M.L Jain, J.:— Respondent No. 1 B.N Khanna is a partner of M.S Serhoo Mal Jagdish Rai, Delhi. The said firm had an account at the Sunder Nagar Branch of the Union Bank of India (herein the Bank), where, at the relevant time, Miss Trilochan Banga was the Branch Manager. On 17-8-1982 or about B.N Khanna filed a complaint against Miss Trilochan Banga in the court of the Metropolitan Magistrate under section 500 I.P.C, alleging that she called them cheats.

2. During the enquiry under section 202 Cr. P.C the said complainant made an application that the vigilance officer of the Bank be directed to produce the report of investigation in respect of the accounts of his firms M S Serhoo Mal Jagdish Rai and M/s Saral Trading Co. conducted by Shri S.K Kataria. In answer to the summons Shri I.J Mehta, a clerk and Shri H.K Dham, Zonal Manager, appeared before the Magistrate. Shri Dham filed an affidavit on 7-1-1983 objecting to the production of the said vigilance report on the ground that it was a document privileged under section 124 of the Indian Evidence Act, 1872. However, on 10-1-1983, the Bank produced the report before the learned Magistrate. He initialled each page and adjourned the case to 29-1-1983, when the petitioner Shri Raghunath Rai Kumar, the Managing Director of the Bank filed an affidavit. He stated that the concerned firms had failed to honour their commitments under the letters of credit and undertakings executed by them and on one pretext or the other they evaded the payment of the documents retired by the Bank. What they wanted was to get hold of the goods imported by them under the aforesaid letters of credit without making payment to the Bank, Miss Banga objected to this attempt. Then the camplainant lodged various prosecutions making false allegations, while the Bank directed probe into the accounts of the firms. The Audit Cell of the Bank conducted investigation of their accounts. The report of such investigation is a communication made by an officer of the Bank in official confidence to another. The Managing Director claimed that public interest would suffer by disclosure of the said communication. This contention was rejected by the learned Metropolitan Magistrate, by his order of 16-2-1983. He directed the disputed document to be placed on the file. The learned Magistrate was of the view that the Bank officers were not public officers within the meaning of section 124 of the Evidence Act and that the document is simply a report of investigation conducted by some officer of the Bank regarding the financial position of the complainant firms as the Bank doubted the integrity of the said firms when they failed to honour their promises. When the Bank has come to certain conclusions about the financial position of the complainant, there cannot be any secrecy in regard to the findings arrived at by the Bank. The affidavit did not disclose what public interest is going to be affected by the disclosure and it appeared to the learned Magistrate that the report was not of such a secret nature as the disclosure thereof can cause any injury to any public interest. Rather, such disclosure will be in public interest inasmuch as the public would come to know about the financial status of the complainant firms. Hence, this petition praying for quashing the said order of the learned Magistrate.

3. I have heard Shri Gupta and Shri Sethi. Let me start by reciting section 124 of the Evidence Act:

“124. Official Communications: No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure.”

4. Before, I proceed to examine the matter I want to dispose of one contention of Shri Sethi appearing for the respondents. He referred to S.P Gupta and others v. President of India and others, AIR 1982 SC 149, popularly known as ‘transfer of Judges’ case, in which the Government claimed privilege under section 123 of the Evidence Act. The Supreme Court observed that such a claim is limited only to such affairs of the state which involve security of the nation and foreign affairs. Shri Sethi contends that “the approach of the court must be to attenuate the area of secrecy as much as posible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest”. “In an open society like ours and in a democratic Government like ours secrecy except in a very limited case, has to be deprecated”. This case, I am afraid, is not of much relevance because the claim here is not made under section 123 but under section 124 of the Evidence Act I will, therefore, confine myself to the discussion of section 124.

5. Whether the document in question is a communication made in official confidence or whether public interest would suffer by its disclosure are questions of fact to be determined upon the examination of the document and other matirial, if any I will, therefore, not discuss these two aspects nor is it required for the present purpose because Shri Gupta the learned counsel for the Bank did not in this like to insist that it was a communication a disclosure of which will do damage to public interest. His contention is that this privilege, if the other two conditions satisfy, should be available to the officers of the Banks. His main attack is directed against the opinion of the learned Magistrate that the Bank officers are not public officers.

