judgement:
al No. 31 of 1966.
Appeal from the judgment gad decree dated December 5, 1962 of the Allahabad High Court in First Appeal from Order No. 260 of 1952.
R.M. Mehta and S.P. Nayar, for the .appellant.
A.K. Sen, S.V. Gupte and S.S. Shukla, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
The respondent Jai Narain Misra is a building contractor.
On September 2, 1944, he entered into a contract (No. ES. 2944) with the Government of India represented by the Chief Engineer, Central Command, for the construction of additional quarters at T.P. 2 Kanpur.
The contract contained an arbitration clause.
Disputes between the parties relating to the contract were referred to Col. H.T. Faithful.
The arbitrator made his award on May 19, 1947.
On November 15, 1947 the respondent made an application for modifying the award and for remitting it to the arbitrator for re consideration.
On January 5, 1948, he filed additional objections.
By his order dated May 26, 1952 the Second Civil Judge, Kanpur, dismissed the objections and pronounced judgment according to the award.
The appellant filed an appeal against the order under section 39 of the .
By an order dated December 5, 1962, the High Court allowed the appeal and set aside the award on the ground that it was vague and uncertain.
The present appeal has been filed by the Union of India on the strength of a certificate granted by the High Court.
It appears that the respondent submitted 23 items of claim to the arbitrator.
By his letter dated May 6, 1947 he ' added 6 more items of claim.
The Union of India made a counter claim.
The 4Sup.
C.I./69 5 590 arbitrator was thus required to decide 29 disputed items of claim and the counter claim.
The award recited that certain differences between the parties in respect of contract No. ES.
2944 of 1944 had been referred to the arbitrator for his decision and that a final award was being made of and concerning the matters referred to him.
The relevant part of the award was as follows : "I award and direct that the following sums be paid by the respondent to the claimant.
Rupees twenty two thousand two hundred and ninety two annas five being the amount due to the claimant as calculated by the respondent.
(2) Rupees six thousand being the amount of security deposit paid by the claimant and now in possession of the respondent.
(3) Rupees seventy nine thousand three hundred and thirty nine.
The total amount to be paid by the respondent to the claimant is therefore one lakh seven thousand six hundred and thirty one annas five.
Each party to the dispute shall bear its own costs, including the cost of the stamp duty on this award.
" The High Court held that the award suffered from a patent ambiguity for the following reasons: It was not clear why the arbitrator awarded the first item of Rs. 22,292/5 and the 3rd item of Rs. 79,339 separately.
The arbitrator found only the first item of Rs. 22,292/5 to be due to the respondent, it was not clear whether he intended also to award the 3rd item of Rs. 79,339 to the respondent.
As the dispute consisted of 29 items of claims and a counter claim, the arbitrator should have made an award in respect of all the items separately or in combination or should have made a lump award in respect of all the items.
We are unable to accept this line of reasoning.
The award on the face of it professes to be of and concerning all matters submitted to the arbitrator.
In respect of all such matters the arbitrator awarded 'a sum cf Rs. 1,07,631/5 to the respondent.
This amount was made up of three sums separately mentioned in the award.
It was not the case of the respondent in the Trial Court that the award was uncertain or not intelligible.
The objection was taken for the first time before the High Court.
On the record there is nothing to show that the award was not intelligible to the parties.
The Court leans towards the construction that the award is certain.
Prima facie the award is good, and it is for the defendant 591 10 show that it is uncertain.
Per Jervis, C.J. in Mays & Anr.
vs Cannel(1).
There is no ambiguity about the first and the third items of the award.
The uncontradicted evidence of section Choudhry, the witness for the Government is "Item No. 1 of the award is that which was calculated by us in the government bill.
Item No. 3 is in respect of the remaining claim of the plaintiff." Item No. 1 thus represents the sum admitted by the government to be due to the respondent, and item No. 3 represents the additional sum found by the arbitrator to be due to him.
The arbitrator is not bound to give an award on each point.
He can make his award on the whole case, see Ghulam Khan vs Mohammad Hassan (1).
An arbitrator may award one sum generally in respect of all money claims submitted to him, unless the submission requires him to award separately on some one or more of them, see Whiteworth vs Hulse(3).
The arbitrator can lawfully make an award of a sum admitted to be due and a lump sum in respect of the remaining claim.
As the final award favour of the respondent professes to be made of and concerning all the matters referred to him, it must be presumed that in making it the arbitrator has taken into consideration all the claims and counter claims, see Harrison vs Creswick (4), Jewell vs Christie (5).
We hold that the award is a final and certain determination of all the disputes referred.
The arbitrator made an award in respect of the second item under some misapprehension.
The security deposit of Rs. 6,000 had been returned to the respondent and there was no dispute about it before the arbitrator.
In the circumstances, the arbitrator had no authority to award Rs. 6,000 to the respondent on account of the security deposit.
This part of the award is clearly separable and may be struck out.
Moreover, the award of Rs. 6,000 is to the advantage of the respondent; and the Court usually declines to set aside an award at the instance of a party who has not suffered any injury by the error, see Narsingh Narain Singh vs
Ajodhya Prasad Singh(6).
We find also that the award of Rs. 6,000 is now of no consequence.
After the award was made, the respondent received a sum of Rs. 1,00,594/7 in full settlement of the award, presumably after giving the government credit for the sum of Rs. 6,000 already received by him.
We therefore hold that there is no ground for setting aside the award.
The award is not vague and/or uncertain and does not suffer from any other infirmity.
(1) 24 Law Journal, Q.B. 41, Cal. 167, 186 (P.C.).
(3) (1866) L,R. I exhibit 251.
(4) ; (15) (6) , 113. 592 Mr. Mehta also contended that (1) the appeal before the High Court was not maintainable under sections 17 and 39 of the and (2) the respondent having received payment in full settlement of the award was estopped from challenging it.
We do not find it necessary to decide these points in view of our conclusion that the award is not liable to be set aside.
The appeal is allowed with costs in this Court, and the High Court.
The order of the High Court is set aside and the order and decree passed by the Second Civil Judge, Kanpur, is restored.
G.C. Appeal allowed.

summary/full:
The respondent, a building contractor, entered into a contract with the Government of India for the construction of certain flats.
On disputes arising, they were referred to an arbitrator.
the arbitrator made an award and directed certain sums to be paid by the Union of India to tile respondent.
Rupees twenty two thousand two hundred and ninety two, annas five were to be paid as the amount due to the respondent 'as calculated by the Union of India.
Rupees six thousand were to be paid as the amount of security deposit made by the respondent with the Union of India.
The third item was mentioned as Rupees seventy nine thousand three hundred and thirty nine.
total amount payable was mentioned as Rupees one lakh seven thousand six hundred and thirty one, annas five.
The respondent made an application for modifying the award and for remitting it to the arbitrator for reconsideration.
