State of Ajmer (Now Rajasthan) vs Shivji Lal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 3 of 1957

Decision Date: 22 April 1959

Coram: K.N. Wanchoo, Bhuvneshwar P. Sinha, P.B. Gajendragadkar

In this case the Supreme Court of India considered a petition filed by the State of Ajmer, which later became part of Rajasthan, against the respondent Shivji Lal. The judgment was delivered on 22 April 1959. The bench that heard the matter comprised Justice K.N. Wanchoo, Justice Bhuvneshwar P. Sinha and Justice P.B. Gajendragadkar. The official citation of the decision is 1959 AIR 847; it also appears in the Supreme Court Reporter as 1959 SCR Supl. (2) 739, and later citations include references such as 1962 SC 195, 1964 SC 492, 1969 SC 17, 1973 SC 330 and 1984 SC 684. The legal issues involved the status of a teacher employed in a railway school as a public servant, the criminality of taking money to procure a job, the concept of illegal gratification, and alleged misconduct in the discharge of official duties under Section 161 of the Indian Penal Code and Sections 4(1), 5(1)(d) and 5(2) of the Prevention of Corruption Act 1947.

The respondent was a teacher in a railway school and was prosecuted under Section 161 of the Indian Penal Code together with Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act 1947. According to the prosecution, the respondent offered to secure a posting for the complainant in the Railway Running Shed at Abu Road in exchange for a payment of one hundred rupees. The complainant allegedly agreed to the arrangement, handed the respondent fifty rupees at the time and promised to pay the remaining fifty rupees after the job was obtained. On 5 October 1954 the complainant is said to have written an application addressed to the Divisional Mechanical Engineer of Abu Road and given it to the respondent together with the initial fifty rupees. The Special Judge who tried the case accepted the prosecution’s version of events and convicted the respondent on both charges. On appeal, however, the High Court acquitted the respondent on the ground that he was not a public servant within the meaning of the statute. The State subsequently appealed this acquittal to the Supreme Court.

For the respondent it was contended that even if he were deemed a public servant he could not be held guilty of either charge. The Court observed that neither the charge under Section 161 of the Indian Penal Code nor the evidential material indicated any intention on the part of the respondent to approach a public servant in order to obtain the job for the complainant. The Court held, first, that the respondent qualified as a public servant within the meaning of the ninth clause of Section 21 of the Indian Penal Code because he was employed by the Government, received remuneration from it, and was entrusted with the performance of a public duty by virtue of his position as a teacher in a school maintained by the Government, a duty which included teaching boys. This finding was in accordance with the precedent set in G. A. Monterio v. The State of Ajmer, reported in 1956 SCR 682. Secondly, the Court noted that, in view of the expression “by otherwise abusing his position” read together with the words “in the discharge”.

In S.5(1)(d) of the Prevention of Corruption Act, 1947, the offence is defined to require that a public servant misbehave in the discharge of his official duties. The Court observed that in the present matter the respondent was employed only as a teacher, and that making appointments in the Railway Running Shed at Abu Road was not a function belonging to his official duties. Consequently, when the respondent accepted money for the purpose of obtaining a job for the complainant, he did not commit misconduct in the performance of his duties. On that basis the Court held that the conviction under S.5(2) read with S.5(1)(d) of the Prevention of Corruption Act, 1947, could not be sustained. The Court further held that the mere act of receiving money in order to secure a position for another person does not, by itself, constitute an offence under Section 161 of the Indian Penal Code. Moreover, the charge under Section 161 failed to specify which public servant the respondent might have approached to render or attempt to render a service for the complainant. Because of this lack of identification, the prosecution under Section 161 was deemed untenable. Finally, the Court stated that the statutory presumption created by Section 4(1) of the Prevention of Corruption Act, 1947 could not arise in the present case, since Section 161 of the Indian Penal Code was not applicable. The judgment then proceeded to set out the procedural history. The appeal, designated Criminal Appeal No. 3 of 1957, was filed against the judgment and order dated 14 August 1956 of the former Judicial Commissioner’s Court, Ajmer, which itself arose from the order dated 11 January 1956 of the Special Judge, Ajmer, in Criminal Case No. 1 of 1955. Counsel for the appellant and counsel for the respondent were listed. The judgment, dated 22 April 1959, was delivered by Justice Wanchoo. The matter concerned Shivji Lal Joshi, referred to as the accused, who had been prosecuted under Section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, No. II of 1947. He had been convicted on both counts and sentenced to six months of rigorous imprisonment. He appealed to the Judicial Commissioner of Ajmer, who allowed the appeal on the ground that the accused was not a public servant, while accepting the factual findings of the Special Judge. The State then sought and obtained a certificate under Article 134(1)(c) of the Constitution to permit an appeal to this Court, and the appeal was consequently brought before the Supreme Court.

