Padam Sen and Another v. the State of Uttar Pradesh
·
r960
Padam Sen
and Anolhe1'
v.
The Stale of
Uttar Pradesh
RAGHUBAR DAYAL J.-This is an appeal by Padam Raghubar
Sen and Shekbar Chand against the order of the Alla- Dayal J.
ha.bad High Court dismissing their appeal against the
order of the Special Judge, Meerut, convicting them
of an offence under s. 165-A of the Indian Penal Code.
The High Court granted leave to apptJ:· against its
m~~ , .
One Genda Mal, father of Shekhar Chand, appellant
No. 2, sued Mithan Lal and others in the Court of the
Additional Munsif, Ghaziabad, for money on the
basis of promissory notes executed by the defendants
in his favour. The defendants apprehending that the
plaintiff would fabricate his books of account with
respect to payments made by them, applied for the
seizure of the account books of the pla.intiff. The
Additional Munsif, by his order dated March 27, 1954,
appointed Sri Raghubir Pershad, Vakil, Commissioner
to seize those books of account. The Commissioner
accordingly seized those books and brought them to
Ghaziabad. ·
The appellants were convicted by the Special Judge
under s. 165-A of the Indian Penal Code for having
offered bribe to the Commissioner for being allowed
an opportunity to tamper with those books of
account. Their conviction was upheld by the High
Court.
The two Courts below have found that the appel
lants went to the Commissioner's Office on March 30,
1954, and offered him Rs. 900 as bribe. The appel
lants do not challenge these findings of fact recorded
by the Courts below. Their only contention is that
i13
Padam Sen
tind .Another
v.
The Slate of
Ultr:o Pradesh
Raghubar
Dayal j.
886 SUPREME COURT REPORTS (1961 J
Sri Ra.ghubir Persha.d, the Commissioner, was not a
public servant, and therefore oven on the basis of the
findings of fact arrived at by tbe Courts below, they
did not commit any offence undor s. 165-A of the
Indian Pena.I Code.
It has been contended for tho appellants that tho
appointment of Sri Raghubir Persha.d as Commissio
ner was null and void as the Additional M unsif had
no power to appoint a Commissioner for the purpose
of seizing the account books of tho plaintiff on an
application by the defendants, the power of a Civil
Court to issue a commission being limited by the pro
visions of s. 75 and Order XXVI of the Code of Civil
Procedure (hereinafter ca.lied the Codo), and the Court
having no inherent power to appoint a Commissioner
for any purpose not mentioned in s. 75 and Order
XXVI of thb:~~de. On bohalf of the State it is urged
that the Court can appoint a Commissioner in the
exercise of its inherent powers saved by s. 151 of the
Code for purposos which do not come within the pro
visions of s. 75 and Order XXVI of the Code.
It is further submitted for the Stato that even if
the Additional :.\lunsif had no power to appoint the
Commissioner for soizing the books of account, Sri
Ra.ghubir Pershad would be deemed to be a public
servant in view of Explanation 2 to s. 21 of the Indian
Pena.I Code because ho was in actual possession of the
situation of a public servant for he acted as Commffi
sioner and was recognized as such by the appellants
and others connected with the civil suit.
Section 75 of the Code empowers the Court t-0 issue
a commission, subject to conditions and limitations
which may be prescribed, for four purposes, viz., for
examining any person, for making a local investiga
tion, for examining or adjusting accounts and for
making a partition. Order XXVI lays down rules
relating to the issue of commissions and allied mat
tors. Mr. Chatterjee, learned coun\!01 for the appel
lants, has submitted that the powers of a Court must
be found within the four corners of the Code and that
when the Code has expressly dealt with the subject
matter of commissions in a. 75 the Court cannot
l S.C.R. SUPREME COURT REPORTS 887
invoke its inherent powers under s. 151 and theMby
add to its powers. On the other hand, it is submitted
for the State, that the Code is not exhaustive and the
Court, in the exercise of its inherent powers, can
. adopt any procedure not prohibited by the Code
expressly or by necessary implication if the Court
considers it necessary, for the ends of justice or to
pre;vent abuse of the process of the Court.
Section 151 of the Code reads: ,
"Nothing in this Code shall be deemed to limit
or otherwise affect the inherent powers of the Court to
make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the
Court".
