Kaliyaperumal, R. vs The State

Ratnavel Pandiyan, J.—These appeals arise out of the judgment rendered in C. C. 9 of 1972 on the file of the Court of the Second

Additional Special Judge, Madurai. C A. Nos. 234/75 and 635/75 are preferred by the accused Nos. 2 and 1 respectively challenging the

correctness and validity of their convictions and sentences of R. I. for one year and imprisonment till the rising of the court respectively imposed

therefore. C. A. 626 of 1976 is preferred by the State represented by the learned Public Prosecutor on being aggrieved by the order passed by

the trial Judge acquitting accused Nos. 3 and 4 of all the charges with which they stood charged and tried, and accused No. 5 of the charge u/s 5

(2) read with section (5) (I) (d) of the Prevention of Corruption Act, 1947 (Act II of 1947 (hereinafter referred to as the Act). C.A. No. 627 of

1976 is preferred by the State under S. 377 of the Code of Criminal Procedure, on the ground that the sentences imposed on accused Nos. 1 and

5 for the offences of which they are convicted by the trial Court, are grossly inadequate and is not commensurate with the gravity of the offence.

Before the trial Court, accused Nos. 1 to 5 were tried mainly for the offences :-

(1) under S. 120-B read with S. 420 I. P. C. and S. 5 (2) read with S 5 (I) (d) of the Act;

(2) under S. 420, I.P.C. simpliciter; and

(3) Under S. 5 (2) read with S. 5 (1) (d) of the Act simpliciter.

The first charge in all the cases is a charge of conspiracy. According to this charge, all the accused, viz., accused 1 to 5, along with the two

approvers, viz., B. Babuswami. son of Balakrishna Pillai (P. W. 6) and R. Subramaniya Iyer, son of Ramakrishna Iyer (P.W. 7) and some other

unknown persons, between I7th July, 1967 and 14th November, 1967 or thereabouts, at Madurai and Trichy, agreed to do certain illegal acts, to

wit, to cheat the Deputy Superintendent, R. M. S. ''T'' Division, Trichy, representing the Government of India, in pursuance of which the first

accused dishonestly and fraudulently submitted to the abovesaid officer, false medical reimbursement claims and induced him to pass them and pay

the amounts to him and that accused No. 5 furnished false essentiality certificates in Form -A'' to accused No. 1 by corrupt or illegal means or

otherwise abusing his official position as a public servant in the capacity of Assistant Surgeon, Government Erskine Hospital, Madurai, and that

accused Nos. 2 to 4 prepared or furnished to accused Nos. 1 false medical cash bills for the purchase of medicines in the name of M/s. Gemini

Medicals, Madurai and false ''A'' certificates to enable accused No. 1 to prefer the said reimbursement claims and thereby accused No. 1 to 5

performed the said acts and committed an offence of criminal conspiracy punishable under S. 120-B read with S. 420,1. P. C, and S. 5 (2) read

with S. 5 (1) (d) of the Act.

Apart from the first charge, charge Nos. 2 and 5 are as against accused No. 1 on the allegations that in pursuance of the conspiracy aforesaid

and in the course of the same transaction, the first accused submitted false medical reimbursement claims under Exs. P. 4 and P.8, claiming

amounts as noted in the respective charges, on a false representation that he had incurred the expenditure for an alleged treatment of himself or any

one of his dependants and thereby committed an offence punishable under S. 420,1. P. C. Further the first accused stood charged under charges

Nos. 3 and 6 on the allegations that he abused his official position as a public servant by corrupt or illegal means or otherwise by submitting false

medical reimbursement claims for alleged treatment of himself or of his dependants as detailed in charge Nos. 2 and 5, and thus obtained pecuniary

advantage to the extent of the amounts mentioned in each of the respective charges sanctioned and paid to accused No. 1 on the above-said false

claims and thereby the first accused committed offences punishable under S. 5 (2) read with S. 5 (1) (d) of the Act.

The next set of charges is against accused No. 5 who stands charged under charge Nos. 4 & 7 on the allegation that he, while functioning as a

public servant, to wit, an Assistant- Surgeon employed in the Government Erskine Hospital, Madurai, in pursuance of the abovesaid conspiracy,

and in the course of the transaction, between 17th July, 1967 and 14th November, 1967 or thereabouts at Madurai, abused his official position as.

a public servant, by corrupt or illegal means or otherwise issued false essentiality certificates in Form ''A'' (Exs.P5 and 9), certifying that he had

treated the claimant or his dependants, as the case may be, as detailed in the respective charges and received the amounts as specified in the

charges in respect of the said alleged treatment and obtained pecuniary advantage of the amounts specified in the charges for himself and accused

No. l and thereby committed an offence punishable under S. 5 (2) read with S. 5(l)(d)of the Act.

The existence of this medical reimbursement racket at Madurai, leading to a huge loss of amount to the Government of India was unearthed by

the Central Bureau of Investigation, Madras, which received information about this large-scale swindling of money under the pretext of medical

reimbursement claims by the employees belonging to the Post and Telegraph Department at Madurai with the active connivance of certain

chemists, touts and authorized medical attendants at Madurai. It transpires from the evidence of P.W.22 (Thiru CM. Raghavan) who was then

working as Inspector of Police, C. B. I. Madras, that while he was investigating Regular Case No. 68/77 of C. B. I. S.P.E., Madras, he found that

a number of employees belonging to the Post and Telegraph Department (Central Government) were claiming amounts under false medical

reimbursement bills with the active connivance of the chemists, A.M.As., etc., and thereafter, in order to unearth the said racket, he obtained

seventeen search warrants from the learned Sub Divisional Magistrate, Poonamallee, on 24th November, 1967. In pursuance pf the abovesaid

warrants, various places inclusive of the residence of accused No. 2 (Usman) and his medical shop Viz., Gemini Medicals, were searched.

