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' 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
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
“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
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
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
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
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.