Legal Provisions of Section 21 of Indian Penal Code, 1860.
The Indian Penal Code has chosen to define “Public servant” separately because there are specific references to public servants in certain sections of the Code. Such references were made, for instance, in sections 161 to 165-A of the Code with respect to taking gratification by them. In addition to these, there are other references as well to public servants in the Code. Section 31 of the Prevention of Corruption Act, 1988 now specifically provides that sections 161 to 165-A both inclusive, of the Indian Penal Code shall be omitted, and section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said sections had been repealed by a Central Act.
This section in fact does not define “public servant” as a concept. Instead, a large number of categories of public servants have been enumerated by the section.
Every officer holding a Commissioned rank in the Military, Naval or Air Forces of India is a public servant. The 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.
The word ‘Judge’ used in this clause has been defined by section 19 of the Code. In R. S. Nayak v. A. K. Antulay, the Supreme Court has held that a Member of Legislative Assembly is not a public servant within this clause on the ground that participation in a debate on a motion of breach of privilege or for taking action for contempt of the House and voting thereon is a constitutional function discharged by him and, therefore, it cannot be said that such adjudicatory function if it can be so styled, constitutes adjudicatory function undertaken by him as empowered by law.
In K. Veeraswami v. Union of India? the Supreme Court has held that Judges of the High Courts and Supreme Court are included within the word ‘Judge’ used in this clause and so they are public servants. In Advocate-General, Andhra Pradesh v. Rachapudi Subba Rao, it has been held by the High Court of Andhra Pradesh that the Central Government is not a competent authority to sanction the prosecution of a High Court Judge.
A Receiver in Insolvency or a Bench Clerk in charge of the compensation seat in the office of the Labour Commissioner under the Workmen’s Compensation Act, 1923 are public servants under this clause.
Clause (7) does not speak of any adjudicatory function. It appears to comprehend a situation where as preliminary to or an end product of an adjudicatory function in a criminal case, which may lead to imposition of a prison sentence, and a person in exercise of the duty to be discharged by him by virtue of his office, places or keeps any person in confinement.
The fact that Members of Legislative Assembly as a body are empowered to adjudge a person guilty of breach of privilege or contempt of the House, and can impose a prison sentence would not mean that an M.L.A. would be comprehended in section 21 (7) so as to be a public servant. A police officer investigating a cognizable offence under the Essential Commodities Act, 1955 and submitting his report is a public servant within this clause.
The word ‘officer’ within this clause has been said to be the key word to determine as to whether a person is a public servant within the meaning of this clause or not. A person is an officer if he is in the service of the government or is entrusted with the performance of a public duty. A teacher in a government school a patwaree, a Kotwal, a roadways bus driver, an employee in the Indian Airlines, are all public servants.
The Supreme Court has observed that the report of the Santhanam Committee shows that it did recommend that the proposed amendment of section 21 should comprehend Member of Legislative Assembly. The amendments sought to section 21 by the Anti-Corruption Law (Amendment) Bill, 1964 imply that no attempt was made to bring in M.L.A. within the purview of section 21 so as to make him a public servant.
The amendment of clauses (9) and (12) of Section 21 by Amending Act 40 of 1964 did not bring about any change in the interpretation of clause (9) and clause 12 (a) after the amendment of 1964. The word ‘officer’ in this clause does not include a lecturer of a Government College who has been appointed an examiner by a university because the university is an autonomous institution and the lecturer at that point of time was discharging functions under the autonomous institution.
In Dilawar Babu Kurane v. State of Maharashtra, the Supreme Court held that a lecturer in a private college appointed by the University for a specified work of evaluating scripts is not covered in the definition of public servants under section 21 of the Code, but is covered under section 73(4) of Shivaji University Act, 1974. All persons who receive any kind of remuneration would be deemed to be public servants for the purposes of all criminal laws under section 73(4) of the above-named Act. The marginal note to this section which refers to conditions of service does not restrict meaning of the section.