The inherent powers of the Court are in addition to
the powers specifically conferred on the Court by the
Code. They are complementary to those powers and
therefore it must be held that the Court is free to exer
cise them for the puposes mentioned in s. 151 of the·
Code when the exercise of those powers is not in any
way in conflict with what has been expressly provid
ed in the Code or against the intentions of the Legis
lature. It is also well recognized that the inherent
power is not to be exercised in a manner which will
be contrary to or different from the procedure express-
ly provided in the Code. ·
The question for determination is whether the im
pugned order of the Additional Munsif appointing
Sri Raghubir Pershad Commissioner for seizing the
plaintiff's books of account can be said to be an
order which is passed by the Court in the exercise of
its inherent powers. The inherent powers saved by
s. 151 of the' Code are with respect to the procedure to
be followed by the Court in deciding the cause before
it. These powers are not powers over the substantive
rights which any litigant possesses. Specific powers
have to be conferred on the Courts for passing such
orders which would affect such rights of a party.
Such powers cannot come within the scope of inherent
powers of the Court in the matters of procedure,
which powers have their source in the Court possess
ing all the essential powers to regulate its practice
Padam Sen
and Anothe1
v .
The State· of
Ullar Pradesh
Raghubar
Da.val ].
rrJfio
Padam Sen
11"d An!'ifhtr
v.
Tlit St1,1r nf
(ftlar ]'radtlh
RaKhuhar
Dayal .f.
888 SUPRE:\IE COURT REPORTS [1961]
and procedure. A party ha.s full rights over its books
of account. The Court ha.a no inherent power forcibly
to seize its property. If it dc>es so, it invades the pri
vate rights of the party. Specific procedure is la.id
down in tbe Code for getting the relevant documents
or books in Court for the purpose of using them a.a
evidence. A party is free to produce such documents
or books in support of its case a.a be relevant. A party
can ask the help of the Court to have produced in
Court by the other party such documents as it. would
like to be used in evidence and are admitted by that
party to be in its possession. If a. party does not
produce the documents it is lawfully called upon to
produce, the Court has the power to penalize it, in
1~ccordance with the provisions of the Code. The
Court ha.a tbe further power to draw any presumption
against such a. party who does not produce the rele
vant documi>nt in its possC1ssion, especially after it has
been summoned from it. Even in such cases where
the Court summons a. document from a. party, the
Court has not been g'i ven any I?ower to get hold of the
document forcibly from the possession of the default
ing party.
The defendants had no rights to these account
books. They could not lay any claim to them. They
a.pplird for the seizure of these books because they
apprehended that the plaintiff might make such
entries in those account books which could go against
the case they were setting up in Court. The defen
dants' request really a.mounted to the Court's collect
ing documentary evidence which the defendants con
sidered to be in their favour a.t that point of time. It
is no business of tho Court to collect evidence for A.
party or oven to protect the rive.I party from tho evil
consequences of making forged entries in those ac
count books. If the plaintiff does forge entries and
uses forged entries a.s evidence in the case, the defen
dants would h11.ve ample opportunity to dispute those
entries and to pro,·e them forgeries.
We are therefore of opinion that the Additional
Munsif had no inherent power to pass tho order
appointing a. Commissioner t-0 seize the plaintiff's
-
I S.C.R. SUPREME COURT REPORTS 889
account books. The order appointing Sri Raghubir.
Pershac;l as Commissioner for this purpose was there
fore an order passed without jurisdiction and was
therefore a null and void order.
Learned counsel for the State, Mr. Mathur, has sub
mitted in the alternative that the impugned proce:
<lure adopted by the Additional Munsif comes within
certain provisions of the Code and has referred to
r. 5 of Order XXXVIII and rr. l(b) and 7 of Order
XXXIX and r. I of Order XL of the Code. We do
not agree with this contention. The impugned order
was not passed under any of these provisions. It was
clearly an order which the Additional Munsif purport
ed to pass in the exercise of the inherent powns of the
Court. The order was : _
"It is strange that an application of this kind
has been made at this late stage, after over 2 years.
However, in the interests of justice, issue commission
to Sri Raghubir Pershad. He must go and recover
Bahi Khatas for the year 1951 from the plaintiff and
produce the same in Court. Fees Rs. 20, plus T. A.
Report within six days. Costs of the commission will
not be taxed."
Fnrther, the provisions of r. 5 ()f Order XXXVIII
are to prevent a decree that may be passed being
rendered infructuous and r. l(b) of Order XXXIX is
applicable where the defendant threatens to dispose
of his property to defraud creditors. None of these
provisions has any application to the facts of the pre
sent case. Rule. 7 of Order XXXIX empowers the
Court, on the application -~ any party to a suit, to
make an order for the detention, preservation or ins
pection of any property which 1 is the subject-matter
of such suit or as to which any question ma.y al'ise
therein. The account books of the plaintiffs were not
'property' which were the subject-matter of the suit
nor such that about them a question could arise in
the suit. The account books could, at best, have been
piece of evidence, if the plaintiff or the defendant had
cared to rely on them. We therefore hold that the
Additional Munsif had no power under the Code to
appoint the Commissioner for seizing the plaintiff's
books of account.
