21 September 1956
Supreme Court
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G. A. MONTERIO Vs THE STATE OF AJMER.

Case number: Appeal (crl.) 146 of 1954


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PETITIONER: G.   A. MONTERIO

       Vs.

RESPONDENT: THE STATE OF AJMER.

DATE OF JUDGMENT: 21/09/1956

BENCH: BHAGWATI, NATWARLAL H. BENCH: BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER MENON, P. GOVINDA

CITATION:  1957 AIR   13            1956 SCR  682

ACT:  "Officer"-Tests  to  determine who  is  an  ’officer’-Metal examiner,  called  chaser,  in  Railway  Carriage  workshop- Whether  officer  Indian Penal Code (Act XLV  of  1860),  s. 21(9)-Prevention of Corruption Act (II of 1947), s. 2.

HEADNOTE: The  appellant was a Class III servant employed as  a  metal examiner,  also  called  chaser,  in  the  Railway  Carriage Workshop at Ajmer.  He accepted a sum of Rs. 150 as  illegal gratification  for securing a job for some person.   He  was charged  under  s. 5(1)(d) of the Prevention  of  Corruption Act, 1947 (Act II of 1947).  The appellant contended that he was not an "officer" within the meaning of the term used  in s.  21(9)  of the Indian Penal Code and so could  not  be  a public servant for purposes of Act II of 1947.  It was found that  the appellant was working under the Works Manager  who was  certainly an officer of the Government and  the  duties which  he performed were immediately auxiliary to  those  of the Works Manager who was also armed with some authority  or representative character qua the Government. Held, that the appellant was an officer  within the  meaning of s.     21(9)  of the Indian Penal Code and, therefore,  a public servant within the meaning of s. 2 of Act 11 of 1947. 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. The  public  duty  may  - be  either,a  function  of  -  the Government  delegated  to him or may be a  duty  immediately auxiliary  to  that  of someone who is  an  officer  of  the Government. Beg.  v. Ramajirav Jivbajirav ([1875] XII Bom.   H.C.R.  1), explained. Nazamuddin V. Queen-Empress, ([1900] I.L.R. 28 Cal. 344) and Ahad Shah v. Emperor (A.I.R. 1918 Leh. 152), relied on

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 146  of 1954.- Appeal  from the judgment and order dated the 27th  November 1954 of the Court of Judicial Com- 683 missioner at Ajmer in Criminal Appeal No. 15 of 1954 arising out of the judgment and order dated 25th August 1954 of  the Court  of Special Judge at Ajmer in Criminal Case No.  5  of 1953. B.   P. Maheshwari, for the appellant. C.   K. Daphtary, Solicitor-General for India, Porus A.   Mehta, H. R. Khanna and B. H. Dhebar, for the respondent. 1956.   September  21.   The  Judgment  of  the  Court   was delivered by BHAGWATI J.-This Appeal with a certificate of fitness  under article  134(1)(c) of the Constitution against the  decision of  the Judicial Commissioner at Ajmer raises  an  important question  as  to  the  connotation  of  the  word  "officer" contained in section 21(9), Indian Penal Code. The  appellant was a Class III servant employed as  a  metal examiner,  also  called  Chaser,  in  the  Railway  Carriage Workshops  at  Ajmer.  I He was charged under  section  161, Indian Penal Code with having accepted from one Nanak  Singh currency   notes  of  the  value  of  Rs.  150  as   illegal gratification as a motive for securing a job for one  Kallu. He was also charged under section 5(1)(d) of Act II of  1947 with abusing his position as a public servant and  obtaining for himself by corrupt or illegal means pecuniary  advantage in  the shape of Rs. 150 from the said Nanak Singh.  He  was further  charged  with  having committed  an  offence  under section  420, Indian Penal Code for having induced the  said Nanak Singh to deliver to him currency notes of the value of Rs.  150 by dishonest representation that be could secure  a job for the said Kallu.  The learned Special Judge, State of Ajmer,  who  tried him in the first instance  for  the  said offences   convicted  him  of  the  offence  under   section 161,’Indian  Penal  Code as also the offence  under  section 5(1)  (d)  of  Act II of 1947 and sentenced  him  to  suffer rigorous   imprisonment   for  six  months  and   one   year respectively  in regard to the same, both the  sentences  to run concurrently.  In so far, 684 however,  as  it was not proved that the appellant  did  not believe  when he accepted the money that he could secure  or would  try  to secure a job for Kallu, it was held  that  no case  under section 420, Indian Penal Code was made out  and he was acquitted of that charge. The  appeal  taken to the Judicial  Commissioner,  State  of Ajmer,  by  the appellant failed and on the  10th  December, 1954,  the  learned  Judicial Commissioner  granted  to  the appellant  a certificate of fitness for appeal on  two  main grounds,  viz., (1) whether the appellant was  an  "officer" within the meaning of clause (9) of section 21, Indian Penal Code,  and (2) whether the provisions of section 137 of  the Railways   Act  excluded  all  railway  servants  from   the definition  of  public  servants  except  for  purposes   of Chapter’ IX, Indian Penal Code. Concurrent findings of fact were reached by both the  Courts below  on the question as to whether the appellant  accepted Rs.  150  from  Nanak  Singh  as  and  by  way  of   illegal gratification  and these findings could not be and were  not challenged  before  us  by  the  learned  counsel  for   the appellant.   The only questions which were canvassed  before

