Full Judgment Text
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PETITIONER:
THE STATE OF GUJARAT
Vs.
RESPONDENT:
MANSHANKAR PRABHASANKAR DWIVEDI
DATE OF JUDGMENT26/04/1972
BENCH:
GROVER, A.N.
BENCH:
GROVER, A.N.
BEG, M. HAMEEDULLAH
CITATION:
1973 AIR 330 1973 SCR (1) 313
1972 SCC (2) 392
CITATOR INFO :
D 1975 SC1685 (9)
E 1984 SC 684 (43)
ACT:
Indian Penal Code ss. 21 & 161-Lecturer in Govt. College
appointed examiner at an examination held by University of
Gujarat-Whether a ’public servant within meaning of s. 21
I.P.C. Cl. 9 as it stood before its amendment by Act 40 of
1964.
Prevention of Corruption Act, 1947-s. 5(2) read with s. (1)
(d)-Offence under-Abuse of position as a public servant
necessary even when pecuniary advantage etc. is obtained by
corrupt or illegal means.
HEADNOTE:
D, a Lecturer in a Government College, was appointed as
examiner of a physics practical examination held by the
Gujarat University. He allegedly took Rs. 500 from a
candidate at the examination for showing him favour . He was
charged with offences under s. 161 Indian Penal Code and s.
5(2) read with s. 5(1)(d) of the Prevention of Corruption
Act 1947. The Sessions Judge held him to be a ’public
servant’ within the meaning of cl. 9 of s. 21 as it stood
before its amendment by Act 40 of 1964, and held him guilty
under s. 161 of the I.P.C. He was also held guilty under the
1947 Act. In, appeal the High Court held (1) that in is
capacity as examiner of Gujarat University lie was not a
public servant and therefore not guilty under, s. 161
I.P.C.; (ii) that though a public servant in his capacity as
lecturer in a Government College he had not abused his
position as such public servant and’ therefore was not
guilty under s. 5(2) read with s. 5(1)(d) of the Prevention
of Corruption Act. The State appealed to this Court.
HELD : (i) As rightly held by the High Court a public
servant within the meaning of cl. 9 of s. 21 as it stood at
the relevant time must be an officer of the Government and
the fee or commission must be payable by the Government. A
University Examiner cannot be considered to hold an office
in the sense in which that word has been understood and
employed in the Ninth Clause even though examining answer
books may fall within the performance of a public duty. A
private individual who has no employment may be appointed an
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examiner because of his high academic qualifications. He
cannot be said to be holding any office. An examiner who is
in the regular service of a University also cannot be said
to be a public servant since a University is not a local
authority within the meaning of clause 12(b). Since the
appellant was not a public servant under s. 21 I.P.C. he was
rightly acquitted of the offence under s. 161 I.P.C. [319
F-320 H]
Ram Krishna Dalmia v. Delhi Administration, [1963] 1 S.C.R.
253, applied.
(ii)It was never the case of the prosecution that D had been
guilty of any abuse of his position as a lecturer of the
Government College. As he was not a public servant when he
was acting as an examiner it could not be said that there
had been any abuse by him of his position as a public
servant. He was therefore rightly acquitted by the High
Court of the offence, under s. 5 (2) read with s. 5 (1) (d)
of the Prevention of Corruption Act 1947. [325 E]
314
There are two ways of looking at clause 5(1)(d). One is
that the words "corrupt or illegal means" stand by
themselves and as soon as it is established that a public
servant has by such means obtained any valuable thing or
pecuniary advantage he is guilty of the offence. The other
way of reading this clause is by confining the words "by
otherwise" to the means employed. Thus the means employed
may be corrupt or illegal or may be of such a nature as
would savour of a dishonest act. But the abuse of position
as a public servant would be essential whether the means are
corrupt or illegal or are of the nature covered by the word
"otherwise". The analysis of clause (d) made in Narayanan
Nambiar’s case seems to lend support to the view taken by
the High Court that the abuse of position as a public
servant is essential. [324 A-D]
In clauses (a), (b) and (c) of s. 5(1) the abuse of position
as a public servant is clearly implied. Clause (e) also
carries the same implication. It would, therefore, be
reasonable to put on clause (d) a construction which is
consistent with the other clauses of the sub-section. [325
C]
M.Narayanan Nambiar v. State of Nerala, [1963] Suppl. 2
S.C.R. 724 and Rain Krishna & Another v. The State of
Delhi, [1956] S.C.R. 182, applied.
