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PETITIONER: M. NARAYANAN NAMBIAR

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT: 05/12/1962

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1963 AIR 1116            1963 SCR  Supl. (2) 724  CITATOR INFO :  R          1973 SC 330  (13,14)  RF         1975 SC1835  (14)  R          1977 SC 822  (8)  R          1979 SC 826  (20,21)  RF         1990 SC1480  (54)

ACT: Prevention  of Corruption-Public servant-Abuse  of  official position-Violation   of  principles  of   natural   justice- Prevention  of  Corruption Act, 1947 (2 of 1947), s.  5  (1) (d).

HEADNOTE: The appellant was convicted under s.5(1)(d)of the Prevention of  Corruption Act, 1947, on the ground that by abusing  his position  as a public servant he obtained an  assignment  of Government  land in the name of his  brother-in-law  without revealing  the  relationship and by undervaluing  the  trees standing  on  the land.  The High Court on  appeal  directed that a statement showing the value of the timber  calculated on the basis contended by the appellant may be submitted  by either  of  the  parties.  The appellant did  not  file  any statement  but  a  statement  was filed  on  behalf  of  the prosecution.   The High Court without giving an  opportunity to  the appellant to file objections to the  correctness  of the report and the reliability of the statement filed by the prosecution  relied  upon  the  statement  to  come  to  the conclusion  that  there had been an under-valuation  by  the appellant.  It was contended that s. 5(1) (d) did not  apply to the case and that before the High Court there had been  a failure of natural justice. Held,  that a penal statute must be construed  strictly  and only such thing,; are offences as come within not merely the letter but also the spirit of the statute. Dyke, v. Elliot, (1872) L.R. 4 P.C. 184, referred to. Held, further, that considering the object and scope of  the Prevention   of   Corruption  Act,  1947,   the   expression otherwise’  in  s. 5(1) (d) is employed to  bring  in  every abuse  of  official position by a public servant.   But  the juxtaposition of the word otherwise with the words ’corrupt’

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or ’illegal means’ and the fact that dishonesty is  implicit in  the word ’abuse’ indicate the necessity for a  dishonest intention as an ingredient of the offence and innocuous acts will not be covered by the said clause. 725 Held,  further,  that  the spirit of the Act  which.  is  in accord with the words used therein is to take in every  form of  corruption,  and  the  facts  in  the  instant  case  if established constitute an offence under. v. 5(1)(d). Ram  Krishna  v.  State  Of Delhi,  [1956]  S.C.R.  182  and Dhaneshwar  Narain Saxena v. Delhi Administration, [1962]  3 S.C.R, 259, referred to. Held,  also   that  before the High Court,  there  had  been violation of the principles of natural justice and that  the matter  had to go back to the High Court for  the  appellant being  given an opportunity to meet the material put  in  by the prosecution before the High Court.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 155  of 1961. Appeal  by, special leave from the judgment and  order  date April  10, 1961 of the Kerala High Court in Criminal  Appeal No. 143 of 1960. B.   R.   L.  Iyengar  and  T.  S.  Venkataraman,  for   the appellant. V.   Narayana Menon and Sardar Bahadur, for. the respondent. 1962.   December 5. The judgment of the Court was  delivered by SUBBA  RAO  J.-This  appeal by special  leave  is  preferred against the Judgment of the High Court of Kerala, confirming that  of  the  Special judge,  ,Trivandrum,  convicting  the accused  under  s.  5(2),  read  with  s.  5(1)(d)  of   the Prevention  of Corruption Act, 1947,(2 of  1947),  hereafter called  the Act, and sentencing; him; to pay a fine  of  Rs. 1,0001-,  or in default to undergo simple  imprisonment  for four months. The  appellant  was, a Special Revenue  Inspector  for  land assignment  at Manantoddy in Wynad Taluk in the old  Malabar district. 726 The  case  of the prosecution was that he,  by  abusing  his position  as a public servant,, got 4 acres and 80 cents  of Government  land  in  R  S. No  376/2  of  Tavinhal  village assigned in the name of his brother-in-law P. V.  Gopinathan Nambiar without revealing the fact that he was his  brother- in-law  and by making false entries in the relevant  records showing that the said land contained only 97 trees valued at Rs. 165/-, whereas the land had actually 150 trees worth Rs. 1450/-.   The suppression of the fact that the assignee  was his brother-in-law and the underestimate of the value of the land were dishonestly made to circumvent the rules governing the assignment of lands to landless poor. The Special judge and on appeal the High Court held that the appellant  dishonestly  underestimated the  extent  and  the value of the trees in the said land with a view to help  his brother-in-law  and  thereby committed an offence  under  s. 5(2), read with s.  1(4) of the Act.  Hence the appeal. Learned counsel for the appellant raised before us 2  points : (1) Section 5(1)(a) of the Act does not apply to a case of wrongful loss caused to Government by a public  servant  who by deceit induced it to part with its property    : (2)  The High Court acted erroneously in relying      upon  a  report

