# ) ~-- DAITATRAYA NARAYAN PATIL v. STATE OF MAHARASHTRA

- **Citation:** [1975] Supp. 1 S.C.R. 145
- **Court:** Supreme Court of India
- **Decided:** 1975-04-16
- **Case number:** Criminal Rcv1s10n B Appln. No. 1129 of 1971
- **Bench:** N. L. Untwalia, S. Murtaza Fazal- Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/daitatraya-narayan-patil-v-state-of-maharashtra-6452
- **Pages:** 6

## Headnote

I.P.C. Sec. 21, 353, 355--Public servant-Duty assigned to a public servant by an executive order whether public duty.
Shri Antulay,. ::, Minister presided over a meeting of the District Advisory
Committee. The appellant attendeci.' that meeting as an M.L.A. and his bro14 5
A
B
ther attended as a Sabha-Patai of the Building Deprtment of the Zila Parishad.
C
According to the prosecution, the appellant and his brother assaulted
Shri
Antulay, a public servant in the execution of his duty, a.s such public servant
within the meaning of Sec. 353 of the Code.
The Magistrate held that
Shri Antulay \vas a public servant and that, therefore, the charge could be
frameQ under Section 353.
On revision, the Sessions Court held that charges
coulQ' be framed against the appe1lant under Sec. 353 and 355 of the Code.
A revision petition filed b}' the appellant in the High Court was dismissed.
On appeal by Special Leave, it was
contended before this Court by the
D
appellant:
(1) That the District Advisory Committee
is not a Statutory
Committee. It was constituted under an administrative order of the
Government. It exercised no Governmental authority. Its function
is onJy to make recommendations to the Government.
(2) The Chairman presiding at a meeting of the Committee is
not acting as a Public servant.
(3) When an assault was made or criminal force was used against
the Chairman as alleged by the prosecution at such a meeting it
was directed against the person presiding at the meeting and
not
against a public servant.
E
( 4) A Minist~r may be a public servant but while presiding over
a meeting of the Advisory Committee he was not functioning as a
F
Minister but as a Chairman.
.
(5) That the Judicial Magistrate committed an error of law in
treating the chargesheet ~ a complaint and framing the
charge:
against the appellant for a non-cognizable offence under section 355/511
of the Code.
Dismissing the appeal,
. HEID : The District Advisory Committee V.'as constituted by a notification of _th~ Gove~nment of Maharashtra f~r. the purpos~ _of reviewing
the
work of Zda Par~shad and Panchayat Sam1t1es.
The M1n1ster a public servant was the Chatrman of the Committee. The Divisional Commissioner was
to be the: convenor and t?e Deputy Commissioner was to act as the Secretary .. They were all pubhc servants.
The duty assigned to a public servant
by. hrn. master \\'hether. under a stat~te or by the executive order, will assume
the character of pubhc_ duty
provided the duty
assigned is not illegal or
against the public policy.
[148B-C, 149-B-C]
·
Shri AntuJay, therefore, was a public servant.
CRIMINAL APPELLATE J URJSDICTJON ; Criminal Appeal No. 257
of 1972.
G
H
146
SUPREME COURT REPORTS
[1975] SUPP. S.C.R.
A
Appeal by special leave from the judgment and order dated the
t
29th June, 1972 of the Bombay High Court in Criminal Rcv1s10n
B
Appln. No. 1129 of 1971.
·
M. C. Bhandare, R Nagaratnam and Manju Jaitley, for
appellant.
H. R. Khanna, for the respondent.

## Text

i
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)
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DAITATRAYA NARAYAN PATIL
v.
STATE OF MAHARASHTRA
April 16, 1975
[N. L. UNTWALIA AND S. MURTAZA FAZAL- ALI, JJ.J
I.P.C. Sec. 21, 353, 355--Public servant-Duty assigned to a public servant by an executive order whether public duty.
Shri Antulay,. ::, Minister presided over a meeting of the District Advisory
Committee. The appellant attendeci.' that meeting as an M.L.A. and his bro14 5
A
B
ther attended as a Sabha-Patai of the Building Deprtment of the Zila Parishad.
C
According to the prosecution, the appellant and his brother assaulted
Shri
Antulay, a public servant in the execution of his duty, a.s such public servant
within the meaning of Sec. 353 of the Code.
