Input:
iminal Appeal No. 79 of 1952.
Appeal by special leave from & Judgment and Order dated 16th April, 1951, of the High Court of Judicature at Allahabad Dayal and Desai JJ.) in Criminal Miscellaneous No. 17 of 1950.
K. section Krishnaswami Iyengar (H. B. Asthana, with him) for the appellants.
N. C. Sen for the respondent.
February 5.
The Judgment of the Court was delivered by MAHAJAN J.
This is an appeal by special leave from the judgment and order dated the 16th April, 1951 of the Allahabad High Court in Criminal Miscellaneous Petition No. 17 of 1950.
The two appellants are members of the Uttar Pradesh Civil Service.
583 In March, 1950, appellant No. 1 (Rizwan ul Hasan) was posted as District Magistrate, Jalaun, and appellant No. 2, Mohammad Munawar, was posted as a Magistrate in the same district, having officiated as District Magistrate for some time in the early part of March, 1960.
On 2nd March, 1,950, one Phundi Singh commenced proceedings under section 145 of the Code of Criminal Procedure in the Court of the Sub Divisional Magistrate of Jalaun on the allegation that Kedarnath and Matadin were about to cut his standing crop by force and 'that there was an imminent danger of a breach of the peace.
The magistrate issued notices to the parties complained against and ordered attachment of the standing crop.
On 4th March, 1950, one Shriram, brother of Kedarnath, filed a counter application before the court making certain allegations against one Thakur Pratap Singh, said to be the real person behind the proceedings commenced by Phundi Singh.
Kedarnath and Matadin, the respondents in Phundi Singh 's application, also filed an application similar to that of Shriram before the District Magistrate on the same date.
This application was accompanied by a recommendatory letter written to the District Magistrate by Lalla Ram Dwivedi, Secretary, District Congress Committee.
It was received by the second appellant who was then officiating as District Magistrate and was sent by him to the Sub Divisional Magistrate, Jalaun, in whose court Phundi Singh 's application was pending, for report.
The Sub Divisional Magistrate returned it with the remark that a proper com plaint should be made in his court in the ordinary way on the allegations made in the application.
Thereupon the second appellant returned the application to Kedarnath and Matadin and advised them to move the Sub Divisional Magistrate in as formal and proper manner.
On the application of Phundi Singh made before the High Court of Allahabad under section 3 of the 584 Contempt of Courts Act, the second appellant was held guilty of contempt of the Sub Divisional Magistrate on the following reasoning Shri Mohammad Munawar opposite party No. 5 forwarded application given by the opposite parties Nos ' 2 and 3 together with introductory letter to the Sub Divisional Magistrate,Jalaun.
We do not think that he had any intention to influence the Sub Divisional Magistrate with respect to his action in the case under section 145, Criminal Procedure Code.
But intention is not 'of importance so far as the question of commission of contempt is concerned.
He certainly acted without due circumspection and thought.
It must have been clear to him that the application contained expression which affected the due considerations of the points in dispute in the proceeding under section 145, Criminal Procedure Code.
He says in his affidavit and we can accept it that he sent this application to the Sub Divisional Magistrate just for taking action for the protection of opposite parties No. 2 and No. 3 and their crop about which an allegation was made that some action was to be taken by the other party the night following.
He should in the circumstances either pass an order for the police himself which he could have very well done, or he could have just conveyed a gist of the complaint necessitating protection of life and property immediately.
His conduct in transmitting the allegations made by the opposite parties No. 2 and 3 to the Sub Divisional Magistrate, Jalaun, in whose court the case under section 145, Criminal Procedure Code, was pending, did amount to the commission of contempt of that court." As regards the first appellant, the facts are that on 22nd March an application was received by post in the office of the District Magistrate signed by Shriram containing allegations against the trying Magistrate.
On 25th March, 1950, this application was sent by the appellant for report to the Sub Divisional Magistrate with the following endorsement 585 section D.C.
Please look into these allegations and let me have a report.
" On 4th April, 1950, the Sub Divisional Magistrate submitted a report and the first appellant having been satisfied that the allegations were baseless passed the following order: " I do not see any reason to withdraw the case from your file." On the application of Phundi Singh mentioned above made before the High Court of Allahabad under section 3 of the Contempt of Courts Act this appellant along with others was also held guilty of contempt of the Sub Divisional Magistrate 's Court, on the following reasoning : "Similarly transmission of the application sent by Shriram on the 25th March to the Sub Divisional Magistrate, Jalaun, amounted to commission of contempt of court by opposite party No. 6.
The mere fact that he had to take action in view of the allegations against the magistrate in that application would not affect this question.
The application contained, as already stated, expressions showing that Phundi Singh was a history sheeter and that the case under section 145, Criminal Procedure Code, was fictitious and was instituted at the instance of Pratap Singh.
