# • BAJRANG LAL & ANR v. STATE OF RAJASTHAN

- **Citation:** [1976] 3 S.C.R. 497
- **Court:** Supreme Court of India
- **Decided:** 1976-02-24
- **Case number:** Criminal Appeal No. 198 of 1971
- **Bench:** R. S. Sarkaria, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bajrang-lal-anr-v-state-of-rajasthan-6765
- **Pages:** 7

## Headnote

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Prevention of Corruption Act (2 of 1947), s. 5(1)(d) and (2J, and Indian
Penal Code (Act 45 of 1860), s. 21, Ninth-Railway Khalasis associated in the
work of issuing passes to Railway employees-If 'public servants'.
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Two khalasis were convicted for the offence of conspiracy to secure railway
passes on forged applications, and under s. 5(1)(d} and (2), Prevention of
Corruption Act, 1947.
It was the duty of the office of the Works Manager
of the Railway to issue passes to railway employees for railway travc;l.
The
two 'khalasi,<; were not formally appointed to work in the Pass section, but
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their services were actually utilised in the office for issuing passes.
In appeal to this Court it was contended on behalf of the khalasis, inter alia,
y
that they are not public servants.
Dismissing the appeal,
HELD : (I) Section 21. Ninth, l.P.C., as it stood at the reievant time
included in the definition of 'public servant' every officer in the service or pay
, of t,he Government. The tests for determining whether a person is an officer
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of the Government. are: (a) whether he is in the service or pay of the
Government: and (b) Whether he is entrusted with the performance of any
public duty whether of an exalted or humble character. [500G·501B1
In the present case. the two khalasis were actually allowed to deal with
the preparation and issuance of railway passes.
and as such, were in fact,
performing public duties and dicharging public functions auxiliary to
those
of the Work-; Manager-who is an officer of the Government-and his office.
They were. therefore, in actual possession of the situation of a public servant
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and in view of Explanation II to s. 21, l.P.C .• would be 'public servants'.
They were. therefore. rightly convicted under s. 5(1)(d) and (2), Prevention
of Corruption Act. [501E-G]
G. A. Monterio v. State of Aimer [19561 S.C.R. 682, followed.
CRIMINAL
APPELLATE
JURISDICTION : Criminal Appeal No.
198 of 1971.
Appeal by special leave from the iuMment and order date the 27th
July, 1971 of the Rajasthan High Court at Jodhpur in Criminal Appeal
No. 666 of 1969.
A. N. Mulla, S. K. Mehta and M. Qamaruddin, for the appellant.
Subhag Mal Jain, for the respondent.
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## Text

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BAJRANG LAL & ANR.
v.
STATE OF RAJASTHAN
February 24, 1976
[R. S. SARKARIA AND P. N. SHINGHAL, JJ.]
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Prevention of Corruption Act (2 of 1947), s. 5(1)(d) and (2J, and Indian
Penal Code (Act 45 of 1860), s. 21, Ninth-Railway Khalasis associated in the
work of issuing passes to Railway employees-If 'public servants'.
A
B
Two khalasis were convicted for the offence of conspiracy to secure railway
passes on forged applications, and under s. 5(1)(d} and (2), Prevention of
Corruption Act, 1947.
It was the duty of the office of the Works Manager
of the Railway to issue passes to railway employees for railway travc;l.
The
two 'khalasi,<; were not formally appointed to work in the Pass section, but
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their services were actually utilised in the office for issuing passes.
In appeal to this Court it was contended on behalf of the khalasis, inter alia,
y
that they are not public servants.
Dismissing the appeal,
HELD : (I) Section 21. Ninth, l.P.C., as it stood at the reievant time
included in the definition of 'public servant' every officer in the service or pay
, of t,he Government. The tests for determining whether a person is an officer
D
of the Government. are: (a) whether he is in the service or pay of the
Government: and (b) Whether he is entrusted with the performance of any
public duty whether of an exalted or humble character. [500G·501B1
In the present case. the two khalasis were actually allowed to deal with
the preparation and issuance of railway passes.
and as such, were in fact,
performing public duties and dicharging public functions auxiliary to
those
of the Work-; Manager-who is an officer of the Government-and his office.
