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 & 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 therefor. 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 under Section 5(2) read with Section 5(1)(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 Section 377 of the Criminal P.C., 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 not commensurate with the gravity of the offence


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


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


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


(3) under Section 5(2) read with Section 5(1)(d) of the Act simpliciter


3. 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. Babuswami, son of Balakrishna Pillai (P.W. 6) and R. Subramania Iyer, son of Ramkrishna Iyer (P.W. 7) and some other unknown persons, between 17-7-1967 and 14-11-1967 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 furnish false essentiality certificates in form 'A' to accused No. 1 by corrupt or illegal means or otherwise abusing his official position as the public servant in the capacity of Assistant surgeon, Government Erskine Hospital, Madurai, and that accused Nos. 2 to 4 prepared or furnished to accused No. 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 Nos. 1 to 5 performed the said acts and committed an offence of criminal conspiracy punishable under Section 120-B read with Section 420, I.P.C. and Section 5(2) read with Section 5(1)(d) of the Act


4. Apart from the first charge, charge Nos. 2 & 5 are 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 Exhibits P. 4 and P. 8, claiming amounts as noted in the respective charges, on the false representation that he had incurred the expenditure for an alleged treatment of himself or any one of his dependents and thereby committed an offence punishable under Section 420, I.P.C. Further, the first accused stood charged under charges Nos. 3 & 6 on the allegations that he abused his official position as the public servant by corrupt or illegal means or otherwise by submitting false medical reimbursement claims for alleged treatment of himself or of his dependents 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 the accused No. 1 on the abovesaid false claims and thereby the first accused committed offences punishable under Section 5(2) read with Section 5(1)(d) of the Act


5. The next set of charges is against accused No. 5 who stands charged under charge Nos. 4 and 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 17-7-1967 and 14-11-1967 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. P. 5 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. 1 and thereby committed an offence punishable under Section 5(2) read with S. 5(1)(d) of the Act


6. 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 authorised medical attendants at Madurai. It transpires from the evidence of P.W. 22 (Thiru C. M. Raghavan) who was then working as Inspector of Police, C.B.I., Madras, that while he was investigating Regular Case No. 68/67 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 24-11-1967. In pursuance of the abovesaid warrants, various places inclusive of the residence of accused No. 2 (Usman) and his medical shop viz., Gemini Medicals were searched


7. According to the prosecution, accused No. 1 was working as Sorter, S.R.O., Madurai 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 Civil Assistant Surgeon in the Government Hospital, Madurai and was also an ex-officio authorised medical attendant for the Central Government employees in Madurai


8. 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.Ms. towards the cost of medicines, and the consultation and injection fees. During the period, some time 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 fee, which would be paid by accused No. 2 to accused 1 as illegal gratification


9. In pursuance of the said conspiracy, accused 1 preferred claim to the Senior Superintendent, R.M.S.T. division, Tiruchi, under Exs. P. 4 and P. 8 dated 9-9-1967 and 24-8-1967, for a total sum of Rs. 114-22, towards the reimbursement of the medical charges purported to have been incurred by him for his treatment along with the false A certificates Exs. P. 5 and 9, issued by accused No. 5 through accused-2 and also cash bills of Gemini Medicals Exs. P. 6, P. 10 and 11, issued by accused 2, and obtained a sum of Rs. 114-22 against his acquittance. Hence, accused Nos. 1 to 5 are charged under charge 1


10. Of the remaining charges, charges, 2, 3, 5 and 6 are as against accused 1, charges 2 and 5 being for an offence under Section 420 I.P.C. simpliciter charges 3 and 6 being for offences punishable under Section 5(2) read with S. 5(1)(d) of the Act


11. The learned trial Judge, for the discussion made in his judgment, has found accused 3 and 4 not guilty under the first charge, and accused 5 not guilty of the offence under Section 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 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 Nos. 1 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 kingpin 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


12. Coming to the question of sentence to be imposed on accused 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 of 1971, 6, 10, 19 to 41, 45 and 46 of 1972. Hence these appeals by the convicted persons and by the State as mentioned above


13. Mr. G. Gopalaswami, learned counsel appearing for the accused in Crl. Ap. 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 under gone the ordeal of the trial of this case for more than a decade


14. Mr. T. S. Arunachalam, learned counsel appearing for the first accused in Crl. Ap. No. 635 of 1975 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. Ap. No. 627 of 1976


15. The learned Public Prosecutor in Crl. Ap. No. 626 of 1976 would contend that the order of acquittal of accused 3 and 4 under charge No. 1, and the acquittal of accused 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 5 while acting as A.M.A. is not a 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 5, even while acting as A.M.A. should be held to be a public servant


16. In Crl. Ap. No. 627 of 1976 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 1 and 5, after having found accused 1 guilty of all the charges levelled 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


17. 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 (Babuswami) 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 scrutinising 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 Babuswami it has to be decided in this case whether the prosecution case is true." *