He should not have transmitted the entire application.
He could have necessary extracts which related to the allegations against the magistrate sent to the ' court concerned in the circumstances when the applicants introduced matter irrelevant for transfer application.
It may also be mentioned here that the application could be treated as a transfer application though no such request was made in that application.
The application was neither properly presented nor was it accompanied by an affidavit nor was it stamped.
The applicant wanted some action for the protection of his crop from bad characters." Having found both the appellants guilty of contempt of court of the Sub Divisional Magistrate, Jalaun, the High Court took no action against them because they happened to commit contempt of court rather due to their carelessness Find lack of vigilance 586 than with any deliberate intention to commit it.
It was observed that officers who have to transmit communications to courts of justice should be vigilant and careful to see that nothing is transmitted which can have any effect, even remotely on, the merits of a case.
In our judgment, the proceedings for contempt of court against the two appellants on the facts stated are misconceived and have to be quashed.
Both the appellants were superior officers of the Sub Divisional Magistrate at the time when they sent the applications of Kedarnath and Matadin for report.
They were under a duty to supervise his work.
It is difficult to see how by transmitting the applications received by them to him, and asking him for his views they were in any way interfering with the course of justice and were committing contempt of his court.
Their action cannot be characterized as having a tendency to interfere with the course of justice.
The applications were transmitted to the Sub Divisional Magistrate in the usual and normal course of the official practice and we 'cannot subscribe to the view of the High Court that only extracts of these applications should have been sent to him for his views and not the applications as such as they contained material which had a tendency to interfere with the course of justice.
The second appellant, when he was officiating as District Magistrate, received the application of Kedarnath and Matadin with a letter of recommendation from the Secretary of the Congress Committee.
This application was in the nature of a counter complaint, and the appellant acted properly in sending it to the magistrate who was seised of the original application.
He was under no duty to censor it and to out it into pieces and then forward the relevant parts only to the magistrate.
The recommendatory letter was an annexure to the application and it had to go with it.
The conduct of the Secretary of the Congress Committee in writing a recommendatory letter about the facts of the case to the District 587 Magistrate was undoubtedly a communication for the purpose of influencing his decision and was rightly reprobated by the High Court.
Such 9, course is calculated, if tolerated, to divert the course of justice and ought more frequently than it is, to be treated as what it really is ' namely, a high contempt of court.
The Congress Secretary has been rightly held guilty of contempt and punished.
He has not come to this Court and we are no longer concerned with him.
But we are unable to find how the conduct of the appellant in sending the application which, as we have already stated, was in the nature of counter charge to the Sub Divisional Magistrate who was seised of the original complaint in any way amounted to contempt of court.
There are three different sorts of contempts known to law in such matters.
One kind of contempt is scandalizing the court itself.
There may likewise be a contempt of the court in abusing parties who are concerned in causes in that court.
There may also be a contempt of court in prejudicing mankind against persons before the cause is heard.
The act of the appellant could not fall in either of these three categories.
So far as the first appellant is concerned, under the provisions of section 528 of the Code of Criminal Procedure, he had authority to withdraw the case under section 145 of the Code pending in the court of the Sub Divisional Magistrate.
On the application of 22nd March made by Kedarnath and Matadin containing allegations against the Sub Divisional Magistrate he was entitled to use his powers under that section if the allegations contained therein were substantiated.
It is usual to send such applications to the court concerned for its remarks and that is precisely what he did.
and as soon as the remarks were received and he was satisfied that the allegations were baseless, he declined to withdraw the case.
We have not been able to see how such an action on the part of the District Magistrate, done in the normal and usual course of the discharge of his duties as such magistrate, could be held to interfere with the 76 588 course of administration of justice or to create pre re judice of any kind against the complainant in the proceedings under section 145 of the Code of Criminal Procedure.
There is nothing in section 528 of the Criminal Procedure Code which disables a magistrate from taking action unless he is set in motion by the petition of one of the parties and nothing in the Code prevents any person from bringing facts to the notice of the District Magistrate which might suggest to that magistrate that it was advisable to see whether the magistrate should remain in charge of a particular case.
In our judgment, therefore, the High Court was in error in thinking that the two appellants acted without due circumspection and thought and were guilty of contempt of the court of the Sub Divisional Magistrate.
We are further of the opinion that it was not possible to hold on those facts that any prejudice &rose in the case by these two applications being sent by the appellants to the Sub Divisional Magistrate or that any action was necessary for the protection of the tribunal which was engaged in hearing the case under section 145, Criminal Procedure Code.
As observed by Rankin C.J. in Anantalal Singha vs Alfred Henry Watson (1), the jurisdiction in contempt is not to be invoked unless there is real prejudice which can be regarded as a, substantial interference with the due course of justice and that the purpose of the court 's action is a practical purpose and it is reasonably clear on the authorities that the court will not exercise its juris diction upon a mere question of propriety.
