Dhaneshwar Narain Saxena vs The Delhi Administration
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 6 of 1959
Decision Date: 24 August, 1961
Coram: Bhuvneshwar P. Sinha, S.K. Das, A.K. Sarkar, N. Rajagopala Ayyangar, J.R. Mudholkar
In this appeal, the Supreme Court of India examined the conviction of Dhaneshwar Narain Saxena, who had been employed as an Upper Division Clerk in the office of the Chief Commissioner of Delhi. The judgment was pronounced on 24 August 1961 by a bench comprising Chief Justice Bhuvneshwar P. Sinha and Judges S. K. Das, A. K. Sarkar, N. Rajagopala Ayyangar and J. R. Mudholkar. The case was reported in 1962 AIR 195 and 1962 SCR (3) 259 and subsequently cited in several later reports. Saxena had been found guilty of an offence under clause (d) of section 5(1) of the Prevention of Corruption Act, 1947 (2 of 1947), the conviction being punishable under section 5(2) of the same Act. The prosecution alleged that a person identified as “R” was eager to obtain a licence for a double‑barralled shotgun and sought Saxena’s assistance because Saxena knew him. Although the issuance of firearm licences was the responsibility of the Deputy Commissioner’s office, Saxena purportedly offered to use his influence to hasten R’s application in exchange for a payment of Rs 250. When the licence was later cancelled on the ground that R was not entitled to it, Saxena allegedly promised to have the licence restored if R paid an additional Rs 180. The trial judge concluded that Saxena had abused his position in the Chief Commissioner’s office and had exploited R’s ignorance and anxiety to obtain the money, doing so on the basis of a false promise of assistance. Saxena contested the conviction, arguing that the facts did not satisfy the requirements of section 5(1)(d) and relying on the earlier decision of the Court in State of Ajmer v. Shivji Lal, (1959) Supp. 2 S.C.R. 739. The Supreme Court held that, for an offence under clause (d) of section 5(1) to arise, it is not necessary that the public servant committing the misconduct must be acting in the discharge of his official duties. The Court found that the decision in State of Ajmer v. Shivji Lal was erroneous. Accordingly, the Court affirmed that a public servant who accepts money from a third party by corrupt or illegal means, or who otherwise abuses his official position to influence another public servant, commits an offence under section 5(1)(d), even though his own official duties were not directly involved in the wrongdoing.
In this case, the Court observed that an offence under clause (d) of section 5(1) does not require the public servant to be acting in the discharge of his own official duties at the time of the misconduct. The judgment concerned Criminal Appeal No 6 of 1959, filed by special leave against the order dated 4 February 1957 of the Punjab High Court (Circuit Bench) at Delhi in Criminal Appeal No 173‑C of 1956. Counsel T C Arathur, P C Mathur and A N Goyal appeared for the appellants, while B K Khanna and T M Sen represented the respondents. The decision was delivered on 24 August 1961 by Chief Justice Sinha. The appeal was initially heard by a three‑judge Division Bench consisting of the Chief Justice, Imam and Shah, on 19 February of the previous year. During the arguments, the appellant’s counsel drew the Court’s attention to the earlier Division Bench decision in State of Ajmer v Shivji Lal. The bench hearing the matter considered that decision required reconsideration and therefore referred the matter to a larger bench, which is the present Court.
The factual background required to frame the legal issue was then set out. The appellant was an Upper Division Clerk employed in the office of the Chief Commissioner of Delhi. He became acquainted with Ram Narain, a fireman of the Delhi Fire Brigade who served as the chief prosecution witness. Ram Narain had long desired a licence for a double‑barrelled shotgun. It was alleged that he approached the appellant for assistance even though the issuance of firearm licences was under the jurisdiction of the Deputy Commissioner’s office, not the appellant’s department. According to Ram Narain’s statement, he filed two applications in 1953, with the appellant’s help, but both were unsuccessful. In 1954 he made a further attempt and again sought the appellant’s aid. The appellant suggested that the licence could be obtained if Ram Narain paid Rs 250. Ram Narain paid only Rs 140 and promised to pay the balance after his sister’s marriage. Subsequently a third application was filed in which Ram Narain’s monthly salary was falsely declared as Rs 105 instead of the actual Rs 85. This third application succeeded and the licence was granted. When the case reached the learned single Judge of the Delhi High Court on appeal, it was not contested that the appellant had used his influence to expedite the application in the appropriate department. It later emerged that the authorities became aware of the discrepancy in the salary figure, leading to further developments.
