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PETITIONER: S. G ANGOLI

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH(and connected appeal)

DATE OF JUDGMENT: 14/05/1957

BENCH:

ACT:        Prevention   of   Corruption-Railway   Servant   under   the        Government-If  a Public servant under the Act-Prevention  of        Corruption Act, 1947 (11 Of I947), S. 2-Indian Railways Act,        1890 (9 of 1890), s.     137(4)-Indian  Penal  Code  (45  of        1860), S. 21.

HEADNOTE:        The  two  appellants, who were railway  servants  under  the        Government, were put up on trial under S. 120B of the Indian        Penal  Code and s. 5(2) read with s. 5(1)(c) and 5(1)(d)  of        the Prevention of Corruption Act, 1947.  The Sessions  judge        who  tried the case found, in agreement with  the  unanimous        opinion   of  the  assessors,  the  appellants  guilty   and        sentenced appellant No. i to rigorous imprisonment for three        years  and appellant No. 2 to rigorous imprisonment for  two        years.   The  High  Court on appeal affirmed  the  order  of        conviction  and sentences passed on the appellants.  It  was        contended on behalf of the appellants in this court that the        order  of conviction and the sentences passed on  them  were        illegal  as they were not public servants under S. 2 Of  the        Prevention of Corruption Act, 1947.        Held,  that it was apparent from the words " for any of  the        purposes  of  that Code " used by s. 137(4)  Of  the  Indian        Railways  Act, 1890, as it stood prior to its  amendment  in        1955, that the bar created by that sub-section applied,  and        was  confined, to the purposes of the Indian Penal Code  and        could not be extended beyond its provisions.  In respect  of        offences other than those under the Code, therefore, neither        sub-s. (1) Of s. 137, which applied only to offences  under’        Ch.   IX of the Code, nor sub-s. (4) of that  section  could        apply  and  the question whether a railway  servant  charged        with offences under the Prevention of Corruption Act,  1947,        was  a  public servant or not must be, decided under  s.  of        that Act.        29i        Section  2 of the Prevention of Corruption Act  adopts,  the        definition  of  a public servant contained in S. 21  Of  the        Indian  Penal  Code,  and since the  main  offences  charged        against  the appellants were under that Act, and  not  under        the  Code,  S. 2 Of the Act would apply and  they  would  be        public servants within the meaning thereof.        Devi  Ram  Deep Chand v. The State, A.I.R.  1954  Punj.  189        disapproved.        Ram Krishan v. The State of Delhi, [1956] S.C.R. 182 and        C.   A.  Montorio v. The State of Ajmer, [1956] S.C.R.  682,        considered.

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JUDGMENT:        CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  20        and 21 of 1957.        Appeals  by special leave from the judgment and order  dated        September  14,  1955, of the Allahabad High  Court  (Lucknow        Bench)  at Lucknow in Criminal Appeals Nos. 374 and  376  of        1956, arising out of the judgment and order dated the  April        24, 1954, of the Sessions Judge, Lucknow, in Sessions  Trial        No. 106 of 1951.        R.   L.  Anand and S. N. Anand, for the appellant in Cr.  A.        No. 20 of 1957.        N.   C. Chatterjee and D. N. Mukherjee, for the appellant in        Cr.  A. No. 21 of 1957.        H.   R. Khanna and R. H. Dhebar, for the respondent.        1959.  May 14.  The Judgment of the Court was delivered by        GAJENDRAGADKAR  J.-Are  the appellants S. Gangoli  and  P.R.        Chaudhri (hereafter called appellants I and 2  respectively)        public  servants under s. 2 of the Prevention of  Corruption        Act, 1947 (Act II of 1947) (hereafter called the Act) ? That        is  the short question which arises for our decision in  the        present appeal.  That question arises in this way.        Chaudhri   had  been  posted  as  Assistant  Permanent   Way        Inspector,  Sultanpur, East Indian Railway, in March,  1948,        in  the  Lucknow  E.I.R. Division.  Gangoli  was  posted  as        Assistant  Pay Clerk in the Lucknow E.I.R.  Division  during        the  same period.  The case against the appellants was  that        they  had committed an offence under S. 120B of  the  Indian        Penal Code and        s.   5(2) read with ss. 5(1)(c) and 5(1)(d) of the Act.  It        292        appears that in accordance with the Pay Commission’s  Report        a sum of Rs. 16,685 was entrusted to appellant No. 2 by  the        railway  department  to be disbursed among  Class  IV  staff        working  under appellant No. 1. This payment had to be  made        in the presence of, and was to be attested by, appellant No.        1.  According  to the prosecution both  the  appellants  had        entered into a criminal conspiracy to misappropriate a  part        of  the said government amount entrusted to appellant No.  2        by paying to the respective members of Class IV staff lesser        amounts than those to which they were entitled and by making        entries  in the pay-sheets which purported to show that  the        due amounts had been paid to them.  In accordance with  this        conspiracy payment was made on March 11, 1948, in a  running        train  between Faizabad and Chilbila and the entries in  the        pay-sheets  show that the whole of the amount of Rs.  16,591        had been paid to 216 employees.  The entries also show  that        the  payment had been made by appellant No. 2 and  the  same        had  been  attested by appellant No. 1. In  fact  the  whole        amount  had not been disbursed to the employees who  in  all        were paid Rs. 1,555 less.  In this manner the two appellants        had  misappropriated  the  sum of about Rs.  1,555  and  had        falsified the paysheets in pursuance of their conspiracy.        Within  a few days of the said payment the employees  became        suspicious because they learnt that persons recruited on the        same day had been paid larger amounts as arrears.  Thereupon        they approached the higher officers and made a complaint  to        them.   They  were  advised to present  their  grievance  in        writing  and as a result some of the employees  did  present        applications  in  writing  complaining  that  they  had  not        received   the   due  payment  of  their   arrears.    These        representations  led  to an enquiry and Mr. Dalip  Singh  in        fact recorded some of the statements OD April 6 and 7, 1948.        The  prosecution  alleges  that  this  development   alarmed        appellant  No. 1  and he tried to hush  up  the  matter  by

