Public Servant? What a bad joke? No person in the employment of Government considers him/herself as a 'servant' of the people. Yet we have to use the term as under the present law only 'Public Servants' are punishable for corruption. Different laws define the term differently. The definition of 'public servant' in the IPC is different from the definition given under Section 2(c) of Prevention of Corruption, Act 1988 which defines the following persons as Public Servant:
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
Public employment being a public trust, the improper use of the public position for personal advantage is considered as a serious breach of trust. With the changing times, the role of Executive and expectation of the citizens in governance also underwent tremendous change.
A public servant in a democracy should be a guardian of morals. He is entrusted with higher responsibilities of a public office and they contribute their best for the just and humane society. For effective functioning of a democracy, the role of Executive is very important. Civil servants and public officials are expected to maintain and strengthen the public's trust and confidence by demonstrating the high standards of professional competence, efficiency and effectiveness by upholding the Constitution and rule of law, keeping in mind the advancement of public good at all times.
Ram Lakhan Singh vs State Govt. of U.P. decided by SC on 17 November, 2015.
Dishonesty and corruption are biggest challenges for any developing country. If the public servant indulges in corruption, the citizens who are vigilant in all aspects take note of this seriously and develop a sense of distress towards the Government and its mechanism, on a whole it sends a very alarming message to the society at large and to the common man in particular. In any civilized society, the paramount consideration is the welfare of the society and corruption is the biggest hindrance in that process. If the corrupt public servant is not punished, then it will have a negative impact on the honest public servants who will be discouraged and demoralized. Some upright officers resist corruption but they cannot alone change the system which victimizes them through frequent punitive transfers, threat to their families and fabricating, foisting false cases.
Ram Lakhan Singh vs State Govt. of U.P. decided by SC on 17 November, 2015.
Now let's consider some case law which was delivered on the earlier provisions which had partly incorporated the definition given in the Penal Code. Therefore some of the prepositions given below may not be a good law any more.
(These cases arise out of definition of Public Servant under Indian Penal Code and Criminal Procedure Code.)
Bank employee
An employee of a public sector Bank was held to be not a public servant under the PC Act as it existed in 1995 but that definition has now been amended, as given above.
Pawan Kumar Ruia vs. S.P. CBI (Economic Offences Wing) Calcutta, 1995 Cr LJ 3727 Cal.
Liberal construction should be adopted so as to include the Bank Employees also within the definition of public servant.
It is obvious that the intendment of the statute is to seen and not merely the science of law-Jurisprudence. As it appears to me, when the Acquisition Act envisaged for each new corresponding bank a Board of Directory, whether the first Board of Direction under S.7 or the subsequent Board of Directory under the scheme of S. 9, it had clearly established separate corporations and conferred on them the corporate character. Strength can be drawn to this conclusion from the interchangeability of the words 'body corporate' and 'corporate' as these have to find way, as said earlier, in the Acquisition Act. Thus, the creation of a body corporate under sub-sec (4) of S.3 is the creation of a corporation with corporate character. If that is so, the petitioner would squarely fall within the ambit of the expression 'public servant' since he was in the service or pay of a corporation established by or under a Central Act and not a personified institution a concept alien to the British soil and necessarily to ours carrying the legacy.
Liberal construction has to be put on words 'body corporate' and 'corporation' using them interchangeably in the context of the Acquisition Act, so that the employees of the corresponding new banks can be treated as public servants for the purposes of S. 21, I.P.C bringing them within the meaning of S. 5 of the Corruption Act to be tried by a Special Judge for misconduct committed by them. Thus, the twin question afore-posed is answered in this way that the legal status and character of a nationalised bank is that of a corporation established by or under the Banking Companies (Acquisition and Transfer of Undertaking) Act 1970 and the status, of persons in its service or pay is that of a public servant as the expression is known to S.21 of the I.P.C.
Kundan Lal Sharma vs. State of Punjab, 1985 Cri L J 1411 P&H.
Employees of co-operative societies if covered by Sub-clause (ix) along with holders of elective offices.
Held that an employee of a co-operative bank which is controlled and aided by the Government, is covered within the comprehensive definition of 'public servant' as contained in Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act. (i.e. the 1988 Act prior to Amendment of 2018)
From the above quoted Sub-clause (ix) of Clause (c) of Section 2 of the 1988 Act, it is evident that in the expansive definition of 'public servant', elected office-bearers with President and Secretary of a registered co-operative society which is engaged in trade amongst others in 'banking' and 'receiving or having received any financial aid' from the Central or State Government, are included although such elected office bearers are not servants in employment of the co-operative societies. But employees or servants of a co-operative society which is controlled or aided by the government, are covered by Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act. Merely because such employees of co-operative societies are not covered by Sub-clause (ix) along with holders of elective offices, High Court ought not to have overlooked that the respondent, who is admittedly an employee of a co-operative bank which is controlled and aided by the government, is covered within the comprehensive definition of 'public servant' as contained in Sub-clause (iii) of Clause (c) of Section 2 of the 1988 Act. It is not disputed that the respondent/accused is in service of a co-operative Central Bank which is an 'authority or body' controlled and aided by the Government.