The Second Civil Judge, Kanpur dismissed the objections and pronounced judgment according to the award.
The appellant filed an appeal against the order under section 39 of the .
The High Court allowed ' the appeal and set aside the award on the ground that it was vague and uncertain.
According to the High Court it was not clear why the arbitrator awarded the first item of Rs. 22,292/5/ and the third item of Rs. 79,339/ separately.
Since the arbitrator found only the fir.st item of Rs. 22,922/5/to be due to the respondent, the High Court did not find it clear whether he intended also to award the 3rd item of Rs. 79,339/ to the respondent.
As the dispute related to 29 items of claims and counter claims the arbitrator, according to High Court, should have made an award in respect of all the items separately or in combination or should have made a lump sum award in respect of nil the items.
Against the order of the High Court the Union of India appealed to this Court with certificate.
HELD: The reasoning of the.
High Court could not be accepted.
(i) The award on the face of it professed to be of and concerning all matters submitted for arbitration.
In respect of all such matters the arbitrator awarded a sum of Rs. 1,07,631/6/ to the respondent.
This amount was made of three sums separately mentioned in the award.
On the record there was nothing to show that the award was not intelligible to the parties.
[590 G] The court leans towards the construction that the award is certain.
the evidence item No. 1 represented the sum admitted the sum due to respondent and item No. 3 represented the additional sum found by the arbitrator to be due to him.
[590 H] (ii) The arbitrator is not bound to give an award on each point.
He can give his award on the whole case.
An 'arbitrator may award one sum generally in respect of all money claims submitted to him.
unless the submission requires him to award separately on some one or more of them.
589 The arbitrator can lawfully make an award of a sum admitted to be due and a lump sum in respect of the remaining claim.
As the final award in favour of the respondent professed to be made of and concerning all the matters referred to him, it must be presumed that in making it the arbitrator had taken into consideration 'all the claims and counter claims.
The award must be held to be a final and certain determination of all the disputes referred.
[591 C, D] (iii) The mention of the second item of Rupees six thousand in the award was a mistake.
This part of the award being clearly separable must be struck out.
The award of the sum of Rupees six thousand was to the advantage of the respondent and the court could not set aside an award at the instance of a party who had not suffered any injury.
[591 F] Mays and Anr.
vs Cannel 24 Law Journal Q.B. 41, 45; Ghulam Khan vs Mohammad Hassan I.L.R. , 186 (P.C.); Whiteworth vs Hulse (1866) L.R. 1 exhibit 251; Harrison vs Creswick ; , Jewell vs Christie and Narsingh Narain Singh vs Ajodhya Prasad Singh, , 113, referred to.


judgement:
No. 179 of 1968.
Petition under article 32 of the Constitution of India for a writ in the nature of Habeas corpus.
R.L. Kohli, for the petitioners.
Debabrata Mukherjee and P.K. Chakravarti, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
In this case the petitioners have.
obtained a rule calling upon the respondent, viz., The State of West Bengal 637 to show cause why a writ of habeas corpus should not be issued under article 32 of the Constitution directing their release from detention under orders passed under section 3(2) of the (Act IV of 1950), hereinafter called the 'Act '.
Cause has been shown by Mr. Debabrata Mukherjee and other Counsel on behalf of the respondent to whom notice of the rule was ordered to be given.
The case of the petitioners will be considered in the following three groups: (1) Petitioners nos.
2, 4, 5, 6, 16, 17, 20 and 26, (2) Petitioners nos.
1, 3, 7, 10, 12, 13, 19 and 22, (3) Petitioners nos.
8, 9 and 21.
By the order of this Court dated October 18, 1968, the cases as regards petitioners nos.
11, 14, 15, 18, 23, 24, 25, 27 to 30 were dismissed as they were reported to have been released.
As regards petitioner No. 5, Subhas Chandra Bose alias Kanta Bose, the order of detention was made on January 20, 1968 by the District Magistrate, Howrah and reads as follows: "No. 202/C Dated, Howrah, the 20th January, 1968 WHEREAS I am satisfied with respect to the person known as Shri Kanta Bose alias Subhas Chandra Bose son of Shri Sishir Kumar Bose of 26, Nilmoni Mallick Lane, P.S. and Distt Howrah, that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary so to do , therefore, in exercise of the powers conferred by Section 3(2) of the (Act IV of 1950), I make this order directing that the said Shri Kanta Bose alias Subhas Chandra Bose be detained.
Given under my hand and seal of office.
Sd/ D.C. Mookherjee District Magistrate Howrah.
On the same date ' the following grounds of detention were communicated to the detenu: "You are being detained in pursuance of a detention order made under sub section (2) of section 3 of the ' (Act IV of 1950) on the following grounds: Sup C1/69 8 638 2.
You have been acting in a manner prejudicial to the maintenance of public order by commission of offences of riotous conduct, criminal intimidation and assault as detailed below : (a) That on 3 11 65 at about 17/30 hrs.
you assaulted Shri Ashutosh Dutta son of Shri Pyari Mohan Dutta of 55, M.C. Ghosh Lane, P.W. Howrah at the crossing of Panchanan Tala Road and M.C. Ghosh Lane, with knife causing bleeding injuries on his hand.
(b) That on 8 10 66 at about 16.00 hrs.
while Shri Mahesh Prosad Bhagal son of Balgobinda Bhagal of 16, Belilious Road, P.S. Howrah was playing in an open field, you along with your associates demanded money from him and on his refusal you hurled cracker on him causing grievous injury on his right leg (c) That on 8 6 67 at about 11.40 hrs.
you accosted one Sushanta Kumar Ghosh son of Manmatha Ghosh of 2/1/1, Danesh Sk.
Lane inside a saloon at 255, Panchanantala Road on previous grudge and being intervened by Shri Shyamal Biswas son of Sandhya Biswas of 255, panchanantala Road, P.S. Howrah, you whipped out a dagger and assaulted Shri Biswas with the dagger causing injury on his hand.
(d) That on 23 11 67 at about 22.45 hrs.
you hurled cracker on A.S.I.B. Kundu of Bantra P.S. while he was coming to Howrah along panchanantala Road in a wireless van and caused injury to the A.S.I. and damage to the wireless van.
(e) That on 7 1 68 at about 18.30 hrs.
you threatened one Satya Narayan Prosad son of Late purusattam Prosad of 10, Debnath Banerjee Lane, P.S. Howtab with assault at the crossing of M.C. Ghosh Lane and Bellilious Road.
You are hereby informed that you may make a representation to the State Government within 30 days of the receipt of the detention order and that such representation should be addressed to the Assistant Secretary to the Government of West Bengal, Home Department, Special Section, Writers ' Buildings, Calcutta and forwarded through the Superintendent of the Jail in which you are detained.