The result is that we allow the appeal, set aside the judgment of the High Court against the two appellants and acquit them of the charge under section 3 of the Contempt of Courts Act.
Appeal allowed.
Agent for the appellant : section Subramanian.

Output:
The jurisdiction in contempt of court is not to be invoke a unless there is real prejudice which can be regarded as a substantial interference with the due course of justice.
The purport of the court 's action is a practical purpose and the Court will not exercise its jurisdiction upon a mere question of propriety.
During the pendency of proceedings against A and B under section 145, Criminal Procedure Code, in the court of a Sub Divisional Magistrate, A and B made an application to the District Magistrate alleging that the proceedings were not bona fide and 582 containing statements in the nature of a countercharge.
The 2nd appellant who was then officiating as the District Magistrate sent this application to the Sub Divisional Magistrate for report and on receiving a report from him that A and B should be asked to file a formal complaint before him, advised them to do so.
A brother of A sent a similar petition to the District Magistrate containing also allegations against the trying Magistrate.
The 1st appellant, who was the District Magistrate, forwarded them to the Sub Divisional Magistrate for report, and on receiving his report passed an order that he saw no reason to withdraw the file from the Sub Divisional Magistrate.
The High Court of Allahabad held that as the applications contained allegations which might interfere with the course of the trial of the proceedings under section 145, in transmitting the applications the appellants had acted without due circumspection and thought though they had no intention to influence the Sub Divisional Magistrate and the appellants were therefore guilty of contempt of court: Held, (i) that in transmitting the applications received by them to the Sub Divisional Magistrate and calling for a report the appellants were not in any way interfering with the course of justice but were only doing their duty as superior officers; (ii) it was not possible to hold that any prejudice had been caused by the two applications being sent by the appellants to the Sub,Divisional Magistrate or that any action was necessary to protect the Sub Divisional Magistrate who was hearing the case and the appellants were not guilty of any contempt of court.
Anantalal Singha vs Alfred Henry Watson ([1931] I.L.R. referred to.


Input:
tition (Criminal) Nos. 371 75 of 1983.
(Under article 32 of the Constitution of India) Govind Mukhoty and Ms. Kamini Jaiswal for the petitioners.
777 L.N, Sinha, K.G. Bhagat, Addl.
General, R. N. Poddar, P.P. Singh and D. Goburdhan for Respondents.
The Order of the Court was delivered by FAZAL ALI, J. We have heard counsel for the parties at length and have also gone through the Reports and documents filed by the petitioners.
In view of the fact that the counsel for the respondents are more or less agreed to the order we propose to pass, it is not necessary to go into further details.
The facts as gleaned from the Reports and documents reveal a most shocking state of affairs in the region in question.
It seems that a very large number of people have been languishing in jails without trial for petty offences.
Though most of the said people are alleged to have been released but the main infirmity has not been cured.
Without going into further details, we dispose of the petitions in terms of the following Order: "(1) In all cases instituted against the adivasi accused concerned which involve sentence of 7 years or more, they will be entitled to be released on consideration of merit by the court concerned only on executing a personal bond.
These cases will be disposed of on merits expeditiously.
(2) In the other cases where trial has already started and which do not come within the first category, indicated above, the accused will be entitled to be released on bail on executing a personal bond in the absence of very special circumstances.
(3) In the cases where no proceedings at all have taken place in regard to the accused within 3 years from the date of the lodging of FIR, the accused should be released forthwith under section 169 Cr.
P.C. (4) If there are other cases in which neither charge sheet have been submitted nor investigation has been completed during the last three years, the accused 778 concerned should be released forthwith subject to reinvestigation of the said case on fresh facts and they shall not be arrested without the permission of the Magistrate and where permission is given they would be released by the Magistrate on execution of personal bond.
We would like to observe that Section 144 Cr.
P.C. should not be misused and orders under this Section should be passed in the light of principles laid down in at page 169.
At the same time, we would like to warn Adivasi accused that they should not take the law in their own hands by shooting or using their arrows on Government Officers or other forest officers.
If they have any complaint they can move the appropriate authority and get suitable orders from him.

Output:
Code of Criminal Procedure, 1973, section 144 and section 169.
The writ petitioners brought to the notice of the Court that a very large number of people had been languishing in jails without trial for petty offences.
Disposing of the writ petitions, ^ HELD: (1) In all cases instituted against the adivasi accused involving sentence of 7 years or more, they will be entitled to be released on consideration of merit by the court on executing a personal bond.
These cases will be disposed of on merits expeditiously.[777E] (2) In the other cases where trial has already started and which do not come within the first category, indicated above, the accused will be entitled to be released on bail on executing a personal bond in the absence of very special circumstances.[777F] (3) In cases where no proceedings at all have taken place in regard to the accused within 3 years from the date of the lodging of FIR, the accused should be released forthwith under section 169 Cr.
