Sinha, C. J. - (1.) This appeal was first heard by a Division Bench of 3 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, (1959) 2 Suppl. SCR 739. 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 bringing 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-barreled shot-gun. It is allegthat in this connection he had 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. Those 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. Ram Narain, paid only Rs. 140 and held out a promise to pay the remaining amount after his sister's marriage. Thus, the third application for the licence was made in which Ram Narain's salary was declared to be Rs.105 per month. This third attempt proved successful and Ram Narain was granted the necessary licence. Before the learned single Judge of the High Court at 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 apprised of the fact that the salary of Ram Narain was only Rs. 85 per month and that the declaration in the form that his salary was as, 105 per month had 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 per month would not ordinarily be considered. When the authorities came to know the true facts about Ram Narain's 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 at 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 as a reward for his getting the licence restored. Ultimately, Ram Narain agreed to pay the appellant Rs. 90 in advance and promised to pay the remaining Rs. 90 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 apprised 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 Commissioners office and accompanied him to the canteen run by Kishorilal, who has been examined as Defence Witness I. This canteen is situated on the Alipore Road near the Chief Commissioner's office. There, Sarwan Singh, a taxi driver, and Head Constable Gurbachan Singh in plain clothes, who were examined as prosecution witnesses, were present by arrangement. Ram Narain handed over the ninety rupees, which he had been given by the police, to the appellant. On the pre-arranged signal being given by Sarwan Singh, inspector Surendra Pal Sigh, Prosecution Witness 16, at once entered the canteen. At that time the appellant, suspecting that he was being trapped, attempted to hand over the money received by him from Ram Narain to Kisliorilal, the proprietor of the canteen. The head constable Gurbachan Singh, however, seized the accused and prevented him from handing over the currency notes to Kishorilal. That is the story which was recited in the First Information Report drawn up at the Civil Lines Police Station at 2-30 p.m. that very day, August 5, 1954. After investigation by a competent police officer under permission from the Magistrate, the appellant was placed on his trial before Shri Jawala Dass, Special Judge Delhi. He framed the following charge against him: "I, Jawala Dass, Special Judge, Delhi, hereby charge-you (Dhaneshwar Narain) son of Babu Lakshmi Narain resident of 21, Todar Mal Lane, New Delhi as follows: That you on or about 5th August 1954 in the canteen on 6, Alipore Road, being a public servant employed in the office of the Chief Commissioner, Delhi by corrupt and illegal means and by otherwise abusing your position as a public servant obtained for yourself a sum of Rs. 90 from Ram Narain at the aforesaid Canteen for the restoration of his cancelled licence for the double-barrelled gun which had been Originally granted to him by the District Magistrate Delhi and thereby committed an offence u/s 161 I.P.C. or in the alternative u/s 5 (1) (d), punishable u/s 5 (2) of the Prevention of Corruption Act, which is within my cognizance, And I hereby direct that you be tried by this Court for the aforesaid offences mentioned in the charge." The learned Judge came to the conclusion that the evidence produced by the prosecution brought the charge home to the accused, and that the accused taking advantage of his own position as an employee in the Chief Commissioner's office and of Ram Narain's ignorance and anxiety to get the licence had induced him to part with the money on the promise that he will get his licence restored. He also found that at the time of making this demand the appellant had not told Ram Narain that he wanted the money for someone who was in a position to issue the licence and that, therefore, the case did not fall within S. 161 of the Indian Penal Code. On that reasoning he convicted the appellant under S. 5 (1) (d) punishable under S. 5 (2) of the Prevention of Corruption Act (II of 1947) - hereinafter called the Act and sentenced him to six months rigorous imprisonment. The appellant preferred an appeal which was heard by Mr. Justice Falshaw of the Punjab High Court. The learned Judge, by his judgment and order dated February 4, 1957, substantially affirmed the findings of the learned special Judge and maintained the order of conviction and sentence. He accordingly dismissed the appeal. The appellant, failing to obtain a certificate from the High Court that his was a fit case for further appeal to this Court, applied for, and obtain from this Court, special leave to appeal from the judgment of the single Judge of the High Court.
(3.) Before this Court it has been strenuously argued that on the findings of fact arrived at by the courts below, accepting the prosecution story as told by the main prosecution witness Ram Narain, no offence under S. 5 (1) (d) of the Act has been made out Reliance was placed mainly upon the decision of the Division Bench of this Court in (1959) 2 Suppl. SCR 739. That case, if correctly decided, certainly supports the appellants contention, because it has been laid down in that case that in order to attract the operation of S. 5 (1) (d) of the Act it was a necessary element of the crime charged that the public servant should have misconducted himself in the discharge of his own duty, and that if the official favour promised by the public servant to the giver of the money was not in the hands of the public servant, he could not be said lo have misconducted himself in the discharge of his own duty. In that case the accuse person was a school teacher and the charge against him was that had promised to the giver of the money to secure a job for him in the Railway Running Shed at Mount Abu. It was not a part of his duty to make any such appointment and, therefore, when he took the money for procuring a job for the complainant, he could not be convicted for committing misconduct within the meaning of S. 5 (2) of the Act. The ratio of the decision is contained in the following paragraph of the judgment in that case. "The offence under this provision consists of criminal misconduct in the discharge of his duty. In older, 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 S. 161 of the Indian Penal Code but would not be an offence under S. 5 (2) read with S. 5 (1) (d) of the Prevention of Corruption Act. The essence of an offence under S. 5 (2) read with S. 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 word "by otherwise abusing his position" read along with the words "in the discharge of his duty" appearing in S. 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. 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 when he took money for procuring a job for Prem Singh in the Running Shed. So far, therefore, as the charge under S. 5 (1) (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." The relevant portion of S. 5 of the Act is in these terms: "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 or 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." ;