In construing definition of 'public servant' in Clause (c) of Section 2 of the 1988 Act, the court is required to adopt a purposive approach as would give effect to the intention of legislature. In that view Statement of Objects and Reasons contained in the Bill leading to the passing of the Act can be taken of assistance of. It gives the background in which the legislation was enacted. The present Act, with much wider definition of 'public servant', was brought in force to purify public administration. When the legislature has used such comprehensive definition of 'public servant' to achieve the purpose of punishing and curbing growing corruption in Government and semi-Government, departments, it would be appropriate not to limit the contents of definition clause by construction which would be against the spirit of the statute. The definition of 'public servant', therefore, deserves a wide construction.
Government of Andhra Pradesh vs. P. Venku Reddy, AIR 2002 SC 3346: 2002(7) SCC 631: 2002 CrLJ 4333: 2002 SCC(Cr) 1826: 2002(4) Crimes 339(SC): 2002(4) CCR 60(SC): 2002(4) RecentCR 557(2): 2003(1) LLJ 503: 2003(2) SLJ 204: 2003(96) FLR 379.
Chief Minister
Chief Minister of the State is a public servant and is removable from the office by the Governor.
The first part of clause (12)(a) is concerned namely 'in the service of the Government' undoubtedly signifies a relationship of master and servant where the employer employs the employee on the basis of a salary or remuneration. But we are of the opinion that so far as the second limb 'in the pay of the Government' is concerned, that appears to be of a much wider amplitude so as to include within its ambit even public servant who may not be a regular employee receiving salary from his master. In other words, we think that a Minister or a Chief Minister will be clearly covered by the expression 'person in the pay of the Government'.
Three facts, therefore, have been proved beyond doubt:โ
1. That a Minister is appointed or dismissed by the Governor and is, therefore, subordinate to him whatever be the nature and status of his constitutional functions.
2. That a Chief Minister or Minister gets salary for the public work done or the public duty performed by him.
3. That the said salary is paid to the Chief Minister or the Minister from the Government funds.
It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges. The salary given to the Chief Minister is conterminous with his office and is not paid like other constitutional functionaries such as the President and the Speaker. These facts, therefore, point to one and only one conclusion and that is that the Chief Minister is in the pay of the Government and is, therefore, a public servant within the meaning of Section 21(12) of the Penal Code.
Whatever be the practical and actual position, the fact remains that it is the Governor who can accept the resignation of the Ministry or Minister and it is the Governor again who can dismiss or remove the Minister from office. Under Section 3 (60) of the General Clauses Act, 1897, the word 'State Government' has been defined. Clause (c) of Section 3 (60) is applicable to the present case and, therefore, the State Government is to mean the Governor for the purpose of the present case. The result, therefore, is that accused is a public servant who can be said to be removable only by the State Government, meaning thereby the Governor, and I do not find any difficulty in coming to the conclusion that the second requirement of Section 197, Cr. P.C. also is fully satisfied
M. Karunanidhi vs. Union of India, (1979) 3 SCR 254: AIR 1979 SC 898: 1979 CrLJ 773: 1979(3) SCC 431: 1979 CrLR (SC) 219
Employee of Government Company
Accused claimed to be an employee of Government Company โ No proof that the company in question is in fact a Government Company โ Employee is not a public servant โ Prosecution is not maintainable.
As per section 2 of the Act (as existed earlier) for the purposes of the Act, public servant means a public servant as defined under section 21 of the Indian Penal Code. Clauses 2 to 12 of that section refer to the description of various persons who come within the purview of the word 'public servant' as defined in the said section. It is undisputed that clauses 1 to 11 have no application to the facts of this case and what we are concerned is only Cl. 12 which reads as hereunder:
"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."
