Krishan Lal vs Ajit Singh Dhillon

Gurdev Singh, J.

The petitioner Krishan Lal filed a complaint against the respondent Ajit Singh Dhillon under Sections 342 and 500 of the Indian Penal Code in the Court of a Magistrate at Ludhiana on the allegation that when the petitioner alighted from the train at Ludhiana, the respondent who was on duty as Guard of that train from Ambala to Ludhiana checked his ticket, and despite the fact that the petitioner showed his ticket, he was treated as a ticket less traveller out of spite.

When the respondent appeared before the Magistrate in obedience to the process issued against him, he took up the objection that the Court was not competent to take cognizance of the offences alleged against him as he was a public servant and the requisite sanction for his prosecution u/s 197 of the Criminal Procedure Code had not been obtained. This objection prevailed with the learned Magistrate, and, accordingly, the petitioner''s complaint was dismissed. On a petition for revision filed by the complainant Krishan Lal, the learned Additional Sessions Judge, Ludhiana, has now referred the case to this Court u/s 438 of the Criminal Procedure Code with the recommendation that further enquiry be ordered as the learned Magistrate was not justified in dismissing the complaint without recording any evidence since the question whether the respondent was a public servant was a mixed question of law and fact.

Shri R.L. Sharma, who appeared for the petitioner in support of the reference, has argued that the respondent Ajit Singh Dhillon, while employed as Railway Guard on the date he is alleged to have committed the offences for which he is being prosecuted, was a public servant only for the limited purpose of prosecution for offences under Chapter IX of section 408 of the Indian Penal Code, and since the complaint relates to offences under sections 342 and 500 of the Indian Penal Code, section 197 of the Criminal Procedure Code did not apply and no sanction for his prosecution was necessary. Reliance in this connection has been placed by him upon a decision of a Division Bench of this Court in Devi Ram Deep Chand and Another Vs. The State, where it was held that in view of the provisions contained in section 137 of the Railway Act a railway servant was a public servant for the purpose of Chapter IX of the Penal Code alone, and, therefore, he could not be called a public servant within the meaning of section 21 of the Indian Penal Code. In coming to this conclusion, the learned Judges relied upon section 137 of the Railway Act as it then stood. At that time the section ran thus :

Every railway servant shall be deemed to be a public servant for the purposes of Chapter IX of the Indian Penal Code.

Sub-section (4) of that section further provided :

Notwithstanding anything in section 21 of the Indian Penal Code, a railway servant shall not be deemed to be a public servant for any of the purposes of that Code except those mentioned in sub-section (1).

It is apparent that sub-section (4) reproduced above gave an overriding effect to sub-section (1) of section 137 which provided that every railway servant shall be deemed to be a public servant only for the purpose of Chapter IX of the Indian Penal Code, and if I may say so with respect, the decision of the Bench is fully justified by the language of section 137 as it then stood.

Subsequently, however, section 137 has been drastically amended by Central Act 17 of 1955, and as a result of that amendment sub-section (4), which has been reproduced earlier, was deleted and sub-section (1) was recast, to read as under:

137 (1) Every railway servant, not being a public servant as defined in section 21 of the Indian Penal Code, shall be deemed to be a public servant for the purposes of Chapter IX and section 409 of that Code.

The clear effect of this amendment was to take away the overriding effect of section 137 of the Railway Act and also to extend the definition of a public servant in section 21 of the Indian Penal Code so as to include such of the railway employees who were not covered by this definition, for the purposes of Chapter IX and section 409 of the Indian Penal Code. The contention of the petitioner''s learned counsel that the amendment had limited the definition of "Public servant" contained in section 21 of the Indian Penal Code so as to confine it to prosecution for offences under Chapter IX and section 409 of the Indian Penal Code is clearly untenable. On the contrary, the amendment of section 137 has given an extended meaning to the expression "public servant" as contained in section 21 of the Indian Penal Code. From this the inescapable conclusion is that every railway employee is a Government servant for the purpose of offences under the Indian Penal Code. This conclusion is strengthened by the decision of their Lordships of the Supreme Court in Ram Krishan and Another Vs. The State of Delhi, , in which the effect of the amendment of the year 1957, was considered, and it was observed:

The result is that before the amendment railway servants were treated as public servants only for the purposes of Chapter IX Penal Code but now as the result of the amendment all railway servants have become public servants not only for the limited purposes but also generally. In any event, they are public servants under the Prevention of Corruption Act.

Relying upon the last sentence of the above quotation from the judgment of their Lordships of the Supreme Court, Shri Sharma has argued that their Lordships did not intend to lay down that a railway servant was a public servant within the meaning of section 21 of the Indian Penal Code for all offences under that Code. I must confess my inability to appreciate such a contention. The language used by their Lordships in the above quotation admits of no doubt nor is there any ambiguity about it. They have said in clear terms that after the amendment of the year 1955 u/s 137 of the Railways Act all railway servants have become public servants generally. This view was reiterated by their Lordships in the subsequent decision of that Court reported as G.A. Monterio Vs. The State of Ajmer, wherein it was observed that the true test in order to determine whether a person is an officer of the Government is:

(1) Whether he is in the service or pay of the Government; and

(2) Whether he is entrusted with the performance of any public duty, and if both these requirements are satisfied, it matters not the least what is the nature of his office. In this later case, their Lordships were dealing with the case of a railway employee designated is chaser, and held that he was a public servant within the meaning of section 21 of the Indian Penal Code. A similar view was taken by the Allahabad High Court in Pyarey Mohan and Others Vs. State, .

The learned Additional Sessions Judge while making the reference has not gone into the question whether the respondent was or was not a public servant on the day the offences u/s 342 and 500 of the Indian Penal Code are alleged to have been committed by him. He has recommended the remand of the case merely on the ground that the question whether a person is or is not a public servant is a mixed question of law and fact and cannot be decided without evidence. The learned Judge, however, forgot that the status of the respondent was never disputed, and in the complaint filed against the respondent, the complainant had specifically stated that the respondent was acting as a Guard when he checked his ticket. It is not disputed that a Guard while on duty with a train has the authority to check the ticket of a passenger. It is thus obvious that on the petitioner''s own averments contained in the complaint, the respondent was acting or purporting to act in discharge of his duties as a railway Guard. Since I have held that the respondent is a public servant within the meaning of section 21 of the Indian Penal Code, the Court was not competent to take cognizance of the offence u/s 342 and 500 of the Indian Penal Code against him in absence of requisite sanction u/s 197 of the Criminal Procedure Code, which admittedly has not been obtained. I thus find that the learned Magistrate was justified in refusing to proceed with the case and in dismissing the complaint as he was debarred from taking cognizance of the offences alleged against the petitioner. The reference is misconceived and is, accordingly rejected.