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PETITIONER: DHANESHWAR NARAIN SAXENA

       Vs.

RESPONDENT: THE DELHI ADMINISTRATION

DATE OF JUDGMENT: 24/08/1961

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. SARKAR, A.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1962 AIR  195            1962 SCR  (3) 259  CITATOR INFO :  R          1963 SC1116  (12)  R          1968 SC1323  (8)  R          1969 SC  17  (18)  E          1973 SC 330  (11,13)  R          1976 SC1497  (21)

ACT: Prevention of Corruption--Public servant--Misconduct, not in the   discharge  of  one’s  duty--Corrupting  other   public servant--Criminal         Misconduct--Ingredients         of offence--Prevention of Corruption Act, 1947 (2 of 1947)  ss. 5 (1) (d), 5 (1) (d).

HEADNOTE: The appellant who was an Upper Division Clerk in the  office of  the  Chief  Commissioner of Delhi was  convicted  of  an offence  under s. 5 (1) (d) of the Prevention of  Corruption Act,  1947,  punishable  under s. 5 (2)  of  the  Act.   The prosecution  case  was that R who was anxious  to  obtain  a licence   for   a  double-barralled  shot-gun   sought   the assistance of the appellant who knew him, that the appellant who  had  nothing  to do with the issuing  of  licences  for firearms  which  was  done  by  the  office  of  the  Deputy Commissioner  offered to use his good offices in  expediting and furthering the progress of R’s application for a licence in  the appropriate department if he was paid Rs.  250/  and that when the licence was cancelled on its being found  that R  was not entitled to it the appellant promised to have  it restored  if  he was paid a further sum of Rs.  180/-.   The trial judge found that the appellant taking advantage of his position  as an employee in the Chief Commissioner’s  office and  of  R’s ignorance and anxiety to get the  licence,  had induced  him to part with the money on the promise  that  he would  get his licence restored. The appellant pleaded  that on the facts  found no offence under s. 5(1) (d) of the  Act had  been Made out and relied on state of Ajmer  v.  Shiviji Lal , (1959) Supp. 2 S. C. R. 739. 260 Held,  that in order to constitute an offence under cl.  (d)

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of s. 5 (1) of the Prevention of Corruption Act, 1947, it is not  necessary  that the public servant in  question,  while misconducting himself, should have done so in the  discharge of  his  duty, and that the decision in State  of  Ajmer  v. Shivji Lal. (1959) Supp. 2 S. C. R. 739, to the contrary, is wrong. If  a  public servant takes money from a  third  person,  by corrupt  or illegal means or otherwise abusing his  official position, in order to corrupt some other public servant,  he commits an offence under s. 5 (1) (d), even though there was no question of his misconducting himself in the discharge of his own duty.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal No. 6  of 1959. Appeal  by special leave from the judgment and  order  dated the  February  4, 1957, of the Punjab  High  Court  (Circuit Bench) at Delhi in Criminal Appeal No. 173-C of 1956. T.   C.  Arathur,  P.  C. Mathur and A. N.  Goyal,  for  the Appellants. B.   K. Khanna and T. M. Sen, for the Respondents.     1961. August 24. ;,The Judgment of the Court was delivered by SINHA, C. J.-This appeal was first heard by a Division Bench of  three  judges, composed of the Chief Justice,  Imam  and Shah, JJ., on the 19th of February last year.  In the course of  the  argument,  the learned counsel  for  the  appellant invited  the  attention of the Court to the  decision  of  a Division Bench of this Court in the State of Ajmer v. Shivji Lal (1).  The Bench hearing the case, being of opinion  that the    decision   aforesaid   of   this    Court    required reconsideration,  referred the case to a larger  bench,  and that is how it has come before US. It  is  necessary to state the following facts in  order  to bring  out  the question of law to be  determined  in.  this case.   The  appellant was an upper Division  Clerk  in  the office of the Chief Commissioner of Delhi.  ’He had come  to know (1)  [1959] Supp. 2. S.C.R. 739. 261 Ram  Narain,  who is the chief prosecution witness  in  this case  and  who is a fireman serving in Delhi  Fire  Brigade. Ram  Narain, aforesaid, had for a long time been anxious  to obtain  a  licence for a double-barrelled  shotgun.   It  is alleged that in this connection he bad sought the assistance of  the appellant who had nothing to do with the issuing  of licences  for firearms, which is done by the office  of  the Deputy  Commissioner, Delhi.  The prosecution story,  which, as  indicated  above, rests mainly on the statement  of  Ram Narain,  is that he had submitted ’two  applications  during the  year  1953 for the, purpose of  obtaining  the  licence aforesaid,  with  the assistance of  the  appellant.   These applications did not produce any results.  In .1954, he made another  attempt  in the same direction and  approached  the appellant  to  help him.  The appellant held  out  hopes  of success  in  obtaining the licence if he was paid  Rs.  250. Ram  Narain paid only Rs. 140 and held out a promise to  pay the               amount after his sister’s marriage.  Thus, the third application for the licence was made in which Rain Narain’s salary was declared to be Rs. 105 per month.   This third  attempt proved successful and Ram Narain was  granted the necessary licence.  Before the: learned single Judge  of the  High Court in Delhi, before whom the case came,  up  on

