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PETITIONER: THE STATE OF AJMER (now RAJASTHAN)

       Vs.

RESPONDENT: SHIVJI LAL

DATE OF JUDGMENT: 22/04/1959

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P. GAJENDRAGADKAR, P.B.

CITATION:  1959 AIR  847            1959 SCR  Supl. (2) 739  CITATOR INFO :  O          1962 SC 195  (1,3,4)  D          1964 SC 492  (4,5,6)  RF         1969 SC  17  (16,18)  RF         1973 SC 330  (13)  E          1984 SC 684  (43)

ACT: Public  Servant-Teacher  in  railway  school-Whether  Public servant-Taking  of money Promising to Procure a  job-Whether illegal  gratification-Criminal misconduct in the  discharge of  duty Indian Penal Code (Act 45 of 1860), SS. 21, Cl.  9, 161-Prevention  of  Corruption Act, 1947 (2  Of  1947),  SS. 4(1), 5(1)(d), (2).

HEADNOTE: The  respondent  who was a teacher in a railway  school  was prosecuted under s. 161 of the Indian Penal Code and s. 5(2) read  with s. 5(1)(d) of the Prevention of  Corruption  Act, 1947.  The (1)  [1952] L.A.C. 219, 222. 740 prosecution case was that the respondent offered to secure a job  for the complainant in the Railway Running Shed at  Abu Road,  if the latteR paid him Rs. 100, that the  complainant agreed to this, and that on October 5, 1954, the complainant wrote  out  an  application  addressed  to  the   Divisional Mechanical  Engineer,  Abu  Road.,  and  handed  it  to  the respondent and gave him Rs. 50 promising to pay the  balance of Rs. 50 after the Job had been secured.  The Special judge who  tried  the   case accepted the  prosecution  story  and convicted  the  respondent  on both  the  charges,  but,  on appeal,  the High Court acquitted him on the ground that  he was not a public servant.  The State appealed to the Supreme Court.  It was contended for the respondent that even if  he were considered to be a public servant he could not be  held guilty on either of the charges framed against him.  It  was found that neither in the charge framed under s. 161 of  the Indian Penal Code nor in the evidence was there anything  to show  that  the respondent intended to approach  any  public servant in order to secure a job for the complainant. Held  : (1) that the respondent was a public servant  within

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the meaning of the ninth clause of s. 2I of the Indian Penal Code as he was in the service of Government,, was being paid by  it  and was entrusted with the performance of  a  public duty inasmuch as he was a teacher in a school maintained  by Government and it was part of his public duty to teach boys. G.   A.  Monterio v. The State of Ajmer, [1956] S.C.R.  682, followed. (2)  that  in view of the words " by otherwise  abusing  his position  " read along with the words " in the discharge  of his  duty  " in S. 5(1)(d) of the Prevention  of  Corruption Act,  1947, an offence under that section requires that  the public servant should misconduct himself in the discharge of his duty. In the present case, as the respondent was only a teacher it was  not  -part  of his duty to  make  appointments  in  the Railway  Running Shed at Abu Road, and consequently when  he took  money for procuring a job for the complainant  he  was not  committing  misconduct in the discharge  of  his  duty. Accordingly,  a  conviction  under  s.  5(2)  read  with  s. 5(1)(d)of  the Prevention of Corruption Act, 1947,  was  not valid. (3)  that  the mere fact that a person takes money in  order to  get  a  job for another person somewhere  would  not  by itself  be an offence under s. 161 of the Indian Penal  Code and that as the charge under s. 161 did not disclose who was the public servant whom the respondent would have approached for  rendering  or  attempting  to  render  service  to  the complainant in securing a job for him, the prosecution under that section was not maintainable; and, (4)  that the presumption under S. 4(1) of the Prevention of Corruption Act, 1947 could not, arise in the present case as s. 161 of the Indian Penal Code was not applicable. 741

