# G. A. MONTERIO v. THE STATE OF AJMER

- **Citation:** [1956] 1 S.C.R. 682
- **Court:** Supreme Court of India
- **Decided:** 1954-11-07
- **Case number:** Criminal AppealNo. 146 of 1954
- **Bench:** Bhagwati, Jafer Imam, Govinda Menon
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-a-monterio-v-the-state-of-ajmer-1257
- **Pages:** 9

## Headnote

"Officer"-Tests to determine who is an
10.ffi.cer'-Metal ea;aminer1
called chaser, in Railway Carriage workshop-Whether officerI ndian Penal Code (Act XLV of 1860), s. 21(9)-Prevention of Cor·
ruption Act (II of 1947), s. 2.
The appellant was a Class III servant employed as a metal
examiner, also called chaser. in the Railway Carriage Workshop e.t
Aimer.
He . accepted a sum of Rs. 150 as illegal gratification for
securing a job for some person. He was . charged under s. li(l)(d)
of t·he Prevention of Corruption Act, 194 7 (Act II of 194 7). 'The
appellant contended that he was not an "officer" within the meaning of the term used in s. 21(9) of the Indian Penal Code and so
could not he a public servant for purposes of Act II of 1947. It was
found that the appellant was working under the Works Manager who
was certainly an officer of the Government and the duties which he
performed were' immediately auxiliary to those of the Works Manager
who was also armed with some authority or representative character
qua the Government.
Held, that the appellant was an officer -within the meaning of
s. 21(9) of the Indian Penal Code and, therefore, a ·public servant
within the meaning of s. 2 of Act II of 194 7.
The true test in order to determine whether a person is an
officer of the Government, is:-
(1) whether he ie in the service -or pay of the Government,
and
(2) whether · he ie entrusted with the performance of any
public duty.
The public duty may be eilhet a function ·of the Government
delegated to him or·may be a duty immediately auxiliary to)hat of
someone who is an officer of the Government.
Reg. v. Ramajirav Jivbajirav ((1875) XII Bom. H.C.R. 1), ex•
plained.
Nazamuddin v. Que1111·Empress, ((1900] I.L.R. 28 Cal. 344) •J:!d
Ahad Shah v. Emperor, (A.I.R. 1918 Lah. 152), relied on.
CRIMIN.AL APPELLATE JuRISDIOTION: Criminal
AppealNo. 146 of 1954.
Appeal from the judgment and order dated the
~7th November 1954 of the Court of Judicial Com-
S.C.R.
SUPREME COURT REPORTS
683
m1ss10ner at Ajmer in Criminal Appeal No. 15 of
1954 arising out of the judgment and order dated
25th August 1954 of the Court of Special Judge at
Ajmer in Criminal Case No. 5 of 1953.
B. P. Maheshwari, for the appellant.
0. K. Daphtary, Solicitor-General for India, Porus
A. Mehta, H. R. Khanna and IR. H. Dhebar, for the
respondent.
1956, September 21. The Judgment of the Court
was delivered by
BHAGWATI J.-This Appeal with a certificate of
fitness under article 134(l)(c) of the Constitution
against the decision of the Judicial Commissioner at
Ajmer raises an important question as to the connotation of the word "officer" contained in section
21(9), Indian Penal Code.
The appellant was a Class III servant employed as
a metal examiner, also called Chaser, in the Railway
Carriage Workshops at Ajmer. He was charged under
section 161, Indian Penal Code with having accepted
from one Nanak Singh currency notes of the value of
Rs. 150. as illegal gratification as a motive for securing a job for one Kallu. He was also charged under
section 5(1)(d) of Act II of 1947 with abusing his
position as a public servant and obtaining for himself
by corrupt or illegal means pecuniary advantage in
the shape of Rs. 150 from the said Nanak Singh. He
was further charged with having committed an
offence under section 420, Indian Penal Code for
having induced the said Nanak Singh to deliver to
him currency notes of the value of Rs. 150 by dishonest representation that he could secure a job for
the said Kallu. The learned Special Judge, State of
Ajmer, who tried him in the first instance for the
said offences convicted him of the offence under- section 161, Indian Pena.I Code as also the offence under
section 5(1)(d) of Act II of 1947 and sentenced him
to suffer rigorous imprisonment for six months and
one year respectively in regard to the same, both
the sentences to run concurrently.
