minal Appeal No 207 of 1966
Appeal from the judgment and order dated August 10 1966 of the Patna High Court in Criminal Appeal No 14 of 1964
KR Chaudhuri for the appellant
D Goburdhun for the respondent
The Judgment of the Court was delivered by Ramaswami J
The question involved in this appeal is whether the appellant Akhtar Alam was a public servant within the meaning of section 5 2 of the Prevention of Corruption Act Act 11 of 1947  and section 21 of the Indian Penal Code
On or about December 11 1962 the appellant was charged in the Court of the Special Judge of Patna for an offence
under section 52 read with section 51 of the Prevention of Corruption Act and section 161 of the Indian Penal Code
The case of the prosecution was that on July 8 1961 the appellant committed these offences by obtaining a sum of Rs 180 for Sri AD Singh Executive Engineer Electrical from Ramprit Singh PW 2 by resorting to corrupt and illegal means or by otherwise abusing his position as public servant
It is said that on the morning of July 6 1961 the Electrical Executive Engineer Sri AD Singh accompanied by his Head Clerk the appellant paid a visit to Janta Oil Mills situated at Fatuhas
Ramprit Singh PW 2 was the lessee of the Mills
The Executive Engineer met PW 2 in the mill premises and told him that the outer seal of the meter technically called the body seal was in a tampered condition
PW 2 maintained that the seal was not tampered but on a threat by the Executive Engineer PW 2 was compelled to give a written statement that 684 the outer seal was tampered with
Thereafter the Executive Engineer cut the inner seal technically known as the loop seal of the meter and fixed two fresh seals on the meter one in the terminal and the other in the body of the meter
The Executive Engineer and the appellant thereafter left the mill premises
At about 10 am on the same day the appellant had gone again to the mill premises and told PW 6 Basudeo Singh the Munshi of the proprietor that PW 2 the lessee and PW 9 Bishna Prasad Yadav the proprietor of the mill should meet him at his office at Patna within two days and get the matter settled otherwise they would be put to a big loss
Thereafter PW 2 went to the office of the Anti Corruption Department at Patna and handed over a petition to PW 11 Girjanandan Sinha expressing his apprehension that the Executive Engineer or his Head Clerk the appellant would demand some bribe from him
It is alleged that on July 8 1961 a trap was laid and under the direction of the Deputy Superintendent of Police PW 7 a raiding was organised
Ramprit PW 2 along with other witnesses proceeded to the appellant s office
After some conversation the appellant demanded money and PW 2 Ramprit gave him eighteen ten rupee currency notes the serial numbers of which had been previously noted down by the Magistrate PW 20
PW 16 Raghuraj was also present at the time
After the appellant had received money the Deputy Superintendent of Police PW 7 and other members of the raiding party arrived inside
The appellant thereafter dropped the bundle of currency notes on the floor below the table and made an attempt to get away but he was taken under arrest and after his person was searched the currency notes were found lying on the floor near the seat
The Deputy Superintendent of Police PW 7 picked up the currency notes and upon comparison he found them to bear the same serial numbers which had been noted down in the statement exhibit 2
The Deputy Superintendent of Police then lodged the First Information Report exhibit 11 at the Gardanibagh police station
On the basis of that report investigation was made by Deputy Superintendent of Police Sri Ramlakhan Prasad PW 19 and subsequently by Inspector Shahidhar Putt PW 17 under the orders of the Sub Divisional Magistrate
After concluding the investigation the police submitted a chargesheet against the appellant
The appellant denied the charges and pleaded that the entire case had been fabricated against him by Raghuraj PW 16 The Special Judge however accepted the prosecution case as true and convicted the appellant under section 5 2 read with section 51 d of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for five years
The appellant was  also convicted and sentenced to undergo rigorous imprisonment for two years under section 161 of the Indian Penal Code
The appellant took the matter in appeal to the Patna High Court which dismissed the appeal and affirmed the judgment of the Special Judge
685 This appeal is brought by special leave from the judgment of the Patna High Court dated August 10 1966 in Criminal Appeal No 134 of 1964
On behalf of the appellant Mr KR Chaudhury did not challenge the findings of the High Court on questions of fact but the argument was put forward that upon the findings recorded by the High Court the appellant could not be convicted of the charges because he was not a public servant within the language of section 52 of the Prevention of Corruption Act or section 21 of the Indian Penal Code
Section 51d of the Prevention of Corruption Act states 5
1A public servant is said to commit the offence of criminal misconduct in the discharge of duty d if he by corrupt or illegal means or by otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage
 Section 52 is to the following effect 2 Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine Provided that the Court may for any special reasons recorded in writing impose a sentence of imprisonment of less than one year
 Section 2 provides as follows For the purposes of this Act public servant  means a public servant as defined in section 21 of the Indian Penal Code