Jladant Sen
and Another
v.
The State oj
U tfa;' l 1 radcsh
Raghttbar
Dayal ].
l'ada111 S111
rJ11el AHrithcr
v.
The Sta!e of
Uttar J>rade~h
Ra1;J11,l;ar
l!a)al ].
8(10 SUPREME COURT REPORTS [ l 96 l]
Lastly it was urged for the State that oven if the
appointment of Sri Raghubir Pershad as Commission
er was null and void as the Additional Munsif had no
jurisdiction to appoint a Commissioner for seizing tho
account books of the plaintiff, Sri Raghubir Pershad
shoukl he treated to be a 'public servant' in view of
Explanation 2 to s. 21 of the Indian Penal Code. It
has not been disputed for the appellant that if the
appointment of Sri Raghubir Pershad as Commission
er had been valid, he would have been a public ser
vant in view of the Fourth Clause to s. 21 of the Indian
P<mal Code. Explanation 2 to s. 21 reads:
"Wherever the words 'public servant' occur,
they shall bo understood of every person who is in
aeotual possession of the situation of a public servant,
whate,·er legal defect there may be in his right to
hold that situation."
The contention for the State is that though there was
a legal defcctin Sri llaghubir Pershad's appointment
aE; Commissioner on account of the Additional Munsif
having no power to appoint a Commissioner for the
purpose of seizing the plaintiff's books of account,
that will not affect his being a public servant as he
was in actual possession of thu situation of a public
servant. We do not agree with this contention, and
arn of opinion that the Explanation applies only when
there be a post in existence. The Explanation does
not apply when there is no pre-existing post or when
the person appointing has no authority to appoint.
The word 'situation' according to Webster's :New
International Dictionary of tho English Language,
means: position or place 0¥ employment, pie.co, office;
aH a situation in a store. The apposite meaning for
the purposes of this Explanation would be' otlico '.
•Office' again, according to the same Dictionary,
means a special duty, trust, charge or position, con
ferred by an exercise of governmental authority and
for a public purposo; a position of t.rust or authority
cnnforred by an a.ct of governmental power; a right
to exercise a public function or employment a.nd
receive the emoluments (if any) thorcto belonging; as,
a.n executive or judicial office ......... In a wider sense,
any position or place in the employment of the
-
1 S.C.R. SUPREME COURT REPORTS 891
government, especially one of trust or authority. Th0
Dictionary further notes the differences in the con
notations of the various words office, post, appoint
ment, situation and place and says : Office commonly
suggests a position of (especially public) trust or
authority; and situation emphasizes the idea of emp
loyment, especially in a subordinate position; as, to
seek a situation as governess, as private secretary.
It is therefore clear that it is necessary for the
application of this Explanation ·that the person con
cerned should be in actual possession of the pre-exist
ing office of a public servant: If there be no office or
post, there could be no question of any person's being
in actual possession thereof, and of the person con
cerned coming within the terms of this Explanation.
There was no post or office of a Commissioner in exist
ence. All that happened here was that Sri Raghubir
Pershad was authorized to seize and keep certain docu
ments in his possession. In the present case there was
neither any existing office of Commissioner, nor the
Additional Munsif had power to appoint Sri Raghubir
Pershad as Commissioner for the purpose of seizing
the plaintiff's account books and .therefore this Expla
nation does not apply to the appointment of Sri
Raghubir Pershad as Commissioner. It follows, there
fore, that Sri Raghubir Pershad cannot be held to be
a public servant.
We therefore accept the contention for the appel
lants and hold that Sri Raghubir Pershad was not a
public servant and that therefore the appellants did not
commit any offence under s. 165-A of the Indian Penal
Code by their offering him money in order to have an
opportunity to tamper with the books of account
which were in his custody. We therefore allow the
appeal, set aside the order of the Court below and
acquit the appellants of the offence under s. 165-A and
direct that the fine, if paid, be refunded. The appel
lants are on bail and therefore the bail bonds will be
cancelled.
Appeal allowed.
r960
Padam Sen
and Another
v.
The State of
Uttar Pradesh
Raghubar
Dayal ].