In so far,
89
1956
G. A •. Monterio
v.
The State of Ajmer
684
SUPREME COURT REPORTS
[1956]
1956
however, as it

## Text

1956
Septembef' 21
682
SUPREME COURT REPORTS
[1956)
G. A. MONTERIO
v.
THE STATE OF AJMER.
[BHAGWATI, JAFER IMAM and GOVINDA MENON JJ.)
"Officer"-Tests to determine who is an
10.ffi.cer'-Metal ea;aminer1
called chaser, in Railway Carriage workshop-Whether officerI ndian Penal Code (Act XLV of 1860), s. 21(9)-Prevention of Cor·
ruption Act (II of 1947), s. 2.
The appellant was a Class III servant employed as a metal
examiner, also called chaser. in the Railway Carriage Workshop e.t
Aimer.
He . accepted a sum of Rs. 150 as illegal gratification for
securing a job for some person. He was . charged under s. li(l)(d)
of t·he Prevention of Corruption Act, 194 7 (Act II of 194 7). 'The
appellant contended that he was not an "officer" within the meaning of the term used in s. 21(9) of the Indian Penal Code and so
could not he a public servant for purposes of Act II of 1947. It was
found that the appellant was working under the Works Manager who
was certainly an officer of the Government and the duties which he
performed were' immediately auxiliary to those of the Works Manager
who was also armed with some authority or representative character
qua the Government.
Held, that the appellant was an officer -within the meaning of
s. 21(9) of the Indian Penal Code and, therefore, a ·public servant
within the meaning of s. 2 of Act II of 194 7.
The true test in order to determine whether a person is an
officer of the Government, is:-
(1) whether he ie in the service -or pay of the Government,
and
(2) whether · he ie entrusted with the performance of any
public duty.
The public duty may be eilhet a function ·of the Government
delegated to him or·may be a duty immediately auxiliary to)hat of
someone who is an officer of the Government.
Reg. v. Ramajirav Jivbajirav ((1875) XII Bom. H.C.R. 1), ex•
plained.
Nazamuddin v. Que1111·Empress, ((1900] I.L.R. 28 Cal. 344) •J:!d
Ahad Shah v. Emperor, (A.I.R. 1918 Lah. 152), relied on.
CRIMIN.AL APPELLATE JuRISDIOTION: Criminal
AppealNo. 146 of 1954.
Appeal from the judgment and order dated the
~7th November 1954 of the Court of Judicial Com-
S.C.R.
SUPREME COURT REPORTS
683
m1ss10ner at Ajmer in Criminal Appeal No. 15 of
1954 arising out of the judgment and order dated
25th August 1954 of the Court of Special Judge at
Ajmer in Criminal Case No. 5 of 1953.
B. P. Maheshwari, for the appellant.
0. K. Daphtary, Solicitor-General for India, Porus
A. Mehta, H. R. Khanna and IR. H. Dhebar, for the
respondent.
1956, September 21. The Judgment of the Court
was delivered by
BHAGWATI J.-This Appeal with a certificate of
fitness under article 134(l)(c) of the Constitution
against the decision of the Judicial Commissioner at
Ajmer raises an important question as to the connotation of the word "officer" contained in section
21(9), Indian Penal Code.