6. The opening submission of Shri Gupta in this regard is that the Officers of the Bank are public officers because they are public servants. According to the amendment made on 19-7-1969 and on 15-4-1980 in section 51 of the Banking Regulation Act, 1949. sections 46 to 48 thereof have been made applicable to corresponding new Banks constituted under section 3 of the banking companies (a acquisition & transfer of undertakings) act of 1970 and 1980 (herein nationalised bank). sections 44 to 48 will obviously include section 46-A. It provides:

“46-A. Chairman, director, etc. to be public servants for the purposes of Chapter IX of the Indian Penal Code:—Every Chairman director, auditor, liquidator, manager and any other employee of of a banking company shall be deemed to be a public servant for the purposes of Chapter IX of the Indian Penal Code.”

Since, this section made the chairman, director, manager and other employees, etc. of a nationalised bank to be public servants only for the purposes of offences by or relating to public servants chiefly those dealing with graft specified in Chapter IX of the Indian Penal Code, 1860, and for no other, two of the nationalised banks took up the position in Oriental Bank of Commerce and another v. Delhi Development Authority, 1982 Cri. L.J 2230, that their Chairman-cum-Managing Directors were public servants under sub-clause (b) of clause Twelfth of section 21 IPC and claimed that they cannot be prosecuted for offences under the Delhi Development Act, 1957 without sanction under section 197 of the Code of Civil Procedure, 1973. I overthrew that contention. Amongst other grounds, the one most important was that the Bank, though a body corporate, was not a corporation because it had no membership and a memberless corporation was a contradiction in terms and unknown to Indian jurisprudence. One has to note that the definition of a public servant contained in section 21 of the Indian Penal Code, 1860 applies only to the provisions of that Code and does not automatically apply for the construction of any other enactment unless it is incorporated or adopted by it. The intention of the legislature, therefore, patently was that the employees and other authorities of a nationalised bank will be public servants only for a limited purpose. It could have done otherwise, but did not. The legislature made this provision by amendments in section 51 of the Banking Regulation Act, 1949. That further displayed its intention to keep in this respect the nationalised banks at par with other banking companies. They could not be held public servants for all purposes, for if that were done, all the employees of the banking companies shall have to be declared so and that would have thrown the scope of Indian Penal Code at large, much against the express provision made by the legislature. Therefore, the position is that they could not claim the protection of section 197 Cr. P.C for prosecution of the offences under any provision of law except Chapter IX of the Indian Penal Code and that too if they satisfied the other conditions of the said section and not otherwise.

7. Shri Gupta has now made a fresh bid to claim that the Bank's employees are public servants within clause Ninth or Section 21 IPC, according to which every officer whose duty is, as such officer, to take, receive, keep or expend any property on behalf of the Government. He has rightly not concerned himself with the rest of the clause. Shri Gupta contends that it is the duty of the Bank's officers to take, receive, keep and expend property on behalf of the Government. In order to illustrate his point, he referred to several provisions of the banking companies (acquisition & transfer of undertaking) act of 1970 and 1980. First, the long title which reads:

“An Act to provide for the acquisition and transfer of the undertakings of certain banking companies, having regard to their size, resources, coverage and organisation, in order to control the heights of the economy and to meet progressively and serve-better, the needs of development of the economy in conformity with national policy and objectives and for matters connected therewith or incidental thereto.”

