Section 168 IPC: Public Servant Unlawfully Engaging in Trade

Section 168 of the Indian Penal Code, 1860 dealt with a public servant who was legally bound, in that capacity, not to engage in trade but nevertheless engaged in trade. The section protected the legal restrictions imposed on public servants against prohibited commercial activity.

Text of Section 168 IPC

Meaning and Scope of Section 168 IPC

Section 168 did not create a universal prohibition preventing every public servant from every activity that might loosely be described as commercial. Its wording required the accused to be a public servant who was legally bound as such public servant not to engage in trade. The existence and applicability of that legal restriction were therefore fundamental to the offence.

Where the required legal prohibition applied, engaging in the prohibited trade could attract Section 168. The precise rule, law or legally binding restriction governing the public servant would consequently be important when applying the section to particular facts.

Essential Ingredients of Section 168 IPC

• The accused must be a public servant: Section 168 applied only to a person falling within the relevant IPC concept of a public servant.
• A legal restriction must apply: The public servant must be legally bound, in that official capacity, not to engage in trade.
• The accused must engage in trade: The conduct alleged must amount to engaging in trade covered by the applicable legal prohibition.
• Connection with public office: The restriction must bind the person "as such public servant"; the section therefore depends on the legal obligations attached to the public position concerned.

Meaning of "Public Servant"

Section 21 IPC contained an extensive statutory definition of "public servant". Whether Section 168 applied first depended on whether the accused fell within that definition or another legally applicable formulation. The nature of the office and the legal duties attached to it therefore mattered.

What Does "Legally Bound" Mean?

The words "legally bound" are important because Section 168 was not framed merely as a general ethical restriction. Under Section 43 IPC, a person was said to be "legally bound to do" whatever it was illegal in him to omit. In the context of Section 168, the prosecution had to rely on a legally operative restriction binding the public servant against engaging in the trade in question.

Accordingly, before applying Section 168 it is necessary to identify the legal basis of the prohibition and determine whether it actually bound the particular public servant in the circumstances concerned.

Meaning of Engaging in Trade

Section 168 itself did not set out a separate detailed definition of "trade". The statutory question was whether the conduct amounted to engaging in trade that the public servant was legally prohibited from undertaking. This required attention to the nature, continuity and commercial character of the activity and, importantly, the scope of the legal restriction applicable to the office.

Service Rules and Criminal Liability

Public servants may also be subject to conduct or service rules regulating private business, employment and commercial activity. A departmental or service-rule issue and criminal liability under Section 168 should not automatically be treated as identical questions. For Section 168, the statutory ingredients had to be established, including the accused's status as a public servant, the legally binding prohibition and engagement in the prohibited trade.

Punishment Under Section 168 IPC

Difference Between Sections 167 and 168 IPC

Section 167 IPC concerned a public servant charged with preparing or translating a document or electronic record who knowingly or believingly made it incorrect with the required intention or knowledge concerning injury. Section 168 addressed a different form of misconduct: engaging in trade despite a legal prohibition binding the accused as a public servant.

Difference Between Sections 168 and 169 IPC

Section 169 IPC dealt specifically with a public servant unlawfully buying or bidding for certain property where the public servant was legally bound not to purchase or bid for it. Section 168, by contrast, addressed the broader subject of engaging in trade where a legally binding prohibition against such trade applied.

Practical Application of Section 168

A Section 168 analysis should begin by identifying the accused's status as a public servant and the exact legal restriction said to prohibit the trade. The nature of the alleged commercial activity must then be considered to determine whether it falls within the prohibition. The offence cannot be established merely by describing an activity as undesirable or inconsistent with office without addressing the statutory requirement that the public servant be legally bound not to engage in the trade.

Position After 1 July 2024

The Indian Penal Code, 1860 was replaced for the new criminal-law regime by the Bharatiya Nyaya Sanhita, 2023 from 1 July 2024, subject to the applicable repeal and savings provisions. Section 168 IPC can therefore remain relevant to conduct or proceedings governed by the earlier law. For conduct governed by the new regime, the applicable provisions of the Bharatiya Nyaya Sanhita, 2023 and other relevant laws or service rules should be examined.

Note: This article explains the pre-BNS statutory position for general legal information. Application of Section 168 depends on the status of the accused, the legal prohibition governing the office and the nature of the alleged trade.