# AKHTAR ALAM v. THE STATE OF BIHAR

- **Citation:** [1969] 2 S.C.R. 682
- **Court:** Supreme Court of India
- **Decided:** 1968-11-12
- **Case number:** Criminal Appeal No. 207 Of 1966
- **Bench:** J. c. SHAH, v. R.AMASWAMI, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/akhtar-alam-v-the-state-of-bihar-4582
- **Pages:** 10

## Headnote

Prevention of Corruption Act II of 1947-s. 5(2) read with s. 5(1).
Indian Penal Code 1860 s. 21 (12)-Heat! Clerk to Executive Engineer taking bribe-whether "public servant"-principles for determining whether
Head Clerk was an officer of the Corporation within the meaning of s. 21
(12) l.P.C.
The appellant was the Head Clerk to the Executive Electrical Enginear of the State Electricity Board
He was convicted under s. 5 (2)
read withs. 5(1) (d) 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 conYiction was dismissed by the High Courr.
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 s. 5 (2) of the
Prevention of Corruption Act or s. 21 ot 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 s. 21(12)1.P.C.
HELD : On the facts found the appellant was an officer in the service
or pay of a Corporation as defined in s. 21 ( 12), I.P.C. and therefore a
public servant' within the meaning of that section and also of s. 2 of
the Prevention of Corruption Act. [691 DJ
The true test in order to determine whether the appellant was
'an
officer' of the Corporation within the meaning of s. 21(12), Indian Penal
Code, would be : ( l) 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 auxi~
liary 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 pos:tions 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 Al
Reg. v. Ramajirao Jivbaji, 12 Born. H.C.R. 1; Nazamuddin v. QueenEmpress, I.L.R. 28 Cal. 344; Emperor v. Karam Chand Gobind Ram,
A.I.R. 1943 Lab. 255; and G. A. Monterio v. The State of Ajmer, A.l.R.
1957 S.C. 13; referred to.
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AKHTAR ALAM v. THE STATE OF B!HAR (Ramwwami, }.) 6Sj
Held Also: The appellant cannot be deemed to be a public servant
within the meaning of s. 81 of the Electricity (Supply) Act, 1948 because
he was not acting or purporting to act in purrnance of any of the provisiono
of that Act.
On a plain reacling of s. 81 of the Electricity (Supply) Act, 1948 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 s. 21, I.P.C. in view of the language of s. 81 of the Electricity
(Supply) Act. [687 BJ
Gill v. The King. 75 I.A. 41; Hori Ram Singh v. The Crown, [1939]
F.C.R. 159; and State of Maharashtra v. Jagatsing Charansingh,
[1964]
4 S.C.R. 299'; referred to.