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION:  Criminal Appeal No. 3  of 1957. Appeal from the judgment and order dated August 14, 1956, of the former Judicial Commissioner’s Court, Ajmer, in Criminal Appeal No. 2 of 1956, arising out of the judgment and  order dated  January  11, 1956, of the Special  Judge,  Ajmer,  in Criminal Case No. I of 1955. R.   Ganapathy Iyer -and R. H. Dhebar, for the appellant. B. D. Sharma, for the respondent. 1959.  April 22.  The Judgment of the Court was delivered by WANCHOO,  J.-This appeal is on a certificate granted by  the Judicial  Commissioner  of  Ajmer.   One  Shivji  Lal  Joshi (hereinafter called the accused) was prosecuted under s. 161 of  the Indian Penal Code and s. 5 (2) of the Prevention  of Corruption  Act,  No. II of 1947.  He was convicted  by  the Special  Judge  on  both  counts  and  sentenced  to  suffer rigorous imprisonment for a total period of six months.   He filed  an appeal before the Judicial Commissioner of  Ajmer. The  appeal was allowed on the ground that the  accused  was not  a  public  servant, though  the  Judicial  Commissioner agreed with the findings of the Special Judge so far as  the facts  were concerned.  The State applied for a  certificate under  Art, 134 (1) (c) of the Constitution to enable it  to appeal  to this Court.  This certificate was granted  ;  and that is how the appeal has come before us. The  facts  which  have been found by both  the  courts  are these.   The accused was a teacher in the railway school  at

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Phulera.   Prem Singh who was the complainant was  known  to the accused for about a year before the incident which  took place on October 6, 1954.  He was in search of a job and the accused had told him a number of times that he would procure a  job for him in the Railway Running Shed at Abu  Road,  if Prem  Singh  paid  him Rs. 100.  On  October  5,  1954,  the accused had met Prem Singh at Kaiserganj 742 in Ajmer and told him that Dusehra holidays were approaching and  if he paid Rs. 100 the accused would go to Abu Road  to secure a job for him.  Eventually. it was agreed between the two  that Prem Singh -would pay him Rs: 50 on the  next  day while  the remaining Rs. 50 would be paid after the job  had been secured.  After this agreement, Prem Singh went to  the Deputy Superintendent Police (Special Police Establishment), and made a complaint to the effect that the accused had told him that he could secure employment for him at Abu Road Loco Shed as he bad considerable influence there and had demanded Rs.  100  as illegal gratification for that  purpose.   Prem Singh  also said that it had been settled that be would  pay Rs. 50 in advance and Rs. 50 after his appointment.   Conse- quently,  Prem Singh wrote out an application  addressed  to the  Divisional  Mechanical  Engineer, Abu  Road,  and  also produced   five   ten-rupee   notes   before   the    Deputy Superintendent  Police.   The numbers of  these  notes  were noted  down  and the Deputy Superintendent  Police  arranged that one Nathu Singh should accompany Prem Singh as a cousin when  Prem  Singh met the accused next day to  pay  him  the money.  On October 6, 1954, Prem Singh accompanied by  Nathu Singh met the accused as arranged and the accused asked  him for  an  application.  Prem Singh gave him  the  application which  he bad already written out and the accused said  that that  would serve the purpose.  The accused then asked  Prem Singh  for the money and he handed over the  five  ten-rupee notes,  adding that he would pay the remaining Rs. 50  after getting  service and assuring him that he would keep to  his part  of the bargain.  Thereafter Prem Singh gave  the  pre- arranged  signal and the police party headed by  the  Deputy Superintendent of Police arrived.  The Deputy Superintendent Police disclosed his identity and searched the person of the accused.   In that search, the application which Prem  Singh had  written  for the Divisional  Mechanical  Engineer,  Abu Road,   and  the  five  ten-rupee  notes   were   recovered. Thereafter  the accused was prosecuted as already  mentioned above. 743 The  accused  admitted that the application as well  as  the five ten-rupee notes were recovered from him by the  police. His  explanation  was that one Jiwan Ram had given  him  the application which was in English and which was said to be  a letter  for a friend of Jiwan Ram at Abu Road.  The  accused did not know English and took the application to be a letter to be delivered to the friend of Jiwan Ram.  Jiwan Ram  also gave  him  five  ten-rupee notes to be given  to  that  very friend of his when the accused went to Abu Road.  As already stated, both the courts below have accepted the  prosecution version set out above and disbelieved the explanation  given by the accused.  The Special Judge convicted the accused  on the   basis   of  the  prosecution  story.    The   Judicial Commissioner, though he accepted the prosecution story to be true,  held  that the accused was not a public  servant  and therefore ordered his acquittal.  The main question that has been  raised  on behalf of the appellant therefore  in  this appeal  is that the Judicial Commissioner erred  in  holding that the accused was not a public servant within the meaning

