# April n. '959 Stale of Aj1nc1 v. Shivji Lal

- **Citation:** [1959] Supp. 2 S.C.R. 739
- **Court:** Supreme Court of India
- **Decided:** 1956-01-11
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/april-n-959-stale-of-aj1nc1-v-shivji-lal-1650
- **Pages:** 10

## Headnote

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 dutyl ndian Penal Code (Act 45 of I86o), ss. 2I, cl. 9, I6I-Prevention
of Corruption Act, I947 (2 of Ig47), ss. 4(I), S(I)(d), (2).
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
withs. 5(1)(d) of the Prevention of Corruption Act, 1947. The
(1) [1952] L.A.C. 219, 222.
1959
April n.
'959
Stale of Aj1nc1
v.
Shivji Lal
740
SUPREME COURT REPORTS [1959] Supp.
prosecution case was that the respondent offered to secure a job
for the complainant in the Railway I<unning 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 banded 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. 16! of the
Indian Penal Code nor in the evidence was there anything to
show that the respondent intended to approach any pnblic 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. 21 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" ins. 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 withs. 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.
(2) S.C.R.
SUPREME COURT REPORTS ·
741
CRIMINAL
APPELLA'rE
JURISDIC'l'ION:
Criminal
r959
.
Appeal No. 3 of 1957.
State of Ajnzcr
Appeal from the judgment and order dated .August
v.
14, 1956, of the former Judicial Commissioner's Court,
Shivji Lal
Ajmer, in Criminal 1\.ppeal No. 2 of 1956, arising out
of the judgment and order dated January 11, 1956,
of the Special Judge, Ajmer, in Criminal Case No. 1
of 1955.
R. Ganapathy Iyer and R. H. Dhebar, for the appel.
lant.
B. D. Sharma, for the respondent.
1959. April 22.
The Judgment of

