# A1 ahant Sankarshan Ramanuja Das Goswami Etc. FJtc Etv v. The State of Oriasa

- **Citation:** [1962] 3 S.C.R. 259
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. P. Sinha, S. K. Das, A. K. Sarkar, N. RAJAGOPALAAYYANGAR andJ.R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a1-ahant-sankarshan-ramanuja-das-goswami-etc-fjtc-etv-v-the-state-of-oriasa-2445
- **Pages:** 11

## Headnote

Prevention of Corruption-Public servant-Misconduct, not in
the discharge of one's duty-Corrupting other public servant--
Criminal Misconduct-Ingredients
of
offence-Prevention of
Cor1'uption Act, 1947 (2 of 1947), ss. 5 (1) (d), ti (1) (d).
The appellant who was an Upper Division Clerk in the
office of the Chief Commissioner of Delhi was convicted of an
offence under s. 5 (1) ( d) of the Prevention of Corruption Act,
1947, punishable under s. 5 (2) of the Act. The prosecution case
was that R who was anxious to obtain a licente for a double·
barralled shot-gun sought the assistance of the appellant who
knew him, that the appellant who had nothing to do with the
issuing of licences for firearms which was done by the office of
the Deputy Commissioner, offered to use his good offices in expediting and furthering the progress of R's application for a
licence in the appropriate department if he was paid Rs. 2501-,
and that when the licence was cancelled on its being found that
R was not entitled to it the appellant promised to have it restored
if he was paid a further sum of Rs. 180/-. The trial Judge found
that the appellant taking advantage of his position as an employee in the Chief Commissioner's office and of R's ignorance
and anxiety to get the licence, had induced him to part with
the money on the promise that he would get his licence restored.
The appellant pleaded that on the facts found no offence under
s. 5( 1) ( d) of the Act had been made out and relied on State o/
Ajmer v. Shivji Lal, (1959) Supp. 2 S. C. R. 739.
1961
A1 ahant Sankarshan
Ramanuja Das
Goswami Etc. FJtc
Etv.
v.
The State of Oriasa
Hidayatullah J.
1961
August 24.
..
19fJ1
DhaneBhwar
Naraitt Saxena '_
v:
' '
260;
~SUPREl\IE COURT REPORTS
(1962]
. ·Held, that in order to constitute an offence under cl. ( d)
of s. 5 (I) of the Prevention of Corruption Act, 194 7, it is not
necCssary, that the public servant in question, while misconduct·.
ing himself, should have done so in the discharge of his duty;
TM Delhi
Adlniniatration. , and .that the decision in State oJAjmer v. Shivji Lal. (1959)
Supp. 2 S: C. R. 739, to the contrary, is wrong. · ·
Sinha C. J.
If a public. servant takes money from a third perwn, by
- corrupt or illegal means or otherwise -abusing his ufficial position,. in
order
to
c;:orrupt
some other public.· servant,
· he commits an offence under s. 5 (I) (d),
even
though
there was no question of his misconducting hitnself in the dis-
. charge of his own duty;
·
· CruMINAL APPELLATE Jun1snwnoN : Criminal
Appeal No. 6 of 1959.
.
AppeaLby speciaUeave Jrom:..the judgment and
order dated the February 4, 1957, ofthe Punjab
. High. Court. (Circuit Bench) at . Delhi. in Criminal
Appeal No. 173-C of 1956. '' • ·
'
.
T. o: 1llathur, p; 0. Mathur and A. N. G0yal, for
the Appellants.
. ..
, , ·
. B. K. Khanna, and T. M. Sen; for the Respondents. i ·
·
·
· .dl~6h~dugust,24. ~The_Judgment,ofthe Court
was elivere . by
.. .
.
.
.
. ·
,
· ., SiNnl, C. J.-·· This'ajipeai' was fir~t .heard by
a Division Bench of three-judges, composed of the
. Chief Justice, Imam and Shah, JJ., on the· 19th of
•February last year.'" In the course of the ·argument,
the learned counsel for · the ·a pp&llant invited ·the
· ·attentfon of'the Court to the decision.of a Division
. Bench-.of.·this. Comt,:.in ··.the ,State of '.Ajmerv.
