Full Judgment Text
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PETITIONER:
DATTATRAYA NARAYAN PATIL
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT16/04/1975
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
FAZALALI, SYED MURTAZA
CITATION:
1975 AIR 1685 1975 SCR 145
1976 SCC (1) 11
CITATOR INFO :
R 1979 SC 898 (51)
ACT:
I.P.C. Sec. 21, 353, 355--Public servant-Duty assigned to a
public servant by an executive order whether public duty.
HEADNOTE:
Shri Antulay, a Minister presided over a meeting of the
District Advisory Committee. The appellant attended that
meeting as an M.L.A. and his brother attended is a Sabha-
Patai of the Building Department of the Zila Parishad.
According to the prosecution, the appellant and his brother
assaulted Shri Antulay, a public servant in the execution of
his duty, as such public servant within the meaning of Sec.
353 of the Code. The Magistrate held that Shri Antulay was
a public servant and that, therefore, the charge could be
framed under Section 353. On revision, the Sessions Court
held that charges could be framed against the appellant
under Sec. 353 and 355 of the Code, A revision petition
filed by the appellant in the High Court was dismissed. On
appeal by Special Leave, it was contended before this Court
by the appellant:
(1)That the District Advisory Committee is not a Statutory
Committee. It was constituted under an administrative order
of the Government. It exercised no Governmental authority.
Its function is only to make recommendations to the
Government.
(2)The Chairman presiding at a meeting of the Committee is
not acting as a Public servant.
(3)When an assault was made or criminal force was used
against the Chairman as alleged by the prosecution at such a
meeting it was directed against the person presiding at the
meeting and not against a public servant.
(4)A Minister may be a public servant but while presiding
over a meeting of the Advisory Committee he was not
functioning as a Minister but as a Chairman.
(5) That the Judicial Magistrate committed an error of law
in treating the charge sheet as a complaint and framing the
charge against the appellant for a non-cognizable offence
tinder section 3551511 of the Code.
Dismissing the appeal,
HELD : The District Advisory Committee was constituted by a
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notification of the Government of Maharashtra for the
purpose of reviewing the work of Zila Parishad and Panchayat
Samities. The Minister a public servant was the Chairman of
the Committee. The Divisional Commissioner was to be the
conveyor and the Deputy Commissioner was to act as the
Secretary. They were ill public servants. The duty
assigned to a public servant by his master whether under a
statute or by the executive order, will assume the character
of public duty provided the duty assigned is not illegal or
against the public policy. [148B-C, 149-B-C]
Shri Antulay, therefore, was a public servant.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 257 of
1972,
146
Appeal by special leave from the judgment and order dated
the 29th June, 1972 of the Bombay High Court in Criminal
Revision Appln. No. 1129 of 1971.
M.C. Bhandare, R Nagaratnam and Manju Jaitley, for the
appellant.
H. R. Khanna, for the respondent.
The Judgment of the Court was delivered by
UNTWALIA, J.-This is an appeal by special leave. The
question which falls for determination is whether a charge
could be legally and validly framed on the facts alleged by
the prosecution against the appellant under section 353 of
the Indian Penal Code--hereinafter called the code.
An incident is said to have taken place in a meeting of the
District Advisory Committee of Kolaba District held on the
22nd of August, 1970 at about 3.00 p.m. in a panda near the
Nehru Hall at Alibag under the Chairmanship of Shri A. R.
Antulay a Minister of the Government of Maharashtra. The
appellant was a member of The Legislative Assembly and his
brother was the Sabhapati of the Building Department of the
Zilla Parishad. Both of them attended the meeting. Certain
incidents took place in that meeting, which according to the
prosecution, amounted to assault or use of criminal force by
the appellant to the Minister-a public servant-in the
execution of his duty as such public servant within the
meaning of section 353 of the Code. It was further alleged
that the action of both the brothers also amounted to
assault or use of criminal force to Shri Antulay intending
thereby to dishonour him, otherwise than on grave and sudden
provocation given by that person, within meaning of section
355. A complaint of the incident was lodged with the
police. Investigation was made and Charge-sheet was
submitted in the court of the Judicial Magistrate at Alibag
against both the accused for offences alleged to have been
committed by them under sections 353 and 355 read with
section 34 of the Code. On perusal of the papers in
accordance with section 251 A of the Code of Criminal
Procedure, 1898 and after hearing the arguments the
Magistrate found that Shri Antulay, being a Minister, was a
public servant. In that capacity he was presiding over the
meeting of the District Advisory Committee of Kolaba
District. He, however, held that the meeting of the
Committee was illegal because it was not convened at the
instance of the Commissioner of the Division as required by
the Rules. He also held that the appellant who was accused
no. 1, at the most, had prepared to assault the Minister and
not actually assaulted or used criminal force. The
appellant was discharged by the Magistrate in relation to
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the charge under section 353, but a charge under section 355
read with section 511 was framed against him His brother,
accused no. 2, was however completely exonerated and dis-
charged.