What was tried to be made out on behalf of the prosecution is that Indian Tourism Development Corporation is a Government Company as defined under Sec. 617 of the Companies Act and therefore, any person in the service of such a Government Company would come under the said Clause. If the prosecution establishes that the Indian Tourism Development Corpn. is a Government Company within the meaning of the said section, there could be absolutely no doubt that a person working in a subsidiary unit of such a Corporation would necessarily be a public servant within the meaning Sec. 21 of the Indian Penal Code. That what remains to be seen is whether prosecution has established that the Indian Tourism Development Corporation is a Government Company. Section 617 of the Companies Act States that for purposes of the said Act, Government Company means any company in which not less than fifty-one per cent of the paid up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more state Governments and it includes also a company which is a subsidiary of a Government Company. Therefore, the prosecution ought to have placed material on record to hold that not less than fifty-one per cent of the paid up share capital of I.T.D.C. is held by the Central Government or the State Governments. On this aspect of the matter, there is absolutely no evidence and the only material placed by the prosecution in this regard is by examination of the then General Manager of Hotel Ashok asP.W. 16 who has stated that Indian Tourism Development Corporation is a Corpn. created under the Companies Act and it was established in 1965. The booklet containing the Conduct, Discipline and Appeal Rules has been marked as Ex. C-1 through this witness. It is rather surprising that on this elementary aspect of the prosecution case, no evidence has been placed to hold that it is a Government Company.
Therefore, it has to be held that the prosecution has failed to establish that I.T.D.C. is a Government Company and therefore, it has failed to further establish that the accused appellant fits into the category described in Cl. (b) of twelfth clause of Sec. 21 of the Indian Penal Code. If that be so, it has to be further held that prosecution has failed to establish that accused is a public servant within the meaning of Sec. 21 of the Act.
M. Muniswamy vs. State of Karnataka, 1993 (3) Crimes 809 Kar
Prosecution of employees of public sector undertaking โ Sanction for prosecution as required under section 197 of Criminal Procedure Code, 1973 is not required.
It is to be noted that though through the contrivance or mechanism of corporate structure, some of the public undertakings are performing the functions which are intended to be performed by the State, ex facie, such instrumentality or agency being a juridical person has are independent status and the action taken by them, however, important the same may be in the interest of the State cannot be held to be an action taken by or on behalf of the government as such within the meaning of Section 197, Cr.P.C.
For the purpose of enforcing the fundamental rights, the public undertakings which, on account of deep and pervasive control, can be held to be a State within the meaning of Article 12 has been treated at par with the government departments but in all its facets, public undertaking has not been equated with the department run directly by the government.
It will be appropriate to notice that whenever there wasneed to include other functionaries within the definition of public servant, they have been declared to be 'public servants' under several special and local acts. If the legislature had intended to include officers of instrumentality or agency for bringing such officers under the protective umbrella of Section 197, Cr.P.C., it would have done so expressly.
Therefore, it will not be just and proper to bring such persons within the ambit of Section 197 (IPC) by liberally construing the provisions of Section 197. Such exercise of liberal construction will not be confined to the permissible limit of interpretation of a statute by a Court of law but will amount to legislation by Court.
Mohd. Hadi Raja vs. State of Bihar, 1998 CrLJ 2826: AIR 1998 SC 1945: 1998 SCC (Cr) 1265: 1998 CAR 257: 1998(2) BLJR 1068: 1998(2) Rec CrR 582
Employee of Local Authority
Appointing authority โ Employee removable from the office by Local Authority and not the Government โ Employee even if public servant, sanction under section 197 of Criminal Procedure Code, 1973 is not required.
Section 197, Cr.P.C., clearly intends to draw a line between public servants and to provide that only in the case of the higher ranks should the sanction of the Government to their prosecution be necessary. While a public servant holding an office of the kind mentioned in the Section is as such public servant appointed to another office, his official acts in connection with the latter office will also relate to the former office. The words "removable from office" occurring in Section 197 signify removal from the office he is holding. The authority mentioned in the section is the authority under which the officer is serving and competent to terminate his services. If the accused is under the service and pay of the local authority, the appointment to an office for exercising functions under a particular statute will not alter his status as an employee of the local authority.
The appellant is holding an office from which he is removable by the Local Authority and not by the Government. The cancellation of the appointment as Public Analyst would not amount to removal from office. Section 197, Cr.P.C. in this context contemplates the removal of the appellant from the office of the Laboratory Officer and not his transfer or removal from the office of the Public analyst. The removal of the appellant from the office of Public analyst would not affect his office as a Laboratory Officer under the Local Authority and would not amount to removal from office. The appellant is not therefore a public servant removable only by the State Government.
Lakshmansingh Himatsingh Vaghela (Dr.) vs. Naresh Kumar Chandrashanker Jha, 1990 CrLJ 1921: AIR 1990 SC 1976: 1990 SCC (Cr) 558: 1990 CAR 332: 1990 CrLR (SC) 546
Employee on deputation
A Civil servant working with Cooperative Society on deputation โ Cooperative Society is not a Corporation โ Sanction for his prosecution is not required.
During his period of deputation, he was not an officer in the service or pay of the Government, nor was he in the service of a local authority, a corporation established by or under an Act or a Government company.