· ,, Shivji Lal (1) •. '.Ihe·Bench hearing the case, being
of. opinion that the decision aforesaid of this Court
'. 'required reconsideration, referred the·'case ·to a
', .. larger bench; and' that is how it has come before "!ls.
-.·.:c
•. 'It is necessary ~o· state the' following facts in
~ ·order to' bring out tlie question offaw to' be. de.ter-
:i; milled in)his case.' Th~ . appellant was an' upper -
.Division ,Clerk in. the office ;of the. Chief Com-
\• missioner ·of Delhi'· He " had· ·.come · · to ' know
. - , _ . -. I
i .
. -: : _·
~ '. ; i -'_:..: \
·.~
\ r
(I) [1959J Supp. 2. s.c.R. 739.'
-
:! S.C.R.
SUPREME COURT REPORTS
261
1961
Dlianeshwar ;Vara

## Text

3S.C.R.
SUPREME COURT REPORTS
259
Act must follow.
Such a law is not capable of
being called in question on the ground that it
abridges any fundamental right conferred by
Arts.14 19 and 31, if it has been assented to by the
Preside~t. The notification was thus valid, if the
law was valid.
In the result, the appeals fail, and are dis·
missed with costs, one set only.
Appeals dismissed.
DHANESHW AR NARAIN SAXENA
v.
THE DELHI ADMINISTRATION
(B. P. SINHA, c. J.,'S. K. DAS, A. K. SARKAR,
N. RAJAGOPALAAYYANGAR andJ.R. MuDHOLKAR, JJ.)
Prevention of Corruption-Public servant-Misconduct, not in
the discharge of one's duty-Corrupting other public servant--
Criminal Misconduct-Ingredients
of
offence-Prevention of
Cor1'uption Act, 1947 (2 of 1947), ss. 5 (1) (d), ti (1) (d).
The appellant who was an Upper Division Clerk in the
office of the Chief Commissioner of Delhi was convicted of an
offence under s. 5 (1) ( d) of the Prevention of Corruption Act,
1947, punishable under s. 5 (2) of the Act. The prosecution case
was that R who was anxious to obtain a licente for a double·
barralled shot-gun sought the assistance of the appellant who
knew him, that the appellant who had nothing to do with the
issuing of licences for firearms which was done by the office of
the Deputy Commissioner, offered to use his good offices in expediting and furthering the progress of R's application for a
licence in the appropriate department if he was paid Rs. 2501-,
and that when the licence was cancelled on its being found that
R was not entitled to it the appellant promised to have it restored
if he was paid a further sum of Rs. 180/-. The trial Judge found
that the appellant taking advantage of his position as an employee in the Chief Commissioner's office and of R's ignorance
and anxiety to get the licence, had induced him to part with
the money on the promise that he would get his licence restored.
The appellant pleaded that on the facts found no offence under
s. 5( 1) ( d) of the Act had been made out and relied on State o/
Ajmer v. Shivji Lal, (1959) Supp. 2 S. C. R. 739.
1961
A1 ahant Sankarshan
Ramanuja Das
Goswami Etc. FJtc
Etv.
v.
The State of Oriasa
Hidayatullah J.
1961
August 24.
..
19fJ1
DhaneBhwar
Naraitt Saxena '_
v:
' '
260;
~SUPREl\IE COURT REPORTS
(1962]
. ·Held, that in order to constitute an offence under cl. ( d)
of s. 5 (I) of the Prevention of Corruption Act, 194 7, it is not
necCssary, that the public servant in question, while misconduct·.
ing himself, should have done so in the discharge of his duty;
TM Delhi
Adlniniatration. , and .that the decision in State oJAjmer v. Shivji Lal. (1959)
Supp. 2 S: C. R. 739, to the contrary, is wrong. · ·
Sinha C. J.
If a public. servant takes money from a third perwn, by
- corrupt or illegal means or otherwise -abusing his ufficial position,. in
order
to
c;:orrupt
some other public.· servant,
· he commits an offence under s. 5 (I) (d),
even
though
there was no question of his misconducting hitnself in the dis-
. charge of his own duty;
·
· CruMINAL APPELLATE Jun1snwnoN : Criminal
Appeal No. 6 of 1959.
