# THE STATE OF GUJARAT v. MANSHANKAR PRABHASANKAR DWIVEDI

- **Citation:** [1973] 1 S.C.R. 313
- **Court:** Supreme Court of India
- **Decided:** 1972-04-26
- **Bench:** A. N. Grover, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-gujarat-v-manshankar-prabhasankar-dwivedi-5789
- **Pages:** 13

## Headnote

313
Indian Penal Code ss. 21 & 161--frcturer in Govt. College appointed
examiner at an examination held iH' University of Gujarat-Whether a
'public servant within n1eanin1? of s. 21 I.P.C. Cl. 9 as it stood before its
amendment by Act 40 of 1964.
Prevention of Corruption ·Act, 1947-,,, 5(2) read with s. (I) (d}-
Ofience under-Abuse of position as a public
servant
necessary
even
when pecuniary advantage etc. is obtained by corrupt or illegal n1eans.
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 offence~ under s. 161 Jnd:an 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 (i) that in
his capacity as examiner cif Gujarat University he 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 Govemment College he had not
abused his position as such public servam and therefore was not guilty
under s. 5 ( 2 j read with s. 5 ( 1) ( d) of the PreYention 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 undersl<lod
and employed in the Ninth Clause even though examining answer books
may fall within •he 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 • local authority
within the meaning of claui;e 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 HJ
Ram Krishna Da/mia v. Delhi Administ;atioli, [1963] 1 S. C. R, 253,
applied.
(ii) It was never the case of the prosecution that D had been
guilty of any abuse df his position as a lecturer of the Government College. As he was not a public servant when he was acting as an examiner
it ~ould 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 El
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SUPREME COURT REPORTS
[1973] l S.C.R.
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 valuablt 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 diEhonest act.
But the
abuse of position as a public servant would be essential whether the ml!ans
are corrupt or illegal.or are of the nature covered by the word "otherwise".
The analysis of clause (d) madr in 'l\'arayanan Nanibiar's case seems to
lend support to the view taken by the High Court that the abuseof · position as a public servant is essential. [324 A-DJ
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 wou

## Text

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THE STATE OF GUJARAT
v.
MANSHANKAR PRABHASANKAR DWIVEDI
April 26, 1972
[A. N. GROVER AND M. H. BEG, JJ.J
313
Indian Penal Code ss. 21 & 161--frcturer in Govt. College appointed
examiner at an examination held iH' University of Gujarat-Whether a
'public servant within n1eanin1? of s. 21 I.P.C. Cl. 9 as it stood before its
amendment by Act 40 of 1964.
Prevention of Corruption ·Act, 1947-,,, 5(2) read with s. (I) (d}-
Ofience under-Abuse of position as a public
servant
necessary
even
when pecuniary advantage etc. is obtained by corrupt or illegal n1eans.
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 offence~ under s. 161 Jnd:an 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 (i) that in
his capacity as examiner cif Gujarat University he 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 Govemment College he had not
abused his position as such public servam and therefore was not guilty
under s. 5 ( 2 j read with s. 5 ( 1) ( d) of the PreYention 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 undersl<lod
and employed in the Ninth Clause even though examining answer books
may fall within •he 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 • local authority
within the meaning of claui;e 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 HJ
Ram Krishna Da/mia v. Delhi Administ;atioli, [1963] 1 S. C. R, 253,
applied.
(ii) It was never the case of the prosecution that D had been
guilty of any abuse df his position as a lecturer of the Government College. As he was not a public servant when he was acting as an examiner
it ~ould 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 El
314
SUPREME COURT REPORTS
[1973] l S.C.R.
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 valuablt 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 diEhonest act.
But the
abuse of position as a public servant would be essential whether the ml!ans
are corrupt or illegal.or are of the nature covered by the word "otherwise".
The analysis of clause (d) madr in 'l\'arayanan Nanibiar's case seems to
lend support to the view taken by the High Court that the abuseof · position as a public servant is essential. [324 A-DJ
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, there/fore. be reasonable to put on clause (d) a construction which is consistent with the other clauses of the sub-section.
[325 Cl
M. Narayanan Nambiar v. State of Nerala, [1963] Suppl. 2 S.C.R. 724
and Ram Kri•hna & Another v. The State of Delhi, [1956] S.C. R. 182,
applied.
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Dhaneshwar Narain Sexana v. Delhi Administration, [1962] 3 S.C.R.
259, distinguished.