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      calling  all  the men together and paying them  the  amounts        which  had  been previously wrongfully deducted  from  their        arrears.  It is the prosecution case that on this day  three        documents were                                    293        executed,  Exs. 5, 10 and 11, which would clearly show  that        the  appellants had committed the offences  charged  against        them.        Both  the appellants denied the charges.  They pleaded  that        they  had not entered into any conspiracy and it  was  their        suggestion  that  they had been falsely  implicated  in  the        present case.  Appellant No. 1 pleaded that the case against        him had been started, and false evidence had been secured by        H.N.  Das with the aid of Shambu because  relations  between        him and Das were not friendly.  Appellant No. 2 pleaded that        he  had  been falsely implicated because,  contrary  to  the        suggestion  of  the  police, he  had  refused  to  implicate        appellant  No. 1. According to them the evidence adduced  by        the prosecution was interested and false, and the  documents        produced by it were either fabricated or irrelevant.        In   support  of  its  case  the  prosecution  examined   44        witnesses, relied upon the three documents Exs. 5, 10 and 11        and  urged  that the charges framed against  the  appellants        were clearly established by the said evidence.  The  learned        Sessions  Judge  at Lucknow who tried the case  against  the        appellants   agreed  with  the  unanimous  opinion  of   the        assessors  and  held  that the charges  framed  against  the        appellants  had been proved beyond a reasonable  doubt  file        accordingly   convicted  them  of  the  said  offences   and        sentenced  appellant No. 1 to suffer  rigorous  imprisonment        ’for  three  years and appellant No. 2 to  -suffer  rigorous        imprisonment for two years.        This order of conviction and sentence was challenged by  the        appellants  by  preferring  appeals in  the  High  Court  of        Judicature at Allahabad.  These appeals, however, failed and        the High Court substantially agreed with the conclusions  of        the learned trial judge.  Mr. Justice Kidwai who beard these        appeals  no doubt partly accepted the defence plea and  held        that  Das was not a reliable witness and that he might  have        been responsible for the fabrication of Ex. 10.  The learned        judge  also  found that Shambu was  likewise  an  unreliable        witness.   Even so it was held that the evidence of  gangmen        was on the whole satisfactory and that the        204        documents  Exs.  5 and I 1 corroborated  the  oral  evidence        adduced  by  the prosecution.  In the result  the  order  of        conviction and sentence passed against the appellants by the        trial judge was confirmed.  It is against this order  passed        by  the  High Court that the appellants have  preferred  the        present  appeals by special leave; and the only point  which        they  have  raised before us is that  their  conviction  and        sentence  are illegal because they are not  public  servants        under s. 2 of the Act.        Section 2 of the Act provides that for the purposes of  this        Act  public servant means a public servant as defined in  s.        21 of the Indian Penal Code.  It is not disputed that  under        s.  21 the appellants are public servants.  The East  Indian        Railway  which  has  employed  the  appellants  was  at  the        material  time owned by the Government of India and  managed        and run by it, and so if the status of the appellants had to        be judged at the material date solely by reference to s.  21        of  the  Code there would be no difficulty in  holding  that        they are public servants as defined by the said section.        It is, however, urged that, for determining the status of  a        railway servant, it is necessary to consider s. 137 of.  the

