MANSHANKAR PRABHASHANKER DWIVEDI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant in Criminal Appeal No. 486/66, Manshankar Pabhashankar Dwivedi (hereinafter referred to as accused No.1), was at the relevant time a senior Lecturer at the D. K. V. College, Jamnagar, which is a Government College. The appellant in Criminal Appeal No. 555/66, Vallabhdas Gordhandas Thakkar (hereinafter referred to as accused No. 2) was a legal practitioner taking income- tax and Sales-tax cases. He also resided at Jamnagar. In April 1964 the Physics Practical Examination for F.Y.B.Sc. equivalent to inter Science was to be held by the Gujarat University and one of the centres was Surendranagar. The accused No. 1 had been appointed as the Examiner for Physics Practical. It is in respect of that examination that he is alleged to have accepted a gratification of Rs. 500/other than legal remuneration for showing favour to one candidate Jayendra Jayantilal by giving him more marks in the said examination. It was alleged by the prosecution that he obtained that sum through accused No. 2 on 27-4-1964. Therefore, the charge against accused No. 1 was under S. 161, Indian Penal Code and section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947, and the charge against accused No. 2 was under Section 165-A of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 114 of the Indian Penal Code. Both these charges against both the accused have been found proved by the learned Special Judge, Surendranagar, who by his judgment and order dated 27-5-1966 convicted them of these offences and sentenced each of them to rigorous imprisonment for two years and a fine of Rs. 1000/-in default of payment of which to undergo further rigorous imprisonment for six months. Against those convictions and sentences these appeals have been filed.

(2.) For these reasons we agree with the learned Special Judge that the prosecution case against the accused in respect of the demand and acceptance of bribe of Rs. 500/- for the purpose of giving more marks to Jayendra has been made out.

(3.) It is argued on behalf of the accused that even if the prosecution case as to demand and acceptance of the bribe is held to be established, neither Section 161, Indian Penal Code, nor Section 5(1)(d) of the Prevention of Corruption Act would be attracted in this case. The argument as regards Section 161, Indian Penal Code, is that the offence under that section relates to a public servant who attempts to obtain or obtains a bribe and one of the necessary ingredients of the offence is that he does so as a 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 function favour or disfavour to any person. Therefore, the necessary ingredients are firstly that the person is a public servant and secondly that the act which is a reward or favour was in the matter of doing any official act or done in the exercise of official functions. In this case, it was argued, accused No. 1 was no doubt a public servant in the sense that he was in the Government service as a seniro Lecturer in a Government College, but the bribe in this case was obtained not in connection with any official act or in connection with exercise of his official functions as such servant but in connection with his work as an Examiner of the Gujarat University. As such Examiner he was not a public servant because he was appointed as such Examiner independently of his being Government servant in a Government College and was being paid by the Gujarat University fees for the work done for that University. It has nothing to do with his being a Government servant. It was conceded that if even as an Examiner he was a public servant then as this bribe was obtained for giving more marks it would be in connection with an official act or in exercise of his official functions, but as he cannot be called a public servant in relation to his office as such Examiner the basic requirement of Section 161, Indian Penal Code, was lacking in this case. As regards Section 5(1)(d) of the Prevention of Corruption Act the argument is that that provision also concerns an offence committed by a public servant and if accused No. 1 as an Examiner of the Gujarat University is not a public servant in relation to acceptance of bribe in this case then clause (d) of Section 5(1) would also not be attracted because althogh he is generally a public servant being in the service of the Government as a senior Lecturer, the necessary ingredient for the offence under clause (d) is that he abuses his position as a public servant. In the present case he has no doubt abused his position as an Examiner but not as a Government servant in which capacity only he is a public servant.