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Criminal Revision Gases Nos. 468, 569 of ‑1949, and 29 of 1950, decided on 3rd April,
1950.
, S. 21--Whether a Dafadar of Union Board under Bengal Village Self‑Government Act, 1919 .a public servant.
Chaukidars and difadars are not public servants within the definition of section 21 of the Pakistan Penal Code. They are only public servants for the limited purposes laid down in rule 45 of the Rulesframed under the Bengal Village Self‑Government Act, 1919; public servants for the purposes of section 68(2) of the Code of Criminal Procedure only.
A.K. Fazlul Huq with S. J. H. Sekhandar, for Petitioner in No. 68 of 1949.
A. K. Fashsl Huq with A. H. Sayem, for Petitioner in No. 569 of 1949.
Suresh Chandra Bose for Khagendra Chandra Kar, for Petitioners in No. 29 of 50.
S. Afzal, Deputy Legal Remembrancer for the Crown in all 3 cases.
.‑As the same point arises in each of these three revision cases, they have been heard together for the sake of con venience and are now disposed of under this one judgment.
The question which arises for decision is whether a dafadar is a public servant within the definition of section 21 of the Pakistan Penal Code.
We have had the' advantage of hearing the arguments of Mr. Fazlul Huq who has argued that a dafadar is not a public servant within that definition and Mr. Afzal, the Deputy Legal Remembrancer, who has argued that he is. '
Mr. Fazlul Huq found his argument on the definition of a dafadar as given in section 4 of the Bengal Village Self‑Government Act (Act V of 1919): on the powers and duties of dafadars and chaukidars as set out in section 23 of the same Act and on Rule 45 of the Rules framed under the Act.
According to section 4 of the Act, a "daf adar" means a head Chaukidzr. The powers and duties of dafadars and chaukidars as they are material for the determination of the question are set out in section 23 as follows:‑
"(1) Every chaukidar shall exercise the following powers and perform the following duties :‑
(i) he shall give immediate information to the officer in charge of the police‑station within the limits of which the union is situated and to the president of the Union Board, of every unantural, suspicious of sudden death which may occur, and of any offence specified in schedule II which may be committed within the Union, and he shall keep the police and the President of the Union Board informed of all disputes which are likely to lead to a riot or serious affray;
(ii) he may, without an order from a Magistrate and without a warrant, arrest‑
(a) any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists of his having been so concerned;
(b) any person having in his possession, without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house‑breaking.
(c) any person who has been proclaimed as an offender either under the Code of Criminal Procedure, 1898, or by order of the Local Government;
(d) any person in whose possession anything is found which may reasonably be suspected to be stolen property, or who may reasonably be suspected of having committed an offence with reference to such thing;
{e) any person who obstructs a police officer, while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;
(f) any person reasonably suspected of being a deserter from his Majesty's Army, Navy or Air Force; and
(g) any released convict committing a breach of any rule made under section 565, subsection (3), of the Code of Criminal Pro cedure, 1898;
(iii.) he shall, to the best of his ability, prevent, and he may interpose for the purpose of preventing, the commission of any offence specified in schedule II; . .
(iv) he shall assist private persons in 'making such arrest as they may lawfully make, and he shall report such arrest without delay to the officer in charge of the aforesaid police station;' .
Rule 45 of the Rules framed under the Act provides that "All dafadars and chaukidars shall be public servants for the purpose of section 68(2) of the Code of Criminal Procedure."
Neither a dafadar nor a chaukidar has been referred to in terms in any one of the categories under section 21 of the Pakistan Penal Code. We now have to determine whether they fall within the range of any of the categories enumerated therein. It is clear on a perusal of section 21 that there are only two of the categories, name ly the 7th and 8th which may possibly, cover the cases of dafadars and chaukidars.
Under section 21 (7) the words public servant denote: "Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement." As we interpret this definition, it applies to police officers who are empowered to place people in confinement and to Jailors who are empowered to keep persons in confinement. We do not think that it can have any appli cation at all to dafadars and chaukidars. Dafadars and chaukidars are empowered to arrest persons, but not to place them in con finement. The most that a dafadar or a chaukidar can do after are resting a person, is to take him to the nearest police officer in order that that police officer may place him in confinement. And under section 59 of the Code of Criminal Procedure he can take charge of an offender who has been arrested by a private person and can take him in custody to the nearest police station. But there is nothing in. his duties as expressly enunciated in the Act or implied in the Code which empowers him either to place or to keep anyone in confinement. Accordingly dafadar is not a person who falls within the seventh category of section 21 of the, Penal Code.
Section 21 goes on to say : "The words "public servant" denote a person falling under any of the descriptions hereinafter following namely; Eighth: 'Every officer of the Crown whose duty it is, as such officer, to prevent offences, to give information of offence to bring offenders to justice or to protect the public health, safety or convenience." A dafadar or chaukidar, under this definition will be a public servant provided it can be held that he is an Officer of the Crown. Mr.Afzal has contended that as dafadars and chaukidars are appointed by the District Magistrate, they must be held to be officers of the Crown. Provision is made in section 20 of the Village Self‑Government Act for appointment and dismissal of daf adars and chaukidars.