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of s. 21 of the Indian Penal Code. The  question whether the accused is a public servant  under s.   21   of  the  Indian  Penal  Code  depends   upon   the interpretation of the last part of the Ninth clause of  that section, which is in these terms:- , "............  every  officer in the service or pay  of  the Government  or  remunerated by fees or  commission  for  the performance of any public duty." The Judicial Commissioner seems to have overlooked this part of the Ninth clause, for he says that it had not been  shown that  it was the duty of the accused to take, receive,  keep or  expend any property on behalf of the Government so  that he  may  come under the Ninth clause of s.  21.   This  only refers to the earlier part of the Ninth clause and the  last part which we have set out above does not seem to have  been considered   at  all.   This  very  question  came  up   for consideration  in this Court in G. A. Monterio v. The  State of Ajmer (1) and it was laid down that the true (1)  [1956] S.C.R. 682. 744 test in order to determine whether a person is an officer of the Government, is: (1) whether he is in the service or  pay of  the Government and (2) whether he is entrusted with  the performance of any public duty.’ It is not disputed in  this case  that the accused was in the service of Government  and was  being  paid  by Government.  It  cannot  also,  in  our opinion,   be  doubted  that  he  was  entrusted  with   the performance of a public duty inasmuch as he was a teacher in a  school  maintained by Government and it was part  of  his public  duty  to  teach boys.  In  these  circumstances  the Judicial  Commissioner  was  in error in  holding  that  the accused  was not a public servant within the meaning of  the Ninth clause of s. 21. This,  however,  does not dispose of  the  matter.   Learned counsel  for the accused has urged that even if the  accused is held to be a public servant, he cannot be held guilty  on either  of the charges framed against him.  We  shall  first take  the  charge  under  s.  5(2)  of  the  Prevention   of Corruption  Act read with s. 5(1) (d).  The charge was  that the  accused by corrupt or illegal means or by  abusing  his position  as a public servant obtained  pecuniary  advantage for  himself inasmuch as he took As. 50 from Prem  Singh  on October  6,  1954.   Mere receiving of  money  by  a  public servant even if it be by corrupt means is not sufficient  to make  out  an offence under s. 5 (2) read with  s.  5(1)(d). The relevant part of s. 5(1)(d) reads as follows:- " A public servant is said to commit the offence of criminal misconduct  in the discharge of his duty, 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 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 do  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 745 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

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offence under 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 present case, the accused was  a  teacher  and  it was no part of  his  duty  to  make appointments 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. Now  we turn to the charge under s. 161 of the Indian  Penal Code.   The  relevant  part of that  section  (omitting  the unnecessary words) for the purpose of this case is in  these terms: "  Whoever, being a public servant, accepts from any  person for  himself  any gratification whatever  other  than  legal remuneration  as  a  motive  or  reward  for  rendering   or attempting to render any service or disservice to any person with  any public servant ". This requires- that  the  person accepting the gratification should be (1) a public  servant, (2) he should accept gratification for himself, and (3)  the gratification 94 746 should be as a motive or reward for rendering or  attempting to  render any service or disservice to any person with  any other public servant.  The charge under s. 161 of the Indian Penal  Code which was trained in this case stated  that  the accused being a public servant accepted on October 6,  1954, a  sum of Rs. 50 from Prem Singh " as illegal  gratification as  a  motive  for securing a job for  him  in  the  Railway Running Shed ". Now the first two ingredients set out  above are  clearly  established  in  this  case;  but  the   third ingredient, (namely, that the gratification should have been taken  as a motive or reward for rendering or attempting  to render  any  service with any public servant)  is  not  even charged against the accused.  The charge merely says that he took the money as a motive for securing a job for Prem Singh in the Railway Running Shed, Abu Road.  It does not disclose who  was  the  public servant whom the  accused  would  have approached for rendering or attempting to render service  to Prem Singh in securing a job for him.  Even in the complaint made  by Prem Singh to the Deputy Superintendent Police  all that  was said was that the accused told Prem Singh that  he would  secure  a  job for him at Abu  Road  because  he  had considerable  influence there.  It was not disclosed  as  to who was the public servant on whom the accused had influence and  whom  he would approach in order to tender  service  to Prem  Singh.  In his statement also Prem Singh did  not  say that  the accused had told him that he had influence on  any particular  public  servant  at  Abu  Road  whom  he   would influence  in  order to render this service to  Prem  Singh, namely procuring him a job.  It is true that the application was  addressed  by Prem Singh to the  Divisional  Mechanical

