PETITIONER:
S. G ANGOLI
Vs.
RESPONDENT:
THE STATE OF UTTAR PRADESH(and connected appeal)
DATE OF JUDGMENT:
14/05/1957
BENCH:
ACT:
Prevention of Corruption-Railway Servant under the
Government-If a Public servant under the Act-Prevention of
Corruption Act, 1947 (11 Of I947), S. 2-Indian Railways Act,
1890 (9 of 1890), s. 137(4)-Indian Penal Code (45 of
1860), S. 21.
HEADNOTE:
The two appellants, who were railway servants under the
Government, were put up on trial under S. 120B of the Indian
Penal Code and s. 5(2) read with s. 5(1)(c) and 5(1)(d) of
the Prevention of Corruption Act, 1947. The Sessions judge
who tried the case found, in agreement with the unanimous
opinion of the assessors, the appellants guilty and
sentenced appellant No. i to rigorous imprisonment for three
years and appellant No. 2 to rigorous imprisonment for two
years. The High Court on appeal affirmed the order of
conviction and sentences passed on the appellants. It was
contended on behalf of the appellants in this court that the
order of conviction and the sentences passed on them were
illegal as they were not public servants under S. 2 Of the
Prevention of Corruption Act, 1947.
Held, that it was apparent from the words " for any of the
purposes of that Code " used by s. 137(4) Of the Indian
Railways Act, 1890, as it stood prior to its amendment in
1955, that the bar created by that sub-section applied, and
was confined, to the purposes of the Indian Penal Code and
could not be extended beyond its provisions. In respect of
offences other than those under the Code, therefore, neither
sub-s. (1) Of s. 137, which applied only to offences under'
Ch. IX of the Code, nor sub-s. (4) of that section could
apply and the question whether a railway servant charged
with offences under the Prevention of Corruption Act, 1947,
was a public servant or not must be, decided under s. of
that Act.
29i
Section 2 of the Prevention of Corruption Act adopts, the
definition of a public servant contained in S. 21 Of the
Indian Penal Code, and since the main offences charged
against the appellants were under that Act, and not under
the Code, S. 2 Of the Act would apply and they would be
public servants within the meaning thereof.
Devi Ram Deep Chand v. The State, A.I.R. 1954 Punj. 189
disapproved.
Ram Krishan v. The State of Delhi, [1956] S.C.R. 182 and
C. A. Montorio v. The State of Ajmer, [1956] S.C.R. 682,
considered.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 20
and 21 of 1957.
Appeals by special leave from the judgment and order dated
September 14, 1955, of the Allahabad High Court (Lucknow
Bench) at Lucknow in Criminal Appeals Nos. 374 and 376 of
1956, arising out of the judgment and order dated the April
24, 1954, of the Sessions Judge, Lucknow, in Sessions Trial
No. 106 of 1951.
R. L. Anand and S. N. Anand, for the appellant in Cr. A.
No. 20 of 1957.
N. C. Chatterjee and D. N. Mukherjee, for the appellant in
Cr. A. No. 21 of 1957.
H. R. Khanna and R. H. Dhebar, for the respondent.
1959. May 14. The Judgment of the Court was delivered by
GAJENDRAGADKAR J.-Are the appellants S. Gangoli and P.R.
Chaudhri (hereafter called appellants I and 2 respectively)
public servants under s. 2 of the Prevention of Corruption
Act, 1947 (Act II of 1947) (hereafter called the Act) ? That
is the short question which arises for our decision in the
present appeal. That question arises in this way.
Chaudhri had been posted as Assistant Permanent Way
Inspector, Sultanpur, East Indian Railway, in March, 1948,
in the Lucknow E.I.R. Division. Gangoli was posted as
Assistant Pay Clerk in the Lucknow E.I.R. Division during
the same period. The case against the appellants was that
they had committed an offence under S. 120B of the Indian
Penal Code and
s. 5(2) read with ss. 5(1)(c) and 5(1)(d) of the Act. It
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appears that in accordance with the Pay Commission’s Report
a sum of Rs. 16,685 was entrusted to appellant No. 2 by the
railway department to be disbursed among Class IV staff
working under appellant No. 1. This payment had to be made
in the presence of, and was to be attested by, appellant No.
