Rajasthan High Court - Jaipur
Kishan Lal Mantumal vs State Of Rajasthan on 27 July, 1988
Equivalent citations: 1988WLN(UC)479
JUDGMENT D.L. Mehta, J.
1. This petition is directed against the order dated, 26th May, 1988, passed by special Judge, CB( Cases, Jaipur, in the matter of framing of charges against the present petitioner.
2. Present petitioner has submitted that the Bank Officer is not a Public Officer within the purview of Section 21 of the Indian Penal Code. It was submitted that the Bank is not a Corporation but is Corporate Body.
3. Mr. Jain appearing on behalf of the present petitioner has referred before me the case of N. Vaghul and Ors. v. State of Maharashtra 1987 Cr. LJ. 385 in which it has been held under:
Section 46A Banking Regulation Act, 1949 lays down that a Chairman, Director, Manager and other employees of banking company shall be deemed to a public servent for the purposes of Chapter IX, Penal Code." In the Acquisition and Transfer Undertakings Act of 1970, Section 14 prescribes that every custodian of a corresponding new bank, viz , a nationalised bank, shall be deemed to be a public servent, again, "for the purposes of Chapter IX Penal Code." Act No. 40 of 1980 in Section 14, repeats the deeming being restricted to Chapter IX Penal Code. Since the banking statute shows a limitation, it will not be permissible to over come these limits, by recourse to the general word used in Clause 12(b) of Section 21 IPC. If the legislature wanted certain specific bank employees to be considered "Public Servants" for limited purpose, the contrary cannot be held by taking recourse to the wide sweep of Section 21 IPC.
4. Mr. Jain also referred before me the case of I.P. Chopra v. Ram Sahai 1985 Raj. Cr. Cases 366 where in my brother Justice Kasliwal held that the Bank employee is not a public servant.
5. On other hand, Mr. Tyagi submitted that the Bank employees are the public servant. He has cited before me the case of K.K Bhatia v. State of Rajasthan (CBI) in S B. Cr. Misc. Applications No. 565/85 and 8 other similar applications decided on 16th October, 1986 by my brother Hon'ble Justice Farooq Hasan, in which my brother Justice Farooq Hasan has held that the employees of the Bank are public servant.
6. Mr. Tyagi has also cited before me the case of Kurjan v. State of Kerala 1982 Cr LJ 780 in which their Lordships of Kerala High Court have held as under:
After the passing of Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, Central Bank of India became a bank of which entire share capital vested in the Central Government and thus it satisfies definition of the Government Company' in Section 617 of the Companies Act. It is also a body corporate established under a Central Act Moreover a Nationalised Bank comes under 'other authorities' in the definition of" "State" in Article 12 of the Constitution. This also indicates that an employee of Nationalised Bank is a public servant.
7. Mr. Shrimal appearing on behalf of the State has raised a very interesting point of law and submitted that every employee of the State is a "public servant". He submits that any instrumentality or agency created under the statute or under the executive powers of the State are within the purview of the State under Article 12 of the Constitution of India. Mr. Shrimal submits that the University is a State, Co-operative Society which is controlled by the State is a State and it is not necessary to restrict the meaning of the word 'public servant' only in relation to the Government servant. He submits that every employee of the State which falls within the purview of Article 12 of the Constitution is a 'public servant.' It was also pointed out by Mr. Shrimal that the Legislature in its wisdom in Section 21 of the Indian Penal Code has used the word 'denote'. Public servant denotes a person falling under any of the descriptionhere in after following namely:
First ........... Second ............ Third ......... Fourth .......... Fifth ............. Sixth ......... Seventh ......... Eighth ............ Ninth ......... Tenth ........... Eleventh .......... Twelth-Every rerson
[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 of pay of local authority a Corporation established by or under a Central, Provincial or States Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).
