Criminal Appeal No 1491958
Appeal from the judgment and order dated October 27 1958 of the Allahabad High Court in Criminal Appeal No 1154 of 1956
N C Chatterjee and R L Kohli for the appellant
G C Mathur and C P Lal for the respondent
September 27
The Judgment of the Court was delivered by RAGHUBAR DAYAL J
This is an appeal by Padam Sen and Shekbar Chand against the order of the Allahabad High Court dismissing their appeal against the order of the Special Judge Meerut convicting them of an offence under section 165 A of the Indian Penal Code
The High Court granted leave to appeal against its order
One Genda Mal father of Shekhar Chand appellant No 2 sued Mithan Lal and others in the Court of the Additional Munsif Ghaziabad for money on the basis of promissory notes executed by the defendants in his favour
The defendants apprehending that the plaintiff would fabricate his books of account with respect to payments made by them applied for the seizure of the account books of the plaintiff
The Additional Munsif by his order dated March 27 1954 appointed Sri Raghubir Pershad Vakil Commissioner to seize those books of account
The Commissioner accordingly seized those books and brought them to Ghaziabad
The appellants were convicted by the Special Judge under section 165 A of the Indian Penal Code for having offered bribe to the Commissioner for being allowed an opportunity to tamper with those books of account
Their conviction was upheld by the High Court
The two Courts below have found that the appellants went to the Commissioner s Office on March 30 1954 and offered him Rs 900 as bribe
The appellants do not challenge these findings of fact recorded by the Courts below
Their only contention is that 113 886 Sri Raghubir Pershad the Commissioner was not a public servant and therefore even on the basis of the findings of fact arrived at by the Courts below they did not commit any offence under section 165 A of the Indian Penal Code
It has been contended for the appellants that the appointment of Sri Raghubir Pershad as Commissioner was null and void as the Additional Munsif had no power to appoint a Commissioner for the purpose of seizing the account books of the plaintiff on an application b application by the defendants the power of a Civil Court to issue a commission being limited by the provisions of section 75 and Order XXVI of the Code of Civil Procedure hereinafter called the Code and the Court having no inherent power to appoint a Commissioner for any purpose not mentioned in section 75 and Order XXVI of the Code
On behalf of the State it is urged that the Court can appoint a Commissioner in the exercise of its inherent powers saved by section 151 of the Code for purposes which do not come within the provisions of section 75 and Order XXVI of the Code
It is further submitted for the State that even if the Additional Munsif had no power to appoint the Commissioner for seizing the books of account Sri Raghubir Pershad would be deemed to be a public servant in view of Explanation 2 to section 21 of the Indian Penal Code because he was in actual possession of the situation of a public servant for he acted as Commissioner and was recognized as such by the appellants and others connected with the civil suit
Section 75 of the Code empowers the Court to issue a commission subject to conditions and limitations which may be prescribed for four purposes viz for examining any person for making a local investigation for examining or adjusting accounts and for making a partition
Order XXVI lays down rules relating to the issue of commissions and allied matters
Mr Chatterjee learned counsel for the appellants has submitted that the powers of a Court must be found within the four corners of the Code and that when the Code has expressly dealt with the subject matter of commissions in section 75 the Court cannot 887 invoke its inherent powers under section 151 and thereby add to its powers
On the other hand it is submitted for the State that the Code is not exhaustive and the Court in the exercise of its inherent powers can adopt any procedure not prohibited by the Code expressly or by necessary implication if the Court considers it necessary for the ends of justice or to prevent abuse of the process of the Court
Section 151 of the Code reads  Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court 
The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code
They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the puposes mentioned in section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature
It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code
The question for determination is whether the impugned order of the Additional Munsif appointing Sri Raghubir Pershad Commissioner for seizing the plaintiff s books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers
The inherent powers saved by section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it
These powers are not powers over the substantive rights which any litigant possesses
Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party
Such powers cannot come within the scope of inherent powers of the Court in the matters of procedure which powers have their source in the Court possessing all the essential powers to regulate its practice 888 and procedure
A party has full rights over its books of account
