THE STATE OF GUJARAT versus MANSHANKAR PRABHASANKAR DWIVEDI

THE STATE OF GUJARAT

MANSHANKAR PRABHASANKAR DWIVEDI

April 26, 1972

[A. N. GROVER AND M. H. BEG, JJ.J

Indian Penal Code ss. 21 & 161--frcturer in Govt. College appointed examiner at an examination held iH' University of Gujarat-Whether 'public servant within n1eanin1? of s. 21 I.P.C. Cl. 9 as it stood before its amendment by Act 40 of 1964.

Prevention of Corruption ·Act, 1947-,,, 5(2) read with s. (I) (d}-Ofience under-Abuse of position as public servant necessary even when pecuniary advantage etc. is obtained by corrupt or illegal n1eans.

D, Lecturer in Government College, was appointed as examiner of physics practical examination held by the Gujarat University. He allegedly took Rs. 500 from candidate at the examination for showing him favour. He was charged with offence~ under s. 161 Jnd:an Penal Code and s. 5(2) read with s. 5(1) (d) of the Prevention of Corruption Act 1947. The Sessions Judge held him to be 'public servant' within the meaning of cl, 9 of s. 21 as it stood before its amendment by Act 40 of 1964, and held him guilty under s. 161 of the I.P.C. He was also held guilty under the 1947 Act. In appeal the High Court held (i) that in his capacity as examiner cif Gujarat University he was not public servant and therefore not guilty under s. 161 I:P.C.; '(ii) that though public servant in his capacity as lecturer in Govemment College he had not abused his position as such public servam and therefore was not guilty under s. 5 ( 2 j read with s. 5 ( 1) ( d) of the PreYention of Corruption Act. The State appealed to this Court.

HELD : (i) As rightly held by the High Court public servant within the meaning of cl. 9 of s. 21 as it stood at the relevant time must be an officer of the Government and the fee or commission must be pay-able by the Government. University Examiner cannot be .considered to hold an office in the sense in which that word has been undersl<lod and employed in the Ninth Clause even though examining answer books may fall within •he performance of public duty. 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 University also cannot be said to be public servant since University is not • local authority within the meaning of claui;e 12(b). Since the appellant was not pub-lic servant under s. 21 I.P.C. he was rightly acquitted of the offence under S, 161 I.P.C. [319 F-320 HJ

Ram Krishna Da/mia v. Delhi Administ;atioli, [1963] 1 S. C. R, 253, applied.

(ii) It was never the case of the prosecution that had been guilty of any abuse df his position as lecturer of the Government Col-lege. As he was not public servant when he was acting as an examiner it ~ould not be said that there had been any abuse by him of his position as. public servant. ~He was therefore. rightly acquitted by the High Court Of the offence under s, 5(2) read with s. 5(1) (d) of the Prevention of Corruption Act 1947. [325 El

There are two ways of looking at clause 5(1) (d). One is that the words "corrupt or illegal means" stand by themselves and as soon as it is established that public servant has by such means obtained any valu-ablt 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 nature as would savour of diEhonest act. But the abuse of position as public servant would be essential whether the ml!ans are corrupt or illegal.or are of the nature covered by the word "otherwise". The analysis of clause (d) madr in 'l\'arayanan Nanibiar's case seems to lend support to the view taken by the High Court that the abuseof · posi-tion as public servant is essential. [324 A-DJIn clauses (a), (b) and (c) of s. 5(1) the abuse of position as public servant is clearly implied. Clause ( e) also carries the same impli-cation. It would, there/fore. be reasonable to put on clause (d) con-struction which is consistent with the other clauses of the sub-section.

[325 Cl

M. Narayanan Nambiar v. State of Nerala, [1963] Suppl. 2 S.C.R. 724 and Ram Kri•hna & Another v. The State of Delhi, [1956] S.C. R. 182, applied.

Dhaneshwar Narain Sexana v. Delhi Administration, [1962] 3 S.C.R. 259, distinguished.

State of Aimer v. Shivji Lal, [1959] Suppl. 2. S.C.R. 739, referred to.

CRIMINAL APPELLATE }UR!SDICTION: Cr. A. No. 190 and 191 of 1969, and 63 and 64 of 1972.