8. Mr. Shrimal submits that the word "denotes" has been defined in Webster's Third International Dictionary as under:
"denote", to serve as indication of show by signs the presence or existence of; to serve as an arbitrary mark for; designate; as a sign; write down; DESCRIBE, to make know; announce denoting his feelings clearly), serve as linguistic expression of the motion of "one" or single ), to designate by an indicated symbol, lapse of time to stand for, signify by way of denotation; NAME (the name is said to signify the subjects directly, the attributes.
Thus, Mr. Shrimal submits that the clauses given are only the illustrative and wider meaning and interpretation should be given to the word "denote'' and the public servant' as used in Section 20 of the Indian Penal Code. Mr Shrimal also submitted that law should be applied and interpreted taking into consideration the present needs of the society and not needs which were in existence 10 years back at the time of enactment of the Indian Penal Code.
9. I have heard the rival contentions of both the parties. First of all I will deal with the interpretation taken by Mr. Shrimal about the definition of the 'Public Servant'. Their Lordships of the Supreme Court in the case of Mubark Ali v. State 1957 SC 857 it has been held as under:
It is not necessary and indeed not permissible to construe the Indian Penal Code at the present day in accordance with the notions or criminal jurisdiction prevailing at the time when the Code was enacted The notions relating to this matter have very considerably chanced between then and now during nearly a century that has elapsed It is legitimate to construe the Code with reference to the modern "needs wherever this is permissible, unless there is anything in the Code or in any particular section to indicate the contrary.
10. Their Lordships of the Supreme Court were aware of the fact that while interpreting the law one should not forget that there is very considerable change between the century old decades and new decade. We should also not forget that law is meant for justice to the persons who are the conumers and not for the persons who want to gain out of the technicalities or preserve their positions because of the law. One should not forget that the Indian Penal Code has been enacted more than 100 years back during the dependence on the British Regime. We have achieved political independence but it will take more time to achieve the mental independence and independent approach in the matter of dealing the with the problems of the Society.
11. The system, the social conditions and economic conditions of the people of the east-west differ too much. As such, it is necessary that while applying the law we should not forget the social, economic and politcal conditions of our country and should not embark upon applying the law in a way as applied in the Western countries, particularly Great Britain and America. After independence the Constitution of India has come into existence and we are governed by the Constitution. Some-times the law comes into existence on account of its applicability and interpretation by the Court of Law also. With these in mind, I will deal with the problem of interpretation of Section 21 of the Indian Penal Code.
12. Article 12 of the Constitution provides that "the State includes the Government and the Parliament of India and the Government and the Legislature of each of the State and all local or other authorities within the territory of India or under the control of the Government of India". Any authority which is under the control of the Government of India is a State within the purview of Article 12. Nationalised Bank is an authority and is is controlled by the Government of India and is instrumentality of the Reserve Bank of India. It is a statutory body constituted under the Statute though registered under the Banking Act. Similarly, the word "authorities" is very wide enough in Article 12 of the Constitution of India and any authority which is an instrumentality or agency of the State falls within the purview of 'State' as defined in Article 12 of the Constitution. Every employee of the State which falls within the purview of the 'State' as defined under Article 12 automatically becomes the employee of the State. Every employee thus becomes the public employee because he is an employee of the State. It will not be out of place here to mention, that number of co-operative societies are controlled financed and managed by the State Government. Their employees will also become the 'public servant'. I find force in the argument of Mr. Shrimal that every employee of every Institution, Instrumentality, Agency, Corporate Body, Corporation, is a State employee and is a public servant with the purview of Section 21 of the Indian Penal Code. Mr. Shrimal has also referred the provisions of Section 21 of the Indian Penal Code, particularly the word "denctes". The word 'denote' and the word 'mean' cannot be equated. The word "means" is exhaustive and it gives the exhausive list and any institution not falling within the list of "means" cannot he equated. The word "denotes" is not exhaustive it only serves as an indicator of the persons who can be included in the list which is illustrated and it