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      Indian  Railways  Act,  1890 (Act 9 of  1890).   It  may  be        recalled  that  when  this Act was  passed  almost  all  the        railways  in India were owned and managed by public  limited        companies and as such railway servants as defined by s. 3(7)        of the Railways Act could not be treated as public  servants        under   s.  21  of  the  Code.   After  the  railways   were        nationalised and taken over by the Government of India, this        position   has  materially  altered.   But  prior   to   the        nationalisation  of railways, the position was that  railway        servants as such did not fall under s. 21 of the Code.  That        is why s. 137(1) and (4) purported to bring them within  the        definition of public servants contained in the said section.        Sub-s.  (1)  of s. 137 provides that every  railway  servant        shall  be deemed to be a public servant for the purposes  of        ch.  IX of the Indian Penal Code.  The effect of  this  sub-        section  is  to treat railway servants  as  public  servants        under  s. 21 for the purpose of offences relating to  public        servants  which are dealt with by ss. 161 to 171 is ch.   IX        of the Code.  It is thus clear that the                                    295        result  of this provision was to treat railway  servants  as        public  servants  even  though  they  did  not  satisfy  the        requirements  of the definition of s. 21.   Having  provided        for the extension of the said definition to railway servants        for  the  purposes  of  ch.   IX  of  the  Code,  subs.  (4)        prescribed that notwithstanding anything contained in s.  21        of  the  Indian Penal Code a railway servant  shall  not  be        deemed  to  be a public servant for any of the  purposes  of        that  Code except these mentioned in sub-s. (1).  It  is  on        this sub-section that the appellants’ argument is based.  It        is  urged by Mr. B. L. Anand that this  sub-section  clearly        provides  that  railway servants shall not be deemed  to  be        public  servants  except for the purposes of  ch.   IX;  and        since  the appellants had not been charged with any  of  the        offences  in ch.  IX of the Code they cannot be  treated  as        public servants for the offences under ss. 5(1) and 5(2)  of        the  Act.  It is true that these two sub-sections have  been        amended by Act 17 of 1955.  Sub-s. (4) has been deleted  and        sub-s.  (1) now provides that every railway servant being  a        public servant as defined in s. 21 of the Indian Penal  Code        shall  be deemed to be a public servant for the purposes  of        ch.  1X and s. 409 of that Code.  In other words, under  the        amended  provision  of s. 137(1) railway servants  would  be        deemed to be public servants under s. 21 of the Indian Penal        Code  only  for the purpose of eh.  IX and s.  409  of  that        Code.  We are, however, concerned with the provisions of  s.        137 prior to its amendment in 1955.        Now  s. 137, sub-s. (4) opens with the  non-obstante  clause        and  expressly  states that a railway servant shall  not  be        deemed  to  be a public servant for any of the  purposes  of        that  Code subject of course to the exception  mentioned  in        sub-s.  (1).  The argument is that the  non-obstante  clause        has the effect of excluding the application of s. 21 of  the        Code in all cases except those falling under ch.  IX of  the        Code;  and  it  is urged that  since  the  offences  charged        against the appellants are outside ch.  IX of the Code, sub-        s.  (4)  creates  a  bar against  treating  them  as  public        servants  for  the  purpose  of  the  said  offences.   This        argument, however, ignores the relevant words " for any        296        of  the  purposes of that Code" used in sub-s.  (4).   These        words  indicate that the bar created by sub-s. (4)  applies,        and is confined, to the purposes of that Code and cannot  be        extended  beyond the said purposes.  What subs.  (4)  really        provides  is  that if a railway servant is  charged  for  an