Dhaneshwar Narain Sexana v. Delhi Administration,[1962] 3
S.C.R. 259, distinguished.
State of Ajmer v. Shivji Lal, [1959] Suppl. 2. S.C.R. 739,
referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Cr. A. No. 190 and 191 of
1969, and 63 and 64 of 1972.
Appeals by certificate/special leave from the Judgment and
Order dated September 9, 1968 of the Gujarat High Court in
Criminal Appeals Nos. 486 and 555 of 1966.
Urmila Kapoor, B. D. Sharma for S. P. Nayar and Kamlesh
Bansal, for the appellant (In all the appeals).
M.V. Goswami, for the respondent (In Cr. As. Nos. 190
of 1969 and 63 of 1972).
H.K. Thakur and S. K. Dholakia, for the respondent (In
Cr. As. Nos. 191 of 1969 and 64 of 1972).
The Judgment of the Court was delivered by
Grover, J. This judgment will dispose of all the four
appeals from the judgment of the Gujarat High Court.
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Two appeals, i.e. Cr. As. No. 190 & 191 of 1969 had been
brought by certificate. The certificates being defective
for want of reasons they could not be entertained on that
short ground. However, two petitions for special leave were
filed and the same were granted. Those appeals (Cr. As. 63
& 64 of 1972) will be dealt with in this judgment.
The facts may be stated. Manshankar Prabhasbankar Dwivedi
was at the material time a Senior Lecturer at the D.K.V.
315
Arts & Science College, Jamnagar which is a Government
college. Vallabhdas Gordhandas Thakkar was a legal
practitioner conducting cases before the Income tax and
Sales tax Departments. He was also a resident of Jamnagar.
It was alleged that in April 1964 the Physics practical
examination for the first year B.Sc. was to be held by the
Gujarat University. One of the centres was Surendranagar.
Dwivedi had been appointed as an Examiner for Physics
practical. He, is alleged to have accepted gratification of
Rs. 500/- other than legal remuneration for showing favour
to a candidate Jayendra Jayantilal Shah by giving him more
marks than he deserved in the Physics practical examination.
It is stated that he had obtained that amount through
Thakkar. Dwivedi was charged with commission of offences
under s. 161, Indian Penal Code and s. 5 (2) read with S. 5
(1 ) (d) of the Prevention of Corruption Act, 1947,
hereinafter called the ’Act. Thakkar was charged under s.
165-A, Indian Penal Code, and s. 5(2) of the Act read with
s. 114 of the Indian Penal Code. The Special Judge who,
tried both these persons found them guilty of the offence
with which they were charged. He imposed a sentence of 2
years’ rigorous imprisonment and a fine of Rs. 1,000/-, (in
default further rigorous imprisonment for six months) Oil
each of these persons.
Both the convicted persons filed appeals to the High Court’.
The High Court found that the prosecution case had been
proved against both Dwivedi and Thakkar on the merits but on
the view which the High Court expressed about the ambit and
scope of the sections under which the charges were laid they
were acquitted, The present appeals have been filed by the
State against both these persons who are respondents before
us.
It is unnecessary to give the entire prosecution story. We
may only refer to what is the last and final stage of that
story. According, to the prearranged plan it was alleged
that Pranlal Mohanlal who was the complainant and who was
the brother-in-law of the student, Jayendra, went to the
college, where the examination was to take place, along with
a panch witness Shivaji. Thakkar was in the porch of the
college and he demanded the money for being given to Dwivedi
Pranlal, however, insisted that the money would be paid
after he had talked the matter over with Dwivedi,and the
work was done.. Thakkar replied that Dwivedi was busy and
would be available after some time. So they all left.
Thakkar, followed them. When Pranlal and Shivlal reached
the Trolly Station Thakkar came there and asked them to go
with him to a place called ’Vikram Lodge’ which they did.
There Thakkar again demanded money but Pranlal gave the same
reply which he had given before. At about 11 A.M. these
three persons came back to the college and Went to the first
floor where
3-L128SupCI/72
316
the examination hall was situate and stood outside the hall.
There Thakkar brought Dwivedi and Dwivedi said "why are, you
delaying. You are a fool you will spoil the life of the
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student. Pay the amount to Thakkar". Then Pranlal paid Rs.