1. According to the prosecution both the appellants had
entered into a criminal conspiracy to misappropriate a part
of the said government amount entrusted to appellant No. 2
by paying to the respective members of Class IV staff lesser
amounts than those to which they were entitled and by making
entries in the pay-sheets which purported to show that the
due amounts had been paid to them. In accordance with this
conspiracy payment was made on March 11, 1948, in a running
train between Faizabad and Chilbila and the entries in the
pay-sheets show that the whole of the amount of Rs. 16,591
had been paid to 216 employees. The entries also show that
the payment had been made by appellant No. 2 and the same
had been attested by appellant No. 1. In fact the whole
amount had not been disbursed to the employees who in all
were paid Rs. 1,555 less. In this manner the two appellants
had misappropriated the sum of about Rs. 1,555 and had
falsified the paysheets in pursuance of their conspiracy.
Within a few days of the said payment the employees became
suspicious because they learnt that persons recruited on the
same day had been paid larger amounts as arrears. Thereupon
they approached the higher officers and made a complaint to
them. They were advised to present their grievance in
writing and as a result some of the employees did present
applications in writing complaining that they had not
received the due payment of their arrears. These
representations led to an enquiry and Mr. Dalip Singh in
fact recorded some of the statements OD April 6 and 7, 1948.
The prosecution alleges that this development alarmed
appellant No. 1 and he tried to hush up the matter by
calling all the men together and paying them the amounts
which had been previously wrongfully deducted from their
arrears. It is the prosecution case that on this day three
documents were
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executed, Exs. 5, 10 and 11, which would clearly show that
the appellants had committed the offences charged against
them.
Both the appellants denied the charges. They pleaded that
they had not entered into any conspiracy and it was their
suggestion that they had been falsely implicated in the
present case. Appellant No. 1 pleaded that the case against
him had been started, and false evidence had been secured by
H.N. Das with the aid of Shambu because relations between
him and Das were not friendly. Appellant No. 2 pleaded that
he had been falsely implicated because, contrary to the
suggestion of the police, he had refused to implicate
appellant No. 1. According to them the evidence adduced by
the prosecution was interested and false, and the documents
produced by it were either fabricated or irrelevant.
In support of its case the prosecution examined 44
witnesses, relied upon the three documents Exs. 5, 10 and 11
and urged that the charges framed against the appellants
were clearly established by the said evidence. The learned
Sessions Judge at Lucknow who tried the case against the
appellants agreed with the unanimous opinion of the
assessors and held that the charges framed against the
appellants had been proved beyond a reasonable doubt file
accordingly convicted them of the said offences and
sentenced appellant No. 1 to suffer rigorous imprisonment
‘for three years and appellant No. 2 to -suffer rigorous
imprisonment for two years.
This order of conviction and sentence was challenged by the
appellants by preferring appeals in the High Court of
Judicature at Allahabad. These appeals, however, failed and
the High Court substantially agreed with the conclusions of
the learned trial judge. Mr. Justice Kidwai who beard these
appeals no doubt partly accepted the defence plea and held
that Das was not a reliable witness and that he might have
been responsible for the fabrication of Ex. 10. The learned
judge also found that Shambu was likewise an unreliable
witness. Even so it was held that the evidence of gangmen
was on the whole satisfactory and that the
204
documents Exs. 5 and I 1 corroborated the oral evidence
adduced by the prosecution. In the result the order of
conviction and sentence passed against the appellants by the
trial judge was confirmed. It is against this order passed
by the High Court that the appellants have preferred the
present appeals by special leave; and the only point which
they have raised before us is that their conviction and
sentence are illegal because they are not public servants
under s. 2 of the Act.
Section 2 of the Act provides that for the purposes of this
Act public servant means a public servant as defined in s.