does not exclude the persons who have not been included in the definition provided; it only gives the illustrative definition I am fortified in taking this view by the judgment of Full Bench of Allahabad High Court in the case of Durban Lal v. Dharmwati it has been held that the words or expressions are generally defined in the statutes by employing the words "means" 'includes' 'denotes' etc When "means" is employed it shows that the definition is hard and fast and no other meaning can be assigned to the word or expression "defined" then is put down in the definition. The use of the word 'denotes' shows that Legislature in its wisdom considered it better not to put down cast iron definition of the word, but only sought to describe what the word "might" means. Thus there is a distinction between the words 'meats' and the word 'dentos'. The word "denotes" does not put the cast iron and allows the flexibility of interpretation by including the new definition, new scope which may he noted at the time of interpretation. As such, I am of view that without taking the assistance of Article 12 of the Constitution also and while considering the scope of the word "denote" as used in Section 21 IPC it can be held that every employee of the State who falls within the purview of Article 12 of the Constitution is a 'public servant' as defined under Section 21 of the Indian Penal Code. This definition is the need of the time. University is not a Government but, if any officer commits the crime of bribery, can he be allowed to be free-un-scratched by saying that he is not a public servant under Section 21 of the Indian Penal Code? University has been recognized as a State. Everyday Article 226 of the Constitution is used against the University, then, how the Officers of the University will not be the 'public servant' under Section 21 and why they should be given liberty to go unscratched from the legislation of Prevention of Corruption Act. Same is the position about the Co-operative societies controlled and managed by the State or the societies which are the instrumentalities or agencies of the State and the word 'public servant' also includes such institutions as the word 'denotes' authorises the court to include any institution as a State which can be considered as a State within the meaning of Article 12 of the Constitution and their employees automatically become the employees of the State and they have become the "public servant.
13. This interpretation is also in favour of the employees of the institutions, like University, Cooperative Society, Nationalised Banks etc. There may be an argument about the sanction and they may claim the privilege that there may not be harassment by filing false and fictitious litigation against them without permission. To include the employees of the Bank, University, Co-operative Society and all employees of all similarly situated State employees will get the protective umbrella of sanction which is necessary for the prosecution of the Govt, servant. Thus, on the one hand, it enlarges the scope of the definition of the word 'public servant' and other employee of the State who falls within the purview of Article 12 becomes 'public servant. As such, there should not be any reason to take any other view.
14. My brother Justice Kasliwal has not discussed at all the scope of Article 12 qua the definition of the 'public servant' as provided under Section 21 of the Indian Penal Code.
15. The Banking Regulation Act, 1949 came into force earlier and, thereafter, the Banking Companies (Acquisition and Transfer of under-taking) Act, 1970 came into force on 31st March, 1970. Section 46A of the Act reads as under:
46A. Chairman, Director, etc. to be public servants for the purpose of Chapter IX of the Indian Penal Code. Every Chairman, Director, Auditor, Liquidator, or, Manager and any other employee of a banking company shall be deemed to be a public servant for the purpose of Chapter IX of the Indian Penal Code (45 of 1860).
16. It is not necessary that the Chairman, Director 'Auditor or Liquidator in all cases should be paid employees. The employment means there should be relationship of master and servant. The Bank is not precluded from having honorary Chirman, honorary elected Directors or any elected persons to look into the interest of the Bank. These officers who are acting honararily will be the Chairman, the Directors of the Bank, though they are not employees, and, in such, circumstances, to meet out such contingency Section 46A has been inserted to deal with the persons who are not employees, can be considered as 'public servant' within the meaning of Section 21, IPC. The definition of the word "Public Servant" has been enlarged by law to give the status of 'public servant' to the persons who are not servant at all but who are dealing with the property of the State. The old Section 14 of the Banking Regulation Act of 1949 was very relevant. It provided that any servant of the State or any institution who is the custodian of the property of the State or who deals with the property of the institution, like Bank, is a public servant in all respects.
17. For the reasons mentioned above, I do not find any force in the submissions made by Mr. Jain. The petition is dismissed accordingly.