500/- lo Thakkar in the presence of Dwivedi. Thakkar
counted the money and put it in his pocket. Dwivedi went
back to his room. Thereafter the signal was given and the
raiding party arrived and made the recoveries. Necessary
panchnamas were prepared.
The High Court agreed with the Special Judge that the
prosecution case against the present respondents in respect
of the demand and acceptance of bribe of Rs. 500/- for the
purpose of giving more marks to Jayendra had been proved.
It was, however, argued before the High Court that as
regards s. 161, Indian Penal Code,, it was necessary that
the person committing that offence must be a public servant.
Although Dwivedi was a Senior Lecturer in a Government
College the bribe was sought ’to be obtained not in
connection with any official act or in connection with the
exercise of his official functions as a public servant but
in connection with his work as an Examiner of the Gujarat
University. An Examiner of the University did not fall
within the definition of a "public servant" as given in s.
21 of the Indian Penal Code. It was maintained on behalf of
Dwivedi that although he had abused his position as an
Examiner but he had not done so as a government servant in
which capacity alone he could be a public servant. The
Special Judge had, however taken the view that even an
Examiner was a public servant. As regards the offence under
the Act the Special Judge had held that it was not necessary
that the misconduct should be committed in the discharge of
the public servant’s duties. Once it was proved that the
payment had been obtained by corrupt or illegal means it was
not necessary that the accused should abuse his position as
a public servant or that he should have obtained the money
while acting as a public servant. The High Court did not
accept the reasoning or the conclusion of the Special Judge
on these points.
Section 21 of the Indian Penal Code as it stood at the mate-
rial time and before the amendments which were made later
contained several clauses. The ninth clause was in the
following terms:-
"Ninth.-Every officer whose duty it is, as
such officer to take, receive,, keep or expend
any property on behalf of the, Government or
to make any survey, assessment or contract on
behalf of the Government or to execute any
revenue process or to investigate, or to re-
port on any matter affecting the pecuniary
interests of the Government or to make,
authenticate or keep any
317
document relating to the pecuniary interests
of the Government or to prevent the,
infraction of any law for the protection of
the pecuniary interests of the Government and
every officer in the service or pay of the
Government or remunerated by fees or
commission for the performance of any public
duty".
The first question which has to be resolved is whether
respondent Dwivedi was a public servant within the meaning
of the Ninth clause of s. 21, Indian Penal Code, keeping in
view the capacity in which and the nature of the duties
which he was Performing as an Examiner of University which,
it has been found, had no connection with his being a
Government servant. It is well known that Universities
appoint Examiners having the requisite academic
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qualifications who may or may not be government servants.,
For instance, a person having the requisite academic
qualifications who is working in a private institution can
and usually is appointed an Examiner by the University. The
question that immediately arises is whether an Examiner of a
University as such can be regarded as a public servant
within the meaning of ninth clause of s. 21, Indian Penal
Code. It will be useful to look at the scheme of s. 21.
There could be no difficulty about the second, third and 4th
clauses which deal with the commissioned offers in the Armed
Forces, judges and officers of the Courts of Justice whose
duties are as such officers to do various matters mentioned
in those clauses. The Fifth clause brings within the
definition every juryman, assessor or member of,;: a
panchayat assisting a Court of Justice or public servant.
Under the sixth clause every arbitrator or other person to
whom any cause or matter has been referred for decision or
report by any Court of Justice or by any other competent
public authority would also fall within the words "public
servant". Seventh and eighth clauses deal with persons who
perform mainly policing duties. The tenth clause covers
officers whose duty it is to take receive, keep or expend
any property to make any survey or assessment or to levy any
rate, or tax etc. The eleventh clause relates to persons
who hold any office by virtue of which they are empowered to
prepare, publish etc. an electoral roll or to conduct an
election. The twelfth clause covers every officer in the
service or pay of local authority or corporation engaged in
any trade or industry established by the Central, Provincial
or State Government or a Government company. In the
illustration given it is stated that a Municipal
Commissioner is a public servant. According to Explanation
persons falling, under any. of the description given in the
twelfth clause are public servants whether appointed by the
Government or not. Section 21. was amended.in 1964. The
ninth clause was retained substantially ,:is it existed
previously except that the following words were
318
dropped "and every officer in the service or pay of the
Government or remunerated by fee or commission for the
purpose of any public duty". The twelfth clause was recast
and the new provision was in these terms :-
"Twelfth.-Every person-
(a) in the service or pay of the Government
or remunerated by fees or commission for the
performance of any public duty by the
Government;
(b) in the service or pay of a local
authority a corporation established by or
under a Central, Provincial or State Act or a
Government company as defined in section 601
of the Companies Act, 1956."