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us  were the two legal points which formed the basis of  the certificate  of  fitness for appeal granted by  the  learned Judicial Commissioner, State of Ajmer, to the appellant. The  second question has now become academical in the  facts of the present case by virtue of a decision of this Court in Ram  Krishan v. Delhi State(1), which lays down that  before the  amendment of section 137 of the Railways Act by Act  17 of  1955  railway servants were treated as  public  servants only for the purposes of Chapter IX, Indian Penal Code,  but in any event they were public servants under the  Prevention of  Corruption  Act  (Act II of 1947).  In  so  far  as  the appellant  has, in our -opinion, been rightly  convicted  of the  offense  under section 5(1)(d) of Act If  of  1947  and awarded the sentence of rigorous imprigonment for one  year, the question whether he was rightly convicted of the offence under section 161, (1)  A.I.R. 1956 S C. 476. 685. Indian  Penal  Code  for which he  was  awarded  the  lesser sentence  of  six months’ rigorous imprisonment  has  become merely academical and the only question which remains to  be considered by us here is whether he-was an "officer"  within the meaning of section 21 (9), Indian Penal Code. The provisions of law in regard to the first question may be conveniently set out at this stage:- Section  2  of the Prevention of Corruption Act II  of  1947 provides:- "for  the  purposes  of this Act "public  servant"  means  a public servant as defined in section 21 of the Indian  Penal Code". Section 21, Indian Penal Code provides so far as is relevant for  the purposes of the present appeal: "The  words ’public servant’, denote a person falling  under any of the descriptions hereinafter following, namely, Ninth.....................    and every officer in the service  or pay of the Government or remunerated by fees  or commission for the performance of any public duty". There is no doubt that the appellant was. in the service  or pay  of  the Government -and was performing the  duty  of  a metal  examiner  known  as Chaser in  the  Railway  Carriage Workshops at Ajmer and was thus performing a public duty. It  was,  however, contended that the appellant was  not  an officer  within the meaning of that term as used in  section 21(9), Indian Penal Code.  An Officer, it was contended,  on the   authority   of  Reg.  v.  Ramajirav   jivbajirav   and another(1),  meant one to whom was delegated by the  supreme authority some portion of its regulating and coercive powers and  who  was  appointed  to  represent  the  State  in  its relations  to individual subjects.  According to the  dictum of  West, J., the word "officer" meant some person  employed to  exercise to some extent and in certain  circumstances  a delegated  function  of Government.  He was  either  himself armed with some authority or repre- (1)  XII Bom.  H.C.R. 1. 386 sentative character or his duties were immediately auxiliary to  those of some one who was so armed.  It was,  therefore, contended that the appellant being a metal examiner known as Chaser  in the Railway Carriage Workshops had not  delegated to  him  by  the  supreme  authority  some  portion  of  its regulating  and  coercive  powers nor was  he  appointed  to represent the State in its relations to individual subjects. He  was neither armed with some authority or  representative character nor were his duties immediately auxiliary to those of  some  one  who was so armed.  He  was  not  employed  to

