Who is a Public Servant?
Public Servants have been defined under the Indian Penal Code and the Prevention of Corruption Act. The Supreme Court has also enlarge the scope of Public Servant.
Section 21 of the Indian Penal Code defines Public Servants as-
Certain persons to be public servants.
The competent authority, every arbitrator and every officer empowered by the Central Government or the competent authority, while exercising any power or performing any duty under this Act, shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).
According to section 21 of the Indian Penal Code (IPC), public servants encompass various categories:
- Commissioned Officers in the Armed Forces.
- Judges vested with the authority to adjudicate either individually or as part of a judicial body.
- Court officers tasked with legal investigations, authentication of information, or any duties mandated by the court.
- Members of juries, panchayats, or evaluation panels assisting in judicial proceedings.
- Arbitrators appointed by courts for dispute resolution.
- Officials authorized to detain individuals.
- Officers responsible for crime prevention, reporting offenses, and apprehending offenders.
- Government officers entrusted with tasks such as conducting surveys, assessments, or investigations related to governmental interests.
- Officials tasked with holding, managing, or distributing public property for the purpose of taxation or public benefit.
- Officers involved in electoral roll revisions and election administration.
- Individuals performing governmental duties for compensation, as part of public service, or appointed to positions within authorities established under government statutes.
Section 2(c) of the Prevention of Corruption Act furnishes a comprehensive characterisation of a “public servant,” delineating the term in clauses (i-xii).
(c) "public servant" means-
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
Landmark Cases dealing with Public Servants
In the case of K. Satwant Singh v. State of Punjab 1960 SCR (2) 89, the Supreme Court ruled that the provisions of section 197 of the 1973 Code of Criminal Procedure must be applied to certain offenses that, by their very nature, cannot be unequivocally attributed to public servants in the course of their official duties.
According to section 161 of the Indian Penal Code, 1860, offenses such as accepting bribes lack a clear connection to official duties, similar to offenses like cheating or abetment. For an offense to fall under section 197, there must be a direct link between the act committed and the discharge of official duties, with cheating or aiding and abetting cheating not inherently tied to any public servant's official responsibilities. Only offenses occurring within the purview of section 197 are those committed in the performance of official duties.
In the case of Matajog Dobey v. H.C. Bhari 1955 SCR (2) 925, the appellant alleged that officials from the Income Tax Department forcefully entered their residence and conducted a thorough search of all the drawers while purportedly carrying out an investigation. The appellant further asserted that the officials had been restrained and subjected to physical violence, prompting the magistrate to initiate prima facie proceedings.
The court emphasized the necessity of shielding public servants from undue harassment in the context of legal proceedings arising from their official duties, a protection not extended to ordinary citizens. It was also ruled that there must be a reasonable connection between the performance of official duties and the actions for which the individual is being charged, without any feigned assertions.
In the case of Baijnath And Ors v. State of MP (2016), the Supreme Court highlighted that not all offenses committed by public servants warrant prosecution under section 197(1) of the Code of Criminal Procedure, 1973. Only acts performed in the course of official duties and attributable to the office held would necessitate prosecution.
The protection afforded by this section is contingent upon the nature of the act being within the realm of official duties. If an offense is not connected to or falls outside the purview of a public servant's official duties, the protection provided by the section would not apply.
In the case of R.S. Nayak v. A.R. Antulay 1984 SCR (2) 495, regarding the penalty clause outlined in section 197 of the Code of Criminal Procedure, 1973, the Supreme Court emphasized that only the competent authority possesses the authority to take action against public servants in instances of misuse or abuse of their office. This authority is equipped with the necessary insight into the nature and extent of such abuses. Prior to any disciplinary action, the authority responsible for issuing penalties must thoroughly examine the evidence and circumstances surrounding the case.
Adhering to these procedures safeguards public servants from unwarranted mistreatment through malicious or baseless prosecutions, necessitating strict adherence to the provisions set forth by the relevant authorities for sanction issuance. Granting competent authorities the power to execute the sanction clause is advisable as it ensures transparency in prosecuting claims and allows for thorough examination of evidence and facts before presenting them to a court.
In the case of R.R. Chari v. State of UP 1951 SCR 312, the Supreme Court ruled that the initial portion of the section pertains to public officials who are not subject to removal from office while performing official duties, and it's improbable for courts to be knowledgeable about criminal cases involving such public servants. It was emphasized that prior to initiating prosecution, authorities must be convinced of the prima facie case against the accused. Section 197(1) primarily serves to protect public servants from unjust prosecution.
In the case of Dr. Subramanian Swamy v. Dr. Manmohan Singh and Anr. (2012) 3 SCC 64, the Supreme Court emphasized the necessity of averting the menace of malicious prosecution within the bounds of legal acceptance, allowing public servants to execute their official duties impartially and without bias. Nonetheless, the specter of corruption within public offices, prompting the court to incorporate provisions safeguarding public interest, was not disregarded.
Article 14 of the Constitution of India, guaranteeing equality before the law for all citizens, is encroached upon by the preferential treatment afforded to public servants, yet it serves as an exception to ensure discriminatory protection. Procedural regulations must be meticulously crafted to promote integrity, justice, and efficient governance in the face of heightened corruption.
In the case of Dhannjay Ram Sharma v. M.S. Uppadaya and Ors., AIR 1960 SC 745, the Honorable Supreme Court observed that for an accused individual to invoke the protection provided by section 197 of the Code of Criminal Procedure, 1973, they must first demonstrate to the court that they are a public servant who cannot be removed from their position except by or with the sanction of the state or central government. Secondly, they must establish that the actions in question are such that they cannot be removed from their position except through or with the sanction of the state or central government.