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(Case referred to the above noted Division Bench by B. Z. Kaikaus, J.)
Criminal Appeal No. 815 of 1954 decided on 6th July, 1955 from the order of Qadir Bakhsh, Special Judge, Punjab, Lahore, dated the 28th October, 1954.
S. 21‑Peon in passport office‑Public servant.
A peon in the passport office is a public servant within the meaning of section 21, P. P. C. and section 5 of the Pre vention of Corruption Act (II of 1947)
The appellant, a peon in the passport office, was prosecuted and convicted for accepting illegal gratification for handing over a passport to the applicant thereof.
It was argued in appeal that the peon could not be deemed to be an " officer" within the meaning of section 21, P. P. C.
Held, that a peon in a Government office must be held to be a public servant within the meaning of section 21 of the P. P. C., because a peon performs functions entrusted to him by the office to whom he is attached, whoa in his turn has been invested with powers delegated by the Government.
Ahad Shah v. The Crown (18 P R 1918 (Cr.) and Reg. v. Ramajirav 12 Bom H C R 1), considered.
Queen v. Ramkasto Doss and another (1871) 16 W R 27; Nazamuddin v. Queen‑Empress I L R 28 Cal. 344 and King Emperor v. Ram Chandra Sahu T L R 12 Pat. 184, ref.
S. 5‑More extensive than S. 161, P. P. C.‑Abuse of position as a public servant‑Offence under S. 5, though facts may not satisfy ingre dients of S. 161, P. P. C.
The appellant, a peon in passport office was convicted under section 5 (2) Prevention of Corruption Act (II of 1947), for accepting illegal gratification for handing over a passport to the applicant thereof.
It was argued in appeal that handing over of passports was no part of duty of the peon, and therefore, the appellant could not be said to have done any of the things mentioned in section 161, P. P. C.
Held, that the appellant could not be exonerated under section 5, Prevention of Corruption Act (II of 1947).
Section 5 of the Prevention of Corruption Act, 1947, makes punishable many more reprehensible acts of public servants than those made punishable by section 161 of the P. P. C. Clause (d) of section 5 of Act II of 1947 is to the effect that a public servant who by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, commits an offence of criminal, mis conduct made punishable by that section, and if the ingredients of section .5 are satisfied, it is immaterial tot a conviction under that section whether the ingredients of section 161 of the P. P . C. are satisfied or not.
Fateh Muhammad Anwari, for Appellant.
Choudhury Fazal Ellahi, for the Advocate‑General, for Respondent.
‑‑This is an appeal by Abdul Hamid who was tried by the Special judge of an offence under section 5 (2) of the Prevention of Corruption Act of 1947 and sentenced to one year's rigorous imprisonment and a fine of Rs. 500 or in default further imprisonment for six months.
One of the points alleged by the learned counsel for the appellant is that Abdul Hamid is not a public servant and, therefore, not within the purview of section 5 (2). The appellant was a Peon in the Passport Office, Lahore. The allegations against him are that after the passport of Habib Khan was prepared by the office he got hold of the passport and demanded a sum of money before he handed over the passport to Habib Khan. Habib Khan complained to the Anti‑Corruption Department: A raiding party was organised and as a result Abdul Hamid was caught red‑handed while he received an illegal gratification from Habib Khan in respect of delivery to him of the passport.
On the question as to whether the appellant is a public servant, learned counsel for the appellant relies on A I R 1918 Lah. 152 wherein it was held that a clerk of the Quarter Master was not a public servant within the meaning of section 21 of the P. P. C. The ground of the decision was that in order that a person may be an officer there should be a delegation to him in some degree of the functions of the Executive Government or his duties should at least be immediately auxiliary to those of some persons to whom such functions are delegated. The question is one of general importance and its decision will settle what persons are within the purview of the Prevention of Corruption Act. There should be an authoritative decision on this point. I refer this case therefore to a Division Bench.
‑Abdul Hamid son of Mehtab Din, who used to be a peon in the Passport Office at Lahore, was sentenced to one year's rigorous imprisonment and a fine of Rs. 500 in default of payment of which he was to suffer further rigorous imprisonment for six months, under section 5 (2) of the Prevention of Corruption. Act, of 1947, by Mr. Qadir Bakhsh, Special Judge, Punjab. Against that order, Abdul Hamid presented an appeal to this Court which came up for hearing before my brother Kaikaus before whom the point was raised that as Abdul Hamid was not a "public servant" as defined by section 21 of the P. P. C., his conviction could not stand though he may have been proved to have accepted money as illegal gratification. The point raised being of some importance, my brother Kaikaus referred the case to a Division Bench and it is in these circumstances that the appeal is being dealt with by this Bench.