147
Two revisions were filed before the Sessions Judge, Kolaba-
One by the State and the other by the appellant. The State
wanted charges to be framed against the appellant under
sections 353 and 355 and also against accused no. 2. The
appellant, however, wanted the Sessions Judge to quash the
charge framed against him under section 355/ 511 of the
Code. The learned Sessions Judge allowed the revision filed
by the State in part and dismissed the one filed by the
appellant. Be directed the framing of charges against the
appellant under both the sections, viz. 353 and 355 of the
Code. The discharge of accused no. 2 was, however,
maintained. The matter was taken further in revision before
the Bombay High Court by the appellant only. The High Court
has directed the framing of the charge against the appellant
both under section 353 and 355 of the Code. Hence this
appeal by special leave.
Learned counsel for the appellant did not canvass before us
the justification of the discharge of the appellant for the
offence under section 353 of the Code on the ground of the
allegedly illegal convening of the meeting of the Advisory
Committee. We are, therefore, not called upon to express
any opinion of ours in this judgment in that regard. Nor
should we be deemed to have expressed, any opinion, even by
implication, as to the truth or falsehood of the allegations
made against the appellant, or, whether the prosecution by
its evidence win be able to prove the charge against the
appellant. We confine our judgment to the decision of the
only question which falls, for our determination.
Learned counsel for the appellant submitted :
(1)That the District Advisory Committee is
not a Statutory Committee. It was constituted
under an administrative order of the
Government. It exercised no Governmental
authority. Its function is only to make
recommendations to the Government.
(2)The Chairman presiding at a meeting of
the Cornmittee is not acting as a public
servant.
(3) When an assault was made or criminal
force was used againstthe Chairman as
alleged by the prosecution at such a meetingit
was directed against the person pres
iding at
the meeting and not against a public servant.
(4) A Minister may be a public servant but
while presiding over a meeting of the Advisory
Committee he was not functioning as a Minister
but as a Chairman.
(5)That the Judicial Magistrate committed
an error of law in treating the Charge-Sheet
as a complaint and framing the charge against
the appellant for a non-cognizable offence
under section 355/511 of the Code.
The decision on the last point urged on behalf of the
appellant would have been necessitated provided the argument
advanced on his behalf in relation to the charge of the
cognizable offence under section
148
353 of the Code would have been well-founded and correct;
otherwise not. Since in our opinion it is not so we do not
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deal with the lastpoint and take up the discussion of the
first four points together, as really speaking, they are all
off-shoots of one and one point only, namely, whether while
presiding over the meeting of the Advisory Committee the
Minister was executing or discharging his duty as a public
servant.
As stated in the judgment of the High Court the District
Advisory Committee was constituted by a notification of the
Government of Maharashtra, Cooperation and Rural Development
Department dated 5-8-1964 for the purpose of reviewing the
work of Zilla Parishads and Panchayat Samitis. The circular
Ext-15 issued by the Maharashtra Government on 5-8-1964 was
obviously not in exercise of any statutory power. It was in
exercise of the executive power which is co-extensive with
the legislative power of the State. In the circular it is
stated
"For quite some time Government has had in
view the question of reviewing the working of
Zilla Parishads and Panchayat Samitis (Plan
and Development Works) in the State as a
regular feature. It is, therefore, felt that
this object in view can be substantially
achieved by holding sixmonthly meetings of
Regional Officers, District Officers, Office-
Bearers or Zilla Parishads and Panchayat
Samitis and M.Ps., M.L.Cs., and M.L.As., under
the Chairmanship of the Minister in-charge of
the District. Government has, therefore,
decided that such meetings should be convened
twice a year in each of the Districts in the
Revenue Division by the Divisional
Commissioner in consultation with the Minister
in charge of the District. The meetings
should be held at the Headquarters of the
District concerned. The Deputy Commissioner
(Development) of the Division concerned should
work as the Secretary of the Committee. The,
work pertaining to these meetings should be
carried out by the Development Branch of the
Commissioner’s Office and various actions to
be taken as a result of deliberations in these
meetings should be pursued by the Deputy
Commissioner (Development) under the guidance
and supervision of the Divisional
Commissioner."
