# MAHARUDRAPPA DANAPPA KESARAPP AN AV AR v. THE STATE OF MYSORE

- **Citation:** [1962] 1 S.C.R. 129
- **Court:** Supreme Court of India
- **Decided:** 1959-03-27
- **Case number:** Criminal Appeal No. 154 of 1959
- **Bench:** K. Subba Rao, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maharudrappa-danappa-kesarapp-an-av-ar-v-the-state-of-mysore-1969
- **Pages:** 4

## Headnote

Municipality-Chairman of Managing Committee empowered to
order payment of bills'] or fixed recurring charges-If public servant
-Prevention of Corrnption Act, I947· (Act II of 1947), ss. z,
5(2)-Indian Penal Code, (Act 45 of z86o), s. ZI, cl. zo,.-Bombay
District Municipal Act, I90I (Bom. III of z9or), r. 68.
The question arising for determination was whether the
Chairman of the Managing Committee of a Municipality who
could order payment of bills for fixed recurring charges was a
"public servant" within the meaning of s. 21 of the Indian
Penal Code.
Held, that the power to make payment of fixed recurring
charges, such as pay bills, imposed a "duty" on the Chairman
to do so when necessary as the power\vas vested in the Chairman for the benefit of the persons entitled to receive those
recurring charges.
Julius v. Lord Bishop of Oxford, (1880) 5 App. Cas. 214,
referred to.
Section 21, cl. IO of the Indian Penal Code merely requires
that the person should have the "duty" to expend property for
certain purposes and is not restricted to such cases only where
there is no limitation on the exercise of that power of expending
property. The Chairman had the duty to order payment and
spend money of the Municipality in certain circumstances and
as such was a "public servant".
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 154 of 1959.
Appeal by special leave from the judgment and
order dated March 27, 1959, of the Mysore High Court
in Criminal Appeal No. 168 of 1956.
S. N. Andley, J. B. Dadachanji, Rameshwar Nath
and Ravinder Narain, for the appellant.
R. Gopalakrishnan and T. M. Sen, for the respondent.
_.
1961. February 16.
The Judgment of the Court
was delivered by
17
x96.r
February z6.
M aharudrappa
Danappa
Kesarappanavar
v.
The State of
ll1 ysore
Raghubar
Dayal ].
130
SUPREME COURT REPORTS
[1962)
RAGHUBAR DAYAL, J.-This is an appeal by special
leave against the judgment of the High Court of
Mysore at Bangalore confirming the appellant's conviction for an offence under s. 5(2) of the Prevention
of Corruption Act, 194 7 (Act II of 194 7), by the
Special Judge, Dharwar.
The appellant is alleged to have committed the
offence while he was a Municipal Councillor and
Chairman of the Managing Committee of the Navalgund Municipality. The only question for determination in this appeal is whether the appellant was a
'public servant' contemplated by s. 2 of the Prevention of Corruption Act. The contention for the appellant is that he was not such a 'public servant'.
Section 2 of the Prevention of Corruption Act
reads:
"For the purposes of this Act, 'public servant'
means a public servant as defined in section 21 of
the Indian Penal Code''.
Section 21 of the Indian Penal Code defines the persons coming within the expression 'public servant'
and its Tenth Clause reads:
"Every officer whose duty it is, as such officer, to
take, receive, keep or expend any property, to make
any survey or assessment or to levy any rate or tax
for any secular common purpose of any village,
town or district, or to make, authenticate or keep
any document for the ascertaining of the rights of
the people of any village, town or district".
Rule 68 framed under the Bombay District Municipal
Act, 1901 (Bombay Act III of 1901) and admittedly
applicable to the appellant reads:
"The Chairman of an Executive Committee shall
sign payment orders on behalf of the Committee
after the Committee have passed the bills and may
also order payment of bills for fixed recurring
charges such as pay bills in anticipation of the
Committee passing them".
The High Court held that the appellant, as Chairman
of the Managing Committee, could expend the money
of the Municipality as he could order payment of bills
for fixed recurring charges and that therefore he
•
I
1 S.C.R. SUPREME COURT REPORTS
131
came within the purview of the expression 'public
servant' defined in the Tenth Clause of s. 21 of the
Indian Penal Code.
The only criticism which the learned counsel for the
appellant has urged

