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 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
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
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
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
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.