.
AppeaLby speciaUeave Jrom:..the judgment and
order dated the February 4, 1957, ofthe Punjab
. High. Court. (Circuit Bench) at . Delhi. in Criminal
Appeal No. 173-C of 1956. '' • ·
'
.
T. o: 1llathur, p; 0. Mathur and A. N. G0yal, for
the Appellants.
. ..
, , ·
. B. K. Khanna, and T. M. Sen; for the Respondents. i ·
·
·
· .dl~6h~dugust,24. ~The_Judgment,ofthe Court
was elivere . by
.. .
.
.
.
. ·
,
· ., SiNnl, C. J.-·· This'ajipeai' was fir~t .heard by
a Division Bench of three-judges, composed of the
. Chief Justice, Imam and Shah, JJ., on the· 19th of
•February last year.'" In the course of the ·argument,
the learned counsel for · the ·a pp&llant invited ·the
· ·attentfon of'the Court to the decision.of a Division
. Bench-.of.·this. Comt,:.in ··.the ,State of '.Ajmerv.
· ,, Shivji Lal (1) •. '.Ihe·Bench hearing the case, being
of. opinion that the decision aforesaid of this Court
'. 'required reconsideration, referred the·'case ·to a
', .. larger bench; and' that is how it has come before "!ls.
-.·.:c
•. 'It is necessary ~o· state the' following facts in
~ ·order to' bring out tlie question offaw to' be. de.ter-
:i; milled in)his case.' Th~ . appellant was an' upper -
.Division ,Clerk in. the office ;of the. Chief Com-
\• missioner ·of Delhi'· He " had· ·.come · · to ' know
. - , _ . -. I
i .
. -: : _·
~ '. ; i -'_:..: \
·.~
\ r
(I) [1959J Supp. 2. s.c.R. 739.'
-
:! S.C.R.
SUPREME COURT REPORTS
261
1961
Dlianeshwar ;Vara in
Saxena
•
Ram Narain, who is the chief prosecution witness
in this case and who is a fireman serving in Delhi
Fire Brigade. Ram Narain, aforesaid, had for a
long time been anxious to obtain a licence for a
double-barrelled shot-gun. It is alleged that in
this connection he had sought the assistance of the
appellant, who had nothing to do with the issuing
of licences for firearms, which is done by the office
of the Deputy Commissioner, Delhi. The prosecution story, which,
as indicated above, rests
mainly on the statement of Ram Narain, is that he
had submitted two applications during the year
1953 for the purpose of obtaining the licence
aforesaid, with the assistance of the appellant.
Those applications did not produce any results.
In 1954, he made another attempt iii. the same
direction and approached the appellant to help him.
The appellant held out hopes Gf su00ess in obtaining
the licence if he was paid Rs. 250.
Ram Narain
paid only Rs. 140 and held out a promise to pay
the remaining amount after his sister's marriage.
Thus, the third application for the licence was made
in which Ram Narain's salary was declared to be
Rs. 105 per month. This• third attempt proved
successful
and Ham
Narain was ·granted the
necessary licence.
Before the learned single Judge
of the High Court at Delhi, before whom the case
came up on appeal, it was not disputed that the
appellant had used his good offices in expediting
and furthering the progress of the application in
the appropriate
department.
It appearn
that
eventually the authorities concerned were appraised
of the fact that the salary of Ram N°arain was only
Rs. 85 P"r mori.th and that the declaration in the
form that his salary was Rs. 105 per month had
been falsely made with a ,·iew to get over the
difficulty that applications for licences for firearms
by Governmmit servants drawing lf·ss than Rs. 100
per month woul<l not ordinarily be considered.
When the authorities came to know the true facts
about Ram Narain's status in Government service.
v.
The Delhi
Admi11i;tration
Si11ha C. J.
1961
Dhantt1hwar Ntlrai11
Saxena
v.