They were. therefore, in actual possession of the situation of a public servant
E
and in view of Explanation II to s. 21, l.P.C .• would be 'public servants'.
They were. therefore. rightly convicted under s. 5(1)(d) and (2), Prevention
of Corruption Act. [501E-G]
G. A. Monterio v. State of Aimer [19561 S.C.R. 682, followed.
CRIMINAL
APPELLATE
JURISDICTION : Criminal Appeal No.
198 of 1971.
Appeal by special leave from the iuMment and order date the 27th
July, 1971 of the Rajasthan High Court at Jodhpur in Criminal Appeal
No. 666 of 1969.
A. N. Mulla, S. K. Mehta and M. Qamaruddin, for the appellant.
Subhag Mal Jain, for the respondent.
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The Judgment of the Court was delivered by
G
SARKARIA, J.
This appeal by special leave is directed against a
judgment of the High Court of Rajasthan. It arises out of these
facts :
There is an office of the Works Manager, Northern Railway at
Bikaner.
Among others, the duty of this office is to issue Railway
Passes to the Railway emDloyees and their dependent family members
for railway travel.
Sita Ram and Ganesh Ram were at the relevant
time April 11, 1963 working as Pass Clerks in the office of the
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Works Manager.
Bairancr T al and Ram Kishan, though posted as
Khalasis in the Railway Carriage Shop, were associated with the work
of issuing passes in the ottice ul the Works Manager. The office used
to receive applications from Railway employees of the different sections
under the Works Manager duly forwarded by the Foreman Incharge
of the respective sections for issue of the Railway passes. It was the
duty of the office hands to check the correctness of the application
and the genuineness of the signatures of the forwarding officers before
preparing the passes in the Railway Pass Books maintained by them.
After checking, preparing and initialling the passes they were put to
the Works Manager. If the passes were meant for a local line, they
were put to the Chief Clerk of the Works Manager's office for signature.
Thereafter, it was the duty of the Clerks to send the passes to
the concerned sections with acknowledgement slips, and the Foreman
of the section was expected to pass
them on to the
applicants
concerned.
According to the prosecution case, during this period from December 23, 1961 and April 11, 1963, Bajrang Lal, Ram Kishan, Sita
Ram an.d Ganesh Ram, all hatched a conspiracy for securing passes
on forged applications.
The scheme, as untolded at the trial was that
false and forged applications were prepared in collaboration by Bajrang
Lal and Ram Kishan with the object of causing wrongful loss to the
Railway.
The prosecution has brought material on the record to show that
15 forged applications were prepared by them to secure such passes.
Ex. P-46 is one of such applications prepared in the name of one
Narain (P.W. 6). It is admittedly in the hand of Ram Kishan, appellant. It bears the endorsement purporting to be under the signature
of the forwarding officer, Kishan (P.W. 20). The signature on this
forwarding endorsement is in the hand of Bajrang Lal.
The passes
Exts. P-4 7 and P-48 were prepared by Ram Kishan.
They · were
checked by Sita Ram.
Ram Kishan prepared the acknowledgement
receipt in respect of the passes, Exts. P-47, and P-48, on Ext. P-140
to show that they had. been delivered to the persons in whose names
they were prepared.
·
Similarly, the forged application, Ext. P-78,
was prepared by
Bajrang Lal, while the Pass, Ext. P-79, in respect thereof was prepared
by Ram Kishan.
The slip Ext. P-140 containing an entry about tlie
pass Ext. P-79 was prepared by Ram Kishan.
The application Ext. P-87 was written by Bajran!( Lt>!, while the
acknowledgement receipt Ex. P-88 in the slip Ex. P-140 was prepared
by Ram Kishan.