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Engineer  and was given to the accused who said that it  was all right; but Prem Singh did not even say that the  accused had  asked him to address the application to the  Divisional Mechanical  Engineer.   It seems that  the  application  was addressed  to  the Divisional  Mechanical  Engineer,  simply because  he  was  obviously the  officer  in-charge  of  the Railway  Running Shed at Abu Road.  Thus Prem Singh did  not say either in his complaint or in 747 his  statement that the accused had told him that  he  would render  service  to him by approaching a  particular  public servant.   In  the charge-sheet submitted by the  police  as well  as  in  the charge framed by the  court,  it  was  not disclosed whether any public servant would be approached  to render  service to Prem Singh, i.e., by securing him a  job. In  the circumstances one of the ingredients of the  offence under  s.  161 was neither alleged nor  charged  nor  proved against  the  accused.  The mere fact that  a  person  takes money  in  order to get a job for another  person  somewhere would  not by itself necessarily be an offence under s.  161 of  the Indian Penal Code unless all the ingredients of that section  are  made  out.  As in this case one  of  the  main ingredients  of  that  section has not been  made  out,  the accused would be entitled to acquittal. However,  it  has  been urged on behalf of  the  State  that presumption  under s. 4(1) of the Prevention  of  Corruption Act  arises  in this case as money passed  hands  from  Prem Singh to the accused and s. 4(1) provides that if an accused person has accepted any gratification for himself or for any other  person, it shall be presumed unless the  contrary  is proved  that he accepted that gratification as a  motive  or reward  as is mentioned in s. 161 of the Indian Penal  Code. Assuming  that this presumption can be raised even when  all that is proved is mere passing of money, the question  still remains  whether  a presumption as to the motive  or  reward such as is mentioned in s. 161 of the Indian Penal Code  can be  raised in this case at all, when we know as a fact  that Prem Singh never said in the complaint that the accused  had told him that he would influence any public servant and  did not  even say so in his statement in court and there was  no mention  in the charge-sheet by the police or in the  charge framed by the court that the accused was going to  influence any  public servant in order to secure a job for Prem  Singh at  Abu  Road.  We are of opinion that if the  evidence  had disclosed  that  the  accused had indicated  that  he  would influence  any public servant in order to secure a  job  for Prem  Singh a presumption as to the motive or  reward  might have 748 been  drawn  under  s.  4(1), assuming  again  that  such  a presumption  can be drawn where there is simple  passing  of money.   But when there is no indication whatever  that  any public  servant  was to be approached or influenced  by  the accused there can, in our opinion, be no question of  making a presumption that the payment was as a motive or reward for endering  service with any public servant.  In this view  of the  matter we are of opinion that the offence under s.  161 of  the  Indian  Penal  Code is not  made  out  against  the accused, for one of its essential ingredients is missing and no  presumption  can be drawn in the circumstances  in  that connection.   We  therefore dismiss the  appeal  though  for reasons  different from those which commended themselves  to the learned Judicial Commissioner. Appeal dismissed.

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