(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.

April n.

'959

Stale of Aj1nc1

Shivji Lal

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.

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 grant- Wanchoo 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.

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.

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

Shivji Lal

Wanchoo j.

I959

State of Aj1ner

Shiv}i Lal

fVanchoo ].

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

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 motiveor 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 ].

State of Aj1ner

Shivji Lal

Wanchoo ].

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

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 Codecan 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

Shivji Lal

Wanchoo ].

I959

Stale of Ajnier

Shivji Lal

Wanchoo ].

I959

April 23.

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,-