The authorities were informed that Ram Narain’s actual salary was only Rs 85 per month and that the declaration on the application form stating his salary as Rs 105 per month had been deliberately falsified so as to overcome the rule that firearms licences would ordinarily not be considered for government servants drawing less than Rs 100 per month. When the officials discovered the true facts concerning Ram Narain’s status in government service, they cancelled his licence and summoned him to show cause why he should not be prosecuted for having made a false statement. Ram Narain submitted a representation to the authorities, contesting the proposed action and contending that his monthly salary had been falsely declared in the relevant firearm‑application form on the advice of the appellant. The prosecution further stated that, after facing trouble because of the false statement, Ram Narain approached the appellant once more. The appellant then demanded an additional Rs 180 as a reward for restoring the licence. Ultimately, Ram Narain agreed to pay Rs 90 in advance and promised to pay the remaining Rs 90 after the licence had been reinstated. Subsequently, Ram Narain appears to have appealed to his superiors, and the matter reached the Chief Fire Officer, who informed the police of the alleged illegal transaction between Ram Narain and the appellant. The police devised a sting operation to catch the appellant red‑handed. Accordingly, Ram Narain met the appellant in the Chief Commissioner’s office and escorted him to a canteen run by Kishorilal, a witness examined by the defence. This canteen was located on Alipore Road near the Chief Commissioner’s office. By prior arrangement, a taxi driver named Sarwan Singh and Head Constable Gurbachan Singh, who were later examined as prosecution witnesses, were present in the canteen. Ram Narain handed the Rs 90, which had been supplied to him by the police, to the appellant. Upon a pre‑arranged signal from Sarwan Singh, Inspector Surendra Pal Singh entered the canteen immediately. At that moment, the appellant, suspecting that he was being trapped, attempted to pass the money received from Ram Narain to Kishorilal, the proprietor of the canteen. However, Head Constable Gurbachan Singh seized the appellant and prevented him from handing over the notes to Kishorilal. This sequence of events was recorded in the First Information Report filed at Civil Lines Police Station at 2:30 p.m. on 5 August 1954. After a competent police officer, with the Magistrate’s permission, completed the investigation, the appellant was committed to trial before Shri Jawala Dass, Special Judge, Delhi. The judge then framed the charge against the appellant, identifying him as Dhaneshwar Narain, son of Babu Lakshmi Narain, resident of 21, Todar Mal Lane, New Delhi, and alleging that on or about 5 August 1954, in the canteen on Alipore Road, he obtained Rs 90 from Ram Narain by corrupt and illegal means, thereby committing an offence under Section 161 of the Indian Penal Code or, alternatively, an offence under Section 5(1)(d) punishable under Section 5(2) of the Prevention of Corruption Act.
Lakshmi Narain, residing at 21 Todar Mal Lane, New Delhi, framed the charge against the appellant Dhaneshwar Narain. The charge stated that on or about 5 August 1954, while in the canteen on 6 Alipore Road, the appellant, who was a public servant employed in the office of the Chief Commissioner, Delhi, had by corrupt and illegal means, and by abusing his official position, obtained from Ram Narain a sum of ninety rupees. The money was allegedly taken for the purpose of restoring Ram Narain’s cancelled licence for a double‑barrelled gun, a licence that had originally been granted to him by the District Magistrate, Delhi. The charge further alleged that the appellant had thereby committed an offence punishable under section 161 of the Indian Penal Code, or alternatively, an offence under section 5(1)(d) of the Prevention of Corruption Act, punishable under section 5(2) of that Act, which fell within the cognizance of the Special Judge.
The Special Judge, after hearing the prosecution evidence, concluded that the evidence proved the charge against the accused. He observed that the appellant, taking advantage of his position as an employee in the Chief Commissioner’s office and exploiting Ram Narain’s ignorance and anxiety to obtain the licence, induced Ram Narain to part with the money on the promise that the licence would be restored. The Judge further found that, at the time of making the demand, the appellant had not disclosed to Ram Narain that the money was intended for someone who possessed the authority to issue the licence. Consequently, the Judge held that the case did not fall within section 161 of the Indian Penal Code. On that basis, he convicted the appellant under section 5(1)(d) of the Prevention of Corruption Act, punishable under section 5(2) of that Act, and sentenced him to six months of rigorous imprisonment.
The appellant appealed the conviction. The appeal was heard by the Honorable Justice Falshaw of the Punjab High Court. By his judgment and order dated 4 February 1957, the High Court substantially affirmed the findings of the Special Judge, upheld the conviction and the sentence, and dismissed the appeal.
Subsequently, the appellant sought a certificate from the High Court indicating that his case was fit for further appeal to the Supreme Court. Upon obtaining that certificate, he applied for and was granted special leave to appeal against the judgment of the High Court. Before the Supreme Court, it was vigorously contended that, based on the factual findings of the lower courts and the acceptance of the prosecution’s narrative as presented by the principal prosecution witness Ram Narain, no offence under section 5(1)(d) of the Prevention of Corruption Act had been established. The appellant primarily relied on the decision of the Division Bench of this Court in State of Ajmer v. Shivji Lal, arguing that, if that decision were correctly decided, it supported his contention. The Ajmer case, as quoted, held that for section 5(1)(d) of the Act to be attracted, a necessary element of the crime was that the public servant must have mis‑conducted himself in the discharge of his own official duty, and that the promised official favour must have been within the public servant’s authority. The Supreme Court was thus called upon to consider whether the appellant’s conduct satisfied that element.
