A No 190 and 191 of 1969 and 63 and 64 of 1972
Appeals by certificatespecial leave from the Judgment and Order dated September 9 1968 of the Gujarat High Court in Criminal Appeals Nos 486 and 555 of 1966
Urmila Kapoor B D Sharma for section P Nayar and Kamlesh Bansal for the appellant In all the appeals
MV Goswami for the respondent In Cr
Nos 190 of 1969 and 63 of 1972
HK Thakur and section K Dholakia for the respondent In Cr
191 of 1969 and 64 of 1972
The Judgment of the Court was delivered by Grover J
This judgment will dispose of all the four appeals from the judgment of the Gujarat High Court
Two appeals ie Cr
No 190  191 of 1969 had been brought by certificate
The certificates being defective for want of reasons they could not be entertained on that short ground
However two petitions for special leave were filed and the same were granted
Those appeals Cr
63  64 of 1972 will be dealt with in this judgment
The facts may be stated
Manshankar Prabhasbankar Dwivedi was at the material time a Senior Lecturer at the DKV 315 Arts  Science College Jamnagar which is a Government college
Vallabhdas Gordhandas 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 practical examination for the first year BSc
was to be held by the Gujarat University
One of the centres was Surendranagar
Dwivedi had been appointed as an Examiner for Physics practical
He is alleged to have accepted gratification of Rs 500 other than legal remuneration for showing favour to a candidate Jayendra Jayantilal Shah by giving him more marks than he deserved in the Physics practical examination
It is stated that he had obtained that amount through Thakkar
Dwivedi was charged with commission of offences under section 161 Indian Penal Code and section 5 2 read with section 5 1  d of the Prevention of Corruption Act 1947 hereinafter called the Act
Thakkar was charged under section 165 A Indian Penal Code and section 52 of the Act read with section 114 of the Indian Penal Code
The 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 1000  in default further rigorous imprisonment for six months Oil each of these persons
Both the convicted persons filed appeals to the High Court 
The High Court found that the prosecution case had been proved 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 prearranged plan it was alleged that Pranlal Mohanlal who was the complainant and who was the brother in law of the student Jayendra went to the college where the examination was to take place along with a panch witness Shivaji
Thakkar was in the porch of the college and he demanded the money for being given to Dwivedi Pranlal however insisted that the money would be paid after he had talked the matter over with Dwivediand 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 go with him to a place called Vikram Lodge  which they did
There Thakkar again demanded money but Pranlal gave the same reply which he had given before
At about 11 AM these three persons came back to the college and Went to the first floor where 3 L128SupCI72 316 the examination hall was situate and stood outside the hall
There Thakkar brought Dwivedi and Dwivedi said why are you delaying
You are a fool you will spoil the life of the student
Pay the amount to Thakkar
Then Pranlal paid Rs 500 lo Thakkar in the presence of Dwivedi
Thakkar counted the money and put it in his pocket
Dwivedi went 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 agreed with the Special Judge that the prosecution case against the present respondents in respect of the demand and acceptance of bribe of Rs 500 for the purpose of giving more marks to Jayendra had been proved
It was however argued before the High Court that as regards section 161 Indian Penal Code it was necessary that the person committing that offence must be a public servant
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 with the exercise of his official functions as a public servant but in connection with his work as an Examiner of the Gujarat University
An Examiner of the University did not fall within the definition of a public servant as given in section 21 of the Indian Penal Code
It was maintained on behalf of Dwivedi that although he had abused his position as an Examiner but he had not 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 Act the Special 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 servant
The High Court did not accept the reasoning or the conclusion of the Special Judge on these points
Section 21 of the Indian Penal Code as it stood at the mate rial time and before the amendments which were made later contained several clauses
The ninth clause was in the following terms Ninth
Every officer whose duty it is as such officer to take receive keep or expend any property on behalf of the Government or to make any survey assessment or contract on behalf of the Government or to execute any revenue process or to investigate or to re port on any matter affecting the pecuniary interests of the Government or to make authenticate or keep any 317 document relating to the pecuniary interests of the Government or to prevent the infraction of any law for the protection of the pecuniary interests of the Government and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty
The first question which has to be resolved is whether respondent Dwivedi was a public servant within the meaning of the Ninth clause of section 21 Indian Penal Code keeping in view the capacity in which and the nature of the duties which he was Performing as an Examiner 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 question that immediately arises is whether an Examiner of a University as such can be regarded as a public servant within the meaning of ninth clause of section 21 Indian Penal Code
It will be useful to look at the scheme of section 21