Appeals by certificate/special leave from the Judgment and Order dated September 9, 1968 of. the Gujarat High Court in Criminal Appeals Nos. 486 and SSS of 1966.

."!Jrmila Kapoor, B. D. Sharma for S. P. Nayar and Kamlesh Bans'al, for the appellant (In all the appeals).

· M. V. Goswami, for the respondent (In Cr. As. Nos. 190 of 1969 and 63 of 1972).

H. K. Thakur and S. K. Dholakia, for the respondent (In Cr.

As. Nos. 191 of 1969 and 64 of 1972).

The Judgment of the Court was delivl:red by

Grover, J. This judgment will dispose of all the four appeals from the judgment of the Gujarat High Court.

Two appeals, i.e. Cr. As. No. 190 & 191 of 1969 had been brought by certificate. The o~rtificates being defective for want of reasons thev could not be entertained on that short ground. However two "petitions for special leave were filed and the same were gra~ted. Those appeals (Cr. As. 63 & 64 of 1972) will be dealt with in this judgment.

The facts may be stated. Manshankar Prabhashankar Uwivedi was at th·~ material time Senior Lecturer at ihc D.K.V.

Arts & Science College, Jamnagar which is Gov.ernment college. Vallabhdas Oordhandas Thakkar was legal practitioner conduct-ing cases before the Income tax and Sales tax Departments. He was also resident of Jamnagar. It was alleged that in April 1964 the Physics prac·tical examination for the first year B.Sc. wa' to be held by the Gujarat University. One of the centres W<I' Surendranagar. Dwiv.edi had been appointed as an Examiner fo• Physics practical. He is al!eg·~d to J.i~ve accepted. grat_ification of Rs. 500/- other than legal remuneratlon for show!T;g favour to ~' candidate Jayendra Jayantilal Shah by giving him more mark' than he deserved in the Physics practical examination. It is stated that he had obtained {hat amount through Thakkar. Dwivedi was charged with commission of offences under s. 161. lndiari Penal Code and s. 5 ( 2) read with s. 5 (I) ( d) of the Prc-Yention of Corruption Act, 1947, hereinafter called the 'Act'. Thakkar was charged under s. 165-A. Indian Penal Code, and s. 5 (2) of the Act read with s. 114 of the Indian Penal Code. Th·~ Special Judge who tried both these persons found them guilty of the offence with which they were charged. He imposed sen-tence of 2 years' rigorous imprisonment and fine of Rs. 1,000/-, I in default further ri,gorous imprisonment for six months) on each of ·these persons.

Both the convicted persons filed appeals to the High Court. The High Court found that the prosecutic,n case- had been proveJ 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 pre-arranged plan it was alleged that ~ranlal Mohanlal who was the complainant and who was the brother-in-l:1w of the student, Jayendra, went to the college, where th1• examination was to take place, along with ·panch witness Shiv-lal. Thakkar was in the porch of the college and he demanded 1the money for being given to Dwivedi. Pranlal,. however, insisted that th·~ money would be paid after he had talked ithe matter over with Dwivedi and 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 .20 with him to place called 'Vikram Lodge' which th~y did. There Thakkar again demanded money but Pranlai ga vc the same reply which he had given before. At about 11 A.M. these thre~ person& can1e back to the college and went to the first tloor where J-Lt 286SupCT /;2

the examination hall was situate and stood outside the hall. There Thakkar brought Dw:ivedi and Dwivedi said "why are you delay· ing. You are fool. You will spoil the life of the student. Pay the amount to Thakkar". TI1en Pranlal paid Rs. 500/· to Thakkar in the presence of Dwivedi. Thakkar counted the money and put it in hK pocket. Dwivedi wen1 back to his room. Thereafter the signal was given and the raiding party arrived and made the re-coveries. Necessary panchnamas were prepared.