[The discussion relating to facts is omitted-Ed.]

According to the prosecution, accused: No. 1 was working as Sorter, SIUC,. Madhurai during the year 1967. Accused-2, formerly a Class IV

official in the Sub Record Office, R.M.S., Madurai started a medical shop in the name of accused No. 3, his brother-in-law, in February, 1967.

Accused No. 5, Dr. Razack, was working as a Civil Assistant Surgeon in the Government Hospital, Madurai, and was also an ex-officio

Authorized Medical Attendant for the Central Government Employees in Madurai.

Under the Central Service Medical Attendance Rules, 1944, the first accused was entitled to the concession of reimbursement of medical

charges incurred by him for his own treatment and for the treatment of the members of his family, including his dependant parents, under the A.M.

As. towards the cost of medicines, and the consultation and injection fees. During the period, sometime prior to August, 1967 and October, 1967,

accused Nos. 1 to 5, P.Ws. 6 and 7, the approvers and others, according to the prosecution, were parties to a criminal conspiracy at Madurai, by

which it was agreed, among themselves, that accused No. 1 was to prefer false claims for reimbursement of the medical charges as if they were

incurred by him on his behalf and on behalf of the members of his family on the basis of bogus cash bills of Gemini Medicals, Madurai, showing

purchase of medicines and false ''A'' certificates to be issued by accused No. 5, as though treatment was given, all produced by accused-2 with

the assistance of accused Nos. 3 and 4 in consideration of accused 1 paying 20 to 25 per cent of the value of the bill and the entire doctor''s fees,

which would be paid by accused No. 2 to accused 1 as illegal gratification.

In pursuance of the said conspiracy, accused 1 preferred claim to the Senior Superintendent, R.M.S., ''T'' Division, Trichy, under Exs.P4 and

P8, dt. 9th September, 1967 and 24th August 1967, for a total sum of Rs. 114.22, towards the reimbursement of the medical charges purported

to have been in cured by him for his treatment along with the false ''A'' certificates Exs.P5 and 9 issued by accused No. 8 through accused-2 and

also cash benfit Gemini Medicals, Ex. P6,10 and 11 is and obtained a sum of Rs. 114.22 against his acquaintance. Hence, accused Nos. 1 to 5

are charged under charge 1.

Of the remaining charges, charges 2, 3, 5 and 6 are as against accused 1, charges 2 and 5 being for an offence under S. 420,I.P.C. simpliciter,

charge Nos. 3 and 6 being for offences punishable under S. 5 (2) read with S. 5 (1) (d) of the Act.

[The discussion relating to facts and evidence omitted :-Ed.]

The learned Judge, for the discussion made in his judgment, has found accused Nos. 3 and 4 not guilty under the first charge, and accused No.

5 not guilty of the offence under S. 5 (2) read with S. 5 (1) (d) of the Act under charge Nos. 4 and 7 and consequently acquitted them thereunder.

However, the trial Court found accused Nos. 1, 2 and 5 guilty of the first charge and convicted them thereunder, and found accused 1 guilty under

charges 2, 3, 5 and 6 and convicted him thereunder. Coming to the question of sentence, the learned trial Judge, taking into consideration the fact

that accused No. 1 (sic) and 5 are Government servants and observing that they were tempted with easy money and ""had fallen a prey to the

machinations of accused 2, the king-pin of the whole scheme..."" and that by this conviction they would lose their jobs and took a lenient view and

sentenced each of them to undergo imprisonment till the rising of the Court under the charges under which they stood charged.

Coming to the question of sentence to be imposed on accused No. 2, the learned trial Judge has opined that a deterrent sentence was called

for as he was the architect of the whole scheme and consequently sentenced him to suffer rigorous imprisonment for one year under the first

charge, and directed this sentence imposed on accused 2 to run concurrently along with the sentences awarded against him in the other cases in

which accused 2 was tried, convicted and sentenced along with others, viz., in C.C. NoS. 25 to 34/71, 6, 10, 19 to 41, 45 and 46/72. Hence

these appeals by the convicted persons and by the State as mentioned above.

Mr. G. Gopalaswami, learned counsel appearing for the second accused in Crl. Appeal No. 234 of 1975 without canvassing the correctness

of the findings of the Court below, would advance his argument only on the question of sentence, stating that the second accused, who has already

resigned his job and who has been under detention for some period during the said investigation, need not be directed to undergo imprisonment at

this length of time, as he is the only bread-winner of the entire family and as he has undergone the ordeal of the trial of this case for more than a

decade.

Mr. T. S. Arunachalam, learned counsel appearing for the first accused in Crl. Appeal No. 635/75 also has not canvassed the correctness of

the findings of the Court below, but would plead that the sentence of imprisonment till rising of the Court imposed by the Court below, for the

reasons indicated in the judgment, is sufficient and that the said sentence need not be enhanced as sought for by the State in Crl. Appeal No. 627

of 1976.