Ram Kishan also prepared the false acknowledgement receipt, Ex. P-76, and the acknowledgement receipt in respect
of Pass No. 812080 in the slip, Ex. P-140.
On the preceding facts, Sita Ram, Ganesh Ram, Bajrang Lal and
Ram Kishan were tried in respect of offences under ss. 120B. 420,
465, 471, Penal Code and under s. 5(1)(d) read with s. 5(2) of
the Prevention of Corruption Act, 194 7, by the Special Judge.
Sita
Ram and Ganesh Ram were acquitted of all the charges. Bajrang
..
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BAJRANG LAL v. RAJASTHAN (Sarkatia, J.)
499
Lal and Ram Kishan were convicted on charges under ss. 420, 468 and
471, Penal Code and sentenced to one year's rigorous imprisonment
and a fine of Rs. 200/- each on each of these counts.
They were
further convicted under s. 120B, Penal Code and sentenced to 6 months'
rigorous imprisonment, each.
They
were. also
convi~ted under
s. 5(1) (d) read withs. 5(2) ofthe Prevention of Corruption Act and
sentenced to one year's rigorous imprisonment and a fine of Rs. WO/-,
each. It was not thought necessary to record a separate conv1c!Ion
under s. 465, Penal Code.
The sentences on all the counts were
directed to run concurrently.
On appeal by the convicts, the High Court set aside their conviction
under ss. 420, 468 and 471, Penal Code.
It, however, maintained
their conviction and sentence in respect of the offence under s. l 20B,
Penal Code and s. 5(1)(d) read with s. 5(2) of the Prevention of
Corruption Act.
It further altered the conviction of the appellant
under s. 468/471, Penal Code to one under s. 465, Penal Code and
reduced the sentence on this count to six months' rigorous imprisonment with a fine of Rs. 200/- only.
Hence this appeal by the convicts, Bajrang Lal and Ram Kishan.
Bajrang Lal has since died.
Ram Kishan's appeal only survives
for decision.
The first contention of Shri A. N. Mulla appearing for the appellants is, that Ram Kishan and Bajrang Lal were not 'public servants'
within the definition of the term in s. 21, Penal Code. It is urged
that the High Court was wrong in assuming that at the relevant time
every person in the service or pay of the Government was a 'public
servant' within the meaning of clause (10) of s. 21, Penal Code.
Sub-Clause (a) of clause (10) of s. 21, it is pointed out, was introduced by the Amending Act 40 of 1964 and not by Act 2 of l 9S8
referred to by the High Court in its judgment. In the alternative, it
is submitted that clause (9) of s. 21 a1so, as it stood at the relevant
time, did not cover the case of. the appellants, Ram Kishan and
Bajrang Lal, because they were mere khalasis or menial servants and
not "officers in the service or pay of the Government", within the
contemplation of that clause.
We are unable to accept these contentions.
True, that the High
Court has wrongly referred to the Amending Act of 1958.
The
relevant
period
is from December 23, 1961 to April 11, 1963.
Gause (9) of s. 21 as it stood at that time, was as follows :
"Ninth.-Every officer whose duty it is, as sach officer
to take, receive, keep, or expend any property on behalf of
the Government or to make any survey, assessment, or
contract on behalf of the Government or to execute any
revenue-process, or to investigate, or to report, on any
matter affecting_ the . pecuniary interest of the Government,
or to make, authenticate or keep any document relating to
the pecuniary interests of the Government or to prevent the
!nfraction of any law for the protection of the pecuniary
mterests of the Government and every officer in the service
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or pay of the Government or remunerated by fees or commission for the performance of any public duty."
The question, is whether the appellants, Ram Kishan and Bajrang
Lal, were "officers in the service or pay of the Government" within the
meaning of this clause 'I The term 'officer' has not been defined
by the Code.