The Magistrate held that
Shri Antulay \vas a public servant and that, therefore, the charge could be
frameQ under Section 353.
On revision, the Sessions Court held that charges
coulQ' be framed against the appe1lant under Sec. 353 and 355 of the Code.
A revision petition filed b}' the appellant in the High Court was dismissed.
On appeal by Special Leave, it was
contended before this Court by the
D
appellant:
(1) That the District Advisory Committee
is not a Statutory
Committee. It was constituted under an administrative order of the
Government. It exercised no Governmental authority. Its function
is onJy to make recommendations to the Government.
(2) The Chairman presiding at a meeting of the Committee is
not acting as a Public servant.
(3) When an assault was made or criminal force was used against
the Chairman as alleged by the prosecution at such a meeting it
was directed against the person presiding at the meeting and
not
against a public servant.
E
( 4) A Minist~r may be a public servant but while presiding over
a meeting of the Advisory Committee he was not functioning as a
F
Minister but as a Chairman.
.
(5) That the Judicial Magistrate committed an error of law in
treating the chargesheet ~ a complaint and framing the
charge:
against the appellant for a non-cognizable offence under section 355/511
of the Code.
Dismissing the appeal,
. HEID : The District Advisory Committee V.'as constituted by a notification of _th~ Gove~nment of Maharashtra f~r. the purpos~ _of reviewing
the
work of Zda Par~shad and Panchayat Sam1t1es.
The M1n1ster a public servant was the Chatrman of the Committee. The Divisional Commissioner was
to be the: convenor and t?e Deputy Commissioner was to act as the Secretary .. They were all pubhc servants.
The duty assigned to a public servant
by. hrn. master \\'hether. under a stat~te or by the executive order, will assume
the character of pubhc_ duty
provided the duty
assigned is not illegal or
against the public policy.
[148B-C, 149-B-C]
·
Shri AntuJay, therefore, was a public servant.
CRIMINAL APPELLATE J URJSDICTJON ; Criminal Appeal No. 257
of 1972.
G
H
146
SUPREME COURT REPORTS
[1975] SUPP. S.C.R.
A
Appeal by special leave from the judgment and order dated the
t
29th June, 1972 of the Bombay High Court in Criminal Rcv1s10n
B
Appln. No. 1129 of 1971.
·
M. C. Bhandare, R Nagaratnam and Manju Jaitley, for
appellant.
H. R. Khanna, for the respondent.
The Judgment of the Court was delivered by
the
UNTWALIA, J.-This is an appeal by special leave. The question
C which falls for determination is whether a charge could be legally and
· validly framed on the facts alleged by the prosecution against the appellant under section 353 of the Indian Penal Code-hereinafter called
the code.
D
An incident is said to have taken place in a meeting of the District
Advisory Committee of Kolaba District held on the 22nd of August,
1970 at about 3. 00 p.m. in a panda! near the Nehru Hall at Alibag
under the Chairmanship of Shri A. R. Antulay-a Minister of the
Government of Maharashtra. The appellant was a member of the Legislative Assembly and bis brother was the Sabhapati of the Buikling Department of the Zilla Parishad.
Both of them attended the meeting.
E Certain incidents took place in that meeting, which according to the
prosecution, amounted to assault or use of criminal force by the appellant to the Minister--,a, public servant-in the execution of his duty as
such public servant within the meaning of section 353 of the Code. It
was further alleged that the action of both the brothers also amounted
to assault or use of criminal force to Shri Antulay intending thereby
F to dishonour him, otherwise than on grave and sudden provocation given
by that person, within meaning of section 355.
A complaint of the
incident was lodged with the police.
Inyestigation was made
and
Charge-sheet was submitted in the court of the Judicial Magistrate
at Alibag against both the accused for offences alleged to have been
committed by them under sections 353 and 355 read with section 34
of the Code.
On perusal of the papers in accordance with section 251 A
G
of the Code of Criminal Procedure, 1898 and after hearing the arguments the Magistrate found that Shri Antulay, being a Minister, was
a public servant.
In that capacity he was presiding over the meeting
of the District Advisory Committee of Kolaba District. He, however,
held that the meeting of the Committee was illegal because it was not
convened at the instance of the Commissioner of the Division as required
by the Rules. Hc·aJso held that the appellant who was accused no. 1,
H at the most, had prepared to assault the Minister and not actually
assaulted or used criminal force.