The learned Public Prosecutor, in Crl. Appeal No. 626 of 1976 would contend that the order of acquittal of accused Nos. 3 and 4 under

charge No. l and the acquittal of accused No. 5 under charges 4 and 7 is unsustainable. According to him, the evidence and the circumstances

proved are sufficient for holding that all of them are liable to be punished as charged. He would submit that the finding of the trial Court that

accused No. 5 while acting as A.M.A. is not public servant within the meaning of S. 21,I.P.C., is erroneous. He would submit various decisions to

which I shall refer at the time of discussion of the case, in support of his contention that accused No. 5, even while acting as A.M. A should be

held to be a public servant.

In Crl. Appeal No. 627/76, it is contended by the learned Public Prosecutor that the Court below is not justified in imposing only a sentence of

imprisonment till the rising of the Court on accused Nos. 1 and 5, after having found accused 1 guilty of all the charges leveled"" against him and

accused 5 guilty of the charge of conspiracy, and that the sentence is grossly inadequate and insufficient and is not commensurate with the gravity

of the offence.

Even though accused 1 and 2 have not challenged their convictions, I feel that it is imperative on the part of this Court, while sitting in its

appellate jurisdiction to see whether there is sufficient material for sustaining the conviction recorded by the trial Court. The trial Court has relied

upon the oral testimony of the approver P.W. 6 (Babuswamy), whose evidence is amply corroborated by unimpeachable contemporaneous

documents and impelling circumstances, even though the said witness has attempted to go back on his previous evidence while he was recalled at

the instance of the defence after the lapse of six months. The trial Court, on scrutinizing the evidence of P.W. 7, another approver, has held that ""no

reliance could be placed on his evidence except what he states is otherwise proved and it is only on the evidence of Babu-swami it has to be

decided in this case whether the prosecution case is true."" A reading of paragraph 3, of the judgment of the trial Court would show that the learned

trial Judge has decided not to place reliance on the evidence of P.W. 7 except to the extent of the portion of his evidence proved otherwise only

for the simple reason that there are some variations in the evidence given by him in Court and his statements given under S. 164 and 161, Crl. P.C.

After going through the evidence of all the witnesses and the intrinsic value of the documents exhibited on the side of the prosecution, I have no

compunction in upholding the finding of the Court below that the prosecution has established all the charges against accused 1 and the first charge

against accused No. 5 (As regards the findings of the Court below on charges 4 and 7.1 shall deal with the same separately at the time when I take

up the State Appeal l976 Cri. App. 626 of .

Now, I shall pass on to the State Appeal C.A. No. 626 of 1976. The trial Judge has acquitted accused Nos. 3 and 4 for the reasons assigned

by him in paragraph 55 of his judgment, the main reason being that there is nothing strange in the conduct of accused Nos. 3 and 4 in helping

accused 2 in the conduct of his business as there is nothing on record to show that these accused persons have got knowledge that they were

doing the acts in pursuance of any scheme to defraud the Government. Accused No. 5 has been acquitted of charges 4 and 7 by the trial Judge for

the reasons mentioned in paragraphs 12 to 15, of his judgment, holding that accused 5 cannot be held to be a public servant within the meaning of

S. 21 of the Indian Penal Code and hence he would not be liable to be punished under S. 5 (2) read with S. 5 (1) (d) of the Act. It was only on

the above finding that he has acquitted accused- 5 under charges 4 and 7. No doubt, as pointed out by the learned Public Prosecutor, there are

certain materials available on record showing the involvement of accused NoS. 3 and 4 in the conspiracy along with accused Nos. l, 2 and 5, such

as the preparation of the bills, the ''A'' Certificates, etc.

The learned Public Prosecutor and the defence counsel have cited large number of authorities laying down the scope and the authorities of the

High Court in interfering with the order of acquittal by the trial Court. I feel that it is suffice to refer to some of the decisions of the Supreme Court

laying down cardinal rules in respect of appeals preferred against the order of acquittal. In Rajendra Prasad Vs. State of Bihar, , it has been held as

follows:

When a trial Court, with full view of the witnesses, acquits an accused after disbelieving direct testimony it will be essential for the High Court in an

appeal against acquittal to clearly indicate firm and weighty grounds from the record for discarding the reasons of the trial Court in order to be able

to reach a contrary conclusion of guilt of the accused. The High Court should be able to point out in its judgment that the trial Court''s reasons are

palpably and unerringly shaky and its own reasons are demonstrably cogent. As a salutary rule of appreciation of evidence in an appeal against

acquittal it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is

absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial Court to reject their testimony.

In Jimmy Homi Bharucha v. State of Maharashtra AIR 1977 S.C. 1213, it has been pointed out that:

if two views of the evidence are possible and the trial Court has taken a view favorable to the accused and acquitted him, the appellate Court

should not disturb the acquittal merely because it is inclined to take another view, if the view taken by the trial Court is not unreasonable and

perverse.

In this connection I would like to refer to a decision in Ravinder Singh Vs. State of Haryana, . In that case the Supreme Court observed that while

the prima facie appreciation of the recorded evidence is opposed to even to a reasonable appraisement of the same, bearing in mind the relevant

point or points which are to be established by the evidence, there will be no option to the High Court in the interests of justice to step in and

interfere with the acquittal to do justice in the case. In yet another decision, namely, K. Gopal Reddy Vs. State of Andhra Pradesh, it has been

pointed out that where the trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and tales a

view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, least the

administration of justice be brought to ridicule"". (See also the decisions in Patel Jethabhai Chatur Vs. State of Gujarat, and Gulam Mahmood A.