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dated April 5, 1961, made by the   district Forest  Officer, Kozhikode, filed by the public     prosecutor   after    the appeal   was  reserved  for  judgment  without   giving   an opportunity  to the appellant to file objections thereto  or contesting the correctness of the valuation given therein. As  the  first contention turns upon, the provisions  of  s. 5(1), it will be convenient to read the same,               5.    (1)  A public servant is said to  commit               the  offence  of criminal  misconduct  in  the               discharge of his duty-               (a)   if he habitually accepts or obtains or               727               agrees  to accepts to obtain from  any  person               for  himself    if  or for any  other  person,               gratification (other than legal  remuneration)               as a motive or reward such as is mentioned  in               s.    161 of the, Indian Penal Code, or               (b)    if he habitually accepts or obtains or’               agrees  to  accept or attempts to  obtain  for               himself or for any other person, any               valuable thing without consideration or for  a               consideration which he knows to be inadequate,               from any person whom he knows to have been  or               to be, or to be likely to be concerned in  any               proceeding or business transacted or about  to               be   transacted.   by  him,  or   having   any               connection  with  the  official  functions  of               himself or of any public servant to whom he is               subordinate, or From any’ person whom he knows               to  be interested in or related to the  person               so concerned, of               (c)   if  he dishonestly or fraudulently  mis-               appropriates or otherwise converts for his own               use any property entrusted to him or under his               control  as  a public servant  or  allows  any               other person so to do, or               (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  advan-               tage. We are concerned in this case with 5(1)(d)  of the act Under that" clause it a public servant by corrupt or illegal means or  by  otherwise  abusing his position  as  public  servant obtains for, himself or for any other person valuable thing, or  pecuniary  advantage,  he will  be  guilty  of  Criminal misconduct,  punishable  under  s.  5(2)  of  the  Act  with imprisonment  for  a term which shall not be less  than  one year  and  which may extend to 7 years, and  shall  also  be liable to fine. 728 The  learned counsel contends that clause (d) being a  penal provision,  shall  be  strictly construed- and  that  if  so construed,  it  would only take in cases of  direct  benefit obtained  by a public servant for himself or for  any  other person  from a third party in the manner  described  therein and  does not cover a case of a wrongful loss caused to  the Government by abuse of his power. This  conclusion,  the argument proceeds, flows  from  three circumstances.  (1) The benefit obtained in clause (b)  must be similar to that provided for in clauses (a) & (b) 14  e., benefit  obtained  from  a  third party;  (2)  The  case  of wrongful  loss to the Government is provided by  clause  (c) and any other loss which does not fall within that clause is outside  the  scope  of the section;  (3)  Though  the  word

