LexMAHARUDRAPPA DANAPPA KESARAPPANAVAR versus THE STATE OF MYSORE
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• • 1. • "' . , 1 S.C.R. SUPREME COURT REPORTS 129 MAHARUDRAPPA DANAPPA KESARAPP AN AV AR v. THE STATE OF MYSORE (K. SUBBA RAO and RAGHUBAR DAYAL, JJ.) Municipality-Chairman of Managing Committee empowered to order payment of bills'] or fixed recurring charges-If public servant -Prevention of Corrnption Act, I947· (Act II of 1947), ss. z, 5(2)-Indian Penal Code, (Act 45 of z86o), s. ZI, cl. zo,.-Bombay District Municipal Act, I90I (Bom. III of z9or), r. 68. The question arising for determination was whether the Chairman of the Managing Committee of a Municipality who could order payment of bills for fixed recurring charges was a "public servant" within the meaning of s. 21 of the Indian Penal Code. Held, that the power to make payment of fixed recurring charges, such as pay bills, imposed a "duty" on the Chairman to do so when necessary as the power\vas vested in the Chair- man for the benefit of the persons entitled to receive those recurring charges. Julius v. Lord Bishop of Oxford, (1880) 5 App. Cas. 214, referred to. Section 21, cl. IO of the Indian Penal Code merely requires that the person should have the "duty" to expend property for certain purposes and is not restricted to such cases only where there is no limitation on the exercise of that power of expending property. The Chairman had the duty to order payment and spend money of the Municipality in certain circumstances and as such was a "public servant". CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 154 of 1959. Appeal by special leave from the judgment and order dated March 27, 1959, of the Mysore High Court in Criminal Appeal No. 168 of 1956. S. N. Andley, J. B. Dadachanji, Rameshwar Nath and Ravinder Narain, for the appellant. R. Gopalakrishnan and T. M. Sen, for the respon- dent. _. 1961. February 16. The Judgment of the Court was delivered by 17 x96.r February z6. M aharudrappa Danappa Kesarappanavar v. The State of ll1 ysore Raghubar Dayal ]. 130 SUPREME COURT REPORTS [1962) RAGHUBAR DAYAL, J.-This is an appeal by special leave against the judgment of the High Court of Mysore at Bangalore confirming the appellant's con- viction for an offence under s. 5(2) of the Prevention of Corruption Act, 194 7 (Act II of 194 7), by the Special Judge, Dharwar. The appellant is alleged to have committed the offence while he was a Municipal Councillor and Chairman of the Managing Committee of the Naval- gund Municipality. The only question for determina- tion in this appeal is whether the appellant was a 'public servant' contemplated by s. 2 of the Preven- tion of Corruption Act. The contention for the appel- lant is that he was not such a 'public servant'. Section 2 of the Prevention of Corruption Act reads: "For the purposes of this Act, 'public servant' means a public servant as defined in section 21 of the Indian Penal Code''. Section 21 of the Indian Penal Code defines the per- sons coming within the expression 'public servant' and its Tenth Clause reads: "Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district". Rule 68 framed under the Bombay District Municipal Act, 1901 (Bombay Act III of 1901) and admittedly applicable to the appellant reads: "The Chairman of an Executive Committee shall sign payment orders on behalf of the Committee after the Committee have passed the bills and may also order payment of bills for fixed recurring charges such as pay bills in anticipation of the Committee passing them". The High Court held that the appellant, as Chairman of the Managing Committee, could expend the money of the Municipality as he could order payment of bills for fixed recurring charges and that therefore he • I 1 S.C.R. SUPREME COURT REPORTS 131 came within the purview of the expression 'public servant' defined in the Tenth Clause of s. 21 of the Indian Penal Code. The only criticism which the learned counsel for the appellant has urged against this view is that the High Court did not keep the' distinction between the words 'duty' and 'power' in mind and that rule 68 empowers the Chairman to order payment and does not impose a duty on him to order payme
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