You are also informed that under Section 10 of the (Act IV of 1950) the Advisory Board shall if you desire to be heard you in person and that if you desire to be so heard by the 639 Advisory Board you should intimate such desire in your representation to the State Government.
Sd/ D.C. Mookerjee District Magistrate Howrah.
" On March 19, 1968 the Advisory Board made a report under section 10 of the Act stating that there was sufficient cause for detention of Sri Kanta Bose alias Subhas Ch.
On March 30, 1968 the Governor of West Bengal confirmed the detention order under section 11 (1) of the Act.
Section 3 of the Act provides: "3.
(1) The Central Government or the State Government may (a) If satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relation of India with foreign powers or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance or supplies and a services essential to the community, or (b) if satisfied with respect to any person who is a foreigner within the meaning of the (XXXI of 1946), that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such persons be detained.
(2) Any of the following officers, namely, (a) District Magistrates, (b) Additional District Magistrates specially empowered in this behalf by the State Government, (c) the Commissioner of Police for Bombay, Calcutta, Madras or Hyderabad, (d) Collector in the State of Hyderabad, may satisfied as provided in sub clauses (2) and (3) of clause (a) of sub section (1 ) exercise powers conferred by the said sub section.
640 (3) When any order is made under this section by an officer mentioned in sub section (2) he shall forthwith report the fact to the State Government to which he is subordinate together with grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order made 'after the commencement of the Preventive Detention (Second Amendment) Act, 1952, shall remain in force for more than twelve days after the making thereof unless in the meantime it has 'been approved by State Government.
(4) When any order is made or approved by the State Government under this section, the State Government shall, as soon as may be, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have bearing on the necessity for the order.
" Section 7 is to the following effect: "7. '(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which order has been made, and shall afford him the earliest opportunity if making a representation against the order to the appropriate Government.
(2) Nothing in sub section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
" It will be noticed that before an order of detention can be validly made by the detaining authorities specified by section 3(2) of the Act, the authority must be satisfied that the detention of the person is necessary in order to prevent him from acting in any prejudicial manner as indicated in cls.
(i) to (iii) of section 3(1) (a).
It is well settled that the satisfaction of the detaining authority to which section 3(1 )(a) refers is a subjective satisfaction, and so is not justifiable.
Therefore it would not be open to the detenu to ask the Court to consider the question as to whether the said satisfaction of the detaining authority can be justified by the application of objective tests.
It would not be open, for instance, to the detenu to contend that the grounds supplied to him do not necessarily or reasonably lead to the conclusion that if he is not detained, he would indulge in prejudicial activities.
The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law; the adequacy of the material on 641 which the said satisfaction purports to rest also cannot be examined in a Court of law.
That is the effect of the true legal position in regard to the satisfaction contemplated by section 3(1)(a) of the Act (See the decision of this Court in The State of Bombay vs Atma Ram Sridhar Vaidya(1).
But there is no doubt that if any of the grounds furnished to the detenu are found to be irrelevant while considering the application of cls.
(i) to (iii) of section 3(1)(a) and in that sense arc foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge 'and the detention order liable to be quashed.
Similarly, if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of his statutory right of making a representation, that again may make the order of detention invalid.
If, however, the grounds on which the order of detention proceeds are relevant and germane to the matters which fall to be considered under section 3 ( 1 ) ( a ) of the Act, it would not be open to the detenu to challenge the order of detention by arguing that the satisfaction of the detaining authority is not reasonably based on any of the said grounds.
It is also necessary to emphasise in this connection that though the satisfaction of the detaining authority contemplated by section 3 (1) (a) is the subjective satisfaction of the said ' authority, cases may 'arise where the detenu may challenge the validity of his detention on the ground of mala fides.
The detenu may say that the passing of the order of detention was an abuse of the statutory power and was for a collateral purpose.
In support of the plea of mala fides the detenu may urge that along with other facts which show mala fides, the grounds served on him cannot rationally support the conclusion drawn against him by the detaining authority.
It is only in this incidental manner that this question can become justifiable; otherwise the reasonableness or propriety of the said satisfaction contemplated by section 3(1)(a) cannot be questioned before the Courts.
The question to be considered in the present case is whether grounds (a), (b) and (e) served on Subhas Chandra Bose are grounds which are relevant to "the maintenance of public order".
All these grounds relate to cases of assault on solitary individuals either by knife or by using crackers and it is difficult to accept the contention of the respondent that these grounds have any relevance or proximate connection with the maintenance of public order.
In the present case we are concerned with detention under section 3( 1 ) of the which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order.
Does the expression "public(1) ; 642 order" take in every kind of infraction of order or only some categories thereof.
It is manifest that every act of assault or injury to specific persons does not lead to public disorder.
When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder.
Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order.
The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large.
In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest.
A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the but a disturbance which will affect public order comes within the scope of the Act.
A District Magistrate is therefore entitled to take action under section 3 (1 ) of the Act to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
In Dr. Ram Manohar Lohia vs State of Bihar(1), it was held by the majority decision of this Court that the expression "public order" was different and does not mean the same thing as "law and order".
The question at issue in that case was whether the order of the District Magistrate, Patna under Rule 30(1)(b) of the Defence of India Rules, 1962 against the petitioner was valid.
Rule 30( 1 )(b) provided that a State Government might, if it was satisfied with respect to a person that with a view to preventing him from acting in a manner prejudicial to 'public safety and maintenance of public order ' it is necessary to do so, order him to be detained.
The order of the District Magistrate stated that he was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the 'public safety and the maintenance of law and order, ' it was necessary to detain him.
Prior to the making of the order the District Magistrate had, however, recorded a note stating that having read the report of the Police Superintendent that the petitioner 's being at large was prejudicial to 'public safety ' and 'maintenance of public order ', he was satisfied that the petitioner should be detained under the rule.
The petitioner moved this Court under article 32 of the Constitution for a writ of habeas corpus directing his release from detention, contending that though an order of detention to prevent acts prejudicial to public order may be justifiable ,an order to prevent acts prejudicial to law and order would not be justified by the rule.
It was held by the majority judgment that what was (1) ; , 643 meant by maintenance of public order was the prevention of disorder of a grave nature, whereas, the expression 'maintenance of law and order ' meant prevention of disorder of comparatively lesser gravity and of local significance.
At page 746 of the Report, Hidayatullah, J. as he then was, observed as follows in the course of his judgment: "It will thus appear that just as 'public order ' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State ', 'law and order ' also comprehends disorders of less gravity than those affecting 'public order '.
One has to imagine three concentric circles.
Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State.
It is then easy to see that an act may affect law and order but not public order just as an 'act may affect public order but not security of the State.
By using the expression 'maintenance of law and order ' the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.
" The order no doubt mentioned another ground of detention, namely, the prevention of acts prejudicial to public safety, and in so far as 'it did so, it was clearly within the rule.
