Emperor vs Ram Chandra Sahu

Agarwala, J.—The question for decision in this appeal is, whether the complainant Pankdhar Meher was, on 25th February 1932, a "public servant" within the meaning of Section 21, Penal Code. The complainant had for some time been enrolled as a candidate peon in accordance with Rule 30 of the High Court General Rules and Circular Orders. He gets no pay or remuneration, but by being on the list of candidate peons he has the chance of being appointed as a civil Court process server when a vacancy occurs.

The facts out of which this appeal has arisen were these:, The complainant was entrusted with the service of a warrant of attachment of moveable properties which had been issued in execution of a decree by the Munsif of Bargarh. On 25th February he went to the house of the judgment-debtor for the purpose of executing the warrant and attached some of his moveable property. Ram Chandra, the son of the judgment-debtor, then assaulted him and took away the property. Ram Chandra was put on his trial on charges of theft, of resisting the taking of property by the lawful authority of a public servant and of assaulting a public servant. The Deputy Magistrate who tried the case came to the conclusion that the complainant was not a public servant. In these circumstances he held that it was useless to enter into discussion of the merits of the case and he acquitted the accused.

The Government have appealed u/s 417, Criminal P.C. and the question for decision now is, whether the complainant was a public servant at the time he was resisted and assaulted. The material portions of Section 21, Penal Code, are Clauses 4 and 9. The material words of Clause 4 are as follows:

Every officer of a Court of justice .... and every person specially authorized by a Court of justice to perform any of

the duties of an officer of a Court of justice. This clause clearly distinguishes between the person who is an "''officer of a Court of justice" and a person who is not such an officer; the latter is not a "public servant" within the meaning of the section tin-less he is "specially authorized" by a Court of justice to perform the duties of an officer of a Court of justice.

Now, in this case the Munsif of Bargarh deposed that, owing to dissatisfaction among the peons of the civil Courts of Bargarh with the distribution of processes by the Nazir, he himself distributes the processes and that he gave the warrant of attachment in this case to the complainant for execution. It is contended by the learned Government Advocate that this amounts to special authorization within the meaning of Section 21, Clause 4 of the Code. I have no doubt that the complainant in this case was authorized by the Munsif to execute the warrant and to my mind the only question that arises is whether he was "specially" authorized; and it seems to me that when a person who has no general power to execute a judicial process is authorized by a Court to execute such a process, he is "specially authorized" within the meaning of the section.

It has also been argued by the learned Government Advocate that the complainant is a public servant within the meaning of Clause 9 of the section. Under this clause:

every officer in the service or pay of Government or remunerated by fees or commission for the performance of any public duty

is a public servant. It is argued that although the complainant is not in the pay of Government and is not remunerated by fees or commission for the performance of any public duty, he is nevertheless in the service of Government; and reliance was placed on the decision of Straight, J., in Queen-Empress v. Parmeshar Dat (1886) 8 All 201, where his Lordship said:

I am of opinion that any person, whether receiving pay or not, who chooses to take upon himself duties and responsibilities belonging to the position of a public servant and performs these duties, and accepts those responsibilities, and is recognized as filling the position of a public servant, must be regarded as one.

It is true that that was a case in which the person alleged to be a public servant was interested in denying that he was such public servant, but I respectfully agree with the test suggested by. Straight, J. In this case, as has been already observed, the complainant was enrolled as a candidate or apprentice peon; he accepted the duties land responsibilities of executing the warrant entrusted to him; the Munsif recognized him as filling the position of a process-server; and I am therefore of opinion that he was a person who fell within the description of "public servant" as defined in Cl. ,9, Section 21.

The case is not dissimilar from that of Queen v. Ramkristo Doss (1871) 16 WR Cr 27. There a supernumerary collectorate peon, whose sole remuneration was the amount received as fees on such occasions as he was entrusted with the service of processes, was deputed, on 21st June 1871, to keep order in the Special Sub-Registrar''s office, for which duty he was to get no remuneration at all. It was held by Ainslie and Paul, JJ., that the peon was a public servant while keeping order in the Special Sub-Registrar''s office.

I would therefore set aside the acquittal and send the case back to the learned Magistrate to be tried according to law.

Scroope, J.

The additional evidence ordered by a Bench of this Court has now been taken and it transpires that the peon got no remuneration at all for serving this process and this peculiar system which seems to prevail in Sambalpur alone of all the civil Courts in the province according to which. , "candidate" or "apprentice" peons serve processes without any remuneration, whatsoever has led to the difficulty in this case, the Sub-Deputy Magistrate of Bargarh having held that such a peon is not a public servant I am not prepared to say that he is wrong. There is authority in support of either view.

The learned Magistrate has relied on Mahendra Prosad v. Emperor (1911). 12 Cri LJ 117, and in support of the appeal Queen-Empress v. Parmeshar Dat (1886) 8 All 201 and Queen v. Ramkristo Doss (1871) 16 WR Cr 27 have been cited. The learned Government Advocate has sought to bring this kind of peon under the words "specially authorized by a Court of Justice" because the Munsif himself made over the processes, to the peon; but it was not because he was an unpaid peon that the Munsif did this. It appears that the Munsif distributes the processes amongst the peons in Bargarh as there had been, some dissatisfaction amongst the peons when the Nazir distributes; and in my opinion the mere fact of distribution by the Munsif does not amount to "specially authorized" within the meaning of Clause 4, Section 21, Penal Code.

The expression, in my opinion, has reference to an ad hoc appointment, say, that of a commissioner in a civil case who receives a writ of commission from the civil Court and there by becomes a public servant for the purpose of the particular duty assigned to him. Nor do I consider that the complainant is a public servant within the meaning of Clause 9 as he cannot be called "an officer in the service of Government." The High Court Rules do not, as I read them,: contemplate a peon serving processes without remuneration of any kind: obviously no proper system of process-serving could, as it simply means that this irregular force of peons is to gain its remuneration from the litigant public.

I would therefore hold that the so-called peon in this case was not a public servant and was not acting in that capacity and I would dismiss the appeal.

(On this difference of opinion, the matter was referred to the Chief Justice.)

Courtney-Terrell, C.J.

I need only say that I entirely agree with the judgment of Agarwala, J., and have nothing to add to it.