The appellant was a Class III servant employed as
a metal examiner, also called Chaser, in the Railway
Carriage Workshops at Ajmer. He was charged under
section 161, Indian Penal Code with having accepted
from one Nanak Singh currency notes of the value of
Rs. 150. as illegal gratification as a motive for securing a job for one Kallu. He was also charged under
section 5(1)(d) of Act II of 1947 with abusing his
position as a public servant and obtaining for himself
by corrupt or illegal means pecuniary advantage in
the shape of Rs. 150 from the said Nanak Singh. He
was further charged with having committed an
offence under section 420, Indian Penal Code for
having induced the said Nanak Singh to deliver to
him currency notes of the value of Rs. 150 by dishonest representation that he could secure a job for
the said Kallu. The learned Special Judge, State of
Ajmer, who tried him in the first instance for the
said offences convicted him of the offence under- section 161, Indian Pena.I Code as also the offence under
section 5(1)(d) of Act II of 1947 and sentenced him
to suffer rigorous imprisonment for six months and
one year respectively in regard to the same, both
the sentences to run concurrently.
In so far,
89
1956
G. A •. Monterio
v.
The State of Ajmer
684
SUPREME COURT REPORTS
[1956]
1956
however, as it was not proved that the appellant
did not believe when lie accepted the money that
G. A. Monterio
he could secure or would try to secure a job for Kallu,
The stat;~! Ajmor it was held that no case under section 420, Indian
_
Penal Code was made out and· he was acquitted of
Bhagwati J.
that charge.
The appeal taken to the Judicial Commissioner,
State of Ajmer, by ~he appellant failed and on the
10th December, 1954, the learned Judicial Commissioner granted to the appellant a certificate of fitness
for appeal on two main grounds, viz., (l) whether the
appellant was an "officer" within the meaning of
clause (9) of section 21, Indian Penal Code, and (2)•
whether the provisions of section 137 of the Railways
Act excluded all"railway servants from the definition
of public servants except for purposes of Chapter IX,
Indian Penal Code.
Concurrent findings of fact were reached by both
the Courts below on the question as to whether the
appellant accepted Rs.150 from Nanak Singh as and
by way of illegal gratification and these findings could
not be and were not challenged before us by the.
learned counsel for the appellant. The only questions
which were canvassed before us were the two legal
points which formed the basis of the certifrcate of
fitness for appeal granted by the learned Judicial
Commissioner, State of Ajmer, to the appellant.
The second question has now become academical in
the facts of the present case by virtue of a decision
of this Court in Ram Krishan v. Delhi State('), which
lays down that before the amendment of section 137
of the Railways Act by Act 17 of 1955 railway
servants were treated as public servants only for the
purposes of Chapter IX, Indian Penal Code, but in
any event they were public servants under the Prevention of C.orruption Act (Act II of 1947). In so
far as the appellant has, in om opinion, been rightly
convicted of the offence under section 5(1 )( d) of Act
II of 1947 and awarded the sentence of rigorous imprisonment for one year, the question whether he was
rightly convicted of the offence under section 161,
(1) A.I.R. 1966 SC. '76.
S.C.R.
SUPREME COURT REPORTS
685
Indian Penal Code for which he was awarded the
1956
lesser sentence of six months' rigorous imprisonment
0 A M t
.
has become merely academical and the only question
· · v~n eno
which remains to be considered by us here is whether The state of Ajmer
he was an "officer" within the meaning of section 21
(9), In.dian Penal Code.
BhagwatiJ.
The provisions of law in regard to the first question
may be conveniently set out at this stage:-
Section 2 of the Prevention of Corruption Act II of
1947 provides:-
"for the purposes of this Act "public servant"
means a public servant as defined in section 21 of the
Indian Penal Code".
Section 21, Indian Penal Code provides so far as is
relevant for the purposes of the present appeal:-
"The words 'public servant' denote a person
falling under any of the descriptions hereinafter
following, namely,
Ninth ............................ and every officer in the
service or pay of the Government or remunerated by
fees or commission for the performance of any public
duty".
There is no doubt that the appellant was in the
service or pay of the Government and was performing the duty of a metal examiner known as Chaser in
the Railway Carriage Workshops at Ajmer and was
thus performing a public duty.
