Padam Sen And Another vs The State Of Uttar Pradesh

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 149/1958

Decision Date: 27 September 1960

Coram: Raghubar Dayal, Syed Jaffer Imam, A.K. Sarkar

In the matter styled Padam Sen and Another versus the State of Uttar Pradesh, the Supreme Court delivered its judgment on the twenty‑seventh day of September, 1960. The opinion was authored by Justice Raghubar Dayal, who was joined on the bench by Justices Syed Jaffer Imam and A K Sarkar. The petitioners, identified as Padam Sen and a second appellant, were opposed by the respondent, the State of Uttar Pradesh. The case is reported in the 1961 All India Reporter at page 218 and also appears in the 1961 Supreme Court Reporter (First Series) at page 884. Subsequent citations to this decision include references in the 1962 Supreme Court Cases at page 527, the 1966 Supreme Court Reports at page 1899, the 1975 Supreme Court Cases at page 1685, the 1983 Reporter of Cases at page 1272, and the 1986 Supreme Court Cases at page 421. The legal issues addressed concerned the appointment of a commissioner for the seizure of account books, the scope of inherent powers of a civil court under the Code of Civil Procedure of 1908, and the definition of a public servant for purposes of section 21 of the Indian Penal Code, particularly its Explanation 2. The pertinent statutory provisions included sections 75 and 151 of the Code of Civil Procedure, as well as section 21 of the Indian Penal Code, complemented by Explanation 2 thereto. The judgment was rendered by the bench consisting of Justices Dayal, Imam and Sarkar.

The factual backdrop involved a Munsif who, in a suit concerning the plaintiff’s account books, appointed an individual designated as R to act as a commissioner tasked with seizing the plaintiff’s books and producing them before the court. R executed the seizure and retained possession of the books. While the books remained in R’s custody, the appellants approached R and offered him a monetary inducement to permit them to tamper with the seized documents. The appellants were subsequently tried and convicted under section 165‑A of the Indian Penal Code for attempting to bribe a public servant. In their appeal, the appellants contended that the Munsif lacked jurisdiction to appoint a commissioner for such a seizure, asserting that the appointment was therefore null and void. They further argued that because R had not been validly appointed as a commissioner, he could not be deemed a public servant, and consequently the alleged bribery did not constitute an offence under section 165‑A. The State maintained that the Munsif possessed inherent authority under section 151 of the Code of Civil Procedure to make the appointment, and that, irrespective of the validity of the appointment, R was in actual possession of the situation of a public servant within the meaning of Explanation 2 to section 21 of the Penal Code, thereby qualifying as a public servant. The Court held that the Munsif did not have inherent power to appoint a commissioner for the seizure of account books and that his order was consequently void. The Court clarified that the inherent powers granted by section 151 relate solely to procedural matters essential to the adjudication of a cause and do not extend to the substantive rights of the parties, such as the right to retain possession of one’s own property. Accordingly, the Court concluded that a party retains full rights over his own account books and that the court cannot, by inherent authority, forcibly confiscate such property. Regarding the definition of a public servant, the Court explained that Explanation 2 to section 21 applies only to a person who actually occupies a pre‑existing public office. In the instant case, no statutory post of commissioner existed, and therefore R could not be said to be in possession of a public servant’s situation. As a result, the appellants did not commit an offence under section 165‑A by offering a bribe to R, and their convictions were unwarranted.

In this matter the Court recorded that an appointment made without jurisdiction could not render the appointee a public servant. The appeal was Criminal Appeal No 149 of 1958, filed against the judgment and order dated 27 October 1958 of the Allahabad High Court in Criminal Appeal No 1154 of 1956. Counsel N C Chatterjee and R L Kohli appeared for the appellants, while G C Mathur and C P Lal represented the respondent. The judgment was delivered on 27 September 1960 by Justice Ragubar Dayal. The present appeal was filed by Padam Sen and Shekbar Chand challenging the decision of the Allahabad High Court, which had dismissed their earlier appeal against the order of the Special Judge, Meerut. That Special Judge had convicted the two appellants of an offence punishable under section 165‑A of the Indian Penal Code for offering a bribe. The High Court had granted them leave to appeal this conviction.

The factual backdrop involved Genda Mal, the father of appellant Shekbar Chand, who had instituted suit No 2 in the Court of the Additional Munsif, Ghaziabad, against Mithan Lal and others for recovery of money based on promissory notes executed by the defendants. Anticipating that the plaintiff might falsify his books of account concerning the payments made by the defendants, the defendants applied to the Additional Munsif for seizure of the plaintiff’s account books. By an order dated 27 March 1954 the Additional Munsif appointed Sri Raghubir Pershad, a vakil, as Commissioner for the purpose of seizing those books. The Commissioner effected the seizure and took the books to Ghaziabad.