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"obtains’  has  a wide meaning in the setting  in  which  it appears in clause (d)    but  in view of the fact  that  the same word used in  a limited sense in is used in  a  limited sense  in   clauses (a) & (b), it should be given a  limited meaning,  namely, "gets a benefit from a third  party".   It takes colour from the same word used in clauses (a) &  (b).. He  finally contends that the construction he is seeking  to put forward for our acceptance fits in the general scope and scheme of the Act and that the Legislature intended to leave the losses caused to the Government by the deception  caused by  its public servant to be dealt with in  accordance  with the provisions of the Indian Penal Code or other appropriate laws.  At the outset we may say that the argument is  rather subtle  but on a deeper scrutiny of the provisions  and  the clear phraseology used therein, we find that the  contention is not sound. Before  we construe the, relevant provisions of the  section in  the  light  of the criticism  levelled  by  the  learned counsel,  it will be useful and convenient to  know  briefly the scope and the object of the Act.  The long title of  the Act reads: 729 ’An  Act  for the more effective prevention of  bribery  and corruption’. The  preamble  indicates that the Act was passed as  it  was expedient   to  make  more  effective  provision   for   the prevention  of  bribery and corruption.  The long  title  as well as the preamble indicate that the Act was passed to put down  the said social evil i. e. bribery and  corruption  by public servant.  Bribery is a form of corruption.  The  fact that   in   addition  to  the  word   "bribery"   the   word "’corruption"  is  used  shows  that  the  legislation   was intended to combat also other evils in addition to  bribery. The  existing law i.e. Penal Code was found insufficient  to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country.  The provisions  broadly include the existing offences under  ss. 161  &  165  of the Indian Penal Code  committed  by  public servants  and  enact  a new  rule  of  presumptive  evidence against the accused.  The Act also creates a new offence  of criminal misconduct by public servants though to some extent it  overlaps  on  the pre-existing  offences  and  enacts  a rebuttable presumption contrary to the well-known principles of  Criminal Jurisprudence.  It also aims to protect  honest public  servants  from harassment by  prescribing  that  the investigation  against  them could be made  only  by  police officials of particular status and by making the sanction of the  Government or other appropriate officer a  precondition for  their prosecution.- As it is a socially useful  measure conceived  in  public  interest,  it  should  be   liberally construed  so as to bring about the desired object. i.e.  to prevent  corruption  among public servants  and  to  prevent harassment of the honest among them. A decision of the judicial Committee in Dyke v. Elliot,  (1) cited  by  the learned counsel as an  aid  for  construction neatly  states the principle and therefore may be  extracted :-Lord justice James speaking (1)  (1872) L. R. 4 P. C. 184,191. 730 for the Board observes at P. 191               "No  doubt  all  penal  Statutes  are  to   be               construed strictly, that is to say, the  Court               must see that the thing charged as an  offence               is within the plain meaning of the words used,               and  must not strain the words on  any  notion

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             that  there  has been a slip, that  there  has               been  a  casus omissus, that the thing  is  so               clearly  within,  the mischief, that  it  must               have  been intended to be included  and  would               have  been  included if thought  of.   On  the               other hand, the person charged has a right  to               say  that the thing charged,  although  within               the  Words,  is not within the spirit  of  the               enactment.   But  where the thing  is  brought               within the words and within the spirit,  there               a  penal. enactment to be construed, like  any               other   instrument,  according  to  the   fair               common-sense meaning of the language used, and               the Court is not to find or make any doubt  or               ambiguity in the language of a penal  statute,               where  such doubt or ambiguity  would  clearly               not  be found or made in the same language  in               any other instrument." In  our  view this passage, if we may say so,  restates  the rule  of  construction of a penal provision from  A  correct perspective.   As  we will presently show the  case  of  the appellant  on the facts found clearly falls not only  within the words of clause (d) but also within ’its spirit.  Indeed if  his  argument  be accepted not only  we  will  be  doing violence to the language but also to the     spirit  of  the enactment.  First taking        the phraseology used inthe clause, the case of a    public servantcausing     wrongful loss; to the Government     be benefiting      a thirdparty squarely  falls  within it. 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  731 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 advantage.   "Abuse"  means misuse  1. 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 contention  of  the learned counsel that if  the  clause  is widely  construed  even a recommendation made  by  a  public servant  for securing a job for another may come within  the Clause  and  that could not have been the intention  of  the Legislature.   But in our view such innocuous acts will  not be  covered  by the said clause.  The juxtaposition  of  the word or otherwise’ with the words "corrupt or illegal means" and  the dishonesty implicit in the word  "’abuse"  indicate the necessity for a dishonest intention on his part to bring him  within ,the meaning of the clause.  Whether  he  abused his position or not depends upon the facts of each case; nor can the word ’obtains’ be sought in aid to limit the express words of the section.  ’Obtain’ means acquire or get.  If  a corrupt  officer by the said means obtains a valuable  thing or a pecuniary advantage, he can certainly be said to obtain the said thing or a pecuniary advantage; but it is said that