But the order of detention must be held to be illegal, though it mentioned a ground on which a legal order of detention could have been based, because it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction.
It was accordingly held that the order of detention made by the District Magistrate was invalid and the petitioner should be set at liberty.
In our opinion, the principle laid down in this case governs the decision in the present case also and the order of the District Magistrate, Howrah dated January 20, 1968 must be held to be ultra vires and illegal.
The difference between the concepts of 'public order ' and law and order ' is similar to the distinction between 'public ' and 'private ' crimes in the realm of jurisprudence.
In considering the material elements of crime, the historic tests which each community applies are intrinsic wrongfulness and social expediency which are the two most important factors which have led to the designation of certain conduct as criminal.
Dr. Allen has distinguished 'public ' and 'private ' crimes in the sense that some offences primarily injure specific persons and only secondarily the public interest, while others directly injure the public interest 'and affect indivi 644 duals only remotely.
(see Dr. Allen 's Legal Duties, p. 249).
There is a broad distinction along these lines, but differences naturally arise in the application of any such test.
The learned author has pointed out that out of 331 indictable English offences 203 are public wrongs and 128 private wrongs.
The argument was, however, stressed by Mr. Mukherjee on behalf of the respondent that the other grounds, viz., (c) and (d) mentioned in the order of the District Magistrate dated January 20, 1968 are more serious in character and may be held prejudicial to public order.
We shall assume in favour of the respondent that grounds (c) and (d) are matters prejudicial to: public order.
But even upon that assumption the order of detention must be held to be illegal.
It is now well established that even if any one of the grounds or reasons that led to the satisfaction is irrelevant, the order of detention would be invalid even if there were other relevant grounds, because it can never be certain to what extent the bad reasons operated on the mind of the authority concerned or whether the detention order would have been made at all if only one or two good reasons had been before them. (See the decisions of this Court in Shibban Lal Saksena vs The State of Uttar Pradesh(1) and Dr. Ram Manohar Lohia vs State of Bihar(2).
For these reasons we hold that the order of detention made by the District Magistrate, Howrah under section 3(2) of the Act dated January 20, 1968 against petitioner Subhas Chandra Bose alias Kanta Bose and the consequent order made by the Governor dated March 30, 1968 confirming the order of detention under section 11 (1 ) of the Act must be declared to be illegal and accordingly the petitioner.
Subhas Chandra Bose alias Kanta Bose is entitled to be released from custody forthwith.
In the case of petitioner 2, Sukumar Chaudhury, No. 4, Tarapada Bhowmick, No. 6, Golam Rasul Molliek, No. 16, Sk.
Sharafat, No. 17, Hanif Mirza, No. 20, Sk.
Mann, and No. 26, Chittaranjan Majhi, the orders of detention suffer from the same defect as that in the case of petitioner No. 5, Subhas Chandra Bose alias Kanta Bose.
For the reasons already given we hold that the orders of detention made under section 3(2) of the Act and the orders of confirmation by the State Government under section 11 (1 ) of the Act in the case of all these petitioners are illegal and ultra vires and these petitioners are also entitled to be set at liberty forthwith.
We pass on to consider the case of the petitioner mentioned in Group 2.
As regards Pushkar Mukherjee, petitioner No. (1) ; (2) ; 645 the order of detention was made by the District Magistrate, 24 Parganas on September 19, 1967 and reads as follows: "Whereas I am satisfied with respect to the person known as Shri Pushkar Mukherjee, son of Late Jaladhar Mukherjee, Madhyamgram (Bireshpally), P.S. Baraset, Dist.
24 Parganas that with a view to preventing him from acting in a manner prejudicial to the maintenance of Public order, it is necessary so to do.
And, therefore, in exercise of the power conferred by Section 3(2) of the (Act IV of 1950) I make this oder directing that the said Shri Pushkar Mukherjee, son of Late Jaladhar Mukherjee be detained.
B. Majumdar, District Magistrate, 24 Parganas." The grounds of detention were served upon the detenu on the same date and are to the following effect: "Grounds for detention under sub section 2 of section 3 of the (Act IV of 1950).
To Shri Pushkar Mukherjee, s/o Late Jaladhar Mukherjee, of Madhyamgram (Bireshpally), P.S. Baraset, District 24 Parganas.
In pursuance of the provision of Section 7 of the (Act IV of 1950) as amended by the Preventive Detention (Amendment) Act, 1952 and 1954, you Shri Pushkar Mukherjee, s/o Late Jaladhar Mukherjee of Madhyamgram (Bireshpally), P.S. Baraset, 24 Parganas are hereby informed that you are being detained under section 3(1)(a)(ii) of the on the following grounds : 1.
That you have been acting in a manner prejudicial to the maintenance of public order by the commission of offences of riotous conduct, criminal intimidation and assault as detailed below : (i) That on 26 3 1967 at about 11.00 hrs.
you along with your associates Harisikesh Samadder 'and others being armed with dagger, spear and iron rods demanded money for drinks from Shri Joy Nath Roy in his Khatal at Katakhal Ganga Nagar, P.S. Baraset and on his refusal to pay the money you along with your associates dragged him out of his room and assaulted ' him and his friend Sudhir Ghose causing injuries on their persons.
646 (ii) That on 19 6 1967 evening you along with your associates threatened Sushil Kumar Chakravorty of Madhyamgram with assault when he was returning home from New Barrackpore Rly Station apprehending that he might inform the police for your arrest in connection with Baraset P.S. Case No. 56 dated 24 3 1967 u/s 302/394 I.P.C. which was pending investigation.
(iii) That on 8 7 1967 at about 22.00 hrs.
you along with your associates Kalyan Chakraborty and others again threatened Shri Sushil Kumar Chakraborty of Madhyamgram with assault out of previous grudge when he was returning to his house from New Barrackpore Rly Stn.
(iv) That you were detained for your rowdy activities u/s 30(1) of the D.I. Rules 1962 from 22 4 1964 under Govt.
Order No. 1233 H.S. dated 15 4 1964 and was released from detention on 4 10 1965.
(v) That for your rowdy activities you were detained on 19 9 1966 under P.D. Order No. 163/66 which was confirmed under Govt.
Order No. 8999 H.S. dated 26 11 1966 and you were released from such detention on 13 3 1967 under Order No. 1095 H.S. dated 13 3 1967 during General release.
Thus from your activities subsequent to your release from detention under the P.D. Act on 13 3 1967 it appears that the detention did not produce the sobering effect on you.
You have become a menace to the society and there have been disturbances and confusion in the lives o,f peaceful citizens of Baraset and Khardah P.S. areas under 24 Parganas District and the inhabitants thereof are in constant dread of disturbances of public order.
For the above reasons, I am satisfied that you are likely to act in a manner prejudicial to the maintenance of public peace and order, and therefore, I have passed an order for your detention to ensure the maintenance of Public Order.