Thus sub-clause, (a) of the 12th clause, after the amendment
corresponds substantially to the last part of the old ninth
clause with this change that the expression "every officer"
has now been substituted by the words "every person" and
after the words "performance of any public duty" it has been
added "by the Government."
The argument which has been addressed mainly on behalf (if
the State and which Was pressed before the High Court is
that the ninth clause, as it stood, when the offences are
alleged to have been committed would cover the case of
Dwivedi as he, was an officer in the service or pay of the
Government or was remunerated by fee or commission for the
performance of a public duty. Acting as an Examiner, it has
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been suggested, is the performance of a public duty. If
Dwivedi was remunerated by fee or commission by the
University for the performance of that public duty he would
be covered by the last part of the ninth clause as it stood
at the relevant time. It is admitted on behalf of the State
that after the amendment made in 1964 under the twelfth
clause it is only a person in the service or pay of the
Government or remunerated by fee or commission for the
purpose of any public duty by the Government who would fall
within the definition of "public servant" within sub-clause
(a) of the, Twelfth clause. But it is argued that the
position was different under the’ Ninth clause as the words
"fly the Government" did not follow the words "performance
of any public duty" although at every other appropriate
Place the word "Government" was to be found in the Ninth
clause. The omission of these words show that the clause
was wider when it came to the case of an officer who was
remunerated by fee or commission for the performance of any
public duty and it was not necessary that the remuneration
by any of fee or commission should be paid by the Government
as is now necessary under subclause (a) of the’ Twelfth
clause after the amendment.
319
The High Court gave the, following reasons for holding that
tile last part of the Ninth clause, as it stood before the
amendment, would not cover the case of Dwivedi:
(i) The context of the whole of the Ninth
clause indicated that the connection with the
Government was necessary either in respect of
the payment of remuneration or in respect of
the performance of public duty.
(ii)The person to be an officer must hold
some office. The holding of office implied
charge of a duty attached to that office. The
person who was remunerated by fee or
commission must be an officer. Therefore the
use of the word "officer" read in the, context
of the words immediately preceding the last
part would indicate that the remuneration
contemplated was remuneration by the
Government.
(iii)The amendment made in 1964 and in
particular the addition of the words "by the
Government" in subclause (a) of clause Twelfth
showed the legislative interpretation of the
material portion of clause Ninth as it stood
before the amendment under consideration.
(iv)It is well settled that in a statutory
provision imposing criminal liability if there
is any doubt as to the meaning of a certain
expression or words its benefit should be
given to the subject.
It has not been shown to us by the learned counsel for the
appellant that the reasoning of the High Court on the above
point suffers from any infirmity. Apart from the other
reasons given by the High Court reason No. (ii) seems to
have a lot of force. It is supported by the decision in Ram
Krishna Dalmia v. Delhi Administration(1). There, a
Chartered Accountant had been appointed as an Investigator
by the Central Government under the Insurance Act 1938 to
investigate into certain matters and he was to get
remuneration for the work entrusted to him. It was held
that he did not become an officer as he did not hold any
office. The could not, therefore, become a public servant
within the latter part of Ninth Clause of s. 21 of the
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Indian Penal Code. It is noteworthy that the work of an
Investigator was of a nature which could well be regarded as
public duty and the remuneration which was to be paid to
him was by the Government. Yet it was hold that he could
not be regarded as holding an office. On that view it is
not possible to put the case of a University Examiner in
(1) [1963] 1 S.C.R. 253.
320
a different category. A University Examiner cannot be consi-
dered to hold an office in the sense in which that word has
been understood and employed in the Ninth Clause. It is
clear from the provisions of the Gujarat University Act 1949
that there is no such condition that only that person can
be appointed as Examiner who is the holder of an office.