The trial judge has found that the appellant had accepted Rs. 15 from Habib Ullah for giving him his passport to India for which Habib Ullah had made an application to the Passport Officer at Lahore The learned counsel for the appellant did not question this finding of fact and concerned himself with the point of law that arises in the case. As, however, a Criminal Court cannot base a conviction on a statement of a counsel admitting the guilt of his client, the relevant part of the evidence on the record has been gone through and the conclusion arrived at is that it was established beyond all reasonable doubt by unimpeachable evidence that the appellant had accepted a sum of Rs. 15 from Habib Ullah on the 18th of November, 1953 on the promise that he would deliver to him his passport. The evidence proving the acceptance of Rs. 15 from Habib Ullah by the appellant is over‑whelming and unimpeachable and it is evidently for that reason that the learned counsel for the appellant did not question the prosecution case on merits. It being established on the record that the appellant had accepted Rs. 15 for the purpose mentioned above, the question to consider is if his conviction was proper. Put in another form, the question that arises in whether a Chaprasi in the Passport Office is a "public servant" within the meaning of section 21 of the P. P. C.
The learned counsel for the appellant urged that as the appellant could not be deemed to be an "officer" he was not covered by any of the clauses of section 21 of the P. P. C., and if the acceptance by him of Rs. 15 in the circumstances detailed by the prosecution was an offence, it was certainly not one under section 5 (2) of the Prevention of Corruption Act, 1947. Another point raised by the learned counsel for the appellant was that as from the evidence on the record it would appear that handing over passports to applicants was not the official function of the appellant, the case could not be one of taking illegal gratification and the conviction of the appellant could not be sustained. The learned counsel for the Crown replied that the appellant, in spite of the fact that he was not an officer in the ordinary sense of the term, fell within the last part of the 9th Clause of section 21 of the P. P. C., and was, therefore, a "public servant" within that section. Replying to the second argument of the learned counsel for the appellant, the learned counsel for the Crown contended that the scope of section 5 of the Prevention of Corruption Act, 1947, was much wider than that of section 161 of the P. P. C., and even if the handing over of the passport was not the function of the appellant, he would still be guilty under section 5 of the Prevention of Corruption Act, because he had by corrupt and illegal means and by abusing his position as a public servant obtained for himself pecuniary advantage to which he was not entitled.
Section 2 of the Prevention of Corruption Act 1947 (II of 1947) enacts that for the purposes of that Act, "public servant" means a public servant as defined in section 21 of the P. P. C. section 5 of Act II of 1947 in its first subsection states what acts of a public servant amount to criminal misconduct and in its second subsection prescribes the punishment for criminal misconduct committed by a public servant. It is therefore, necessary to see if the appellant a "public servant" as contemplated by section 21 of the .P.C.
The relevant part of section 21 of the P. P. C. reads as follows :--
"21. The words 'public servant' denotes a person falling under any of the descriptions hereinafter following, namely: ‑‑
Ninth.--‑. . . and every officer in the service or pay of the Crown or remunerated by fees or commissions for the performance of any public duty ;
It is on the above part of section 21 of the P. P. C. that the learned counsel for the Crown placed reliance, and I would, therefore, proceed to consider if the contention is sound. The learned counsel urges that the word "officer" used in the definition relied upon by him has no technical meaning and can apply to a servant of the Government however humble his position may be. There is a good deal of force in what the learned counsel for the Crown says, and I would have had no hesitation in accepting the contention had it not been for the fact that the word "officer" has been given a restricted meaning by some judicial decisions dealing with section 21 of the P. P. C. It was not denied by the learned counsel for the appellant that the appellant was in the service and pay of the Crown and performed a public duty, but he added that the duties of the appellant were so humble that he could not be considered to be an "officer".