Subsequently the Special Judge convicted the appellants under section 165‑A for allegedly offering a bribe of Rs 900 to the Commissioner on 30 March 1954 so that they might tamper with the seized books. Both the Special Judge and the High Court affirmed this conviction. The lower courts found that the appellants had indeed visited the Commissioner’s office on the stated date and had offered the sum of Rs 900 as a bribe. The appellants did not dispute these factual findings. Their sole argument was that Sri Raghubir Pershad, as Commissioner, was not a public servant; consequently, even accepting the factual findings, they claimed they could not be convicted of an offence under section 165‑A.

The appellants contended that the appointment of Sri Raghubir Pershad as Commissioner was void because the Additional Munsif lacked authority to appoint a Commissioner for seizing the plaintiff’s books on a civil application. They argued that the power of a civil court to issue a commission was confined to the provisions of section 75 of the Code of Civil Procedure and Order XXVI of the same Code, and that the court possessed no inherent power to appoint a Commissioner for purposes not enumerated therein. Conversely, the State maintained that the court could, under its inherent powers saved by section 151 of the Code, appoint a Commissioner for purposes not specifically covered by section 75 and Order XXVI.

The State argued that, irrespective of whether the Additional Munsif possessed the authority to appoint a commissioner for the purpose of seizing the plaintiff’s account books, Sri Raghubir Pershad would nevertheless be deemed a public servant under Explanation 2 to section 21 of the Indian Penal Code. The State’s reasoning rested on the premise that Pershad actually occupied the position of a public servant because he performed the functions of a commissioner and was recognised as such by the appellants and by other persons connected with the civil suit. The State then referred to section 75 of the Code of Civil Procedure, which empowers a court to issue a commission, subject to prescribed conditions and limitations, for four specific purposes: examining any person, conducting a local investigation, examining or adjusting accounts, and making a partition. Order XXVI of the Code was cited as containing the procedural rules governing the issue of commissions and related matters.

Learned counsel for the appellants, Mr Chatterjee, contended that a court’s powers must be found strictly within the four‑cornered provisions of the Code. He maintained that, once the Code expressly dealt with commissions in section 75, the court could not invoke its inherent powers under section 151 to enlarge its authority. By contrast, counsel for the State submitted that the Code was not exhaustive and that, in the exercise of its inherent powers, a court could adopt any procedure not expressly prohibited by the Code, whether by express terms or necessary implication, whenever the court considered such a step necessary for the ends of justice or to prevent abuse of the court’s process.

Section 151 of the Code of Civil Procedure states, “Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” The State emphasized that the inherent powers are supplemental to the powers specifically conferred by the Code. They are intended to complement those expressly provided powers and, therefore, the court was free to exercise them for the purposes mentioned in section 151 so long as such exercise did not conflict with the express provisions of the Code or with the legislative intent. Nevertheless, it was also well‑recognised that the court could not use its inherent power in a manner that contradicted or deviated from the procedure expressly prescribed by the Code.

The central question for determination, as identified by the Court, was whether the impugned order of the Additional Munsif appointing Sri Raghubir Pershad as commissioner for the purpose of seizing the plaintiff’s books of account could be characterised as an order issued by the court in the exercise of its inherent powers. The Court noted that the inherent powers saved by section 151 pertained to procedural matters—specifically, the procedure to be followed by the court in adjudicating the cause before it. Such powers did not extend to substantive rights of any litigant; they were confined to procedural regulation and could not be employed to affect the substantive rights of a party unless a specific statutory provision conferred such authority.

In explaining the scope of the Court’s inherent powers, the judgment emphasized that these powers relate only to the procedure for deciding a case and do not extend to the substantive rights that any litigant may hold. The Court clarified that any authority to issue orders affecting a party’s substantive rights must be expressly conferred by statute; such authority cannot be derived from the Court’s inherent powers, which are limited to regulating its own practice and procedure. Accordingly, a litigant retains complete ownership of his or her books of account, and the Court possesses no inherent authority to seize those books by force. To do so would constitute an intrusion upon the private rights of the party. The Code, however, provides a specific procedure for obtaining relevant documents or books for the purpose of using them as evidence. Under that procedure, a party may voluntarily produce any documents or books that are relevant to his case. Moreover, a party may seek the assistance of the Court in compelling the opposing party to produce documents that the latter admits are in its possession and that the requesting party wishes to admit into evidence. If a party refuses to produce documents that it is lawfully required to present, the Code authorises the Court to impose penalties and to draw a presumption against the non‑producing party, particularly after the party has been duly summoned. Even when a document is summoned, the Court’s statutory powers do not include the power to confiscate the document forcibly from the defaulting party’s possession.

The judgment further observed that the defendants in the present case had no legal right to the plaintiff’s account books and could not lay any claim to them. Their application for seizure stemmed from a fear that the plaintiff might later make entries in the books that would prejudice the defendants’ case. In effect, the defendants were seeking the Court’s assistance in collecting documentary evidence that they believed would support their position at that stage of the litigation. The Court held that it is not within its role to gather evidence on behalf of a party, nor to shield a rival party from the potential consequences of forged entries in those books. Should the plaintiff subsequently forge entries and attempt to rely on them as evidence, the defendants would have ample opportunity to challenge the entries and to prove them fraudulent. Consequently, the Court concluded that the Additional Munsif did not possess any inherent power to issue an order appointing a Commissioner to seize the plaintiff’s account books. The order appointing Sri Raghubir Pershad as Commissioner was therefore issued without jurisdiction and was consequently null and void. The State’s counsel also submitted, in the alternative, that the procedure adopted by the Additional Munsif was improper.