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State of Aimer v. Shivji Lal, [1959] Suppl. 2. S.C.R. 739, referred to.
CRIMINAL APPELLATE }UR!SDICTION:
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 SSS of 1966.
."!Jrmila Kapoor, B. D. Sharma for S. P. Nayar and Kamlesh
Bans'al, 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 delivl:red 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 o~rtificates being defective for want
of reasons thev could not be entertained on that short ground.
However two "petitions for special leave were filed and the same
were gra~ted. Those appeals (Cr. As. 63 & 64 of 1972) will be
dealt with in this judgment.
The facts
may be stated.
Manshankar Prabhashankar
Uwivedi was at th·~ material time a Senior Lecturer at ihc D.K.V.
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STATE v. M. P. DWIYEDI. (Grover, !:)
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Arts & Science College, Jamnagar which is a Gov.ernment college.
Vallabhdas Oordhandas 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 prac·tical examination for the first year B.Sc. wa'
to be held by the Gujarat University. One of the centres
W<I'
Surendranagar. Dwiv.edi had been appointed as an Examiner fo•
Physics practical. He is al!eg·~d to J.i~ve accepted. grat_ification of
Rs. 500/- other than legal remuneratlon for show!T;g favour to ~'
candidate Jayendra Jayantilal Shah by giving him more mark'
than he deserved in the Physics
practical
examination.
It is
stated that he had obtained {hat
amount through Thakkar.
Dwivedi was charged with commission of offences under s. 161.
lndiari Penal Code and s. 5 ( 2) read with s. 5 (I) ( d) of the PrcYention 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.
Th·~ 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/-,
I in default further ri,gorous imprisonment for six
months)
on
each of ·these persons.
Both the convicted persons filed appeals to the High Court.
The High Court found that the prosecutic,n case- had been proveJ
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 us.
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 pre-arranged plan it was alleged that ~ranlal
Mohanlal who was the complainant and who was the brother-inl:1w of the student, Jayendra, went to the college,
where
th1•
examination was to take place, along with a ·panch witness Shivlal. Thakkar was in the porch of the college and he demanded 1the
money for being given to Dwivedi.
Pranlal,. however, insisted
that th·~ money would be paid after he had talked ithe 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
.20 with him to a place called 'Vikram Lodge' which
th~y did.
There Thakkar again demanded money but Pranlai ga vc the same
reply which he had given before. At about 11 A.M. these thre~
person& can1e back to the college and went to the first tloor where
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SUPREME; COURT REPORTS
(1973] l S.C.R.
the examination hall was situate and stood outside the hall. There
Thakkar brought Dw:ivedi and Dwivedi said "why are you delay·
ing. You are a fool. You will spoil the life of the student. Pay
the amount to Thakkar". TI1en Pranlal paid Rs. 500/· to Thakkar
in the presence of Dwivedi. Thakkar counted the money and put
it in hK pocket. Dwivedi wen1 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 a~d with the Special Judge iliat the prose.
~ution case against the present respondents in respect of the
demand and acci.:vtance of bribe of Rs. 5001- for the purpose of
givin)l; more marks to J ayendra had been proved. It 'Vas, how·
ever, argned 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 wrvant. 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 wifu the exercise of his official functions as a public servant
but in connection with his work as an Examiner of the Gujafat
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 al·
though he had abused his position as an Examiner but he had nol
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 Aot the SJJ'xial 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 S>~rvant. The High Court did not accept the
reasoning or the cgnclusion 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
terins :-
"Ninth.--Every officer whose duty it is, as such
officer ~o take, receive, kCO!) or expend any 'Property on
behalf elf the Government or to make any survey, assessment or contract on behalf -of the Government or to
execute any revenue l'rtlCeSs <Jr to investi,;irte, or to report <m any matter aft'ectme; the pecuniary interests of
the Government or to make, authenticate or ~
any
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STATE v. M. P. DWIVEDI (Grover, J.)
document relatinJ?; to the pecuniary interests of the Govermnent or (o prevent the infraction of any Jaw for tbe
protection of the pecuniary interesits of the Government and every officer in the &~rvice or pay of the Government or remunerated by fees or commission for the
performance of any public duty".