Malek Vs. State of Gujarat, .

The Supreme Court in Ganesh Bhavan Patel and Another Vs. State of Maharashtra, observed as follows:

Where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from

interfering with the order of acquittal recorded by the Court below. In other words, if the main grounds on which the Court below has based its

order acquitting the accused; are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should

not disturb the acquittal.

In a recent decision in Ajit Singh v. State of Gujarat, the Supreme Court after having referred to the principle laid down in Ajit Singh Thakur Singh

and Another Vs. State of Gujarat, and the decision in Warren Duncan Smith v. The King AIR 1934 P.O. 227, wherein the Privy Council declared

that the High Court must give proper weight and consideration to ""such matters as (1) the view of the trial Judge as to the credibility of the

witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted

at his trial; (3) the right Of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived

at by a Judge who had the advantage of seeing the witnesses,"" has held that the High Court is not entitled to set aside the order of acquittal giving

importance to one aspect of evidence and failing to consider integrity of evidence.

Now bearing in mind the principles laid down by the Supreme Court in the above-said decisions, let me discuss the evidence available on

record both oral and documentary and scrutinise the same to find out whether the reasons given by the trial Court are palpably and unerringly

shaky and the view taken by it is unreasonable and perverse warranting an interference by this Court in the order Of acquittal in the interests of

justice.

On a careful scrutiny of the entire evidence, both oral and documentary, I hold that the reasons assigned by the learned Special Judge for his

conclusion cannot be said to be unerringly shaky and perverse so as to compel me to take a contrary conclusion holding accused 3 and 4 guilty of

all the charges. As pointed out in Ganesh Bhavan Patel and Another Vs. State of Maharashtra, , the appellate Court, while dealing with an appeal

preferred against an order of acquittal, should, as a matter of judicial caution, refrain from interfering with the order of acquittal, when two

reasonable conclusions could be drawn on the evidence on record and when the grounds on which the acquittal is based are reasonable and

plausible. Hence, the order of acquittal of accused 3 and 4 cannot in my view, be interfered with, that too, at this stage.

So far as accused No. 5 is concerned, his acquittal or conviction would depend upon the decision to be rendered by this Court as to whether

he could be held to be a public servant within the meaning of S. 21,I.P.C., or not.

The learned Public Prosecutor, in support of his contention that a Medical Officer, even while acting as an Authorised; Medical Attendant,

should beheld to be a public servant, has cited a plethora of decisions.

In challenging the order of acquittal of the Medical Officer (accused No. 5) of the charge under S. 5 (2) read with S. 5 (1) (d) of the Act, the

learned Public Prosecutor would strenuously contend that inasmuch as the Medical Officer had issued the essentiality certificates! CA'' certificate)

without giving any treatment to the claimant (a Government servant) and had also countersigned the cash bills knowing them to be false so as to

facilitate the claimant to make false claims for reimbursement of the amount from the Government of India, accused 5 should be held liable to be

punished under S. 5 (2) read with S. 5 (1) (d) of the Act since accused 5 has committed the offence of criminal misconduct by corrupt or illegal

means or by otherwise abusing his position as a public servant and has obtained for himself a pecuniary advantage. According to him, the Medical

Officer who has issued the essentiality certificate and countersigned the cash bills has been appointed under the Central Services (Medical

Attendance) Rules, 1944, as an Authorised Medical Attendant to perform certain public duty and has been paid for such services and therefore,

he would fall within the definition of a ''public servant'' as contemplated under CI. 12 (a) of S. 21 of the I.P.C., in that the Medical Officer, while

acting as A.M.A. is remunerated by fee or commission for the performance of a public duty. In support of his contention, he would draw the

attention of this Court to two decisions, viz., (1) Dhaneshwar Narain Saxena Vs. The Delhi Administration, and (2) S.D. Marathe Vs. Pandurang

Narayan Joshi, . Then the learned Public Prosecutor would, on two grounds, attempt to distinguish the decision in State of Gujarat v.

Prabhashankar Dwivedi, on which the learned Special Judge seems to have placed much reliance for his conclusion that ""the accused doctor,

though a public servant, cannot be held to have abused his position as public servant, but only as private practitioner by issue of false certificates

without treatment"". The two grounds raised by the learned Public Prosecutor in this regard are:-(a) As the offence in The State of Gujarat Vs.

Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar, was committed before the present CI. 12ofS. 2l was amended by

Act 40 of 1964, C1.9, as it stood then, alone came up for interpretation in that case, and (b) as the present CI. 12 is wider in scope, including

persons who are remunerated by way of fee or commission for the performance of any public duty, the A.M.As. also would fall within the present

definition of CI. 12 of S. 21 of the Indian Penal Code.

Before adverting to the arguments advanced by the learned Public Prosecutor, it would be relevant to notice C1.9 of S. 21, as it stood before

the said section was amended by Act 40 of 1964, and the present CI. 12 of S. 21, I.P.C. A provision corresponding to the present sub clause (a)

of CI. 12 of S. 21 was contained in the latter part of CI.9 of S. 21 before the amendment. For a ready reference and easy understanding of the

section as it stands now, I would like to give below a Comparative table of these two clauses:

CI.9 of S. 21, asCI.12 (a) of S.

it stood before 21 after the

the 1964 1964-

Amendment. Amendment

the service or payEvery person (a)

of the in the service of

Government or the Government

remunerated by or remunerated

fees or by fees or

commission for commission for

the performance the performance

of any public of any public

duty. fduty by the

Government.