Section 20(xxii) provides for appointment of Examiners by
the Syndicate. Section 30 empowers the Syndicate to make
Ordinances to provide for all or any of the following
matters
(iii)"conditions governing the appointment and duties
of examiners."
No such Ordinance has been brought to our notice which
restricts the appointment of the examiners to persons in the
service of the Government or holders of any particular
office. Suppose for instance there is a private individual
who is not in the regular employment or service of either
the Government or any public body or authority. He has the
requisite academic qualifications and he is appointed an
examiner in a particular subject in which he has attained
high academic distinction. He cannot be said to be holding
any office when he is appointed for the purpose of examining
certain answer books even though that may fall within the
performance of a public duty. There is another difficulty
in regarding an examiner as a holder of an office. Before
the amendment made, in s. 21 by Act 40 of 1964 a person who
is appointed an examiner and who receives remuneration by
fee would fall within the term "public servant" if he is
holder of an office. But persons in the regular service of
the University would not be covered by the Ninth Clause. If
at all, it would be the Twelfth Clause which would be
relevant in their case. It is, however, a moot point
whether the University is a local authority within the
meaning of the first part of the Twelfth Clause before the
amendment of s. 21. The expression "local authority" has a
definite meaning. It has always been used in a statute with
reference to such bodies as are connected with local self
Government e.g., Municipalities, Municipal Corporations,
Zila Parishads etc. As a matter of fact s.3 (31 ) of the
General Clauses Act 1897 defines "local authority" to mean a
municipal committee, district board, body of port
commissioners or other authority legally entitled to, or
entrusted by the Government with the control or management
of a municipal or local fund. It could never be intended
that only such officers of the University should be public
servants who are remunerated by fee or commission and not
those who are in the regular service of the University. We
concur with the High Court that a University Examiner cannot
be held to he an officer. Once that conclusion is reached,
he cannot be covered by the Ninth Clause of section 21 of
the Penal Code.
321
The next point which calls for decision is whether appellant
Dwivedi was guilty of an offence under s.5 (1) (d) of the,
Corruption Act. That provision, as it stood at the material
time, was as follows :
"S. 5(1) A public servant is said to commit
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the offence of criminal misconduct in the
discharge of his duty-
(d)if he, by corrupt or illegal means or by
otherwise, abusing his position as public
servant, obtains for himself or for any other
person any valuable thing or pecuniary
advantage."
By the Central Act 40 of 1964 the words "in the discharge of
hi,, duty" were omitted. This Court has, however, taken the
view in Dhaneshwar Narain Saxena v. Delhi Administration(1),
overruling an earlier decision that in order to constitute
an offence under clause (d) of s.5(1) of the Corruption Act
it is not necessary that the public servant while
misconducting himself should have done so in the discharge
of his duty. Section 2 of this Act provides that for its
purposes "public servant" means a public servant as defined
in s.21 of the Indian Penal Code. Dwivedi while. committing
the offence under s. 5 (1) (d) had two positions-. (1) he
was a lecturer in a Government College and (2) he was’ an
examiner appointed by the Gujarat University for doing
examination work on remuneration paid by the University. As
a lecturer in Government College he certainly fell within
the definition of "Public servant" but the act of corruption
attributed to him was in his capacity as, an examiner. A
question at once. arises is whether s.5(1)(d) will apply to
case of a Government servant who commits an act punishable
under the said provision even though when the act is
committed by him he is holding a different position which is
not that of a Government servant and in which capacity alone
he could fall within the definition of a "public servant."
The High Court proceeded on the basis that for the purpose
of the opening, Part of s.5 (1 ) of the Corruption Act
Dwivedi must be held to be a public servant. It was held
that his case did not fall within the clause (d) as he, did
not abuse his Position as a public servant although the
means employed, were corrupt and illegal.
The argument on behalf of the State is that even if Dwivedi
was not punishable under s.161 of the Indian Penal Code with
reference to the work in respect of which he accepted an
illegal certification he would nevertheless be liable under
s.5(1)(d) of the Corruption Act because the liability of a
public servant has been made absolute and it is wholly
immaterial in what capacity he has committed the offence
under sub-clause (d) of s.5(1) of the
(1) [1962] 3 S.C.R. 259.
322
Corruption Act. He need not have obtained for himself any
valuable thing, or pecuniary advantage, as a public servant.