It was, however, contended that the appellant was
not an officer within the meaning of that term as
used in section 21 (9), Indian Penal Code. An Officer,
it was contended, on the authority of Reg. v. RamajiravJivbajirav and another(1), meant one to whom was
delegated by the supreme authority some portion of
its regulating and coercive powers and who was
appointed to represent the State in its relations to
individual subjects. According to the dictum of West
J., the word "officer" meant some person employed
to exercise to some extent and in certain circumstances a delegated function of Government. He was
either himself armed with some authority or repre-
(ll XII Bom. H.C.R l,
1956
686
SUPREME COURT REPORTS
[1956]
.sentative character or his duties were immediately
auxiliary to those of some one who was so armed.
v.
It was, therefore, contended that the appellant being
Th• State of Ajmer a metal examiner known as Chaser in the Railway
G. A. Monterio
Bha gwati J,
Carriage Workshops had .not delegated to him by the
supreme authority some portion of its regulating ii,nd
coercive powers nor was he appointed to represent
the State in its relations to individual subjects.
He
was neither armed with some authority' or representative character nor were his duties immediately
auxiliary to those of some one who was so armed. He
was not employed to exercise to some extent and in
cettain circumstances the delegated function of Government and, therefore, was not an "officer" within
the meaning of that term as used in section 21 (9),
Indian Penal Code.
If he was thus not an officer of
the Government, he could not be a public servant
within the meaning of section 21, Indian Penal Code
nor could he be a public servant for the purposes of
Act II of 1947 and could not be convicted of the
offence under section 5(l)(d) of Act II of 1947.
It has to be noted, however, that the case before
the learned Judges of the High Court of Bombay in
12 Bombay High Court Reports 1, concerned an
Izaphatdar, that is a lessee, of a village who had
undertaken to keep an account of its fores~ revenue
and pay a certain pro}Jortion to the Government, keeping the remainder for himself and the question that
arose for the consideration of the Court was whether
such a person was an officer within the meaning of
section 21(9), Indian Penal Code. It was in this context that the aforesaid ol:;>servations were made by
West, J., and the Court came to the conch1sion that
Deshmukhs and Deshpandes would be sufficiently
within the meaning of the clause they being appointed
to perform for the State a portion of its functions or
to aid those who were its active representatives but
not so an Izaphatdar or the lessee such as the accused.
He was not an officer but a mere contractor bound by
his engagement but not by the terms of his office or
employment to pay a certain proportion to the Government.
There was no delegation to him of any
S.C.R.
SUPREME COURT REPORTS
687
authority for coercion or interference nor was he an
7956
assistant appointed to help any one who was vested
G A M
.
with such authority. The duties which he performed
· · v~nterio
were contractual duties fraudulent deception in the The state of Afmer
discharge of which might subject him to punishment
for cheating but not duties attached to any office
BhagwatiJ.
conferred on him or his predecessor in title, failure to
perform which with integrity could make him liable,
as an officer, to the special penalties prescribed for
delinquent public servants.
This decision in 12 Bombay High Court Reports 1,
came to be considered by the Calcutta High Court in
Nazamuddin v. Queen-Empress(1).
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 clause (9) of
section 21, Indian Penal Code which declared "every
officer in the service or pay of Government" was a
public servant 'because he was not an officer. The case
of Reg. v. Ramajirav Jivbajirav(2) was cited in support
of that contention and the learned Judges of the Calcutta High Court observed at page 346 as under:-
"The learned Judges in that case had to consider
whether a lessee from Government was on the condi-
-
tions of his lease a public servant, and, in doing so,
they considered generally the meaning of the term
"officer". 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 du ties are immediately auxiliary to thoRe of some person who is so
armed". The meaning which we are asked to put on
these 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
(1) I.L.R. 28 Cal. 344.
l21 XII Bom. H.C.R. 1.
