Sec. 21 of I.P.C

Querist : Anonymous (Querist) 25 October 2009 This query is : Resolved
Sir,

I am a law gradute. I have recently passed out of LL.B.

I have two queries:

My first query is with respect to the definition of Public Servant provided under Sec. 21 of I.P.C. Sec. 21 does not mention that a Public servant must be appointed by the Government. However, under Ramesh Balakrishna Kulakarni Vs State of Maharashtra a comment had been made that a pulic servant must be appointed by the Government (Ref: Tandon's Indian Penal Code. 23rd Edition 2005). But, Explantion 1 to the Section clearly mentions that persons falling under any of the desriptions mentioned under that section are public servants whether or not appointed by the Government. Please explain the inconsistency.

My 2nd query is with respect to the scope of the word Government used in Sec. 21. Does the word 'Government' mean the Central Government or the Government of a state as defined under Sec. 17 of the Code or not?

Also, please clarify if an M.L.A and a minister are Public Servants within the meaning of Sec. 21.

Regards,
Theja G

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PJANARDHANA REDDY (Expert) 25 October 2009
1.PUBLIC SERVANTS :: THE PERSON WHO ENJOYS THE SALARY/HONORARIUM/FROM PUBLIC EX-CHEQUER ARE FALLS UNDER.
2.GOVERNMENT MEANS ALL STATES AND BODIES OF STATES.
3. YES, THEY ARE NOT ALLOWED TO WORK IN ANY OFFICE OF PROFIT SHARING

adv. rajeev ( rajoo ) (Expert) 25 October 2009
Public Servants means : Any govt., officers, workers ppointed by the Govt.,
they shall be understood of every person who is in actual possession of the situation of a public servant.

Querist : Anonymous (Querist) 25 October 2009
Please tell me if they shall be appointed by the Government. Are MLAs and Minsters public servannts?

PJANARDHANA REDDY (Expert) 25 October 2009
MLA ,MINISTERS ARE NOT ALLOWED TO HAVE ANY JOB/SERVICE OF OFFICE OF PROFIT

Sachin Bhatia (Expert) 25 October 2009
No MLAs and Minsters are not allowed to have any govt. job.

Jithendra.H.J (Expert) 25 October 2009
Different courts ruled differently in the matter of definition of public servant under Section 21 (b) of IPC. In the case of S. P. Das vs State of Bihar[1990(1) Crimes 344], it has been held that Senior Divisional Manager and Assistant Manager of Insurance Company are public servants as defined under S. 21 IPC for entitling sanction u/s 197 Cr.P.C. However, in the case of the State of Maharashtra vs L. D. Kanchan[1988 INDLAW MUM 220], it has been held that employee of a Nationalised Bank is a public servant. Although, in different context, the recent judgment of the Supreme Court in the case of the National Small Industries Corporation Ltd. vs State NCT, Delhi[2008 INDLAW SC 1754], while dwelling on the definition of Public servant, it has been held that a Government company is not a public servant, but every employee of the company is a public servant.

Contrarily, the SC in the case of Mohd. Hadi Raja vs State of Bihar & Another[1998 INDLAW SC 169] held that the employees of Government companies cannot come within the ambit of the term public servant.

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Section 14. Servant of Government
"Servant of Government"

The words "servant of Government" denote any officer or servant continued, appointed or employed in India by or under the authority of Government.
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Section 21. Public Servant
The words "public servant" denote a person falling under any of the descriptions hereinafter following namely:-

1[* ****]

Second.- Every Commissioned Officer in the Military, 2[Naval or Air] Forces 3[4[* * *] of India];

5[Third.- Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory function;]

Fourth.- Every officer of a Court of justice 6[(including a liquidator, receiver or commissioner)] whose duty it s, 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 authorized by a Court of Justice to perform any of such duties.

Fifth.- Every juryman, assessor, or 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;

Eight. -Every officer of 7[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 convenience;

Ninth.- Every officer whose duty it is, as such officer, to take, receive, keep or extend any property on behalf of 7[the Government], or to make any survey, assessment or contract on behalf of the 7[the Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of 7[the Government], or to make, authenticate or keep any document relating to the pecuniary interests of 7[the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of 7[the Government] 8[***];.

Tenth. - Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

9[Eleventh.- Every persons who holds any office in virtue of which he is empowered to prepare, publish maintain or revise an electoral roll or to conduct an election or part of an election; ]

10[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 a local authority, a 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 (1 of 1956.]

Illustration

A Municipal Commissioner is a public servant.

Explanation 1. - Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.

Explanation 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.

9[Explanation 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.]

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"The chief minister considered as public servant in TANSI (Tamil Nadu Small Industries Corporation) cases "

Anish goyal (Expert) 25 October 2009
Explanation clearly provides that a officer is a public servant whether or not employed by government.
If the book has cited such a decision you must read the case itself. May be court has said it in other context.