P.C. [777G] (4) If there are other cases in which neither change sheet have been submitted nor investigation has been completed during the last three years, the accused concerned should be released forthwith subject to reinvestigation of the said cases on fresh facts and they shall not be arrested without the permission of the Magistrate and where permission is given they would be released by the Magistrate on execution of personal bond.
[777H; 778A B] (5) Section 144 Cr.
P.C. should not be misused and orders under this Section should be passed in the light of principles laid down in at page 169.


Input:
riminal Appeal No. 3 of 1957.
Appeal from the judgment and order dated August 14, 1956, of the former Judicial Commissioner 's Court, Ajmer, in Criminal Appeal No. 2 of 1956, arising out of the judgment and order dated January 11, 1956, of the Special Judge, Ajmer, in Criminal Case No. I of 1955.
R. Ganapathy Iyer and R. H. Dhebar, for the appellant.
B. D. Sharma, for the respondent.
April 22.
The Judgment of the Court was delivered by WANCHOO, J.
This appeal is on a certificate granted by the Judicial Commissioner of Ajmer.
One Shivji Lal Joshi (hereinafter called the accused) was prosecuted under section 161 of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act, No. II of 1947.
He was convicted by the Special Judge on both counts and sentenced to suffer rigorous imprisonment for a total period of six months.
He filed an appeal before the Judicial Commissioner of Ajmer.
The appeal was allowed on the ground that the accused was not a public servant, though the Judicial Commissioner agreed with the findings of the Special Judge so far as the facts were concerned.
The State applied for a certificate under Art, 134 (1) (c) of the Constitution to enable it to appeal to this Court.
This certificate was granted ; and that is how the appeal has come before us.
The facts which have been found by both the courts are these.
The accused was a teacher in the railway school at Phulera.
Prem Singh who was the complainant was known to the accused for about a year before the incident which took place on October 6, 1954.
He was in search of a job and the accused had told him a number of times that he would procure a job for him in the Railway Running Shed at Abu Road, if Prem Singh paid him Rs. 100.
On October 5, 1954, the accused had met Prem Singh at Kaiserganj 742 in Ajmer and told him that Dusehra holidays were approaching and if he paid Rs. 100 the accused would go to Abu Road to secure a job for him.
Eventually.
it was agreed between the two that Prem Singh would pay him Rs: 50 on the next day while the remaining Rs. 50 would be paid after the job had been secured.
After this agreement, Prem Singh went to the Deputy Superintendent Police (Special Police Establishment), and made a complaint to the effect that the accused had told him that he could secure employment for him at Abu Road Loco Shed as he bad considerable influence there and had demanded Rs. 100 as illegal gratification for that purpose.
Prem Singh also said that it had been settled that be would pay Rs. 50 in advance and Rs. 50 after his appointment.
Conse quently, Prem Singh wrote out an application addressed to the Divisional Mechanical Engineer, Abu Road, and also produced five ten rupee notes before the Deputy Superintendent Police.
The numbers of these notes were noted down and the Deputy Superintendent Police arranged that one Nathu Singh should accompany Prem Singh as a cousin when Prem Singh met the accused next day to pay him the money.
On October 6, 1954, Prem Singh accompanied by Nathu Singh met the accused as arranged and the accused asked him for an application.
Prem Singh gave him the application which he bad already written out and the accused said that that would serve the purpose.
The accused then asked Prem Singh for the money and he handed over the five ten rupee notes, adding that he would pay the remaining Rs. 50 after getting service and assuring him that he would keep to his part of the bargain.
Thereafter Prem Singh gave the pre arranged signal and the police party headed by the Deputy Superintendent of Police arrived.
The Deputy Superintendent Police disclosed his identity and searched the person of the accused.
In that search, the application which Prem Singh had written for the Divisional Mechanical Engineer, Abu Road, and the five ten rupee notes were recovered.
Thereafter the accused was prosecuted as already mentioned above.
743 The accused admitted that the application as well as the five ten rupee notes were recovered from him by the police.
His explanation was that one Jiwan Ram had given him the application which was in English and which was said to be a letter for a friend of Jiwan Ram at Abu Road.
The accused did not know English and took the application to be a letter to be delivered to the friend of Jiwan Ram.
Jiwan Ram also gave him five ten rupee notes to be given to that very friend of his when the accused went to Abu Road.
As already stated, both the courts below have accepted the prosecution version set out above and disbelieved the explanation given by the accused.
The Special Judge convicted the accused on the basis of the prosecution story.
The Judicial Commissioner, though he accepted the prosecution story to be true, held that the accused was not a public servant and therefore ordered his acquittal.