317
The first question which has to be resolved is whether respondell'I
Dwivedi wai; a public servant within the meaninJ?; 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 Exami~r 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 ques·
tion that immediately arises is whether an Examiner of a University as such can be regarded as a public servant within the mean·
iag of ninth clause of s. 21, Indian Penal Code. It will be useful 10 look at the scheme of s. 21. There could be no difficulty
about the second, third and 4th clauses which deal with the commissioned ofliers in the- Armed Forces, judgo~s 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 assistioit a Court of Justice or public servant.
-Under
the sixth clause every arbitrator or other person to whom any
cause or matter has b.!en referred for decision or report by any
C<;urt of J uruce or by any other competent public authority would
als.o fall within the words "public servant".
Seventh a11d eighth
clauses deal with persons who perform mainly policing duties.
The tenth clause covers officers whose duty it is to take,
r~
ceive, keep or expend any property, to make any s1,uv_ey or assessment or to levy any rate or tax etc. The elev11n:th clause relates
to ~rrons who hold any office by virtue of which they are em·
powered to prepare, publish etc. an electoral roll or to conduct
an election. The twelfth clause covers every officer in
th~ s.er·
1'ke or pay of local authority or corporation engaged in any trade
or iw,iusμy established by 1he Central, Provin.cial or State Gov·
emment or a Gov('rnme11t company. In the illustration given it
is atll.ted 1;hat a Municipal Commissioner i~ a public servant
According ~o Explanation 1 oersons fallin,g ~ind.er any of ti~ des·
CJ"iption
given in -the
tw~lfth clause are public servants
wbether appointed by the Goverru'l.ent ·or not. Section 21 was
amended in 1964. Th.e ninth cl.atise was retained substaiitia!l:.r
as it existed p~viously e11:cept that the following words were
318
SUPREME COURT REPORTS
[1973] 1 S.C.R
dropped : "and every officer in the service or pay of the Government or remunerated by fee or commission for ti'.e purpose of
any public duty". The twelfth clause was recast and the new provision was in these terms :-
''Twelfth.-Every person-
(a)
(b)
in the service or pay of the Government or
remunera'led by fees or commission for the performance of any public duty by the Government:
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 Compan~2s AcL
1956."
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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 expres>ion "every offio~r·· has now been
substituted by ithe words "ev.e1y person" and after the words "perD
formance of any public duty" it has been added "by the Government."
The argument which has been addressed mainly on behalf ci
the State and which was pressed before the High Cou11 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 till~ 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 ''
public duty.
Jf Dwivedi was remuner~ted by fee or commission
by the University for the performance of that public duty he would
b.e covered by the last part of the ninth clause. as it stood at the
relevant itime.
H is admitted on behalf of the State that after the
amendment made in 1964 under the twelfth clause it is oniy 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-ClaitSc-·(a)-of--the Twe~ clause.
But it is
argued that. the .position was different under the Ninth clause as
the words "Q_y •the Government" did not follow the words "performance of .anly 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
n.ecessary that the remuneration by way of fee. or commission
should be paid by the Government as is now necessary under sub-
~iause (a) of the Twelfth clause after the amendment.
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STATE v. M,. P, DWIVEDI "(Grover, J.)
319
The High Court gave the following reasons for holding that
the last part of the Ninth clause, as it stood before the amendmen't,
would not cover the case of Dwivedi:
(i) The context of the whole of the Ninth clause indicated 1hM the connection with the Government was
necessary either in respect of the payment of remun~
ration or in respect of the performance of pubhc
duty.
(ii)
(iii)
(iv)
_The person to be an officer must hold some office.
The holding of office implied charge of a duty attach·
ed to that office.
The person who was remunerated
bv fee or commission must be an officer.
Therefore
the use of the word "officer" read in the context o!
the words immediately preceding the last part would
indicate that the remunerntion
contemplated
was
remuneration by the Government.
The amendment made in 1964 and in particular the
addition of the words "by the Government" in sub.
clause (a) of clause Twelfth showed the legislative
interpretation of the material portion of clause Ninth
as it stood before the amendment under consideration.
It is well settled that in a statutory provision imposing
criminal liability if there is any doubt as 10 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 Couvt reason No. (ii) seems to have a lot of force.
lt 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 Govermnent 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.
He 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 1he work of an Investigator was of a nature which
could well be regarded as public duty and rthe remuneration which
was to be paid to him was by the Government.
Yet it was held
that he could not be regarded as holding an office.
Ou that
view it is not possible to put the case of a University Examiner in
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SUPREME COURT Rlil'ORTS
[1973] l S.C.R.
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
lhc provisions of the Gujarat University Act 1949 that rhere is
no such condition that only that person can be appointed as Examiner who is the hold-~r of an office.