In the offence that is charged, the law requires that a public servant must have misbehaved while performing his own official duties; if the favour promised by the public servant to the person who gave the money does not lie within the public servant’s authority, then he cannot be said to have misbehaved in the discharge of his own duty. In the precedent case, the accused was a school teacher who was alleged to have promised the money‑giver that he would obtain a job for him in the Railway Running Shed at Mount Abu. The appointment of personnel to that Railway Running Shed was not a function that fell within the teacher’s official responsibilities, and consequently, when he accepted money for arranging such a job, he could not be convicted of misconduct as defined in section 5 (2) of the Prevention of Corruption Act.
The ratio of that decision is expressed in the following paragraph of the judgment: “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 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 5 (2) read with section 5 (1)(d) of the Prevention of Corruption Act. The essence of an offence under section 5 (2) read with section 5 (1)(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 section 5 (1)(d) 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.” Applying this reasoning to the present matter, the Court observed that the accused, being a teacher, had no authority to make appointments in the Railway Running Shed at Abu Road; therefore, there was no possibility of him committing misconduct while performing his official duties when he accepted money to secure a job for Prem Singh in that shed. Consequently, with respect to the charge under section 5 (1)(d), the Court concluded that there was no occasion on which the accused had misbehaved in the discharge of his own duty, and the charge must therefore fail.
In this case the Court observed that the language “his own duty in the circumstances of this case and it must fail” applied to the assessment of the charge. The Court then reproduced the relevant portion of section 5 of the Act, which reads: “5 Criminal misconduct in discharge of official duty—(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty—(a) (b) (c) (d) 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. (2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.” The Court noted that the heading of section 5 identifies a new offence created by the legislation, separate from and in addition to offences under the Indian Penal Code such as those under section 161. The legislature deliberately widened the scope of the crime by providing a very broad definition in section 5, intending to punish those who, by holding public office, exploit their official position to obtain any valuable thing or pecuniary advantage. The Court explained that the essential element of an offence under section 161 of the Indian Penal Code is the existence of a motive or reward for doing or forbearing to do any official act, or for showing favour or disfavour in the exercise of official functions, or for rendering or attempting to render any service or dis‑service to any person with the Central or any State Government, Parliament, a State Legislature, or any public servant. However, the Court stressed that such a motive or reward is not required to establish an offence under section 5 of the Act. The Court further observed that the words “in the discharge of his duty” do not constitute an essential ingredient of the offence under section 5. The mistake in the earlier judgment of this Court in State of Ajmer v. Shivji Lal (1) arose from interpreting those words as a substantive element, when they are merely part of the nomenclature of the statutory offence. The Court pointed out that the erroneous quotation of the section on page 744 of the Supreme Court Report, in the paragraph preceding the quoted passage, led to this misunderstanding. According to the Court, the ingredients of the specific offence described in clause (d) of section 5(1) of the Act are: (1) the accused must be a public servant; (2) he must use some corrupt or illegal means or otherwise abuse his position as a public servant; (3) he must thereby obtain a valuable thing or pecuniary advantage; and (4) the advantage must be obtained for himself or for any other person. The Court concluded that to bring the charge under clause (d) home to an accused, it is not necessary that the public servant’s misconduct occur while he is discharging his official duty.
The Court explained that the offence under clause (d) of section 5(1) of the Act consists of four elements: the public servant must obtain a pecuniary advantage or a valuable thing, (1) for himself or (2) for any other person. It was emphasized that to bring a charge against an accused under this clause it is not necessary that the public servant performed the act while discharging his official duty. The Court observed that it would be contradictory to describe misconduct as occurring in the discharge of duty, because “duty” and “misconduct” are mutually exclusive concepts. If a public servant engages in misconduct, the act is ordinarily contrary to the performance of his duty rather than a part of it. This point was further clarified by reference to clause (c) of section 5(1), which indicates that the criminal misconduct defined in the statute does not include the element of performing one’s official duties.
The Court cited established authority that a public servant who dishonestly or fraudulently misappropriates property entrusted to him cannot be said to be acting in the discharge of his official duty, referring to the decision in Hori Ram Singh v. The Crown. An application for special leave to appeal from that decision was rejected by the Privy Council in Hori Ram Singh v. The King‑Emperor. Accordingly, the Court held that the earlier judgment had misread the statutory provision by stating that the offence consists of criminal misconduct in the discharge of official duty. The error, the Court said, lay in inserting the description of the offence into the definition itself.
The Court further clarified that the offence under clause (d) does not require the public servant to act in connection with his own duty in order to obtain a valuable thing or pecuniary advantage. It also rejected the proposition that a public servant who accepts money from a third party by corrupt or illegal means, in order to corrupt another public servant, would escape liability merely because the act is not performed in the discharge of his own duty. Moreover, the Court found it erroneous to hold that the essence of an offence under section 5(2) read with section 5(1)(d) is that the public servant must act in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage, as suggested in earlier authorities.
Having reached these conclusions, the Court concluded that the appeal raised no viable point of law or fact. Since the sole ground of appeal failed, the Court dismissed the appeal and ordered that it be dismissed with no merit.