He then pointed out to sub-section (3) of section 3 which says that the entire capital of a nationalised bank stands vested in, and allotted to, the Central Government. Section 8 lays down that every nationalised bank shall in the discharge of its functions be guided by such direction in regard to matters of policy involving public interest as the Central Government may, after consultation with the Governor of the Reserve Bank, give. Section 9 provides for a scheme to be prepared by the Central Government which takes into consideration the interest of farmers, workers, and artisans, etc, while constituting the Board of Directors. According to sub-section (4) of section 10, every auditor of a nationalised bank is required to make a report to the Central Government of the annual balance sheet and accounts. Sub-section (7) of section 10 further provides that the nationalised bank shall transfer the balance of profits to the Central Government. Section 11 provides that a nationalised bank shall be deemed to be an Indian company under the Income-tax Act, 1961 in which the public are substantially interested. Section 13 is that every director, member of a local board, or a committee or adviser, officer or other employee of a nationalised bank shall before entering upon his duties make a declaration of fidality and secrecy in the form set out in the third schedule. Section 19 provides that the Board of Directors can make regulations only with the previous sanction of the Central Government. The third schedule provides, inter alia, that a bank officer will not communicate or allow to be communicated to any person not legally entitled thereto information relating to the affairs of the bank or to the affairs of any person having any dealing with the bank. The main purpose of racing through these various provisions is to show that the officers of the nationalised banks are duty bound to take, receive and keep the property on behalf of the Government and since there is an overall control exercised over the nationalised banks by the Central Government, they should be deemed to be public servants. The question of application of clause Ninth was discussed by West J. in Reg. v. Ramajiray Jivbajiray & another, 1975 12 B.H.C.R 1, and his observations have not so far been improved upon, He said:

“We are of opinion that the word ‘officer’ in clause 9 of section 21 of the Indian Penal Code is used in a definite sense. It is not superfluous (the words ‘whose duty it is as such officer’ sufficiently show this), and is not merely equivalent to the word ‘person’ which occurs in several clauses of the same section. We do not think that the fact of certain duties being enumerated as constituting one who is an officer, a public servant, necessarily has the effect of making any one, on whom any of those duties devolves, an officer. Two things must combine to meet the requirements of the clause quoted above. In the first place, there must be an officer; and, in the second he must be under an obligation to perform one of the duties there enumerated.

We must, therefore, see who is an officer. It is clear that it is not every one who has to do with Government in pecuniary matters, or who has to render accounts, or to submit documents, who is a Government Officer. Seeking the help of English law we find, in Bacon's Abridgment of Vol. 6, page 2, the article headed ‘Of the nature of an officer, and the several kinds of officers,’ commencing thus: ‘It is said that the word ‘officicum principally implies a duty, and, in the next place, the charges of such duty; and that it is a rule that where one man hath to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer’. And the next paragraph goes on to say: ‘There is a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of office; such as an agreement to make hay, herd a flock, which differ widely from that of steward of a manor.’ The first of these paragraphs implies that an officer is one to whom is delegated, by the supreme authority, some portion of its regulating and coercive powers or who is appointed to represent the State in its relations to individual subjects This is the central idea; and applying it to the clause which we have to construe, we think that the word ‘officer’ there means some person employed to exercise, to some extent, and in certain circumstances, a delegated function of Government. He is either himself armed with some authority or representative charcter, or his duties are immediately auxiliary to those of some one who is so armed.”

So, an office may be of dignity or importance, it may equally be humble. But whatever its nature, it is essential that the person holding the office should have in some degree delegated to him certain functions of Government: Ahad Shah v. Emperor, AIR 1918 Lah 152(2). In State of Gujarat v. M.P Duivedi, AIR 1973 S.C 330, it was held that the person to be an officer must hold some office and the holding office implies charge of duty attached to that office. The officers of the Bank are not officers as they do not exercise any delegated functions of Government nor are their duties auxiliary to those of some one who enjoys such delegation. Apart from that, the officers of the Bank do not act on behalf of the Government; they act on behalf of the Bank. If any authority is needed for this proposition, one may usefully refer to In the matter of the petition of Modun Mohun, ILR (1879) 4 Cal. 376. I, therefore, reject the contention that the officers of the Bank are public servants within the meaning of clause Ninth of section 21 IPC. Attempt of Shri Gupta fails.