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      offence under the Indian Penal Code and the said offence  is        outside ch. IX of the Code he cannot be treated as a  public        servant.   This sub-section does not purport, or  intend  to        make any provision in respect of offences which are  outside        the  Penal Code, In respect of such offences neither  sub-s.        (1) nor sub-s. (4) of the Railways Act would apply, and  the        question  as  to whether railway servants  fall  within  the        mischief  of  the Act must be decided in the  light  of  the        provisions of the said Act itself.        That takes us to the question whether the appellants can  be        said to be public servants under s. 2 of the Act.  S. 2,  as        we  have indicated, in substance incorporates in itself  the        definition  of  a public servant contained in s. 21  of  the        Indian Penal Code.  There can be no doubt that the effect of        s. 2 of the Act is that the status of accused persons has to        be  determined  by the application of s. 21  of  the  Indian        Penal  Code as if the said section had been included in  the        Act.   If  that  be  so the  appellants  cannot  resist  the        conclusion  that they are public servants under s. 2 of  the        Act.  The contention that because s. 2 of the Act refers  to        s. 21 of the Indian Penal Code the bar created by s.  137(4)        of the Railways Act would inevitably come into operation  is        unsound.  The said bar can be invoked only if the status  of        the  accused person is being determined for any purposes  of        the  Code other than those of ch. IX.  In the  present  case        the  main offences charged are under the Act and  not  under        the Code, and so s. 137.(4) in inapplicable.        With regard to the construction of s. 137(4) there is        another  consideration  which may be indicated.   S.  137(1)        brings  within the definition of s. 21 of the  Code  railway        servants  who but for it would not have satisfied the  tests        laid  down  in s. 21.  The deeming provision of  sub-s.  (1)        would be clearly inappropriate                                    297        and  unnecessary if the railway servants concerned could  be        treated  as  public servants under s. 21 itself.   In  other        words,   railway   servants   employed   by   the    railway        administration  owned  and conducted by  the  Government  of        India  would be public servants under s. 21 as such  without        recourse  to the statutory fiction introduced by s.  137(1).        Having  provided  for this statutory fiction  by  sub-s.(1),        sub-s. (4) purports to cover the same ambit and to deal with        the same class of railway servants and it provides that this        class  of persons shall not be deemed to be public  servants        except as mentioned in sub-s. (1).  This negative  statutory        fiction is only intended to emphasise the fact that  persons        who  are treated as public servants by virtue of sub-s.  (1)        can  be dealt with only under the provisions of ch.   II  of        the  Code and no other.  Could it have been intended by  the        Legislature  that sub-s. (4) should exclude the  application        of the provisions of the Code other than those contained  in        ch.   IX  to railway servants who would be  public  servants        under s. 21 without the aid of sub-s. (1) of s. 137 ?  Prima        facie  such an intention cannot be attributed to the  Legis-        lature.  It is true that the non-obstante clause lends  some        assistance  to the argument of the appellants that with  the        exception  of  the provisions of ch. 1X, s. 21 of  the  Code        would be inapplicable to railway servants; but the said non-        obstacle  clause  cannot prima facie be wider in  its  scope        than sub-s. (1) of the card section.  The said  non-obstante        clause has apparently been inserted ex abundanti cautela (1)        to  clarify  the effect of s. 137(1).  The  two  subsections        introduce a positive and a negative fiction respectively and        thereby  achieve  the same result.  However,  since  we  are        concerned  with the provisions of the Act and not  with  any

