{"id":69802,"date":"1959-04-22T00:00:00","date_gmt":"1959-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-ajmer-now-rajasthan-vs-shivji-lal-on-22-april-1959"},"modified":"2016-03-23T19:28:39","modified_gmt":"2016-03-23T13:58:39","slug":"the-state-of-ajmer-now-rajasthan-vs-shivji-lal-on-22-april-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-ajmer-now-rajasthan-vs-shivji-lal-on-22-april-1959","title":{"rendered":"The State Of Ajmer (Now Rajasthan) vs Shivji Lal on 22 April, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The State Of Ajmer (Now Rajasthan) vs Shivji Lal on 22 April, 1959<\/div>\n
Equivalent citations: 1959 AIR 847, \t\t 1959 SCR Supl. (2) 739<\/div>\n
Author: K Wanchoo<\/div>\n
Bench: Wanchoo, K.N.<\/div>\n
           PETITIONER:\nTHE STATE OF AJMER (now RAJASTHAN)\n\n\tVs.\n\nRESPONDENT:\nSHIVJI LAL\n\nDATE OF JUDGMENT:\n22\/04\/1959\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nSINHA, BHUVNESHWAR P.\nGAJENDRAGADKAR, P.B.\n\nCITATION:\n 1959 AIR  847\t\t  1959 SCR  Supl. (2) 739\n CITATOR INFO :\n O\t    1962 SC 195\t (1,3,4)\n D\t    1964 SC 492\t (4,5,6)\n RF\t    1969 SC  17\t (16,18)\n RF\t    1973 SC 330\t (13)\n E\t    1984 SC 684\t (43)\n\n\nACT:\nPublic\tServant-Teacher\t in  railway  school-Whether  Public\nservant-Taking\tof money Promising to Procure a\t job-Whether\nillegal\t gratification-Criminal misconduct in the  discharge\nof  duty Indian Penal Code (Act 45 of 1860), SS. 21, Cl.  9,\n161-Prevention\tof  Corruption Act, 1947 (2  Of\t 1947),\t SS.\n4(1), 5(1)(d), (2).\n\n\n\nHEADNOTE:\nThe  respondent\t who was a teacher in a railway\t school\t was\nprosecuted under s. 161 of the Indian Penal Code and s. 5(2)\nread  with s. 5(1)(d) of the Prevention of  Corruption\tAct,\n1947.  The\n(1)  [1952] L.A.C. 219, 222.\n740\nprosecution case was that the respondent offered to secure a\njob  for the complainant in the Railway Running Shed at\t Abu\nRoad,  if the latteR paid him Rs. 100, that the\t complainant\nagreed to this, and that on October 5, 1954, the complainant\nwrote  out  an\tapplication  addressed\tto  the\t  Divisional\nMechanical  Engineer,  Abu  Road.,  and\t handed\t it  to\t the\nrespondent and gave him Rs. 50 promising to pay the  balance\nof Rs. 50 after the Job had been secured.  The Special judge\nwho  tried  the\t  case accepted the  prosecution  story\t and\nconvicted  the\trespondent  on both  the  charges,  but,  on\nappeal,\t the High Court acquitted him on the ground that  he\nwas not a public servant.  The State appealed to the Supreme\nCourt.\tIt was contended for the respondent that even if  he\nwere considered to be a public servant he could not be\theld\nguilty on either of the charges framed against him.  It\t was\nfound that neither in the charge framed under s. 161 of\t the\nIndian Penal Code nor in the evidence was there anything  to\nshow  that  the respondent intended to approach\t any  public\nservant in order to secure a job for the complainant.