8. Shri Gupta then urged that even if the officers of a nationalised bank are not public servants in general, they should otherwise be held to be public officers within section 124 of the Evidence Act. A public officer is not equal to a Government servant and the meaning of the words ‘public officer’ will vary according to the statute in which they occur: Beeston and Staple-ford Urban District Council and another v. Smith (1949) 1 K.B 656, and in view of the provisions of the bank nationalisation Acts, the expression ‘public officer’ in section 124 of the Evidence Act should be construed to cover the officers of the Bank. In The King v. Charles Hildyard Thornton Whataker, (1914) K.B 1283, the expression was construed with the aid of 7th Report of the Commission of Criminal Law, page 153, Ch. IV, and public officer was held to signify any person invested with authority to execute, and legally bound to exceute, public duty. According to Henly v. Mayor of Lyme, (1928) 5 Bing. 91 at 107, every one who is appointed to discharge a public duty, and receives a compensation in whatever shape whether from the Crown or otherwise, is constiiuted a public officer. A public officer is an officer who discharges any duty in the discharge of which the public are interested more clearly so if he is paid out of a fund provided by the public. The expression ‘public officer’ is not denned in the Evidence Act, 1872, though it has been defined in section 2(17) of the Code of Civil Procedure, 1908, but it was held in Universtty of Panjab, Lahore and another v. Jaswant Rai, AIR (33) 1946 Lahore 220, that it cannot be given the same meaning as in section 2(17) C.P.C and in the absence of a definition in the General Clauses Act, 1897, the term must receive its ordinary English meaning that is an officer with public, as opposed to private, duties. In that case, a question arose whether the Vice-Chancellor of the Punjab University was such a public officer. It was held that the activities of the University and the duties performed by the Vice-Chancellor were effectively controlled and supervised by the Central and Provincial Governments. The duties of the Vice Chancellor were undoubtedly of a public character as they concern the regulation of educational activities in the province. The Vice-Chancellor when performing these public duties is acting as a public officer. The Lahore High Court relied upon In re. G.A Natesan, AIR 1918 Mad. 763. The Rajasthan High Court in Satish Chander Sharma v. The University of Rajasthan and others, AIR 1970 Raj. 184, also relied upon this Madras decision and held that where a statute appoints a body of persons to carry out purposes of public benefit, the persons constituting such a body ipso facto become holders of a public office within the meaning of section 124. Consequently, it further held that the members of the University Syndicate are such officers. Shri Gupta, therefore, contends that various provisions of the legislation respecting the nationalised banks to which a reference has already been made in some detail, show clearly that the activities of the Bank and the duties performed by its officers are effectively controlled and supervised by the Central Government and their duties are undoubtedly of a public character as they concern the regulation of heights and development of economy in conformity with national policy and objectives. He maintained that It cannot be said that merely because a person is employed in a commercial undertaking of the Government, he cannot be regarded as a public officer: Ranjeet Singh v. The State, AIR 1965 All. 478.

9. Shri Sethi pointed out that in Oriental Bank (supra) this court has already held that banking is purely a commercial activity and that the officers of a nationalised bank cannot be considered to be holding a public office. I see no reason to depart from that general approach. The functions of a nationalised bank are not anything more than those of any other banking company which are also regulated by several relevant statutes. No doubt, the control of the Government on a nationalised bank is quite substantial and far greater and its capital assets and profits go to make up the coffers of the State, but all the same, it is not a public department, nor is it like a University engaged in any activity of general public character, such as education in which every man and woman rich or poor are interested I think, it will not be appropriate to compare them with Universities and the observation made in relation to them by the Madras, Lahore and Rajasthan High Courts should be confined to Universities and should not be read to spread a bigger umbrella so as to cover nationalised banks. They do play a very important role in the national economic structure as the private sector in other commercial and industrial activities does. But they do not deal with public in general. The long title of the legislation only shows the purpose and policy of the legislation and other provisions of the statutes provide for their structure but do not purport to convert the nationalised banks into institutions of general public character. I am, therefore, of the view that the employees of the bank are not public officers and uphold the view of the court below.

10. The petition is dismissed.