General Explanations under the Indian Penal Code " Public Servant"Section 21 of IPC 1860.

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 Lecture No. 8 on IPC 1860

 

Section 21 :- “Public Servant”:- The words “ Public Servant” denote a person falling under any of the description hereinafter following namely:-

First- Repealed by A.O. 1937.

Second- Every Commissioned Officer in the Military, Naval or Air Force of India;

Thirdly- 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 authorised by a court of justice to perform any of the duties;

Fifth:- Every juryman, assessor or a 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 conveyance.

Ninth:- Every officer whose duty it is , as such officer to the protection of the pecuniary interest of the Government;

Tenth:- Every officer whose duty it is , as such officer, to authenticate or keep any document for ascertaining of the rights of the people of any Village, town or district;

Eleventh:- Every person who holds any office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of 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 the local authority or 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.

                                         ILLUSTRATION

    A Municipal Commissioner is a public servant.

Explanations

•1. Persons falling under any of the above descriptions are public servant whether appointed by the Government or not.

•2.  Wherever the words “ public servant” occur 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.

•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 as by election.

Lecture No. 9 on IPC

•Section 21 of IPC does not define “ Public servant” but only enumerates the various functionaries who are designated as public servants.

•The general feature of a public servant is that he performs certain public functions.

•All government servants are not public servants .

What is the test to determine whether a person is a public servant?.

The test to determine whether a person is a public servant is:-

1.Whether he is in the service or pay of the Government; and

2.Whether he is entrusted with the performance of any public duty.

•There are some offences which by their nature are common to both men of public as well as public servants. They can be committed by public servants as well as by men of public and they are, therefore, left to the general provisions of the code.

•But there are some offences which can only be committed by public servants and not by the public generally.

•The public servants are dealt with more severally than other persons for they enjoy many privileges peculiar to themselves.

•An accused person must be a public servant on the date of commission of the offence. Retirement, resignation, dismissal or removal of a public servant cannot wipe out the offence committed while in service.

In Ramesh Balkrishna Kulkarni vs. State of Maharashtra 1986 Cri. L.J. 14 (S.C.) it was held that a Municipal Councilor who is not assisting any public servant is not a public servant within the meaning of Section 21 of IPC while determining this question the court held that there are two requirements for a public servant. One a “ public servant” is an authority who must be appointed by the Government or a semi governmental body and should be in the pay or salary of the same. Two a “ public servant” is to discharge his duties in accordance with the rules and regulations made by the Government.  Since a Municipal Councilor lacks both these elements therefore he is not a “public servant”