In our opinion, the expression 'corporation' must, in the context, mean a corporation created by the Legislature and not a body or society brought into existence by an act of a group of individuals. A co-operative society is, therefore, not a corporation established by or under an Act of the Central or State Legislature.
S. S. Dhanoa vs. Municipal Corporation Delhi, 1981 CrLJ 871: AIR 1981 SC 1395: 1981 SCC (Cr) 733: 1981 CAR 206: 1981 CrLR (SC) 456
Member of Legislative Assembly
A Member of Legislative Assembly would fall within the definition of 'public servant', as given in section 2(c) of the Act but he is not the type of 'public servant' for whose prosecution under the Act, previous sanction may be required.
The omission to mention an M.L.A. specifically in any of the clauses of the definition may even indicate in the background of Antulay's case that it was not contemplated to make him such a public servant to prosecute whom previous sanction is necessary. If the intention of the Parliament would have been, to annul the decision in Antulay's case, which had held that for prosecution of an M.L.A. sanction is not necessary, nothing would have been easier to do so than to specifically mention an M.L.A. in the definition clause; more so, when many other office holders have been so named.
The Governor is not the competent authority to remove an M.L.A., and indeed, there is no authority competent to do so. So, there is no authority who can grant previous sanction as contemplated by section 19 of the Act. Now, it is apparent that if there be none to give sanction in case of an M.L.A., it cannot be urged that sanction is none-the-less necessary, merely because an M.L.A. is a public servant.
An M.L.A. would come within the fold of the definition of "public servant", as given in section 2(c) of the Act, he is not the type of "public servant" for whose prosecution under the Act, previous sanction is required by section 19 is necessary.
Habibulla Khan vs. State of Orissa, 1993 (3) Crimes 198 Ori (DB); See also Habibulla Khan vs. State of Orissa, AIR 1995 SC 1124: 1995 (2) SCC 437.
No previous sanction is required under Section 19 of the PC Act, 1988 for prosecuting a Member of Legislative Assembly for the offences under Section 13(2) read with Section 13(1)(d) of the Act.
A member of Legislative Assembly of State like a Member of Parliament would be a public servant for the purpose of the PC Act, 1988 and would be entitled to protection under Section 19 of the said Act as has been held in the aforesaid case of P.V. Narsimha Rao (supra). But the fact that he is a public servant by itself would not attract Section 19 of the PC Act, 1988 unless the offences for which such Member of Legislative Assembly is sought to be prosecuted are alleged to have been committed in his capacity as such Member of Legislative Assembly. This is because under the statutory scheme in sub-section (1) of Section 19 as clarified by sub-section (2) of Section 19 of the PC Act, 1988, there is a clear interrelation between the office held by public servant and the abuse or misuse of the said office for the commission of offence and only when the office of the member of Legislative Assembly is alleged to have been abused or misused for commission of offence under the PC Act, 1988 that sanction of the competent authority would be necessary under the said Section 19 of the PC Act, 1988. Thus, the petitioner being a Member of Legislative Assembly continues to be a public servant for the purpose of the PC Act, 1988 and is therefore entitled to protection under Section 19 only against prosecution for offences under the said Act alleged to be committed by him which relate to abuse or misuse of his office as MLA and not to abuse or misuse of his office as a Minister which he had ceased to hold since1990. Since the case of the CBI in the charge-sheet is that the petitioner committed the offences under Section 13(2) read with Section 13(1)(d) of the PC Act, 1988 when he held the office of Minister, Veterinary, Assam, from 1986 to 1990 and that the said offences were not committed by the petitioner in his present capacity as an MLA, no previous sanction was required under Section 19 of the PC Act, 1988 for prosecuting the petitioner for the said offences under Section 13(2) read with Section 13(1)(d) of the said Act.
Dilip Kumar Saikia vs. State, 1999 Cri LJ 3543 Gau.
A member of legislative assembly is not a public servant.
The Legislative Assembly enacted the Act enabling to pay to its members salary and allowances. And the members vote the grant and pay themselves. In this background even if there is an officer to disburse this payment or that pay bill has to be drawnup are not such factors being decisive of the matter. That is merely a mode of payment, but theM.L.As. by a vote retained the fund earmarked for purposes of disbursal for pay and allowances payable to them under the relevant statute. Therefore, even though M.L.A. receives pay and allowances, he is not in the pay of the State Government because Legislature of a State cannot be comprehended in the expression 'State Government'.
The expression 'Government' in Section 21(12)(a) clearly denotes the executive and not the Legislature. M.L.As. is certainly not in the pay of the executive. Therefore, the conclusion is inescapable that even though M.L.A. receives pay and allowances, he cannot be said to be in the pay of the Government i.e. the executive. This conclusion would govern also the third part of Clause (12)(a) i.e. 'remunerated by fees for performance of any public duty by the Government'. In others words, M.L.A. is not remunerated by fees paid by the Government i.e. the executive.
