INTERPRETING SECTION 21 OF THE INDIAN PENAL CODE, 1860
SYNOPSIS:
1. “Section 21 “of the Indian Penal Code, 1860 construes the definition of a Public Servant.
2. The need to this section arose to avoid any misunderstanding about what constitutes a “Public Servant” and qualifies as one.
3. Not every individual working under the Government Authority can be considered as a Public Servant.
4. There are twelve clauses under the definition along with three explanations.
5. Hence, “Section 21” recognizes the Public Servant under the Law. An individual falling under the ambit of Section 21 will be considered as a “Public Servant”.
INTRODUCTION:
Public Servants play an integral role in society. A Public Servant is termed as any person who works for the welfare of the society. In India, Public Servants secure the clean functioning of all the elements of the Government. They are chargeable for various policies that help in Courts, Lawsuits and assist in the research. They aid in bridging the gap between the Government and the society. Any sort of contempt committed under their authority would result in serious ailment and chaos in the process. Public servants are accountable only to the Government and not to any Political Party. It is expected from them to perform their duty with obligation, integrity and loyalty. Even when the situations are worsened, they are required to perform their duty and do the right thing. They are solely responsible to maintain the public’s trust in Justice and put the interest of Public and Public service before their own personal interest. Due to such dedication, many young fellows are inclined towards serving the society and helping them through public administration. . Public Servant has been separately defined under the Indian Penal Code (I.PC), 1860 as there are specific references to public servants in certain sections of the code. In this article, we would be understanding the concept of Section 21 which defines Public Servant under I.P.C.
CLAUSES REQUIRED TO BE SATISFIED UNDER SECTION 21 IN ORDER TO BE TERMED AS “PUBLIC SERVANT”:
The word “Public Servant” denotes a person falling under any of the categories hereinafter, following, namely-
1. CLAUSE 1: The First clause was repelled by Adoption and Order in 1950.
2. CLAUSE 2: This clause includes every Commissioned Officer in the Military, Naval and Air Forces of India. “Commissioned Officer” means those officers who officially receive a rank before assuming such provision, they are members of the military who occupy a position of authority. The officers in charge have the direct authority of a sovereign power and they are entrusted with obligations along with duties of an office or post. Whereas, “Non-Commissioned Officer” are officers who have not yet attained a rank or position in the country’s armed forces. In relation to this clause, the Hon’ble Supreme Court has held that a member of the Auxiliary Air Force under the Reserve and Auxiliary Air Forces Act, 1952 is as much a Public Servant as an acting member of the Indian Air Force, which exemplifies that till the members of the Auxiliary Air Force under the Reserve and Auxiliary Air Forces Act, 1952 perform their duties as members of the Indian Air Force, they are considered to be a Public Servant as well.
3. CLAUSE 3: This clause states “Any Judge, including any person legally authorized to dismiss any judicial function either alone or as a member of an association of persons.” The definition of “Judge” has been explained under Section 19 of the Indian Penal Code (I.P.C) ,1860, which states that “The word “judge” means “not only any person officially appointed to be a judge, but also any person legally empowered to make a final judgment in any civil or criminal proceeding, or a judgment that is otherwise contested would be final, or a judgment that, if confirmed by another authority, would be final, or that belongs to a group of persons legally empowered to issue said judgment”. Within the definition of Judge it does not state as to whether the Judges of the Supreme Court or High Court will be included or not. Therefore, In the case of K.VeeraSwami vs. Union Of India, equivalent citation: 1991 SCR (3) 189, 1991 SCC (3) 655. Hon’ble Supreme Court examined that the category of Judge would include judges of High Court as well as of Supreme Court. They all would be further included in the category of the Public Servant. This Hon’ble Court while deciding the case of R. S. Nayak v. A. K. Antulay, equivalent citation :1984 AIR 684, 1984 SCR (2) 495 discussed the scope of Public Servant as to whether a Member of State Legislative Assembly is a public servant within the meaning of expression in Section 21(3) of the India Penal Code (I.P.C),1860?.It was held that M.L.A (Member of State Legislative Assembly) cannot fall within the ambit of the expression in Clause 3 of Section 21 of the Indian Penal Code (I.P.C), 1860.
4. CLAUSE 4: According to the Indian Penal Code , 1860, any person of Court of Justice who orders or commissions any act that allows law and order in the court or who carries out any judicial process will fall within the purview of a public servant. Court of Justice has been defined under Section 20 of I.P.C, 1860 which denotes a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially. Every Officer of a Court of Justice including (Liquidator, receiver or commissioner) have power to execute any judicial process or to keep any document or take charge or dispose any property. They also have the power to administer any oath or to interpret or preserve any order in the court. It should be also noted that, every person who is specially authorized by the Court of Justice to perform any of such duties will also fall under the category of Public Servant.
5. CLAUSE 5: As per the Indian Penal Code, 1860, Every member (Juryman, assessor) who is assisting the Panchayat Raj or any officer of the Court of Justice or Public Servant will also fall under the ambit of this category.
6. CLASUE 6: This clause states that Every Arbitrator ( it can be defined as any person who is chosen to settle the dispute between two persons or two group of people) or any other person to whom any matter has been sent for further enquiry or solution or has been asked of any report by any other competent public authority will also fall under the category of a Public Servant.