On 6 October 1954 Prem Singh was seeking employment and the accused had repeatedly promised that, for a payment of one hundred rupees, he would obtain a job for him at the Railway Running Shed in Abu Road. The day before, on 5 October 1954, the accused met Prem Singh at Kaiserganj in Ajmer and informed him that the approaching Dussehra holidays presented an opportunity, and that the promised sum of one hundred rupees would enable him to travel to Abu Road and secure the appointment. The parties eventually agreed that Prem Singh would deliver fifty rupees on the following day and would pay the remaining fifty rupees after the job had been obtained. Following this arrangement Prem Singh approached the Deputy Superintendent of Police of the Special Police Establishment and lodged a complaint stating that the accused had asserted he possessed considerable influence at the Abu Road Loco Shed and had demanded one hundred rupees as an illegal gratification for procuring the position. Prem Singh also reiterated that the parties had settled on an advance payment of fifty rupees and a balance payment of fifty rupees after his appointment. In response to the complaint Prem Singh prepared an application addressed to the Divisional Mechanical Engineer at Abu Road and produced five ten-rupee notes before the Deputy Superintendent, who recorded the serial numbers of the notes. The Deputy Superintendent then arranged that a man named Nathu Singh would accompany Prem Singh, posing as his cousin, when Prem Singh met the accused the next day to deliver the money. On 6 October 1954 Prem Singh, accompanied by Nathu Singh, met the accused as previously arranged; the accused requested the written application, which Prem Singh handed over, and the accused indicated that the document would suffice for his purposes. The accused then asked for the money, and Prem Singh handed him the five ten-rupee notes, the accused assuring him that the remaining fifty rupees would be paid after the service was rendered and that he would honor his part of the bargain. Prem Singh subsequently gave a pre-arranged signal, at which point the police party led by the Deputy Superintendent arrived on the scene. The Deputy Superintendent disclosed his identity, searched the accused, and recovered both the application intended for the Divisional Mechanical Engineer and the five ten-rupee notes. Thereafter the accused was prosecuted as previously described. The accused admitted that the application and the ten-rupee notes had been seized by the police, and he explained that a man named Jiwan Ram had given him the English-language application, describing it as a letter for a friend of Jiwan Ram at Abu Road; because the accused did not understand English, he believed the paper to be a letter to be delivered to that friend. Jiwan Ram had also supplied the five ten-rupee notes for the accused to pass on to the same friend when he traveled to Abu Road.

In the case, Jiwan Ram gave five ten-rupee notes to the accused with the instruction that they should be handed to a friend when the accused travelled to Abu Road. Both the Special Judge and the Judicial Commissioner accepted the prosecution’s version of events and rejected the accused’s explanation. The Special Judge therefore convicted the accused on the basis of the prosecution story. Although the Judicial Commissioner also found the prosecution story to be true, he concluded that the accused was not a public servant within the meaning of section 21 of the Indian Penal Code and consequently ordered an acquittal. The principal issue raised on appeal is whether the Judicial Commissioner erred in holding that the accused was not a public servant under section 21. The answer to that question depends on the interpretation of the final part of the ninth clause of the section, which states that a public servant includes “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 appears to have overlooked this portion of the clause; he focused only on the preceding part and said that it had not been shown that the accused had a duty to receive, keep or expend any property on behalf of the Government, thereby ignoring the last part of the clause. The Supreme Court has previously considered this question in G A Montero v. State of Ajmer, where it was held that the proper test for determining 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. In the present case there is no dispute that the accused was in Government service and was paid by the Government; he also served as a teacher in a Government-maintained school, a position that entrusts him with the public duty of teaching boys. Accordingly, the Judicial Commissioner was in error in concluding that the accused was not a public servant within the meaning of the ninth clause of section 21. Nevertheless, this conclusion does not finally resolve the case. Counsel for the accused argued that even if the accused is deemed a public servant, he should not be found guilty of either charge framed against him. The Court will first examine the charge under section 5(2) of the Prevention of Corruption Act read with section 5(1)(d), which alleges that the accused, by corrupt or illegal means or by abusing his position as a public servant, obtained a pecuniary advantage for himself when he received fifty rupees from Prem Singh on 6 October 1954.