If M.L.A. is not in the pay of the Government in the sense of Executive government or is not remunerated by fees for performance of any public duty by the Executive Government, certainly he would not be comprehended in the expression 'public servant' within the meaning of the expression in Clause (12)(a). He is thus not a public servant within the meaning of the expression in Clause (12)(a). This conclusion reinforces the earlier conclusion reached by us after examining the historical evolution of Clause (12) (a).
Participation in debate on a motion breach of privilege or for taking action for contempt of the House and voting thereon is a constitutional function discharged by the members and therefore, it cannot be said that such adjudicatory function if it can be so styled, constitutes adjudicatory function undertaken by M.L.A. as empowered by law. Viewed from this angle it is not necessary to examine the contention that adjudication and resultant judgement presupposes a lis between persons other than adjudicator, and M.L.A. has no lis before him as a body of persons when passing upon the motion for contempt or breach of privilege. Accordingly the submission that the accused would be a public servant within the meaning of the expression in Clause (3) of Section 21, IPC must be rejected.
R.S. Nayak vs. A.R. Antulay, 1984 CrLJ 613: AIR 1984 SC 684: 1984 CrLR (SC) 163: 1984 SCC (Cr) 172: 1984(1) Crimes 568: 1984 CAR 141
Member of Parliament
Public servant โ Meaning of โ Member of Parliament if a pubic servant under the Act โ Criterion of removability from office is not essential for a person to constitute public servant โ Held, per majority that Member of Parliament is also a Public Servant.
Per Bharucha, J. (For himself and S. Rajendra Babu, J.):
A public servant is "any person who holds an office by virtue of which he is authorised or required to perform any public duty." Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty. Public duty is defined by S. 2(b) of the said Act to mean "a duty in the discharge of which the State, the public or that community at large has an interest." In a democratic form of Government it is the member of Parliament or a State legislature who represents the people of his constituency in the highest law making bodies at the Centre and the State respectively. Not only is he the representative of the people in the process of making the laws that will regulate their society, he is their representative in deciding how the funds of the Centre and the States shall be spent and in exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the State, the Public and the community at large would have greater interest.
We think that the view of the Orissa High Court that a member of a Legislative Assembly is a public servant is correct. Judged by the test enunciated by Lord Atkin in McMillan v. Guest 1942 AC 561 and adopted by Sikri, J. in Kanta Kauthria case AIR 1970 SC 1495, the position of a member of parliament, or of a Legislative Assembly, is subsisting, permanent and substantive; it has an existence independent of the person who fills it and it is filled in succession by successive holders. The seat of each constituency is permanent and substantive. It is filled, ordinarily for the duration of the legislative term, by the successful candidate in the election for the constituency. When the legislative term is over, the seat is filled by the successful candidate at the next election. There is, therefore, no doubt in our minds that a member of Parliament, or of a Legislative Assembly, holds an office and that he is required and authorised thereby to carry out a public duty. In a word, a member of Parliament, or of a Legislative Assembly, is a public servant for the purposes of the said Act.
Per Aggarwal, J. (for himself and A.S. Anand, J.):
A Member of Parliament holds an office and by virtue of such office he is required or authorised to perform duties and such duties are in the nature of public duties. A Member of Parliament would, therefore, fall within the ambit of sub-clause (viii) of clause (c) of Section 2 of the 1988 Act. Having considered the submissions of the learned counsel on the meaning of the expression 'public servant' in contained Section 2(c) of the 1988 Act, we are of the view that a Member of Parliament is a public servant for the purpose of the 1988 Act.
Per G.N.Ray, J.(partly concurring with Bharucha J.)
The context in which the expression "in respect of" has been used in sub article (2) of Article 105 and the purpose for which the freedom of speech and freedom to vote have been guaranteed in sub article (2) of Article 105 do not permit any restriction or curtailment of such right expressly given under sub article (1) and sub article (2) of Article 105 of the Constitution. It must, however be made clear that the protection under sub-article (2) of Article 105 of the Constitution must relate to the vote actually given and speech actually made in Parliament by a Member of Parliament. In any view, the protection against proceedings in court as envisaged under Sub-article (2) of Article 105 must necessarily be interpreted broadly and not in a restricted manner. Therefore, an action impugned in a court proceeding which has a nexus with the vote cast or speech made in Parliament must get the protection under sub- article (2) of Article 105. Sub-Article (3) of Article 105 provides for other powers, privileges and immunities to be enjoyed by a Member of Parliament. The farmers of the Constitution did not catalogue such powers, privileges and immunities but provided in sub article (3) of Article 105 that until such privileges are defined by the Parliament, a member of Parliament will enjoy such powers, privileges and immunities which had been recognised to be existing for a member of House of Commons at the commencement of the Constitution of India.
