G. A. Monterio vs The State Of Ajmer

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 146 of 1954

Decision Date: 21 September 1956

Coram: Natwarlal H. Bhagwati, Syed Jaffer Imam, P. Govinda Menon

In the matter of G. A. Monterio versus the State of Ajmer, decided on 21 September 1956, the Supreme Court of India examined an appeal brought by the petitioner, G. A. Monterio, against the respondent, the State of Ajmer. The judgment was rendered by a bench consisting of Justices Natwarlal H. Bhagwati, Syed Jaffer Imam and P. Govinda Menon. The case is reported in the law reports at 1957 AIR 13 and 1956 SCR 682. The appeal arose from criminal proceedings initiated under the Indian Penal Code and the Prevention of Corruption Act, 1947 (Act II of 1947). The appellant had been employed as a Class III servant, specifically as a metal examiner—also referred to as a chaser—within the Railway Carriage Workshop at Ajmer. He was alleged to have accepted a sum of Rs. 150 as an illegal gratification in return for securing a job for another individual. Consequently, he faced charges under section 5(1)(d) of the Prevention of Corruption Act, 1947, and also under section 21(9) of the Indian Penal Code, which defines the term “officer.” The appellant contended that his position did not qualify him as an “officer” within the meaning of section 21(9), and therefore he could not be deemed a public servant for the purposes of the anti‑corruption statute. The Court examined the test for determining whether a person is an officer of the Government. It held that the test comprises two essential enquiries: first, whether the person is in the service or receives pay from the Government; and second, whether the person is entrusted with the performance of any public duty. The public duty may be a function expressly delegated by the Government or a duty that is immediately auxiliary to the duties of an existing officer. The Court observed that the appellant worked under the supervision of the Works Manager, who was unquestionably an officer of the Government, and that the appellant’s duties were immediately auxiliary to those of the Works Manager, who also exercised authority on behalf of the Government. Accordingly, the Court concluded that the appellant satisfied both criteria of the test and was therefore an officer within the meaning of section 21(9) of the Indian Penal Code, making him a public servant under section 2 of the Prevention of Corruption Act, 1947. The Court relied on earlier authorities, including Beg. v. Ramajirav Jivbajirav ([1875] XII Bom. H.C.R. 1), Nazamuddin v. Queen‑Empress ([1900] I.L.R. 28 Cal. 344) and Ahad Shah v. Emperor (A.I.R. 1918 Leh. 152). The appeal originated as Criminal Appeal No. 146 of 1954, against the judgment and order dated 27 November 1954 of the Court of Judicial Commissioner at Ajmer, which itself arose from the judgment and order dated 25 August 1954 of the Court of Special Judge at Ajmer in Criminal Case No. 5 of 1953. Counsel appearing for the appellant was B. P. Maheshwari, while C. K. Daphtary, Solicitor‑General for India, together with Porus A. Mehta, H. R. Khanna and B. H. Dhebar, appeared for the respondent. The judgment of the Supreme Court was delivered by Justice Bhagwati.

The request for a certificate of fitness under article 134(1)(c) of the Constitution, issued against the decision of the Judicial Commissioner at Ajmer, raised a significant question concerning the meaning of the term “officer” in clause (9) of section 21 of the Indian Penal Code. The appellant had been employed as a Class III servant, working as a metal examiner—also known as a chaser—in the Railway Carriage Workshops located in Ajmer. The prosecution charged him under section 161 of the Indian Penal Code for having received from a man named Nanak Singh currency notes amounting to Rs 150 as an illegal gratification, allegedly in exchange for securing a job for another individual named Kallu. In addition, he was charged under section 5(1)(d) of Act II of 1947 for abusing his position as a public servant and for obtaining a pecuniary advantage of Rs 150 from Nanak Singh by corrupt or illegal means. A further charge under section 420 of the Indian Penal Code alleged that he induced Nanak Singh to hand over the Rs 150 by making a dishonest representation that he could obtain a job for Kallu. The learned Special Judge of the State of Ajmer, who tried the case at first instance, found the appellant guilty of the offences under section 161 of the Indian Penal Code and section 5(1)(d) of Act II of 1947, and imposed rigorous imprisonment for six months and for one year respectively, directing that the two sentences run concurrently. However, because the prosecution failed to prove that the appellant did not honestly believe that he could secure or attempt to secure a position for Kallu when he accepted the money, the judge held that the elements of section 420 were not satisfied and consequently acquitted the appellant of that charge. The appellant then appealed to the Judicial Commissioner of Ajmer, but his appeal was dismissed; nevertheless, on 10 December 1954 the Judicial Commissioner granted the appellant a certificate of fitness for appeal, limiting the issues to two principal questions: (i) whether the appellant qualified as an “officer” within the meaning of clause (9) of section 21 of the Indian Penal Code, and (ii) whether the provisions of section 137 of the Railways Act excluded all railway servants from the definition of public servants except for the purposes of Chapter IX of the Indian Penal Code. Both lower courts had reached identical factual findings that the appellant had accepted Rs 150 from Nanak Singh as illegal gratification, and those factual findings were not contested by the appellant’s counsel before this Court. Accordingly, the only matters that were presented for consideration before this Court were the two legal questions that formed the basis of the certificate of fitness for appeal issued by the Judicial Commissioner. The second of those questions has become purely academic in the present facts, as explained in the subsequent portion of the judgment.