Thi! l)rlhi
Admini8trution
Sinha C. J,
262
SUPREME COURT REPORTS
[1962]
his licence was <',ancelled and he was called upon to
show cause why ho should not be prosecut<'d for
having made a
false
statement.
Ram Xarain
marle his reprcHentation to the authoritie~ and
showed cauRe against the action proposr·d to be
taken against him, alh•ging that his monthly salary
had hecn falselv declared in the relevant form for
applicati<1n for· the firearm on tho advice of the
appellant. The prosecution story further is that
when Ram Narain got into the trouble, as aforesaid,
about the false Htakm<'nt in his appliration form,
he again approachccl the nppellant. Tho appellnnt
dcmandecl anothPr Rs. 180 as a reward for his
getting the
licc'lce restored.
Ultimntely, Ram
:N"arain agreed to PRY the appellant Rs. 90 in
advance and promis<'d to pay the remaining Rs. 90
after tho lir,.nce had actullv been restored to him.
Ham !\arain for rcasrms of his own, appeared to
have approached his superior officers and thus the
mattt>r reached the Chief Fire Officer, who appraised
the police of the proposed
illeual transaction
between Ram N'arain and the ap1wllant. The police
deciclecl to lay a trnp for catching the appellant
rcd-hand<·d.
AccordingJ:v, Ram Narain saw the
appellant in the Chief Commissioner's office and
accompanied him to tho canteen run hy Kishorilal,
who hns been examined as Defence \Vitness 1.
This canteen is situated on the Aliporc Road near
the Chief Commis.~ioncr's office. There, 8arwan Singh
a taxi drh·er, and Head Constable Gurbachan Singh
in plain clothes, \1 ho were exam incd as prosecution
witnesses, \1·pre pr<·sC'nt by arrnngem<·nt. Rnm Narain
lmn<lrd O\'er the ninety rupc<'S, which he had been
given by the polic:P, to the appellant.
On the prenrrangcd ;;ignal
bei11g gi\'en by Sarwan Singh,
Inspector Snrendra Pal Sinf!h Prosecution Witn<·ss
lli, at once entered th1~ c~nt<·<·n. At thnt time the
ap1wllant, i;us1x·eting that he was hPing trapped,
attempted to hand over the money received by
him from R;;m ;'\ram.in to Ki8horilal, the proprietor
of tho cant<'el..
Tho head constable Gurbacban
<
'
•
3 S.C.R. SUPREME COURT REPORTS
263
~. Singh, however, seized the accused and prevented
~ him from handing over ·the currency notes to
Kishorilal. That is the story which was recited
in the First Information Report drawn up in the
Civil Lines Police Station at 2-30 P.M. th11t very
day, August 5, 1954. After investigation by a
com pet'ent police officer under permission from the
l\Iagistrate, the appellant Was placed on his trial
}
before Shri JawalB DasA, Special Judge Delhi. He
framed the following charge against him.
..
"I, Jawala Dass, Special Judge, Delhi,
hereby charge you (Dhaneshwar Narain) son
of Babu Lakshmi Narain resident of 21,
Todar Mal Lane, New Delhi as follows :
That you on or about 5th August 1954 in
the canteen on 6, Alipore Road, being a
public servant employed in the office of the
Chief Commissioner, Delhi by corrupt and
illegal moans and by otherwise a busing your
position as a public servant obtained for
ynurself a sum of Rs. 90 from Ram Narain at
ihe aforesaid Canteen for the restoration of
his cancelled licence for- the double-barrelled
gun which had beon originally granted to
him by the District Magistrate Delhi and
thereby committed an offence u/s 161 I.P.C.
or in the alternative u/s 5( l)(d) punishable
u/s 5(2) of the Prevention of Corruption Act,
which is within my cognizance.
And I hereby direct that you be tried
by this Court for the
aforesaid offences
mentioned in the charge".
The learned Judge came to the conclusion that the
evidence produced by the prosecution brought the
charge home to the accused, and that the accused,
taking advantage of his own position as an employee in the Chief Co~mis~ioner's office and of Ram
Na.rain's ignorance and anxiety to get the licence
had in:luced him to part with the money on the promise that he will get his licence restored, He also
1961
DhGne$hwar
Narain Sa:e,na
v.