21 of the Indian Penal Code. It is not disputed that under
s. 21 the appellants are public servants. The East Indian
Railway which has employed the appellants was at the
material time owned by the Government of India and managed
and run by it, and so if the status of the appellants had to
be judged at the material date solely by reference to s. 21
of the Code there would be no difficulty in holding that
they are public servants as defined by the said section.
It is, however, urged that, for determining the status of a
railway servant, it is necessary to consider s. 137 of. the
Indian Railways Act, 1890 (Act 9 of 1890). It may be
recalled that when this Act was passed almost all the
railways in India were owned and managed by public limited
companies and as such railway servants as defined by s. 3(7)
of the Railways Act could not be treated as public servants
under s. 21 of the Code. After the railways were
nationalised and taken over by the Government of India, this
position has materially altered. But prior to the
nationalisation of railways, the position was that railway
servants as such did not fall under s. 21 of the Code. That
is why s. 137(1) and (4) purported to bring them within the
definition of public servants contained in the said section.
Sub-s. (1) of s. 137 provides that every railway servant
shall be deemed to be a public servant for the purposes of
ch. IX of the Indian Penal Code. The effect of this sub-
section is to treat railway servants as public servants
under s. 21 for the purpose of offences relating to public
servants which are dealt with by ss. 161 to 171 is ch. IX
of the Code. It is thus clear that the
295
result of this provision was to treat railway servants as
public servants even though they did not satisfy the
requirements of the definition of s. 21. Having provided
for the extension of the said definition to railway servants
for the purposes of ch. IX of the Code, subs. (4)
prescribed that notwithstanding anything contained in s. 21
of the Indian Penal Code a railway servant shall not be
deemed to be a public servant for any of the purposes of
that Code except these mentioned in sub-s. (1). It is on
this sub-section that the appellants’ argument is based. It
is urged by Mr. B. L. Anand that this sub-section clearly
provides that railway servants shall not be deemed to be
public servants except for the purposes of ch. IX; and
since the appellants had not been charged with any of the
offences in ch. IX of the Code they cannot be treated as
public servants for the offences under ss. 5(1) and 5(2) of
the Act. It is true that these two sub-sections have been
amended by Act 17 of 1955. Sub-s. (4) has been deleted and
sub-s. (1) now provides that every railway servant being a
public servant as defined in s. 21 of the Indian Penal Code
shall be deemed to be a public servant for the purposes of
ch. 1X and s. 409 of that Code. In other words, under the
amended provision of s. 137(1) railway servants would be
deemed to be public servants under s. 21 of the Indian Penal
Code only for the purpose of eh. IX and s. 409 of that
Code. We are, however, concerned with the provisions of s.
137 prior to its amendment in 1955.
Now s. 137, sub-s. (4) opens with the non-obstante clause
and expressly states that a railway servant shall not be
deemed to be a public servant for any of the purposes of
that Code subject of course to the exception mentioned in
sub-s. (1). The argument is that the non-obstante clause
has the effect of excluding the application of s. 21 of the
Code in all cases except those falling under ch. IX of the
Code; and it is urged that since the offences charged
against the appellants are outside ch. IX of the Code, sub-
s. (4) creates a bar against treating them as public
servants for the purpose of the said offences. This
argument, however, ignores the relevant words ” for any
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of the purposes of that Code” used in sub-s. (4). These
words indicate that the bar created by sub-s. (4) applies,
and is confined, to the purposes of that Code and cannot be
extended beyond the said purposes. What subs. (4) really
provides is that if a railway servant is charged for an
offence under the Indian Penal Code and the said offence is
outside ch. IX of the Code he cannot be treated as a public
servant. This sub-section does not purport, or intend to
make any provision in respect of offences which are outside
the Penal Code, In respect of such offences neither sub-s.
(1) nor sub-s. (4) of the Railways Act would apply, and the
question as to whether railway servants fall within the
mischief of the Act must be decided in the light of the
provisions of the said Act itself.