There could be no difficulty about the second third and 4th clauses which deal with the commissioned offers in the Armed Forces judges 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 assisting a Court of Justice or public servant
Under the sixth clause every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice or by any other competent public authority would also fall within the words public servant
Seventh and eighth clauses deal with persons who perform mainly policing duties
The tenth clause covers officers whose duty it is to take receive keep or expend any property to make any survey or assessment or to levy any rate or tax etc
The eleventh clause relates to persons who hold any office by virtue of which they are empowered to prepare publish etc
an electoral roll or to conduct an election
The twelfth clause covers every officer in the service or pay of local authority or corporation engaged in any trade or industry established by the Central Provincial or State Government or a Government company
In the illustration given it is stated that a Municipal Commissioner is a public servant
According to Explanation persons falling under any
of the description given in the twelfth clause are public servants whether appointed by the Government or not
Section 21
was amendedin 1964
The ninth clause was retained substantially is it existed previously except that the following words were 318 dropped and every officer in the service or pay of the Government or remunerated by fee or commission for the purpose of any public duty
The twelfth clause was recast and the new provision was in these terms  Twelfth
Every person a in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government b 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  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 expression every officer has now been substituted by the words every person and after the words performance of any public duty it has been added by the Government
 The argument which has been addressed mainly on behalf if the State and which Was pressed before the High Court 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 the 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 a public duty
If Dwivedi was remunerated by fee or commission by the University for the performance of that public duty he would be covered by the last part of the ninth clause as it stood at the relevant time
It is admitted on behalf of the State that after the amendment made in 1964 under the twelfth clause it is only 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 clause a of the Twelfth clause
But it is argued that the position was different under the  Ninth clause as the words fly the Government did not follow the words performance of any 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 necessary that the remuneration by any of fee or commission should be paid by the Government as is now necessary under subclause a of the  Twelfth clause after the amendment
319 The High Court gave the following reasons for holding that tile last part of the Ninth clause as it stood before the amendment would not cover the case of Dwivedi i The context of the whole of the Ninth clause indicated that the connection with the Government was necessary either in respect of the payment of remuneration or in respect of the performance of public duty
iiThe person to be an officer must hold some office
The holding of office implied charge of a duty attached to that office
The person who was remunerated by fee or commission must be an officer
Therefore the use of the word officer read in the context of the words immediately preceding the last part would indicate that the remuneration contemplated was remuneration by the Government
iiiThe amendment made in 1964 and in particular the addition of the words by the Government in subclause a of clause Twelfth showed the legislative interpretation of the material portion of clause Ninth as it stood before the amendment under consideration
ivIt is well settled that in a statutory provision imposing criminal liability if there is any doubt as to 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 Court reason No ii seems to have a lot of force
It is supported by the decision in Ram Krishna Dalmia vs Delhi Administration1
There a Chartered Accountant had been appointed as an Investigator by the Central Government under the 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
The could not therefore become a public servant within the latter part of Ninth Clause of section 21 of the Indian Penal Code
It is noteworthy that the work of an Investigator was of a nature which could well be regarded as public duty and the remuneration which was to be paid to him was by the Government
Yet it was hold that he could not be regarded as holding an office
On that view it is not possible to put the case of a University Examiner in 1  320 a different category
A University Examiner cannot be consi dered to hold an office in the sense in which that word has been understood and employed in the Ninth Clause
It is clear from the provisions of the Gujarat University Act 1949 that there is no such condition that only that person can be appointed as Examiner who is the holder of an office
Section 20xxii provides for appointment of Examiners by the Syndicate
Section 30 empowers the Syndicate to make Ordinances to provide for all or any of the following matters iiiconditions governing the appointment and duties of examiners
 No such Ordinance has been brought to our notice which restricts the appointment of the examiners to persons in the service of the Government or holders of any particular office
Suppose for instance there is a private individual who is not in the regular employment or service of either the Government or any public 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 office when he is appointed for the purpose of examining certain answer books even though that may fall within the performance of a public duty