The main question that has been raised on behalf of the appellant therefore in this appeal is that the Judicial Commissioner erred in holding that the accused was not a public servant within the meaning of section 21 of the Indian Penal Code.
The question whether the accused is a public servant under section 21 of the Indian Penal Code depends upon the interpretation of the last part of the Ninth clause of that section, which is in these terms: , ". . every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty." The Judicial Commissioner seems to have overlooked this part of the Ninth clause, for he says that it had not been shown that it was the duty of the accused to take, receive, keep or expend any property on behalf of the Government so that he may come under the Ninth clause of section 21.
This only refers to the earlier part of the Ninth clause and the last part which we have set out above does not seem to have been considered at all.
This very question came up for consideration in this Court in G. A. Monterio vs The State of Ajmer (1) and it was laid down that the true (1) ; 744 test in order to determine whether a person is an officer of the Government, is: (1) whether he is in the service or pay of the Government and (2) whether he is entrusted with the performance of any public duty. ' It is not disputed in this case that the accused was in the service of Government and was being paid by Government.
It cannot also, in our opinion, be doubted that he was entrusted with the performance of a public duty inasmuch as he was a teacher in a school maintained by Government and it was part of his public duty to teach boys.
In these circumstances the Judicial Commissioner was in error in holding that the accused was not a public servant within the meaning of the Ninth clause of section 21.
This, however, does not dispose of the matter.
Learned counsel for the accused has urged that even if the accused is held to be a public servant, he cannot be held guilty on either of the charges framed against him.
We shall first take the charge under section 5(2) of the Prevention of Corruption Act read with section 5(1) (d).
The charge was that the accused by corrupt or illegal means or by abusing his position as a public servant obtained pecuniary advantage for himself inasmuch as he took As.
50 from Prem Singh on October 6, 1954.
Mere receiving of money by a public servant even if it be by corrupt means is not sufficient to make out an offence under section 5 (2) read with section 5(1)(d).
The relevant part of section 5(1)(d) reads as follows: " A public servant is said to commit the offence of criminal misconduct in the discharge of his duty, if he, 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 or pecuniary advantage 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 745 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 section 161 of the Indian Penal Code but would not be an offence under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act.
The essence of an offence under section 5(2) read with section 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 words " by otherwise abusing his position " read along with the words " in the discharge of his duty " appearing in section 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 section 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.
Now we turn to the charge under section 161 of the Indian Penal Code.
The relevant part of that section (omitting the unnecessary words) for the purpose of this case is in these terms: " Whoever, being a public servant, accepts from any person for himself any gratification whatever other than legal remuneration as a motive or reward for rendering or attempting to render any service or disservice to any person with any public servant ".
This requires that the person accepting the gratification should be (1) a public servant, (2) he should accept gratification for himself, and (3) the gratification 94 746 should be as a motive or reward for rendering or attempting to render any service or disservice to any person with any other public servant.
The charge under section 161 of the Indian Penal Code which was trained in this case stated that the accused being a public servant accepted on October 6, 1954, a sum of Rs. 50 from Prem Singh " as illegal gratification as a motive for securing a job for him in the Railway Running Shed ".
Now the first two ingredients set out above are clearly established in this case; but the third ingredient, (namely, that the gratification should have been taken as a motive or reward for rendering or attempting to render any service with any public servant) is not even charged against the accused.
The charge merely says that he took the money as a motive for securing a job for Prem Singh in the Railway Running Shed, Abu Road.
It does not disclose who was the public servant whom the accused would have approached for rendering or attempting to render service to Prem Singh in securing a job for him.
Even in the complaint made by Prem Singh to the Deputy Superintendent Police all that was said was that the accused told Prem Singh that he would secure a job for him at Abu Road because he had considerable influence there.
It was not disclosed as to who was the public servant on whom the accused had influence and whom he would approach in order to tender service to Prem Singh.
In his statement also Prem Singh did not say that the accused had told him that he had influence on any particular public servant at Abu Road whom he would influence in order to render this service to Prem Singh, namely procuring him a job.
It is true that the application was addressed by Prem Singh to the Divisional Mechanical Engineer and was given to the accused who said that it was all right; but Prem Singh did not even say that the accused had asked him to address the application to the Divisional Mechanical Engineer.
It seems that the application was addressed to the Divisional Mechanical Engineer, simply because he was obviously the officer in charge of the Railway Running Shed at Abu Road.
Thus Prem Singh did not say either in his complaint or in 747 his statement that the accused had told him that he would render service to him by approaching a particular public servant.
In the charge sheet submitted by the police as well as in the charge framed by the court, it was not disclosed whether any public servant would be approached to render service to Prem Singh, i.e., by securing him a job.
In the circumstances one of the ingredients of the offence under section 161 was neither alleged nor charged nor proved against the accused.
