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1961 Supreme(SC) 292
SUPREME COURT OF INDIA
B.P.Sinha, C.J.I., A.K.Sarkar, J.R.Mudholkar, N.Rajagopala Ayyangar, S.R.Dass, JJ.
Dhaneshwar Narain Saxena
Versus
Delhi Administration
Case No. : 6 of 1959
Date of Decision : 8/24/61
Advocates Appeared: Goyal A.N. : Khanna B.K. : Mathur O.C. : Mathur T.C. : Sen T.M.
A.N.GOYAL, B.K.Khanna, O.C.MATHUR, T.C.Mathur, T.M.SEN
Section 5(1)(d) of the Prevention of Corruption Act does not require the public servant to have committed misconduct specifically in the discharge of their own official duty; abusing their position as a public servant to obtain a pecuniary advantage is sufficient to constitute the offence.
Headnote:(A) Prevention of Corruption Act, 1947 - Section 5(1)(d) and 5(2) - Criminal misconduct - Ingredients - Whether it is necessary that the public servant must have misconducted himself in the discharge of his own duty to attract the operation of Section 5(1)(d) - The words "in the discharge of his duty" appearing in the heading of Section 5 are merely nomenclature and not an essential ingredient of the offence defined in sub-clause (d) - To constitute an offence under Section 5(1)(d), it is necessary that: (1) the person is a public servant; (2) he uses corrupt or illegal means or otherwise abuses his position as a public servant; (3) he thereby obtains a valuable thing or pecuniary advantage; and (4) such advantage is for himself or any other person - It is not necessary that the public servant, while misconducting himself, should have done so in the discharge of his duty (Para 4).
(B) Indian Penal Code - Section 161 - Distinction from Section 5 of the Prevention of Corruption Act - Section 161 requires a motive or reward for doing or forbearing to do an official act or for showing favour or disfavour in the exercise of official functions - Section 5 of the Act was designed to widen the scope of the crime to punish those who, holding public office and taking advantage of their official position, obtain any valuable thing or pecuniary advantage, regardless of whether it relates to their specific official duties (Para 4).
Facts of the case:
A public servant, employed in a government office but having no official role in the issuance of firearm licenses, obtained money from an individual by promising to facilitate the restoration of a cancelled firearm license. The public servant was caught in a police trap while receiving a sum of money. He was convicted by the trial court and the High Court under Section 5(1)(d) of the Prevention of Corruption Act on the grounds that he abused his position to induce the individual to part with money.
Findings of Court:
The court found that the prosecution had established that the accused, taking advantage of his position as a public servant, had induced the complainant to pay money for the restoration of a license. The court held that the requirements of Section 5(1)(d) were met as the accused used his position as a public servant to obtain a pecuniary advantage.
Issues: Whether the offence of criminal misconduct under Section 5(1)(d) of the Prevention of Corruption Act requires the public servant to have committed the act specifically in the discharge of his own official duties.
Ratio Decidendi: The court ruled that the phrase "in the discharge of his duty" in the heading of Section 5 is descriptive and not a restrictive ingredient of the offence under sub-clause (d). Misconduct and the discharge of duty are often contradictory; if a public servant misconducts himself, it is typically the reverse of discharging his duty. Therefore, a public servant can be convicted under Section 5(1)(d) for abusing his official position to obtain a pecuniary advantage even if the act is not connected to his specific official duties.
Result: Appeal dismissed.
B.P.SINHA, C.J.I.
(1) THIS appeal was first heard by a division bench of three judges, composed of the chief justice, Imam and Shah, JJ., on the 19th of February last year. In the course of the argument, the learned counsel for the appellant invited the attention of the court to the decision of a division bench of this court in the State of Ajmer v. Shivji Lal (1). The bench hearing the case, being of opinion that the decision aforesaid of this Court required reconsideration, referred the case to a larger bench, and that is how it has come before us.
(2) IT is necessary to state the following facts in order to bring out the question of law to be determined in this case. The appellant was an upper Division Clerk in the office of the Chief Commissioner of Delhi. He had come to know Ram Narain, who is the chief prosecution witness in this case and who is a fireman serving in Delhi Fire Brigade. Ram Narain, aforesaid, had for a long time been anxious to Obtain a licence for a double-barrelled shotgun. It is alleged that in this connection he bad sought the assistance of the appellant who had nothing to do with the issuing of licences for firearms, which is done by the office of the Deputy Commissioner, Delhi. The prosecution story, which, as indicated above, rests mainly on the statement of Ram Narain, is that he had submitted two applications during the year 1953 for the purpose of obtaining the licence aforesaid, with the assistance of the appellant. These applications did not produce any results. In 1954, he made another attempt in the same direction and approached the appellant to help him. The appellant held out hopes of success in obtaining the licence if he was paid Rs. 250.00. Ram Narain paid only Rs. 140.00 and held out a promise to pay the amount after his sisters marriage. Thus, the third application for the licence was made in which Rain Narains salary was declared to be Rs. 105.00 per month. This third attempt proved successful and Ram Narain was granted the necessary licence. Before the learned single Judge of the High court in Delhi, before whom the case came up on appeal, it was not disputed that the appellant had used his good offices in expediting and furthering the progress of the application in the appropriate department. It appears that eventually the authorities concerned were appraised of the fact that the salary of Ram Narain was only Rs. 85.00 per month and that the declaration in the form that his salary was Rs. 105.00 per month bad been falsely made with a view to get over the difficulty that applications for licences for firearms by government servants drawing less than Rs. 100.00 per month would not ordinarily be considered. When the authorities came to know the true facts about Ram Narains status in government service. his licence was cancelled and he was called upon to show cause why he should not be prosecuted for having made a false statement. Ram Narain made his representation to the authorities and showed cause against the action proposed to be taken against him, alleging that his monthly salary had been falsely declared in the relevant form for application for the firearm on the advice of the appellant. The prosecution story further is that when Ram Narain got into the trouble, as aforesaid, about the false statement in his application form, he again approached the appellant. The appellant demanded another Rs. 180.00 as a reward for his getting the licence restored. Ultimately, Ram Narain agreed to pay the appellant Rs. 90.00 in advance and promised to pay the remaining Rs. 90.00 after the licence had actually been restored to him. Ram Narain for reasons of his own, appeared to have approached his superior officers and thus the matter reached the Chief Fire Officer, who appraised the police of the proposed illegal transaction between Ram Narain and the appellant. The police decided to lay a trap for catching the appellant red-handed. Accordingly, Ram Narain saw the appellant in the Chief
