1. This was a rule directed against an order passed by a learned Magistrate of Karnal whereby he convicted Harbilas, petitioner, for an offence Under Section 161, Penal Code, and sentenced him to rigorous imprisonment for six months and a fine of B3. 300. The petitioner went up in appeal to the Sessions Judge, Karnal, who upheld the conviction and the sentence. Against this order the petitioner has come up in revision to this Court and a rule was issued by my learned brother Palahaw J.
2. The facts of the case are that the petitioner was at one time an unpaid candidate in the office of the Deputy Commissioner, Karnal. The alleged offence is of 23rd July 1948 on which date he was not an unpaid candidate as he was before. It is stated by Raj Kishen, Arms Clerk, O. W. 3 that he was allowed to work in the office by him for the purpose of assisting him (Raj Kishen). According to the statement of Arjun Daa P.W. 6, the petitioner used to make entries in the office registers but then he was asked by this witness that he should not work in that branch (the Arms Clerks Branch) without the approval of the Superintendent of the Deputy Commissioner's office Bat the witness was a clerk from 1st May 1918 to 9lst June 1948 and, therefore, his evidence as far as the petitioner is concerned, does not seem to be of much relevance. From this it is not possible to say as to what exactly was the capacity in which the petitioner was working in the Deputy Commissioner's office if he was working there at all.
3. Mr. Tek Chand, learned Counsel for the petitioner, has submitted that on these facts the petitioner has not been proved to be a public servant within the meaning of 8s. 21 and 161, Penal Code. In reply to this argument, the learned Advocate General has drawn my attention to Queen-Empress v. Parmeshar Dat, 8 ALL, 301 : (1686 A. W. N. 63), where it was held that a person, whether receiving any pay or not, but who chooses to take upon himself the duties and responsibilities belonging to the position of a public servant, and performs those duties, and accepts those responsibilities, and is recognised as filling the position of a public servant, must be regarded as one. Well many things are to be proved before this case will be established, the chief amongst which is that the petitioner should be performing the duties of a public servant and should be recognised as filling that position. That factor, in my opinion, is missing in the present cage. All we have in this case is that at one time the petitioner was an unpaid candidate. Since then at the request of one of the clerks he is assisting one of them in some work connected with the duties of an arms clerk. That in my opinion will not be sufficient to make him a public servant.
4. The learned Advocate-General also submitted that a person who is expecting to be a public servant will be covered by Section 161. Of that again there is no proof nor a finding to the effect that the petitioner was a person who was expecting to be a public servant.
5. In the result this petition is allowed, the Conviction and sentence of the petitioner is set aside and the rule is made absolute. The petitioner shall be released forthwith and the fine, if paid, shall be refunded.