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appeal, it was not disputed that the appellant had used  his good  offices in expediting and furthering the  progress  of the  application in the appropriate department.  It  appears that eventually the authorities concerned were appraised  of the  fact that the salary of Ram Narain was only Rs. 85  per month  and that the declaration in the form that his  salary was  Rs. 105 per month bad been falsely made with a view  to get  over the difficulty that applications for licences  for firearms  by Government servants drawing less than  Rs.  100 per  month  would not ordinarily be  considered.   When  the authorities came to know- the true facts about Ram  Narain’s status in Government service.                             262 his  licence  was cancelled and he was called upon  to  show cause  why  he should not be prosecuted for  having  made  a false statement.  Ram Narain made his representation to  the authorities and showed cause against the action proposed  to be  taken against him, alleging that his monthly salary  had been falsely declared in the ’relevant form for  application for  the  firearm  on  the advice  of  the  appellant.   The prosecution  story further is that when Ram Narain got  into the trouble, as aforesaid, about the false statement in  his application  form, he again approached the  appellant.   The appellant’  demanded  another Rs. 180 as a  reward  for  his getting the licence restored.  Ultimately, Ram Narain agreed to  pay the appellant Rs. 90 in advance and promised to  pay the  remaining  Rs. 90 after the licence had  actually  been restored  to  him.   Ram  Narain for  reasons  of  his  own, appeared  to have approached his superior officers and  thus the matter reached the Chief Fire Officer, who appraised the police  of  the  proposed illegal  transaction  between  Ram Narain and the appellant.  The police decided to lay a  trap for  catching  the appellant red-handed.   Accordingly,  Ram Narain saw the appellant in the Chief Commissioner’s  office and  accompanied him to the canteen run by  Kishorilal,  who has  been  examined  as Defence Witness 1  This  canteen  is situated  on the Alipore Road near the Chief  Commissioner’s office.   There,  Sarwan  Singh  a  taxi  driver,  and  Head Constable  Gurbachan  Singh  in  plain  clothes,  who   were examined   as   prosecution  witnesses,  were   present   by arrangement.   Ram  Narain handed over  the  ninety  rupees, which he had been given by the police, to the appellant.  On the   prearranged  signal  being  given  by  Sarwan   Singh, Inspector Surendra Pal Singh Prosecution Witness 16, at once entered the canteen.  At that time the appellant, suspecting that he was being trapped, attempted to hand over the  money received   by  him  from  Ram  Narain  to  Kishorilal,   the proprietor of the canteen The head constable Gurbacban                             263 Singh,  however, seized the accused and prevented  him  from handing over the currency notes to Kishorilal.  That is  the story  which  was recited in the  First  Information  Report drawn  up in the.  Civil Lines Police Station at  2-30  P.m. that  very  day, August 5, 1954.  After investigation  by  a competent   police  officer  tinder  permission   from   the Magistrate,  the  appellant was placed on his  trial  before Shri  Jawala.   Dass, Special Judge Delhi.   He  framed  the following charge against him.               I,  Jawala Dass, Special Judge, Delhi,  hereby               charge  you  (Dhaneshwar Narain) son  of  Babu               Lakshmi Narain resident of 21, Todar Mal Lane,               New Delhi as follows:               That  you on or about 5th August 1954  in  the               canteen  on  6, Alipore Road, being  a  public               servant  employed in the office of  the  Chief