There is another difficulty in regarding an examiner as a holder of an office
Before the amendment made in section 21 by Act 40 of 1964 a person who is appointed an examiner and who receives remuneration by fee would fall within the term public servant if he is holder of an office
But persons in the regular service of the University would not be covered by the Ninth Clause
If at all it would be the Twelfth Clause 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 the Twelfth Clause before the amendment of section 21
The expression 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 Government eg Municipalities Municipal Corporations Zila Parishads etc
As a matter of fact s3 31  of the defines local authority to mean a municipal committee district board body of port commissioners or other authority legally entitled to or entrusted by the Government with the control or management of a municipal or local fund
It could never be intended that only such officers of the University 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 that a University Examiner cannot be held to he an officer
Once that conclusion is reached he cannot be covered by the Ninth Clause of section 21 of the Penal Code
321 The next point which calls for decision is whether appellant Dwivedi was guilty of an offence under s5 1 d of the Corruption Act
That provision as it stood at the material time was as follows  section 51 A public servant is said to commit the offence of criminal misconduct in the discharge of his duty dif 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 hi duty were omitted
This Court has however taken the view in Dhaneshwar Narain Saxena vs Delhi Administration1 overruling an earlier decision that in order to constitute an offence under clause d of s51 of the Corruption Act it is not necessary that the 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 a public servant as defined in s21 of the Indian Penal Code
Dwivedi while
committing the offence under section 5 1 d had two positions 
1 he was a lecturer in a Government College and 2 he was  an examiner appointed by the Gujarat University for doing examination work on remuneration paid by the University
As a lecturer in Government College he certainly fell within the definition of Public servant but the act of corruption attributed to him was in his capacity as an examiner
A question at once
arises is whether s51d will apply to case of a Government servant who commits an act punishable under the said provision even though when the act is committed by him he is holding a different 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 s5 1  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 Position as a public servant although the means employed were corrupt and illegal
The argument on behalf of the State is that even if Dwivedi was not punishable under s161 of the Indian Penal Code with reference to the work in respect of which he accepted an illegal certification he would nevertheless be liable under s51d of the Corruption Act because the liability of a public servant has been made absolute and it is wholly immaterial in what capacity he has committed the offence under sub clause d of s51 of the 1  322 Corruption Act
He need not have obtained for himself any valuable thing or pecuniary advantage as a public servant
Once he 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 s51d
It need not further be proved that he abused his position as a public servant
We may refer to the previous decisions of this Court relating to the interpretation of s51d of the Corruption Act
In Dhaneshwar Narain Saxena vs Delhi Administration1 Saxena who was an Upper Division Clerk was approached by one Ram Narain a fireman serving in the Delhi Fire Brigade for assistance in obtaining a license for a double barreled shot gun which was in fact obtained
Saxena was paid certain amount and promise was made to pay him more
Ram Narain had made a 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 cancelled it was alleged thathe again approached Saxena who demanded some amounts for helping him in the matter of restoration of the license
Ultimately a trap was laid and Saxena was caught while the money was being handed over to him
The main argument in this case centered on the question whether Saxena had committed any misconduct in the discharge of his duty
Overruling the earlier decision of this Court in the State of Ajmer vs Shivji Lal2 it was held that it was not necessary to constitute the offence under clause d of section 5 1 that the public servant must do some thing in connection with his own duty and there by obtain any valuable 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 Position in order to corrupt some other public servant without there being any question of his misconducting himself in the discharge of his own duty he has not committed an offence under section 5 1 d
It is also erroneous to hold that the essence of an offence under section 5 2  read with section 5 1 d is that the public servant should do some thing in the discharge of his own duty and thereby obtain valuable thing or pecuniary advantage No such question was argued or decided in that case whether for the commission of an offence under section 5 1  d abuse of position 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 taking advantage of his own position as an employee in the Chief Commissioner s Office and Ram Narain s ignorance and anxiety to get the license had induced him to part with the money on 1  2 1959 Suppl
2 SCR 739
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 vs State of Kerala was clearly one in which there had been abuse by a Government servant of his
position as a public servant
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 that case proceeded on the basis that clause d would take in only the case of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner prescribed herein and did not cover the case of wrongful loss caused to the government by abuse of his power