Section 20(xxii) provides
for appointment of Examiners by the !:yndicate.
Section 30
empowers the Syndicate to make Ordinances to provide for all or
any of the following matters :
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(iii) "conditions governing the appointment and dulics
of examiners."
No such Ordinance has been brought to our notice which restricts
the appointmenit of the examiners to persons in the service of the
Government or holders of any particular office.
Suppose for
instance there is a private individuar who is not in the regular
employment or service of either the Government or any pu!>lic
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 officei when he is appointed for the purpose of
examining eo~rtain answer books even though that may fall within
the performance of a public duty.
There is anoth~r difficulty
in regarding an examiner as a holder of an office.
llefore the
amendment made. in s. 21 by Act 40 of 1964 a person who is
appointed an examiner and who receives remuneration by fue
would fall within the term "public servant" if he is hfllder of an
office.
But persons in the regular service of the Un.versity would
not t>e covered by the Ninth Clause. If at all, it would be the
Twefth Claus-~ 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 ithe Twelfth Clause before
the amendment of s. 21. The expP~ssion "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 Govern·
ment e.g., Municipalities, Municipal Corporations, Zila Parishads
etc. As a matt~r of fact s.3.(31) of the General Clauses Act 1897
defines "local authority" to mean a municipal commHtee, district
board, body of poflt commissioners or other
auth0rity legally
entitled to, or entrusted by the .-;overnment with the control or
management of a municipal or 'iocal fund.
It could never be
intended that only such officers .of the Universrty 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 tha:t a University Examiner cannot be held to
be an officer. Once that conclusion is reached, he canr.'Jt be covered by the Ninth Clause of section 21 of the Penal Code.
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STATE v. M. P. DWIVEDI (Grover, J.)
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The next point which calls for decision is whether appellant
Dwivedi was 2uilty of an offence under s.5 (1 )( d) of the Corruption Act.
That provision, as it stood a1 the material time, was
as follows :
"S. 5 (1) A public servant is said to commit the
offence of crimina~ misconduct in the discharge of nis
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 his
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 ito constitute an offence
under clause ( d) of s. 5 ( l) of the Corruption Act it is not necessary that 1he 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 ,, ::-ublic
servant as defined in s.21 of the Indian Penal Code.
Dwi>edi
while committing the offence under s.5(1)(d) had two positions;
(1) he was a lecturer in a Government ~ollege and (2) he was
an examiner appointed by the Gujarat Unf-.ersity for doing examination work on remuneration paid by the University.
As a lecturer in Government College he certainly fell within the definition
of "public fil)rvant" bwt the act of corruptioq attributed lo him
was in his capacity as an examiner. A question at once arises is
whether s.5 (I)( d) will apply 1o case of a G'<\vernment servant
who commits an act punishable under the said provision even
though when the act is committed by him he is holding a diffuren't
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 ( l) 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
posi~ion as ~ public servant although the means employed were
corrupt and 1llegal.
·
The argument on behalf of the &tate is that even if Dwivedi
was not punishable under s.161 of the Indian Penal Code with
refe~ence. to the work in respect of which he accepted an illegal
l?l'llhficat10n. he would nevertheless be liable under s.5(1 )(d) of
the Corrupl!on Act because the liability of a public servant has
been made a)>solute and it is wholly immaterial in what capacity
he has comnutted the offence tinder sub-clause (d) of s.5(1) of the
-(i)Tt962] l s.c.R.259-. ---··-
322
SUPREME COURT REPORTS
[1973] l S.C.R.
Corruption Act.
He need not have obtained for himself any
A
valuable thing_ or pecuniary a<lvantage as a public servant. Once
lte 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 ll'~ed not further be proved
that he abused his position as a public servant.
B
We may refer to the previous decisions of \his Court relating
tu the interpretwtion of s.5 ( 1 )( d) of the Corruption Act.
In
Dhaneshwar Narain Saxena v. Delhi Administration(1) Saxena,
who was an Upper Division Cl.erk, was approached by one Ram
Narain~ a fireman serving in the Delhi Fire Brigade, for assistance in obtaining a license for a double barrelled shot gun which
C
was, in fact obtained. Saxena was paid certain amount and
promise was made to pay him more.
Ram Narain had made ;1
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 cancel~~d it was
alleged that he again approached Saxena who demanded some
D
amounts for helping him in the matter of restoration of the license.
