Judgment

RAGHUBAR DAYAL, J. : This is an appeal by Padam Sen and Shekhar Chand against the order of the Allahabad High Court dismissing their appeal against the order of the Special Judge, Meerut, convicting them of an offence under S. 165A of the Indian Penal Code. The High Court granted leave to appeal against its order.

2. 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 plaintiff. 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.

3. The appellants were convicted by the Special Judge under S. 165A 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.

4. The two Courts below have found that the appellants went to the Commissioner s Office on March 30, 1954, and offered him Rs. 900/- as bribe. The appellants do not challenge these findings of fact recorded by the Courts below. Their only contention is that Sri Raghubir Pershad, the Commissioner, was not a public servant, and therefore even on the basis of the findings of fact arrived at by the Courts below, they did not commit any offence under S. 165A of the Indian Penal Code.

5. It has been contended for the appellants that the appointment of Sri Raghubir Pershad as Commissioner was null and void as the Additional Munsif had no power to appoint a Commissioner for the purpose of seizing the account books of the plaintiff on an application by the defendants, the power of a Civil Court to issue a Commission being limited by the provisions of S. 75 and Order XXVI of the Code of Civil Procedure (hereinafter called the Code), and the Court having no inherent power to appoint a Commissioner for any purpose not mentioned in S. 75 and Order XXVI of the Code. On behalf of the State it us urged that the Court can appoint a Commissioner in the exercise of its inherent powers saved by S. 151 of the Code of purposes which do not come within the provisions of S. 75 and Order XXVI of the Code.

6. It is further submitted for the State that even if the Additional Munsif had no power to appoint the Commissioner for seizing the books of account, Sri Raghubir Pershad would be deemed to be a public servant in view of Explanation 2 to S. 21 of the Indian Penal Code because he was in actual possession of the situation of a public servant for he acted as Commissioner and was recognized as such by the appellants and others connected with the civil suit.

7. Section 75 of the Code empowers the Court to issue a commission, subject to conditions and limitations which may be prescribed, for four purposes, viz., for examining any person, for making a local investigation, for examining or adjusting accounts and for making a partition. Order XXVI lays down rules relating to the issue of commissions and allied matters. Mr. Chatterjee, learned counsel for the appellants, 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 S. 75 the Court cannot invoke its inherent powers under S. 151 and thereby 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 prevent abuse of the process of the Court.

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