P.V.Narasimha Rao vs. State (CBI/SPE), 1998(4) SCC 626: 1998 CrLJ 2930: AIR 1998 SC 2120; See also the High Court decision reported at 1997(68) DLT 553: 1997 JCC 558: 1997(5) AD(Delhi) 265:1997 RLR 567: 1997(3) CCrC 289(HC): 1997(4) CCR 290.
The interesting sum up of above case is that a Member of Parliament is a public servant but he is immune from prosecution even if his vote is influenced by bribe. Astonishing?
The mere fact that the position which an M.P. occupies in the Parliament has been referred to as 'seat' instead of 'office' is not a sure indicium of the fact that an M.P. is not a 'public servant' and it would not be proper to place reliance thereupon for the conclusion of the fact that an M.P. is not a 'public servant'.
It is true that in the Constitution of India a Member of Parliament has been referred to as one who holds a 'seat' in the House. However, a Member of Parliament has been adverted to as a person having an 'office' in the Salary, Allowances and Pension of Members of Parliament
Chairman, Advisory Committee
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.
Dattatraya Narayan Patil vs. State of Maharashtra, 1975 CrLJ 1490: AIR 1975 SC 1685: 1975 CAR 218: 1975 CrLR (SC) 355: 1975 SCC (Cr) 733
Public Office
A perusal of the Statement of Objects and Reasons behind the enactment of the Prevention of Corruption Act, 1988 reveals that the legislators wanted to amend the existing anti-corruption laws with a view to making them more effective by extending the scope and ambit of the definition of 'public servant' and to bring within its sweep each and every person who held an office by virtue of which he was required to perform any public duty.
The underlying idea was to eradicate the corruption. The object of the Act is a very construed as to narrow down its scope. It is well-known that when the words of a statute are wide and clear then a restrictive meaning cannot be given to them. The purpose of the Act is clear and unambiguous i.e. the eradication of the corruption. Hence a construction which would enhance the object of the Act and curb the mischief has to be put. The object of the Act is to serve as a beacon. If there are certain crevices and dark areas in the enactment they are to be illuminated with the help of the said object, nay it is the duty of the Court to put such construction which would illuminate the said areas. Thus this Court is of the view that having regard to the moral and commendable object of the Act a purposive interpretation should be put on the relevant provisions of law so as to fulfil the intention of the Legislature and eschew an interpretation which defeats the object of the Act. If so construed an M.P. would be covered by the definition as given in Section 2(c)(viii) of the Act.
The legislators were aware of political corruption and wanted to eradicate the same, this could have been done only by including theM.Ps. within the ambit of a 'public servant'. This they did by enlarging the scope of Section 2(c) of the Act.
L.K. Advani vs. Central Bureau of Investigation, 1997 CrLJ 2559 (Del): 1997(66) DLT 618: 1997(41) DRJ 274: 1997(3) AD(Delhi) 53: 1997 JCC 294: 1997(2) CCR 35: 1997(4) Crimes 1: 1997 RLR 292: 1997(4) RecentCR 26: 1997(2) CCrC 41(HC
Minister
Prosecution of accused persons for criminal misconducts committed by them during their tenure as Ministers in the State Government โ No sanction for prosecution is required.
The appellants are being prosecuted for the criminal misconduct which they are alleged to have committed during the period they were holding high political office within the meaning of Section 5(1) of the Special Courts Act read with Rule 2(1)(f)(i) of the Rules made under that Act. The Special Court Act incorporates the definition of "criminal misconduct" given in Section 13(1) (e) of the Act. The procedure for prosecution to be followed, however, is as laid down under the special Courts Act. All that the Special Courts Act requires for launching a criminal prosecution against a person holding high political office is that the State Government should make a declaration under Section 5(1) of that Act that there is prima facie evidence of the commission of an offence by a person who held high public or political office in the State. Hence the provisions of Sections 19 of the Act do not come into the picture in the present case. That being so, no sanction of the Governor or any other authority is necessary for launching the criminal prosecutions in question.
Assuming, however, that the procedure to be followed before launching criminal prosecution is that under the Act, the admitted facts are that the appellants are being prosecuted for the misconduct alleged to have been committed by them during their tenure as the Members of the Council of Ministers and not in their capacity as the MLAs. Hence the provisions of Section 19 of the Act are inapplicable to the facts of the present case
Habibulla Khan vs. State of Orissa, AIR 1995 SC 1124: 1995 (2) SCC 437: 1995(1) Crimes 567: 1995 CrLJ 2071: 1995 (1) CCR 117 (SC): 1995 (1) UJ 536: 1995 SCC (Cri) 382: 1995 (2) LLN 245
Municipal Councillor
Chairman of Co-operative Society registered under Maharashtra Co-operative Societies Act.