The High Court a~d with the Special Judge iliat the prose. ~ution case against the present respondents in respect of the demand and acci.:vtance of bribe of Rs. 5001- for the purpose of givin)l; more marks to J ayendra had been proved. It 'Vas, how· ever, argned before the High Court that as regards s. 161, Indian Penal Code, it was necessary that the person committing that offence must be public wrvant. Although Dwivedi was Senior Lecturer in Government College the bribe was sought to be obtained not in connection with any official act or in connec-tion wifu the exercise of his official functions as public servant but in connection with his work as an Examiner of the Gujafat University. An Examiner of the University did not fall within the definition of "public servant" as given in s. 21 of the Indian Penal Code. It was maintained on behalf of Dwivedi that al· though he had abused his position as an Examiner but he had nol done so as government servant in which capacity alone he could be public servant. The Special Judge had, however, taken the view that even an Examiner was public servant. As regards the offence under the Aot the SJJ'xial 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 public servant or that he should have obtained the money while acting as public S>~rvant. The High Court did not accept the reasoning or the cgnclusion 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 con-tained several clauses. The ninth clause was in the following terins :-

"Ninth.--Every officer whose duty it is, as such officer ~o take, receive, kCO!) or expend any 'Property on behalf elf the Government or to make any survey, assess-ment or contract on behalf -of the Government or to execute any revenue l'rtlCeSs <Jr to investi,;irte, or to re-port <m any matter aft'ectme; the pecuniary interests of the Government or to make, authenticate or ~ any

document relatinJ?; to the pecuniary interests of the Gov-ermnent or (o prevent the infraction of any Jaw for tbe protection of the pecuniary interesits of the Govern-ment and every officer in the &~rvice or pay of the Gov-ernment or remunerated by fees or commission for the performance of any public duty".

The first question which has to be resolved is whether respondell'I Dwivedi wai; public servant within the meaninJ?; of the Ninth clause of s. 21, Indian Penal Code, keeping in view the capacity in which and the nature of the duties which he was performing as an Exami~r of University which, it has been found, had no connection with his being Government servant. It is well known that Universities appoint Examiners having the requisite academic qualifications who may or may not be government ser-vants. For instance, person having the requisite academic qualifications who is working in private institution can and usually is appointed an Examiner by the University. The ques· tion that immediately arises is whether an Examiner of Univer-D sity as such can be regarded as public servant within the mean· iag of ninth clause of s. 21, Indian Penal Code. It will be use-ful 10 look at the scheme of s. 21. There could be no difficulty about the second, third and 4th clauses which deal with the com-missioned ofliers in the- Armed Forces, judgo~s 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 panchayat assistioit Court of Justice or public servant. -Under the sixth clause every arbitrator or other person to whom any cause or matter has b.!en referred for decision or report by any C<;urt of J uruce or by any other competent public authority would als.o fall within the words "public servant". Seventh a11d eighth clauses deal with persons who perform mainly policing duties. The tenth clause covers officers whose duty it is to take, r~­ceive, keep or expend any property, to make any s1,uv_ey or assess-ment or to levy any rate or tax etc. The elev11n:th clause relates to ~rrons who hold any office by virtue of which they are em· powered to prepare, publish etc. an electoral roll or to conduct an election. The twelfth clause covers every officer in th~ s.er· 1'ke or pay of local authority or corporation engaged in any trade or iw,iusµy established by 1he Central, Provin.cial or State Gov· emment or Gov('rnme11t company. In the illustration given it is atll.ted 1;hat Municipal Commissioner i~ public servant According ~o Explanation 1 oersons fallin,g ~ind.er any of ti~ des· CJ"iption given in -the tw~lfth clause are public servants wbether appointed by the Goverru'l.ent ·or not. Section 21 was amended in 1964. Th.e ninth cl.atise was retained substaiitia!l:.r as it existed p~viously e11:cept that the following words were

dropped : "and every officer in the service or pay of the Govern-

ment or remunerated by fee or commission for ti'.e purpose of any public duty". The twelfth clause was recast and the new pro-vision was in these terms :-

''Twelfth.-Every person-

(a) in the service or pay of the Government or remunera'led by fees or commission for the per-formance of any public duty by the Government: (b) in the service or pay of local authority cor-poration established by or under Central, Pro-vincial or State Act or Government company as defined in section 601 of the Compan~2s AcL 1956."