The mere fact that a person takes money in order to get a job for another person somewhere would not by itself necessarily be an offence under section 161 of the Indian Penal Code unless all the ingredients of that section are made out.
As in this case one of the main ingredients of that section has not been made out, the accused would be entitled to acquittal.
However, it has been urged on behalf of the State that presumption under section 4(1) of the Prevention of Corruption Act arises in this case as money passed hands from Prem Singh to the accused and section 4(1) provides that if an accused person has accepted any gratification for himself or for any other person, it shall be presumed unless the contrary is proved that he accepted that gratification as a motive or reward as is mentioned in section 161 of the Indian Penal Code.
Assuming that this presumption can be raised even when all that is proved is mere passing of money, the question still remains whether a presumption as to the motive or reward such as is mentioned in section 161 of the Indian Penal Code can be raised in this case at all, when we know as a fact that Prem Singh never said in the complaint that the accused had told him that he would influence any public servant and did not even say so in his statement in court and there was no mention in the charge sheet by the police or in the charge framed by the court that the accused was going to influence any public servant in order to secure a job for Prem Singh at Abu Road.
We are of opinion that if the evidence had disclosed that the accused had indicated that he would influence any public servant in order to secure a job for Prem Singh a presumption as to the motive or reward might have 748 been drawn under section 4(1), assuming again that such a presumption can be drawn where there is simple passing of money.
But when there is no indication whatever that any public servant was to be approached or influenced by the accused there can, in our opinion, be no question of making a presumption that the payment was as a motive or reward for endering service with any public servant.
In this view of the matter we are of opinion that the offence under section 161 of the Indian Penal Code is not made out against the accused, for one of its essential ingredients is missing and no presumption can be drawn in the circumstances in that connection.
We therefore dismiss the appeal though for reasons different from those which commended themselves to the learned Judicial Commissioner.
Appeal dismissed.

Output:
The respondent who was a teacher in a railway school was prosecuted under section 161 of the Indian Penal Code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947.
The (1) , 222.
740 prosecution case was that the respondent offered to secure a job for the complainant in the Railway Running Shed at Abu Road, if the latteR paid him Rs. 100, that the complainant agreed to this, and that on October 5, 1954, the complainant wrote out an application addressed to the Divisional Mechanical Engineer, Abu Road., and handed it to the respondent and gave him Rs. 50 promising to pay the balance of Rs. 50 after the Job had been secured.
The Special judge who tried the case accepted the prosecution story and convicted the respondent on both the charges, but, on appeal, the High Court acquitted him on the ground that he was not a public servant.
The State appealed to the Supreme Court.
It was contended for the respondent that even if he were considered to be a public servant he could not be held guilty on either of the charges framed against him.
It was found that neither in the charge framed under section 161 of the Indian Penal Code nor in the evidence was there anything to show that the respondent intended to approach any public servant in order to secure a job for the complainant.
Held : (1) that the respondent was a public servant within the meaning of the ninth clause of section 2I of the Indian Penal Code as he was in the service of Government,, was being paid by it and was entrusted with the performance of a public duty inasmuch as he was a teacher in a school maintained by Government and it was part of his public duty to teach boys.
G. A. Monterio vs The State of Ajmer, ; , followed.
(2) that in view of the words " by otherwise abusing his position " read along with the words " in the discharge of his duty " in section 5(1)(d) of the Prevention of Corruption Act, 1947, an offence under that section requires that the public servant should misconduct himself in the discharge of his duty.
In the present case, as the respondent was only a teacher it was not part of his duty to make appointments in the Railway Running Shed at Abu Road, and consequently when he took money for procuring a job for the complainant he was not committing misconduct in the discharge of his duty.
Accordingly, a conviction under section 5(2) read with section 5(1)(d)of the Prevention of Corruption Act, 1947, was not valid.
(3) that the mere fact that a person takes money in order to get a job for another person somewhere would not by itself be an offence under section 161 of the Indian Penal Code and that as the charge under section 161 did not disclose who was the public servant whom the respondent would have approached for rendering or attempting to render service to the complainant in securing a job for him, the prosecution under that section was not maintainable; and, (4) that the presumption under section 4(1) of the Prevention of Corruption Act, 1947 could not, arise in the present case as section 161 of the Indian Penal Code was not applicable.


Input:
Civil Appeal No. 712 F. Of 1980.
From the Judgment and order dated 20.12.1978 of the Gujarat High Court in Special C.A. No. 1()73 of 1975.
V.M. Tarkunde, Dr. D.Y. Chandrachud, section Bharatari and P.H. Parekh for the Appellants.
P.S. Poti, M.N. Shroff, K.M.M. Khan and Mrs. H. Wahi for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave is directed against the judgment of the Gujarat High Court in a dispute centered round seniority of government employees in the Gujarat Sub ordinate Secretariat Service.
