af sy
38.0.R. SUPREME COURT REPORTS 259
Act must follow. Such a law is not capable of being called in question on the ground that it abridges any fundamental right conferred by Arts.14, 19 and 31, if it has been assented to by the President. The notification was thus valid, if the law was valid. In the result, the appeals fail, and are dismissed with costs, one set only.
Appeals dismissed.
DHANESHWAR NARAIN SAXENA v% THE DELHI ADMINISTRATION
(B. P. Stunna, C. J.,"8. K. Das, A. K. SAnKAR, N. RagaGopana AYYANGAR and J.R. MupHOLKAkR, JJ.)
Prevention of Corruption—Public servant—Misconduct, not in the discharge of one’s duty—Corrupting other public servant— Criminal Misconduct—Ingredients of offence—Prevention of Corruption Act, [947 (2 of 1947), ss. 5 (1) (d), 6 (1) (4).
The appellant who was an Upper Division Clerk in the office of the Chief Commissioner of Delhi was convicted of an offence under s. 5 (1) (d) of the Prevention of Corruption Act, 1947, punishable under s. 5 (2) of the Act. The prosecution case was that R who was anxious to obtain a licente for a doublebarralled shot-gun sought the assistance of the appellant who knew him, that the appellant who had nothing to do with the issuing of licences for firearms which was done by the office of the Deputy Commissioner, offered to use his good offices in expediting and furthering the progress of R’s application for a licence in the appropriate department if he was paid Rs. 250,-, and that when the licence was cancelled on its being found that R was not entitled to it the appellant promised to have it restored if he was paid a further sum of Rs, 180/-. The trial Judge found that the appellant taking advantage of his position as an employee in the Chief Commissioner’s office and of R’s ignorance and anxiety to get the licence, had induced him to part with the money on the promise that he would get his licence restored. The appellant pleaded that on the facts found no offence under 8, 5(1)(d) of the Act had been made out and relied on State of Ajmer v. Shiujt Lal, (1959) Supp. 2 &. C, R. 739,
196] Mahant Sankarshan Ramanuja Das Goswami Hic. Ete
Ete.
v. The State of Orissa
Hidayatullah J.
August 24,
} \ . tare cate ‘\ {
Pa ae ~ so 260 “SUPREME COURT REPORTS —_[1962]
191 _- Held, that in order to constitute an offence under cl. (d) . Dhaneshwar of 8.5 (1) of the Prevention of Corruption Act, 1947, it is not e4, war Narai in Saxena . necessary, that the public servant in question, while misconducte -*. ing. himself, should have done so in the discharge of his duty; The Delhi -- and that the decision in State of Ajmer v. Shivji. Lal. (1959) Adininiatration | . \ Supp. 2S. C. R. 739, to the contrary, is wrong.
; en If a public servant takes money from a third person, by . “»-" ° corrupt or illegal. means or otherwise abusing his ufficial posi- _tion,, in order to. corrupt some other public . servant, ~~ °° “he commits” an” offence under s.5 (1) (a), even _ though there was no question of his misconducting himself i in the dis- ‘charge of his own duty.
CrmunaL APPELLATE JURISDICTION : Criminal
Appeal No. 6 of 1959. _ ..-._. *
Appeal by special: leave from: ‘the judgment and ‘order dated the February 4, 1957, of the Punjab _High. Court. (Circuit Bench) at Delhi. in Criminal Appeal No.'173-C of 1956.
1. C. Mathur, Pi C. Mathur and 4. XN. Goya for “the: Appellants..:. 0500.0:
BR. ‘Khanna, and. t. M. ‘Sen, for the Respon “dents.” fe
1961. August 24. ‘The Sudgment of the Court Was ‘delivered by’...
| Srvma, C.J. 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 ~ ~- Pebrary 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. 2 Shivjé Lal ?). -‘The’ ‘Bench hearing ‘the case, being : of opinion that the decision aforesaid of. this Court ; of pinto ‘reconsideration, referred the’“case to a "larger bench, and that is how it has come before'us.
oe ~-Jt is necessary: to'state the ‘following facts inonde to'bring out the question: of law to‘ be. determined | in this case.’ The appellant was. an’ upper . Division ‘Clerk in. the oflice ‘of the.. Chief Com-. ,. \ missioner. of Delhi: H “had: come © to! know
*. (1) [1959] Sup. 2. S.C.R. 739."
