MEANING OF PUBLIC SERVANT- SECTION 21 OF IPC
INTRODUCTION
It is frequently seen in a country like India that Public Servants take part in the elevation of society, and direct an ample amount of respect and potentiality. They are considered the connection between the Government and the people in general. Their title role in the public is all the more important one as they are the ones accountable for the execution of government plans and propound the issues looked towards by the public to the appropriate authorities which are proficient to address them. This amazement of being behind a public servant prompts lakhs of applicants to learn and get ready for examinations that will build them into a public servant has universal implications which may or may not be precise.
In this article, you will learn the concept of Public Servant under Section 21 of the Indian Penal Code, 1860, along with relevant cases.
SECTION 21: “Public Servant” – The words “public servant” denotes a person falling under any of the descriptions hereinafter following, namely: –
First- replaced by the A.O. 1950.
Second- Every Commissioned Officer in the Military, Naval, or Air Force of India;
Third- Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
Fourth- Every officer of a Court of Justice including a liquidator, receiver, or commissioner whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer an oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;
Fifth- Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;
Sixth- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any court of Justice, or by any other competent public authority;
Seventh- Every person who holds any office by which he is empowered to place or keep any person in confinement;
Eighth- Every officer of the Government whose duty it is, as such officer, to prevent offenses to give information about offenses, to bring offenders to justice, or to protect the public health, safety, or convenience.
Ninth- Every officer, whose duty it is as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment, or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government.
Tenth- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment, or to levy any rate or tax for any secular common purpose of any village, town, or district, or to make, authenticate or keep any document for ascertaining of the rights of the people of any village, town or district.
Eleventh- Every person who holds any office by which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election.
Twelfth- Every person-
- In the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
- In the service or pay of the local authority or 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 (1 of 1956).
Illustration
A municipal commissioner is a public servant.
Explanation 1– Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.
Explanation 2– wherever the words “public servant” occur they shall be understood by every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.
Explanation 3– the word “election” denotes an election to select members of any legislative, municipal, or other public authority of whatever character, the method of selection to which is by, or under, any law prescribed as a by-election.[1]
This section does not define ‘public servant’, but only enumerates the various functionaries who are designated as public servants. The general characteristic of a public servant is that he performs certain public functions. All government servants are not public servants. The test to determine whether a person is a public servant 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. There are some offenses that by their nature are common to both men of the public as well as by men of public servants. They can be committed by public servants as well as by men of the public and they are, therefore, left to the general provisions of the code. But some offenses can only be committed by public servants and not by the public generally. The public servants are dealt with more severely than other persons for they enjoy many privileges peculiar to themselves.
An accused person must be a public servant on the date of commission of the offense. Retirement, resignation, dismissal, or removal of a public servant cannot wipe out the offense committed while in service.
Chairman of the Central Board of Film Censors, branch manager of a nationalized general insurance company, a member of the auxiliary Airforce, and khalasis in the railway carriage section who are allowed to deal with the preparation and issuance of Railway passes in the office of the Works Manager and the Chief Minister are public servant within this section.[2]
Commissioner– The word ‘commissioner’ under this section does not only mean a person designated as ‘commissioner’ but includes a Municipal Councilor or Member as well.
In Ramesh Balkrishna Kulkarni V. State of Maharashtra, it was held that a Municipal councilor who is not assisting any public servant is not a ‘public servant’ within the meaning of section 21 of the I.P.C. While determining this question the Court held that there are two requirements for a public servant. One, a “public servant” is an authority who must be appointed by the Government or a semi-governmental body and should be in the pay or salary of the same. Two, a “public servant” is to discharge his duties to the rules and regulations made by the Government. Since a Municipal Councilor lacks both these elements, therefore, he is not a “public servant.”[3]
Established– For sub-clause (b) of clause 12 the word ‘establish’ means ‘to create. The word ‘established’ does not mean ‘registered’ or ‘incorporated.’
Explanation 2– This explanation provides that a person who discharges the duties of the office which brings him within the definition of a public servant, is a public servant whatever legal defect there may be in his right to hold the office. But a person who is in actual possession of the situation of a public servant is not a public servant unless he has a right to hold that situation, although in determining that right the legal defect if any, has to be ignored. A public servant within the meaning of section 21 of the Code.
The distinction between a ‘Public Servant’ and a ‘Government Servant’
The term ‘public servant’ and ‘Government Servant’ and ‘government servant’ are often confused with each other as they appear to be similar, but there is a difference between the two, which may be explained thus: –
- All Public Servants are not necessarily Government Servants.
- A public servant may not be on the payroll of the Government and may be acting honorarily without drawing any salary or remuneration for his services. On the other hand, Government servant always remains on the payroll of the Government.