UHimately a trap was laid and Saxena was caught while the money
was being handed over to him.
The main. argum>~nt in this case
centered on the question whether Saxena had
~ommitted any
misconduct in the discharge of his duty.
Overruling the earlier
decision of this Court in the State of Ajmer v. Shivji Lal(') it was
held that it was not nec~ssary to constitute the offence under
E
clause (d) of s.5(1) that the public servant ml"'~ do som~ thi!lg
in connection with his own duty and thereby obtain any valuaBte
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 p.Qsi_tion in order to corrupt some other public servant
F
without there ·being any question of his miscnnducting himsdf in
the discharge of his own duty he has not committed an offence
under s. 5 ( 1) ( d). H is also erroneous to hold that the essence
of an offence under s.5(2) read with s.5(1)(d) is 1that the public
servant should do some thing in the discharge of his own duty
and there.by obtain valuable thing or pecuniary advantage." No
G
such question was argued or decided in that case whether for the
commission of an offence under s. 5 (1 ) ( d) abuse of posrtion 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 talcing advantage of his own position as an employee in the
Chief Commiss_ioner's Office and Ram Narain's ignorance and anH
xi~ ~o get the license, had induced him to part with the money on
(I) [1962] 3- S.C.R. 259.
(2) [1959] Suppl. 2 S.C.R. 739.
A
B
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STATE v. M. P. DWIVEDI (Grover, J.)
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 (1) was clearly one in which there had been abuse by a
Government servant of his position as a public sen·ant.
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 th<1t case
proceeded on the basis that clause ( d) would take in only the
case of direct benefit obtained by a public servant for hims.elf or
for any other person from a third party in •the manner prescribed
therein 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
posHion of a public servant", for the argument mainly
turns upon the said clause.
The phraseology is very
comprehensive.
It covers acts done "otherwbe" than
by corrupt or illegal means by an officer abusing his
position.
The g,ist 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 some.thing 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 )!,athered 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 th·~ clause, that is
to say ~omething 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 1the above d·~cision the question whether the words
H
·'abusing his position as a public servant" qualify the word "otherwise" or also the words "corrupt or illegal means" in s.5(1) (cl)
(I) !1963] Suppl. 2 S.C.R. 724.
SUPREME COURT REPORTS
(1973] l S.C.R.
was n.ot 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; 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 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
mi"llns employe<l may be corrupt or illegal or may be of such a
na!'Jre as would savour of a dishonest aot.
But the abuse of
position as a public servant would be essential whether the means
are corrupt or il!e~al or are of the nature covered by the word
"otherwise".
The analysis of clause (d) made in Narayanan
Nambiar's(') case by Sabba Rao J. (as he then was) seems to'
lend suppo~t 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 these lines. The second part of cl. (d)
relating to the obtaining of the valuable thing eitc. rt:Iates 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 d9es 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, tho;! words "by
corrupt or illegal means" or "by otherwise" form a single clause
and do nat form two clauses.
If that-is so the abuse of position
as a public servant tha!t is referredto is the abuse by corrupt or
iilegal means or by CYtherwise."
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).
Briber_v of the kind specified in s.165, if it is habitual, is
comprised in clause
(b)
Clause
( c)
contemplates criminal
breach of trust by a public servant. 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 o~erved :-
"In one sense, this is no doubrtrue but it does not
follow that there is no overlapping of offences.
We
have primarily to look at the language employed a11d
give effect to it.
One class of cases might arise where
corrup'! or illegal means are adopted or pursued by the
public servant to gain for himself a pecuniary advantage.
·-
(I) [1963] S'lPP 2 S.C.R. 724.
(2) [1956] S.C.R. 182.
A
B
c
D
F
G
H
A
B
c
D
E
F
ST.ATE 1'. M. P. DWIVEDI (Grover,/.)
The word "obtains" on which much stress was. laid does
not eliminate 1the 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 receiver.
One may accept
money, that if offered, or solicit payment of a bribe, or
extort the bribe by threat or coercion; in each cai:e, he
obtains a pecuniary advantage by abusing his position
as a public servant."
325
Thus in clauses (a), (b) and ( c) the abuse of position as a 1>11blic
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
ob.iect 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 Nambiar's(1) case.
Counsel for the Sta!te has not been able to satisfy us that the
various reason~ 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 servan't.
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 ti!'~ decision of the High Court
·and dismiss both the appeals.
G.C.
Appeals dismissed.·