 By section 2 of the Criminal Law Amendment Act 1958 Act 11 of 1958 el 12 was inserted in section 21 of the Indian Penal Code and Explanation 4 was added thereto
Section 2 was to the following effect 2
In section 21 of the Indian Penal Code a after clause Eleventh the following clause shall be inserted namely  Twelfth
Every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by a Central Sup
4Sup CI69 11 686 Provincial or State Act or of a Government company as defined in section 617 of the 
b after Explanation 3 the following Explanation shall be inserted namely  Explanation 4
The expression corporation engaged in any trade or industry  includes a banking insurance or financial corporation a river valley corporation and a corporation for supplying power light or water to the public  The scope of cl
12 of section 21 of the Indian Penal Code was enlarged by section 2 of the Anti Corruption Laws Amendment Act 1964 Act 40 of 1964
By section 2 of the amendment Act of 1964 cl
12 was substituted by a new clause in the following terms Twelfth
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 
 By the amending Act Explanation 4 of section 21 Indian Penal Code was also omitted
In the present case however we are not concerned with the amendment effected by Act 40 of 1964 because the occurrence took place before the coming into force of this amending Act but after the enactment of the Criminal Law Amendment Act 1958 Act 11 of 1958 which came into force on February 27 1958
It is not disputed in this case that the appellant was not a Government servant but he was the servant of the State Electricity Board constituted under the provisions of the Act 54 of 1948
The State Electricity Board so constituted is not a department of the State Government
It is a body corporate having the power to appoint the Secretary and such other officers and servants as may be required to enable the Board to carry out the functions of the Board
Section 5 1  of the Act states 5
1  The State Government shall as soon as may be after the issue of the notification under subsection 4 of section 1 constitute by notification in the Official Gazette a State Electricity Board under such name as shall be specified in the notification
 687 Section 12 provides for incorporation of the Board and reads as follows 12
The Board shall be a body corporate by the name notified under sub section  1  of section 5 having perpetual succession and a common seal with power to acquire and hold property both movable and immovable and shall by the said name sue and be sued
 Section 15 is to the following effect The Board may appoint a Secretary and such other officers and servants as may be required to enable the Board to carry out its functions under this Act Provided that the appointment of the Secretary shall be subject to the approval of the State Government
 Section 81 enacts 81
All members officers and servants of the Board shall be deemed when acting or purporting to act in pursuance of any of the provisions of this Act to be public servants within the meaning of section 21 of the Indian Penal Code
 On a plain reading of section 81 the officers and servants of the Board are deemed to be public servants only when acting or purporting to act in pursuance of any of the provisions of the 
So far as the receiving of a bribe is concerned it cannot be brought within the scope of acting or purporting to act in pursuance of any of the provisions of the 
Therefore the appellant while taking the bribe cannot be deemed to be a public servant within the meaning of section 21 Indian Penal Code in view of the language of section 81 of the 
The question whether sanction of the Government was required under section 197 of the Criminal Procedure Code where any public servant is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty came up for consideration by the Judicial Committee in cases under sections 161 and 409 of the Indian Penal Code against public servants
In Gill vs The King1 it was held by the Judicial Committee that prosecution for taking a bribe under section 161 Indian Penal Code did not require sanction under section 197 because taking of a bribe was not acting or purporting to act in the discharge of the official duty of a public servant
Again in Hori Ram Singh vs The Crown2 the Federal Court held that sanction was required for prosecution of a public servant for an 1 75 IA 41
2 688 offence under section 477 A as his official capacity was involved in the very act complained of as amounting to a crime but that no sanction was required for a charge under section 409 because the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation or conversion which is the act complained of This view of the Federal Court was approved by the Judicial Committee in Gill s case1
The same view has been expressed by this Court in State of Maharashtra vs Jagatsing Charansingh2 in which it was held that only when an officer or servant of a corporation was acting or purporting to act in pursuance of any of the provisions of the Transport Corporation Act 1950 Act 64 of 1950 or of any other law that he could be said to be a public servant within section 43 of that Act
Therefore a person taking a bribe could not be said to be a public servant within the meaning of section 21 Indian Penal Code in view of the language of s43 of the Transport Corporation Act