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             Commissioner,  Delhi  by corrupt  and  illegal               moans  and by otherwise abusing your  position               as  a public servant obtained for  yourself  a               sum of Rs. 90 from Ram Narain at the aforesaid               Canteen  for the restoration of his  cancelled               licence for the double-barrelled gun which had               been originally grant to him, by the  District               Magistrate  Delhi  and  thereby  committed  an               offence  u/s 161 I.P.C. or in the  alternative               u/s   5(1)(d)  punishable  u/s  5(2)  of   the               Prevention of Corruption Act, which is  within               my cognizance.               And I hereby direct that you be tried by  this               Court for the aforesaid offences mentioned  in               the charge". The  learned Judge came to the conclusion that the  evidence produced  by the prosecution brought the charge home to  the accused,  and that the accused, taking advantage of his  own position as an employee in the Chief Commissioner’s  office, and  of  Ram  Narain’s ignorance and  anxiety  to  ’get  the licence  had induced him to part with the money on the  pro- mise that he will get his licence restored.  He also 264 found  that at the time of making this demand the  appellant had not told Ram Narain that he wanted the money for someone who  was  in  a  position to  issue  the  licence  and  that therefor, the case did not fall within s. 161 of the  Indian Penal  Code.  On that reasoning he convicted  the  appellant under s.5(1) (d) punishable under s. 5 (2) of the Prevention of Corruption Act (If of 19 7) hereinafter called the Act  - and sentenced him to six months, rigorous imprisonment.  The appellant preferred an appeal which was heard by Mr. Justice Falshaw of the Punjab High Court.  The learned Judge, by his judgment  and  order  dated  February  4,1957  substantially affirmed  the  findings  of the learned  Special  Judge  and maintained  the  order  of  conviction  and  sentence.    He accordingly dismissed the appeal.  The appellant, failing to obtain a certificate from the High Court that his was a  fit case  for  farther appeal to ’,his Court, applied  for,  and obtained  from this Court, special leave to appeal from  the judgment of the single, Judge of the High Court. Before this Court it has been strenuously argued that on the findings  of fact arrived at by the courts below,  accepting the  prosecution  story  as told  by  the  main  prosecution witness  Ram Narain, no offence under s. 5(1)(d) of the  Act has  been  made out.  Reliance was placed mainly  upon  the, decision  of  the Division Bench of this Court in  State  of Ajmer  v. Shivji Lal (1).  That case, if correctly  decided, certainly supports the appellant, contention, because it has been  laid  down in that case that in order to  attract  the operation of s. 5 (1)(d) of the Act it was necessary element of  the crime charged that, the public servant  should  have misconducted himself in the discharg -of ’his own duty,  and that  if the official favour promised by the public  servant to the giver of the money was not in the hands of the public servant,  he could not be said to have misconducted  himself in ’he discharge of his own duty.  In that case the accused (1) [1959] Sapp. 2 S.C.R.739.  265 person  was a school teacher and the charge against him  was that  he had promised to the giver of the money to secure  a job  for him in the Railway Running Shed at Mount  Abu.,  It was not a part of his duty to make any such appointment  and therefore,  when he took the money for procuring a  job  for the  complainant, he could not be convicted  for  committing

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misconduct  within the meaning of s. 5 (2) of the Act.   The ratio  of  the  decision  is  contained  in  the   following paragraph of the judgment in that case :               "The offence under this provision consists  of               criminal  misconduct in the discharge  of  his               duty.  In order, therefore, that this  offence               is committed there should be misconduct by the               public  servant in the discharge of his  duty.                             In  other  words the public  servant  must  -I o               something in connection with his own duty  and               thereby  obtain money for himself or  for  any               other person by corrupt or illegal means or by               otherwise  abusing his position.  If a  public               servant  takes  money from a third  person  in               order to corrupt some other public servant and               there  is  no question  of  his  misconducting               himself in the discharge of his own duty, that               action  may be an offence under s. 161 of  the               Indian Penal Code but would not be an  offence               s. 5(2) read with s. 5(1)(d) of the Prevention               of Corruption Act.  The essence of an  offence               under  s. 5(2) read with s. 5 (1) (d) is  that               the public servant should do something in  the               discharge  of his own duty and thereby  obtain               any valuable thing or pecuniary advantage  for               himself or for any other person by corrupt  or               illegal  means  or by  otherwise  abusing  his               position.  The words ,(by otherwise abusing   his               position" read along with the words in     the               discharge  of  his  duty, appearing  in  s.  5               (1)(d)  make  it quite clear that  an  offence               under  that section requires that  the  public               servant  should  misconduct  himself  in   the               discharge of his own duty.  In the               266               present-  case, the accused was a teacher  and               it  was no part of his duty to  make  appoint-               ments in the Running Shed at Abu Road.   There               would,  therefore,  be  no  question  of   his               committing misconduct in the discharge of  his               duty  when he took money for procuring  a  job               for  Prem Singh in the Running Shed.  so  far,               therefore,  as the charge under s. 5(1)(d)  is               concerned, we are of opinion that there was no               question of the accused misconducting  himself               in  the  discharge  of his  own  duty  in  the               circumstances of this case and it must fail."                The relevant portion of s. 5 of the Act is in               these terms :               "5.   Criminal  misconduct  in  discharge   of               official duty-               (1)A  public  servant is said  to  commit  the               offence   of   criminal  misconduct   in   the               discharge of his duty-               (a)               (b)               (c)               (d)if  he, by corrupt or illegal means  or  by               otherwise  abusing  his position as  a  public               servant, obtains for himself or for any  other               person   any  valuable  thing   or   pecuniary               advantage.               (2)Any  public  servant who  commits  criminal               misconduct in the discharge of his duty  shall

