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Report No. 29

Chart No. 3

(Misappropriation, etc.)

Section 405, Indian Penal Code.

Section 5(1)(c),Prevention etc, Act.

There must be dishonestmisappropriation or conversion for own use or use or disposal in violation of law, etc., under section 405. It is enough if there is "dishonest" or "fraudulent" misappropriation1 orotherwise conversion for own use2.
Regarding use or disposal, it must be in violation of a direction of law or legal contract. This is not necessary.
The public servant must be "entrusted" with property or with any "dominion" over it. The property must be entrusted to the public servant, or must be under his control as a public servant.
If the public servant does not commit the misappropriation himself, it is requisite that he must "willfully suffer"; any other person to do. It is sufficient if he allows another person to do so.
Punishment is imprisonment upto 10 years and also fine. Punishment is imprisonment upto 7 years and also fine. Imprisonment must be for at least one year etc., section 5(2).

1. Cf. Om Prakash v. State of Uttar Pradesh, AIR 1957 SC 458.

2. Lending Government money to others is also covered. Munna Lal v. U.P., AIR 1964 SC 28, para 10.

(By corrupt, etc., means or abuse of position abtaining any valuable thing, etc.)

No provision in Indian Penal Code.

Section 5(1)(d), Prevention etc., Act.

The offence of obtaining etc. a valuable thing or pecuniary, advantage by "corrupt or illegal means or by otherwise abusing his position as a public servant" (and thus committing criminal misconduct) is new.
The words "pecuniary advantage" include cash payment also1.
Section 5(1)(d) is not confined to direct benefit, and covers cases where a public servant causes wrongful loss to the Government by benefiting a third party2. It may be noted that section 5(1)(d) does not require habitual acceptance of bribe.3

The clause has been interpreted in the under-mentioned case4.

Section 5(1)(d) has two main ingredients, first, the means adopted, and the second, the end attained. The means adopted are described as -

(i) corrupt, or

(ii) illegal means, or

(iii) otherwise abusing his position as public servant.

The expression abuse of position is not defined, but "dishonesty", it has been held,5 is implicit in the word "abuse".

As regards the end to be obtained, it is provided that the public servant must have obtained-

(a) for himself, or

(b) for any other person, a valuable thing or pecuniary advantage.

It is not necessary that the public servant must do something in connection with his duty.6-7

Section 5(1)(d) is thus wide enough to cover-

(a) almost all acts which would be offences under section 5(1)(a) to (c), or the relevant section of the Indian Penal Code, and

(b) many acts which would not be offences under section 5(1)(a) to (c).

1. Mahfuz All v. State, AIR 1953 All 110 (B. Mukerji J.).

2. M. Narayanan Nambiar v. State of Kerala, (1963) 2 Cr Lj 186 (SC).

3. Mahfuz Ali v. State, AIR 1953 All 110 (112), para. 15.

4. Bhagwan Sahai v. State of Punjab, AIR 1960 SC 487.

5. M. Narayanan v. State of Kerala, (1963) 3 Cr LJ 186 (SC)

6. Dhaneshwar v. Delhi Administration, AIR 1962 SC 1965.

7. K.V. Ayyaswamy (in re:), AIR 1965 AP 105.

Proposal to include certain Social and Economic Offences in the Indian Penal Code Back

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