Legal Provision Regarding Offences By or Relating to the Public Servants in India

Chapter IX of the Code explains the provisions about the offences by or relating to public servants. Chapter IX contains Sees. 161 to 171. Sec. 161 to Sec. 165-Awere repealed by Prevention of Corruption Act, 1988 (Act 49 of 1988).

Chapter IX and the Prevention of Corruption Act, 1988 are intended to J prevent the illegal gratification, red tapism and bribery in respect of an official act. In addition to the Chapter IX IPG, Act 49 of 1988, the Parliament has also enacted “The Right to Information Act, 2005 to fulfil these objects. WHO IS A PUBLIC SERVANT?

Section 21 of Chapter-II of the Indian Penal Code, 1860 defines “Public Servant”.

Sec. 21. “Public servant”:

The words “public servant” denotes a person falling under any of the descriptions hereinafter following, namely:-

First:

[Repealed by the Adaptation of Laws Order, 1950];

Second:

Every Commissioned Officer in the Military, Naval or Air Forces of India;

Third:

Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

Fourth:

Every officer of a Court of Justice (including a liquidator, receiver or commissioner) whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;

Fifth:

Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;

Sixth:

Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;

Seventh:

Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

Eighth:

Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

Ninth:

Every officer, whose duty it is, as such 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 interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government;

Tenth:

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;

Eleventh:

Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election; or part of an election;

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 (1 of 1956).

Illustration:

A Municipal Commissioner is a public servant.

Explanation-1:

Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.

Explanation-2:

Wherever the words “public servant” occurs, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.

Explanation-3:

The word “election” denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed by election.

Important Points:

A. There is a difference between “Servant of Government” and “Public servant”. A Chief Minister is a public servant, because he is paid by the Government. [M. Karunanidhi vs. Union of India-AIR 1979 SC 898], whereas an MLA is not a public servant. [R.S. Nayak vs. A.R. Anthulay-AIR 1984 SC 684].

B. An employee of a nationalised bank is a public servant. [Union of India vs. Ashok Kumar Mitra- 1995 Cr.L.J. 3633 SC], Similarly the employees of Life Insurance Corporation, General Insurance Corporation of India are public servants.

C. The Presidents and Secretaries of Co-op. Societies or of any society registered under Societies Registration Act are not public servants.[State of Punjab vs. Kesari Chand 1987 Cr.L.J. 549 P&H],

Important Points:

A. There is a difference between “Servant of Government” and “Public servant”. A Chief Minister is a public servant, because he is paid by the Government. [M. Karunanidhi vs. Union of India-AIR 1979 SC 898], whereas an MLA is not a public servant [R.S. Nayak vs. A.R. Anthulay-AIR 1984 SC 684].

B. An employee of a nationalised bank is a public servant. [Union of India vs. Ashok Kumar Mitra- 1995 Cr.L.J. 3633 SC], Similarly the employees of Life Insurance Corporation, General Insurance Corporation of India are public servants.

C. The Presidents and Secretaries of Co-op. Societies or of any society registered under Societies Registration Act are not public servants. [State of Punjab vs. Kesari Chand 1987 Cr.L.J. 549 P&H],

Offences By or Relating to Public Servants

Important Points:

A. Sees. 161 to 171 of Chapter IX explain the provisions about the offences by or relating to public servants of them sees. 161 to 165-Awere repealed by the Prevention and Corruption Act 1988.

B. The repealed Sec. 161 explained about “public servant taking gratification other than legal remuneration in respect of an official act”. Sec. 162 of the Code explained about “taking gratification in order, by corrupt or illegal means, to influence public servants”.

Sec. 163 of the Code explained about “taking gratification, for exercise of personal influence with public servants”. Sec. 164 explained the provisions about “punishment for abetment by public servant of offences defined in Sec. 162 or 163”.

Sec. 165 explained about “public servant obtaining valuable thing, without consideration, from person concerned in proceeding or business transacted by such public servant”.

Sec. 165-A of the Code explained “punishment for abetment of offences defined in Sec. 161 or Sec. 165”. The Secs. 161 to 165-A were repealed by the Prevention of Corruption Act. 1988 (Act No. 49 of 1988) by its Sec. 31.

C. Object:

The objects and reasons of the Prevention of Corruption Act, 1988 and stated in the Statement of Bill of 1988 as follows:

1. The Bill is intended to make the existing anti-corruption laws more effective by widening their coverage and by strengthening the provisions.

2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of the criminal misconduct; there are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill- gotten wealth.

The Bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants.

3. The Bill inter alia, envisages, widening the scope of the definition of the expression “public servant’, incorporation of offences under Sec. 161 to 165-A of the Indian Penal Code enhancement of penalties provided for these offences and incorporation of a provision that the order of the trial Court upholding the grant of sanction for prosecution would be final if it has not already been challenged and the trial has commenced.