(The underlining is mine).

Thus, it is seen from the above Table that after 1964 Amendment to CI. 12 it is only a person in the service or pay of the Government or

remunerated by fees or commission for the performance of any public duty by the Government, who would fall within the definition of public

servant'', occurring in Sub-cl. (a) of CI 12. The position was different under the latter part of C1.9, which portion I have extracted above, as the

words ''by the Government'' did not follow the words ''performance of any public duty'' although at every other appropriate place and even in the

present C1.9, after the deletion of the last part thereof consequent upon the 1964 amendment, the word ''Government'' is to be found. The present

change made by the 1964 amendment makes it clear that it is not necessary that a person should be an officer in order to be a public servant under

CI. 12. In that sense, the scope of CI. 12 has become wider so as to include every person who fulfills the conditions enumerated in this clause.

The Supreme Court in The State of Ajmer (Now Rajasthan) Vs. Shivji Lal, while interpreting the last limb of C1.9 as it stood before the

amendment, followed the decision in G.A. Monterio Vs. The State of Ajmer, wherein it had been held that the true test in order to determine

whether a person is an officer of the Government is to see (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, and that if both the requirements are satisfied, it matters not the least what is the nature of his

office and whether the duties he is performing are of an exalted character or very humble indeed, and has pointed out that an officer in the service

of the Government and paid by the Government must also be entrusted with the performance of a public duty so as to bring him under the

definition of ''public servant''.

Though the above-cited G.A. Monterio Vs. The State of Ajmer, was reconsidered in Dhaneshwar Narain Saxena Vs. The Delhi

Administration, and the principle laid down in the former case was overruled by holding that in order to bring a charge home to an accused person

under S. 5 (1) (d) of the Prevention of Corruption Act, it is not necessary that the public servant in question, while misconducting himself should

have done so in the discharge of his duty the interpretation given to the latter part of clause 9 of the un-amended S. 21, I. P. C. was not differed

from. Therefore, while interpreting the present clause 12(a) of S. 21, the meaning assigned by the Supreme Court thereto in Shivji Lai''s case A1R.

1957S.C. 13 : 1956 S.CR. 602 can be safely relied upon and followed.

I feel that it would be relevant at this juncture to refer to the decision in R.K. Dalmia Vs. Delhi Administration, In that case, a Chartered

Accountant had been directed by'' the order of the Central Government to investigate into the affairs of an insurance company under S. 33 (1) of

the Insurance Act and to report to the Government on the investigation made by'' him and it was held that he could not be said to be a public

servant though he was to get some remunerate-for the work entrusted to him, because he neither held any office nor was he employed by the

Government.

The Supreme Court had occasion in M. Karunanidhi Vs. Union of India and Another, to go into the definition of the words ''public servant'' as

defined in CI. 12 of S. 21 of the I. P. C. While meeting the argument advanced on behalf of the appellant therein, that the words ''in the service or

pay of the Government'' clearly connate the relationship of master and servant- a-relationship which is completely beyond the concept of the

position of a Minister or a Chief Minister, the Supreme Court observed thus :

We, however, agree that so far as the first part of CL 12 (a) is concerned, viz., ""in the service of the Government,"" undoubtedly signifies a

relationship"" master and servant, whether the employer employs the employee on the basis of a salary or remuneration. But, we are of opinion that

so far as the second limb ""in the pay of the Government is concerned, that appears to be of a much wider amplitude so as to include within its

ambit even public servants who may not be a regular employee receiving salary from his master.

Then, after referring to various dictionaries for meaning of the words ""in the pay of"" the Supreme Court held that a careful analysis of the meaning

assigned to the word ''pay'' in the various dictionaries and the texts referred to, would clearly reveal that the expression ''in the pay'' connotes a

person getting salary, compensation, wages or any amount of money and that this by itself does not lead to the inference that a relationship of

master and servant must necessarily exist in all cases where a person is paid salary. Ultimately, the Supreme Court ruled that the holder of a public

office such as the Chief Minister is a, public servant in respect of whom the Constitution provides for a salary from the Government Treasury so

long as he holds his office on account of the public service that he discharges. The essence of this decision is that when a person is in the service of

the Government having the relationship of master and servant, or in the pay of the Government, discharging a public duty, he will fall within the

definition of the first part of Sub-cl. (a) of CI. 12 of S. 21,1. P. C.

When the first part of the present CI. 12(a) is read in the light of the above position of law, it would be clear that every person would fall within

the definition contained in the first part of the sub-clause, if (1) he is (a) in the service of the Government, or (b) pay of the Government, and (2) he

is entrusted with the performance of any public duty. M these requirements are satisfied, then he would fall within any one of the two limbs of the

first part of Sub-cl. (a) of CI. 12.

The second part of Sub-cl. (a), which forms the third limb to bring a person within the ambit of CI. 12, is that a person should be remunerated

by fee or commission for the performance of any Public duty by the Government. The payment of salary is not an essential hall-mark of a public

servant under this requirement. What it requires is that (1) the person must be remunerated by a fee or commission, (2) he must be remunerated for

the performance of a public duty, and (3) he must be remunerated by the Government. Therefore, in order to bring a person within the ambit of the

latter part of CI. 12 (a), the above three necessary conditions should be fully satisfied.