\nHeld  : (1) that the respondent was a public servant  within\nthe meaning of the ninth clause of s. 2I of the Indian Penal\nCode as he was in the service of Government,, was being paid\nby  it\tand was entrusted with the performance of  a  public\nduty inasmuch as he was a teacher in a school maintained  by\nGovernment and it was part of his public duty to teach boys.\nG.   A.\t Monterio v. The State of Ajmer,<\/a> [1956] S.C.R.\t682,\nfollowed.\n(2)  that  in view of the words \" by otherwise\tabusing\t his\nposition  \" read along with the words \" in the discharge  of\nhis  duty  \" in S. 5(1)(d) of the Prevention  of  Corruption\nAct,  1947, an offence under that section requires that\t the\npublic servant should misconduct himself in the discharge of\nhis duty.\nIn the present case, as the respondent was only a teacher it\nwas  not  -part\t of his duty to\t make  appointments  in\t the\nRailway\t Running Shed at Abu Road, and consequently when  he\ntook  money for procuring a job for the complainant  he\t was\nnot  committing\t misconduct in the discharge  of  his  duty.\nAccordingly,  a\t conviction  under  s.\t5(2)  read  with  s.\n5(1)(d)of  the Prevention of Corruption Act, 1947,  was\t not\nvalid.\n(3)  that  the mere fact that a person takes money in  order\nto  get\t a  job for another person somewhere  would  not  by\nitself\tbe an offence under s. 161 of the Indian Penal\tCode\nand that as the charge under s. 161 did not disclose who was\nthe public servant whom the respondent would have approached\nfor  rendering\tor  attempting\tto  render  service  to\t the\ncomplainant in securing a job for him, the prosecution under\nthat section was not maintainable; and,\n(4)  that the presumption under S. 4(1) of the Prevention of\nCorruption Act, 1947 could not, arise in the present case as\ns. 161 of the Indian Penal Code was not applicable.\n741\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION:  Criminal Appeal No. 3  of
\n1957.\n<\/p>\n
Appeal from the judgment and order dated August 14, 1956, of
\nthe former Judicial Commissioner’s Court, Ajmer, in Criminal
\nAppeal No. 2 of 1956, arising out of the judgment and  order
\ndated  January\t11, 1956, of the Special  Judge,  Ajmer,  in
\nCriminal Case No. I of 1955.\n<\/p>\n
R.   Ganapathy Iyer -and R. H. Dhebar, for the appellant.
\nB. D. Sharma, for the respondent.\n<\/p>\n
1959.  April 22.  The Judgment of the Court was delivered by
\nWANCHOO,  J.-This appeal is on a certificate granted by\t the
\nJudicial  Commissioner\tof  Ajmer.   One  Shivji  Lal  Joshi
\n(hereinafter called the accused) was prosecuted under s. 161
\nof  the Indian Penal Code and s. 5 (2) of the Prevention  of
\nCorruption  Act,  No. II of 1947.  He was convicted  by\t the
\nSpecial\t Judge\ton  both  counts  and  sentenced  to  suffer
\nrigorous imprisonment for a total period of six months.\t  He
\nfiled  an appeal before the Judicial Commissioner of  Ajmer.
