Critical Analysis: Misfeasance And Offence By Public Servant Under Tort And Indian Penal Code


Misfeasance and offence under the Indian Penal Code, 1860 by public servant have two different meaning but they are similar in nature because they are related with the offence committed by public servant. As we all study and know about the offence relating to Public servant under Indian Penal Code, 1860 but very few people study or know about the misfeasance by public servant. The major difference between both of them is misfeasance by public servant is tort whereas offence committed by public servant under Indian Penal Code is crime. Their punishments are also different. We will discuss in this article, what is misfeasance, a concept under Indian law, its exemplary damages and offence relating to public servant under the Indian Penal Code and case laws for both.

Keyword: Misfeasance, Offence relating to Public Servant

Misfeasance By Public Servant And Its Exemplary Damages

The meaning of Misfeasance is a transgression, especially the wrongful exercise of law authority. The meaning of Misfeasance by Public Servant is, the public servant or an individual in public office or public body acts unlawfully and does so knowing that his or her actions are likely to cause harm to another person. Misfeasance in public office is a tort. Basically, Misfeasance by Public Servant is a concept under English law. The public officer can commit this crime and only when they are abusing or misuse their public power or position. It requires malice within an individual in public office or public body to constitute a misfeasance by public office. It is an intentional tort. The Prime Minister is not a public officer.[1] Misfeasance by public servant is defined under tort. Misfeasance by public servant in India is not mentioned anywhere in tort. It has not proper definition under law of tort[2].

Example: if a person has been arrested and detained in a circumstances where the police or detaining authority knowing that person is innocent or if a person has been the victim of someone who has misused power that they have because of their position within a detaining authority or local authority.

Some Offences Which Can Be Categorised Under Misfeasance By Public Servant

  • False Imprisonment
  • Wrongful Arrest
  • Malicious Prosecution

Exemplary Damages For Misfeasance By Public Servant

Exemplary damages means the damages awarded to a plaintiff in excess of compensatory damages in order to punish the defendant for a wilful neglect. The exemplary damages for misfeasance by public servant are compensation in monetary term. In UK, the damages for misfeasance by public servant can be imprisonment. The vicarious liability can also be exemplary damages for misfeasance by public servant, if the:

  1. Tortfeasor is an employee of the defendant
  2. Committed this offence in the course of employment

But the vicarious liability is unnecessary damages for the misfeasance by public servant or may not be correct. To claim the damages, the plaintiff must show that he or she has been suffered from the loss and damages. If any public servant acted beyond his power and in bad faith, the plaintiff could not show that he has suffered from any loss. The loss or damages can be physical, psychological or of his or her property or his or her reputation.

Case Laws

Ashby v. White[3]

This was the first case of Misfeasance by public servant. In this case, the plaintiff was a qualified voter at a parliamentary election, but the defendant who was a returning officer, wrongfully refused to take plaintiff’s vote. The plaintiff filed the case against the defendant. It was held that the plaintiff has a right to vote, he must of necessity to vindicate and maintain it. The officer was misbehave or by misusing his authority wrongfully refused to take plaintiff’s vote. So, the plaintiff received award of rupee 1.

Bhim Singh v. State of Jammu and Kashmir[4]

In this case, the petitioner who was an M.L.A of Jammu and Kashmir Assembly, wrongfully detained by the police while he was going to attend the assembly session. He was not produced before the Magistrate within the limited period. As a consequence of this, the member was deprived of his constitutional right to attend the assembly. This is the fundamental right of personal liberty under Article 21 of Indian Constitution. It was held that Bhim Singh had been relief amounting Rs.50,000 and released him.

So, this is another case where public authority misuses his powers. This is the examples of misfeasance by public servant.[5]

Offence Relating Or Committed By Public Servant

In Indian Penal Code, there are special provisions for offence relating to public servant means that offence committed by public servant. These offences mentioned under Section 166 to 171. Here, these are different categories of offences mentioned that is committed by public servant like disobeying law with intention to causing injury to any other person, public servant disobeying direction under law and punishment for non-treatment of victim etc. These offences are as follows:

Section 166 – Public servant disobeying law with intent to cause injury to any person: This Section makes disobedience of law by public servant in any direction with the intention of causing injury to any person. Disobedience of law in this section is not necessary until the accused have abetted any offence falls under Section 161 to 165. This section contemplates breach of statutory duty with a view to causing injury to any person. The offence comes under this section like Prevention of Corruption Act, 1988. These offences are non-bailable and the punishment is imprisonment for three years or fine or both.

Section 166A – Public servant disobeying direction under law: This section inserted by Criminal Amendment Act, 2013. If a public servant knowing disobeys in direction of law which prohibits him requiring the attendance any place and law regulating the manner in which the investigation shall be conducted. If he fails to recover any information under Section 154 of CrPC and in relation to Section 354D, 370, 370A, 370B, 370C, 370D, 370E or 501 of Indian Penal Code. The punishment shall not be less than 6 years but extended to 2 years and fine.

