Amity Law School, Noida

Session 2020-2025

White Collar Crime

Offences Relating to Public Servants in India with Landmark Cases

Submitted by:- Submitted to:-

Name: Nawab Sahab Ms. Avantika Madhesiya
Enrollment: A3211120194
Programme : B.A.,LL.B (Hons)
Course Code: LAW532
Semester: 09
Sec : C
Who is A Public Servant?
Public servants are defined in section 21 of the IPC as:-
Any Commissioned Officer in the Armed Forces.
Any judge who, individually or through the body of members, is empowered to discharge
adjudicatory functions.
The officers of the court are responsible for investigating and reporting on matters of law, for
authenticating information or for providing relevant details, and for any such duty that the court has
on its officials.
All jury members, members of the panchayat, evaluators who assist the court of justice.
Any arbitrator to whom the matter is referred by a court of law for judgment.
Those who are empowered to put people in confinement.
Officers who are responsible for the prevention of offences, for providing information on offences, for
bringing criminals to justice.
Officers in charge of the government are holding of property as part of their duty to conduct surveys,
assessments, or investigations and to report on the government’s pecuniary interests.
Officer with the obligation to hold, take or dispense property for the public good for assessment or
levy taxes.
The officer is responsible for amending the electoral rolls and conducting elections.
Any person with a government task in exchange for payment, in the capacity of a public duty, or
appointed to the service of authorities set up under government acts.[1]
In this way, the protection of public servants in the interests of the country is necessary. There are
certain offences against public servants punishable by the Public Servants Protection Code in the IPC.
The Code of Procedure provides a section specifically addressing, in its official capacity, the offences
committed by these public servants. On the other hand, the incidents occur where the public servants
commit the offence against the citizens and the country that are also punishable under IPC. Public
authorities and the judiciary are the guardians of justice who, while following the procedures
established by law, are presumed to be non- biased. In this way, both sides have been ensured that
they are pure and protected so that the country can progress in an exemplary manner.[2]

Offences Relating to Public Servants

Chapter-IX of the Indian Penal Code deals with offences committed by or in connexion with public
servants. There are six sections in this chapter, starting from section 166 to section 171.

This chapter deals with two types of offences, one of which may be committed by public servants
alone, the other of which includes offences which, although not committed by public servants,
concern public servants. Section 161 to 165A is omitted from the Code by the Prevention of
Corruption Act, 1988, and is incorporated with an enhanced penalty into the Act of 1988.
Public servant disobeying law, with intent to cause injury to any person
The offense of “Public servant disobeying law, with intent to cause injury to any person” is defined in
Section 166 of the Indian Penal Code. According to the provision, if a public servant knowingly
disobeys any direction of the law with the intent to cause injury to any person, he or she may be
punished with imprisonment for a term which may extend up to one year, or with a fine, or with both.

For this offense to be established, the following elements must be present:

The accused must be a public servant
The accused must have disobeyed a direction of law
The disobedience must have been intentional
The intent must have been to cause injury to any person
It’s important to note that the offence is committed when a public servant deliberately disobeys a
direction of the law with the intention to cause harm to someone. The provision is meant to ensure
that public servants perform their duties in accordance with the law and do not abuse their power or
position to cause harm to others.
If a person is convicted of the offence of “Public servant disobeying the law, with intent to cause
injury to any person,” they may be punished with imprisonment for up to one year, or with a fine, or
with both. The punishment will depend on the facts and circumstances of each case and the discretion
of the court.
The essence of the offence under section 166 is intentional disobedience by a public servant of an
express direction of law with the intention of causing injury to any person. In order to cause injury to
any individual, this section contemplates breaching some statutory duty. This section cannot fall under
a mere breach of departmental rules or regulations that do not have the force of law.

Public servant disobeying directions under

The offence of “Public servant disobeying direction under law” is defined in Section 166A of the
Indian Penal Code. According to the provision, if a public servant disobeys any direction of the law
with the intention of causing injury to any person, or with the knowledge that injury will likely result
from his or her disobedience, he or she may be punished with imprisonment for a term which may
extend up to two years, or with a fine, or with both.

For this offence to be established, the following elements must be present:

The accused must be a public servant
The accused must have disobeyed a direction of the law
The disobedience must have been intentional
The intent must have been to cause injury to any person, or the accused must have had knowledge that
injury would likely result from the disobedience
It’s important to note that the offence is committed when a public servant deliberately disobeys a
direction of the law with the intention to cause harm to someone, or with knowledge that harm will
likely result from their disobedience.

Punishment for non-treatment of victim

As per the Section, “Whoever, being in charge of a hospital, public or private, whether run by the
Central Government, the State Government, local bodies or any other person, contravenes the
provisions of section 357C of the Code of Criminal Procedure, 1973 (2 of 1974), shall be punished
with imprisonment for a term which may extend to one year or with fine or with both.]”