## Text

AKHTAR ALAM
v.
THE STATE OF BIHAR
November 12, 1968
[J. c. SHAH, v. R.AMASWAMI AND A. N. GROVER, JJ.]
Prevention of Corruption Act II of 1947-s. 5(2) read with s. 5(1).
Indian Penal Code 1860 s. 21 (12)-Heat! Clerk to Executive Engineer taking bribe-whether "public servant"-principles for determining whether
Head Clerk was an officer of the Corporation within the meaning of s. 21
(12) l.P.C.
The appellant was the Head Clerk to the Executive Electrical Enginear of the State Electricity Board
He was convicted under s. 5 (2)
read withs. 5(1) (d) 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 conYiction was dismissed by the High Courr.
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 s. 5 (2) of the
Prevention of Corruption Act or s. 21 ot 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 s. 21(12)1.P.C.
HELD : On the facts found the appellant was an officer in the service
or pay of a Corporation as defined in s. 21 ( 12), I.P.C. and therefore a
public servant' within the meaning of that section and also of s. 2 of
the Prevention of Corruption Act. [691 DJ
The true test in order to determine whether the appellant was
'an
officer' of the Corporation within the meaning of s. 21(12), Indian Penal
Code, would be : ( l) 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 auxi~
liary 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 pos:tions 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 Al
Reg. v. Ramajirao Jivbaji, 12 Born. H.C.R. 1; Nazamuddin v. QueenEmpress, I.L.R. 28 Cal. 344; Emperor v. Karam Chand Gobind Ram,
A.I.R. 1943 Lab. 255; and G. A. Monterio v. The State of Ajmer, A.l.R.
1957 S.C. 13; referred to.
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AKHTAR ALAM v. THE STATE OF B!HAR (Ramwwami, }.) 6Sj
Held Also: The appellant cannot be deemed to be a public servant
within the meaning of s. 81 of the Electricity (Supply) Act, 1948 because
he was not acting or purporting to act in purrnance of any of the provisiono
of that Act.
On a plain reacling of s. 81 of the Electricity (Supply) Act, 1948 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 s. 21, I.P.C. in view of the language of s. 81 of the Electricity
(Supply) Act. [687 BJ
Gill v. The King. 75 I.A. 41; Hori Ram Singh v. The Crown, [1939]
F.C.R. 159; and State of Maharashtra v. Jagatsing Charansingh,
[1964]
4 S.C.R. 299'; referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal 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.
K. R. Chaudhuri, for the appellant.
D. Goburdhun, for the responde,nt.
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 s. 5(2) of the Prevention of Corruption Act (Act II
of 1947) ands. 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
s. 5(2), read with s. 5(1) of the Prevention of Corruption Act
and s. 161 of the Indian Penal Code. The case of the prosecufrm
was that on July 8, 1961, the appellant committed these offences
by obtaining a sum of Rs. 180/- for Sri A. D. Singh, Executive
Engineer (Electrical) from Ramprit Singh, P.W. 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 A. D. Singh, accompanied
by his Head Clerk, the appellant paid a visit to J anta Oil Mills
situated at Fatuhas. Ramprit Singh, P.W. 2 was the lessee of the
Mills. The Executive Engineer met P.W. 2 in the mill premises
and told him that the outer sea! of the meter, technically called
the body seal, was in a tampered condition. P.W. 2 maintained
that the seal was not tampered but on a threat by the Executive
Engineer, P.W. 2 was compelled to give a written statement that
6$4
SUPREME COURT REPORTS
[1969] 2 S.C.R.
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 a.m. on the same day the appellant had gone again to the mill
premises and to>ld P.W. 6, Basudeo Singh, the Munshi of the proprietor that P.W. 2 the lessee and P.W. 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, P.W. 2 went to the office of the
Anti-Corruption Department at Patna and handed over a petition
to P.W. 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, P.W. 7 a raiding was organised.
Ramprit, P.W. 2
along with other witnesses proceeded to the appellant's office.
After some conversation the appellant demanded money and P.W.
2 Ramprit gave him eighteen ten-rupee currency notes, the serial
numbers of which had been previously noted down by the Magistrate, P.W. 20.
P.W. 16, Raghuraj was also present at the time.
After the appellant had received money, the Deputy Superintendent of Police, P. W. 7 and other members of the raiding party
arrived inside.
The appellant thereafter dropped the bundle of
i.;urrenc,y 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, P.W. 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, Ex. 2.
The Deputy Superintendent of Police then lodged
the First Information Report, Ex. 11 at the Gardanibagh police
station.
On the basis of that report investigation was made by
Deputy Superintendent of Police Sr! Ramlakhan Prasad, P. W. 19
and subsequently by Inspector Shahidhar Dutt, P.W. 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, P.W. 16 The
Special Judge, however, accepted the prosecution case as true and
convicted the appellant under s. 5(2) read withs. 5(1) (d) of the
Prevention of Corruption Act and se,ntenced him to undergo rigorous imprisonment for five years. The appellant was also convict-
. ed and sentenced to undergo rigorous imprisonment for two years
under s. 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 judgme,nt of the Special Judge.
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AJ'BTAR ALAM v. l't!E ST,\TE \)!' Bll!AA (Ramaswami, I.)
.lHl5
This appeaj is brought by special leave from the judgment of
the Patna High Court dated August l 0, l 9(i6 in Criminal Appeal
No. 134 of 1964.
On behalf of the appeJ.lant Mr. K. R. 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
s. 5 (2) of the Prevention of Corruption Act or s. 21 of the Indian
Penal Code.
Section 5(l)(d) of the Prevention of Corruption Act states:
"5. (1) A 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 5 (2) 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 Jess 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."
:Sys. 2 of the Criminal Law (Amendment) Act, 1958 (Act II of
1958) cl. 12 was inserted ins. 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,
4Sup.C.I./69-11
686
SUPREME COURT RllPoRtS
(1969) 2 S.C.R.
Provincial or State Act or of a Government company as
defined in section 617 of the Companies Act, 1956.'
(b) after Explanation 3, the following Explanation
shaH 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.'
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The scope of cl. (12) of s. 21 of the Indian Penal Code was enlarged by s. 2 otf the Anti Corruption Laws (Amendment) Act,
1964 (Act 40 of 1964 ). Bys. 2 of the amendment Act of 1964,