- The term public servant in a wider sense may include Government servant. In other words, ‘public servant’ is the genus and the Government servant is a species of the soil genus.
- The term ‘public servant’ has been defined in Section 21, IPC whereas ‘Servant of Government’ is defined under Section 14 of the Indian penal code.[4]
Cases- Any person who was not a public servant appointed as a chairman of the District Advisory Committee may not be a public servant because the office of the chairman of the committee is not such that would make him a public servant. But the position would be different when he, under the instructions issued by the Government in the exercise of its executive power which is co-extensive with the legislative power of the state, is appointed the chairman of the committee. Therefore, where a Minister is asked by a Government notification to preside over the meeting of the District Advisory Committee constituted under such notification, he was discharging his duty as a public servant. Here minister is a public servant. Similarly, Chief Minister is a person performing public duties and is a public servant.
A Teacher in a railway school who was being paid by the Railway department of the Indian Government is a public servant as he is entrusted with a public duty to teach boys. But a teacher who acts as an examiner for a university is not a public servant under clause (9) of this section and as such he cannot be held guilty under section 161 of the Indian Penal Code.
In S.S. Dhanoa V. Delhi Municipality, it was held that a member of the Indian Administrative Service working on deputation with a cooperative society (Super Bazar) registered under the Co-operative societies Act is not a public servant for Section 197 of the CrPC because, during this period he was not 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. It was also held that the word ‘corporation’ occurring in clause 12 (b) of this section does not include a Co-operative Society.[5]
In R.S. Nayak V. A.R. Antulay, it was held that looking at the history of section 21, it is clear that till 1964 M.L.A. could not be understood in its expression ‘public servant’. The Santhanam Committee did not recommend its inclusion in the definition of a public servant. The amendment of the year 1964 also did not bring any change in the position. So M.L.A. is not a public servant.[6]
It was held in Ram Avtar V. State of Bihar, that any surveyor while performing his legitimate function under any of the Revenue or Civil Court is a public servant. In this case, the appellant was entrusted with survey work for the consolidation process, therefore, he is a public servant, and for his misconduct, a case under section 5(2) of the prevention of Corruption Act would be maintainable.[7]
It was held in A.R. Puri V. State, that an Insurance Surveyor holding a license issued by the Controller of insurance appointed by an insurance company to survey and assess the loss of the insurance claimant is not on the staff of the insurance company. He does not perform any duty assigned by the Central or State Government. He receives his remuneration in the form of his professional charges on a contract basis from the insurance company depending on the nature of the claim and the work involved. On these facts, it was held that his position was that of a contractor and a mere contractor will not be a public servant although his contract may be with the Government and he is paid on a commission basis. The Insurance Surveyor is not an assessor within section 21(5) as the word ‘assessor’ in section 21(5) goes along with the juror or is connected with the administration of justice. The Surveyor also does not come within section 21(12)(a) as he is not in the pay or service of the Government or remunerated fees or commission for the performance of a public duty by the Government. Nor does he come within section 21(12)(b) as he is not in the service of or on the payroll of a local authority or corporation established by law. Since he is not a public servant, he cannot be proceeded against for offenses under section 161 Penal Code and under section 5 (1) (d) read with section 5(2) of the Prevention of Corruption Act.[8]
Section 46A of the Banking Regulation Act, 1949 lays down that a chairman, director, manager, and other employees of a banking company “shall be deemed to be a public servant for chapter IX of the Penal Code.” Section 14 of the Acquisition and Transfer of Undertakings Act, 1970 prescribes that every custodian of a corresponding new bank, viz., a nationalized bank, shall be deemed to be a public servant for Chapter IX of the Penal Code. So also Act No. 40 of 1980 in section 14 repeats that they shall be deemed to be public servants only for the above purposes. It was held by the Bombay High Court in N. Vaghul V. State of Maharashtra, that since the banking statutes show a limitation, it will not be permissible to overcome these limits by recourse to the general words used in clause 12(b) of section 21 of I.P.C. If the legislature wanted certain specific bank employees to be considered “Public servants” for a limited purpose, the contrary cannot be held by taking recourse to the wide sweep of section 21 of the Indian Penal Code. Thus, bank employees are not public servants under section 21, I.P.C.
In-State of Punjab V. Keshari Chand, it was held that the President and the secretary of a cooperative society are not “public servants” within the meaning of clause 12(b) of section 21, I.P.C., and to them the provisions of section 409, I.P.C. is not attracted because the co-operative society is not a corporation established by a state Act in whose service or pay, they supposedly are or are assumed to be.
It was held in N.K. Sharma v. Abhimanyu, that a Government officer working on deputation as Managing Director of co-operative society is not a public servant within the meaning of Section 21 of the Indian Penal Code.
In State of Maharashtra V. L.W. Kanchand, it was held that an employee of a nationalized bank is a public servant.