The short facts necessary for disposal of the two contentions raised in this appeal are the following: 613 On May 1, 1960, the State of Bombay was bifurcated into two States Maharashtra and Gujarat.
Prior to that date the six appellants in this appeal had joined Government service as Clerks cum typists.
The Subordinate Secretariat Service was then divided into four grades (i) Clerk cum typist (ii) Junior Assistant (iii) Senior Assistant and (iv) Superintendent.
Promotions were available from the lower tier to the upper one.
When Gujarat became a separate State Government business in the Secretariat was divided into 9 departments separate in every respect so far as the Subordinate service was concerned.
On October 12, 1960, by a Government Resolution the cadre of Superintendents became a common one covering all the departments in the Secretariat.
Until then seniority was being determined department wise and promotions had also been regulated on the same basis in all the four grades.
Under the new arrangement promotion to the post of Superintendent was handled by the General Administration Department out of a common list of Senior Assistants.
On September 25, 1964, under another resolution of Government the grades of Junior Assistants and Senior Assistants were merged into a single one known as Assistants w.e.f. October 1, 1964, and a common seniority list of Government servants working as Assistants was prepared.
A quota system was introduced for recruitment of Assistants.
At one state, the ratio was 3: 1, promotees being the smaller proportion and later it was changed to 2: 1.
On July 19, 1969, a seniority list of Assistants was prepared on quota basis and taking into account continuous officiation in the cadre of Assistants.
The list was assailed before the High Court.
The court found by judgment dated March 9, 1972 that promotees were in excess of the ratio and accordingly gave direction for a fresh list to be drawn up.
On October 11, 1974, Government resolved to have a common cadre of Clerk cum typist and promotion to the post of Assistant was provided therefrom.
In 1975, the October Resolution of Government was challenged before the High Court by filing two writ petitions.
In the meantime, in 1977, a set of rules known as the Gujarat Subordinate Secretariat Service (Seniority of Assistants) Rules, 1977 were framed under the proviso to Article 389 of the Constitution with retrospective effect from May 1, 1960.
Rule 4 of the Rules laid down the principle for determining seniority by providing that seniority among the promotees Assistants inter se shall be fixed on the basis of their length of service in the joint cadre of Clerk cum typist for all departments of the Secretariat as a whole.
In December, 1978, the two writ petitions were dismissed.
The High Court held that the object of the Rules of 1977 was to equalise the chances of promotions to the selection cadre and since the rules took care of the promotee officers by ensuring non reversion, the rules were indeed not retrospective.
H 614 Several consequential dircctions were given.
It is this judgment which is now under appeal.
The main contention advanced by Mr. Tarkunde in the appeal is that the rule regarding seniority is retrospective in operation and takes away the vested right of the appellants to prospects of promotions.
In support of his submission he has relied upon three decisions of this Court, namely, Mervyn vs Collector of Customs, Bombay & Ors., ; Roshan Lal Tandan vs Union of India, [ ; and State of Jammu & Kashmir vs Triloki Nath Khosa & ORS., l 1.
Each one of these is a decision of the Constitution Bench.
We do not find that on facts any of these cases has any support to offer for the point in dispute.
Mervyn 's case was that of Appraisers of the Customs Department and challenge was to the validity of the rotational system in fixing the seniority of Principal Appraisers.
The Court struck down the method used by Government in fixing the seniority of Principal Appraisers on a finding that there was denial of equality of opportunity.
The dispute in this case is different from what came in Mervyn case for determination.
This will be apparent when we presently deal with what exactly is the problem in the matter before us.
Roshan Lal 's case dealt with recruitment into one cadre from two sources.
Even when recruitment from the two sources merged into one cadre, favourable.
treatment was given to recruits from one source regarding further promotion.
The Court found this to be violative of Articles 14 and 16 of the Constitution.
This again is not relevant for resolving the dispute in hand.
Triloki Nath 's case was dealing with the Engineering Service of Jammu & Kashmir.
There was direct recruitment of decree holders in civil engineering as also by transfer of degree or diploma holders who had served as Supervisors for a period of not less than 5 years for recruitment to the cadre of Assistant Engineers.
The relevant rule provided that recruitment to the post of Executive Engineers and above was to be made by promotion only and Assistant Engineers who possessed a degree in engineering alone were eligible for such promotion.
This rule, therefore, disqualified diplomaholders for being promoted as Executive Engineers and they challenged the constitutionality of the rule by contending that it was discriminatory.
The Court found that even after there was one cadre, for the promotional post therefrom, a higher qualification could be prescribed and those out of the common cadre who satisfied that requirement could be made eligible for promotion.
As we have already pointed out in the instant case the State decided at stages to switch over to the common cadre in respect of all the four grades of the Subordinate Service.