The terms of reference for the working of the Committee as
also its composition were indicated in the subsequent part
of the circular.
Under the orders of the Government, therefore, its officers
including the Minister of the District were to carry out
certain public duties in connection with the reviewing of
the working of Zilla Parishads and Panchayat Samitis which,
of course, were constituted under, the statutes. The
Minister, a public servant, was to be the Chairman of the
Committee. The Divisional Commissioner was to be the
convener of the meeting. The Deputy Commissioner
(Development) ,of the Division concerned was to act as the
Secretary. They were all
149
public servants. Is it possible to take the view that the
Divisional Commissioner or the Deputy Commissioner while
performing the functions aforesaid under orders of the
Government conveyed in the circular dated 5-8-1964 were
performing any private functions and not public duty ?
Obviously it was a part of the public duty assigned to them
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by the Government. The duty assigned to a public servant by
his master, be it be under a statute or by an executive
order, will assume the character of public duty, provided
the duty assigned is not illegal or against public policy.
Will it make any difference in the case of a Minister ? In
our judgment, not. The Minister is a public servant-not
disputed. In accordance with the instructions issued by the
Government he was to preside over the meetings of the
Advisory Committee. He was doing so as a Minister and in
execution and discharge of his duty as such public servant.
It is no doubt true that non-official office bearers and
members of the Committee could not be public servants. Non-
officials appointed to a Committee constituted under a
statute may, under certain circumstances, become public
servants within the meaning of section 21 of the Code; but
surely non-official members of the Committee in question
could not be so. Yet it is wrong to say that the officials
and persons who were public servants discharging their
duties as office bearers and members of the Advisory
Committee were not performing any duty as such public
servants. Any person who was not a public servant appointed
as a Chairman of the Committee may not be a public servant
because the office of the Chairman of the Advisory Committee
is not such that would make him a public servant. But the
matter is different when a public servant, under the,
executive instructions of the Government, is appointed the
Chairman of the Committee.
Learned counsel for the appellant in support of his
submissions placed reliance upon two decisions of this Court
viz. Padam Sen and another v. The State of Uttar Pradesh(1)
and The State of Gujarat v. Manshankar Prabhasankar
Dwivedi(2). Neither of them is apposite and helps the
appellant. In the case of Padam Sen the appointment of the
Commissioner by the Additional Munsif was found to be null
and void; yet it was argued with the aid of Explanation 2 to
section 21 of the Code that he was a public servant. The
argument was repelledby Raghirbar Dayal, J. delivering
the judgment on behalf of the Courtat page 890 thus
"We do not agree with this contention, and
are of opinion that the Explanation applies
only when there be a post in existence. The
Explanation does not apply when there is no
preexisting post or when the person appointing
has no authority to appoint."
In the case of State of Gujarat v. Dwivedi(2) the question
arose in relation to an offence said to have been committed
by the respondent under section 161 of the Code and section
5(2) read with section
(1)[1961] 1 SCR 884.
(2)[1973] 1 SCR 313.
150
5 (1) (d) of the Prevention of Corruption Act, 1947.
Dwivedi was a senior lecturer at a Government College. In
that capacity, undoubtedly, he was a public servant. He is
alleged to have accepted the gratification of Rs. 500 other
than legal remuneration for showing favour to a candidate in
his capacity as Examiner for Physics Practical in the
examination’ held By the Gujarat University. He was
appointed an examiner by the University and, not by the
Government In such circumstances it was held that Dwivedi as
an examiner of the University was not a public servant as it
had no connection with his being a Government servant.
For the reasons stated above we hold that no interference is
called for by this Court in the framing of the charge
against the appellant as per the directions of the High
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Court. The appeal is, therefore, dismissed.
P.H.P. Appeal
dismissed.
151