Public servant framing an incorrect document with intent to cause injury.

Section 167 covers the incorrect framing or translation of a frame. The preparation or translation of a
document or electronic record is within the scope of his official duty, provided that he was aware of it
and that it was done with the intention or knowledge that it was likely to cause injury to any person.

Public servants unlawfully engaging in trade

Section 168 punishes those public servants who are legally obliged not to engage in commercial
activities. They would not be able to devote their undivided attention to their formal work if public
servants were allowed to engage in trade. Moreover, they may take unfair advantage of their official
position over other traders in order to advance their trade. Trade covers every kind of trade, business,
profession, occupation, calling, or industry in its broader sense. There is also a trade in the job of
preparing plans and estimates. The extension of section 168 is section 169. It prohibits a public
servant from buying or bidding for property that he is legally obligated not to buy.

Public servants unlawfully buying or bidding for the property

The offence of “Public servant unlawfully buying or bidding for property” is defined in Section 169
of the Indian Penal Code. According to the provision, if a public servant is found to be unlawfully
buying or bidding for any property that has been put up for sale in execution of a decree of a court, or
in satisfaction of a mortgage, or otherwise, he or she may be punished with imprisonment for a term
which may extend up to two years, or with a fine, or with both.

For this offence to be established, the following elements must be present:

The accused must be a public servant
The accused must have unlawfully bought or bid for the property
The property must have been put up for sale in execution of a court decree, or in satisfaction of a
mortgage, or otherwise
Personating a public servant
Section 170 consists of two ingredients:-
1) A person who
(a) Claims to hold a specific office as a public servant, knows that he does not hold that
office, or
(b) Falsely identifies any other person who holds that office.
2) A person of such presumed nature shall perform or attempt to perform an act under the colour
of such an office.

Pretending to hold an office:- Mere personality to hold office is not an offence, but it is an offence to
do or try to do some act under the colour of the office that he pretends to hold. It is important that the
accused knew that he did not hold the office he pretended to hold.
Any Act:- In his assumed character ‘under colour’ of his office, the offender must be shown to have
attempted to do or to have done some act.mit is an immaterial consideration to ask whether or not the
offender made any more out of his activities while posing as a public servant.
Under section 171, it is punishable merely to wear a garb or carry any token similar to any garb or
token used by that class of public servants with the intention of posing as such a public servant. The
accused must wear it if it is garb and not just carry it, and if it is a token, he must display it and not
just keep it in his pocket. There is no need for some act to be done or attempted to be done in the
supposed garb.[3]

Malicious Prosecution:-
In the circumstances of non-compliance of these officials according to the demands of individuals, the
offence of malicious prosecution is a common occurrence against public servants and judges. The
refusal by these officials to bias individuals on accounts of social, economic, or political status calls
for false charges by individuals as a means of threatening them with participation in practices that are
contrary to the majority population.
Malicious prosecution is the deliberate initiation of false charges against someone with the intention
of dishonoring the individual and subjecting them to court proceedings for a crime they have never
committed. The procedure established by law with the intent of malice is improper use of judicial
machinery for personal vengeance and abuse.
While deciding on numerous matters relating to the Prevention of Corruption Act, the Supreme Court
held that a public servant could not claim the protection of punishment against prosecution. It was
noted that protection in corruption cases has turned into a matter of delayed prosecution. In this case,
the fine distinction between the maliciously framed honest public servant and a corrupt official
sanctioned protection under the section was made.
It is up to the facts of the case and the evidence available to arrive at a conclusion as to the extent of
the protection granted to these officials during the discharge of official duties. The question of
punishment may be raised at any time during the proceedings, and it is necessary to determine the
applicability of the sanctions from stage to stage.[4]

Wearing garb or carrying tokens used by public servants with fraudulent intent
The offence of “Wearing garb or carrying token used by public servant with fraudulent intent” is
defined in Section 170 of the Indian Penal Code (IPC). According to the provision, if a person is
found to be wearing any garb or carrying any token used by a public servant with the intention of
causing it to be believed that he or she is a public servant, he or she may be punished with
imprisonment for a term which may extend up to three years, or with a fine, or with both.

For this offence to be established, the following elements must be present:

The accused must have been wearing a garb or carrying a token used by a public servant
The accused must have intended to cause it to be believed that he or she is a public servant

Landmark Cases dealing with Public Servants

In K. Satwant Singh v. State of Punjab (1959),[5] The Apex Court held that the scope of section 197
of the 1973 Code of Criminal Procedure should be observed in the presence of certain offences which,
by their very nature, cannot be identified as having been committed by public servants in the course of
the performance of their official duties.

Under section 161 of the Indian Penal Code, 1860, an offence of acceptance of bribe is one where it
cannot be said with certainty that the offence was committed, similar to the offence of cheating or
abetment. There should be a link between the offence committed and the discharge of duties, with
cheating or encouragement to cheating not linked to any public servant’s official duty. Only within the
scope of section 197 is the offence committed during the performance of duties.

