Public Servant and Public Duty under Section 2

Every offence in the Act except those against the giver requires a public servant, so Section 2(c) is the gateway to the statute. It abandons the institutional approach of the Penal Code and adopts a functional one: what matters is whether the person holds an office by virtue of which he is required to perform a public duty, and Section 2(b) defines that duty as one in the discharge of which the State, the public or the community at large has an interest. The Explanation removes the technical escapes by providing that designation is immaterial and that it is of no consequence whether the appointment was valid.

1. Public Duty

Section 2(b) provides that public duty means a duty in the discharge of which the State, the public or the community at large has an interest, and the Explanation to Section 2(c) adds that State includes a corporation established by or under a Central or State Act, an authority or body owned or controlled or aided by the Government or a government company, and includes the institutions covered by Article 12 of the Constitution. Three consequences follow. The duty need not be owed to the Government; it is enough that the public has an interest in its discharge. The source of the duty may be a statute, a contract with the State, or the constitution of the body concerned. And the character of the employer does not decide the question, which is why officers of private bodies discharging public functions have been held to be public servants.

2. The Categories in Section 2(c)

1. Government service or pay, and any person remunerated by the Government by fees or commission for the performance of a public duty.
2. Local authorities, and persons in their service or pay.
3. Corporations established by or under a Central, Provincial or State Act, government companies, and bodies owned, controlled or aided by the Government, together with persons in their service or pay.
4. Judges, including any person empowered by law to discharge adjudicatory functions, whether by himself or as a member of a body.
5. Officers of a court of justice, including a liquidator, receiver or commissioner, performing any duty in connection with the administration of justice.
6. Arbitrators and others to whom a matter is referred for decision or report by a court or other competent public authority.
7. Persons holding office by virtue of which they are empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election.
8. Any person who holds an office by virtue of which he is authorised or required to perform any public duty, which is the residuary and most important clause.
9. Office-bearers and employees of registered cooperative societies engaged in agriculture, industry, trade or banking, receiving or having received financial aid from the Government or from a government corporation or company.
10. Chairmen, members and employees of service commissions and boards, and members of selection committees appointed by them.
11. Vice-Chancellors, members of governing bodies, teachers and employees of universities, and persons whose services have been availed of in connection with the holding or conducting of examinations.
12. Office-bearers and employees of educational, scientific, social, cultural or other institutions receiving or having received financial assistance from the Government or from a local or other public authority.

3. The Categories Worked Out in the Decisions

3.1 Government companies and public sector undertakings

Employees of a government company and of a corporation established by or under a statute are expressly covered, and the position has never been seriously contested. The same applies to bodies owned, controlled or aided by the Government, so an officer of an autonomous body funded by the State is within the Act in respect of the duties he performs for it.

3.2 Public sector banks

The nationalised banks were constituted under the legislation acquiring and transferring the undertakings of the banking companies, and are therefore corporations established by or under a Central Act. Their officers and employees are public servants, and this has been the position since the Act was passed. The State Bank of India and its associates stand in the same position under their own constituting statutes.

3.3 Private banks

3.4 Universities and deemed universities

3.5 Judges

Judges are expressly included, and the position was settled for the higher judiciary in K. Veeraswami v. Union of India, (1991) 3 SCC 655, where the Court held that a judge of a High Court or of the Supreme Court is a public servant within the corresponding provision of the Act of 1947 and is amenable to prosecution for offences under it. The Court added a protective requirement not found in the statute: no criminal case shall be registered against such a judge without the prior consultation of the Chief Justice of India, and where the Chief Justice himself is concerned, the President is to consult the other judges. That safeguard continues to govern.

3.6 Other recurring categories

• Elected local representatives, such as members of a municipal council or a panchayat, hold an office by virtue of which they perform a public duty and are public servants.
• Members of Parliament and of State legislatures, on the authority of P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626, and without any immunity for bribery after Sita Soren v. Union of India, decided on 4 March 2024. The topic is dealt with separately.
• Office-bearers of aided cooperative societies, expressly included where the society has received financial aid.
• Arbitrators and court officers, expressly included, together with persons to whom a matter is referred by a public authority.
• Persons whose services are availed for examinations, which covers invigilators, examiners and evaluators engaged by a university or public authority.

4. Deemed Public Servants

The expression is used loosely to describe two different things and they should be kept apart. The first is a person brought within the Act by a deeming provision in another statute, of which Section 46A of the Banking Regulation Act, 1949 is the example applied in Ramesh Gelli. The second is a person who falls within Section 2(c) itself although he is not in government service, by reason of the residuary clause or of the categories relating to aided institutions and universities. In the first case the source of the status is the other statute; in the second it is this Act. The distinction matters because a deeming provision must be construed for what it says, including whether it applies to the offences under this Act or only to those under the Penal Code.

5. Related Topics and Provisions