Tek Chand, J. - (1.) THIS is a criminal appeal preferred by the State on the order of acquittal passed by the Special Judge holding that no offence under Section 5(2) read with Section 5(i)(d) of the Prevention of Corruption Act has been disclosed against Benarsi Das.
(2.) THE accused was alleged to have abused his position as a public servant in so far as by employing corrupt and illegal means he had obtained for himself a sum of Rs. 2/ - from Manohar Lal as a motive or reward for showing him favour in issuing stamp worth Rs. 105/ - expedititously. The trial Court did not give any finding on the question of acceptance of Rs. 2/ - by the accused but passed the order of acquittal on the ground that the accused has not been shown to be a public servant which is a necessary ingredient of the offence. The expression "public servant" has been assigned the same meaning as are given in Section 21 of the Indian Penal Code. The relevant portion of Section 21, Indian Penal Code, is reproduced below: Public servant. -The words 'public servant' denote a person falling under any of the descriptions hereinafter following, namely: Ninth. -Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue -process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty ; Explanation I. -Persons falling under any of the above descriptions are public servants , whether appointed by the Government or not. The learned special Judge has expressed the view that Benarsi Das accused was actually appointed by R. B. Madho Pershad, the Government Treasurer, and, therefore, he cannot be considered as public servant. The salary of the staff including that of the accused is drawn by the office of the Deputy Commissioner on a contingent bill in the name of the Treasurer and is disbursed according to the breakup given in Exhibit P. 13. The Special Judge was influenced by the fact that the amount is paid to the contracting agent, i. e. R B Madho Pershad, or to his employees on his behalf. The accused admittedly was appointed by R. B. Madho Pershad on 27th of February 1959, vide Exhibit P. 12. Benarsi Das accused had executed an indemnity bond in favour of R. B. Madho Pershad. The Special Judge further expressed the view that though the money received by Benarsi Das came from the Government but it was an amount payable to the Treasurer under the contract. For these reasons, the Special Judge came to the conclusion that Benarsi Das was not a public servant. He relied upon two decisions, one reported in Bhagwati Shai v. Experor, I.L.R. 32 Cal. 664, which was a case of a clerk appointed by the Sub -Registrar who was not held to be a public servant. This decision is distinguishable because in that case it was conceded that the clerk was not a public servant. The decision was based upon the peculiar provisions of the Indian Registration Act (III of 1872) and Bengal Registration Manual and is not of any assistance for determining the status of the accused on the facts of this case. In Elahi Bux Khan v. The State : A.I.R. 1955 Cal. 482, the second case relied upon by the Special Judge, it was found that the person concerned was purely a nominee of the Branch Post Master and had been temporarily kept to discharge his duties This case is also of no help for determining the question before us. P. W. 7 is Shri Goel, Treasury Officer, Delhi. He stated that the contractor used to obtain contracting grant on the contingent bill by the office of the Deputy Commissioner. The contractor and the employees used to take their separate shares out of the contracting grant from the Deputy Commissioner's office. He also stated that the amount was paid direct to the employees of the contracting agent by the office of the Deputy Commissioner out of the contracting grant Regarding the duties of the accused, he said that he used to -receive stamps from the Treasury Officer and deposit the money with the Treasury Agent. Both the cash and the stamp at the Sub Treasury continued to be the property of the Government and had to be accounted for by the contracting agent every evening. The reasoning of the Special Judge is manifestly erroneous. The language of Section 21 has not been carefully examined by the learned Judge. The officer whose duty it is to take, receive, keep or expend any property on behalf of the Government......or to authenticate or keep any document relating 10 the pecuniary interests of the Government, ......" is a public servant. As stamp clerk, it was the duty of the accused to keep the stamps and to receive the payment. This alone is sufficient for falling within the definition of a public servant. The Special Judge appears to have overlooked Explanation I to Section 21 which provides that persons coming under any one of the above descriptions are public servants, whether appointed by the Government or not. Mr. Bishambar Davat drew our attention to a recent Bench decision of the Allahabad High Court in The State of Uttar Pradesh v. Audh Narain Singh, A.I.R. 1061 All. 515, where the circumstances were analogous. In that case also, the bill for the salary of Tahvildar used to be submitted through the Teasurer but the amount used to be paid to the Tahvildars not through him but directly through the treasury. It was held that such a person was an employee of the State. It was also remarked that the Treasurer's appointment and removal rested with the Government and for his office he received salary. The relationship with the State, of the treasurer, was not such that he was entrusted with a task which he could perform in the way he like. Not only the result but the manner of his work was also under the control of the State. The Allahabad High Court cited with approval the following observations of the Supreme Court in Shivnandan Sharma v. The Punjab National Bank Ltd. : A.I.R. 1955 S.C. 404; If a master employs a servant and authorizes him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with the employer, servants of the master. The above reasoning applies with equal force to the facts of this case. I am, therefore, of the view that Benarsi Das was a public servant and the conclusion of the Special Judge to the contrary is manifestly erroneous. One regrettable feature of this case is that the Special Judge decided the case and acquitted the accused on the interpretation of Section 21, Indian Penal Code, without recording defence evidence and without going into the merits. The decision of the criminal case, which is comparatively very petty, has been inordinately delayed as the occurrence is of 23rd of November 1959. As the question involved in this case is of the interpretation of Section 21, Indian Penal Code, there is no alternative but to direct the Special Judge to proceed with the trial from the stage where it was before he wrote his order. The appeal is consequently allowed and the order of acquittal is set aside. Falshaw, J. I agree.;