You are further informed that you have right to make a representation in writing against this order under which you are detained.
If you wish to make such a representation, you should address it to the Assistant Secretary, Govt.
of West Bengal (Home Special) Department, Writers ' Buildings, Calcutta through the Superintendent of your Jail as soon as possible.
Your case will be submitted to the Advisory Board within 30 days of your detention and your representation if received later, may not be considered by the Board.
V. You are also informed that under Section 10 of the (Act IV of 1950), the Advisory Board, shall, if you desire to be heard, hear you in person and that if you desire to be so heard by the Advisory Board you should 647 A intimate such desire in your representation to the State Government.
B. MAJUMDAR.
District Magistrate, 9 9 67.
24 Pargan as.
" On May 23, 1968, the Advisory Board reported that there was sufficient cause for detention of the detenu.
On June 12, 1968 the Government of West Bengal confirmed the order of detention under section 11 ( 1 ) of the Act.
It appears to us that ground No. 2 is extremely vague.
Ground No. 2 states "You have become a menace to the society and there have been disturbances and confusion in the lives of peaceful citizens of Baraset and Khardah P.S. areas under 24 Parganas District and the inhabitants thereof are in constant dread of disturbances of public order.
" It is manifest that this ground is extremely vague and gives no particulars to enable the petitioner to make an adequate representation against the order of detention and thus infringes the constitutional safeguard provided under Art 22 ( 5 ) Reference may be made in this connection to the decision of this court in the state of Bombay vs Alma Ram ion of this Court in The State Sridhar Vaidva(1) in which Kania of Bombay vs Atma Ram C.J. observed as follows: "What is meant by vague ? Vague can be considered as the antonym of 'definite '.
If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague.
It is not possible to state affirmatively more on the question of what is vague.
It must vary according to the circumstances of each case.
It is however improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it.
That is a matter of detail which has to be examined in the light of the circumstances of each case.
If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague.
The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained ' person to legitimately meet the charge against him because the only answer which he can make is to say that he did not act as generally suggested.
In certain cases that argument may support the contention that having regard to the general language used in the ground he has not been given the earliest opportunity to make a representation against the order of detention.
It ' cannot be disputed that the represen (1) ; 648 tation mentioned in the second part of article 22(5).
must be one which on being considered may give relief ' to the detained person.
" It was, however, argued by Mr. Debabrata Mukherjee on behalf of the respondent that even though ground No. 2 may be vague, the other grounds supplied to the detenu are not vague and full and adequate particulars have been furnished.
But it is well established that the constitutional requirement that the grounds must not be vague must be satisfied with regard to each of the grounds communicated to the person detained subject to the claim of privilege under cl.
(6) of article 22 of the ConstitUtion 'and therefore even though one ground is vague and the other grounds are not vague, the detention is not in accordance with procedure established by law and is therefore illegal. (See the decision of this Court in Dr. Ram Krishan Bhardwaj vs The State of Delhi(1).
For these reasons we hold that the order of detention made against the petitioner, Pushkar Mukherjee by the District Magistrate, 24 Parganas on September 19, 1967 and 'the consequent order of the Governor of West Bengal dated June 12, 1968 confirming the order of detention were illegal and ultra vires and the petitioner is entitled to be set at liberty forthwith.
In the case of petitioners No. 3, Barun Kumar Hore, No. 7 Karfick Dey, No. 10, Ajit Basak, No. 12, Sk.
Idris, No. 13, Shamsuddin Khan, No. 19, Khokan Mitra and No. 22, Ranjit Kumar Ghosal, the orders of detention suffer from the same legal defect as the order of detention in the case of petitioner No. 1, Pushkar Mukherjee.
For the reasons already stated, we hold that the orders of detention and the orders of confirmation made by the State Government under section 11 (1 ) of the Act in the case of these seven petitioners also are illegal and ultra vires and these petitioners are also entitled to be set at liberty forthwith.
As regards the cases of the remaining petitioners, nos., 8, 9 and 21, Chandan P. Sharma, Sk.
Sahajahan and Bind Parmeshwar Prasad, alias Bindeshwari Prosad respectively, we have persued the orders of detention and the grounds supplied to these petitioners.
It is not shown by learned Counsel on their behalf that there is any illegality in the orders of detention or in the subsequent procedure followed for confirming these orders.
In our opinion, no ground is made out for grant of a writ of habeas corpus so far as these petitioners are concerned.
Their applications for grant of a writ of habeas corpus are accordingly rejected.
We desire to say that we requested ' Mr. Kohli to assist us on behalf of the petitioners and we are indebted to him for his assistance.
Y.P. Petitions dismissed.

dataset_name: IN-Abs

summary/full:
In petitions for the writ of habeas corpus under article 32 of the Constitution for release from detention under orders passed under section 3(2) of the Prevention of Detention Act, HELD: The reasonableness of the satisfaction of the detaining authority cannot be; questioned in a Court of law; the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in a Court of law.
But if any of the grounds furnished to the detent are found to be irrelevant while considering the application of cls.
(i) to (iii) of section 3(1)(a) of the Act and in that sense are foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order liable to be quashed.
[640 H 641 C] Even if any one of the grounds or reasons that led to the satisfaction was irrelevant, the order of detention would be invalid even if there were other relevant grounds, because it could never be certain to what extent the bad reasons operated on the mind of the authority concerned or whether the detention order would have been made at all if only one or two good reasons had been before them.
Similarly, if some of the ground supplied to the detent are so vague that they would virtually deprive the detent of his statutory right of making a representation, that again may make the order of detention invalid.
If, however, the grounds on which the order of detention proceeds are relevant and germane, to the matters which fall to be considered under section 3(1)(a) of the Act, it would not be open to the detenu to challenge the order of detention by arguing that the satisfaction of the detaining authority is not reasonably based on any of the said grounds.
Though the satisfaction of the detaining authority contemplated by section 3(1)(a) is the subjective satisfaction of the said authority, cases may arise: where the detenu may challenge the validity of his detention on the ground of mala fides.
[641 B F, 644 C D] In the present case, (1) with respect to some of the petitioners three of the grounds of detention related to cases of assault on solitary individuals either by knife or by using crackers.
It could not be held that these grounds had any relevance or proximate connection with the maintenance of public order.
Therefore the orders of detention of these petitioners were illegal and ultra virex.
The expression "public order" in section 3 (1) of the Act does not take in every kind of infraction of law.
When two people quarrel and fight 'and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder.
Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the 636 ground that they were, disturbing public order.
The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large.
A line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest must be drawn and the, relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest.
A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.
A District Magistrate is therefore entitled to take action under section 3( 1 ) of the Act to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
The difference= between the concepts of 'public order ' and 'law and order ' is similar to the distinction between 'public ' and 'private ' crimes in the realm of jurisprudence.