Mr. Mulla contends that the appellants were not "officers" withiO
the contemplation of this clause, because-( a) they were mere
Khalasis and, as such, were not exercising any delegated function
of the Government, and (b) they were never appointed to P"form
any public duty in the office of the Works Manager.
In this connection. reference has been made to
Reg
v.
Ramajivrao( 1)
and
N/zamuddin v. E. ( 2).
In Ramajivrao's case (supra), the Bombay High Court held that
the word 'officer' in this clause means "some person empkyed 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."
Ramajivrao's case was noticed by a Bench of the Calcutta High
Court in Nizamuddin v. Queen Empress (supra) and it was ruled
that an 'officer' within the terms of s. 21, clause Ninth of the Penal
Code is one who is appointed to some office for the performance of
some public duty.
Accordingly, it was held thot a pe0n attached
to the office of the Superintendent of the Salt Department was an
officer in the service or pay of the Government and as such was ll
public servant.
The meaning of the term 'officer' was considered by the Lahore
High Court also in Abad Shah v. Emperor (3). It was opined that
the term 'officer' in the aforesaid cl~use means a functionary or holder
of some officium or office, however humble to whom in some degree
are delegated certain functions of the Government.
These cases were considered by this Court in G. A. Mnnterio
v. State of Ajmer( 4 ). Approving the law enunciated by the Calcutta
High Conrt in Nizamuddin's case (supra), the Court speaking through
Bhagwati J .. explained the position, thus :
"The true test. ... in
ord~r to determine whether a
person is an officer of the Government is :
(1) whether he is in the service or pay of the Government. and
(2) whether he is entrusted with the performance of
any public duty,
---
(1) (1875) 12 Born. H.C. R. 1.
(3) A.I.R. 1918 Lah. 152.
(2) I.LR. 28, Cal. 344.
(4) [19561 S.C.R. t<:<.
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BAJRANG LAL v. RAJASTHAN (Sarkaria, !.)
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If both these requirements are satisfied it matters ~ot
the least what is the nature of his office, whether the duties
he is performing are of an exalted character or very humble
indeed."
By the application of these tests, in the above case, it wa~ held
that a Class III servant working as a Metal Examiner under the
control of the Railway Works Manager, was an "officer" of the
Government within the meaning of s. 21, Clause Ninth, Penal Code.
The instant case is within the
ratio of the decision in
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Monterio v. State of Aimer (supra). As was pointed out in that
case, the Railway Works Manager is an officer of the Government,
armed with some amhor,ty or representative character qua the Government.
The appellants were holding the posts
of Khalasis
in
the
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Railway Carriage Section, but were actually allowed to deal with the
preparation and issuance of Railway Passes in the Office of the Works
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Manager and as such they were, in fact, performing public duties
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and d1scharg.ng publ:c functions auxiliary to
those of
the
Works
Manager and his office.
On "the strength of the evidence" and the
statement of the accused, the trial court unhesitatingly found it as an
"established fact that Bajrang Lal and Ram Kishan worked in the
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Pass Section".
This finding which is borne by the evidence of Sadhu
Ram (P.W. 32), the Head-Clerk of the Works
Mana~er, Mohd.
Sajjad (P.W. 19) a.ld Mohd. Ibrahim (P.W. 34), was affirmed by
the High Court.
We also find no good
reason
to
disturb
this
concurrent finding of fact.
Thu.s, the position that emerges is that although Bajrang Lal and
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Ram K1shan were not formally appointed -to work in the Pass Section,
the posts held by them being of Khalasis drawing pay from the
Railway Carriage Secti0n. their services were actually ut lised in the
Pass Section of the Office of the Works Manager.
The appellant
was, therefore, in actual possession of the situation of a public servant, and in view of Explanation II to s. 21, Penal Code, would
be a 'public servant' notwithstanding the defect in his right to hold
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that situation.