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in clauses () & (c) the same word is used and in the context of those clauses it can only mean getting from a third party other  than  the Government and therefore the  game  meaning must be given to the said word in clause (d).  "Obtains’  in clause 732 (a)  &  (b)  in  the context of those  provisions  may  mean taking  a bribe from a third party, but there is  no  reason why  the same meaning shall be given to that word used in  a different context when that word is comprehensive enough  to fit in the scheme of that provision.  Nor can we agree  that as dishonest misappropriation has been (c), the other  cases of  wrongful loss caused Government by the deceit  practiced by a public officer should fall outside the section.   There is no reason why when a comprehensive statute was passed  to prevent  corruption, this particular category of  corruption should have been excluded therefrom because the consequences of  such acts are equally harmful to the public as  acts  of bribery.   On a plain reading of the express words  used  in the clause, we have no doubt that every benefit obtained  by a  public servant for himself, or for any other  person,  by abusing  his position as a public servant falls  within  the mischief of the said clause.. Coming  to the spirit of the provision, there cannot be  two views.  As we have expressed earlier, the object of the  Act was  to make more effective provision for the prevention  of bribery  and  corruption.  Bribery means the  conferring  of benefit by one upon another, in cash or in kind, to  procure an  illegal  or  dishonest action in favour  of  the  giver. Corruption includes bribery but has a wider connotation.  It may  take in the use of all kind of corrupt practices.   The Act.  was brought in to purify public administration.   When the Legislature used comprehensive terminology in s. 5(1)(d) to achieve the said purpose, it would be appropriate not  to limit  the  content by construction  when  particularly  the sipirit  of  the statute is in accord With  the  words  used therein, Two decisions of this court cited at the Bar indicate that a wide   construction  was  placed  by  this  Court’  on   the provisions of s. 5(1)(d) of the Act. 733 In  Ram  Krishan v. The State of Delhi, (1)  the  appellants were prosecuted for offering bribe to a Railway Officer  for hushing  up  the case against them.  In that context,  s.  5 (1)(d)   was   construed   by   this-court.    At   p.   188 Chandrasekhara  Ayyar, J., speaking for the court  made  the following observation:               "Apart  from ’corrupt and illegal  means’,  we               have  also the words ’or by otherwise  abusing               his  position as a public servant.  If  a  man               obtains a pecuniary advantage by the abuse  of               his  position,  he will be guilty  under  sub-               clause (d). Sections 161, 162 & 163 refer to a               motive or a reward for doing or forbearing  to               do  something, showing favour or disfavour  to               any  person, or for inducing such  conduct  by               the exercise of personal influence.  It is not               necessary  for an offence under clause (d)  to               prove  all this.  It is enough if  by  abusing               his position as a public servant a man obtains               for himself any pecuniary advantage,  entirely               irrespective of motive  or reward for  showing                             favour or disfavour." This  Court again in Dhaneshwar Narain Saxena v.  The  Delhi Administration.  (2)  pointed  the wide  net  cast  by  this