In considering the material elements of crime, the historic Jests which each community applies are intrinsic wrongfulness and social expediency which are the two most important factors which have led to the designation of certain conduct as criminal. 'Public ' and 'private ' crimes have been distinguished in the sense that some Offences primarily injure specific persons and only secondarily the public interest, while others directly injure the public interest and affect individuals only remotely.
[641 H 642 D; 643 G, H] The State of Bombay vs Atma Ram: Sridhar Vaidya, ; ; Dr. Ram Manohar Lohia vs State of Bihar, ; ; Shibban Lal Saksena vs The State of Uttar Pradesh, ; , followed.
(2) One of the grounds of detention supplied to some of the other petitioners, stated, that they had become a menace to the society and there had been disturbances and confusion in the lives of peaceful citizens of the locality and that the inhabitants thereof were in constant dread of disturbances of public order.
The ground was extremely vague and gave no particulars to enable the petitioners to make an adequate representation against the order of detention and this infringed the Constitutional safeguard provided under article 22(5).
Therefore, the orders of detention of these petitioners were illegal and ultra vires.
The Constitutional requirement that the ground must not be vague must be satisfied with regard to each of the grounds communicated to the person detained subject to the claim of privilege under el.
(6) article 22 of the Constitution and therefore even though one ground was vague and the other grounds were not vague, the detention was not in accordance with procedure established by law and was therefore illegal.
[648 B C] Dr. Ram Krishan Bhardwaj vs The State of Delhi, ; , followed.


judgement:
minal Appeal No. 207 of 1966.
Appeal from the judgment and order dated August 10, 1966 of the Patna High Court in Criminal Appeal No. 14 of 1964.
K.R. Chaudhuri, for the appellant.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
The question involved in this appeal is whether the appellant Akhtar Alam was a "public servant" within the meaning of section 5 (2) of the Prevention of Corruption Act (Act 11 of 1947 ) and section 21 of the Indian Penal Code.
On or about December 11, 1962, the appellant was charged in the Court of the Special Judge of Patna for an offence.
under section 5(2), read with section 5(1) of the Prevention of Corruption Act and section 161 of the Indian Penal Code.
The case of the prosecution was that on July 8, 1961, the appellant committed these offences by obtaining a sum of Rs. 180/ for Sri A.D. Singh, Executive Engineer (Electrical) from Ramprit Singh, P.W. 2 by resorting to corrupt and illegal means or by otherwise abusing his position as public servant.
It is said that on the morning of July 6, 1961, the Electrical Executive Engineer, Sri A.D. Singh, accompanied by his Head Clerk, the appellant paid a visit to Janta Oil Mills situated at Fatuhas.
Ramprit Singh, P.W. 2 was the lessee of the Mills.
The Executive Engineer met P.W. 2 in the mill premises and told him that the outer seal of the meter, technically called the body seal, was in a tampered condition.
P.W. 2 maintained that the seal was not tampered but on a threat by the Executive Engineer, P.W. 2 was compelled to give a written statement that 684 the outer seal was tampered with.
Thereafter the Executive Engineer cut the inner seal, technically known as the loop seal, of the meter and fixed two fresh seals on the meter, one in the terminal 'and the other in the body of the meter.
The Executive Engineer and the appellant thereafter left the mill premises.
At about 10 a.m. on the same day the appellant had gone again to the mill premises and told P.W. 6, Basudeo Singh, the Munshi of the proprietor that P.W. 2 the lessee 'and P.W. 9, Bishna Prasad Yadav, the proprietor of the mill should meet him at his office at Patna within two days and get the matter settled, otherwise they would be put to a big loss.
Thereafter, P.W. 2 went to the office of the Anti Corruption Department at Patna and handed over a petition to P.W. 11 Girjanandan Sinha expressing his apprehension that the Executive Engineer or his Head Clerk, the appellant would demand some bribe from him.
It is alleged that on July 8, 1961 a trap was laid and under the direction of the Deputy Superintendent of Police, P.W. 7 a raiding was organised.
Ramprit, P.W. 2 along with other witnesses proceeded to the 'appellant 's office.
After some conversation the appellant demanded money and P.W. 2 Ramprit gave him eighteen ten rupee currency notes, the serial numbers of which had been previously noted down by the Magistrate, P.W. 20.
P.W. 16, Raghuraj was also present at the time.
After the 'appellant had received money, the Deputy Superintendent of Police, P.W. 7 and other members of the raiding party arrived inside.
The appellant thereafter dropped the bundle of currency notes on the floor below the table and made an attempt to get away but he was taken under arrest .and after his person was searched the currency notes were found lying on the floor near the seat.
The Deputy Superintendent of Police, P.W. 7 picked up the currency notes and upon comparison he found them to bear the same serial numbers which had been noted down in the statement, exhibit 2.
The Deputy Superintendent of Police then lodged the First Information Report, exhibit 11 .at the Gardanibagh police station.
On the basis of that report investigation was made by Deputy Superintendent of Police Sri Ramlakhan Prasad, P.W. 19 and subsequently by Inspector Shahidhar Putt, P.W. 17 under the orders of the Sub Divisional Magistrate.
After concluding the investigation the police submitted a chargesheet against the appellant.
The appellant denied the charges and pleaded that the entire case had been fabricated against him by Raghuraj, P.W. 16 The Special Judge, however, accepted the prosecution case as true and convicted the appellant under section 5 (2) read with section 5(1 )(d) of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for five years.
The appellant was ' also convicted and sentenced to undergo rigorous imprisonment for two years under section 161 of the Indian Penal Code.
The appellant took the matter in appeal to the Patna High Court which dismissed the appeal and affirmed the judgment of the Special Judge.
685 This appeal is brought by special leave from the judgment of the Patna High Court dated August 10, 1966 in Criminal Appeal No. 134 of 1964.
On behalf of the appellant Mr. K.R. Chaudhury did not challenge the findings of the High Court on questions of fact but the argument was put forward that upon the findings recorded by the High Court the appellant could not be convicted of the charges because he was not a "public servant" within the language of section 5(2) of the Prevention of Corruption Act or section 21 of the Indian Penal Code.
Section 5(1)(d) of the Prevention of Corruption Act states: "5.
(1)A public servant is said to commit the offence of criminal misconduct in the discharge of duty, (d) if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
" Section 5(2) is to the following effect: "(2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.
" Section 2 provides as follows: "For the purposes of this Act, 'public servant ' means a public servant as defined in section 21 of the Indian Penal Code.
" By section 2 of the Criminal Law (Amendment) Act, 1958 (Act 11 of 1958) el. 12 was inserted in section 21 of the Indian Penal Code and Explanation 4 was added thereto.
Section 2 was to the following effect: "2.
In section 21 of the Indian Penal Code, (a) after clause Eleventh, the following clause shall be inserted, namely : Twelfth.