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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 Companies Act, 1956."
By the amending Act Explanation 4 of s. 21, Indian Penal Code
was also omitted.
In the present case, however, we are not concerned with the amendment effected by Act 40 oi 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 II 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 Electricity (Supply)
Act, 1948 (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 aHer the issue of the notification under subsection ( 4) of section l, constitute by notification in the
Official Gazette a State Electricity Board under such
name as shall be specified in the notification."
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AKHTAR ALAM v. THE STATE OF BIHAR (Ramaswami, J.)
687
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Section 12 provides for incorporation of the Board and reads as
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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
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immovable, and shall by the said name sue and be
sued."
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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 o.f the
Indian Penal Code."
On a plain reading of s. 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 Electricity (Supply) Act, 1948. 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
Electricity (Supply) Act.
Therefore, the appellant while taking
the bribe, cannot be deemed to be a public servant within the
meaning of s. 21, Indian Penal Code in view of the language of
s. 81 of the Electricity (Supply) Act, 1948.
The question whether sanction of the Government was required under s. 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 ss. 161 and 409 of the Indian Penal
Code against public servants. In Gill v. The King('), it was
held by the Judicial Committee that prosecution for taking a bribe
under s. 161, Indian Penal Code did not require sanction under
s. 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 v. The Crown('), the Federal Court held that
sanction was required for prosecution of a public servant tor an
---
(!) 75 I.A. 41.
(l) [1939] F.C.R. 159.
688
SUPREME COURT REPORT.S
[1969J 2. S.C.R.
offence under s. 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 char,ge under s. 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
case(').
The same view has been expressed by this Court in
State of Maharashtra v. Jagatsing.Charansingh(2) .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
s. 43 o,f that Act. Therefore a person taking a bribe could not
be said to be a public servant within the meaning of s. 21, Indian
Penal Code in view of the language of s.43 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 s. 81 of the Electricity
(Supply) Act, 1948 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 twe1fth clause in s. 21, Indian
Penal Code as it stood after the Criminal Law (Amendment)
Act, 1958 {Act II 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 Companies
Act, 1956'. 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 ~:tate Electricity Board which falls within the language of
Explanation 4.
But it was contended for the llf)pe!lant that he
was performing only routine clerical duties and cannot be treated
as an officer within the meaning of cl. (12) to s. 21, Indran 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 cl. (12) of s. 21, Indian
Penal Code. In Reg. v. Ramajirao Jivbaji( 3 ) 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
1)75 I.A. 41
(2) [1964] 4 S.C.R. 299.
(3) 12 Born. H.C.R. l,
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AKHTAR ALAM v. THE STATE OF BIHAR (Ramaswami, !.)
689
of Government.
He was either himself anned with some authority or representative character or his duties were immediately
auxiliary to those of some cme who was so anned. 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 hath 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 represent
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
armed.''
The decision in Reg. v. Ramajirao Jivbaji(') was considered by
the Calcutta High Court in Nazamuddin v. Queen-Empress(2 ).
The petitioner in that case was a peon attached to the office of the
Superintendent of the Salt Department in the district of Moz:afferpur and he had been convicted under s. 161 Indian Penal Code.
The contention urged on behalf of the petitioner was that he did
not fal! within the terms of the last portion of cl. ( 9) of s. 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
consid~r
whether a !esseefrom Government was on the conditious
of his lease a public servant, and, in doing so,
they
considered generally the meaning of the term 'officer'.
(I) 12 Bom. H.C.R. 1
(2) I.L.R. 28 Cal. 344.
690
SUPREME COURT REPORTS
[1969] 2 S.C.R.
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 immedrately 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 o.f 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 s. 21, Pena] Code
is one who is appointed to some office for the performance of some public duty. In this sense the peon would
come within s. 21, cl. 9".
In Emperor v. Karam Chand Gobind Ram('), it was held by the
Lahore High Court that a Head Clerk in the Supply Depot at
SiaJkot whose duty was to put up bills to his officer, was a public
officer within the meaning of s. 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 v. The State of Ajmer(2 ),
it was held by this Court that a person, who was a Class Ill 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 o.f s. 21 ( 9), Indian Penal Code and s. 2, Prevention of Corruption Act.
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(1) A.1.R. 1943 Lah. 2SS.
(2) A.I.R. 1957 S.C. 13.
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AKHTAR ALAM \'. THE STATE OF BIHAR (Ramaswami, J.)
691
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The true test, therefore, in order to determine whether the
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appellant is an officer of the Coiioration within the meaning of
s. 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
either armed with some authority or representative character by
the Corporation; or whether his duties are immediately auxiliary
B
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 imme-
,,
diately 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 subc
ordinate 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.
Upon the facts found in the present case we are of the opinion
that the appellant was an officer in the service or pay of the
~
Corporation as defined in s. 21, cl. (12), Indian Penal Code and
•
D
therefore a 'public servant' within the meaning of that section and
also of s. 2 of the Preveintion 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.
E
R.K.P.S.
Appeal dismissed
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