In this case, the Court referred to its earlier judgment in Ram Krishan v. Delhi State, which held that before section 137 of the Railways Act was amended by Act 17 of 1955, railway servants were regarded as public servants only for the purposes of Chapter IX of the Indian Penal Code, but they were nevertheless public servants under the Prevention of Corruption Act (Act II of 1947). The Court observed that the appellant had been correctly convicted of the offence under section 5(1)(d) of that Act and had received a rigorous imprisonment term of one year. Consequently, the question of whether the appellant had been correctly convicted of the offence under section 161 of the Indian Penal Code, for which a lesser sentence of six months’ rigorous imprisonment had been imposed, became merely academic. The only issue left for determination was whether the appellant qualified as an “officer” within the meaning of clause (9) of section 21 of the Indian Penal Code. To address this question, the Court set out the relevant statutory provisions. Section 2 of the Prevention of Corruption Act defines “public servant” for the purposes of that Act as a public servant as defined in section 21 of the Indian Penal Code. Section 21 of the Indian Penal Code, as applicable to the present appeal, states that the term “public servant” includes any person who falls under any of the descriptions that follow, namely, a person employed in the service or pay of the Government or a person remunerated by fees or commission for the performance of any public duty. There was no dispute that the appellant was in the service or pay of the Government and that he performed the duty of a metal examiner, known as a “chaser,” in the Railway Carriage Workshops at Ajmer, thereby carrying out a public duty. Nevertheless, it was contended that the appellant was not an officer within the meaning of section 21(9). The argument relied on the authority in Reg. v. Ramajirav Jivbajirav, which described an officer as a person to whom the supreme authority had delegated some portion of its regulatory and coercive powers and who was appointed to represent the State in its relations with individual subjects. According to the statement of West, J., the word “officer” meant a person employed to exercise, to some extent and in certain circumstances, a delegated function of the Government, either being himself endowed with authority or having a representative character, or whose duties were immediately auxiliary to those of a person who possessed such authority. On this basis, it was argued that the appellant, as a metal examiner or “chaser” in the Railway Carriage Workshops, had not been delegated any regulatory or coercive powers by the supreme authority, nor had he been appointed to represent the State, and therefore did not satisfy the definition of “officer” under section 21(9) of the Indian Penal Code.

The Court observed that the individual in question had not been appointed to represent the State in its relations with individual subjects. It was noted that he possessed neither any authority nor any representative character, and his duties were not immediately auxiliary to those of any person who was armed with such authority. Consequently, he was not employed to exercise, to any extent and in certain circumstances, a delegated function of Government, and therefore he could not be described as an “officer” within the meaning of section 21(9) of the Indian Penal Code. Because he was not an officer of the Government, the Court held that he could not be regarded as a public servant within the meaning of section 21 of the Indian Penal Code, nor could he be considered a public servant for the purposes of Act 11 of 1947. As a result, the Court concluded that he could not be convicted of the offence punishable under section 5(1)(d) of Act II of 1947. The decision then turned to the earlier judgment of the High Court of Bombay reported in 12 Bombay High Court Reports 1, which involved an Izaphatdar – a lessee of a village – who had undertaken to keep an account of forest revenue and to remit a specified proportion to the Government while retaining the balance for himself. The question before that Court was whether such an Izaphatdar fell within the definition of “officer” under section 21(9) of the Indian Penal Code. In that context, the observations of West, J. were considered, and the Bombay Court concluded that persons such as Deshmukhs and Deshpandes were sufficiently within the clause because they were appointed to perform a portion of the State’s functions or to aid those who were active representatives of the State. By contrast, the Izaphatdar or lessee, like the accused in the present matter, was not an officer but merely a contractor bound by his engagement, without any term of his office or employment requiring him to remit a proportion of revenue to the Government.

The Bombay Court further held that no delegation of coercive or interfering authority had been made to the contractor, and he was not an assistant appointed to help any person vested with such authority. The duties he performed were purely contractual, involving fraud or deception, which could expose him to punishment for cheating, but these duties were not attached to any office conferred upon him or his predecessor. Failure to perform those contractual duties honestly would not attract the special penalties prescribed for delinquent public servants, which apply only to officers. This decision was later examined by the Calcutta High Court in Nazamuddin v. Queen‑Empress (1). In that case, the petitioner was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozafferpur, who had been convicted under section 161 of the Indian Penal Code. The petitioner argued that he did not fall within the last portion of clause (9) of section 21 of the Indian Penal Code, thereby challenging his classification as a public servant. The Calcutta Court considered the earlier Bombay judgment and the interpretation of “officer” in determining whether the peon’s service and pay relationship with the Government placed him within the statutory definition of a public servant.