The D1lhi
Administration
Sinha C.J.
. .,_,. . ' . ~. ,
-~ I
264 ·~ ; SUPREME COpRT REPORTS ,.
[1962] .
.
.
.
1961
found th~t at the time of making . this . demand the
Dha ... hwa~
appellant. had. not told Ram .Narain that he.wanted
Narain Suena
. the money for ~omeone who. was .. fn, :a· position to.'
The Delhi
issue the, licence . and .that therefore, the case did ·•
Adminiatra•ion.
not fall .within 8~ 161 of the Indian.Pen.al Ccide. On"
Sin~ C,I •. \!that reasonin~ .he c.onvicted the.-appelJant. under
· s.5(1) (d) punishable under 8. 5 (2) of the Prevention
. of Corl'llptii:m ,A~t ·(II of 19.J.7)-hereipafter called
the· Act-. and. sentenced him 'to. six months,
rigorous imprisonment'. The' appellant. preferred an
appeal which was.heard, by Mr. Justice Falshaw_of .
. the Punjs,b-High Court .. The learrn:id Judge, by his
judgment and order dated February 4,1957. 8ubstan·
tially affirmed the. fin.dings. of'the·;Iearned Special
Judge and maintained 'the order of conviction and
8enterice. ~ He· f< accordingly': dismissed'. the. appeal.
The· appellant; failing-_ to obtain ·a certificate from
the High Court that his was• :i;•ifit ·'case ·for further
appeal to this'. Court,: applied for, and· obtained
fr oni this Court, special leave. to appeal from the
. ju?g~ent of th~ siI_igl~; ~,ud~e of ~he High Cou~t .
.. · . Before this . Court· it has · been ··strenuously
argued 'that :on 'the: findings' of fact arrived at by
t~e courts ,below, ,acct:pting tho pr?secution story
as told' by the main prosecution witness. ,Ram
Narain', no offence uridcr s. 5(1)(d) of the Act has
been' ·made out. Reliance was placed mainly upon
the deCision of the DivisiOn ·Bench of.this' Court in
State ' of 'Ajmer v. Shivji Lal. (1).' : That case, if
correctly: decided,. 'certainly supports the appellant,
contenti~n/ · because it' has been laid down in that
. case• that ·il1 order to 'attract :'the operation of
. s. I\ (l)(d) of the Act it wasnecessal'y element of the
crime charged: that the public servant should haye
miHconducted himself in :the diecharge. of his own
. .. _.
duty, aml · that : if the . official favour proznised. by.
the public s0rvant to the giver': of the.• money was
. not· hi the hands of the public ~ervant; he could not
be::said 'to have misconducte.d himself in. •he discharge of.his .own•duty.; 1. In that, case, 'the; accused
.. (!) [1959] Sopp. 2.s.C.R;:739.'
., .. ! . . .. .... ' .
+
•
•
J..
.....
....
'
.
I
~ l
-
3 S.C.R.
SUPREME COURT REPORTS
265
person was a school teacher and the charge against
him was that he had promised to the giver of the
money to secure a job for him in the Railway Running Shed at Mount Abu. It was not a part of his
duty to make any SUC'h appointment and, therefore,
when he took the money for procuring a job for the
complainant, he could not be convicted for committing misconduct within the meaning of s. 5 (2) of the
Act.
The ratio of the d6cision is contained in the
fol101Ying paragraph of the judgment in that case :
"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 bv
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 his position. If a
public gervant 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. l61 of the Indian Penal Code but would not
be an offence s. 5(2) read with s. 5(1 )(d) of the
Prevention of Corruption Act. The Pssence of
an offence under s. 5(2) read withs. 5 (l) (d) is
that the public servant should do som<>tbing in
the discharge of his own duty and thPrebv
obtain any valuable thing or pecuniary advantage for himself or for any other pPrson by
corrupt or illegal means or by otherwise abusing his position. The words "by otherwise
abi1sing hi>f position" read along with the
words "in the discharge of his duty'' appearing in s. 5 (I )(d) make it quite c!Par that ~n
offence under that section requires that the
public servant
should misconduct himself
in the discharge of his own duty. In the
1961
Dhaneshwar
Narain Saxena
v.