The main reliance of the learned counsel for the appellant in support of his contention, that a servant of the Crown before he could be considered a "public servant" for the purpose of section 21 of the P. P. C. must have some duties of importance to perform, was on Ahad Shah v. The Crown (18 P R 1918 (Cr.)). The two learned judges of the Punjab Chief Court, who decided that case, had to deal with a Quarter Master's clerk and came to the conclusion that as the clerk had no executive functions he was just a Babu and no more an officer than a labourer or menial employed and paid by Government to do public work. For coming to this conclusion, the learned judges relied mostly on the remarks of West J. in Reg. v. Ramajirav (12 Bom. H C R 1). The facts of the Bombay case were these: The accused Ramajirav, who was a lessee of forest revenue, was tried under sections 909/511, 167, 218 and 193 of I. P. C. for having, as a 'public servant, attempted to commit criminal breach of trust and other offences while the co‑accused of Ramajirav was tried for abetment. The trial Court acquitted both the accused, and on appeal the matter coming' before West and Nanabhai Haridas JJ. it was contended for the Crown that Ramajirav, who was a lessee of forest revenue, was a public servant" for the purposes of section 21 of the I. P. C. In the course of the judgment, West J. is recorded at page 5 of the report to have observed as follows :‑‑
"We must, therefore, see who is an officer. It is clear that it is not every one who has to do with Government in pecuniary matters, or who has to render accounts, or to submit documents, who is a Government officer. Seeking the help of English law, we find, in Bacon's Abridgment at Vol. 6, page 2, the article headed 'Of the nature of an officer, and the several kinds of officers', commencing thus: 'It is said that 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 is an office, and he who is in it is an officer'. And the next paragraph goes on to say : 'There is a difference between an office arid 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, etc. ; which differ widely from that of steward of a manor, etc. The first of these paragraphs implied that an officer is one to whom is delegated, by the supreme authority, some portion of its regulating and coercive 'powers, or who is appointed to represent the State in its relations to individual subjects. This is the central idea ; and applying it to the clause which we have to construe, we think that the word 'officer' there means some person employed to exercise to some extent, and in certain circumstances, a delegated function of Government. He is either himself armed with some authority or representative character, or his duties are immediately auxiliary to those of some one who is so armed. Deshmukhs and Deshpandes would thus 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 are its active repre sentatives, but not an Izaphatdar or lessee such as the accused. . In consequence of some dispute pending between him and the Government, the possession of a village is withdrawn from him, but it is restored to him on his undertaking to keep accounts of the forest revenues and pay five‑sixteenths of the proceeds to the Government after making, in the first place, a certain deduction, namely, of one third of the receipts, for himself. He is, we think, not an officer, but a mere contractor bound by his engagment, but not by the terms of an office or employment, to pay a certain proportion to Government. There is no delegation to him of any authority for coercion or inter ference nor is he an assistant appointed to help any one who is vested with such authority. He appears to have had the rights only of a private proprietor, and to have exercised them entirely at his own discretion. It depended entirely on him to allow any person at all to cut timber within the limits of his village. He could make his own terms. He was bound by his agreement to give passes to all who cut timber in order to prevent fraud on the Government, but the penalty for omitting to give these passes was that the timber taker, without them was to be treated as Government property, and thus be subject to a second payment. A collateral undertaking of this kind did not make him an officer, nor did his undertaking tc. keep accounts. These were contractual duties, fraudulent deception in discharging which might subject him to punishment for cheating, but not duties attached to any office 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".
I should have thought that the accused being no more than a lessee of forest revenue, it should not have been difficult to hold that he was not a public servant within the meaning of section 21 of the I. P. C., and had it riot been for the fact that the remarks of West, J. relating to officer and quoted above have been considered in a number of cases dealing with section 21 of the Penal Code, I would have treated them nothing more than an obiter dictum having no binding effect. It, however, appears to me that even if the remarks of West, J. are to be held to be a correct exposition of law, a peon in a Government office must be held to be a public servant within the meaning of section 21 of the P. P. C., because a peon performs functions entrusted to B him by tire officer to whom he is attached, who in his turn has been invested with powers delegated by the Government, It is obvious that an officer in the employ of the Government cannot do all thing., that he has in the ordinary course of his duty to do in his office, and is bound to take assistance of his subordinates. A peon is one of such subordinates, and if the public servant under whom he is working entrusts certain duties to him, I see no difficulty in coming to the conclusion that the peon is an "officer" in the technical sense of the term and as he is in the service of Government which pays him, he is a public servant for the purposes of section 21 of the P. P. C., as well as for the purposes of section 5 of the Prevention of Corruption Act, 1947.