In Ram Avtar Sah v. State of Bihar, the Patna High Court ruled that any surveyor while performing his legitimate function under any of the revenue civil court is a public servant and, therefore, the appellant who was entrusted with survey work for the purpose of consolidation process is a public servant and for his misconduct a case under section 5(2) of the Prevention of Corruption Act, 1947 would be maintainable. A Khalasi in the railway carriage shop who prepares and issues railway passes is a public servant. The Chief Minister is a public servant within the meaning of section 21(9) of the Code.
The Sarpanch of a Gram Panchayat and the Pradhan of a Gram Sabha are public servants. Even though the illustration under section 21 says that a Municipal Commissioner is a public servant, the Supreme Court has held in R. B. Kulkarni v. State, that he is not a public servant. The basis of this decision has been the earlier decision of the Supreme Court in R. S. Nayak v. A. R. Antulay, where the Supreme Court had ruled that a public servant must be in the pay of the Government or Semi-Government authority after having been appointed by it and must discharge his duties as provided by the Government rules and regulations.
A Municipal Councilor is elected by the people, and works independently not having been appointed by the Government. On the other hand, there may be specific statutes like the Madhya Pradesh. Municipalities Act, 1916 which explicitly provides that a Councillor is a public servant. The Uttar Pradesh Municipalities Act, 1916 provides that the Government alone has the power to remove a Member of the Municipal Board and consequently such members are public servants.
This clause is exclusively with respect to some such persons who are connected with elections, and was added by the Indian Election Offences and Inquiries Act, 1920.
The Criminal Law (Amendment) Act, 1958 added this clause for the first time. The present form to this clause was given by the Anti-Corruption Laws (Amendment) Act, 1964.
The Supreme Court has held in R. S. Nayak v. A. R. Antulay, that the policy underlying section 6 and similar sections of the Prevention of Corruption Act, 1947 is that there should not be unnecessary harassment of public servants. Existence thus of a valid sanction is a pre-requisite to the taking of cognizance of the enumerated offences alleged to have been committed by the public servant.
The terminus a quo for a valid sanction is the time when the Court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed, the accused was a public servant but by the time the court is called upon to take cognizance of the offence committed by him as public servant he has ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him and section 6, Prevention of Corruption Act, 1947 is not attracted.
If the accused has held or holds a plurality of offices occupying each one of which makes him a public servant, sanction of each one of the competent authorities entitled to remove him from each one of the offices held by him, would not be necessary because someone interested in protecting him may shift him from one office of public servant to another and thereby defeat the process of law.
Looking to the history and evolution of section 21 of the Code, it is clear that till 1964 Member of Legislative Assembly could not have been conceivably comprehended in the expression ‘public servant’ and the law did not undergo any change since the amendment. M.L.A. could not be comprehended in any of the clauses of section 21 to be a public servant when the Indian Penal Code was enacted in 1860.
A Bill for Legislative Bodies Corrupt Practices Act, 1925 introduced in 1925 to give effect to the recommendations of the Reforms Inquiry Committee, known as Mudiman Committee, reveals that till 1925 it was clearly understood that the M.L.A. as the holder of that office, which must have come into existence by the time under the Government of India Act, 1919 was not to be a public servant falling in any of the clause of section 21 and this lacuna was sought to be remedied by introducing the Bill but ultimately the Bill was not enacted into law.
The phrase ‘in the pay of the Government’ in section 21 (12) (a) does not necessarily import a master servant relationship. It is perfectly possible to say that a person can be in the pay of the Government if he is paid in consideration of discharging an assignment entrusted by the Government. It is not unusual in common parlance to speak of a person being in the pay of another if he is paid for acting at the behest or according to the desire of the other without the other being his master and he the servant.
When read with sections 17 and 7 of the Indian Penal Code the expression ‘Government’ in section 21 (12) (a) must either mean the Central or a State Government. There is no question of the M.L.A. being paid by the Central Government. There is broad division of functions such as executive, legislative and judicial in the Constitution.