The Delhi
Administratf1
Sinha G .•
1961
Dharushwa1'
]l arain Saxena
v.'
The Delhi
Admini.ttration
SinhaC.·J.
, --
, __ .---
266
·,
.
.
' .
. SUPREME COURT REPORTS
[1962]
\
:
'.
\
-
present case, the accused ·was a teacher and
it was no part of his duty to make appointmenta in the Running Shed at Abu Road.
, There would,' therefore, 1ie no question of his
· committing misconduct in the discharge of his
duty when he took money for procuring a job
·for PremSingh in the Running Shed. So far,
therefore, as the charge under s. 5( l}(d) is concerned, we are of opinion that there was no
question of th!i accused misconducting himself.
in the discharge of' his 'own duty in the
circumstances of this case arid it must fail."
The relevant portion of s. 5 of the Act is in these
termg: ·
·
· ·
• . -~ "5. C~iminal misconduct in discharge
of·official duty-.,
·
·
-
. . · .··. (lj ·A: public· servant is ·said to
commit the offence . of criminal' misconduct
· · i_n ~he discharge of his duty-·
<a> •.. : ...... ••·•··
(b). ~.:~ ••. ~ ...... .
. -
(c) ,,,-.;: ........ :
.
. ( d) 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.
. , ·
.
. .
(2j Any public servant who c·ommits
criminal misconduct in the discharge of his
duty shall he· punishable with imprisonment
for a term which may extend to seven years,
or with fine, or with both."
It will he observed that the heading· of s. 5 is
'.Criminal misconduct . in the discharge of official
duty'. That is a new:offence which was created by
the Act, apart from and in addition to offences under
the Indian Penal Code, like those under s.161 etc.
·•
-
·-
-
3 S.C.R SUPRE:'tt:E COURT REPORTS
267
The legislature :i.dvisedly widened the scope of
the crime by giving a very wide definition in s. 5
with a view to punish those who, holding public
office and taking advantai(e of their official position,
obtain any val!lable thing or pecuniary advantage.
The nece'lsary ingredif•nt of an offence under s. 161,
Indian Penal Code, is the clause "as a motive or
reward for doing or forbearing to do any official
aet or for showing or forbearing to show, in the
eirnrcise of his official functions, favour or disfavour to any person, or for rendering or attempting to rendPr any service or dis-service to any person, with the Central or any Stat<> Government
or Parliament or t,he Leirislature of any Statf', or
with any public servant." but it need not be there
in order to bring an offence under s. 5 of the Act
homd to the accused. The offence under this se<>-
tiou is, thus. wider and not narrower, than the
offonce of bribery as d"fined ins. 161, In<lian PPnal
Code.
The wol'ds "in the discharge of his duty''
do not constitute an esscmfoil im:redient of the
off~ncc. Tbe mistake in the judgment of this nourt
in the af.,resai<l ruling in the 8trzte of Ajmer v.
Shinji Lill (') h.'\s arisen from reading those words,
which arc part m"rely of the nomenclature of the
offence creat•"l by the Statute. whose ingr0dients
are set out in sub-clauses (aHo (cl) that follow. aa
rleseriptivc' of an essnntial an<l additional ingredient
of each of t'·1e types of offc•nce in 1he fnur subclauses. Th it that is the source of the mistake is
app11.rent from the errnneous way in which thP
section has b,,f'n quot<>d at p. 744 of the Rupreme
Court l{eport, in the pELragraph preccdin2 the para·
graph quoted above.
The ingredi, nts of the parti·
oular offence in cl. (d} of s. Ci (l} of th" Aet ar<'; (1)
th1t he should be a public s•:rvant ; ( :!) that he
sh mid use some corrupt or illegal means or oth<'.rwise
abuse his position as a public servant ;
(~) that he
should have thereby obtained a valmible thinir 0r
p~c·miary advant,a\(<;; anrl (·[) for himRe]f nr fnr
any other p<erwn.