There are three decided cases which deal specifically with peons. The first of these cases is Queen v. Ramkisto Doss and another ((1871) 16 W R 27). In that case it was held by Ainslie and Paul JJ that an occasional or supernumerary peon appointed under the orders of the Board of Revenue in accordance with section 6 of Act V of 1863, and paid under that section by fees whenever employed is a public servant under Clause 9 of section 21 of the Penal Code, and as such may be guilty of receiving an illegal gratification under section 161 of that Code. The next case of this type is Nazam‑ud‑Din v. Queen‑Empress (I L R 28 Cal. 344) in which Prinsep and Handley, JJ. held that a peon in the services and pay of Government and attached to the office of a Superintendent of Salt Department is a public servant. In the body of the Judgment the learned judges, dealt with Reg. v. Ramajirav (12 Bom. H C R 1), and remarked as follows
"The learned judges in that case had to consider whether ' a lessee from Government was, on the conditions of his lease, a public servant, and, in doing se, 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 duties are immediately auxiliary to those‑ of some persons 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 Salt Department. The exact nature of his duties is not stated, because this objection was not taken at the trial, but we must take it that, from the nature of his appointment, it was his duty to carry out the orders of his official superior, who undoubtedly is a public servant, and in that capacity, to assist the Superintendent 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 section 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 section 21, clause 9".
The next case dealing with peons is King Emperor v. Ram Chandra Sahu (I L R 12 Pat. 184). In that case it was held that a person enrolled as a candidate or apprentice peon getting no pay or remuneration by fees or commission for the performance of any public duty but who accepts the duties and responsi bilities of executing a warrant entrusted to him and whom the Court recognises as filling the position of a process- server, was a public servant as defined in the ninth clause of section 21 of the Penal Code. The evidence of P. Ws. 5 and 9 shows that the appellant assisted the Passport Officer in the execution of his duties, and it would, therefore, appear that his case was fully covered by the decision in Nazam‑ud‑Din v. Queen‑Empress, with which I am in res pectful agreement. The learned counsel for the parties cited some judicial decisions, such as The Queen v. Aravi (I L R 7 Mad. 17) The Queen. v. Nachimuttu and others (I L R 7 Mad. 18) and Emperor v. Karam Chand Gobind Ram (A I R 1943 Lah. 255) but as those decisions are of no assistance for the purposes of this case, I consider it unnecessary to analyse them.
Having considered the language of section 21 of ‑the P. P. C. and the judicial decision mentioned above, I have arrived at the conclusion that the appellant was a public servant within the meaning of section 21 of the P. P. C., and A section 5 of the Prevention of Corruption Act, 1947.
I now proceed to consider if the second argument of the learned counsel for the appellant can be accepted. It is true that handing over of passports to applicants was not one of the duties of the appellant, and, therefore, he could not be said to have done or attempted to do one of the things mentioned in section 161 of the. P. P. C., but that would not exonerate him of the offence for which he was tried. Section‑5 of the Prevention of Corruption Act, 1947, makes punishable many more reprehensible acts of public servants than those made punishable by section 161 of the P. P. C. Clause (d) of section 5 of Act II of 1947 is to the effect that a public servant who by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, commits an offence of criminal misconduct made punishable by that section, and it is obvious that if the ingredients of section 5 are satisfied, it is immaterial for a conviction under that section whether the ingredients of section 161 of the P. P. C. are satisfied or not. It is hardly open to question that the appellant obtained Rs. 15 by employing corrupt: and illegal means, and as this was pecuniary advantage gained by the appellant by those means his case was fully covered by subsection (2) of section 5 of the Prevention of Corruption Act.
In view of what I have said above, I would uphold the conviction of the appellant. The question of sentence, however, presents a little difficulty. The appellant was bailed out by order of this Court as long ago as the 8th of February, 1955 after he had suffered about 31 months of the imprisonment imposed on him, and it would be hard on him to be recommitted to jail to undergo the unexpired portion of his sentence. I would, therefore, reduce the substantive imprisonment of the appellant to the period already undergone by him, but will maintain the fine of Rs. 500 and the six months' rigorous imprisonment in default of payment thereof. The appellant is granted time till the 1st of August, 1955 to pay the fine.
S. A. RAHMAN, C. J.‑--I agree.
A. H. Sentence reduced.
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