minal Appeal No 154 of 1959
Appeal by special leave from the judgment and order dated March 27 1959 of the Mysore High Court in Criminal Appeal No 168 of 1956
section N Andley J B Dadachanji RameShwar Nath and Bavinder Narain for the appellant
B Gopalakrishnan and T M Sen for the respondent
February 16
The Judgment of the Court was delivered by 130 RAGHUBAR DAYAL J
This is an appeal by special leave against the judgment of the High Court of Mysore at Bangalore confirming the appellant s conviction for an offence under section 52 of the Prevention of Corruption Act 1947 Act 11 of 1947 by the Special Judge Dharwar
The appellant is alleged to have committed the offence while he was a Municipal Councillor and Chairman of the Managing Committee of the Navalgund Municipality
The only question for determination in this appeal is whether the appellant was a Public servant  contemplated by section 2 of the Preven tion of Corruption Act
The contention for the appellant is that he was not such a public servant 
Section 2 of the Prevention of Corruption Act reads For the purposes of this Act public servant  means a public servant as defined in section 21 of the Indian Penal Code
Section 21 of the Indian Penal Code defines the persons coming within the expression public servant  and its Tenth Clause reads 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 the ascertaining of the rights of the people of any village town or district
The Rule 68 framed under the Bombay District Municipal Act 1901 Bombay Act III of 1901 and admittedly applicable to the appellant reads The Chairman of an Executive Committee shall sign payment orders on behalf of the Committee after the Committee have passed the bills and may also order payment of bills for fixed recurring charges such as pay bills in anticipation of the Committee passing them
The High Court held that the appellant as Chairman of the Managing Committee could expend the money of the Municipality as he could order payment of bills for fixed recurring charges and that therefore he 131 came within the purview of the expression public servant  defined in the Tenth Clause of section 21 of the Indian Penal Code
The only criticism which the learned counsel for the appellant has urged against this view is that the High Court did not keep the distinction between the words duty  and power  in mind and that rule 68 empowers the Chairman to order payment and does not impose a duty on him to order payment
We are of opinion that the power to make payment of fixed recurring charges such as pay bills imposes a duty on the Chair
man to do so when necessary as the power it vested in the Chairman for the benefit of the persons entitled to receive those recurring charges
Reference may usefully be made here to what was said in this connection in Julius vs The Lord Bishop of Oxford 1
Earl Cairns the Lord Chancellor said in connection with the interpretation to be put on the expression it shall be lawful  in a certain statute The words it shall be lawful  are not equivocal
They are plain and unambiguous
They are words merely making that legal and possible which there would otherwise be no right or authority to do
They confer a faculty or er and they do not of themselves do more than confer a faculty or power But there may be something in the nature of the thing empowered to be done something in the ob
ject for which it is to be done something in the conditions under which it is to be done something in the title of the person or persons for whose benefit the power is to be exercised which may couple the power with a duty and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so
The aforesaid power is conferred on the Chairman for the benefit of the persons who have served the Municipality and have got the right to receive their pay or money for articles provided
There may arise ciroumstances when any delay in payment may affect those persons adversely
The pay is due on the first day of 1 1880 5 App
214 222
132 the month and it may not be convenient to fix a meet
ing of the Committee at a date for early payment of the pay due
A meeting already fixed may have to be adjourned for want of quorum
The passing of the pay bills in the circumstances is more or less a formal matter and therefore the rules empower the Chairman of the Managing Committee to order payment of the pay bills in anticipation of sanction by the Committee
The Chairman can exercise this power for the benefit of the employees voluntarily or when requested by those persons to exercise it
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 pro perty
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
In view of our opipion we do not discuss the effect of section 45 of the Bombay District Municipal Act which lays down that every municipal councillor shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code or the question whether the appellant as a mere Municipal Councillor comes within the definition of public servant  in section 21 of the Indian Penal Code
These questions were not considered by the High Court
We therefore dismiss the appeal
Appeal dismissed


Summary:
In execution of a decree the Amin attached inter alia two buffaloes from the house of the judgment debtor and entrusted them to the custody of a sapurdar
As the sapurdar had no accommodation in his house for keeping the buffaloes he kept them for the night in the enclosure of the decree holder with his permission
Early next morning the appellants armed with 76 lathies went to the enclosure of the decree holder and began to untie the two
buffaloes the decree holder his son and nephew protested whereupon they and another person who tried to intervene were beaten by the appellant with lathies and the two buffaloes were taken away
Afterwards appellant No 1 made a claim petition before the executing court and that court held that the two buffaloes belonged to him
The appellants were convicted of offenses under sections 147 452 424 325149 and 323149 Indian Penal Code
They challenged their convictions on the grounds i that the custody of the decree bolder over the buffaloes was illegal as neither the a minor had any authority to give them in the custody of the sapurdar nor had the sapurdar any power to keep them in the custody of the decree holder ii that the appellants bad entered the enclosure of the decree holder only to recover their buffaloes and had not acted dishonestly
Held that the appellants were rightly convicted
The decree holder s possession of the buffaloes was as a bailee of the sapurdar
Order 21 Rule 43 read with R 116 framed by the Allahabad High Court empowered the amin to keep the attached buffaloes in the custody of a sapurdar
The sapurdar could for convenience or necessity keep them with a third person as bailee and such third person could be the decree holder also
Attachment involved a change of possession from the judgment debtor to the Court and whoever was entrusted with the possession held it on behalf of the Court until the attachment was raised
So long as the attachment lasted or the claim of a person for the thing attached was not allowed that person was not legally entitled to get possession of the thing attached
If he unlawfully took possession of that thing he caused wrongful gain to himself and wrongful loss to the Court
Rex vs Thomas Knight  Sarsay Singh vs Emperor and Emperor vs Gurdial All 119 distinguished
Emperor vs Ghasi All 214 disapproved
Dalganjan vs State AIR 1956 All
630 State vs Rama Raj 772 and Emperor vs Kamla Pat All 368 applied