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             be  punishable  with imprisonment for  a  term               which may extend to seven years, or with fine,               or with both." It  will be observed that the heading of S. 5  is  ,Criminal misconduct  in the discharge of official duty’.  That  is  a new offence which was created by the Act, apart from and  in addition to offences under the Indian Penal Code, like those under ds.161 etc. 267 The  legislature advisedely widended the scope  of  the crime by giving by giving a very wide definition in s.5 wiht a view to punish those  who holding  public office and taking advantage  of their official position obtain any  valuable   thing  or  pecuniary   advantage.   The necessary   ingredient   of an offence  under  s.  161, Indian   Penal  Code,  is the clause  as  a  motive  or reward for doing or forbearing to do any  official  act or for  showing or forbearing  to show in the  exercise of his official  functions favour or disfavour  to  any person   or for rendering or  attempting to render  any service  or dis-service  to any person with the Central or   any  State   Government   or  Parliament  or   the Legislature    of  any  State   or   wiht  any   public servent."But  it need not be  there in  order to  bring an offence under  s.5 of the Act  home to the accused . the offence  under s.16, indian penal code . The  words in  the discharge of his duty" do not   constitute   an essential ingredient of the  offence. The  mistake   in the judgemnt of this court  in the aforsaid  ruling  in the State  of Ajmer v. Shivji Lal (1) shas arisen  from reading   those  words. which are part  merely  of  the nomenclature  of the offence created  by  the  Statute, whose   ingredients are set  out in sub-claused (1)  to (d)   that follow  as descriptive of an  essential  and additional   ingriedent   of  each  of  the  types   of offence  in  the four sub-clauses. That  that  is   the source  of the mistake  is apparent from the  erroneous way in which  the section  has been quoted  at p.744 of hte  Supreme Court Report, in the  aragraph  preceedomg the paragarph  quoted above. The     ingredients of the particular  offence  in cl.(d) of s.5 (1)  of  the  ACt are;(1) that he should be a public servant  (2) that he should  use some corrupt or illegal means or  otherwise abouse  his position  as a public  servant;(3) that  he should  have  thereby   obtained a  valuable  thing  or pecuniery   advantage; and (4) for himself or  for  any other person. In order to bring the charge [1959] Supp. 2 S.C.R. 739 268 home  to  an accused person under cl. (d) aforesaid  of  the section,  it  is not necessary that the  public  servant  in question, while misconducting himself should have done so in the discharge of his duty. It would be anomalous to say that a  public servant has misconducted himself in the  discharge of his duty.  "Duty" and ",misconduct" go ill together.   If a  person has misconducted himself as a public  servant,  it would  not ordinarily be in the discharge of his  duty,  but the  reverse of it.  That ‘misconduct’, which has been  made criminal by s. 5 of the Act, does not contain the element of discharge of his duty, by public servant, is also made clear by  reference to the provisions of cl. (c) of s. 5 (1).   It is  well  settled that if a public  servant  dishonestly  or fraudulently  misappropriates property entrusted to him,  he cannot be said to have been doing so in the discharge of his official duty (vide the case of Hori Ram Singh v. The  Crown

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(1).   An application for special leave to appeal from  that decision was refused by the Privy Council in Hori Ram  Singh v. The King-Emperor (2).  This Court therefore, misread  the section  when  it  observed that  the  offence  consists  in criminal misconduct in the discharge of official duty.   The error lies in importing the description of the offence  into the  definition  portion  of it.  It  is  not  necessary  to constitute the offence under el. (d) of the section that the public servant must do something in connection with his  own duty  and  thereby obtain any valuable  thing  or  pecuniary advantage.   It  is 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  dis- charge  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 a. 5(1) (d), is that the public servant (1) [1939] F.C.R. 159. (2) [1940] F.C.R. 15.  269 should  do  something in the discharge of his own  duty  and thereby obtain a valuable thing or pecuniary advantage. These observations dispose of the present appeal and it must be held that there is no merit in the contentions raised  in support of the appeal.  As the only point raised in  support of the appeal fails, it is accordingly dismissed. Appeal dismissed.