\nThe  appeal was allowed on the ground that the\taccused\t was
\nnot  a\tpublic\tservant, though\t the  Judicial\tCommissioner
\nagreed with the findings of the Special Judge so far as\t the
\nfacts  were concerned.\tThe State applied for a\t certificate
\nunder  Art, 134 (1) (c) of the Constitution to enable it  to
\nappeal\tto this Court.\tThis certificate was granted  ;\t and
\nthat is how the appeal
\nhas come before us.\n<\/p>\n
The  facts  which  have been found by both  the\t courts\t are
\nthese.\t The accused was a teacher in the railway school  at
\nPhulera.   Prem Singh who was the complainant was  known  to
\nthe accused for about a year before the incident which\ttook
\nplace on October 6, 1954.  He was in search of a job and the
\naccused had told him a number of times that he would procure
\na  job for him in the Railway Running Shed at Abu  Road,  if
\nPrem  Singh  paid  him Rs. 100.\t On  October  5,  1954,\t the
\naccused had met Prem Singh at Kaiserganj
\n742<\/span>
\nin Ajmer and told him that Dusehra holidays were approaching
\nand  if he paid Rs. 100 the accused would go to Abu Road  to
\nsecure a job for him.  Eventually. it was agreed between the
\ntwo  that Prem Singh -would pay him Rs: 50 on the  next\t day
\nwhile  the remaining Rs. 50 would be paid after the job\t had
\nbeen secured.  After this agreement, Prem Singh went to\t the
\nDeputy Superintendent Police (Special Police Establishment),
\nand made a complaint to the effect that the accused had told
\nhim that he could secure employment for him at Abu Road Loco
\nShed as he bad considerable influence there and had demanded
\nRs.  100  as illegal gratification for that  purpose.\tPrem
\nSingh  also said that it had been settled that be would\t pay
\nRs. 50 in advance and Rs. 50 after his appointment.   Conse-
\nquently,  Prem Singh wrote out an application  addressed  to
\nthe  Divisional\t Mechanical  Engineer, Abu  Road,  and\talso
\nproduced   five\t  ten-rupee   notes   before   the    Deputy
\nSuperintendent\tPolice.\t  The numbers of  these\t notes\twere
\nnoted  down  and the Deputy Superintendent  Police  arranged
\nthat one Nathu Singh should accompany Prem Singh as a cousin
\nwhen  Prem  Singh met the accused next day to  pay  him\t the
\nmoney.\tOn October 6, 1954, Prem Singh accompanied by  Nathu
\nSingh met the accused as arranged and the accused asked\t him
\nfor  an\t application.  Prem Singh gave him  the\t application
\nwhich  he bad already written out and the accused said\tthat
\nthat  would serve the purpose.\tThe accused then asked\tPrem
\nSingh  for the money and he handed over the  five  ten-rupee
\nnotes,\tadding that he would pay the remaining Rs. 50  after
\ngetting\t service and assuring him that he would keep to\t his
\npart  of the bargain.  Thereafter Prem Singh gave  the\tpre-
\narranged  signal and the police party headed by\t the  Deputy
\nSuperintendent of Police arrived.  The Deputy Superintendent
\nPolice disclosed his identity and searched the person of the
\naccused.   In that search, the application which Prem  Singh
\nhad  written  for the Divisional  Mechanical  Engineer,\t Abu
\nRoad,\tand  the  five\tten-rupee  notes   were\t  recovered.
\nThereafter  the accused was prosecuted as already  mentioned
\nabove.\n<\/p>\n
743<\/span><\/p>\n
The  accused  admitted that the application as well  as\t the
\nfive ten-rupee notes were recovered from him by the  police.
\nHis  explanation  was that one Jiwan Ram had given  him\t the
\napplication which was in English and which was said to be  a
\nletter\tfor a friend of Jiwan Ram at Abu Road.\tThe  accused
\ndid not know English and took the application to be a letter
\nto be delivered to the friend of Jiwan Ram.  Jiwan Ram\talso
\ngave  him  five\t ten-rupee notes to be given  to  that\tvery
\nfriend of his when the accused went to Abu Road.  As already
\nstated, both the courts below have accepted the\t prosecution
\nversion set out above and disbelieved the explanation  given
\nby the accused.\t The Special Judge convicted the accused  on
\nthe   basis   of  the  prosecution  story.    The   Judicial
\nCommissioner, though he accepted the prosecution story to be
\ntrue,  held  that the accused was not a public\tservant\t and
\ntherefore ordered his acquittal.  The main question that has
\nbeen  raised  on behalf of the appellant therefore  in\tthis
\nappeal\tis that the Judicial Commissioner erred\t in  holding
\nthat the accused was not a public servant within the meaning
\nof s. 21 of the Indian Penal Code.\n<\/p>\n
The  question whether the accused is a public servant  under
\ns.   21\t  of  the  Indian  Penal  Code\tdepends\t  upon\t the
\ninterpretation of the last part of the Ninth clause of\tthat
\nsection, which is in these terms:- ,
\n“…………  every  officer in the service or pay  of\t the