The M.L.A.s. vote the grant and pay themselves. They by a vote retained the fund earmarked for the 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 the Legislature of a State cannot be comprehended in the expression “State Government”.
The language of Article 12 of the Constitution makes it clear that Government and Legislature are two separate entities. This is also reinforced by Article 187. Thus, the expression ‘Government’ in the section 21 (12) (a) clearly denotes the Executive and not the Legislature. M.L.A. is certainly not in the pay of the Executive. Therefore, even though an M.L.A. receives pay and allowances, he cannot be said to be in the pay of the Government, i.e., the Executive. This 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 other words, an M.L.A. is not remunerated by fees paid by the Government, i.e., the Executive. An M.L.A. does not perform any public duty either directed by the Government or for the Government. He, however, performs public duties cast on him by the Constitution and his electorate. He thus discharges Constitutional functions for which he is remunerated by fees under the Constitution and not by the Executive. He is thus not a public servant within the meaning of section 21 (12) (a) of the Code.
An employee of a nationalized bank, the Managing Director of Electronics Corporation of India which is a Government Company, a Chief Minister, or any other Minister, Speaker of a State Legislative Assembly, Chairman of the Board of Film Censors, an employee of the Life Insurance Corporation of India, Superintending Engineer in a State Electricity Board, and a Sarpanch of a Gram Panchayat have been held to be public servants. A co-operative society like a Super Bazar is not a corporation established by or under a Central or State Act and consequently an I.A.S. Officer working on deputation as its General Manager is not a public servant.
In P. V. Narsimha Rao v. State (CBI/SPE), the Supreme Court has observed that the concept of public servant under section 2(c) of the Prevention of Corruption Act, 1988 enlarges the concept of public servant as contained in section 21, Indian Penal Code.
In Gliulam Rabbani v. State of Assam, the Gauhati High Court held that a branch manager of State Warehousing Corporation is not a public servant under section 21(12)(b) of the Indian Penal Code and so sanction for his prosecution for causing wrongful loss to the corporation is not mandatory. The State Warehousing Corporation is not a statutory body as it was not created by statute. It is a body corporate created by framing of rules in accordance with the provisions of statute.
In N.K. Sharma v. Abhimanyu, the Supreme Court held that the appellant who was a government servant working on deputation as Managing Director of Co-operative Society is not a public servant under section 21, Indian Penal Code nor is he deemed to be a public servant under section 123, Haryana Co-operative Societies Act, 1984. Hence he is not entitled to protection under section 197, Code of Criminal Procedure, 1973 regarding prior sanction for prosecution.
In Sushil Modi v. Mohan Guruswamy, the Delhi High Court held that the leader of the opposition in a Legislative Assembly is not a public servant within the meaning of section 21 (12) (a) of the Code and so prior sanction under section 197, Code of Criminal Procedure, 1973 for instituting proceedings against him is not required. He is not remunerated by the executive government, not getting pay and allowances for any public duty which is directed by the government or for the government. He is not performing duties according to State Government regulations or at its behest:
The Supreme Court has held in National Small Industries Corporation Limited v. State (NCT of Delhi), that a government company is not a public servant but every employee of such company is a public servant.
This explanation explains that to become a public servant appointment by the government is not essential but the concerned person must fail under any of the twelve clauses of this section.
This explanation clarifies that a person who is in actual possession of the situation of a public servant is a public servant within the meaning of this section even if there might be any legal defect in his right to hold the situation. He does not become a public servant unless he has the right to hold the situation. Suspended public servant continues to be a public servant.
This explanation defines the word ‘election’ which has been used in the eleventh clause of this section. According to this explanation the word ‘election’ denotes an election the purpose of which is to select members of any legislative, municipal or other public authority, of whatever character, and the method of selection of this must be by or under any law prescribed as by election.