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 expres>ion "every offio~r·· has now been substituted by ithe words "ev.e1y person" and after the words "per-formance of any public duty" it has been added "by the Govern-ment."

amendment

The argument which has been addressed mainly on behalf ci the State and which was pressed before the High Cou11 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 till~ Government or was remunerated by fee or commission for the performance of public duty. Acting as an Examiner, it has been suggested, is the performance of '' public duty. Jf Dwivedi was remuner~ted by fee or commission by the University for the performance of that public duty he would b.e covered by the last part of the ninth clause. as it stood at the relevant itime. is admitted on behalf of the State that after the amendment made in 1964 under the twelfth clause it is oniy 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 ser-vant" within sub-ClaitSc-·(a)-of--the Twe~ clause. But it is argued that. the .position was different under the Ninth clause as the words "Q_y •the Government" did not follow the words "per-formance of .anly 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 n.ecessary that the remuneration by way of fee. or commission should be paid by the Government as is now necessary under sub-~iause (a) of the Twelfth clause after the amendment.

The High Court gave the following reasons for holding that

the last part of the Ninth clause, as it stood before the amendmen't, would not cover the case of Dwivedi:

(i) The context of the whole of the Ninth clause indi-cated 1hM the connection with the Government was necessary either in respect of the payment of remun~­ration or in respect of the performance of pubhc duty.

(ii) _The person to be an officer must hold some office. The holding of office implied charge of duty attach· ed to that office. The person who was remunerated bv fee or commission must be an officer. Therefore the use of the word "officer" read in the context o! the words immediately preceding the last part would indicate that the remunerntion contemplated was remuneration by the Government.

(iii) The amendment made in 1964 and in particular the addition of the words "by the Government" in sub. clause (a) of clause Twelfth showed the legislative interpretation of the material portion of clause Ninth as it stood before the amendment under consideration.

(iv) It is well settled that in statutory provision imposing criminal liability if there is any doubt as 10 the mean-ing of 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 Couvt reason No. (ii) seems to have lot of force. lt is supported by the decision in Ram Krishna Dalmia v. Delhi Administration (1). There Chartered Accountant had been ap-pointed as an Investigator by the Central Govermnent under the Insurance Act 1938 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. He could not, therefore, become public servant within 'the latter part of Ninth Clause of s. 21 of the Indian Penal Code. It is noteworthy that 1he work of an Investigator was of nature which could well be regarded as public duty and rthe remuneration which was to be paid to him was by the Government. Yet it was held that he could not be regarded as holding an office. Ou that view it is not possible to put the case of University Examiner in

different category. 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 lhc provisions of the Gujarat University Act 1949 that rhere is no such condition that only that person can be appointed as Exa-miner who is the hold-~r of an office. Section 20(xxii) provides for appointment of Examiners by the !:yndicate. Section 30 empowers the Syndicate to make Ordinances to provide for all or any of the following matters :

(iii) "conditions governing the appointment and dulics of examiners."

No such Ordinance has been brought to our notice which restricts the appointmenit of the examiners to persons in the service of the Government or holders of any particular office. Suppose for instance there is private individuar who is not in the regular employment or service of either the Government or any pu!>lic body or authority. He has the requisite academic qualifications and he is appointed an examiner in particular subject in which he has attained high academic distinction. He cannot be said to be holding any officei when he is appointed for the purpose of examining eo~rtain answer books even though that may fall within the performance of public duty. There is anoth~r difficulty in regarding an examiner as holder of an office. llefore the amendment made. in s. 21 by Act 40 of 1964 person who is appointed an examiner and who receives remuneration by fue would fall within the term "public servant" if he is hfllder of an office. But persons in the regular service of the Un.versity would not t>e covered by the Ninth Clause. If at all, it would be the Twefth Claus-~ which would be relevant in their case. It is, however, moot point whether the University is local authority within the meaning of the first part of ithe Twelfth Clause before the amendment of s. 21. The expP~ssion "local authority" has definite meaning. It has always been used in statute with reference to such bodies as are connected with local self Govern· ment e.g., Municipalities, Municipal Corporations, Zila Parishads etc. As matt~r of fact s.3.(31) of the General Clauses Act 1897 defines "local authority" to mean municipal commHtee, district board, body of poflt commissioners or other auth0rity legally entitled to, or entrusted by the .-;overnment with the control or management of municipal or 'iocal fund. It could never be intended that only such officers .of the Universrty 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 tha:t University Examiner cannot be held to be an officer. Once that conclusion is reached, he canr.'Jt be cover-ed by the Ninth Clause of section 21 of the Penal Code.