While analysing s5 1 d it was said Let us look at the clause by otherwise abusing the position of a public servant for the argument mainly turns upon the said clause
The phraseology is very comprehensive
It covers acts done otherwise than by corrupt or illegal means by an officer abusing his position
The gist 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 ie using his position for something 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 gathered 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 the clause that is to say something 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 the above decision the question whether the words abusing his position as a public servant qualify the word Otherwise or also the words corrupt or illegal means in section 5 1 d 1 1963 Suppl
2 SCR 724
324 was not 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 on 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 means employed may be corrupt or illegal or may be of such a nature as would savour of a dishonest act
But the abuse of position as a public servant would be essential whether the means are corrupt or illegal or are of the nature covered by the word  otherwise
The analysis of clause d made in Narayanan Nambiar s1 case by Sabha Rao J as he then was seems to lend support 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 etc
relates 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 does 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 the words by corrupt or illegal means or by otherwise form a single clause and do not form two clauses
If that is so the abuse of position as a public servant that is referred to is the abuse by corrupt or illegal means or by otherwise
 The High Court also relied on the analysis of section 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 s161 of the Indian Penal Code if it is habitual falls within clause a
Bribery of the kind specified in section 1 65 if it is habitual is comprised in clause b Clause c contemplates criminal breach of trust by a public servant
For that section 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 observed In one sense this is no doubt true but it does not follow that there is no overlapping of offences
We have primarily to look at the language employed and give effect to it
One class of cases might arise where corrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage 
1 1963 Supp 2 SCR 724
2  325 The word obtains on which much stress was laid does not eliminate the 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 receivers One may accept money that if offered or solicit payment of a bribe or extort the bribe by threat or coercion in each case lie obtains a pecuniary advantage by abusing his position as a public servant Thus in clauses a b and c the abuse of position as a public 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 object 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 s1 case
Counsel for the State has
not been able to satisfy us that the various reasons 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 section 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 servant
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 the decision of the High Court and dismiss both the appeals
GC Appeals dismissed


Summary:
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 offences under section 161 Indian Penal Code and section 52 read with section 51d of the Prevention of Corruption Act 1947
The Sessions Judge held him to be a public servant  within the meaning of cl 9 of section 21 as it stood before its amendment by Act 40 of 1964 and held him guilty under section 161 of the IPC He was also held guilty under the 1947 Act
In appeal the High Court held 1 that in is capacity as examiner of Gujarat University lie was not a public servant and therefore not guilty under section 161 IPC ii that though a public servant in his capacity as lecturer in a Government College he had not abused his position as such public servant and  therefore was not guilty under section 52 read with section 51d of the Prevention 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 section 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 understood and employed in the Ninth Clause even though examining answer books may fall within the 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 a local authority within the meaning of clause 12b
Since the appellant was not a public servant under section 21 IPC he was rightly acquitted of the offence under section 161 IPC 319 F 320 H Ram Krishna Dalmia vs Delhi Administration 1963 1 SCR 253 applied
iiIt was never the case of the prosecution that D had been guilty of any abuse of his position as a lecturer of the Government College
As he 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 servant
He was therefore rightly acquitted by the High Court of the offence under section 5 2 read with section 5 1 d of the Prevention of Corruption Act 1947
325 E 314 There are two ways of looking at clause 51d
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 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 dishonest act
But the abuse of position as a public servant would be essential whether the means are corrupt or illegal or are of the nature covered by the word otherwise
The analysis of clause d made in Narayanan Nambiar s case seems to lend support to the view taken by the High Court that the abuse of position as a public servant is essential
324 A D In clauses a b and c of section 51 the abuse of position as a public 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
325 C MNarayanan Nambiar vs State of Nerala 1963 Suppl
2 SCR 724 and Rain Krishna  Another vs The State of Delhi   applied
Dhaneshwar Narain Sexana vs Delhi Administration1962 3 SCR 259 distinguished
State of Ajmer vs Shivji Lal 1959 Suppl
SCR 739 referred to