Section 166B – Punishment for non-treatment of victims: In this Section, Indian Penal Code fixes criminal liability on hospitals which were run under Central, State or local bodies who provides first aid or medical treatments free of cost to victims and inform to police of such incident immediately, if he fails to comply statutory obligation carries punishment extended to one year imprisonment or fine or both.

Section 167 – Public servant framing an incorrect document with intent to cause injury: This section lies for framing or translating of an incorrect document or electronic record by a public servant with intention to cause harm or injury to any other person. There are some essential ingredients to constitute crime under this section-

  1. Accused must be a public servant.
  2. There should be preparation of a document or electronic record.
  3. The prepared or frame document should be incorrect in manner.
  4. He does knowingly.
  5. There should be intention or knowledge which is likely to cause an injury to any person.

The punishment extended to three years of imprisonment or fine or both.

Section 168 – Public servant unlawfully engaging in trade: This section has provision for the public servants who are legally bound to do no engage in trade but engage in trade. The punishment extended to imprisonment for one year or fine or both. If they obtain unfair advantage over the trader by using their position. In case of State of Gujarat MD Thakkar[6], the accused was serving as a tracer at office of Sub – Divisional Soil Conservation Officer, Bhavnagar from December 12, 1965 to February 6, 1968. He applied for Railway Authorities on January 19, 1969 which was received training as an Electrical Signal Maintainer. His application was accepted. The accused leave Sub – Divisional Soil Conservation officer for the period February. In this case, it was held that wider interpretation were to be put on the word ‘trade’ in Section 168 of Indian Penal Code. The engagement of respondent as an apprentice trainee would not bring him with purview of the expression ‘trade’ that means the respondent was carrying on trade as a means of livelihood within the meaning of Section 168 of Indian Penal Code.

Section 169 – Public servant unlawfully buying or biding for property: This section is an extension of the section 168. This section prohibits a public servant from purchasing or bidding for property for which he is not legally bound to purchase but if the property has no connection with official position, then this section is not applicable on public servant and he is not prohibited from bidding or purchasing property. This offence is non-cognizable, bailable and triable by first class Magistrate. The punishment extends to imprisonment for 2 years or fine or both. The purchased property will be confiscated.

Section 170 – Personating a public servant: This section gives punishment to a person who pretends to hold any public office as a public servant, or falsely represent as a public servant who holding such office and he did so knowingly and attempted to do something under colour of office. The punishment for this offence is imprisonment extends to two years or fine or both.

Section 171 – Wearing garb or carrying token used by public servant with fraudulent intent: This section seeks to punish those who wearing grab or carrying a token used by a public servant with fraudulent intention. Intention is the main ingredient of this section. This provision will not be applicable in case of persons wearing garb or carrying token used by public servants in case of films, or shows depicting the character and role of a public officer. The punishment of this offence is imprisonment which extends to three months or fine up to two hundred rupees or both.[7]

Section 170 and 171 are offence relating to public servant not committed by public servant. We all know about the petty offences relating to public servant like bribery but we do not focus on the offences committed by public servant under Indian Penal Code. The punishments for these offences are very small. These public servants are the protectors of law and regulations who breaches the law and regulations.


In my opinion, the misfeasance by public servant is major tort or crime in the country where the public servant and higher authority misuse their powers. Nowadays there are many cases where the public servant or higher authorities misuse their power and it increases day by day. The damages claim under misfeasance by the public servant and a person has to face many difficulties to claim the damages because it is done by ill-will of the public servant. The public servant cannot be liable for exemplary damages if he is not liable for the compensatory damages. The punishment should be the compensatory or exemplary damages or imprisonment for the misfeasance by public servant. The vicarious liability can be also a damages but it is very difficult to claim because for this we have to prove the wrongdoer is the servant of the defendant and the offence committed in the course of employment. It includes offences or tort like false imprisonment, unlawful arrest and malicious prosecution etc. The damage can be physical, psychological or of his or her property or reputation. Misfeasance and offence both are breach of law by public servant. There should be harsh punishment for both. We can see both are different in punishment, nature and in implementation also. In above statements and paragraphs, these both are completely different from each other. These offences and tort are related to our day to day life.

[1] Hafiz Yatim, Najib as PM is not a public officer, High Court rules (last visited on 14th August)

[2] Law of Torts, Scribd (last visited on 16th August, 2020)

[3] (1703) 2 Lord Raym, 1938

[4] AIR 1986 SC 494

[5] Dr. R.K. Bangia, Law of Torts, 24th Edition, 2017, Allahabad Law Agency

[6] AIR 1952 Bom 196

[7] K.D. Gaur, Indian Penal Code, Sixth Edition, Allahabad Law Agency

About Author –

Nishu Singh – Student of law at School of Law, JEMTEC