Sinka CL J. .
3. 8.C.R. SUPREME COURT REPORTS 261
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 shot-gun. It is alleged that 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 cf 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 appraised 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 Rs. 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, v. The Dethi Administration v. The Dethi
Administration
262 SUPREME COURT REPORTS [1962]
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 as a reward for hig 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 actully 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 fer catching the appellant red-handed. Accordingly, Ram Narain saw the appellant in the Chief Commissioner's office and accompanied him to the canteen run by Kishorila}, who has been examined as Defence Witness 1. 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 rupecs, which he had been given by the police, to the appellant. On the prearranged signal being given by Sarwan Singh, Inspector Surendra Pal Singh 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 Kishorilal, the proprietor of the cantee,.. Tho head constable Gurbachan yo
38.C.R. SUPREME COURT REPORTS — 263
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 in 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 Jawale Dass, Special Judge Delhi. He framed the following charge against him.
“T, 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 v. The Deths Administration
1961. Dhaneshwar-
Narain Sexena- * ve The Dethi
Administration.
Sinha C-I..
yf \
© 2647 SUPREME COURT REPORTS - [1962].
found that at the time of making. ‘this.demand tho 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. substan- tially affirmed the findings ofthe: ‘learned Special Judge and maintained ‘the order of conviction and sentence. He’! ' accordingly: dismissed’, the appeal. The’ appellant,’ failing: to obtain “& certificate from
. the High Court that his was 'a'‘fit ‘case “for farther appeal to ‘this’ Court,‘ ‘applied “for; ‘and ‘ obtained from this Court, special leave. to.appéal-.from the a judgment. of the single, Judge of the High Court.
‘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 State ‘of ‘Ajmer v. Shivji Lal ().. ‘That case, if
“correctly, decided, certainly supports the appellant, contention;’ because it has been ‘laid: down in that
--ease! that ‘in order ‘to‘attract’'the operation of
_s. &(1)d) of the Act it was: 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: fayour 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 ‘to have:misconducted . himself. in the dis- charge of:his.own:duty.;! In that « case, ‘the ; accused ow) [1959] Supp. 2. S.C.R, 739. ot imi bee ik
» me
3 S8.C.R. SUPREME COURT REPORTS 265 person was a school teacher and the charge against him was that he had promised to the giver of the money to secure a job for him in the Railway Running Shed at Mount Abu. Jt was not a part of his duty to make any such appointment ard, 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 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 guestion 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 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 therebv 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. hig position” read along with the words “in the discharge of his duty’? appearing ins. 5 (1d) 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 v. The Dethi Administratir
Sinha C.¢ an N. . ‘ nL
266 ~ "SUPREME COURT REPORTS | [1962]
1961 ~ present case, the accused” was a teacher and Dhaneshwar == it’ Was’ no part of his duty:to make appoint- Narain Saxena ments in the Running Shed at Abu Road. The Delhi : There would, therefore, be no question of his Administration“ - . committing misconduct in the discharge of his Sinha. J. ~ _... duty when he took money for procuring a job for Prem Singh in the Running Shed. So far, therefore, as the charge under 8. 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 s. 5 of. the. Act | is in these terms; )~ wo ~ “5. Criminal misconduct i in discharge of official duty—....
-(1) “A’-public servant is -said to
; commit’ the offence of. criminal: misconduct in the * discharge of his duty—
{(B) sesserseeeneess Of i (c) seeveadccocceee : me “° (d) ifhe, 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 , 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.” It will be observed that the heading: of s. 5 i is ‘Criminal misconduct in the discharge. of official _duty’.. That-is a new offence which was created by tho Act, apart from and in addition to offences under the Indian Penal. Code, like those : under 8.161 etc.
