LexTHE STATE OF GUJARAT versus MANSHANKAR PRABHASANKAR DWIVEDI
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.A B ' • c E I F G H THE STATE OF GUJARAT v. MANSHANKAR PRABHASANKAR DWIVEDI April 26, 1972 [A. N. GROVER AND M. H. BEG, JJ.J 313 Indian Penal Code ss. 21 & 161--frcturer in Govt. College appointed examiner at an examination held iH' University of Gujarat-Whether a '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 a public servant necessary even when pecuniary advantage etc. is obtained by corrupt or illegal n1eans. D, a Lecturer in a Government College, was appointed as examiner of a physics practical examination held by the Gujarat University. He allegedly took Rs. 500 from a 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 a '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 a public servant and therefore not guilty under s. 161 I:P.C.; '(ii) that though a public servant in his capacity as lecturer in a 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 a 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. A 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 a public duty. A 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 a University also cannot be said to be a public servant since a University is not • local authority within the meaning of claui;e 12(b). Since the appellant was not a 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 D had been guilty of any abuse df his position as a lecturer of the Government Col- lege. As he was not a 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. a 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 314 SUPREME COURT REPORTS [1973] l S.C.R. 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 a 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 a nature as would savour of a diEhonest act. But the abuse of position as a 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 a public servant is essential. [324 A-DJ In clauses (a), (b) and (c) of s. 5(1) the abuse of position as a public servant is clearly implied. Clause ( e) also carries the same impli- cation. It would, there/fore. be reasonable to put on clause (d) a 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, appli
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