The appellant was discharged by
the Magistrate in relation to the charge under section 353, but a charge
under section 355 read with section 511 was framed against him. flis
brother, accused no. 2, was however completely exonerated and discharged.
•
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D. N. PATIL v. MAl!ARASHT!lA ( Untwalia, J.)
Two revisions were filed before the Sessions Judge, Kolaba-one
. by the State and the other by the appellant.
The State wanted charges
to be framed against the appellant under sections 353 and 355 and
also against accused no. 2. The appellant, however, wanted the Sessions Jndge to quash the charge framed against him under section 355/
511 of the Code.
The learned Sessions Jndge allowed the revision
filed by the State in. part and dismissed the one filed by the appellant.
He directed the framing of charges against the appellant under both
the sections, viz. 353 and 355 of the Code. The discharge of accused
no. 2 was, however, maintained.
The matter was taken further in
revision before the Bombay High Court by the appellant only.
The
High Court has directed the framing of the charge against the appellant
beth under section 353 and 355 of the Code.
Hence this appeal by
special leave.
Learned counsel for the appellant did not canvass before us the
justification of the discharge of the appellant foil the offence under section 353 of the Code on the ground of the allegedly illegal convening
of the meeting of the Advisory Committee. We are, therefore, not called
upon to express any opinion of ours in this judgment in that regard.
Nor should we be deemed to have expressed! any opinion, even by implication, as to the truth or falsehood of the allegations made against
the appellant, or, whether the prosecution by its evidence will be able
to prove the charge against the appellant.
We confine our judgment
to the decision of the only question which falls for our determination.
Learned counsel for the appellant submitted :
(1) That the District Advisory Committee is not a Statutory Committee. It was constituted under an administrative
order of the Government. It exercised no Governmental authority.
Its function is only to make recommendations to the
6overnment.
(2) The Chairman presiding at a meeting of the Committee is not acting as a public servant.
(3) When an assault was made or criminal force was used
against the Chairman as alleged by the prosecution at such a
meeting it was directed against the person presiding at the
meeting and not against a public servant.
( 4) A Minister may be a public servant but while presiding over a meeting of the Advisory Committee he was not
functioning as a Minister but as a Chairman.
( 5) That the Judicial Magistrate committed an error of
law in treating the Charge-Sheet as a complaint and framing
the charge against the appellant for a non-cognizable\ offence
under section 355/511 of the Code .
The decision on the last point urged on behalf of the appellant
would have been necessitated provided the argument advanced on his
behaif in relation to the charge of the cognizable offence under sectio11
147
A
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148
SUPREME COURT REPORTS
[1975] SUPP. S.C.R.
A 353 of the Code would have been well-founded, and correct; otherwise
not.
Since in our opinion it is not so we do not deal with the
last point and take up the discussion of the first four points together,
as really speaking, they are all off-shoots of one and one point only,
namely, whether while presiding over the meeting of the Advisory
Committee the Minister was executing or discharging his duty as a
B pu hlic servant.
.
As stated in the judgment of the High Court the District Advisory
Committee was constituted by a notification of the Government of
Maharashtra, Cooperation and Rural Development Department dated
5-8-1964 for the purpose of reviewing the work of Zilla Parishads and
C Panchayat Samitis.
The circular Ext-15 issued by the Maharashtra
Government on 5-8-1964 was obviously not in exercise of any
statutory power. It was in exercise of the executive power which is
co-extensive with the legislative power of the State. In the circular it
D
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is stated :
"For quite some time Government has had in view the
question of reviewing the working of Zilla Parishads and
Panchayat Samitis (Plan and Development Works) in the
State as a regular feature. It is, therefore, felt that this
object in view can be substantially achieved by holding sixmonthly meetings of Regional Officers,
District Officers,
Office-Bearers of Zilla Parishads and Panchayat Samitis and
M.Ps., M.L.Cs., and M.L.As., under the Chairmanship of
the Minister in-charge of the District.
Government
has,
therefore, decided that such meetings should be convened
twice a year in each of the Districts in the Revenue Division by the Divisional Commissioner in consultation with
the Minister in charge of the District. The meetings should
be held at the Headquarters of the District concerned. The
Deputy Commissioner (Development) of the Division con-·
cerned should work as the Secretary of the Committee.
