Can Lokayukta or Chief Information Commissioner be prosecuted under S. 219 IPC?

[Anonymous]

Can Hon’ble Lokayukta / Uplokayukta or Chief Information commission be prosecuted under section 219 of I.P.C.? Whether proceedings before them are judicial proceedings?

[Dr. Ashok Dhamija]

In order to answer your question, let me first reproduce the relevant provisions of law.

Section 219 of IPC is as under:

“219. Public servant in judicial proceeding corruptly making report, etc., contrary to law.—Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”

In order to attract the offence defined under Section 219 of IPC, the Lokayukta or the Information Commissioner are required to be “public servants” and the proceedings before them are required to be “judicial proceedings”. Let us examine these two aspects with regard to the Lokayukta and the Information Commissioners.

Section 21 of the IPC defines “public servant” and the relevant extract from this Section is reproduced as under:

“21. “Public servant”.—The words “public servant” denote a person falling under any of the descriptions hereinafter following, namely:—

*** ***

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 or dispose 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 authorised by a 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;

*** ***.”

From the above definition, it is obvious that every Judge is a public servant, and likewise any person empowered by law to discharge any adjudicatory functions is also a public servant.

I may point out that a Lokayukta as well as an Information Commissioner have been empowered by law to discharge adjudicatory functions.

For example, Section 18(3) of the Right to Information Act, 2005, lays down that the Central Information Commission and the State Information Commission have the same powers as are vested in a civil court; for example, they have the power to take evidence on oath, they can receive evidence on affidavit, and have other powers of a civil court, as shown below:

“(3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:—

(a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;

(b) requiring the discovery and inspection of documents;

(c) receiving evidence on affidavit;

(d) requisitioning any public record or copies thereof from any court or office;

(e) issuing summons for examination of witnesses or documents; and

(f) any other matter which may be prescribed.”

Therefore, it appears that the Information Commissioners perform adjudicatory functions. Thus, an Information Commissioner should be considered as a public servant within the meaning of Section 21 of the IPC.

Likewise, we can see that Lokayukta is also a public servant. For example, under Section 11 of the Madhya Pradesh Lokayukta Evam Up-Lokayukta Act, 1981, the Lokayukta has the power of examining persons on oath, taking evidence on affidavit, etc.; Lokayukta is specifically declared to be a Court for the purposes of the Contempt of Court Act; the proceeding before the Lokayukta is also declared as judicial proceeding (see here).

Similarly, under Section 11 of the Karnataka Lokayukta Act, 1984, the Lokayukta has been given the powers of a civil court for certain purposes such as the power of examining persons on oath, taking evidence on affidavit, etc.; the proceeding before the Lokayukta is also declared as judicial proceeding for the purposes of Section 193 of IPC (see here).

Thus, we may notice that Information Commissioners as well as Lokayukta are public servants within the meaning of Section 21 of IPC.

Now, let us consider the second aspect. IPC does not define “judicial proceeding”. However, in Section 2 of the Code of Criminal Procedure (Cr.P.C.), “judicial proceeding” is defined as under:

“(i) “judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath;”.

As we have seen above, the Information Commissioners as well as the Lokayukta have the power to take evidence on oath. Therefore, the proceedings before them are judicial proceedings. In fact, in so far as the Lokayukta is concerned, as we have seen above, the proceedings before them are, generally, specifically declared as judicial proceedings.

In view of what is mentioned above, in my opinion, Lokayukta as well as the Information Commissioners satisfy the two conditions of being public servants and conducting judicial proceedings under Section 219 of IPC.

Therefore, I am of the opinion that in appropriate cases, where the necessary ingredients are satisfied, Section 219 IPC may be attracted in the case of Lokayukta and Information Commissioners. In am writing this despite being aware of the fact that criminal laws (specially, the substantive criminal laws) are required to be strictly construed.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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