It was observed that the Additional Munsif could act under certain provisions of the Code, specifically rule 5 of Order XXXVIII, rules 1(b) and 7 of Order XXXIX, and rule 1 of Order XL. The Court did not accept the argument that the impugned order was issued under any of those provisions. Instead, the Court found that the order was presented as an exercise of the inherent powers of the Court, not as an order made pursuant to the cited rules. The order itself stated: “It is strange that an application of this kind has been made at this late stage, after over two years. However, in the interests of justice, issue commission to Sri Raghubir Pershad. He must go and recover Bahi Khatas for the year 1951 from the plaintiff and produce the same in Court. Fees Rs 20, plus T. A. Report within six days. Costs of the commission will not be taxed.” The Court further explained that rule 5 of Order XXXVIII was intended to protect a decree from becoming ineffective, and rule 1(b) of Order XXXIX applied only where a defendant threatened to dispose of his property to defraud creditors; neither situation matched the facts of the present case. Rule 7 of Order XXXIX allowed a court, on application of any party, to order detention, preservation, or inspection of property that formed the subject‑matter of the suit or about which a question arose in the suit. The plaintiffs’ account books were not property that constituted the subject‑matter of the suit, nor were they material about which any issue arose; at most, they could have been evidence if either party chose to rely on them. Accordingly, the Court held that the Additional Munsif possessed no statutory authority to appoint a Commissioner for seizing the plaintiff’s books of account. Finally, the State contended that even if the appointment of Sri Raghubir Pershad as Commissioner was void because the Additional Munsif lacked jurisdiction, Pershad should still be regarded as a “public servant” under Explanation 2 to section 21 of the Indian Penal Code. It was not disputed that, had the appointment been valid, Pershad would have qualified as a public servant under the fourth clause of section 21. Explanation 2 to section 21 reads: “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.” The State’s position was that despite the legal defect in Pershad’s appointment as Commissioner, he remained in actual possession of the situation of a public servant. The Court examined this contention.

In this case the State argued that, even though the appointment of Sri Raghubir Pershad as Commissioner was invalid because the Additional Munsif lacked authority to make such an appointment, Pershad should nevertheless be regarded as a “public servant” under Explanation 2 to section 21 of the Indian Penal Code, since he was in actual possession of the situation of a public servant. The Court rejected this submission, holding that the Explanation applies only where a post or office already exists. The provision does not extend to situations where there is no pre‑existing post or where the appointing authority itself has no power to create the post. To elucidate the meaning of “situation,” the Court referred to Webster’s New International Dictionary, which defines the term as a position or place of employment, an office, or a “situation in a store.” For the purpose of the Explanation, the appropriate meaning is “office.” The same dictionary defines “office” as a special duty, trust, charge or position conferred by the exercise of governmental authority for a public purpose, a position of trust or authority conferred by an act of governmental power, or the right to exercise a public function and receive any emoluments attached thereto. In a broader sense, “office” denotes any position or place in government employment, especially one involving trust or authority. The dictionary further distinguishes between “office,” “post,” “appointment,” “situation” and “place,” noting that “office” commonly suggests a position of public trust or authority, whereas “situation” emphasizes the idea of employment, often in a subordinate capacity. Accordingly, the Court reasoned that the Explanation can apply only when the person concerned actually occupies a pre‑existing office of a public servant. If no such office or post exists, there can be no question of anyone being in actual possession of it, and the Explanation is inapplicable. In the present matter there was no existing post of Commissioner; Sri Raghubir Pershad was merely authorized to seize and retain certain documents. The Additional Munsif also lacked power to appoint a Commissioner for the purpose of seizing the plaintiff’s books of account. Consequently, the Explanation does not apply to Pershad’s appointment, and he cannot be deemed a public servant. The Court therefore accepted the appellants’ contention, held that they did not commit an offence under section 165‑A of the Indian Penal Code by offering money to Pershad in order to obtain an opportunity to tamper with the books in his custody, allowed the appeal and set aside the order of the lower court.

The Court recorded that it was ordering the acquittal of the appellants with respect to the charge framed under section 165‑A of the Indian Penal Code, thereby indicating that the prosecution’s case against them on that particular provision was dismissed. It further directed that any monetary penalty that might have been imposed in connection with the said charge be returned to the appellants, emphasizing that the fine, if already paid, should be refunded in full. The Court observed that the appellants were at that stage out on bail, and consequently it instructed that the bail securities that had been lodged for their release be cancelled and set aside, so that the bail bonds would no longer remain in force. By making this order, the Court clarified that the security previously required to secure their liberty would be discharged. On the basis of these determinations, the Court concluded that the appeal filed by the appellants was allowed, and the earlier order of the subordinate court was set aside in accordance with the directions just articulated.