InMatajog Dobey v. H.C. Bhari (1955),[6] it was a case of the appellant claiming that the official of
the Income Tax Department forcibly broke into the residence and searched all the drawers in the
house while conducting an investigation or research. The appellant claimed that the officials were tied
up and beaten, and the magistrate issued a prima facie case proceeding.
The court noted that public servants have to be protected from harassment in relation to prosecution
for an offence while discharging official duties, and ordinary citizens do not need such protection. It
was also decided that there should be a reasonable link between the discharge of duty and the act for
which he is charged with no pretentious claims.

In Baijnath And Ors v. State of MP (2016),[7] The Supreme Court noted that, under section 197(1) of
the Code of Criminal Procedure, 1973, all offences committed by public servants do not require
penalties for prosecution. Any act performed while engaged in official duties and that could be
claimed by virtue of its office would regard punishment as a necessary component.
The quality of the act, provided that the protection falls within the scope of the official duties, is
extended to the officials referred to in the section. Where the nature of the offence is unrelated or
unrelated to the public servant’s official duties, the protection provided for in the section shall not
arise.
In R.S. Nayak v. A.R. Antulay (1984),[8] in the case of a penalty clause pursuant to section 197 of the
Code of Criminal Procedure, 1973, the Apex Court held that only the competent authority had the
right to remove public servants in cases of misuse or misrepresentation of office, since they had the
necessary idea as to in what sense and to what extent public servants abuse the office. Before any
uniformed action, the authority responsible for issuing punishment must take the evidence and facts of
the case.

To disregard these officials, sanction protects public servants from mistreatment at the hands of
malicious and malign prosecution and therefore requires strict compliance with the provisions of the
authorities concerned for the issuance of penalties. It is advisable to grant competent authorities the
power to implement the sanction clause. For clarity on the honesty of the prosecution claims, the
authorities have the ability to analyze evidence and facts related to the case to be placed before a
judge.

In R.R.Chari v. State of UP(1951),[9] the Supreme Court held that the first part of the section deals
with non-removable public officials serving under an offence while discharging official duties, and
that no court is aware of the criminal cases committed by such public servants. It was noted that
before the actual prosecution begins, the authorities must be satisfied with the prima facie case for the
prosecution. Safeguarding public servants from false prosecution is the primary function of section
197(1).

In Dr. Subramanian Swamy v.Dr. Manmohan Singh and Anr. (2012)[10] It was decided by the
Supreme Court that the threats of malicious prosecution should be avoided in ways accepted by law in
order for public servants to exercise their official duty in a fair manner without prejudice. However,
the possibility of corruption in public offices, which forced the court to have public interest
provisions, was not excluded.

Article 14 of the Constitution of India, which provides for the right to equality of all citizens, is
infringed by special treatment of those public servants, but constitutes an exception to that provision
as a means of discriminatory protection. The procedural provisions must be etched out in such a way
that honesty and justice are advanced along with good governance against aggravated corruption.

In Dhannjay Ram Sharma v. M.S. Uppadaya and Ors.,[11] “The Honorable Supreme Court observed
that, before the protection of section 197 of the Code of Criminal Procedure, 1973 can be claimed by
an accused person who, in the first instance, has to satisfy the Court that he is a public servant” not
removable from his office except by or with the sanction of a government of the State or of the
Central government “and, in the second instance, that the acts complained of are” not removable from
his office except through or with the sanction of a government of the State or of the Central
government.

Conclusion
Public servants in India ensure that all aspects of the government function smoothly. They are
accountable for different procedures that assist in the investigation and court proceedings. Public
authorities and the judiciary are guardians of justice who are presumed to be non-biased while
following the procedures laid down by law. In their lawful authority, contempt of acts leads to
disorder and chaos in the process. For the smooth functioning of different parts of the judicial process,
contempt of the lawful authority of public servants must be avoided.

References
[1] Blog.ipleaders.in/prosecution-offences-committed-judges-public-servants/ (accessed on 29 th
September,2020)
[2] Shodhganga.inflibnet.ac.in/bitstream/(accessed on 29th September,2020)
[3] Shodhganga.inflibnet.ac.in/bitstream/10603/190980/10/10 (accessed on 29th September,2020)
[4] Blog.ipleaders.in/prosecution-offences-committed-judges-public-servants/(accessed on 29 th
September,2020)
[5] 1960 AIR 266, 1960 SCR (2) 89
[6] 1956 AIR 44, 1955 SCR (2) 925
[7] [2016] INSC 797
[8] 1984 AIR 684, 1984 SCR (2) 495
[9] 1951 AIR 207, 1951 SCR 312
[10] (2012) 3 SCC 64
[11] AIR 1960 SC 745