The Court has no inherent power forcibly to seize its property
If it does so it invades the private rights of the party
Specific procedure is laid down in the Code for getting the relevant documents or books in Court for the purpose of using them as evidence
A party is free to produce such documents or books in support of its case as be relevant
A party can ask the help of the Court to have produced in Court by the other party such documents as it would like to be used in evidence and are admitted by that party to be in its possession
If a party does not produce the documents it is lawfully called upon to produce the Court has the power to penalize it in accordance with the provisions of the Code
The Court has the further power to draw any presumption against such a party who does not produce the relevant document in its possession especially after it has been summoned from it
Even in such cases where the Court summons a document from a party the Court has not been given any power to get hold of the document forcibly from the possession of the defaulting party
The defendants had no rights to these account books
They could not lay any claim to them
They applied for the seizure of these books because they apprehended that the plaintiff might make such entries in those account books which could go against the case they were setting up in Court
The defendants  request really amounted to the Court s collecting documentary evidence which the defendants considered to be in their favour at that point of time
it is no business of the Court to collect evidence for a party or even to protect the rival party from the evil consequences of making forged entries in those ac
count books
If the plaintiff does forge entries and uses forged entries as evidence in the case the defendants would have ample opportunity to dispute those entries and to prove them forgeries
We are therefore of opinion that the Additional Munsif bad DO inherent power to pass the order appointing a Commissioner to seize the plaintiff s 889 account books
The order appointing Sri Raghubir Pershad as Commissioner for this purpose was therefore an order passed without jurisdiction and was therefore a null and void order
Learned counsel for the State Mr Mathur has submitted in the alternative that the impugned procedure adopted by the Additional Munsif comes within certain provisions of the Code and has referred to r 5 of Order XXXVIII and rr 1b and 7 of Order XXXIX and r 1 of Order XL of the Code
We do not agree with this contention
The impugned order was not passed under any of these provisions
It was clearly an order which the Additional Munsif purported to pass in the exercise of the inherent powers of the Court
The order was  It is strange that an application of this kind has been made at this late stage after over 2 years
However in the interests of justice issue commission to Sri Raghubir Pershad
Ho must go and recover Bahi Khatas for the year 1951 from the plaintiff and produce the same in Court
Fees Rs 20 plus T A Report within six days
Costs of the commission will not be taxed
 Further the provisions of r 5 of Order XXXVIII are to prevent a decree that may be passed being rendered infructuous and r 1b of Order XXXIX is applicable where the defendant threatens to dispose of his property to defraud creditors
None of these provisions has any application to the facts of the present case
Rule 7 of Order XXXIX empowers the Court on the application of any party to a suit to make an order for the detention preservation or inspection of any property which is the subject matter of such suit or as to which any question may arise therein
The account books of the plaintiffs were not  property  which were the subject matter of the suit nor such that about them a question could arise in the suit
The account books could at best have been piece of evidence if the plaintiff or the defendant had cared to rely on them
We therefore hold that the Additional Munsif had no power under the Code to appoint the Commissioner for seizing the plaintiff s books of account
890 Lastly it was urged for the State that even if the appointment of Sri Raghubir Pershad as Commissioner was null and void as the Additional Munsif had no jurisdiction to appoint a Commissioner for seizing the account books of the plaintiff Sri Raghubir Pershad should be treated to be a public servant  in view of Explanation 2 to section 21 of the Indian Penal Code
It has not been disputed for the appellant that if the appointment Of Sri Raghubir Pershad as Commissioner bad been valid he would have been a public servant in view of the Fourth Clause to section 21 of the Indian Penal Code
Explanation 2 to section 21 reads Wherever the words public servant  occur they shall be understood of 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
 The contention for the State is that though there was a legal defect in Sri Raghubir Pershad s appointment as Commissioner on account of the Additional Munsif having no power to appoint a Commissioner for the purpose of seizing the plaintiff s books of account that will not affect his being a public servant as he was in actual possession of the situation of a public servant
We do not agree with this contention and are of opinion that the Explanation applies only when there be a post in existence