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provision  in  order  to put  down  corruption.   There  the appellant  was an Upper Division Clerk in the office of  the Chief Commissioner of Delhi.  He knew one Ram     Nara   who was a fireman serving in Delhi FireBrigade, The  latter sought the assistance of the aappellant who had nothing to  do with the issuing of licences of fire-arms  which  was done by the ’Office of the Deputy Commissioner, Delhi.   The appellant took a bribe in order to get the licence for  him. It  was argued that as it was not the duty of the  appellant to  issue licences or do something in connection  therewith, he,  did not commit any offence within the meaning of  s.  5 (1)(d) of the Act.  This (1)  [1956] S.C.R. 182. (2) [1962] 3 S.C.R. 259 734 Court  rejected his contention.  Sinha, C.J.,  speaking  for the  Court  observed at p. 198: "The  legislature  advisedly widened  the scope        of the crime by giving     a  who, holding public office and taking advantage of their position obtain any valuable thing or pecuniary advantage." The  observations made by this Court in the above two  cases though  made in a different context show  the  comprehensive nature  of the said provision.  We therefore hold  that  the accused  in order to assign the land to  his  brother-in-law underestimated  the value of the said land to  conform  with the  rules  and  thereby abused his  position  as  a  public servant and obtained for him a valuable thing or a pecuniary advantage  within  the  meaning  of  the  said  clause   and therefore is guilty of an offence under sub.-s. (2) thereof. It  is next contended that the said finding was vitiated  by the  fact  that the High Court in arriving  at  the  finding relied upon a valuation list prepared by the District Forest Officer  and filed into court without giving an  opportunity to the appellant to canvass its correctness’.- The  admitted facts relevant to the argument may be stated.  The arguments in the appeal were concluded on March 22, 1961.  On April 6, 1961,   the  Public  Prosecutor  filed  a   Valuation   list purporting to have been made by the District Forest Officer, Kozhikode.   No  notice  of  this  list  was  given  to  the appellant and therefore he did not file any objections.   On April 10, 1961, the High Court delivered the judgment basing its  finding  on the said Valuation list and  rejecting  the appeal.  Before the Special Leave was granted by this court, a  report was called for from the High Court with regard  to the  said  facts.  The report sent by the  Registrar  is  as follows :-               "The   learned  Counsel  for   the   appellant               contended before the High Court that the               735               method  of calculation adopted by P.W.  15  in               assessing  the  value of the  timber  was  not               correct  and that the following method  should               have been adopted viz., in the case of  timber               trees  to calculate the value of each tree  at               the rate given in the Madras Forest Manual for               that  particular species, and for fuel  trees,               to  calculate the value at the  official  rate               for  cart  load  fixed  by  the   Government.’               Thereupon  the  Court directed in  open  court               that  a  statement showing the  value  of  the               timber calculated    by  the above method  may               be submitted by either  of  the  parties.   No               statement-was filled by the appellant’s ounsel               and  on 6-4-1961 the State filed a  statement.               Since  the statement was meant only to  assist

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             the Court in calculating the correct value  of               the  timber along the lines suggested  by  the               appellant’s counsel the matter was not  posted               for further argument." The  appellant denied in his affidavit filed before us  that any direction was given by the court before the judgment was reserved but the Public Prosecutor filed an affidavit to the effect that such a statement was made in the open court.  We have no reason to reject the report of the Registrar and the affidavit filed by the Public Prosecutor.  Even so, the fact remains  that the learned judge acted upon a document  filed by  the  respondent  without given  an  opportunity  to  the appellant to file objections or to contest its  reliability. We  think the principles of natural justice require that  no court  shall  give  a finding whether on  fact  or  law  and particularly  on facts without giving an opportunity to  all the  con;testing  parties.   As  that  principle  has   been violated  in this case, we have no option but to  set  aside the  finding  of the learned judge on the  question  of  the valuation  of  the  trees  on  the  plot  assigned  to   the appellant’s brother-in-law.We therefore set aside 736 this finding and request the High Court to submit a  revised finding  on  the said question within two  months  from  the receipt  of the record.  The respondent may file  a  further statement  if I e so chooses to explain or even  to  correct the  valuation  list  already filed by  it.   Thereafter  an opportunity  will  be  given to the appellant  to  file  his objections.   The objections filed by the appellant in  this Court  may be also considered by the High Court.   The  High Court  will  submit the finding on the evidence  already  on record  including the said objections and  statements.   The parties may file objections to the finding within two  weeks from the date the said And is received.  The appeal will  be posted  as early as possible after objections are  filed  or after   the  expiry  of  the  time  given  for  filing   the objections. Case remitted for submission of fresh finding.