In order to expedite the proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been included.

4. Since the provisions of Sec. 161 to 165-A are incorporated in the proposed legislation with an enhanced punishment, it is not necessary to retain those Sections in the Indian Penal Code. Consequently, it is proposed to delete those sections with the necessary saving provision.

D. Public servant disobeying law with intent to cause injury to any person: According to Section 166, whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

Nature of offence under Section 166 is non-cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Illustration:

A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of law with the knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in this Section.

E. Public servant framing an incorrect document with intent to cause injury:

According to Section 167, whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document or electronic record, frames or translates, that document electronic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Nature of offence under this Section is cognizable, bailable, non-compoundable, arid triable by Magistrate of the first class.

F. Engaging in trade:

No public servant is allowed to do trade for his own gain. Section 168 says: Whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. Nature of offence under this Section is non-cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

G. Buying or bidding for property:

According to Section 169, whoever, being a public servant, and being legally bound as such public servant, not to purchase or bid for certain property, purchases or bids for that property, either in his own name or in the name of another, or jointly, or in shares with others, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both; and the property, if purchased, shall be confiscated. Nature of offence under this Section is non-cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

H. Personating a public servant:

According to Section 170, whoever pretends to hold any particular office as a public servant, knowing that he does not hold such office or falsely personates any other person holding such office, and in such assumed punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Nature of offence under this Section is cognizable, non-bailable, non-compoundable, and triable by any Magistrate.

I. Wearing garb or carrying token used by public servant with fraudulent intent:

According to Section 171, whoever, not belonging to a certain class of public servants, wears any garb or carries any token resembling any garb or token used by that class of public servants, with the intention that it may be believed, or with the knowledge that it is likely to be believed, that he belongs to that class of public servants, shall be punished with imprisonment of either description, for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both. Nature of offence under this Section is cognizable, bailable, non-compoundable, and triable by any Magistrate.

J. Sees. 161 to 165-A IPC:

Now Sees. 161 to 165-A of the Indian Penal Code are not in practice. Because these Sections were repealed by the Sec. 31 of the Prevention of Corruption Act, 1988 However Sees. 166 to 171 of IPC are in force containing the provisions of offences by or relating to public servants.

K. Burden of proof:

The offences by or relating to public servants shall be proved by the prosecution. The burden of proof lies upon the prosecution. It must prove:—

1. That the accused was a public servant;

2. That the accused committed certain wrong under the provisions of the Indian Penal Code or Prevention of Corruption Act, 1988;

3. That his conduct was in the exercise of his public duties as such public servant;

4. That such conduct was against the law;

5. That the accused violated the law intentionally;.

6. That the accused was guilty of disobedience of the State and also to the public;

7. That he caused certain injury to the State or public.

L. Ramjanam Singh vs. State of Bihar (AIR 1956 SC 643)

Brief Facts:

The appellant Ramjanam was a sub-Inspector of Police, working at the Dinapore PS. at the incidence in question. There were three dacoits occurred in that area in the month of June/July, 1951.

On 17-8-1951 the police arrested Sitaram Dusadh, resident of Khagaul, suspecting him that he was one of the participants of dacoities. He was released on bail.

Again he was arrested on 17- 9-1951 for conducting identification parade. He was released on the next day on bail. Sitaram Dusadh complained to the higher police authorities against the appellant/the then Sub-Inspector of Police, alleging that he demanded Rs. 100/- bribe for himself and Rs. 25/- for the constable and assured to protect Sitaram from the Dacoity case.

The appellant Ramajanam was prosecuted under Sec. 161 of IPC and with Sec. 5 of the Prevention of Corruption Act, 1947. He was acquitted by the trial Court. The State appealed to the High Court. The High Court sentenced the appellant with one year rigorous imprisonment. He appealed to the Supreme Court.

Judgment:

The Supreme Court allowed the appeal and set aside the conviction and sentence.

Principles:

1. The Court could only proceed on the evidence given on oath in the witness box by the witness and on the statement made in the letter.

2. Where the accused has been acquitted by the trial Court, the presumption of innocence remains and the fact that one Court has doubted or dissolved the evidence strengthens the hands of the accused. It behaves the High Court in such cases to furnish strong reasons why the benefit of the doubt should not go where it has already been placed in the lower Court. Held that strong presumptions of innocence and the doubts which the numerous circumstances raised had not been displaced.

3. The Supreme Court was only deciding whether the High Court had given true effect to the principles which must guide a Court in an appeal against an acquittal and was not holding that certain things must have happened as a fact because that was not its functions.

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