## Text

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1 S.C.R. SUPREME COURT REPORTS
129
MAHARUDRAPPA DANAPPA
KESARAPP AN AV AR
v.
THE STATE OF MYSORE
(K. SUBBA RAO and RAGHUBAR DAYAL, JJ.)
Municipality-Chairman of Managing Committee empowered to
order payment of bills'] or fixed recurring charges-If public servant
-Prevention of Corrnption Act, I947· (Act II of 1947), ss. z,
5(2)-Indian Penal Code, (Act 45 of z86o), s. ZI, cl. zo,.-Bombay
District Municipal Act, I90I (Bom. III of z9or), r. 68.
The question arising for determination was whether the
Chairman of the Managing Committee of a Municipality who
could order payment of bills for fixed recurring charges was a
"public servant" within the meaning of s. 21 of the Indian
Penal Code.
Held, that the power to make payment of fixed recurring
charges, such as pay bills, imposed a "duty" on the Chairman
to do so when necessary as the power\vas vested in the Chairman for the benefit of the persons entitled to receive those
recurring charges.
Julius v. Lord Bishop of Oxford, (1880) 5 App. Cas. 214,
referred to.
Section 21, cl. IO of the Indian Penal Code merely requires
that the person should have the "duty" to expend property for
certain purposes and is not restricted to such cases only where
there is no limitation on the exercise of that power of expending
property. The Chairman had the duty to order payment and
spend money of the Municipality in certain circumstances and
as such was a "public servant".
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 154 of 1959.
Appeal by special leave from the judgment and
order dated March 27, 1959, of the Mysore High Court
in Criminal Appeal No. 168 of 1956.
S. N. Andley, J. B. Dadachanji, Rameshwar Nath
and Ravinder Narain, for the appellant.
R. Gopalakrishnan and T. M. Sen, for the respondent.
_.
1961. February 16.
The Judgment of the Court
was delivered by
17
x96.r
February z6.
M aharudrappa
Danappa
Kesarappanavar
v.
The State of
ll1 ysore
Raghubar
Dayal ].
130
SUPREME COURT REPORTS
[1962)
RAGHUBAR DAYAL, J.-This is an appeal by special
leave against the judgment of the High Court of
Mysore at Bangalore confirming the appellant's conviction for an offence under s. 5(2) of the Prevention
of Corruption Act, 194 7 (Act II of 194 7), by the
Special Judge, Dharwar.
The appellant is alleged to have committed the
offence while he was a Municipal Councillor and
Chairman of the Managing Committee of the Navalgund Municipality. The only question for determination in this appeal is whether the appellant was a
'public servant' contemplated by s. 2 of the Prevention of Corruption Act. The contention for the appellant is that he was not such a 'public servant'.
Section 2 of the Prevention of Corruption Act
reads:
"For the purposes of this Act, 'public servant'
means a public servant as defined in section 21 of
the Indian Penal Code''.
Section 21 of the Indian Penal Code defines the persons coming within the expression 'public servant'
and its Tenth Clause reads:
"Every officer whose duty it is, as such officer, to
take, receive, keep or expend any property, to make
any survey or assessment or to levy any rate or tax
for any secular common purpose of any village,
town or district, or to make, authenticate or keep
any document for the ascertaining of the rights of
the people of any village, town or district".
Rule 68 framed under the Bombay District Municipal
Act, 1901 (Bombay Act III of 1901) and admittedly
applicable to the appellant reads:
"The Chairman of an Executive Committee shall
sign payment orders on behalf of the Committee
after the Committee have passed the bills and may
also order payment of bills for fixed recurring
charges such as pay bills in anticipation of the
Committee passing them".
The High Court held that the appellant, as Chairman
of the Managing Committee, could expend the money
of the Municipality as he could order payment of bills
for fixed recurring charges and that therefore he
•
I
1 S.C.R. SUPREME COURT REPORTS
131
came within the purview of the expression 'public
servant' defined in the Tenth Clause of s. 21 of the
Indian Penal Code.
The only criticism which the learned counsel for the
appellant has urged against this view is that the High
Court did not keep the' distinction between the words
'duty' and 'power' in mind and that rule 68 empowers
the Chairman to order payment and does not impose
a duty on him to order payment. We are of opinion
that the power to make payment of fixed recurring
charges such as pay bills imposes a duty on the Chairman to do so when necessary as the power is vested
in the Chairman for the benefit of the persons entitled
to receive those recurring charges.
Reference may usefully be made here to what was
said in this connection in Julius v. The Lord Bishop
of Oxford (1). Earl Cairns, the Lord Chancellor, said
in connection with the interpretation to be put on the
expression 'it shall be lawful' in a certain statute:
"The words 'it shall be lawful' are not equivocal.
They are plain and unambiguous. They are words
merely making that legal and possible which there
would otherwise be no right or authority to do.
They confer a faculty or power, and they do not of
themselves do more than confer a faculty or power.
But there may be something in the nature of the
thing empowered to be done, something in the object for which it is to be done, something in the
conditions under which it is to be done, something
in the title of the person or persons for whose benefit the power is to be exercised, which may couple
the power with a duty, and make it the duty of the
person in whom the power is reposed, to exercise
that power when called upon to do so".
The aforesaid power is conferred on the Chairman for
the benefit of the persons who have served the Municipality and have got the right to r@ceive their pay or
money for articles provided. There may arise circumstances when any delay in payment may affect those
persons adversely. The pay is due on the first day of
(1) (1880) S App. Cas. Zif, zzz.
M aharudrappa
[)anappa
Kesarappanavar
v.
The State of
Mysore
Raghubar
Dayal ].
196r
M aharudrappa
Danappa
K esarappnnavar
v.
The Stale of
Mysore
Ragkubar
Dayal].
132
SUPREME COURT REPORTS
[1962)
the month and it may not be convenient to fix a meeting of the Committee at a date for early payment of
the pay due. A meeting already fixed may have to
be adjourned for want of quorum. The passing of the
pay bills, in the circumstances, is more or less a formal
matter and therefore the rules ·empower the Chairman
of the Managing Committee to order payment of the
pay bills in anticipation of sanction by the Committee. The Chairman can exercise this power for the
benefit of the employees voluntarily or when requested
by those persons to exercise it. The mere fact that
this power of the Chairman was to be exercised only
with respect to fixed recurring charges and in anticipation of the Committee passing the bills for those
charges therefore does not affect the question in any
way. Clause ten of s. 21 of the Indian Penal Code
merely requires that the person should have the duty
to expend property for certain purposes. It is not
restricted to such cases only where there is no limita.
tion on the exercise of that power of expending property. The Chairman has the duty to order payment
and to spend the money of the Municipality in certain
circumstances. We therefore hold that the appellant
was a 'public servant' when the alleged offence was
committed.
In view of our opinion, we do not discuss the effect
of s. 45 of the Bombay District Municipal Act which
lays down that every municipal councillor shall be
deemed to be a public servant within the meaning of
s. 21 of the Indian Penal Code, or the question whether the appellant, as a mere Municipal Councillor,
comes within the definition of 'public servant' in s. 2~
of the Indian Penal Code.
These questions were not
considered by the High Court.
We therefore dismiss the appeal.
Appeal dismissed.
'~ -