It was held in National Small Industries Corporation Ltd. V. State (NCT of Delhi) and others, that a Government company is not a public servant under Section 21 of the Indian Penal Code but every employee of such company is a public servant.[9]
CONCLUSION
It is now clear from the above article that, section 21 of the Indian Penal Code comprises a complete record of who is certified as a Public Servant. It is important to consider that the meaning of Public Servant is been defined in many statutes and not only confined to the Indian Penal Code. To set off as a Public Servant, a meager appointment by Government is insufficient. The bothered person should come under any of the twelve clauses of this section.
BIBLIOGRAPHY:
- Section 21 of Indian Penal Code | IPC Section 21 Pdf Download – IPC, http://ipc.frogview.com/section-21-of-indian-penal-code-ipc-section-21-pdf-download/ (last visited Jun 15, 2022)
- Definition of Public Servant under IPC LawPage, https://lawpage.in/ipc/part/section-21 (last visited Jun 15, 2022)
- Ramesh Balkrishna Kulkarni v. State of Maharashtra casemine.com, https://www.casemine.com/judgement/in/5609ac1de4b014971140e126 (last visited Jun 15, 2022)
- Difference Between Civil Servant and Public Servant – Difference Wiki Difference. wiki, https://www.difference.wiki/civil-servant-vs-public-servant/#:~:text=Civil%20servants%20are%20the%20bureaucratic%2C%20top%20class%20employees%2C,are%20employed%20on%20both%2C%20top%20and%20bottom%20ranks. (Last visited Jun 15, 2022)
- S. Dhanoa V. Delhi Municipality casemine.com, https://www.casemine.com/judgement/in/5609abf3e4b014971140dbdc (last visited Jun 15, 2022)
- R. Antulay v. R.S. Nayak & Anr: a legal analysis – iPleaders, https://blog.ipleaders.in/a-r-antulay-v-r-s-nayak-anr-a-legal-analysis/ (last visited Jun 15, 2022)
- Ram Avatar Rai and Ors vs the State of Bihar on 19 May 2015 Indiankanoon.org, https://indiankanoon.org/doc/149100184/ (last visited Jun 15, 2022)
- R. Puri vs State on 23 March 1987 Indiankanoon.org, https://indiankanoon.org/doc/1257559/ (last visited Jun 15, 2022)
- Section 21 of Indian Penal Code, 1860 – Explained! World’s Largest Collection of Essays! Published by Experts, https://www.shareyouressays.com/knowledge/section-21-of-indian-penal-code-1860-explained/118555 (last visited Jun 15, 2022)
[1] Section 21 of Indian Penal Code | IPC Section 21 Pdf Download – IPC, http://ipc.frogview.com/section-21-of-indian-penal-code-ipc-section-21-pdf-download/ (last visited Jun 15, 2022)
[2] Definition of Public Servant under IPC LawPage, https://lawpage.in/ipc/part/section-21 (last visited Jun 15, 2022)
[3] Ramesh Balkrishna Kulkarni v. State of Maharashtra casemine.com, https://www.casemine.com/judgement/in/5609ac1de4b014971140e126 (last visited Jun 15, 2022)
[4] Difference Between Civil Servant and Public Servant – Difference Wiki Difference. wiki, https://www.difference.wiki/civil-servant-vs-public-servant/#:~:text=Civil%20servants%20are%20the%20bureaucratic%2C%20top%20class%20employees%2C,are%20employed%20on%20both%2C%20top%20and%20bottom%20ranks. (last visited Jun 15, 2022)
[5] S.S. Dhanoa V. Delhi Municipality casemine.com, https://www.casemine.com/judgement/in/5609abf3e4b014971140dbdc (last visited Jun 15, 2022)
[6] A.R. Antulay v. R.S. Nayak & Anr: a legal analysis – iPleaders, https://blog.ipleaders.in/a-r-antulay-v-r-s-nayak-anr-a-legal-analysis/ (last visited Jun 15, 2022)
[7] Ram Avatar Rai and Ors vs State of Bihar on 19 May 2015 Indiankanoon.org, https://indiankanoon.org/doc/149100184/ (last visited Jun 15, 2022)
[8] A.R. Puri vs State on 23 March 1987 Indiankanoon.org, https://indiankanoon.org/doc/1257559/ (last visited Jun 15, 2022)
[9] Section 21 of Indian Penal Code, 1860 – Explained! World’s Largest Collection of Essays! Published by Experts, https://www.shareyouressays.com/knowledge/section-21-of-indian-penal-code-1860-explained/118555 (last visited Jun 15, 2022)
AUTHOR: Adithya Narayanan,
5 Yr BBA-LLB, SDM Law College,
Mangalore, Karnataka.