The Explanation does not apply when there is no pre existing post or when the person appointing has no authority to appoint
The word situation  according to Webster s New International Dictionary of the English Language means position or place of employment place office as a situation in a store
The apposite meaning for the purposes of this Explanation would be office  Office  again according to the same Dictionary means a special duty trust charge or position conferred by an exercise of governmental authority and for a public purpose  a position of trust or authority conferred by an act of governmental power  a right to exercise a public function or employment and receive the emoluments if any thereto belonging as an executive or judicial office 
In a wider sense any position or place in the employment of the 891 government especially one of trust or authority
The Dictionary further notes the differences in the con
notations of the various words office post appointment situation and place and says Office commonly suggests a position of especially public trust or authority  and situation emphasizes the idea of employment especially in a subordinate position as to seek a situation as governess as private secretary
It is therefore clear that it is necessary for the application of this Explanation that the person concerned should be in actual possession of the pre existing office of a public servant
If there be no office or post there could be no question of any person s being in actual possession thereof and of the person concerned coming within the terms of this Explanation
There was no post or office of a Commissioner in existence
All that happened here was that Sri Raghubir Pershad was authorized to seize and keep certain documents in his possession
In the present case there was neither any existing office of Commissioner nor the Additional Munsif had power to appoint Sri Raghubir Pershad as Commissioner for the purpose of seizing the plaintiff s account books and therefore this Explanation does not apply to the appointment of Sri Raghubir Pershad as Commissioner
It follows there
fore that Sri Raghubir Persbad cannot be held to be a public servant
We therefore accept the contention for the appellants and hold that Sri Raghubir Pershad was not a public servant and that therefore the appellants did not commit any offence under section 165 A of the Indian Penal Code by their offering him money in order to have an opportunity to tamper with the books of account which were in his custody
We therefore allow the appeal set aside the order of the Court below and acquit the appellants of the offence under section 165 A and direct that the fine if paid be refunded
The appellants are on bail and therefore the bail bonds will be cancelled
Appeal allowed


Summary:
The appellant encashed high denomination currency notes of the value of Rs 875oo and was called upon by the Incometax Officer to submit a return for the relevant year
The appellant made three statements discrepant in material particulars at different stages as to how he received the amount
The Income tax Officer held that the true nature of the receipt had not been disclosed treated it as income from an undisclosed source and assessed him accordingly
The Assistant Commissioner of Income tax upheld that order on appeal
On a further appeal the Appellate Tribunal reviewed the facts considered the discrepancies in the appellant s case and affirmed the order of assessment
An application for a reference to the High Court having been made under section 66 of the Indian Income tax Act the Tribunal held that no question of law arose from its order and dismissed the same
The High Court thereafter summarily dismissed the application made by the appellant under section 662 of the Act
Against that order of summary dismissal special leave to appeal was obtained from this court and the sole question for determination in the appeal was whether the order of the Tribunal on the face of it disclosed any question of law and if the High Court was right in summarily dismissing the application under section 662 of the Act
Held that no question of law arose from the order of the Tribunal and the appeal must fail
In order to decide whether the principles laid down by this court in Dhirajlal Girdharilal vs Commissioner of Income tax Bombay and Omar Salay Mohamed Sait vs Commissioner of Income tax Madras 1959 37 ITR 151 applied to a particular case it was necessary to read the order of the Tribunal as a whole for determining whether or not it had properly considered the material facts and the evidence for and against in coming to its final conclusion and whether any irrelevant consideration or matter of prejudice had vitiated such conclusion
Those decisions do not require that the order of the Tribunal must be examined sentence by sentence so as to discover a minor lapse here or an incautious opinion there and rest a question of law thereon
771 Dhirajlal Girdharilal vs Commissioner of Income tax Bombay and Omar Saley Mohamed Sait vs Commis sioner of Income tax Madras  explained
Although a mere rejection of an explanation given by the assessee does not invariably establish the nature of a receipt
 where the circumstances of the rejection are such as to properly raise the inference that the receipt is an income the assessing authorities are entitled to draw that inference
Such an inference is one of fact and not of law