In this case the charge under section five, paragraph two of the Prevention of Corruption Act, read together with paragraph (d) of section five, paragraph one, alleged that the accused, by corrupt or illegal means or by abusing his position as a public servant, obtained a pecuniary advantage for himself because he received fifty rupees from Prem Singh on 6 October 1954. The Court observed that mere receipt of money by a public servant, even if obtained by corrupt means, does not satisfy the elements of an offence under section five, paragraph two read together with section five, paragraph one, sub-paragraph (d). The provision states: ‘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 Court explained that the offence consists of criminal misconduct committed while the public servant is performing his official duties; therefore liability arises only when the servant misbehaves in the discharge of his own duties. It follows that the servant must act in connection with his own responsibilities and, by corrupt or illegal means or by otherwise abusing his position, obtain money or a valuable thing for himself or another person. The Court noted that if a public servant receives money from a third party in order to corrupt another public servant, and he does not misuse his own official functions, the conduct may constitute an offence under section one hundred sixty-one of the Indian Penal Code but does not fall within section five, paragraph two read together with section five, paragraph one, sub-paragraph (d). The essential requirement, as the Court emphasized, is that the public servant must act within the scope of his own duty and, by doing so, obtain a valuable thing or pecuniary advantage for himself or another person through corrupt, illegal, or abusive use of his position.

In the present case the accused was employed as a teacher, and making appointments in the Railway Running Shed at Abu Road was not part of his official duties. Consequently, taking fifty rupees to secure a job for Prem Singh in that shed did not involve any misconduct in the discharge of his own duty. Therefore, regarding the charge under section five, paragraph one, sub-paragraph (d), the Court held that there was no evidence that the accused had misbehaved in the performance of his own official responsibilities, and the charge must be dismissed. Having dismissed the charge under the Prevention of Corruption Act, the Court turned its attention to the separate allegation founded on section one hundred sixty-one of the Indian Penal Code. The Court reiterated that liability under section five, paragraph one, sub-paragraph (d) demands that the public servant’s corrupt act be performed in the course of his own official functions, which was absent here. The receipt of the fifty rupees was intended as a reward for obtaining a railway position, but because securing that position lay outside the teacher’s statutory responsibilities, the act could not be characterized as criminal misconduct under the cited provision. Accordingly, the matter proceeded to trial on the basis of the Indian Penal Code provision, which addresses acceptance of gratification by a public servant for influencing another official.