In the appeal, the Court examined the question of whether a peon employed by the Government qualified as a “public servant” under section 21 of the Indian Penal Code, which defines “every officer in the service or pay of Government” as a public servant. The petitioners relied upon the decision in Reg. v. Ramajirav Jivbajirav (2) and argued that the peon, not being an officer, could not be treated as a public servant. The Calcutta High Court, while considering the earlier case, observed that the earlier judges had to decide whether a lessee from the Government, by virtue of the terms of his lease, could be deemed a public servant. In doing so, they examined the ordinary meaning of the word “officer.” The Court held that an officer is “some person employed to exercise, to some extent and in certain circumstances, a delegated function of Government. He is either armed with some authority or representative character, or his duties are immediately auxiliary to those of some person who is so armed.” The Court then reasoned that applying this definition narrowly to the present fact situation would be inappropriate. It noted that the peon, although convicted as a public servant, was in the service and pay of the Government and was attached to the office of the Superintendent of the Salt Department. While the precise description of his duties was not recorded at trial, the Court inferred that his appointment required him to carry out the orders of his superior, who was undeniably a public servant, and to assist the Superintendent in performing the public duties of that office. Consequently, even if the peon did not exercise a delegated governmental function, his duties were “immediately auxiliary” to those of the Superintendent, who possessed such authority. The Court concluded that an “officer in the service or pay of Government” under section 21 is one appointed to an office for the performance of a public duty, and therefore the peon fell within clause 9 of section 21. The true test, according to the Court, is whether the person (1) is in the service or pay of the Government and (2) is entrusted with the performance of any public duty. If both conditions are satisfied, the nature or rank of the office, whether exalted or humble, is irrelevant. The Court cited Bacon’s Abridgment, vol. 6, p. 2, which explains that the term “officium” principally implies a duty and the charge of such duty, and that where one person is compelled to manage another’s affairs against his will, this creates an office and thus the person becomes an officer.

In discussing the nature of an office, the Court cited the maxim that without a person’s permission “this is an office, and he who is in it is an officer.” It further referred to a subsequent passage stating, “There is a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to make hay, herd a flock, etc.; which differ widely from that of steward of a manor,” as recorded in 12 Bombay High Court Reports at page 5. The Court explained that this interpretation was the basis on which the Lahore High Court judges, in Ahad Shah v. Emperor (1) A.I.R. 1918 Lah. 152, observed at page 157 that merely being in the pay or service of the Government does not suffice to make a person a public servant within the meaning of section 21 (ninthly) of the Indian Penal Code. The judges held that the individual must also be an “Officer.” They clarified that the term “Officer” should not be limited to its everyday sense of a commissioned or non‑commissioned officer; rather it denotes a person who holds some “officium” or office, whether the office is of high dignity or humble character, but who has, to some degree, been delegated certain governmental functions. The Lahore High Court was then asked to determine whether a Quarter‑Master’s clerk qualified as a public servant under section 21 of the Indian Penal Code. After examining the material before them, the judges concluded that the Quarter‑Master’s clerk was merely a “Babu” and was no more an officer than a labourer or menial who is employed and paid by the Government to perform public work, as referenced in Queen v. Nachimuttu (2) I.L.R. 7 Madras 18. The Court further explained that if, in a particular case, it is found that a person is not only in the service or pay of the Government but also performs a public duty, then that person has either been delegated governmental functions or is performing duties immediately auxiliary to those of an actual officer, and consequently qualifies as an “officer” within the meaning of section 21(9) of the Indian Penal Code. Applying this test to the present case, the Court found that the appellant was a Class III servant employed as a metal examiner, known as a chaser, in the Railway Carriage Workshop. The appellant worked under the supervision of the Works Manager, who, as established by the cited authorities, is an officer of the Government. The duties performed by the appellant were directly auxiliary to those of the Works Manager, who, in addition to being a Government officer, possessed authority and representative character on behalf of the Government. Thus, the appellant was

Even if the narrow interpretation of the statements of West, J. in 12 Bombay High Court Reports 1 was applied, the Court observed that an officer who is in the service of, or receives pay from, the Government and who performs a public duty that has been expressly entrusted to him by the Government qualifies as a public servant within the meaning of section 21 of the Indian Penal Code. Because that interpretation represented the correct legal position, the appellant’s contention that he could not be deemed a public servant did not succeed, and the preliminary issue had to be decided against him. Consequently, the Court concluded that the appellant was an officer within the meaning of section 21(9) and, accordingly, a public servant within the meaning of section 21 of the Indian Penal Code. As a person falling within that definition, he also fell within the definition of “public servant” contained in section 2 of the Prevention of Corruption Act II of 1947. On the basis of the facts and circumstances of the case, the Court held that the appellant was properly convicted under section 5(1)(d) of the Act II of 1947. The conviction and the sentence imposed by the lower courts were therefore deemed to be entirely justified, and the appeal was dismissed.