Section 21 of the Indian Penal Code,1860 it does not define the term ‘public servant’, it has explained the various categories of persons who constitute the great mass of the community which are included in the category of ‘public servant’. A public servant first be a servant and second a public servant. It is not important that the servant should receive any salary or remuneration for his work. A public servant performs certain public functions. All government servants are not public servants. An honorary servant discharging a public duty is as much a servant as a stipendiary (receiving stipend) on the payroll of the government. Likewise, a minister in a Central or a State Government, who does not take pay from the Government and works as an honorary one, is a public servant since he is entrusted to discharge public duty by virtue of holding the particular office. And all those who discharge a delegated function of administration of the state are public servants. The test to determine whether a person is a public servant is (1) whether he is in the service or pay of the government, and (2) whether he is entrusted with the performance of any public duty.
There are some offences which by their nature are common to both men of public as well as public servants. They can be committed by public servants as well as by men of public and they are, therefore, left to the general provisions of the code. But there are some offences which can only be committed by public servants and not by the public generally. The public servants are dealt with more severely than other persons for they enjoy more privileges peculiar to themselves. An accused person must be a public servant on the date of commission of the offence. Retirement, resignation, dismissal, or removal of a public servant cannot wipe out the offence committed while in service.
The word “Commission” under this section which does not only mean a person designated as “Commissioner” but also includes a Municipal Councillor or Member as well.
A person who in fact discharges the duties of the office which brings him within the definition of a public servant, is a public servant whatever legal defect there may be in his right to hold the office. But a person who is in actual possession of the situation of a public servant is not a public servant unless he has a right to hold that situation although in determining that right the legal defect, if any, has to be ignored. A public servant within the meaning of section 21 of the Code.
Section 21 of the Indian Penal Code,1860 describes “Public Servant” as:-
The words “public servant” denotes a person falling under any of the descriptions hereinafter following; namely:-
Second –Every Commissioned officer in the Military [Naval or Air] Forces of India;
Third-Every judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
Fourth-Every officer of a Court of Justice including a liquidator ,receiver ,or commissioner whose duty it is ,as such officer ,to investigate or report on any matter of law or fact ,or to make, authenticate ,or keep any document ,or to take charge of disposal of any property ,or to execute any judicial process ,or to administer any oath ,or to interpret ,or to preserve order in the Court , and every person specially authorized by the Court of Justice to perform any of such duties;
Fifth-Every juryman, assessor,or member of a panchayat assisting a Court of Justice or public servant;
Sixth-Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
Seventh-Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
Eighth– Every officer of the Government whose duty it is, as such officer, to prevent offences , to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
Ninth- Every officer whose duty it is, as such officer, to take, receive, keep or expand any property on behalf of the Government or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on any matter affecting the pecuniary interest of the government, sor to make, authenticate or keep any document relating to the pecuniary interest of the Government, or to prevent the infraction of any law for the protection of the pecuniary interest of the Government.
Tenth-Every officer whose duty it is, as such officer, to take, receive, keep or expand 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.
Eleventh-Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election.
(a)in the service or pay 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, Provisional, or State Act or a Government Company as defined in Section 617 of the Companies Act, 1956.
A Municipal Commission is a public servant.
Explanation 1-Persons falling under any of the above descriptions are public servants whether appointed by the Government or not.
Explanation 2-Wherever the words ‘public servant’ occur, they shall be understood by every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.
Explanation 3-The word “election” denotes an election for the purpose of selecting members of any legislative municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.