The State of Gujarat Vs. Manshankar
Prabhasankar Dwivedi  INSC 122 (26 April 1972)
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)
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
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 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,  1 S.C.R.
(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,  Suppl. 2
S.C.R. 724 and Rain Krishna & Another v. The State of Delhi,  S.C.R.
Dhaneshwar Narain Sexana v. Delhi
Administration, 3 S.C.R. 259, distinguished.
State of Ajmer v. Shivji Lal,  Suppl.
2. S.C.R. 739, referred to.
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.
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 centers 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
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
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
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 material 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 report 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 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
(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 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
(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
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)  1 S.C.R. 253.
320 a different category. 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. 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
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
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
"S. 5(1) A public servant is said to
commit 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)  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.
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 something 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 something 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)  3 S.C.R. 259.
(2)  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 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)  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
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
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)  Supp, 2 S.C.R. 724.
(2)  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
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.