The authoritative judicial pronouncements on the last part of C1.9, viz., ""every officer in the service or pay of the Government or remunerated

by fees or commission for the performance of any public duty"", were to the effect that unless a person had himself authority to act on behalf of the

Government, he would not be an officer falling within the definition of the above part. Therefore, the Parliament, in its wisdom, thought of

substituting the expression ""every person"" in the place of the expression ""every officer"", so as to widen the scope of the definition, while

incorporating the above clause in the present CI. 12 (a). But, the Parliament has carefully added the words ""by the Government"" after the words

performance of any public duty"" occurring in the above CI. 12 (a). If the expression ""by the Government"" had not been added, the abovesaid last

part of CI. 12 (a) would read as if every person remunerated by fee or commission for the performance of any public duty would come within the

definition. This would lead to the anomalous position, viz., that even persons who are remunerated by any person or entity other than the

Government, also would fall within the definition of ''public servant''. If such an interpretation is given, then every person who does some kind of

public duty and who is remunerated therefore (not necessarily by the Government) would fall within the definition. This position would be quite

against the general understanding of the term ""public servant"". That is why the Parliament has carefully and cautionally added the words ""by the

Government"" so that only persons who are remunerated by the Government for the performance of a public duty rendered by them would come

within this definition. Thus, the most important ingredient in the third limb of CI. 12(a) is the expression ""remunerated by the Government.

Now, I shall examine the first contention of the learned Public Prosecutor and see whether the accused medical officer could be held to be a

public servant while he was acting as an A.M.A. For this, first of all I shall refer to the decisions cited by him and see how far the said decisions

would lend support to the above contention.

In Dhaneshwar Narain Saxena Vs. The Delhi Administration, , on the principles of which the learned Public Prosecutor has placed so much of

reliance, Saxena, who was an Upper Division Clerk, was approached by one Ramnarayan, a fireman serving in the Delhi Fire Brigade, for

assistance in obtaining a license for a double barreled shot-gun which was in fact obtained. Saxena was paid certain amount and a promise was

made to pay him more. Ramnarayan had made a false declaration with regard to his salary in the application for the license. His allegation was that

he had done so on the advice of Saxena. As Ramnarayan''s license had been cancelled, it was alleged that he again approached Saxena who

demanded certain amount for helping him in the matter of restoration of license. Ultimately, a trap was laid and Saxena was caught while the money

was being handed over to him. The main argument in that case centered on the question whether Saxena had committed any misconduct in the

discharge of his duties. The Supreme Court, overruling the principles on this point laid down by it in an earlier decision, viz., The State of Ajmer

(Now Rajasthan) Vs. Shivji Lal, . held that it was not necessary to constitute an offence under S. 5 (1) (d) of the Prevention of Corruption Act,

that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It was

further observed :

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 miscomputing himself in the discharge of his

own duty, he has not committed an offence under S5(l)(d). It is also erroneous to hold that the essence of an offence under S. 5 (2) read with S.

5(l)(d) is that a public servant should do something in the discharge of his own duty and there by obtain valuable thing or pecuniary advantage.

The learned Public Prosecutor, on the basis of the above decision, would contend that inasmuch as the Medical Officer in the present case, who

was admittedly in the service of the State Government, had been appointed as an A.M.A. under the Central Services (Medical Attendance) Rules

to perform a public duty, he should be held to be a public servant and as he has obtained a pecuniary advantage by way of fees or commission

from the Government through the claimant for the public duty performed by him in respect of a Government servant belonging to Central Services'',

abusing his official position, he should be held to have committed an offence punishable under S. 5 (2) read with S. 5 (1) (d) of the Act.

The learned Public Prosecutor next relied on the principles laid down by a Division Bench of the Bombay High Court in S.D. Marathe Vs.

Pandurang Narayan Joshi, wherein it had been held that a Crown servant, within the meaning of S. 270 of the Government of India Act,1935,

whose services were lent to the local bodies could quite properly be said to be employed in connection with the affairs of the Province as opposed

to the affairs of the Central Government, and wherein the court had repelled the contention that the Medical Officer in charge of a dispensary in

that case was not a servant of the crown. The contention of the accused officer therein was that his duty was not to give a certificate to the police.

The Bench, rejecting that contention, held that the Medical Officer having been employed in the affairs, of the province as a civil servant, was

obviously bound to obey the rules made for the guidance of such officer and it was his duty to obey them. On the basis of the above decision, it

was submitted that the A.M.A. in the present case; who was in the service of the State Government, was obliged to obey the Central Services

(Medical Attendance) Rules, and any non-compliance or violation of the rules would certainly make them liable to be punished under S. 5 (2) read

with S. 5 (1) (d) of the Act.

The decision in Dhaneshwar Narain Saxena Vs. The Delhi Administration, was considered by the Supreme Court in Dwivedi case (1973)

M.L.J. (Cri.) 397 : 1972 Cri L.J. 1246 : AIR 1973 S.C. 339. After referring to the principles laid down in that case, the Supreme Court

distinguished the same by observing as follows: -

No such case was argued or decided in that case whether for the commission of an offence under S.S (1) (d), abuse of position as a public servant

was of the essence or the essential ingredient of the offence. It is noteworthy that the High Court had, on the evidence produced by the

prosecution, come to the conclusion that Saxena, taking advantage of his own position as an employee in the Chief Commissioner''s office and

Ramnarain''s ignorance and anxiety to get the license, had induced him to part with the money on the promise that he would get the license

restored. It appears, therefore that it was in that background that the decision of this Court was given.