\nGovernment  or\tremunerated by fees or\tcommission  for\t the
\nperformance of any public duty.”\n<\/p>\n
The Judicial Commissioner seems to have overlooked this part
\nof the Ninth clause, for he says that it had not been  shown
\nthat  it was the duty of the accused to take, receive,\tkeep
\nor  expend any property on behalf of the Government so\tthat
\nhe  may\t come under the Ninth clause of s.  21.\t  This\tonly
\nrefers to the earlier part of the Ninth clause and the\tlast
\npart which we have set out above does not seem to have\tbeen
\nconsidered   at\t all.\tThis  very  question  came  up\t for
\nconsideration  in this Court in G. A. Monterio v. The  State
\nof Ajmer<\/a> (1) and it was laid down that the true
\n(1)  [1956] S.C.R. 682.\n<\/p>\n
744<\/span><\/p>\n
test in order to determine whether a person is an officer of
\nthe Government, is: (1) whether he is in the service or\t pay
\nof  the Government and (2) whether he is entrusted with\t the
\nperformance of any public duty.’ It is not disputed in\tthis
\ncase  that the accused was in the service of Government\t and
\nwas  being  paid  by Government.  It  cannot  also,  in\t our
\nopinion,   be  doubted\tthat  he  was  entrusted  with\t the
\nperformance of a public duty inasmuch as he was a teacher in
\na  school  maintained by Government and it was part  of\t his
\npublic\tduty  to  teach boys.  In  these  circumstances\t the
\nJudicial  Commissioner\twas  in error in  holding  that\t the
\naccused\t was not a public servant within the meaning of\t the
\nNinth clause of s. 21.\n<\/p>\n
This,  however,\t does not dispose of  the  matter.   Learned
\ncounsel\t for the accused has urged that even if the  accused
\nis held to be a public servant, he cannot be held guilty  on
\neither\tof the charges framed against him.  We\tshall  first
\ntake  the  charge  under  s.  5(2)  of\tthe  Prevention\t  of
\nCorruption  Act read with s. 5(1) (d).\tThe charge was\tthat
\nthe  accused by corrupt or illegal means or by\tabusing\t his
\nposition  as a public servant obtained\tpecuniary  advantage
\nfor  himself inasmuch as he took As. 50 from Prem  Singh  on
\nOctober\t 6,  1954.   Mere receiving of\tmoney  by  a  public
\nservant even if it be by corrupt means is not sufficient  to
\nmake  out  an offence under s. 5 (2) read with\ts.  5(1)(d).
\nThe relevant part of s. 5(1)(d) reads as follows:-
\n” A public servant is said to commit the offence of criminal
\nmisconduct  in the discharge of his duty, if he, by  corrupt
\nor  illegal means or by otherwise abusing his position as  a
\npublic servant, obtains for himself or for any other  person
\nany valuable thing or pecuniary advantage
\nThe  offence  under  this  provision  consists\tof  criminal
\nmisconduct  in\tthe  discharge\tof  his\t duty.\t In   order,
\ntherefore,  that this offence is committed there  should  be
\nmisconduct  by\tthe public servant in the discharge  of\t his
\nduty.\tIn other words the public servant must do  something
\nin connection with his own duty and thereby obtain money for
\nhimself or for any other person by corrupt or illegal. means
\nor by otherwise abusing
\n745<\/span>
\nhis position.  If a public servant takes money from a  third
\nperson\tin  order to corrupt some other public\tservant\t and
\nthere  is  no question of his misconducting himself  in\t the
\ndischarge  of  his own duty, that action may be\t an  offence
\nunder  s. 161 of the Indian Penal Code but would not  be  an
\noffence under s. 5(2) read with s. 5(1)(d) of the Prevention
\nof Corruption Act.  The essence of an offence under s.\t5(2)
\nread  with s. 5(1)(d) is that the public servant  should  do
\nsomething  in  the  discharge of his own  duty\tand  thereby
\nobtain any valuable thing or pecuniary advantage for himself
\nor  for any other person by corrupt or illegal means  or  by
\notherwise  abusing his position.  The words ”  by  otherwise
\nabusing\t his position ” read along with the words ”  in\t the
\ndischarge  of  his duty ” appearing in s.  5(1)(d)  make  it
\nquite clear that an offence under that section requires that
\nthe   public  servant  should  misconduct  himself  in\t the
\ndischarge of his own duty.  In the present case, the accused
\nwas  a\tteacher\t and  it was no part of\t his  duty  to\tmake
\nappointments in the Running Shed at Abu Road.  There  would,
\ntherefore,  be no question of his committing  misconduct  in
\nthe discharge of his duty when he took money for procuring a
\njob for Prem Singh in the Running Shed.\t So far therefore as
\nthe charge under s. 5(1)(d) is concerned, we are of  opinion
\nthat  there  was no question of\t the  accused  misconducting
\nhimself\t  in   the  discharge  of  his\town  duty   in\t the
\ncircumstances of this case and it must fail.
