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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.

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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