That takes us to the question whether the appellants can be
said to be public servants under s. 2 of the Act. S. 2, as
we have indicated, in substance incorporates in itself the
definition of a public servant contained in s. 21 of the
Indian Penal Code. There can be no doubt that the effect of
s. 2 of the Act is that the status of accused persons has to
be determined by the application of s. 21 of the Indian
Penal Code as if the said section had been included in the
Act. If that be so the appellants cannot resist the
conclusion that they are public servants under s. 2 of the
Act. The contention that because s. 2 of the Act refers to
s. 21 of the Indian Penal Code the bar created by s. 137(4)
of the Railways Act would inevitably come into operation is
unsound. The said bar can be invoked only if the status of
the accused person is being determined for any purposes of
the Code other than those of ch. IX. In the present case
the main offences charged are under the Act and not under
the Code, and so s. 137.(4) in inapplicable.
With regard to the construction of s. 137(4) there is
another consideration which may be indicated. S. 137(1)
brings within the definition of s. 21 of the Code railway
servants who but for it would not have satisfied the tests
laid down in s. 21. The deeming provision of sub-s. (1)
would be clearly inappropriate
297
and unnecessary if the railway servants concerned could be
treated as public servants under s. 21 itself. In other
words, railway servants employed by the railway
administration owned and conducted by the Government of
India would be public servants under s. 21 as such without
recourse to the statutory fiction introduced by s. 137(1).
Having provided for this statutory fiction by sub-s.(1),
sub-s. (4) purports to cover the same ambit and to deal with
the same class of railway servants and it provides that this
class of persons shall not be deemed to be public servants
except as mentioned in sub-s. (1). This negative statutory
fiction is only intended to emphasise the fact that persons
who are treated as public servants by virtue of sub-s. (1)
can be dealt with only under the provisions of ch. II of
the Code and no other. Could it have been intended by the
Legislature that sub-s. (4) should exclude the application
of the provisions of the Code other than those contained in
ch. IX to railway servants who would be public servants
under s. 21 without the aid of sub-s. (1) of s. 137 ? Prima
facie such an intention cannot be attributed to the Legis-
lature. It is true that the non-obstante clause lends some
assistance to the argument of the appellants that with the
exception of the provisions of ch. 1X, s. 21 of the Code
would be inapplicable to railway servants; but the said non-
obstacle clause cannot prima facie be wider in its scope
than sub-s. (1) of the card section. The said non-obstante
clause has apparently been inserted ex abundanti cautela (1)
to clarify the effect of s. 137(1). The two subsections
introduce a positive and a negative fiction respectively and
thereby achieve the same result. However, since we are
concerned with the provisions of the Act and not with any
provisions of the Code other than ch. 11 it is unnecessary
to pursue this point any further and to express a definite
opinion on this aspect of the matter.
We must now refer to the decisions to which our attention
was invited. The first case on which Mr. Anand relied is
the decision of the Punjab High
(1) (1955) 2 S. C. R. 977 – Rai Bahadur Kanwar Raj Nath &
Ors. v. Pramod C. Bhatt, Custodian of Evacuee Property.
38
298
Court in Devi Ram Deep Chand v. The State (1). In that case
the accused were goods clerks employed by the railway and
they were being prosecuted in the court of a First-Class
Magistrate on charges under S. 408 of the Penal Code. It
was urged on their behalf that the offences alleged against
them were in substance offences under s. 5 of the Act, and
that they could be tried by a special judge alone. That is
why the High Court was moved for a transfer of the case
against them from the court where it was pending to the
court of the special judge. From the judgment of the High
Court it clearly appears that the learned Assistant
Advocate-General intimated to the Court that the prosecution
did not propose to frame or prove a charge against the
appellants under s. 5 of the Act. Therefore s. 2 of the Act
did not really fall to be construed by the court; and so the
observations made by Dulat, J., that if the petitioners are
not public servants within the meaning of s. 21 of the Penal
Code they cannot be called public servants for the purposes
of Act 2 of 1947, is clearly orbiter. If, however, this
observation was intended to be a decision on the point, it
must, with respect, be held to be based on a misconstruction
of s. 137(4).