688
SUPREME COURT REPORTS
(1956)
7956
nature of his duties is not stated, because this objection was not taken at the trial, but we must take it
G. A. Monterio
v.
that, from the nature of his appointmen~ it was his
The State of Ajmer duty to carry out the orders of his official superior,
-
who undoubtedly is a public servant, and in that
BhagwatiJ.
capacity to assist the Superi.ntendent 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 of the 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 s. 21, cl. 9".
The true test, therefore, in order 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 t)le performance
of any public duty.
If both these requirements are sa.tisfied it matters
not the least what is the nature of his office, whether
the duties he is performing are of an exalted character
or very humble indeed. As has been stated in
BaQon's Abridgment at Vol. 6, page 2, in the article
headed "Of the nature of an officer and the several
kinds of officers":-"The word 'officium' principally
implies a duty, and in the next place, the charge of
such duty; and that it is a rule that 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". The next paragraph thereafter
may also be referred to in this context:-"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.
(Vide 12 Bombay High Court Reports 1 at page 5).
S.C.R.
SUPREME COURT REPORTS
689
This wae the sense in which the decision in 12
1956
Bombay High Court Reports 1, was understood by
G. A. Monterio
the learned Judg~s of the Lahore High Court in Ahad
v.
Shah v. Emperor() when they observed at page ,157:- The State of Ajmer
"But it is not enough tha.t a person should be in
the pay or service of Government to constitute him a
BhagwatiJ.
public eervant within the meaning of s. 21 (ninthly),
I.P.C. He must also be an "Officer". That expression is not, of course, to be restricted to its colloquial
meaning of a Commissioned or non-Commissioned
Officer; it means a functionary or holder of some
"officium" or office. The office may be one of dignity or
importance; it may equally be humble. But whatever
its nature, it is essential that the person holding the
office, should have in some degree delegated to him
certain functions of Government".
The question for consideration before the learned
Judges of the Labore High Court was whether a
Quarter Master's clerk was a public servant within the
meaning of that expression ·in section 21, Indian
Penal Code. On the facts elicited before them the
learned Judges came to the conclusion that the
Quarter Master's clerk as such was just a Babu and
no more 'an officer' than a labourer or menial employed
and paid by Government to do public work (See Queen
v. Nachimuttu(2)).
If therefore on the facts of a particular case the
Court comes to the conclusion that a person is not only
in the service or pay of the Government but is also
performing a public duty, he has delegated to him
the functions of the Government or is in any event
performing duties immediately auxiliary to those of
some one who is an officer of the Government and is
therefore 'an officer' of the Government within the
meaning of section 21(9), Indian Penal Code.
Applying this test to the facts of the case before
us, we find that the appellant was a Class III servant
and was employed as a metal examiner known as
Chaser in the Railway Carriage Workshop. He was
working under the Works Manager who was certainly
(1) A.I.R. 1918 Lah. 1G2.
(2) I.L.R. 7 Madras 18.
690
SUPREME COURT REPORTS
(1956)
1956
an officer of the Government and the duties which he
Performed were immediately auxiliary to those of the
G. A. Monterio
v.
Works Manager who, beside being an officer of the
The state of ;ljmer Gover,nment was also armed with some authority or
representative character qua the Government.
The
Bhagwati J.
appellant was thus, even on a narrow interpretation
of the dicta of West, J. in 12 Bombay High Court
Reports 1, an officer in the service or pay of the Government performing as such a public duty entrusted
to him by the Government and was therefore, a public
servant within the meaning of section 21 of the Indian
Penal Code.
·This being the true legal position, this contention
of the appellant also does not avail him and the first
question must be answered against him.
The appellant was, therefore, an officer within the
meaning of section 21 (9) and therefore a public
servant within the meaning of section 21, Indian
Penal Code and being such public servant he fell
within the definition of a public servant contained in
section 2 of the Prevention of Corruption Act II of
1947. He was, therefore, on the facts and circumstances of the case, rightly convicted under section
5(1) (d) of Act II of 1947.
His conviction and the
sentence imposed upon him by the Courts below were
therefore quite in order and this appeal must therefore stand dismissed.