Applying a similar line of reasoning to the present case we are of opinion that the appellant cannot be deemed to be a public servant within the meaning of section 81 of the because he was not acting or purporting to act in pursuance of any of the provisions of that Act
We pass on to consider the alternative question raised on behalf of the respondent namely whether the appellant was a public servant within the meaning of the twelfth clause in section 21 Indian Penal Code as it stood after the Criminal Law Amendment Act 1958 Act 11 of 1958
Under this clause the words public servant include every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by a Central Provincial or State Act or of a Government company as defined in section 617 of the 
In view of Explanation 4 the expression corporation engaged in any trade or industry  includes a banking insurance or financial corporation a river valley corporation and a corporation for supplying power light Or water to the public
It is not disputed in the present case that the appellant was in the service of the State Electricity Board which falls within the language of Explanation 4
But it was contended for the appellant that its was performing only routine clerical duties and cannot be treated as an officer within the meaning of cl
12 to section 21 Indian Penal Code
The question to be considered therefore is whether as Head Clerk employed under the State Electricity Board and attached to the office of the Executive Engineer the appellant could be said to be an officer within the meaning of el
12 of section 21 Indian Penal Code
In Reg
vs Ramajirao Jivbaji3 it was held by West J that the word officer  meant some person employed to exercise to some extent and in certain circumstances a delegated function 1751A 41 2 19644SCR 299
3 12 Born
HCR 1
689 of Government
He was either himself armed with some authority or representative character or his duties were immediately auxiliary to those of some one who was so armed
In the course of his judgment West J observed as follows Seeking the help of English law we find in Bacon s Abridgement at Vol
6 page 2 the article headed of the nature of an officer and the several kinds of officers  commencing thus It is said that the word officium  principally implies a duty and in the next place the charge of such duty and that it is a rule where one man bath to do with another s affairs against his will and without his leave that this is an office and he who is in it is an officer  And the next paragraph goes on to say There is a difference between an office and an employment every office being an employment but there are employments which do not come under the denomination of offices such as an agreement to make hay herd a flock  c which differ widely from that of steward of a manor  c
The first of these paragraphs implies that an officer is one to whom is delegated
by the supreme authority some portion of its regulating and coercitive powers or who is appointed to repre sent the State in its relations to individual subjects
This is the central idea and applying it to the clause which we have to construe we think that the word officer  there means some person employed to exercise to some extent and in certain circumstances a delegated function of Government
He is either himself armed with some authority or representative character or his duties are immediately auxiliary to those of some one who is so The decision in Reg
vs Ramajirao Jivbaji1 was considered by the Calcutta High Court in Nazamuddin vs Queen Empressa
The petitioner in that case was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozafferpur and he had been convicted under section 161 Indian Penal Code
The contention urged on behalf of the petitioner was that he did not fall within the terms of the last portion of cl
9 of section 21 Indian Penal Code
The contention was rejected and the learned Judges observed at page 346 of the Report as follows The Learned Judges in that case had to consider whether a lessee from Government was on the conditions of his lease a public servant and in doing so they considered generally the meaning of the term officer 
1 12 Born
HCR 1 2 ILR28Cal
690 It was there held that an officer means some person employed to exercise to some extent and in certain circumstances a delegated function of Government
He is either armed with some authority or representative character or his duties are immediately auxiliary to those of some person who is so armed  The meaning which we are asked to put on those words seems to us to be too narrow as applied to the present case
The peon who has been convicted as a public servant is in service and pay of the Government and he is attached to the office of the Superintendent of the Salt Department
The exact nature of his duties is not stated because this objection was not taken at the trial but we must take it that from the nature of his appointment it was his duty to carry out the orders of his official superior who undoubtedly is a public servant and in that capacity to assist the Superintendent in the performance of the public duties of his office
In that sense he would be an officer of Government although he might not possibly exercise any delegated function of the Government 
Still his duties would be immediately auxiliary to those of the Superintendent who is so armed  We think that an officer in the service or pay of Government  within the terms of section 21 Penal Code is one who is appointed to some office for the performance of some public duty
In this sense the peon would come within section 2 1 el 9