The next point which calls for decision is whether appellant Dwivedi was 2uilty of an offence under s.5 (1 )( d) of the Corrup-tion Act. That provision, as it stood a1 the material time, was as follows :

"S. 5 (1) public servant is said to commit the offence of crimina~ misconduct in the discharge of nis duty-

( d) if he, by corrupt or illegal means or by other-

wise 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 his duty" were omitted. This Court has, however, taken the view in Dhaneshwar Narain Saxena v. Delhi Administration([1]), over-ruling an earlier decision that in order ito constitute an offence under clause ( d) of s. 5 ( l) of the Corruption Act it is not neces-sary that 1he 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 ,, ::-ublic servant as defined in s.21 of the Indian Penal Code. Dwi>edi while committing the offence under s.5(1)(d) had two positions; (1) he was lecturer in Government ~ollege and (2) he was an examiner appointed by the Gujarat Unf-.ersity for doing exami-nation work on remuneration paid by the University. As lec-turer in Government College he certainly fell within the definition of "public fil)rvant" bwt the act of corruptioq attributed lo him was in his capacity as an examiner. question at once arises is whether s.5 (I)( d) will apply 1o case of G'<\vernment servant who commits an act punishable under the said provision even though when the act is committed by him he is holding diffuren't position which is not that of Government servant and in which capacity alone he could fall within .the definition of "public servant." The High Court proceeded on the basis that for the purpose of the opening Part of s.5 ( l) of the Corruption Act Dwivedi must be held to be public servant. It was held that his case did not fall within the clause ( d) as he did not abuse his posi~ion as ~ public servant although the means employed were corrupt and 1llegal. ·

The argument on behalf of the &tate is that even if Dwivedi was not punishable under s.161 of the Indian Penal Code with refe~ence. to the work in respect of which he accepted an illegal l?l'llhficat10n. he would nevertheless be liable under s.5(1 )(d) of the Corrupl!on Act because the liability of public servant has been made a)>solute and it is wholly immaterial in what capacity he has comnutted the offence tinder sub-clause (d) of s.5(1) of the -(i)Tt962] l s.c.R.259-. ---··-

Corruption Act. He need not have obtained for himself any valuable thing_ or pecuniary a<lvantage as public servant. Once lte is Government servant and thus falls within the definition of public servant and if he uses corrupt or illegal means for obtain-ing valuable thing or pecuniary advantage he commits an offence as contemplated by s.5 ( 1 )( d). It ll'~ed not further be proved that he abused his position as public servant.

We may refer to the previous decisions of \his Court relating tu the interpretwtion of s.5 ( 1 )( d) of the Corruption Act. In Dhaneshwar Narain Saxena v. Delhi Administration(1) Saxena, who was an Upper Division Cl.erk, was approached by one Ram Narain~ fireman serving in the Delhi Fire Brigade, for assis-tance in obtaining license for double barrelled shot gun which was, in fact obtained. Saxena was paid certain amount and promise was made to pay him more. Ram Narain had made ;1 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 cancel~~d it was alleged that he again approached Saxena who demanded some amounts for helping him in the matter of restoration of the license. UHimately trap was laid and Saxena was caught while the money was being handed over to him. The main. argum>~nt in this case centered on the question whether Saxena had ~ommitted any misconduct in the discharge of his duty. Overruling the earlier decision of this Court in the State of Ajmer v. Shivji Lal(') it was held that it was not nec~ssary to constitute the offence under clause (d) of s.5(1) that the public servant ml"'~ do som~ thi!lg in connection with his own duty and thereby obtain any valuaBte thing or pecuniary advantage. It observed that "it was equally wrong to say that if public servant were to take money from third person by corrupt or illegal means or otherwise abusing his official p.Qsi_tion in order to corrupt some other public servant without there ·being any question of his miscnnducting himsdf in the discharge of his own duty he has not committed an offence under s. 5 ( 1) ( d). is also erroneous to hold that the essence of an offence under s.5(2) read with s.5(1)(d) is 1that the public servant should do some thing in the discharge of his own duty and there.by obtain valuable thing or pecuniary advantage." No such question was argued or decided in that case whether for the commission of an offence under s. 5 (1 ) ( d) abuse of posrtion as 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 talcing advantage of his own position as an employee in the Chief Commiss_ioner's Office and Ram Narain's ignorance and an-xi~ ~o get the license, had induced him to part with the money on (I) [1962] 3- S.C.R. 259. (2) [1959] Suppl. 2 S.C.R. 739.