The principles laid down in Saxena''s case cannot be availed of by the prosecution in this case, for the reason that the Medical Officer in this case,

while acting as an A.M.A. cannot be held to have committed the criminal misconduct in his capacity as a public servant as the services rendered by

a Medical Officer, in his capacity as an A.M.A. would not fall within the strict interpretation of CI. 12 of S. 21, I.P.C.- for the reasons to be stated

below. The dictum laid down by the Bombay High Court in. Marat he''s case is quite inapplicable to the present case, because in that case the

services of the medical officer, who was in the employ of the Province, were lent to the local bodies and still he was being paid by the Government

although a contribution was recovered from the local body concerned and was under the Control of the Department of Medical Services of the

Province. It was only under those circumstances, the Division Bench held that the word ''duty'' occurring in S. 270 of the Government of India Act

was not necessarily confined to legal duty and that civil servants who were medical officers were obviously bound to obey the rules made for the

guidance of such officers and it was their duty to obey them.

Thus, the two decisions relied upon by the learned Public Prosecutor cannot be of much assistance in interpreting the definition of the words

''public servant'' occurring in C1.12(a) of S. 21, I.P.C.

Admittedly, the appointment of the medical officer concerned in this case as an A.M.A., is not a statutory appointment and he is appointed

only by virtue of the Rules. R. 2 (a) defines the term ""authorised medical attendant"". It is not in dispute that even private registered medical

practitioners are appointed as authorized medical attendants in respect of a class or classes of Central Government employees. It is borne out from

Swamy''s Compilation of the Medical Attendance Utiles, corrected upto 1st January, 1967, marked as Ex. P, that. in cases which are definitely not

prolonged, treatment prescribed may, be taken, at the consulting room of the authorised medical attendant or at the residence of the patient spread

over a period not exceeding ten dastn. The medical attendance at the conditions room of the A.M.A. should be restricted to four consultations

irrespective of the fact whether consultation fee is charged for or not tot any such consultation. The reimbursement of consultation fees at the

prescribed rates should be restricted to the first four heads/visits, at the rate of one consultation/ visit a day, a repeat prescription being treated as

consultation irrespective of the fact whether consultation fees are charged or not for such a prescription. Cost of admissible medicines prescribed

during this consultation only is reimbursable. At the time of claiming refund of expenses incurred on this account, the Government servant

concerned should produce a certificate from the authorised medical attendant when such examinations are considered necessary by him.

In the present case, the medical officer was in the employ of the State Government. Orders are issued under the abovesaid Rules from time to

time laying down the terms and conditions under which a medical officer is appointed for a specified period, one of the conditions being that the

medical officer could charge consultation and injection fees at the rates specified in Annexure I to the Rules. In the ''A'' Certificate, the medical

officer, in respect of the servants who were not admitted in the hospital for treatment and who have been treated by him, has to certify that he

charged and received certain amount for consultation either at his consulting room or at the residence of the patient, and that he has charged and

received so much of amount as specified for administering the injections and that he prescribed the medicines in this connection which were

essential for the recovery or pretension of serious deterioration in the condition of the patient. Further, he has also to countersign the cash bills so

as to enable the Government servant, the claimant, to get the expenses made by him reimbursed. R. 3 (2) states that where a Government servant

is entitled under sub-R.(l) to receive free of charge medical attendance, any amount paid by him on account of such attendance shall, on production

of a certificate in writing by the authorized medical attendant in this behalf, be reimbursed to him by the Central Government. This Mikes it clear

that what the claimant had paid to the A.M.A., is reimbursed by the Government to the claimant to the extent permitted under the Rules. Under

these Rules, an A.M.A, may attend on a Government servant without receiving any fee. In that case, the claimant could not get any reimbursement.

Similarly, the claimant also may or may not claim reimbursement from the Government because it is left open to his discretion. When it is only a

privilege extended to the Government employee, who alone is reimbursed by the Government towards the expenses that he had (sic) incurred in

getting the treatment under an A.M.A. it cannot be said that the A.M.A. is remunerated by fees for commission for the performance of his public

duty by the Government. When the latter part of CI. 12 (a), in plain and unambiguous terms, states that the remuneration is to be paid either as fee

or as commission for the performance of any public duty by the Government, can it be said that an A.M.A. who charges and receives the amount

for the service rendered by him, is remunerated by the Government? My answer would be that it cannot be said that he is remunerated by the

Government.

For the above stated reasons, I hold that none of the ingredients mentioned in any one of the limbs of CI. 12 (a) of S. 21,viz.,(l)the relationship

of master and servant between the Government and the person concerned so as to bring him within the service of the Government, (2) the person

being in the pay of the Government, and (3) the person being remunerated by fee or commission, for the performance of the public duty, by the

Government are satisfied in the case of an A.M.A. and therefore, accused 5 herein cannot be held to be a public servant within the definition of

that term under CI. 12 (a) of S. 21, I.P.C. If an A.M.A. in the discharge of his duty, creates false documents and plays fraudulent deception, and

thereby abets or aids the Government servant to make false claim for reimbursement, he would be making himself liable to be punished for the

commission of such specific offences under the I.P.C, like any other ordinary offender; but, he would not make himself liable to be punished under

the provisions of the Special Act, viz., the Prevention of Corruption Act, while he acts in his capacity as an A.M.A., because he cannot be

considered to be a public servant as defined in Cl. 12(a) of S. 21, I.P.C

Now, I shall pass on to the last contention raised by the learned Public Prosecutor, viz., that the principles laid down in Dwivedi''s case cannot

be made applicable to the facts of the present case in view of the changes made to Cls. 9 and 12 by Act 40 of 1964.