Every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by a Central, |Sup.
4Sup C.I./69 11 686 Provincial or State Act or of a Government company as defined in section 617 of the .
(b) after Explanation 3, the following Explanation shall be inserted, namely : Explanation 4.
The expression corporation engaged in any trade or industry ' includes a banking, insurance or financial corporation, a river valley corporation and a corporation for supplying power, light or water to the public. ' The scope of cl.
(12) of section 21 of the Indian Penal Code was enlarged by section 2 of the Anti Corruption Laws (Amendment) Act, 1964 (Act 40 of 1964).
By section 2 of the amendment Act of 1964, cl.
(12) was substituted by 'a new clause in the following terms: "Twelfth.
Every person (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority a corporation established by or under a Central, Provincial or State Act or a Government Company as defined in section ' 617 of the .
" By the amending Act Explanation 4 of section 21, Indian Penal Code was also omitted.
In the present case, however, we are not concerned with the amendment effected by Act 40 of 1964 because the occurrence took place before the coming into force of this amending Act but after the enactment of the Criminal Law (Amendment) Act, 1958 (Act 11 of 1958) which came into force on February 27, 1958.
It is not disputed in this case that the appellant was not a Government servant but he was the servant of the State Electricity Board constituted under the provisions of the (Act 54 of 1948).
The State Electricity Board so constituted is not a department of the State Government.
It is a body corporate having the power to appoint the Secretary and such other officers and servants as may be required to enable the Board to carry out the functions of the Board.
Section 5( 1 ) of the Act states: "5.
(1 ) The State Government shall, as soon as may be after the issue of the notification under subsection (4) of section 1, constitute by notification in the Official Gazette a State Electricity Board under such name as shall be specified in the notification.
" 687 Section 12 provides for incorporation of the Board and reads as follows: "12.
The Board shall be a body corporate by the name notified under sub section ( 1 ) of section 5, having perpetual succession and a common seal with power to acquire and hold property both movable and immovable, and shall by the said name sue and be sued.
" Section 15 is to the following effect: "The Board may appoint a Secretary and such other officers and servants as may be required to enable the Board to carry out its functions under this Act: Provided that the appointment of the Secretary shall be subject to the ,approval of the State Government.
" Section 81 enacts: "81.
All members, officers and servants of the Board shall be deemed, when acting or purporting to act in pursuance of any of the provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code.
" On a plain reading of section 81, the officers and servants of the Board are deemed to be public servants only when acting or purporting to act in pursuance of any of the provisions of the .
So far as the receiving of a bribe is concerned, it cannot be brought within the scope of acting or purporting to act in pursuance of any of the provisions of the .
Therefore, the appellant while taking the bribe, cannot be deemed to be a public servant within the meaning of section 21, Indian Penal Code in view of the language of section 81 of the .
The question whether sanction of the Government was required under section 197 of the Criminal Procedure Code where any public servant is accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty came up for consideration by the Judicial Committee in cases under sections 161 and 409 of the Indian Penal Code against public servants.
In Gill vs The King(1), it was held by the Judicial Committee that prosecution for taking a bribe under section 161, Indian Penal Code did not require sanction under section 197 because taking of a bribe was not acting or purporting to act in the discharge of the official duty of a public servant.
Again in Hori Ram Singh vs The Crown(2), the Federal Court held that sanction was required for prosecution of a public servant for an (1) 75 I.A, 41.
(2) 688 offence under section 477 A as his official capacity was involved in the very act complained of as amounting to a crime; but that no sanction was required for a charge under section 409, because the official capacity is material only in connection with the entrustment and does not necessarily enter into the later 'act of misappropriation or conversion which is the act complained of This view of the Federal Court was approved by the Judicial Committee in Gill 's case(1).
The same view has been expressed by this Court in State of Maharashtra vs Jagatsing Charansingh(2) in which it was held that only when an officer or servant of a corporation was acting or purporting to act in pursuance of any of the provisions of the Transport Corporation Act, 1950 (Act 64 of 1950) or of any other law that he could be said to be a public servant within section 43 of that Act.
Therefore a person taking a bribe could not be said to be a public servant within the meaning of section 21, Indian Penal Code in view of the language of s.43 of the Transport Corporation Act.
Applying a similar line of reasoning to the present case, we are of opinion that the appellant cannot be deemed to be a public servant within the meaning of section 81 of the because he was not acting or purporting to act in pursuance of any of the provisions of that Act.
We pass on to consider the alternative question raised on behalf of the respondent, namely, whether the appellant was a public servant within the meaning of the twelfth clause in section 21, Indian Penal Code as it stood after the Criminal Law (Amendment) Act, 1958 (Act 11 of 1958).
Under this clause the words "public servant" include 'every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act or of a Government company as defined in section 617 of the '.
In view of Explanation 4 the expression 'corporation engaged in any trade or industry ' includes a banking, insurance 'or financial corporation, a river valley corporation and a corporation for supplying power, light Or water to the public.
It is not disputed in the present case that the appellant was in the service of the State Electricity Board which falls within the language of Explanation 4.
But it was contended for the appellant that its was performing only routine clerical duties and cannot be treated as an officer within the meaning of cl.
(12) to section 21, Indian Penal Code.
The question to be considered therefore is whether as Head Clerk employed under the State Electricity Board and attached to the office of the Executive Engineer, the appellant could be said to be an officer within the meaning of el.
(12) of section 21, Indian Penal Code.
In Reg.
vs Ramajirao Jivbaji(3) it was held by West, J. that the word 'officer ' meant some person employed to exercise to some extent and in certain circumstances a delegated function (1)751.A. 41 (2) [1964]4S.C.R. 299.
(3) 12 Born.
H.C.R. 1.
689 of Government.
He was either himself armed with some authority or representative character or his duties were immediately auxiliary to those of some one who was so armed.
In the course of his judgment, West J. observed as follows: "Seeking the help of English law, we find, in Bacon 's Abridgement at Vol.
6, page 2, the article headed `of the nature of an officer, and the several kinds of officers, ' commencing thus: 'It is said that the word 'officium ' principally implies 'a duty, and, in the next place, the charge of such duty; and that it is a rule where one man bath to do with another 's affairs against his will, and without his leave, that this is an office, 'and he who is in it is an officer. ' And the next paragraph goes on to say: 'There is a difference between 'an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as ,an agreement to make hay, herd a flock, & c.; which differ widely from that of steward of a manor, ' &c.
The first of these paragraphs implies that an officer is one to whom is delegated.
by the supreme authority, some portion of its regulating and coercitive powers, or who is appointed to repre sent the State in its relations to individual subjects.
This is the central idea; and applying it to the clause which we have to construe, we think that the word 'officer ' there means some person employed to exercise, to some extent, and in certain circumstances, a delegated function of Government.