Even though the Legislature incorporated the provisions of Section 21 of the Indian Penal Code into the Co-operative Societies Act, in order to define a 'public servant' but those 'public servants' cannot be prosecuted for having committed the offence under the Indian Penal Code.
It is undoubtedly true that the Co-operative Societies Act has been enacted by the State Legislature and their powers to make such legislation is derived from Entry 32 of List II of the Seventh Schedule to the Constitution. The legislature no doubt in Section 161 has referred to the provisions of Section 21 of the Indian Penal Code but such reference would not make the officers concerned 'public servants' within the ambit of Section 21. The State Legislature had the powers to amend Section 21 of the Indian Penal Code, the same being referable to a legislation under Entry 1 of List III of the Seventh Schedule, subject to Article 254(2) of the Constitution as, otherwise, inclusion of the persons who are 'public servants' under Section 161 of the Co-operative Societies Act would be repugnant to the definition of 'public servant' under Section 21 of the Indian Penal Code. That not having been done, it is difficult to accept the contention of the learned counsel, appearing for the State that by virtue of deeming definition in Section 161 of the Co-operative Societies Act by reference to Section 21 of the Indian Penal Code, the persons concerned could be prosecuted for the offences under the Indian Penal Code. The Indian Penal Code and the Maharashtra Co-operative Societies Act are not Statutes in pari materia. The Co-operative Societies Act is a completely self-contained Statute with its own provisions and has created specific offences quite different from the offences in the Indian Penal Code. Both Statutes have different objects and created offences with separate ingredients. They cannot thus be taken to be Statutes in pari materia, so as to form one system. This being the position, even though the Legislatures had incorporated the provisions of Section 21 of the Indian Penal Code into the Co-operative Societies Act, in order to define a 'public servant' but those 'public servants' cannot be prosecuted for having committed the offence under the Indian Penal Code. It is a well known principle of construction that in interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the Section by which it is created. A legal fiction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act. When the State Legislatures make the Registrar, a person exercising the power of the Registrar, a person authorised to audit the accounts of society under Section 81 or a person to hold an inquiry under Section 83 or to make an inspection under Section 84 and a person appointed as an Administrator under Section 78 or as a Liquidator under Section 103 shall be deemed to be 'public servant' within the meaning of Section 21 of the Indian Penal Code. Obviously, they would not otherwise come within the ambit of Section 21. The legislative intent is clear that a specific category of officers while exercising powers under specific sections have by legal fiction become 'public servant' and it is only for the purposes of the Co-operative Societies Act. That by itself does not make those persons 'public servants' under the Indian Penal Code, so as to be prosecuted for having committed the offence under the Penal Code. When a person is "deemed to be" something, the only meaning possible is that whereas he is not in reality that something, the Act of legislature requires him to be treated as if obviously for the purposes of the said Act and not otherwise.
State of Maharashtra vs. Laljit Rajshi Shah, AIR 2000 SC 937: 2000(2) SCC 699: 2000(2) Scale 126:2000(2) JT 546: 2000(2) Crimes 1(SC): 2000 SCC(Cr) 533: 2000 CrLJ 1494; See also State ofT.N. vs. T. Thulasingam, AIR 1995 SC 1314: 1994 Supp (2) SCC 405: 1995 Cr LJ 2080: 1994 (3) CCR 566 (SC): 1994 SCC (Cri) 1504; Ramesh Balkrishna Kulkarni v. State of Maharashtra, 1985 (3) SCC 606: 1985 Supp (2) SCR 345: AIR 1985 SC 1655: 1986 Cri LJ 14: 1985 CAR 259: 1985 Cr LR (SC) 407: 1985 SCC (Cr) 407.
Chairman of Managing Committee of Municipality exercising powers which imposed corresponding duty to expend property โ The Chairman is a public servant.
The power to make payment of fixed recurring charges such as pay bills imposes a duty on the Chairman to do so when necessary as the power is vested in the Chairman for the benefit of the persons entitled to receive those recurring charges.
The mere fact that this power of the Chairman was to be exercised only with respect to fixed recurring charges and in anticipation of the Committee passing the bills for those charges therefore does not affect the question in any way. Clause ten of Section 21 of the Indian Penal Code merely requires that the person should have the duty to expend property for certain purposes. It is not restricted to such cases only where there is no limitation on the exercise of that power of expending property. The Chairman has the duty to order payment and to spend the money of the Municipality in certain circumstances. We, therefore, hold that the appellant was a 'public servant' when the alleged offence was committed.