ao
3 S.C.R. SUPREME COURT REPORTS 267
The legislature advisedly widened the scope of the crime by giving a very wide definition in s. 5 with a view to punish those who, holding public office and taking advantage of their official position, obtain any valuable thing or pecuniary advantage. The necessary ingredient of an offence under s. 161, Indian Penal Code, is the clause ‘asa motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or dis-service to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant.” but it need not be there in order to bring an offence under s. 5 of the Act home to the accused. The offence under this seotion is, thus, wider and not narrower, than the offence of bribery as defined in s. 161, Indian Penal Code. The words “in the discharge of his duty” do not constitute an essential ingredient of the offence. The mistake in the judgment of this Court in the aforesaid ruling in the State of Ajmer v. Shinji Ind (1) has arisen from reading those words, which are part merely of the nomenclature of the offence created by the Statute, whose ingredients are set out in sub-clauses (a)to (d) that follow, as descriptive of an essential and additional ingredient of each of the types of offence in the four subclauses. Tht that is the source of the mistake is apparent from the erroneous way in which the section has been quoted at p. 744 of the Supreme Court Report, in the paragraph preceding the paragraph quoted above. The ingredi-nts of the particular offence incl. (d) of s. 5 (1) of the Act are; (1) that he should bea public servant ; (2) that he sh ould use some corrupt or illegal means or otherwise abuse his position as a public servant ; (2) that he should have thereby obtained a valuable thing cr peemiary advantage ; and (4) for himself or for any other person. In order to bring the charge [19399] Si9%. SCR 739.
‘Led Dhaneshwar Narain Saxena v. The Delhi Administration
Sinha G. J.
v. The Dethi Administration
Sinha C. J.
268 SUPREME COURT REPORTS [1962]
home to an accused person under cl. (d) aforesaid of the section, it is not necessary that the public servant in question, while misconducting himself should have done so in the discharge of his duty. Tt would be anomalous to say that a public servant has misconducted himself in the’ discharge of his duty. “Duty” and “misconduct” go ill together. If a person has misconducted himself as a public sarvant, it would not ordinarily be in the discharge of his duty, but the reverse of it. That ‘misconduct’, which has been made criminal by s. 5 of the Act, does not contain the clement of discharge of his duty, by public servant, is also made clear by reference to the provisions of cl. (c) of s. 5 (1). It is well settled that if a public servant dishonestly or fraudulently misappropriates property entrusted to him, he cannot be said to have been doing so in the discharge of his official duty (vide the case of Hort Ram Singh v. The Crown ('). An application for special leave to appeal from that decision was refused by the Privy Council in Hori Ram Singh v. The King-Emperor (*). This Court therefore, misread the section when it observed that the offence consists in criminal misconduct in the discharge of official duty. The error lies in importing the description of the offence into the definition portion of it. It is not necessary to constitute the offence under cl. (d) of the section that tho public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise abusing his official position, in order to corrupt some other public servant, without there being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under s. 5(1)(d). Itis also erroneous to hold that the essence of an offence unders. 5 (2), read with s. 5(1) (d), is that the public servant (1) (1939) F.C.R. 159. (2) [1940] F.C.R. 15.
3.8.¢.R. SUPREME COURT REPORTS 269 should do something in the discharge of his own duty and thereby obtain a valuable thing or pecaniary advantage.
These observations dispose of the present appeal and it must be held that there is no merit in the contentions raised in support of the appeal. As the only point raised in support of the appeal fails, it is accordingly dismissed.
Appeal dismissed.
ALL INDIA BANK EMPLOYEES’ ASSOCIATION Vi
NATIONAL INDUSTRIAL TRIBUNAL & OTHERS (And Connected Petitions)
(B. P. Sinwa, C. J., S. K. Das, A. K. Sarkar, N. RagAGOPALA AYYANGAR and J. R. MupHoiKar, JJ.)
Fundamental Right—Right to form association or unton— Scope of—Stature protecting Banks from disclosure of information regarding secret reserves etc.—Constitutionality of—Banking Companies Act, 1949 (X of 1949), 8. 34-A—Constttution of India, Arts. 14, 19(1)(c).
Section 34-A of the Banking Companies Act, 1949, introduced in 1960, provides that no banking company shall be compelled to produce or give inspection of its books of account or other document or furnish or disclose any statement or information which the company claims to be of a confidential nature and the production etc., of which would involve disclosure of information relating to any reserves not shown as such in its published balance sheet or any particulars not shown therein in respect of provisions made for bad and doubtful debts and other usual or necessary provisions, Sub-section (2) of s. 34-A provides that any authority, before whom the question as to whether any amount out of such reserves or provisions should be taken into account, may refer the question to the. Reserve Bank and the Reserve Bank shall furnish to the authority a certificate stating that the authority shall or shall not take
*<.into account the amount specified therein, Sub-section (3)
makes s. 34-A applicable to only such banking companies whose operations extend beyond one State. The Appellant contended ve The Deths Adminiatration
Sinka C.J.
August 28.