He is either himself ,armed with some authority or representative character, or his duties are immediately auxiliary to those of some one who is so The decision in Reg.
vs Ramajirao Jivbaji(1) was considered by the Calcutta High Court in Nazamuddin vs Queen Empress(a).
The petitioner in that case was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozafferpur and he had been convicted under section 161 Indian Penal Code.
The contention urged on behalf of the petitioner was that he did not fall within the terms of the last portion of cl.
(9) of section 21, Indian Penal Code.
The contention was rejected and the learned Judges observed at page 346 of the Report 'as follows: "The Learned Judges in that case had to consider whether a lessee from Government was on the conditions of his lease a public servant, and, in doing so, they considered generally the meaning of the term 'officer '.
(1) 12 Born.
H.C.R. 1 (2) I.L.R.:28.Cal.
690 It was there held that an officer means 'some person employed to exercise, to some extent and in certain circumstances, a delegated function of Government.
He is either armed with some authority or representative character, or his duties are immediately auxiliary to those of some person who is so armed. ' The meaning which we are asked to put on those words seems to us to be too narrow as applied to the present case.
The peon who has been convicted as a public servant is in service and pay of the Government and he is attached to the office of the Superintendent of the Salt Department.
The exact nature of his duties is not stated, because this objection was not taken at the trial, but we must take it that, from the nature of his appointment, it was his duty to carry out the orders of his official superior, who undoubtedly is a public servant, and in that capacity to assist the Superintendent in the performance of the public duties of his office.
In that sense he would be an officer of Government, although he might not possibly exercise 'any delegated function of the Government '.
Still his duties would be 'immediately auxiliary to those of the Superintendent who is so armed. ' We think that an 'officer in the service or pay of Government ' within the terms of section 21, Penal Code is one who is appointed to some office for the performance of some public duty.
In this sense the peon would come within section 2 1, el. 9".
In Emperor vs Karam Chand Gobind Ram(1), it was held by the Lahore High Court that a Head Clerk in the Supply Depot at Sialkot whose duty was to put up bills to his officer, vas a public officer within the meaning of section 21, cl.
(9) of the Indian Penal Code.
It was pointed out that even if 'a Head Clerk cannot be said to be employed to exercise to some extent, and in certain circumstances, a delegated function of Government, his duties were "immediately 'auxiliary to the Head of the Office or other officer empowered with official responsibility of accepting and passing his work".
In G. A. Monterio vs The State of Ajmer(2), it was held by this Court that a person, who was a Class Iii servant and was employed as a metal examiner known as Chaser in the Railway Carriage Workshops and was working under the Works Manager who was an officer of the Government and the duties which he performed were immediately auxiliary to those of the Works Manager who was an officer in the service or pay of the Government and was therefore a public servant within the meaning of section 21 (9), Indian Penal Code and section 2, Prevention of Corruption Act.
(1) A.I.R. 1943 Lab.
(2) A.I.R. 1957 section 13.
691 The true test, therefore, in order to determine whether the appellant is ,an officer of the Corporation within the meaning of 21, cl.
(12), Indian Penal Code, is: (1) whether he is in the service or pay of the Corporation, and (2) whether he is himself other armed with some authority or representative character by the Corporation; or whether his duties are immediately auxiliary to those of some one who is .armed with such authority or representative character; In the present case, the High Court has found that the appellant was a person performing duties immediately auxiliary to those of the Executive Engineer who was the lead of the office.
The very designation "Head Clerk" denotes that there are other Clerks attached to the office who occupy subordinate positions in relation to the Head Clerk and the duties of he Head Clerk from the nature of things are bound to be immediately auxiliary to the Head of the office.
Upon the facts found in the present case we are of the opinion hat the appellant was an officer in the service or pay of the Corporation as defined in section 21, cl.
(12), Indian Penal Code and therefore a 'public servant ' within the meaning of that section 'and also of section 2 of the prevention of Corruption Act.
For the reasons expressed we affirm the judgment of the High Court dated August 10, 1966 in Criminal Appeal No. 134 of 1964 and dismiss this appeal.

summary/full:
The appellant was the Head Clerk to the Executive Electrical Enginear of the State Electricity Board He was convicted under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act on the allegation that on July 8, 1961 he had committed an offence in obtaining a bribe for the Executive Engineer by resorting to corrupt and illegal means or by otherwise abusing his position 'as a public servant.
An appeal against the conviction was dismissed by the High Court.
In appeal to this Court by special leave, the High Court 's findings on questions of fact were not challenged but it was contended that upon these findings the appellant could not be convicted of the charges because he was not a "public servant" within the language of section 5(2) of the Prevention of Corruption Act or section 21 at the Indian Penal Code.
It was further contended that the appellant was performing only routine clerical duties and could not be treated as an 'officer ' within the meaning of section 21(12)I.P '.C.
HELD: On the facts found the appellant was an officer in the service or pay of a Corporation as defined in section 21(12), I.P.C. and therefore a public servant ' within the meaning of that section and also of section 2 of the Prevention of Corruption Act.
[691 D] The true test in order to determine whether the appellant was 'an officer ' of the Corporation within the meaning of section 21(12), Indian Penal Code, would be: (1) whether he was in the service or pay of the Corporation, and (2) whether he was himself either armed with some authority or representative character by the Corporation; or whether his duties were immediately auxiliary to those of some one who was armed with such authority or representative character.
In the present case, the High Court found that the appellant was a person performing duties immediately auxiliary to those of the Executive Engineer who was the Head of the Office.
The very designation "Head Clerk" denotes that there are other clerks attached to the office who occupy subordinate positions in relation to the Head Clerk and the duties of the Head Clerk from the nature of things are bound to be immediately auxiliary to the Head of the Office.
[691 A] Reg.
vs Ramaiirao Jivbaji, ; Nazamuddin vs Queen Empress, I.L.R. ; Emperor vs Karam Chand Gobind Ram,A.I.R. ; and G. 4.
Monterio vs The State of Ajmer, A.I.R.1957 S.C. 13; referred to.
683 Held Also: The appellant cannot be deemed to be a public servant within the meaning of section 81 of the because he was not acting or purporting to act in pursuance of any of the provisions of that Act.
On a plain reading of section 81 of the the officers and servants of the State Electricity Board are deemed to be public servants only when acting or purporting to act in pursuance of any of the provisions of that Act.
So far as the receiving of a bribe is concerned, it cannot be brought within the scope of acting or purporting to act in pursuance of any of the provisions of the Act.
Therefore the appellant while taking the bribe, cannot be deemed to be a public servant within the meaning of section 21, I.P.C. in view of the language of section 81 of the .
[687 E] Gill vs The King.
75 I. A. 41; Hori Ram Singh vs The Crown, ; and State of Maharashtra vs Jagatsing Charansingh, ; ; referred to.