We therefore negative the contention of Mr. Mulla and hold that
the •appellant Ram Kishan was a 'public servant' within the
9th
Clause of s. 21, Penal Code a!!' it stood at the material time. Consequently, the appellant's conviction for an offence under s. 5 (I) ( d)
read with s. 5(2) of the Prevention of Corruption Act cannot be
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assailed on that score.
It is next contended on behalf of the appellant that he had admitted
only the execution of the body writing of the application Ex. P-46,
and not the signature thereon purporting to be that of Narain.
The
point sought. to .be made out is that without signature, the body writing
of the apphcat1on would not be a "document" as defined in s. 29,
nor would the mere scribing of the application amount to "forgery"
under s. 463 or to 'making a false document' within the meaning
of s. 464, Penal Code.
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The contention mnst be repelle,tl.
There is no record before us
to show that Ram Kishan appellant' had specifically denied the execution of that part of the writing which purports to be the signature of
"Narayan" applicant.
No request was made by the appellant for
summoning the original record.
On the contrary, from the judgments
of the courts below, it appears that Ram Kishan had categorically
admitted that the application, Ex. P-46, had been written by him.
Narayan (P.W. 6) testified that he had made no such application,
nor had he ever asked the appellant to scribe it.
The witness unequivocally stated that this application does not bear his signature.
Narayan's evidence has been believed by the courts below.
There
was thus no doubt whatever that this application including the signature thereon, is a false document. The passes, Ex. P-47, P-48, P-78'
and the receipt, P-88, were also proved to be in the hand of the
appellant. The charge under s. 465 was thus fully brought home t(}
him.
The charge of criminal conspiracy to prepare and obtain false·
Railway Passes with a view to cause wrongful loss to the Railway
had been fully established against R,am Kishan and Bajrang Lal. The
forged Passes Ex. P-4 7 and P-481 were admittedly in the hand of
Ram Kishan, and the forwarding1 endorsement on the application
Ex. P-46 pursuant to which these [orged Passes were prepared, was
proved to be in the hand of Bajr~ng Lal.
Kishan (P.W. 20) who
was supposed to have.made and signed this forwarding endorsement,
testified that this writing did not bear his signature.
Again, Bajrang
Lal made the false entries in the Railway Pass Book in respect of
the Passes, Ex. P-4 7, P-48, Ram Kishan then prepared t)i_e acknowledgement receipt on Ex. P-140 showing that these Passes had been
delivered to the persons in whose names they were prepared.
Similarly, the forged application, Ex. P-78, was prepared by Bajrang
Lal and the ·Pass relating thereto was prepared by Ram Kishan. The
slip in
re~pect of this forged Pass is also in the band of Ram
Kishan. Another instance was furnished by the application Ex. P-87
which was in the hand of Bajrang Lal, while the acknowledgement
receipt Ex. P-88 was prepared by Ram Kishan.
From the concerted conduct of Bajrang Lal and Ram Kishan in
preparing these forged writings, it could unerringly be inferred that
they had agreed to prepare forged RaHway Passes with the intention
of causing wrongful loss to the Railway.
And, in pursuance of the
conspiracy they did prepare the fotged passes aforesaid.
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We therefore find no good re4son to disturb. the conviction of
the appellant recorded by the High :Court in respect of offences under
ss. 120·B, 465, Penal Code
and' s. 5(2) of the
Prevention
of
Corruption Act.
Lastly Mr. Mulla submitted that the appellant was only a small
fry.
The bigger fish, the clerks had gone scot free and therefore
it was unfair to inflict so harsh a sentence on the appellant
Might
be that some bigger partners in the crime have escaped punishment
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BAJRANG LAL v. RAJASTHAN (Sarkaria, l.)
503
for want of proof. But the sentence awarded to the appellant is
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the minimum prescribed by law for an offence under s. 5(2) of the
Prevention of Corruption Act.
The Court had no
discretion
to
. inflict a lesser sentence on that count.
For tbe foregoing reasons, we dismiss this appeal and uphold the
conviction and sentence of tbe appellant.
V.P.S.
Appeal dismissed.