In The State of Gujarat Vs. Manshankar Prabhashankar Dwivedi and Vallabhdas Gordhandas Thakkar, , the respondent Dwivedi was at the

material time a senior lecturer in a Government College. He was, appointed as a University Examiner under the Gujarat University Act of 1949.

While he was acting as an Examiner, he was alleged to have accepted a gratification of Rs. 500 other than legal remuneration for showing some

favour to a candidate by giving him more marks than he deserved in the examination. Dwivedi was charged with the commission of the offence

under S. 161,I.P.C. and S. 5 (2) read with S. 5 (1) (d) of the Prevention of Corruption Act. The trial Judge found him guilty. The High Court, on

an appeal preferred by the convicted person, though found that the prosecution had proved the case against Dwivedi and another on the merits

acquitted him for the reasons mentioned in the judgment for holding that the last part of CI. 9, as it stood before the 1964 amendment, would not

cover the case of Dwivedi. Aggrieved by the judgment of the High Court, the State preferred an Appeal. It was only under these circumstances,

the Supreme Court examined the ambit and scope of the latter part of CI. 9, as it stood before the amendment and incidentally discussed the

scope of the amended CI. 12 of S. 21, I.P.C. Ultimately, the Supreme Court, after discussing the scope of the relevant clauses, relying on a

decision in R.K. Dalmia Vs. Delhi Administration, held as follows:-

On that view it is not possible to put the case of a University examiner in a different category. A University examiner cannot be considered to hold

an office in the sense in which that word has been understood and employed in the 9th|clause. It is clear from the provisions of the Gujarat

University Act, 1949, that there is no such condition that only that person can be appointed as examiner who is the Bolder of an office.

and ultimately concluded:-

As Dwivedi was not a public servant when he was acting as an examiner, it could not be said that the had been an abuse by him of his position as a

public. servant, that it was only the case of the prosecution that he had been guilty of any abuse of his position as a lecturer of the Government

College.

The effect of the amendment of ClS. 9 and 12 that under CI. 12 (a), it is not necessary that a person, in order to come within the definition of CI.

12 (a), should be an officer. None-the less he must be shown either to be in the service of the Government or in the pay of Government or to be

remunerated by fee or commission, for the performance of any public duty, by the Government. To that extent, CI. 12 (a) is wider so as to include

with in the definition, even persons who are not officers; but the condition is that that person, to come under the third limb, should be remunerated

by way of fee of commission, for the. performance of a public duty, by the Government, which has become necessary by the amended section.

Therefore, when it is shown that the accused, while acting as an A.M.A. was not in any way remunerated by the Government he would not fall

within the definition contained in CI. 12 (a). For these reasons, I hold that the present change of law does not really affect the principle laid down in

Dwivedi''s case in applying the same to the case of the accused doctor who is not in any way remunerated by the Government. Of course, the

Special Judge has not couched his conclusion quite correctly when he observed that ""the accused doctor, though a public servant, cannot be said

to have abused his position as public servant but only as private practitioner..."". But, from the discussion he has made in the judgment, to is clear

that what he has meant is that the accused doctor, while acting as an A.M.A. was not a public servant. For the above reasons, the last contention

raised by the learned Public Prosecutor also fails.

For the discussions, made above, I hold that the finding of the court below that accused No. 5 is not liable to be punished under the provisions

of the Prevention of Corruption Act cannot be said to be unsustainable. Accordingly, the order acquitting him of the offence under S. 5 (2) read

with S. 5 (l) (d) of the said Act has to be confirmed.

Now, let me pass on to the Crl. App. No. 627 of 1976. No doubt, the offence question is a very grave one involving a heavy loss to the

Government. It is highly reprehensible on the part of Government officials to abuse the concession extended to them by the Government and obtain

pecuniary advantage by illegal and corrupt means. This Court would not have hesitated to enhance the sentence taking into consideration the

gravity of the offence but for the fact that the offences took place in the year 1967, that is to say, nearly 14 years ago. Though the case was

registered in the year 1968, actually the charge-sheet was filed in 1971 only. The trial of the case was over by 2nd April, 1975. Thus, the accused

have undergone the ordeal of trial for a considerable length of time and thereby suffered considerable mental agony. Under these circumstances,

having regard to the predicaments to which these convicted persons have been put for well over a period of seven years till the trial was over and

thereafter for about 15 to 6 years till the hearing of these appeals and the fact that they have undergone so much of sufferings and agony for this

period of 13 years, I am not inclined to allow this appeal and enhance the sentences imposed by the trial Court on these accused.

In the result Crl. App. No. 635/75 preferred by accused-1 and Crl. App. No. 627 of 1976 preferred by the State for enhanced sentence are

dismissed. As regards Appeal No. 234 of 1975 preferred by accused-2, while confirming the conviction, the sentence imposed on accused-2, for

the reasons mentioned supra, is reduced to the period already undergone. But for this modification in sentence this appeal is also dismissed. Crl.

App. No. 626 of 1976 filed by the State is dismissed.