Section 21 of the Indian Penal Code, 1860.
A line is drawn between the great mass of the community and certain classes of persons in the service and pay of Government, or exercising various public functions, who are here included in the words “public servant.“ Those offences which are common between public servants and other members of the community are left to the general provisions of the Code. But there are several offences which can only be committed by public servants and, on the other hand, public servants in the discharge of their duties have many privileges peculiar to themselves.
The expression 'public servant' denotes only a natural person and not a corporate body. The definition of 'public servant' is very important, for the entire chapter IX of the Code formerly dealt with offences by or relating to public servants, and chapter X deals with contempts of the lawful authority of public servants. The definition is also important for the purposes of the CrPC as cl (a) of the first proviso to s 200 of the CrPC enacts that when a written complaint is made by a court or a public servant acting or purporting to act in the discharge of his official duties, the complainant is not required to be examined, as in the case of a conciliation officer who is a statutory public servant by virtue of s 11(6) of the Industrial Disputes Act 1947, and who files a complaint, of an offence under the said Act, in a competent court. Again, if a person who is a public servant is to be prosecuted for an offence committed by him while acting or purporting to act in the discharge of his official duty, prior sanction as required by the terms of s 197 of the CrPC is essential before a court can take cognizance of the offence. Again, if a person who is a public servant is to be prosecuted for an offence committed by him while acting or purporting to act in the discharge of his official duty, prior sanction as required by the terms of s 197 of the CrPC is essential before a court can take cognizance of the offence.
The section does not actually define public servants, but describes them only by enumeration, which itself is merely illustrative and by no means exhaustive. But the framework of the section would indicate that though the various items are illustrative and not exhaustive, the wordings of the different heads, especially the ninth, tenth and twelfth are so elaborate and comprehensive that it virtually amounts to an exhaustive definition.
For a person to be a public servant it is not necessary that he should receive any salary or emoluments for his work. '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, accepts those responsibilities, and is recognised as filling the position of public servant, must be regarded as one'
It is essential that a public servant must be in charge of some public duty.35 Public duty is nowhere defined in the IPC, and no general definition of the word would be complete. It may, however, be said that all persons having to discharge, delegated functions of the administration of a State are public servants.
The true test, therefore, in order to determine whether a person is an officer of the government, is:
The railway servants employed by the Government Railways are public servants under that deleted part of cl (9), which now distinctly forms part of cl (12) of this section as96 sub-cl (a) and those railway servants, who are employed by 'non-government railway' shall be deemed to be public servants for the limited purposes of chapter 9 and s 149 of this Code under s 188 of the Railways Act 1989, which should take in its ambit even those railway servants of Government Railways, who for any reason do not become public servants under s 21 of the Code. This s 188 is analogous to s 137(1) of the old Railways Act 1890, as it stood after the 1955 amendment.
The chairman of the managing committee of a municipality is a public servant within the meaning of the section as he has power to expend money of the municipality on payment of bills for fixed recurring charges.
A Minister and Chief Minister have however, been held to be public servants.1) Similarly, the speaker of State Legislative Assembly is a public servant and so can be proceeded against under the Prevention of Corruption Act.2) The Members of Parliament and State Legislative Assemblies get their pay and allowances from their respective Governments but their pay masters do not have any control over the doing of their work, which a master-servant relationship implies. They are, therefore, not servants or public servants within the meaning of s 21, clauses (3), (7) or 12(a) of the Code.
Teachers and principals of private aided schools and colleges, though receiving pay from the public exchequer are not public servants. Persons appointed as invigilators have, however, been held to be public servant.
The office bearers and employees of a co-operative society are not public servants. A co-operative society does not fall within the definition of a 'local authority' as given in s 3(31) of the General Clauses Act 1897 as such it is not a local authority. The secretary of a co-operative credit society is not a public servant within the meaning of clauses (9), (10) or (12) s 21 of this Code.1 The president and secretary of a co-operative society are not public servants. A civil servant working on deputation with a co-operative society does not work there as a civil servant. He is, therefore, not a public servant.
A nationalised bank is a corporation owned and controlled by the Central Government. Bank employees are public servants within the meaning of the twelfth clause of s 21, IPC, for the purpose of s 197, CrPC .
An advocate engaged by the Government to conduct a particular matter, is not a public servant within the meaning of cl 12(a) of s 21 of the IPC . When an advocate is engaged by the Government official, he has no duty prescribed by such engagement or under the statute in relation to such engagement. An advocate so engaged does no other work except as an advocate and that is no public duty. He is free to return the brief at any time. He is free to appear against the government in the next case. The engagement, if any, is to act as an advocate. But, in the case of a public prosecutor or a Government pleader, it is the office that makes him the public servant.
Illustration to Twelfth Clause: The term 'Municipal Commissioner', has not been defined anywhere in the IPC . The word 'Commissioner' in the illustration appears to have been used in the sense of a municipal member or councillor and not in the sense of an officer in the employment of a municipality who is sometimes designated by that name.
Explanation 1: As stated earlier, this section does not define public servants and describes them only by enumeration, which is merely illustrative and not exhaustive. Some provisions or descriptions may apparently look conflicting or incomplete. Explanation 1 to the section removes this difficulty and doubts, and clarifies that persons falling under any of the descriptions mentioned in clauses 1-12 are public servants and it is not material whether they were appointed by the Government or not.
Explanation 2: By virtue of this explanation a person who is actually performing the duties of the office which brings him under one of the classes of this section is a public servant even though there may be some legal defect in his right to hold the office. A person in actual possession of the situation and performing the duties assigned to him is a public servant even if there is a defect in his appointment. But if there was absolutely no appointment at all, no question of any defect in it arises and the explanation has no application. It is necessary for the application of this explanation that the person connected should be in actual possession of the pre-existing office of a public servant. If there be no office or post, there can be no question of any one being in actual possession thereof, and of the person concerned coming within the terms of this explanation. If there is no post or office in existence and a person is appointed to it without jurisdiction, he is not a public servant within the meaning of this section. Members of the civic guard were not in actual possession of the situation of police officers until there were legally called out for duty under the terms of ordinance of 1940 read with the rules.