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      provisions  of the Code other than ch. 11 it is  unnecessary        to  pursue this point any further and to express a  definite        opinion on this aspect of the matter.        We  must now refer to the decisions to which  our  attention        was  invited.  The first case on which Mr. Anand  relied  is        the decision of the Punjab High        (1)  (1955)  2 S. C. R. 977 - Rai Bahadur Kanwar Raj Nath  &        Ors. v. Pramod C. Bhatt, Custodian of Evacuee Property.        38        298        Court in Devi Ram Deep Chand v. The State (1).  In that case        the  accused were goods clerks employed by the  railway  and        they  were  being prosecuted in the court of  a  First-Class        Magistrate  on charges under S. 408 of the Penal  Code.   It        was urged on their behalf that the offences alleged  against        them  were in substance offences under s. 5 of the Act,  and        that they could be tried by a special judge alone.  That  is        why  the  High Court was moved for a transfer  of  the  case        against  them  from the court where it was  pending  to  the        court  of the special judge.  From the judgment of the  High        Court   it  clearly  appears  that  the  learned   Assistant        Advocate-General intimated to the Court that the prosecution        did  not  propose  to frame or prove a  charge  against  the        appellants under s. 5 of the Act.  Therefore s. 2 of the Act        did not really fall to be construed by the court; and so the        observations made by Dulat, J., that if the petitioners  are        not public servants within the meaning of s. 21 of the Penal        Code they cannot be called public servants for the  purposes        of  Act  2 of 1947, is clearly orbiter.  If,  however,  this        observation  was intended to be a decision on the point,  it        must, with respect, be held to be based on a misconstruction        of s. 137(4).        Mr.  Anand  has  also fairly invited our  attention  to  two        decisions  of this Court-Ram Krishan v. The State  of  Delhi        (2)  and C. A. Montorio v. The State of Ajmer(’) -which  are        prima  facie against his contention.  In the first of  these        two decisions the appellants had been charged under s.  120B        of  the Indian Penal Code for criminal conspiracy  to  cause        offence  of criminal misconduct punishable under s. 5(2)  of        the  Act  to be committed by Madan Lal as  also  under  that        section  read  with  s.  116 of the  Code.   They  had  been        convicted by the special judge on both the counts and  their        conviction  had  been upheld by the High  Court.   In  their        appeal  before  this Court one of the points raised  by  the        appellants  was  that  Madan Lal was not  a  public  servant        within the meaning of the Act.  It appears that the  offence        in question had been committed on        (1) A. I. R. 1954 Punj 189.   (2) [1956] S.C.R. 182.        (3) [1956] S.C.R. 682.        299        December 29, 1951, and the argument was that under s. 137(1)        and  (4)  Madan Lal who was a railway servant could  not  be        held  to  be  a  -public servant under  s.  2  of  the  Act.        Chandrasekhara Aiyar, J., who delivered the judgment of  the        Court,  cited s. 137(1) and added that sub-s. (4)  had  been        omitted  by the amendment of 1955.  Then the  learned  judge        referred  to  s.  2. of the Act and concluded  thus:  "  The        result  is that before the amendment railway  servants  were        treated  as public servants only for the purpose of ch.   IX        of  the  Indian  Penal Code but now as  the  result  of  the        amendment  all railway servants have become public  servants        not  only  for the limited purpose but generally  under  the        Prevention  of  Corruption  Act." With respect,  it  may  be        pointed  out,  that this observation seems to  give  to  the        amended   provisions   of  s.  137  of  the   Railways   Act

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      retrospective  effect.  The question of the construction  of        the  relevant  sections does not appear to have  been  fully        argued before this Court and it has not been considered.  It        is nevertheless true that in respect of an offence committed        in 1951 Madan Lal was hold to be a public servant under s. 2        of the Act.        In  the  case of Montorio (1) the main point  raised  before        this  Court  was whether the accused was  a  public  servant        under  s.  21 of the Code and that was  considered  by  this        Court; in dealing with that question this Court construed s.        21  and  held that the appellant was an officer  within  the        meaning  of s. 21(9) and therefore a public  servant  within        the meaning of s. 21.  Incidentally reference has been  made        to  the  earlier decision of this Court in the case  of  Ram        Krishan (2) and it has been observed that the said  decision        " lays down that before the amendment of s. 137 of the Rail-        ways  Act, by Act 17 of 1955, railway servants were  treated        as  public servants only for the purposes of ch. IX  of  the        Indian Penal Code but in any event they were public servants        under the Prevention of Corruption Act." With respect,  this        latter  statement  does not appear to be borne  out  by  the        judgment in the case of Ram Krishan (2).        (1) [1956] S.C.R. 682.       (2) [1956] S.C. R. 182        300        Going back to s. 2 of the Act once more we must hold that in        defining a public servant it enacts the same definitions  as        s. 21 of the Indian Penal Code and under this interpretation        of  the  section,  the  appellants  undoubtedly  are  public        servants.   The  result is the courts below  were  right  in        holding  that the appellants could be properly  charged  and        tried for offences under s. 5(2) read with s. 5(1)(c) and s.        5(1)(d)  of  the Act.  The validity of the charge  under  s.        120B has not been and cannot be challenged.        Mr.  Anand  for  appellant  No. 1  and  Mr.  Chatterjee  for        appellant No. 2 appealed to us to reduce the sentence passed        against their clients.  It was urged in support of this plea        that  though  the charge against them was in  respect  of  a        large amount of Rs. 1,555 evidence had been adduced to prove        misappropriation of Rs. 218 which is a much smaller  amount.        We  do not think that in the circumstances of this case  the        actual  amount  shown  to have been  misappropriated  has  a        decisive  or  even  a material bearing on  the  question  of        sentence.   The  positions  respectively  occupied  by   the        appellants,  the  relations between them and  the  Class  IV        servants, the method adopted by the appellants in committing        the  offence  and  the other  circumstances  have  all  been        considered  by the courts below in passing concurrently  the        respective  orders of sentence against the  appellants.   In        our  opinion there is no justification for interfering  with        the said orders.        The  appeals  accordingly  fail  and  are  dismissed.    The        appellants to surrender to their bail bonds.        Appeals dismissed.        301