\nNow  we turn to the charge under s. 161 of the Indian  Penal
\nCode.\tThe  relevant  part of that  section  (omitting\t the
\nunnecessary words) for the purpose of this case is in  these
\nterms:\n<\/p>\n
”  Whoever, being a public servant, accepts from any  person
\nfor  himself  any gratification whatever  other\t than  legal
\nremuneration  as  a  motive  or\t reward\t for  rendering\t  or
\nattempting to render any service or disservice to any person
\nwith  any public servant “. This requires- that\t the  person
\naccepting the gratification should be (1) a public  servant,
\n(2) he should accept gratification for himself, and (3)\t the
\ngratification
\n94<\/span>
\n746<\/span>
\nshould be as a motive or reward for rendering or  attempting
\nto  render any service or disservice to any person with\t any
\nother public servant.  The charge under s. 161 of the Indian
\nPenal  Code which was trained in this case stated  that\t the
\naccused being a public servant accepted on October 6,  1954,
\na  sum of Rs. 50 from Prem Singh ” as illegal  gratification
\nas  a  motive  for securing a job for  him  in\tthe  Railway
\nRunning Shed “. Now the first two ingredients set out  above
\nare  clearly  established  in  this  case;  but\t the   third
\ningredient, (namely, that the gratification should have been
\ntaken  as a motive or reward for rendering or attempting  to
\nrender\tany  service with any public servant)  is  not\teven
\ncharged against the accused.  The charge merely says that he
\ntook the money as a motive for securing a job for Prem Singh
\nin the Railway Running Shed, Abu Road.\tIt does not disclose
\nwho  was  the  public servant whom the\taccused\t would\thave
\napproached for rendering or attempting to render service  to
\nPrem Singh in securing a job for him.  Even in the complaint
\nmade  by Prem Singh to the Deputy Superintendent Police\t all
\nthat  was said was that the accused told Prem Singh that  he
\nwould  secure  a  job for him at Abu  Road  because  he\t had
\nconsiderable  influence there.\tIt was not disclosed  as  to
\nwho was the public servant on whom the accused had influence
\nand  whom  he would approach in order to tender\t service  to
\nPrem  Singh.  In his statement also Prem Singh did  not\t say
\nthat  the accused had told him that he had influence on\t any
\nparticular  public  servant  at\t Abu  Road  whom  he   would
\ninfluence  in  order to render this service to\tPrem  Singh,
\nnamely procuring him a job.  It is true that the application
\nwas  addressed\tby Prem Singh to the  Divisional  Mechanical
\nEngineer  and was given to the accused who said that it\t was
\nall right; but Prem Singh did not even say that the  accused
\nhad  asked him to address the application to the  Divisional
\nMechanical  Engineer.\tIt seems that  the  application\t was
\naddressed  to  the Divisional  Mechanical  Engineer,  simply
\nbecause\t he  was  obviously the\t officer  in-charge  of\t the
\nRailway\t Running Shed at Abu Road.  Thus Prem Singh did\t not
\nsay either in his complaint or in
\n747<\/span>
\nhis  statement that the accused had told him that  he  would
\nrender\tservice\t to him by approaching a  particular  public
\nservant.   In  the charge-sheet submitted by the  police  as
\nwell  as  in  the charge framed by the\tcourt,\tit  was\t not
\ndisclosed whether any public servant would be approached  to
\nrender\tservice to Prem Singh, i.e., by securing him a\tjob.