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 v. State of Kerala (1) was clearly one in which there had been abuse by Government servant of his position as public sen·ant. The court referred to the preamble which indicates that the Corruption Act was passed as it was expedient to make more effective pro-visions 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 th<1t case proceeded on the basis that clause ( d) would take in only the case of direct benefit obtained by public servant for hims.elf or for any other person from third party in •the manner prescribed therein and did not cover the case of wrongful loss caused to the government by abuse of his power. While analysing s.5(1) (d) it was said :-"Let us look at the clause "by otherwise abusing the posHion of public servant", for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done "otherwbe" than by corrupt or illegal means by an officer abusing his position. The g,ist of the offence under this clause is that public officer abusing his position as public ser-E vant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means misuse i.e. using his position for some.thing for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word "other-wise" has wide connotation and if no limitation is placed on it, the words "corrupt", "illegal" and "otherwise" men-F tioned in the clause become surplusage, for on that cons-truction every abuse of position is )!,athered 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 th·~ clause, that is to say ~omething 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 public servant fell within the mischief of the said clause.

Although in [1]the above d·~cision the question whether the words ·'abusing his position as public servant" qualify the word "other-wise" or also the words "corrupt or illegal means" in s.5(1) (cl) (I) !1963] Suppl. 2 S.C.R. 724.

was n.ot discussed directly, the observations made seem to indicate that the word "otherwise" refers to means other than corrupt or illegal by which public servant may abuse his position. There are.two ways of looking at the clause; one is that the words "cor-rupt or illegal means" stand by themselves and as soon as it is established that 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 mi"llns employe<l may be corrupt or illegal or may be of such na!'Jre as would savour of dishonest aot. But the abuse of position as public servant would be essential whether the means are corrupt or il!e~al or are of the nature covered by the word "otherwise". The analysis of clause (d) made in Narayanan Nambiar's(') case by Sabba Rao J. (as he then was) seems to' lend suppo~t to the view taken by the High Court that the abuse of position as 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 eitc. rt:Iates to the object of the public servant, namely, the obtaining of 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 d9es 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, tho;! words "by corrupt or illegal means" or "by otherwise" form single clause and do nat form two clauses. If that-is so the abuse of position as public servant tha!t is referredto is the abuse by corrupt or iilegal means or by CYtherwise." The High Court also relied on the analysis of s.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 s.161 of the Indian Penal Code, if it is habitual, falls within clause (a). Briber_v of the kind specified in s.165, if it is habitual, is comprised in clause (b) Clause ( c) contemplates criminal breach of trust by public servant. For that s. 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 o~erved :-

"In one sense, this is no doubrtrue but it does not follow that there is no overlapping of offences. We have primarily to look at the language employed a11d give effect to it. One class of cases might arise where corrup'! or illegal means are adopted or pursued by the public servant to gain for himself pecuniary advantage.

The word "obtains" on which much stress was. laid does not eliminate 1the 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 receiver. One may accept money, that if offered, or solicit payment of bribe, or extort the bribe by threat or coercion; in each cai:e, he obtains pecuniary advantage by abusing his position as public servant."

Thus in clauses (a), (b) and ( c) the abuse of position as 1>11blic servant is clearly implied. Clause ( e) also carries the same implication. It would, •therefore, be reasonable to put on clause ( d) construction which is consistent with the other clauses of the sub-section. According to the High Court such construc-tion would also keep the offence within the limitation and the ob.iect of the Act. The abuse of the position would be the neces-sary ingredient of the offence; the abuse being either by corrupt or illegal means or by other means of the nature mentioned ·in Narayanan Nambiar's(1) case.

Counsel for the Sta!te has not been able to satisfy us that the various reason~ 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 s. 5 (1 )( d) which commended itself to the High Court.

As Dwivedi was not 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 public servan't. It was never the case of the prosecution that he had been guilty of any abuse of his position as lecturer of the Government College. If Dwivedi was not guilty, Thakkar could not be held to be guilty of the offen-ces with which he was charged.

We would accordingly uphold ti!'~ decision of the High Court ·and dismiss both the appeals.

Appeals dismissed.·