Once he is a Government servant and thus falls within the
definition of a public servant and if he uses corrupt or
illegal means for obtaining a valuable thing, or pecuniary
advantage he commits an offence as contemplated by
s.5(1)(d). It need not further be proved that he abused his
position as a public servant.
We may refer to the previous decisions of this, Court
relating to the interpretation of s.5(1)(d) of the
Corruption Act. In Dhaneshwar Narain Saxena v. Delhi
Administration(1) Saxena, who was an Upper Division Clerk,
was approached by one Ram Narain, a fireman serving in the
Delhi Fire Brigade, for assistance in obtaining a license
for a double barreled shot gun which was, in fact obtained.
Saxena was paid certain amount and promise was made to pay
him more. Ram Narain had made a false declaration with
regard to his salary in the application for the license. His
allegation was that he had done so on the advice of Saxena.
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As Ram Narain’s license had been cancelled it was alleged
thathe again approached Saxena who demanded some amounts
for helping him in the matter of restoration of the license.
Ultimately a trap was laid and Saxena was caught while the
money was being handed over to him. The main argument in
this case centered on the question whether Saxena had
committed any misconduct in the discharge of his duty.
Overruling the earlier decision of this Court in the State
of Ajmer v. Shivji Lal(2) it was held that it was not
necessary to constitute the offence under clause (d) of s. 5
(1) that the public servant must do some thing in connection
with his own duty and there by obtain any valuable thing or
pecuniary advantage. It observed that "it was equally wrong
to say that if a public servant were to take money from a
third person by corrupt or illegal means or otherwise
abusing his official Position in order to corrupt some other
public servant without there being any question of his
misconducting, himself in the discharge of his own duty he
has not committed an offence under s. 5 (1) (d). It is also
erroneous to hold that the essence of an offence under s. 5
(2 ) read with s. 5 (1) (d) is that the public servant
should do some thing in the discharge of his own duty and
thereby obtain valuable thing or pecuniary advantage." No
such question was argued or decided in that case whether for
the commission of an offence under s. 5 (1 ) (d) abuse of
position as a public servant was of the essence or the
essential ingredient of the offence. It is noteworthy that
the High Court had, on. the evidence produced by the
prosecution, come to the conclusion that Saxena taking
advantage of his own position as an employee in the Chief
Commissioner’s Office and Ram Narain’s ignorance and anxiety
to get the license, had induced him to part with the money
on
(1) [1962] 3 S.C.R. 259.
(2) [1959] Suppl. 2 S.C.R. 739.
323
the promise that he would get the license restored. It
appears, therefore, that it was in that background that the
decision of this Court was given. The case of M. Narayanan
Nambiar v. State of Kerala() was clearly one in which there
had been abuse by a Government servant of his. position as a
public servant. The court referred to the preamble which
indicates that the Corruption Act was passed as it was
expedient to make more effective provisions for the
prevention of bribery and corruption by public servants. The
addition of the word "corruption" showed that the
legislation was intended to combat other evils in addition
to bribery. The argument on behalf of the accused in that
case proceeded on the basis that clause (d) would take in
only the case of direct benefit obtained by a public servant
for himself or for any other person from a third party in
the manner prescribed (herein and did not cover the case of
wrongful loss caused to the government by abuse of his
power. While analysing s.5 (1) (d) it was said
"Let us look at the clause "by otherwise
abusing the position of a public servant", for
the argument mainly turns upon the said
clause. The phraseology is
very comprehensive. It covers acts done
"otherwise" than by corrupt or illegal means
by an officer abusing his position. The gist
of the offence under this clause is that a
public officer abusing his position as a
public servant obtains for himself or for any
other person any valuable thing or pecuniary
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advantage. "Abuse" means misuse i.e. using
his position for something for which it is not
intended. That abuse may be by corrupt or
illegal means or otherwise than those means.
The word "otherwise" has wide connotation and
if no limitation is placed on it, the words
"corrupt", "illegal" and "otherwise" mentioned
in the clause become surplusage, for on that
construction every abuse of position is
gathered by the clause. So some limitation
will have to be put on that word and that
limitation is that it takes colour from the
preceding words along with which it appears in
the clause, that is to say something savouring
of dishonest act on his part."
The court entertained no doubt that every benefit obtained
by the public servant for himself or for any other person by
abusing his position as a public servant fell within the
mischief of the said clause.