\nIn  the circumstances one of the ingredients of the  offence
\nunder  s.  161 was neither alleged nor\tcharged\t nor  proved
\nagainst\t the  accused.\tThe mere fact that  a  person  takes
\nmoney  in  order to get a job for another  person  somewhere
\nwould  not by itself necessarily be an offence under s.\t 161
\nof  the Indian Penal Code unless all the ingredients of that
\nsection\t are  made  out.  As in this case one  of  the\tmain
\ningredients  of\t that  section has not been  made  out,\t the
\naccused would be entitled to acquittal.\n<\/p>\n
However,  it  has  been urged on behalf of  the\t State\tthat
\npresumption  under s. 4(1) of the Prevention  of  Corruption
\nAct  arises  in this case as money passed  hands  from\tPrem
\nSingh to the accused and s. 4(1) provides that if an accused
\nperson has accepted any gratification for himself or for any
\nother  person, it shall be presumed unless the\tcontrary  is
\nproved\tthat he accepted that gratification as a  motive  or
\nreward\tas is mentioned in s. 161 of the Indian Penal  Code.
\nAssuming  that this presumption can be raised even when\t all
\nthat is proved is mere passing of money, the question  still
\nremains\t whether  a presumption as to the motive  or  reward
\nsuch as is mentioned in s. 161 of the Indian Penal Code\t can
\nbe  raised in this case at all, when we know as a fact\tthat
\nPrem Singh never said in the complaint that the accused\t had
\ntold him that he would influence any public servant and\t did
\nnot  even say so in his statement in court and there was  no
\nmention\t in the charge-sheet by the police or in the  charge
\nframed by the court that the accused was going to  influence
\nany  public servant in order to secure a job for Prem  Singh
\nat  Abu\t Road.\tWe are of opinion that if the  evidence\t had
\ndisclosed  that\t the  accused had indicated  that  he  would
\ninfluence  any public servant in order to secure a  job\t for
\nPrem  Singh a presumption as to the motive or  reward  might
\nhave
\n748<\/span>
\nbeen  drawn  under  s.\t4(1), assuming\tagain  that  such  a
\npresumption  can be drawn where there is simple\t passing  of
\nmoney.\t But when there is no indication whatever  that\t any
\npublic\tservant\t was to be approached or influenced  by\t the
\naccused there can, in our opinion, be no question of  making
\na presumption that the payment was as a motive or reward for
\nendering  service with any public servant.  In this view  of
\nthe  matter we are of opinion that the offence under s.\t 161
\nof  the\t Indian\t Penal\tCode is not  made  out\tagainst\t the
\naccused, for one of its essential ingredients is missing and
\nno  presumption\t can be drawn in the circumstances  in\tthat
\nconnection.   We  therefore dismiss the\t appeal\t though\t for
\nreasons\t different from those which commended themselves  to
\nthe learned Judicial Commissioner.\n<\/p>\n
Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The State Of Ajmer (Now Rajasthan) vs Shivji Lal on 22 April, 1959 Equivalent citations: 1959 AIR 847, 1959 SCR Supl. (2) 739 Author: K Wanchoo Bench: Wanchoo, K.N. 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-69802","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe State Of Ajmer (Now Rajasthan) vs Shivji Lal on 22 April, 1959 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-ajmer-now-rajasthan-vs-shivji-lal-on-22-april-1959\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Ajmer (Now Rajasthan) vs Shivji Lal on 22 April, 1959 - 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