"20. (1) The Uniou Board shall, when a vacancy exists nominate a person to be a dafadar or a chaukidar under this Act, and the District Magistrate shall, if satisfied with such nomination, appoint such nominee:
Provided that, if the Union Board fails within a reasonable time to nominate a person to be a dafadar or a chaukidar, or if the District Magistrate is not satisfied with such nomination, the District Magistrate shall appoint any person, whom he thinks fit, to be a daf adar or a chaukidar.
(2) The District Magistrate, or the Union Board, 'with the sanction of the District Magistrate, may dismiss any dafadar or chaukidar.
The powers of the District Magistrate are exercised on the nomination of the Union Board and it is only if the Union Board fails to nominate any person, or makes a nomination unacceptable to the Magistrate, that the Magistrate makes an appointment inde pendently of the Board. And even if it be accepted that the District Magistrate can and does, on occasion, appoint and dismiss dafadars and chaukidars, it is not every person who is appointed by a District Magistrate who becomes, ipso facto, a public servant as an officer of the Crown. Mr. Fazlul Haq is right, in our opinion, when he contends that as dafadars and chaukidars are paid from Union Board rates, and not from public funds, they cannot be regarded as officers of the Crown.
Mr. Fazlul Haq cites rule 45 of the Rules framed under the Bengal Village Self‑Government Act which says: "All dafadars and chaukidars shall be public servants for the purpose of section 6842) of the Code of Criminal Procedure." He claims that if dafadars and chaukidars are already public servants, as being officers of the Crown appointed by the District Magistrate, there is no need whatsoever for this rule. As public servants qua officers of the Crown, within the 8th category of section 21, they are public servants for all purposes, including those defined in section 68 (2) of the Code. The mere fact that they are described in rule 45 as public servants for the purposes of this section, shows that they are public servants only for a limited purpose and not public servants for all purposes. '
In this view of the matter, our decision is that chaukidars and dafadars are not public servants within the definition of section 21 of the Pakistan Penal Code. They are only public servants for the limited purposes laid down in rule 45 ; public servants for the purposes of ‑section 68 (2) of the Code of Criminal Procedure only.
To turn then to the separate cases: in Revision No. 468 of 1949 Chand Khan dafadar was convicted under section 161 of the Penal Code read with Act II of 1947 and was sentenced to rigorous imprisonment for six months and a fine of Rs. 100 or in default to one month more. A rule was issued on the question 'as to whether the Superintendent of Police who sanctioned the prosecution of the dafadar was the officer whose sanction was required under sec tion 6 of Act II of 1947. There is, of course, no substance in this particular ground, for, section 47 of the Bengal Village Self‑Government Act V of 1919 says: "The District Magistrate may, by an order in writing, delegate the powers or duties specified in the first column of Schedule 'III to the officers mentioned in the second column thereof, "and in schedule III the appointment and dismissal of the dafadar and chaukidar under section 20 is a power which may be delegated to the Sub‑divisional Officer or the Superintendent of Police. The ground on which the rule was issued, therefore, fails but the rule must be made absolute on the ground that the dafadar is not public servant within the meaning of section 21 of the Penal Code and therefore, cannot be prosecuted under section 1611 of the Code of Act II of 1947.
The rule accordingly is made absolute and the conviction and sentence set aside and we direct that the petitioner be discharged from his bail and that the fine, if paid be refunded.
In regard to Case No. 569 of 1949 another dafadar Kalam Daraz Khan was convicted under section 161 of the Pakistan Penal Code and sentenced to rigorous imprisonment for one year and a fine of Rs. 300 or in default to three months more. Here also as we hold that a dafadar is not‑a public servant within the mean ing of section 21 of the Penal Code his conviction under section 161 of the Penal Code is not maintainable in law.
The Rule is accordingly made absolute and the conviction and sentence set aside and we direct that the petitioner be set at liberty forthwith and the fine, if paid, be refunded.
The third case is Revision Case No. 2,9 of 1950 where two persons were convicted under section 353 of the Penal Code and sentenced to a fine of Rs. 100 each for obstructing and resisting a dafadar and his men when they went to remove a nuisance under orders of the President of the. Union Board and the District Board. As the dafadar is only a public servant for the purpose of section 68 of the Code of Criminal Procedure, be cannot be regarded as a public servant when he is going to remove a nuisance under the order of the President and it follows therefore that the people who assaulted him cannot be convicted under section 353 and there fore their conviction must be altered to one under section 352 of
The rule is accordingly disposed of in the following way. The conviction under section 353 is altered to one under section 352 and the fine of Rs. 100 is altered to Rs. 75 each or, in default to rigorous imprisonment for three weeks each.
.‑‑I agree,
A.H Rule made absolute.
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