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exercise  to  some extent and in certain  circumstances  the delegated function of Government and, therefore, was not  an "officer" within the meaning of that term as used in section 21(9), Indian Penal Code.  If he was thus not an officer  of the Government, he could not be a public servant within  the meaning  of section 21, Indian Penal Code nor could he be  a public servant for the purposes of Act 11 of 1947 and  could not be convicted of the offence under section 5(1)(d) of Act II of 1947. It  has  to  be noted, however, that  the  case  before  the learned Judges of the High Court of Bombay in 12 Bombay High Court Reports 1, concerned an Izaphatdar, that is a  lessee, of  a village who bad undertaken to keep an account  of  its forest   revenue  and  pay  a  certain  proportion  to   the Government,  keeping  the  remainder  for  himself  and  the question ’that arose for the consideration of the Court  was whether  such a person was an officer within the meaning  of section  21(9), Indian Penal Code.  It was in  this  context that  the aforesaid observations were made by West, J.,  and the  Court  came  to  the  conclusion  that  Deshmukhs   and Deshpandes  would be sufficiently within the meaning of  the clause  they  being  appointed to perform for  the  State  a portion of its functions or to aid those who were its active representatives but not so an Izaphatdar or the lessee  such as the accused.  He was not an officer but a mere contractor bound by his engagement but not -by the terms of his  office or employment to pay a certain proportion to the Government. There was no delegation to him of any 687 authority  for  coercion  or  interference  nor  was  he  an assistant appointed to help any one who was vested with such authority.   The duties which he performed were  contractual duties  frauduler deception in the discharge of which  might subject  him  to  punishment for  cheating  but  not  duties attached  to any office conferred on him or his  predecessor in title, failure to perform which with integrity could make him  liable,  as  an  officer,  to  the  special   penalties prescribed for delinquent public servants. This decision in 12 Bombay High Court Reports 1, came to  be considered  by  the  Calcutta High Court  in  Nazamuddin  v. Queen-Empress(1).   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  section  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 clause  (9) of  section  21,  Indian Penal Code  which  declared  "every officer  in the service or pay of Government" was  a  public servant be cause he was not an officer.  The case of Reg. v. Ramajirav  Jivbajirav(2)  was  cited  in  support  of   that contention and the learned Judges of the Calcutta High Court observed at page 346 as under:- "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".  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 these 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

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the Superintendent of the Salt Department.  The exact (1) I.L.R. 28 Cal. 344.        (2) XII Bom.  H.C.R. 1. 688 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 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 of the Penal Code is one who is appointed to some  office for the performance of some pulice duty.  In this sense  the peon would come within s. 21, cl. 9". The  true test, therefore, 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. 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.  As has been stated in Bacon’s Abridgment at   Vol. 6,  page  2,  in the article headed "Of  the  nature  of  an officer  and  the  several  kinds  of  officers":-"The  word "officium’  principally  implies  a duty, and  in  the  next place,  the charge of such duty; and that it is a rule  that where one man ’bath to do with another’s affairs against his will, and without his leave, that this is an office, and  he who is in it is an officer".  The next paragraph  thereafter may  also  be  referred to in  this  context:-"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. (Vide 12 Bombay High  Court Reports at page 5). 689 This  was the sense in which the decision in 12 Bombay  High Court Reports 1, was understood by the learned Judges of the Lahore  High  Court  in Ahad Shah v.  Emperor(1)  when  they observed at page 157: "But it is not enough that a person should be in the pay  or service  of  Government to Constitute him a  public  servant within  the meaning of s. 21 (ninthly), I.P.C. He must  also be  an "Officer".  That expression is not, of course, to  be restricted  to its colloquial meaning of a  Commissioned  or non-Commissioned Officer; it means a functional or holder of some "officium" or office.  The office may be one of dignity or  importance; it may equally be humble.  But whatever  its nature, it is essential that. the person holding the office, should  have  in  some  degree  delegated  to  him   certain functions of Government". The question for consideration before the learned Judges  of the Lahore High Court was whether a Quarter Master’s  ’clerk was  a public servant within the meaning of that  expression in  section  21, Indian Penal Code.  On the  facts  elicited before  them the learned Judges came to the conclusion  that the  Quarter Master’s clerk as such was just a Babu  and  no more an officer than a labourer or menial employed and  paid

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by Government to do public work (See Queen v.   Nachimuttu(2). 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 therefore ’an officer’ of the  Government within the meaning of section 21(9), Indian Penal Code. Applying  this test to the facts of the case before  us,  we find  that  the appellant was a Class III  servant  and  was employed as a metal examiner known as Chaser in the  Railway Carriage  Workshop.  He was working under the Works  Manager who was certainly (1) A.I.R. 1918 Lah. 152. (2) I.L.R. 7 Madras 18, 690 an  officer  of  the  Government and  the  duties  which  he performed  were immediately auxiliary to those of the  Works Manager  who, beside being an officer of the Government  was also  armed with some authority or representative  character qua  the  Government.   The appellant was thus,  even  on  a narrow interpretation of the dicta of West, J. in 12  Bombay High  Court Reports 1, an officer in the service or  pay  of the Government performing as such a public duty entrusted to him  by the Government and was therefore, a  public  servant within the meaning of section 21 of the Indian Penal Code. This  being the true legal position, this contention of  the appellant  also  does not avail him and the  first  question must be answered against him. The appellant was, therefore, an officer within the  meaning of  section 21(9) and therefore a public servant within  the meaning  of  section 21, Indian Penal Code  and  being  such public  servant  be fell within the definition of  a  public servant  contained  in  section  2  of  the  Prevention   of Corruption Act II of 1947.  He was, therefore, on the  facts and  circumstances  of  the case,  rightly  convicted  under section 5(1) (d) of Act II of 1947.  His conviction and  the sentence imposed upon him by the Courts below were therefore quite  in  order  and  this  appeal  must  therefore   stand dismissed. 691