## Text

(2) S.C.R.
SUPREME COURT REPORTS
739
may be reprehensible but that will not affect the
'959
interpretation to be put on s. 20(2)(b) of the Act.
A dh
. M . 1
Section 12 lays down the duties of the Conciliation Kur7a ;~s ;:,:ice
officer. He is required to bring about settlement
& Another
between the parties and must begin his investigation
v.
without delay and if no settlement is arrived at he is to
The •State of
submit his report to the appropriate Government. No
Bombay
doubt s. 12 contemplates that the report should be
Kapur 1.
made and the proceedings closed within a fortnight and
if proceedings are not closed but are carried on, as they
were in the present case, or if the Conciliation Officer
does not make his report within 14 days he may be
guilty of a breach of duty but in law the proceedings
do not automatically come to an end after 14 days but
only terminate as provided in s. 20(2)(b) of the Act.
Colliery M azdoor Congress, Asansol v. New Beerbhoom
Coal Co. Ltd (1).
As the conciliation proceedings were
pending at the time when Louis Pereira was dismissed
the appellants were rightly convicted under s. 31(1)
read with s. 33 of the Act.
The appeal is therefore dismissed.
Appeal dismissed.
THE STATE OF AJMER (now RAJASTHAN)
v.
SHIVJI LAL
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. WANCHOO JJ.)
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 dutyl ndian Penal Code (Act 45 of I86o), ss. 2I, cl. 9, I6I-Prevention
of Corruption Act, I947 (2 of Ig47), ss. 4(I), S(I)(d), (2).
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
withs. 5(1)(d) of the Prevention of Corruption Act, 1947. The
(1) [1952] L.A.C. 219, 222.
1959
April n.
'959
Stale of Aj1nc1
v.
Shivji Lal
740
SUPREME COURT REPORTS [1959] Supp.
prosecution case was that the respondent offered to secure a job
for the complainant in the Railway I<unning 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 banded 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. 16! of the
Indian Penal Code nor in the evidence was there anything to
show that the respondent intended to approach any pnblic 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. 21 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" ins. 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 withs. 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.
(2) S.C.R.
SUPREME COURT REPORTS ·
741
CRIMINAL
APPELLA'rE
JURISDIC'l'ION:
Criminal
r959
.
Appeal No. 3 of 1957.
State of Ajnzcr
Appeal from the judgment and order dated .August
v.
14, 1956, of the former Judicial Commissioner's Court,
Shivji Lal
Ajmer, in Criminal 1\.ppeal No. 2 of 1956, arising out
of the judgment and order dated January 11, 1956,
of the Special Judge, Ajmer, in Criminal Case No. 1
of 1955.
R. Ganapathy Iyer and R. H. Dhebar, for the appel.
lant.
B. D. Sharma, for the respondent.
1959. April 22.
The Judgment of the Court was
delivered by
W ANCHOO, J.-This appeal is on a certificate grantWanchoo J.
ed by the J udieial Commissioner of Ajmer. One
Shivji Lal Joshi (hereinafter called the accused) was
prosecuted under s. 161 of the Indian Penal C9de 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 Ai't, 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 eourtH
are these. The accused was a teacher in the railway
school at Phulera. Prem Singh who was the complafoant 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
r959
Stale of Aj11wr
v.
5 liivji .ial
Wanchoo f.
742
SUPREME COURT REPORTS [1959] Supp.
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
hi!'J1 at Abu Road Loi;io 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 he would pay Rs. 50 in
advance and Rs. 50 after his appointment.
Consequently, 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 had 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.
(2) S.C.R. SUPREME COURT REPORTS
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 alreatly 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 l;/een
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
(r) [1956] S.C.R. 68~.
r959
Stale of Ajmer
v.
Shivji Lal
Wanchoo j.
I959
State of Aj1ner
v.
Shiv}i Lal
fVanchoo ].
744
SUPREME COURT REPORTS [1959] Supp.
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.
\Ve 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 Rs. 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(l)(d). The relevant
·part of s. 5(l)(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 shonld
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
(2) s.c.R.
SUPREME COURT REPORTS
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(l)(d) of the Prevention of Corruption Act.
The essence of an offence under s. 5(2) read with
s. 5(l)(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(l)(d) make it quite clear that an offence under that
section requires that the public servant should misc
conduct 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 wh\)n he took money for procuring a job for Prem Sin\gh in the gunning Shed. So
far therefore as the charge under s. 5(l)(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
I959
State of Ajmer
v.
Shivji Lal
Wanchoo ].
1959
State of Aj1ner
v.
Shivji Lal
Wanchoo ].
746
SUPREME COURT REPORTS
[1959] Supp.
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
framed 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 Hail way
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
in'fluence 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 render 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 who in 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 accus~ 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
(2) S.C.R. SUPREME COURT REPORTS
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 l'rem Singh to the accused ands. 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 Ahu 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
I959
State of Ajmer
v.
Shivji Lal
Wanchoo ].
I959
Stale of Ajnier
v.
Shivji Lal
Wanchoo ].
I959
April 23.
748
SUPREME COURT REPORTS [1959] Supp.
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 pay.
ment was as a motive or reward for rendering 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 connect.ion.
We therefore dismiss the appeal
though for reasons different from those which commended themselves to the learned Judicial Commissioner.
Appeal dismissed.
RAM DIAL
v.
SANT LAL AND OTHERS
(B. P. SINHA, J. L. KAPUR and
M. HIDAYATULLAH, JJ.)
Election Petition-Allegation of corrupt practice-Mandate to
voters by religious leader-Undue influence-Representation of the
People Act, r95r (27 of r95r), s. r23(2), proviso (a)( ii).
This appeal was directed against concurrent orders of· the
Election Tribunal and the High Court on appeal, setting aside
the appellant's election to the Punjab Legislative Assembly· on
an election petition filed by the respondent No. r, on the ground
of corrupt practice of undue influence within the meaning of
proviso (a)(ii) to s. r23(1) of the Representation of the People
Act, r95r. A large number of voters of the constituency were
Namdhari Sikhs and the appellant, under the auth'ority of the
supreme religious leader of the Namdhari Sikhs and his son,
issued the following poster and distributed it widely throughout
the constituency,-