Maharudrappa Danappa Kesarappanavar v. State of Mysore, AIR 1961 SC 785: 1961(1) CrLJ 857: 1962(1) SCR 129: 1961 All WR (HC) 348
A Municipal councillor does not owe his appointment to any government authority and therefore is not a public servant under section 21 of Penal Code, 1860.
The concept of a 'public servant' is quite different from that of a Municipal Councillor. A 'public servant' is an authority who must be appointed by Government or a semigovernment body and should be in the pay or salary of the same. Secondly, a 'public servant' is to discharge his duties in accordance with the rules and regulations made by the Government. On the other hand, a Municipal Councillor does not owe his appointment to any government authority. Such a person is elected by the people and functions undeterred by the commands or edicts of a governmental authority.
The appellant, not being a public servant, could not be prosecuted under the provisions of the Act whether or not sanction to prosecute him is obtained which is wholly irrelevant to the issue.
Ramesh Balkrishna Kulkarni v. State of Maharashtra, 1986 CrLJ 14: AIR 1985 SC 1655: 1985 CrLR (SC) 407: 1985 (Cr) 407: 1985(2) Crimes 378: 1986 Pat LJR 4
Railway servant
Khalasis in the Railway Carriage Section, 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.
Thus they were in actual possession of the situation of a public servant, and in view of Explanation II to Section 21, Penal Code, were held to be a 'public servant' notwithstanding the defect in his right to hold that situation.
Bajrang Lal vs. State of Rajasthan, 1976 CrLJ 727: AIR 1976 SC 1008: 1976 (3) SCR 497: 1976 CAR 119: 1976 SCC (Cr) 272 See also I.P.R. Chowdhary vs. State of Uttar Pradesh, AIR 1959 SC 1310: 1959 CrLJ 1497: 1960 (1) SCR 290: 1960 All WR (HC) 1: 1960 MLJ (Cri) 78
Sarpanch
Sarpanch who is removable from office by the State Government is a public servant and his prosecution without sanction is illegal.
The Gram Panchayat has power to remove encroachments under Sections 24 & 26 of the Rajasthan Panchayat Act. The averments of the complainant clearly make out a case under Section 7 of the Act of 1988. It is clear from the provisions of Section 17(4) of the Rajasthan Panchayat Act that a Sarpanch is removable by the State Government only. Section 19 of the Act of 1988 provides that no Court shall take cognizance of an offence punishable under Section 7 alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office. Admittedly, no sanction has been granted by the State Government for taking cognizance of the said offence. Accordingly, the petition moved under Section 482, Cr. P.C. is allowed.
Bhanwar Lal Mali vs. Sohan Raj, 1994 (3) Crimes 791 Raj; See also AIR 1956 MB 57
Statutory Corporation
Life Insurance Corporation is a statutory corporation. Its employees fall within the definition of public servants . Employees of erstwhile private company taken over by the Life Insurance Corporation are also public servants.
State through C.B.I. vs. D.P. Dogra, 1985 CrLJ 1905: AIR 1986 SC 312: 1985 CAR 325: 1985 CrLR (SC) 490: 1985 SCC (Cr) 553.
Teacher
A teacher in the service of Government and paid the salary by the Government is performance of public duty by teaching the students. Such teacher is a public servant.
State of Ajmer (now Rajasthan) vs. Shivji Lal, 1959 AIR SC 847: 1959 CrLJ 1127: 1959 Supp (2) SCR 739: 1959 MLJ (Cri) 589: 1959 All WR (HC) 376.
University examiner
Examiner appointed by University for the examinations on contract basis. Such person does not fall within the purview of ninth clause of section 21 of Penal Code, 1860 as existed prior to amendment of 1964 and therefore is not a public servant.
State of Gujarat vs. Manshankar Prabhashankar Dwivedi, 1972 CrLJ 1247: AIR 1973 SC 330: 1972 (2) SCC 392: 1973 (1) SCR 313
A lecturer of a private college would not come within the definition of public servant as contained in Section 21 of the Indian Penal Code. On a plain reading of the sub-section (4) the following categories of persons shall be deemed to be a public servant for the purposes of all criminal laws. These categories are:
1. all salaried officers and employees of the university;
2. those appointed by the university for specified purpose or for specified work;
3. persons who receive any remuneration such as allowances, fee or other payments from the fund of the university.
In the case in hand, the appellant was appointed by the University for a specified work, namely to evaluate answer scripts and therefore he was a public servant at the relevant time under sub-section (4) of Section 73 of the Act.
Dilawar Balu Kurane vs. State of Maharashtra, AIR 2002 SC 564: 2002(1) SCR 75: 2002(2) SCC 135: 2002(1) SCJ 203: 2002(2) SRJ 475: 2002 CrLJ 980: 2002 SCC(Cr) 310: 2002(1) Crimes 243(SC).
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