In Emperor vs Karam Chand Gobind Ram1 it was held by the Lahore High Court that a Head Clerk in the Supply Depot at Sialkot whose duty was to put up bills to his officer vas a public officer within the meaning of section 21 cl
9 of the Indian Penal Code
It was pointed out that even if a Head Clerk cannot be said to be employed to exercise to some extent and in certain circumstances a delegated function of Government his duties were immediately auxiliary to the Head of the Office or other officer empowered with official responsibility of accepting and passing his work
In G A Monterio vs The State of Ajmer2 it was held by this Court that a person who was a Class Iii servant and was employed as a metal examiner known as Chaser in the Railway Carriage Workshops and was working under the Works Manager who was an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who was an officer in the service or pay of the Government and was therefore a public servant within the meaning of section 21 9 Indian Penal Code and section 2 Prevention of Corruption Act
1 AIR 1943 Lab
2 AIR 1957 section 13
691 The true test therefore in order to determine whether the appellant is an officer of the Corporation within the meaning of 21 cl
12 Indian Penal Code is 1 whether he is in the service or pay of the Corporation and 2 whether he is himself other armed with some authority or representative character by the Corporation or whether his duties are immediately auxiliary to those of some one who is armed with such authority or representative character In the present case the High Court has found that the appellant was a person performing duties immediately auxiliary to those of the Executive Engineer who was the lead of the office
The very designation Head Clerk denotes that there are other Clerks attached to the office who occupy subordinate positions in relation to the Head Clerk and the duties of he Head Clerk from the nature of things are bound to be immediately auxiliary to the Head of the office
Upon the facts found in the present case we are of the opinion hat the appellant was an officer in the service or pay of the Corporation as defined in section 21 cl
12 Indian Penal Code and therefore a public servant  within the meaning of that section and also of section 2 of the prevention of Corruption Act
For the reasons expressed we affirm the judgment of the High Court dated August 10 1966 in Criminal Appeal No 134 of 1964 and dismiss this appeal


Summary:
The appellant was the Head Clerk to the Executive Electrical Enginear of the State Electricity Board He was convicted under section 52 read with section 51d of the Prevention of Corruption Act on the allegation that on July 8 1961 he had committed an offence in obtaining a bribe for the Executive Engineer by resorting to corrupt and illegal means or by otherwise abusing his position as a public servant
An appeal against the conviction was dismissed by the High Court
In appeal to this Court by special leave the High Court s findings on questions of fact were not challenged but it was contended that upon these findings the appellant could not be convicted of the charges because he was not a public servant within the language of section 52 of the Prevention of Corruption Act or section 21 at the Indian Penal Code
It was further contended that the appellant was performing only routine clerical duties and could not be treated as an officer  within the meaning of section 2112IP C
HELD On the facts found the appellant was an officer in the service or pay of a Corporation as defined in section 2112 IPC and therefore a public servant  within the meaning of that section and also of section 2 of the Prevention of Corruption Act
691 D The true test in order to determine whether the appellant was an officer  of the Corporation within the meaning of section 2112 Indian Penal Code would be 1 whether he was in the service or pay of the Corporation and 2 whether he was himself either armed with some authority or representative character by the Corporation or whether his duties were immediately auxiliary to those of some one who was armed with such authority or representative character
In the present case the High Court found that the appellant was a person performing duties immediately auxiliary to those of the Executive Engineer who was the Head of the Office
The very designation Head Clerk denotes that there are other clerks attached to the office who occupy subordinate positions in relation to the Head Clerk and the duties of the Head Clerk from the nature of things are bound to be immediately auxiliary to the Head of the Office
691 A Reg
vs Ramaiirao Jivbaji  Nazamuddin vs Queen Empress ILR  Emperor vs Karam Chand Gobind RamAIR  and G 4
Monterio vs The State of Ajmer AIR1957 SC 13 referred to
683 Held Also The appellant cannot be deemed to be a public servant within the meaning of section 81 of the because he was not acting or purporting to act in pursuance of any of the provisions of that Act
On a plain reading of section 81 of the the officers and servants of the State Electricity Board are deemed to be public servants only when acting or purporting to act in pursuance of any of the provisions of that Act
So far as the receiving of a bribe is concerned it cannot be brought within the scope of acting or purporting to act in pursuance of any of the provisions of the Act
Therefore the appellant while taking the bribe cannot be deemed to be a public servant within the meaning of section 21 IPC in view of the language of section 81 of the 
687 E Gill vs The King
75 I A 41 Hori Ram Singh vs The Crown  and State of Maharashtra vs Jagatsing Charansingh   referred to