7. CLAUSE 7: According to the Indian Penal Code, 1860, every person who is empowered by law to keep a place or to keep a person in confinement will also fall within the purview of Public Servant. For example- A Jailor who is keeping a prison in custody or anyone who is empowered to carry out any such power and such power is from the Government, he will fall under the ambit of this category.
8. CLAUSE 8: This clause states that, every officer of Government who has the power to prevent offences or to bring wrong doer to the custody, to carry out investigations or to protect public health safety or convenience will fall under this category. For example- a police officer or a traffic police man or a CBI officer, all these are empowered by the Government to protect public and ensure as well as maintain law and order.
9. CLAUSE 9: According to the Indian Penal Code, 1860, Every officer who is empowered by the Government to carry out contracts in the name of the Government to carry out sale or purchase deeds, who will keep record of all the authenticate documents, who will prevent the infraction of this law will fall under this category.
10. CLAUSE 10- As stated in the Indian Penal Code, Any Officer whose duty is to impose levy taxes or review any of them on behalf of the Government for the common purpose of any village, town or district and to authenticate any document for the verification of the rights of the people of any village, town or district. The Sarpanch of a Gram Panchayat and Pradhan of a Gram Sabha are public servants. Although, in the case of Ramesh Balkrishna Kulkarni vs State Of Maharashtra, equivalent citations- 1985 AIR 1655, 1985 SCR Supl. (2) 345. It was held by the Hon’ble Supreme Court that a Municipal Councillor does not fall within the meaning of a Public Servant as a Municipal Councillor does not owe his appointment to any Government authority.
11. CLAUSE 11: This clause only applies to individuals related to electoral processes and was added by the Indian Election Offences and Inquiries Act, 1920. As per the Indian Penal Code, every official who holds a position under which he has the power to prepare, publish, maintain or review an electoral roll/register or conduct an election or part of an election will fall under this category.
12. CLAUSE 12: As per the Indian penal Code, 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 ( 1 of 1956). For example- a Municipal Commissioner is a public servant
EXPLANATIONS UNDER SECTION 21:
EXPLANATION 1: People who fit into any of the categories mentioned above are public servants, whether or not they were appointed by the government.
EXPLANATION 2: Wherever the word “Public Servant” occurs, it is understood to mean any person who is in the actual possession of the situation of a public servant, regardless of whatever legal deficit there may be in his right to hold that situation.
EXPLANATION 3: The word “election” refers to an election for the purpose of electing the members of any legislative, municipal, city or other public authority, whatever its nature is, the method of selection according to or under any law prescribed by the election.
EMPHASIS ON THE IMPORTANT CASE
LAWS: 1. The Supreme Court has held in National Small Industries Corporation Limited v. State (NCT of Delhi), that a government company/enterprise is not a public servant, but all employee of such company/enterprise is a public servant.
2. In P.V Narsimha Rao v. State (CBI/SPE), the Supreme Court found that the concept of public servant under Section 2(c) of the Prevention of Corruption Act, 1988 extended the concept of public servant as provided for in the Section 21 of the Indian Penal Code.
3. Union of India and Anr v. Ashok Kumar Mitra on 24th February, 1995, the Hon’ble Supreme Court had referred a case law from Jammu and Kashmir High Court. Prior to 2019, Jammu and Kashmir had the Ranbir Penal Code, it is only with the Jammu and Kashmir Reorganization Act, 2019 that the Indian Penal Code is applicable. Under section 21 it was proved in Jammu and Kashmir High Court that the insurance company employees are not public servants, on the basis of that case, in the present case “Union of India and Anr v. Ashok Kumar Mitra”, it was tried to be ruled by the High Court that the Branch manager of the Bank of India was also not a public servant but the Supreme Court found this unfair and held that the Bank Manager of Bank of India is a public servant. Therefore, under section 46A of the Banking Regulation Act, 1949 allows officers of a bank to be a Public Servant.
4. A railway official of any government¬owned railway is a public servant, this has been held in the case of “R.R. Chaudhury v. S.Ganguly AIR 1959 SC 1310”.
5. In the case of “S.S Dhanoa v. Municipal Corporation AIR 1981 SC 1395”, it was assessed that a civil servant doing the work of authorizing a co¬operative society is not a public servant.
6. The Indian Penal Code classifies a wide range of people as public servants. It is however not, comprehensive. Another legislation may define a person as a public servant. However, we may find that a person who is, among other things, is in the service or pay of the government established by or under a Central, Provincial or State act, would also be covered by this¬. This was stated in the case of “Naresh Kumar Madan v. State of Madhya Pradesh (2007) 4 SCC 766”.
7. According to the case “P Nallammal & Ors v State (1999) Cr LJ 1591 (Mad)”, it was held that the speaker of the State Legislative Assembly is a Public Servant and can be prosecuted under the Prevention of Corruption Act,1988.
CONCLUSION –
Section 21 of the Indian Penal Code, therefore offers an extensive list of individuals who qualify as a public servant. . It is important to note that there are various other legislations as well which define the term “Public Servant”. For an individual to come within the purview of it, he shall fall within the ambit of Section 21 fulfilling either of the twelve clauses.
Author: sumreet kaur,
Chanderprabhu Jain College of Higher Studies and School Of law (Affiliated to Guru Gobind Singh Indraprastha University)