Case Analysis: Padam Sen and Another vs The State of Uttar Pradesh
Case Details
Case name: Padam Sen and Another vs The State of Uttar Pradesh
Court: Supreme Court of India
Judges: Raghubar Dayal, Syed Jaffer Imam, A.K. Sarkar
Date of decision: 27 September 1960
Citation / citations: 1961 AIR 218; 1961 SCR (1) 884; 1962 SC 527 (21,44); 1966 SC 1899 (5); 1975 SC 1685 (9); 1983 SC 1272 (21); 1986 SC 421 (35)
Case number / petition number: Criminal Appeal No. 149/1958; Criminal Appeal No. 1154 of 1956
Proceeding type: Criminal Appeal
Source court or forum: Supreme Court of India
Source Judgment: Read judgment
Factual and Procedural Background
The plaintiff, Genda Mal, had instituted a suit in the Additional Munsif Court, Ghaziabad, against Mithan Lal and other defendants for money based on promissory notes. Fearing that the plaintiff might falsify his account books to prejudice their defence, the defendants applied to the Additional Munsif for the seizure of those books. By an order dated 27 March 1954, the Additional Munsif appointed Sri Raghubir Pershad, a vakil, as Commissioner to seize the plaintiff’s account books and to produce them before the court.
On 30 March 1954, the appellants, Padam Sen and Shekbar Chand, visited the Commissioner’s office and offered him a bribe of Rs 900 with the intention of obtaining an opportunity to tamper with the seized books. The Special Judge, Meerut, convicted the appellants under section 165‑A of the Indian Penal Code for offering the bribe. The conviction was affirmed by the Allahabad High Court (Criminal Appeal No. 1154 of 1956). The appellants then filed a criminal appeal before this Court (Criminal Appeal No. 149 of 1958), seeking to set aside the conviction.
Issues, Contentions and Controversy
The Court was required to determine (i) whether the Additional Munsif possessed jurisdiction under the Code of Civil Procedure to appoint a Commissioner for the purpose of seizing the plaintiff’s account books, and (ii) whether Sri Raghubir Pershad could be regarded as a “public servant” within the meaning of Section 21 of the Indian Penal Code, particularly in view of Explanation 2, so that the appellants’ alleged offering of a bribe would constitute an offence under Section 165‑A.
The appellants contended that the appointment was void because the Code of Civil Procedure authorised commissions only for the four purposes enumerated in Section 75 and Order XXVI, and that the court’s inherent powers under Section 151 could not be invoked to create a new substantive authority. Consequently, they argued that Pershad was not a public servant and that liability under Section 165‑A could not arise.
The State argued that the Additional Munsif could exercise inherent powers saved by Section 151 to appoint a Commissioner, and that even if the appointment were void, Pershad would fall within Explanation 2 to Section 21 because he was in “actual possession of the situation of a public servant.” The State further relied on Rule 5 of Order XXXVIII, Rules 1(b) and 7 of Order XXXIX, and Rule 1 of Order XL as a basis for the appointment.
Statutory Framework and Legal Principles
Section 165‑A of the Indian Penal Code penalised the offering of a bribe to a public servant. Section 21, together with Explanation 2, defined a “public servant” to include a person who, though not holding a formal office, was in actual possession of the situation of a public servant. Section 75 of the Code of Civil Procedure, together with Order XXVI, listed the limited purposes for which a civil court could issue commissions. Section 151 of the Code of Civil Procedure preserved the court’s inherent powers for procedural matters but did not create substantive powers absent from the statute. The provisions of Rule 5 of Order XXXVIII, Rules 1(b) and 7 of Order XXXIX, and Rule 1 of Order XL were examined to determine whether they authorised the specific appointment of a Commissioner for seizure of private documents.
Court’s Reasoning and Application of Law
The Court applied a two‑fold test. First, it examined whether the appointment of a Commissioner fell within the statutory powers conferred by Section 75 of the Code of Civil Procedure and the relevant orders. It found that none of the four authorised purposes covered the seizure of account books in a civil suit, and that the cited rules did not empower a civil court to create a post of Commissioner for that purpose. Accordingly, the Court held that the Additional Munsif’s order was ultra vires and void.
Second, the Court considered whether Pershad could be deemed a “public servant” under Explanation 2 to Section 21. The explanation required the existence of a pre‑existing public office and the actual possession of that office by the person. Because no statutory or judicial post of Commissioner existed and the appointment itself was void, Pershad was not in possession of a public‑servant situation. The Court therefore rejected the State’s contention that Explanation 2 applied in the present circumstances.
Having concluded that the essential element of Section 165‑A – the receipt of a bribe by a public servant – was absent, the Court held that the appellants could not be convicted of the offence. The conviction recorded by the Special Judge and affirmed by the High Court was set aside.
Final Relief and Conclusion
The appeal was allowed. The Court set aside the conviction under Section 165‑A, acquitted Padam Sen and Shekbar Chand of the offence, directed that any fine that might have been paid be refunded, and ordered the cancellation of the bail bonds that were in force. The judgment thereby affirmed that a civil court could not create a substantive post of Commissioner without statutory authority and that a person appointed to such a void post could not be treated as a public servant for the purposes of the Indian Penal Code.