The provision under discussion reads that any person who, being a public servant, accepts from any individual for himself any gratification whatsoever, other than legal remuneration, as a motive or reward for rendering or attempting to render any service or disservice to any person together with any other public servant, commits an offence. Accordingly, the clause requires three distinct ingredients: first, the person receiving the gratification must be a public servant; second, the gratification must be accepted for his own benefit; and third, the gratification must be taken as a motive or reward for providing or attempting to provide any service or disservice to another person in collaboration with another public servant. The charge framed against the accused under section 161 of the Indian Penal Code alleged that, being a public servant, he accepted on 6 October 1954 a sum of Rs. 50 from Prem Singh as illegal gratification intended as a motive for securing a job for the latter in the Railway Running Shed. The factual matrix clearly establishes the first two ingredients – the accused was a public servant and he received the money for himself. However, the third ingredient, namely that the gratification was taken as a motive or reward for rendering or attempting to render any service with any other public servant, was not pleaded against the accused. The charge merely states that the accused took the money as a motive for obtaining a job for Prem Singh in the Railway Running Shed at Abu Road, without identifying any other public servant whom the accused might have approached or influenced to secure that appointment. In the complaint lodged by Prem Singh with the Deputy Superintendent of Police, the sole allegation was that the accused promised to obtain a job for him at Abu Road because he possessed considerable influence there. The complaint did not disclose the name of any specific public servant on whom the accused claimed to have influence, nor did it allege that the accused would approach any particular officer to render the service sought. Moreover, Prem Singh’s statement did not contain any reference to the accused indicating influence over a specific public servant at Abu Road. Although Prem Singh’s application was addressed to the Divisional Mechanical Engineer – the officer in charge of the Railway Running Shed – and was handed to the accused, who merely accepted it, there is no evidence that the accused instructed Prem Singh to address the application to that engineer. The implication appears to be that the application was addressed to the engineer because he was the responsible officer, not because the accused had directed Prem Singh to seek his favour. Consequently, neither the complaint nor the statement reveals that the accused promised to render a service by approaching a particular public servant on behalf of Prem Singh. The police charge-sheet and the charge framed before the court likewise omitted any allegation that a specific public servant would be approached to secure the job. In these circumstances, one of the essential ingredients of the offence under section 161 – the existence of a public servant with whom the accused purported to render a service – was neither alleged nor proved. The mere fact that a person accepts money to obtain a job for another does not, by itself, constitute an offence under section 161 unless all the statutory ingredients are satisfied. Because the third element was not established, the accused was entitled to acquittal. The State, however, argued that a presumption under section 4(1) of the Prevention of Corruption Act arose, since money passed from Prem Singh to the accused, and that section 4(1) provides a presumption that any gratification accepted for oneself or another is deemed corrupt unless the contrary is proved.

The Court noted that the evidence did not show that any public servant was to be approached to secure a job for Prem Singh, and therefore one of the essential ingredients of the offence under section 161 of the Indian Penal Code was neither alleged, nor charged, nor proved against the accused. The Court explained that merely taking money with a view to obtaining a job for another person does not, by itself, constitute an offence under section 161 unless every element of that provision is satisfied. Because, as the record demonstrated, one of the principal elements was missing, the accused was entitled to acquittal on that ground. The State, however, contended that a presumption under section 4(1) of the Prevention of Corruption Act arose, since money had passed from Prem Singh to the accused, and that section 4(1) provides that if an accused person accepts any gratification for himself or for another, it shall be presumed, unless the contrary is proved, that the gratification was taken as a motive or reward as described in section 161 of the Indian Penal Code. Assuming that such a presumption could be raised even when the only proof is the simple passage of money, the Court observed that the crucial question remained whether a presumption of motive or reward under section 161 could be sustained in this case, given the established facts. Specifically, Prem Singh never alleged in his complaint that the accused had promised to influence any public servant, nor did he make such a statement in court; moreover, the police charge-sheet and the charge framed by the Court contained no reference to the accused intending to influence any public servant to obtain a job for Prem Singh at Abu Road. The Court further held that had the evidence shown that the accused had indicated an intention to influence a public servant to secure the job, a presumption under section 4(1) might have been drawn, assuming again that such a presumption could arise from a mere monetary transfer. However, because there was absolutely no indication that any public servant was to be approached or influenced by the accused, the Court concluded that no presumption could be made that the payment was intended as a motive or reward for securing service from a public servant. Consequently, the Court was of the opinion that the offence under section 161 of the Indian Penal Code was not established against the accused, since a necessary ingredient was absent and no presumption could be drawn in the circumstances. Accordingly, the appeal was dismissed, though for reasons different from those previously articulated.

In the concluding portion of the judgment, the Court observed that the parties had placed their case before the learned Judicial Commissioner, thereby formally commending themselves to his consideration and seeking his direction on the matters raised. By presenting their arguments to the Judicial Commissioner, they submitted themselves to his authority and indicated their respect for his judicial role. The Court then examined the record and the submissions that had been made to the Judicial Commissioner, and assessed whether any error or infirmity existed that might justify overturning the earlier finding. After this careful review, the Court determined that the appeal did not disclose any sufficient ground for revision or for granting any relief. Consequently, the Court concluded that there was no basis on which to alter the prior decision, and it accordingly ordered that the appeal be dismissed. The dismissal of the appeal thus marked the final resolution of the proceedings, leaving the original judgment unchanged.