its composition were indicated in the subsequent  part of the circular. Under the orders of the Government, therefore, its  officers including  the  Minister of the District were to  carry  out certain  public duties in connection with the  reviewing  of the working of Zilla Parishads and Panchayat Samitis  which, of  course,  were  constituted  under,  the  statutes.   The Minister,  a public servant, was to be the Chairman  of  the Committee.   The  Divisional  Commissioner  was  to  be  the convener   of   the  meeting.    The   Deputy   Commissioner (Development)  ,of the Division concerned was to act as  the Secretary.  They were all                             149 public  servants.  Is it possible to take the view that  the Divisional  Commissioner  or the Deputy  Commissioner  while performing  the  functions  aforesaid under  orders  of  the Government  conveyed  in the circular  dated  5-8-1964  were performing  any  private  functions and not  public  duty  ? Obviously it was a part of the public duty assigned to  them

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

by the Government.  The duty assigned to a public servant by his  master,  be it be under a statute or  by  an  executive order,  will assume the character of public  duty,  provided the  duty assigned is not illegal or against public  policy. Will  it make any difference in the case of a Minister ?  In our  judgment,  not.  The Minister is a  public  servant-not disputed.  In accordance with the instructions issued by the Government  he  was  to preside over  the  meetings  of  the Advisory  Committee.  He was doing so as a Minister  and  in execution and discharge of his duty as such public  servant. It  is  no doubt true that non-official office  bearers  and members of the Committee could not be public servants.  Non- officials  appointed  to  a Committee  constituted  under  a statute  may,  under certain  circumstances,  become  public servants  within the meaning of section 21 of the Code;  but surely  non-official  members of the Committee  in  question could not be so.  Yet it is wrong to say that the  officials and  persons  who  were public  servants  discharging  their duties  as  office  bearers  and  members  of  the  Advisory Committee  were  not  performing any  duty  as  such  public servants.  Any person who was not a public servant appointed as  a Chairman of the Committee may not be a public  servant because the office of the Chairman of the Advisory Committee is  not such that would make him a public servant.  But  the matter  is  different  when a  public  servant,  under  the, executive  instructions of the Government, is appointed  the Chairman of the Committee. Learned  counsel  for  the  appellant  in  support  of   his submissions placed reliance upon two decisions of this Court viz.  Padam Sen and another v. The State of Uttar Pradesh(1) and   The  State  of  Gujarat  v.  Manshankar   Prabhasankar Dwivedi(2).   Neither  of  them is apposite  and  helps  the appellant.  In the case of Padam Sen the appointment of  the Commissioner  by the Additional Munsif was found to be  null and void; yet it was argued with the aid of Explanation 2 to section  21 of the Code that he was a public  servant.   The argument was repelledby  Raghirbar Dayal, J.  delivering the judgment on behalf of the Courtat page 890 thus               "We   do  not agree with this contention,  and               are of opinion  that  the Explanation  applies               only when there be a post in   existence.  The               Explanation does not apply when there is no               preexisting post or when the person appointing               has no     authority to appoint." In  the case of State of Gujarat v. Dwivedi(2) the  question arose in relation to an offence said to have been  committed by the respondent under section 161 of the Code and  section 5(2) read with section (1)[1961] 1 SCR 884. (2)[1973] 1 SCR 313. 150 5  (1)  (d)  of  the Prevention  of  Corruption  Act,  1947. Dwivedi  was a senior lecturer at a Government College.   In that capacity, undoubtedly, he was a public servant.  He  is alleged to have accepted the gratification of Rs. 500  other than legal remuneration for showing favour to a candidate in his  capacity  as  Examiner for  Physics  Practical  in  the examination’  held  By  the  Gujarat  University.   He   was appointed  an  examiner by the University and,  not  by  the Government In such circumstances it was held that Dwivedi as an examiner of the University was not a public servant as it had no connection with his    being a Government servant. For the reasons stated above we hold that no interference is called for     by  this Court in the framing of  the  charge against the appellant as per  the  directions  of  the  High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

Court.  The appeal is, therefore, dismissed. P.H.P.                                                Appeal dismissed. 151