Although in the above decision the question whether the
words "abusing his position as a public servant" qualify the
word "Otherwise" or also the words "corrupt or illegal
means" in s. 5 (1) (d)
(1) [1963] Suppl. 2 S.C.R. 724.
324
was not discussed directly, the observations made seem to
indicate that the word "Otherwise" refers to means other
than corrupt or illegal by which a public servant may abuse
his position. There are two ways of looking at the clause
on is that the words "corrupt or illegal means" stand by
themselves and as soon as it is established that a public
servant has by such means obtained any valuable thing or
pecuniary advantage he will be guilty of the offence. The
other way of reading this clause is by confining the words
"by otherwise" to the means employed. Thus the means
employed may be corrupt or illegal or may be of such a
nature as would savour of a dishonest act. But the abuse of
position as a public servant would be essential whether the
means are corrupt or illegal or are of the nature covered by
the word " otherwise". The analysis of clause (d) made in
Narayanan Nambiar’s(1) case by Sabha Rao J. (as he then was)
seems to lend support to the view, taken by the High Court
that the abuse of position as a public servant is essential.
The reasoning of the High Court proceeds on these lines.
The second part of cl. (d) relating to the obtaining of the
valuable thing etc. relates to the object of the public
servant, namely, the obtaining of a bribe. The first part
concerns the manner of achieving that object. "The manner
is the use of means and use of position. As to the use of
means the clause expressly mentions corrupt or illegal but
the legislature does not want to limit itself to these means
only and so goes on to use the word "otherwise." If the
meaning to be given to the word "otherwise" is, as earlier
stated, the words "by corrupt or illegal means" or "by
otherwise" form a single clause and do not form two clauses.
If that is so the abuse of position as a public servant that
is referred to is the abuse by corrupt or illegal means or
by otherwise." The High Court also relied on the analysis of
s. 5 (1) (d) contained in Ram Krishna & Another v The State
of Delhi (2) , where it was pointed out that the offence
created thereby is of four kinds. Bribery as defined in
s.161 of the Indian Penal Code, if it is habitual, falls
within clause (a). Bribery of the kind specified in s. 1
65, if it is habitual, is comprised in clause (b) Clause (c)
contemplates criminal breach of trust by a public servant.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
For that s. 405 of the Indian Penal Code has to be looked
at. An argument was advanced in that case that clause (d)
seems to create an independent offence distinct from simple
bribery. This is what the court observed:--
"In one sense, this is no doubt true but it
does not follow that there is no overlapping
of offences. We have primarily to look at the
language employed and give effect to it. One
class of cases might arise where corrupt or
illegal means are adopted or pursued by the
public servant to gain for himself a pecuniary
advantage-.
(1) [1963] Supp, 2 S.C.R. 724.
(2) [1956] S.C.R. 182.
325
The word "obtains" on which much stress was
laid does not eliminate the idea of acceptance
of what is given or offered to be given,
though it connotes also an element of effort
on the part of the receivers One may accept
money, that if offered, or solicit payment of
a bribe, or extort the bribe by threat or
coercion; in each case, lie obtains a
pecuniary advantage by abusing his position as
a public servant."
Thus in clauses (a), (b) and (c) the abuse of position as a
public servant is clearly implied. Clause (e) also carries
the same implication. It would, therefore, be reasonable to
put on clause (d) a construction which is consistent with
the other clauses of the sub-section. According to the,
High Court such a construction would also keep, the offence
within the limitation and the object of the Act. The abuse
of the position would be the necessary ingredient of the
offence; the abuse being either by corrupt or illegal means
or by other means of the nature mentioned in Narayanan
Nambiar’s(1) case.
Counsel for the State has. not been able to satisfy us that
the various reasons given by the High Court as also the
observations made in the previous judgments of this Court
are not sufficient to sustain the construction or
interpretation of s. 5 (1) (d) which commended itself to the
High Court.
As Dwivedi was not a public servant when he was acting as an
examiner it could not be said that there had been any abuse
by him of his position as a public servant. It was never
the case of the prosecution that he had been guilty of any
abuse of his position as a lecturer of the Government
College. If Dwivedi was not guilty, Thakkar could not be
held to be guilty of the offences with which he was charged.
We would accordingly uphold the decision of the High Court
and dismiss both the appeals.
G.C. Appeals dismissed.
326