riminal Appeal No 3 of 1957
Appeal from the judgment and order dated August 14 1956 of the former Judicial Commissioner s Court Ajmer in Criminal Appeal No 2 of 1956 arising out of the judgment and order dated January 11 1956 of the Special Judge Ajmer in Criminal Case No I of 1955
R Ganapathy Iyer and R H Dhebar for the appellant
B D Sharma for the respondent
April 22
The Judgment of the Court was delivered by WANCHOO J
This appeal is on a certificate granted by the Judicial Commissioner of Ajmer
One Shivji Lal Joshi hereinafter called the accused was prosecuted under section 161 of the Indian Penal Code and section 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 Art 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 courts are these
The accused was a teacher in the railway school at Phulera
Prem Singh who was the complainant 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 742 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 him at Abu Road Loco 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 be would pay Rs 50 in advance and Rs 50 after his appointment
Conse quently 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 bad 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
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 already 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 section 21 of the Indian Penal Code
The question whether the accused is a public servant under section 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 section 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 been considered at all
This very question came up for consideration in this Court in G A Monterio vs The State of Ajmer 1 and it was laid down that the true 1  744 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 section 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
We shall first take the charge under section 52 of the Prevention of Corruption Act read with section 51 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 As
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 section 5 2 read with section 51d
The relevant part of section 51d 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 should 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 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 section 161 of the Indian Penal Code but would not be an offence under section 52 read with section 51d of the Prevention of Corruption Act
The essence of an offence under section 52 read with section 51d 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 section 51d make it quite clear that an offence under that section requires that the public servant should misconduct 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 when he took money for procuring a job for Prem Singh in the Running Shed
So far therefore as the charge under section 51d 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 section 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 94 746 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 section 161 of the Indian Penal Code which was trained 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 Railway 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 influence 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 tender 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 whom 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 accused 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 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 ie by securing him a job
In the circumstances one of the ingredients of the offence under section 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 section 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 section 41 of the Prevention of Corruption Act arises in this case as money passed hands from Prem Singh to the accused and section 41 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 section 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 section 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 Abu 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 748 been drawn under section 41 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 payment was as a motive or reward for endering service with any public servant
In this view of the matter we are of opinion that the offence under section 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 connection
We therefore dismiss the appeal though for reasons different from those which commended themselves to the learned Judicial Commissioner
Appeal dismissed


Summary:
In a suit under sec
92 of the Civil Procedure Code alleging that the defendant had been guilty of misconduct and breach of trust as Mahant and praying inter alia that the temple and properties in suit be declared as a religious and charitable trust and the defendant be removed from the Gadi and a suitable successor appointed in his place the District Judge and the High Court held concurrently that the defendant was not guilty of misconduct or breach of trust and dismissed the suit but made a declaration to the effect that the temple and properties in the possession of defend ant belonged to a public trust of a religious and charitable character Held that a suit under sec
92 Civil Procedure Code is a suit of a special character which presupposes the existence of a public trust of a religious or charitable character and it can proceed only when there is a breach of such trust or directions from the Court are necessary for the administration thereof and it must pray for one or other of the reliefs that are specifically mentioned in the sec tion and therefore as the Courts found concurrently that the allegations of breach of trust were not made out and no direction of the Court for proper administration of trust was sought the very foundation of a suit under sec
92 Civil Procedure Code became wanting and the plaintiffs had no cause of action for their suit and in the circumstances the declaration of the High Court about the existence of a public trust was inconsequential and was no more than an obiter dictum and such declaration must be deleted from the decree dismissing the suit