In orcler to hring tho chH.rge
[!Tl'Jj S11 ,_
S.C fl 739.
DhaneshU'llf'
1-.lar,,in Saxena
v.
The D,,Ihi
Adm1ni~trafion
Si:.ha C. J.
1961
Dhant1hwar
;:..·arain Saxtna
v.
Tht Delhi
.Admi11i4trotitm
~inha C. J.
268
SUPREME COURT REPORTS
[l!l62]
home to an accused person unckr cl. ( c I) aforesaid
of the section, it is not necessar~· that the public
servant in question, while misconducting himself
should have done so in the discharge of his duty.
It would bo anomalous to say that a public scn·ant
has misconducted himself in the· discharge of his
duty. •·Duty" and "misconduct" go ill together.
If a person has misconducted himself as a public
aa.rvant, it would not ordinarily be in the discharge
of his duty, but the revers" of it. That 'misconduct', which has been made criminal by s. 5 of
the Act, does not contain the clement of discharge
of his duty, by public servant, is also made clear
by reference to the provisions of cl. (c) of s. 5 (l).
It is well settled that if a public servant dishonestly
or fraudulently misappropriates propert~· entrusted to him, ho cannot be saicl to have been doing
eo
in the discharge of his officia.l duty (Yide
the case of Hori Ram Singh Y. The Crou:n (I).
An
application for special leave to appeal from that
decision was refused by tho Privv Council in Hori
Ram Singh v. The
king-Empe~or (').
This Court
therefore, misread the section when it obscrycd that
the offence consists in criminal miscomlnct in the
discharge of official duty. The error lies in import·
ing the description of the offence into the definition
portion of it. It is n.ot necessary to constitute the
offence under cl. (d) of the section that th11 public
servant must do something in connection with his
own duty and thereby obtain any valuable thing or
pecuniary advantage. It is equally wrong to Ray
that if a public servant were to take money from
a third person, by corrupt or illegal means or other·
wise abusing his official position, in order to corrupt
some other public servant, without there being an~'
question of his misconducting himself in the diA·
charge of hie own duty, he has not committed an
offence under s. 5(l)(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 scn·ant
(I) :1939] F.C.R. 1;9.
(2) [1940] F.C.R. IS.
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3 S.C.R.
SUPREME COURT REPOR'.l'S
269
should do something in the discharge of his own
duty and thereby obtain a valuable thing or pecuniary advantage.
These observations dispose of the present
appeal and it must be held that there is no merit
in the contentions raised in support of the appeal.
As the only point raised in support of the appeal
fails, it is accordingly dismissed.
Appeal dismissed.
ALL INDIA BANK EMPLOYEES' ASSOCIATION
NATIONAL INDUSTRIAL TRIBUNAL & OTHERS
(And Connected Petitions)
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and
J. R. MunHOLKAR, JJ.)
Fundamental Right-Right to form association or unionScope of-Stature protecting Banks from disclosure of information
regarding
secret
reserves
etc.-Oonstitutionality of-Bankinll
Companies Act, 1949 (X of 1949), s. 34-A-Oonstitution of
India, Arts. 14, 19(1)(c).
Section 34-A of the Banking Companies Act, I 949, introduced in 1960, provides that no banking company shall be
compelled to produce or give inspection of its books of account
or other document or furnish or disclose any statement or information which the company claims to be of a confidential
4
nature and the production etc., of which would involve di•-
closure of information relating to any reserves not sho\crn as
suc_h in its published balance sheet or any particulars not shown
therein in respect of provisions made for bad and doubtful
debts and other usual or necessary provisions. Sub-section (2) of
'· 34-A provides that any authority, before whom the question
as to whether any amount out of such reserves or provisions
should be taken into account, may refer the question to the
Reserve Bank and the Reserve Bank shall furni•h to the authority a certificate stating that the authority shall or shall not take
-~ •-into account the amount specified therein. Sub-section (3)
makes s. 34-A applicable to only such banking companies whose
operations extend beyond one State. The Appellant contended
1961
Dhane81twar
Na rain Saxen•
v.
The Delhi
~4dminiatratio11
Sinha C. J.
1961
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