The
work pertaining to these meetings should be carried out by
the ·Development Branch of the Commissioner's Office and
various actions to be taken as a result of deliberations in these
meetings should be pursued by the Deputy Commissioner
(Development) under the guidance and supervision of the
Divisional Commissioner."
; '
The terms of reference for the working of the Committee as also
its composition were indicated in the subsequent part or the circular.
Under the orders of the Government, therefore, its officers includH ing the Minister of the District were to carry out certain public duties
in connection with the reviewing of the working of Zilla Parishads
and Panchayat Samitis which, of course, were constituted und~r the
statutes.
The Minister, a public servant, was to be the Chamnan
of the Committee. The Divisional Commissioner was to be the convener of the meeting.
The Deputy Commissioner (Development)
of the Division concerned was to act as the Secretary. They were all
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D. N. PATIL v. MAHARASIITR~ ( Untwalia, !.)
149
public servants.
Is it possible to take the view that the Divisional A
Commissioner or the Deputy Commissioner while
performing the
functions aforesaid under orders of the _Governmen) conveyed in the
circular dated 5-8-1964 were performing any private functions and
not public duty ? Obviously it was a part of the public duty assigned
te them by the Government.
The duty assigned to a public servant
by bis master, be it be under a statute or by an executive order, will
assume the character of public duty, provided the duty assigned is
not illegal or against public policy.
Will it make any difference in
the case of a Minister ? In our judgment, not.
The Minister is a
public servant-not disputed.
In accordance with the instructions
iosued by the Government he was to preside over the meetings of
the Advisory Committee.
He was doing so as a Minister and in
execution and discharge of his duty as such public servant.
It is no
doubt true that non-official office bearers and members of the Committee could -not be public servants.
Non-officials appointed to a
Committee constituted under a statute may, under certain circumstances, become public servants within the meaning of section 21 o(
the Code; but surely non-official members of the Committee in question could not be so.
Yet it is wrong to say that the officials and
persons who were public servants discharging their duties as officcbearers and members of the Advisory Committee were not performing
any duty as such public sei;vants.
Any person who was not a public
servant appointed as a Chairman of the Committee may not be a
public servant because the office of the Chairman of the Advisory
Committee is not such that would make him a public servant.
But
the matter. is different when a public servant, under the executive
instructions of the Government, is appointed the Chairman of the
B
Committee.
·
·
Learned counsel for the appellant in support of his submissions
. placed reliance upon two decisions of this. Court viz. Padam Sen and
another v. The State of Uttar Pradesh(') and The State of Gujarat
v.
Manshankar Prabhasankar Dwivedi( 2 ).
Neither
of them
is
apposite and helps the appellant.
In the case of Pa,dam Sen the
appointment of the Commissioner by the Additional Munsif was found
to be null and void; yet it was argued with the aid of Explanation 2
to section 2.1 of the Code that he was a public servant. The argument
was repelled by Raght1bar Dayal, J. c!elivering the judgment on behalf
of the Court at page 890 thus :
"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."
In the case of State of Gujarat v. Dwivedi(2 ) the question arose in
relation to an offence said to have been committed by the respondent
nuder section 161 of the Code and section 5 ( 2) read with section
(') [1961] I SCR 884.
('( [1973] 1 SCR 313:
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SUPREME COURT REPORTS
[J 975) SUPP. S.C.R.
A 5(1)(d) of the Prevention of Corruption Act, 1947.
D.wi_vedi was
a senior lecturer at a Government College.
In that capacity, Ul)-
doubtedly, he was a public servant.
He is alleged to have accepted
the gratification of Rs. 500 other than legal remuneration for showing
favour to a candidate in his capacity as E1'a.miner for Physics Practical in the examination held by the Gujarat University.
He was
B appointed an examiner by the University and1 not by the GovernmenL
in such circumstances it was held that Dwivedi as an examiner of
the University was not a public servant as it had no connection with
!1is being a Government servant.
For the reasons stated above we hold that no interference is called
C for by this Court in the framing of the charge against the appellant
as per the directions of the High Court.
The appeal is, therefore,
dismissed.
' '
P.H.P.
Appeal dismissed.
t
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