Before common grades 615 had been formed promotion was granted departmentwise.
When ultimately a common cadre came into existence and all that was done by 1974 it was realised that if seniority as given in the respective departments were taken as final for all purpose there would be prejudice.
Undoubtedly the common cadre was for the purpose of increasing the efficiency by introducing a spirit of total competition by enlarging the field of choice for filling up the promotional posts and in the interest of discipline too.
After a common cadre was formed, the general feeling of dissatisfaction on account of disparity of seniority became apparent.
The 1977 Rules were introduced in this background to ease the situation.
The scheme of this rule protected the rank then held by every member of the service notwithstanding alteration of seniority on the new basis.
This, therefore, made it clear that accrued benefits were not to be interfered with.
To that extent the 1977 Rules were not retroactive.
In spite of the protection of Rule regarding the post then held, the Rules brought about a change in the inter se seniority by adopting the date of initial recruitment and the length of service became the basis for refixing seniority.
Total length of service for such purpose is a well known concept and could not said to be arbitrary.
Undoubtedly one of the consequences of the change in the basis was likely to effect prospects of promotion a matter in future.
Two aspects have to be borne in mind while considering the challenge of the appellants to this situation.
It was a historical necessity and the peculiar situation that arose out of Government 's decision to create a common cadre with four grades in the entire Secretariat.
We would like to point out with appropriate emphasis that there was no challenge to creation of the common cadre and certainly Government was competent to do so.
The second aspect to be borne in mind is that rules of seniority are a matter for the employer to frame and even though prospects of promotion in future were likely to be prejudiced by introduction of a new set of rules to regulate seniority, if the rules were made bona fide and to meet exigencies of the service, no entertainable grievance could be made.
If these are the tests to apply, we do not think the appellants have indeed any grievance to make.
In our view, therefore, the High Court rightly dismissed the contention and found that appellants were not entitled to relief Mr. Tarkunde next urged about the quota.
We find that the High Court has not dealt with the question.
We do not propose to go into that aspect.
We accordingly dismiss the appeal but leave parties to bear their own costs throughout.
S.L. Appeal dismissed.

Output:
% The appellants had joined the government service as clerks cum typists before the bifurcation, in May, 1960, of the State of Bombay into Maharashtra and Gujarat States.
The Subordinate Secretariat Service then consisted of four grades (i) Clerk cum typist, (ii) Junior Assistant, (iii) Senior Assistant, and (iv) Superintendent.
On the formation of Gujarat State, Government business in the secretariat was divided into nine separate Departments so far as the Subordinate service was concerned.
Later, by a government Resolution, a common cadre of Superintendents for all the departments was created, and promotion to the post of the Superintendent was directed to be made out of a common list of senior assistants, and by another resolution, the grades of the senior assistants and junior assistants were merged into one post termed as Assistant, and a common seniority list of the Assistants was prepared.
In October, 1974, by another Resolution, a common cadre of the clerks cum typists was created and promotion to the post of Assistant was provided therefrom.
This October Resolution of the government was challenged before the High Court by two writ petitions.
In the meantime, the Gujarat Subordinate Secretariat Service (Seniority of Assistants) Rules, 1977, were framed, which were to come into operation with retrospective effect from May, 1960.
Rule 4 of the Rules laid down the principle for determining seniority by providing that seniority among promotees Assistants inter se shall be fixed on the basis of their length of service in the joint cadre of clerk cum typist for all Departments of the Secretariat as a whole.
The High Court passed an order, dismissing the two writ petitions.
The order of the High Court is appealed against by Special Leave in this Court, mainly on the ground that the retrospective operation of the Rules regarding seniority takes away the vested rights of the appellants of their prospects of promotions.
Dismissing the appeal, the Court, 612 ^ HELD: A Common cadre was created for increasing efficiency A and in the interests of discipline.
After the formation of the common cadre, general feeling of dissatisfaction owing to disparity of seniority was generated.
The 1977 rules were introduced to ease that situation.
The scheme of the Rule regarding seniority protected the rank then held by every member of the service notwithstanding the alteration of seniority on the new basis.
To that extent, the 1977 rules were not retrospective.
[615B C] There was no challenge to the creation of the common cadre.
Secondly, the rules of seniority are a matter for the employer to frame, and even though the prospects of promotion were likely to be prejudiced by the introduction of some new set of rules to regulate seniority, if the rules were made bona fide to meet the exigencies of the service, no entertainable grievance could be made, and the appellants have no grievance to make.
[615E FI Mervyn vs Collector of Customs, Bombay and others, [1966] 3 S.C.R.600; Roshan Lal Tandan vs Union of India, [1968]1 S.C.R.185 and State of Jammu & Kashmir vs Triloki Nath Khosa & others, [1974] I S.C.R. 771, relied upon.