Mr. Anand has also fairly invited our attention to two
decisions of this Court-Ram Krishan v. The State of Delhi
(2) and C. A. Montorio v. The State of Ajmer(‘) -which are
prima facie against his contention. In the first of these
two decisions the appellants had been charged under s. 120B
of the Indian Penal Code for criminal conspiracy to cause
offence of criminal misconduct punishable under s. 5(2) of
the Act to be committed by Madan Lal as also under that
section read with s. 116 of the Code. They had been
convicted by the special judge on both the counts and their
conviction had been upheld by the High Court. In their
appeal before this Court one of the points raised by the
appellants was that Madan Lal was not a public servant
within the meaning of the Act. It appears that the offence
in question had been committed on
(1) A. I. R. 1954 Punj 189. (2) [1956] S.C.R. 182.
(3) [1956] S.C.R. 682.
299
December 29, 1951, and the argument was that under s. 137(1)
and (4) Madan Lal who was a railway servant could not be
held to be a -public servant under s. 2 of the Act.
Chandrasekhara Aiyar, J., who delivered the judgment of the
Court, cited s. 137(1) and added that sub-s. (4) had been
omitted by the amendment of 1955. Then the learned judge
referred to s. 2. of the Act and concluded thus: ” The
result is that before the amendment railway servants were
treated as public servants only for the purpose of ch. IX
of the Indian Penal Code but now as the result of the
amendment all railway servants have become public servants
not only for the limited purpose but generally under the
Prevention of Corruption Act.” With respect, it may be
pointed out, that this observation seems to give to the
amended provisions of s. 137 of the Railways Act
retrospective effect. The question of the construction of
the relevant sections does not appear to have been fully
argued before this Court and it has not been considered. It
is nevertheless true that in respect of an offence committed
in 1951 Madan Lal was hold to be a public servant under s. 2
of the Act.
In the case of Montorio (1) the main point raised before
this Court was whether the accused was a public servant
under s. 21 of the Code and that was considered by this
Court; in dealing with that question this Court construed s.
21 and held that the appellant was an officer within the
meaning of s. 21(9) and therefore a public servant within
the meaning of s. 21. Incidentally reference has been made
to the earlier decision of this Court in the case of Ram
Krishan (2) and it has been observed that the said decision
” lays down that before the amendment of s. 137 of the Rail-
ways Act, by Act 17 of 1955, railway servants were treated
as public servants only for the purposes of ch. IX of the
Indian Penal Code but in any event they were public servants
under the Prevention of Corruption Act.” With respect, this
latter statement does not appear to be borne out by the
judgment in the case of Ram Krishan (2).
(1) [1956] S.C.R. 682. (2) [1956] S.C. R. 182
300
Going back to s. 2 of the Act once more we must hold that in
defining a public servant it enacts the same definitions as
s. 21 of the Indian Penal Code and under this interpretation
of the section, the appellants undoubtedly are public
servants. The result is the courts below were right in
holding that the appellants could be properly charged and
tried for offences under s. 5(2) read with s. 5(1)(c) and s.
5(1)(d) of the Act. The validity of the charge under s.
120B has not been and cannot be challenged.
Mr. Anand for appellant No. 1 and Mr. Chatterjee for
appellant No. 2 appealed to us to reduce the sentence passed
against their clients. It was urged in support of this plea
that though the charge against them was in respect of a
large amount of Rs. 1,555 evidence had been adduced to prove
misappropriation of Rs. 218 which is a much smaller amount.
We do not think that in the circumstances of this case the
actual amount shown to have been misappropriated has a
decisive or even a material bearing on the question of
sentence. The positions respectively occupied by the
appellants, the relations between them and the Class IV
servants, the method adopted by the appellants in committing
the offence and the other circumstances have all been
considered by the courts below in passing concurrently the
respective orders of sentence against the appellants. In
our opinion there is no justification for interfering with
the said orders.
The appeals accordingly fail and are dismissed. The
appellants to surrender to their bail bonds.
Appeals dismissed.
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