A reading of para 30 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 Sections 164 and 161, Cr.P.C


18. 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, I shall deal with the same separately at the time when I take up the State Appeal Cr.A. 626 of 1976)


19. Now, I shall pass on to the State Appeal C.A. No. 626 of 1976


20. The trial Judge has acquitted accused Nos. 3 and 4 for the reasons assigned by him in para 55 of his judgment, the main reasons 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 paras 12 to 15, of his judgment, holding that accused-5 cannot be held to a be public servant within the meaning of S. 21 of the I.P.C. and hence he would not be liable to be punished under Section 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. 1, 2 and 5, such as the preparation of the bills the 'A' Certificates etc


21. The learned Public Prosecutor and the defence counsel have cited large number of authorities laying down the scope and the authority of the High Court in interfering with the order of acquittal by the trial Court. I feel that it is sufficient to refer to some of the decisions of the Supreme Court laying down the cardinal rules in respect of appeals preferred against the order of acquittal. In Rajendra Prasad v. 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 trail 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 it has been pointed out that


"If two views of the evidence are possible and the trial Court has taken a view favourable 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 v. State of Haryana. In that case the Supreme Court observed that while prima facie appreciation of the recorded evidence is opposed to even 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 interest of justice to step in and interfere with the acquittal to do justice in the case. In yet another decision, namely, K. Gopal Reddy v. State of Andhra Pradesh it has been pointed out that where the trial Court allows itself to be beset with fanciful doubts, rejects credit worthy evidence for slender reasons and takes 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, lest the administration of justice be brought to ridicule

". (See also the decisions in Patel Jathabhai Chattur v. State of Gujarat and Gulam Mohamood v. State of Gujarat,


22. The Supreme Court in Ganesh Bhavan Patel v. State of Maharashtra:


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 accussed, 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 Ganesh Bhavan Patel v. State of Maharashtra and the decision in Warren Ducane Smith v. King wherein the Privy Council declared that the High Court must give proper weight and consideration to" *


such matter 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


23. Now bearing in mind the principles laid down by the Supreme Court in the abovesaid 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 interest of justice


24. 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 the accused 3 and 4 guilty of all the charges. As pointed out in Ganesh Bhavan Patel's case 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


25. 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


26. The learned Public Procecutor, in support of his contention that a Medical Officer, even while acting as an Authorized Medical Attendant, should be held to be a public servant, has cited a plethora of decisions


27. In challenging the order of acquittal of the Medical Officer (accused No. 5) of the charge under Section 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 ('A' 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 Section 5(2) read with S. 5(1)(d) of the Act since accused 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 was 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 Clause 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 Narayan Saxena v. Delhi Administration and (2) S. D. Marathe v. Pandurang Narayan Joshi 1938 AIR(Bom) 419) : (1938- 39 CrLJ 903). Then the learned Public Prosecutor would, on two grounds, attempt to distinguish the decision in State of Gujarat v. Prabhashankar Dwivedi (1973 Mad LJ (Cri) 397; 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 Dwivedi's case was committed before the present Clause 12 of Section 21 was amended by Act 40 of 1964, clause 9, as it stood then, alone came up for interpretation in that case, and


(b) as the present clause 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 clause 12 of Section 21 of the I.P.C


28. Before adverting to the arguments advanced by the learned Public Prosecutor, it would be relevant to notice Clause 9 of Section 21, as it stood before the said section was amended by the Act 40 of 1964, and the present clause 12 of Section 21, I.P.C. A provision corresponding to the present sub-clause (a) of Clause 12 of Section 21 was contained in the latter part of clause 9 of Section 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


Clause 9 of Section 21 as it stood Clause 12(a) of Section 21 before the 1964 amendment after the 1964 amendment ---------------------------------- --------------------------------- ..... and every officer in the Every person (a) in the service service or pay of the Government or pay of the Government or or remunerated by fees or remunerated by fees or commission commission for the performance for the performance of any public of any public duty. duty by the Government


Thus, it is seen from the above table that after 1964 amendment to clause 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 fail within the definition of 'public servant', occurring in sub-clause (a) of clause 12. The position was different under the latter part of clause 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 clause 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 clause 12. In that sense, the scope of clause 12 has become wider so as to include every person who fulfils the conditions enumerated in this clause


29. The Supreme Court in State of Ajmer v. Shivji Lal while interpreting the last limb of Clause 9 as it stood before the amendment, followed the decision in G. A. Monterio v. 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 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'


30. Though the above cited Shivji Lal's case was reconsidered in Dhaneshwar Narain Saxena v. 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 Section 5(1)(d) of the Prevention 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 unamended Section 21, I.P.C. was not differed from. Therefore, while interpreting the present clause 12(a) of Section 21, the meaning assigned by the Supreme Court thereto in Shivji Lal's case can be safely relied upon and followed


31. I fell that it would be relevant at this juncture to refer to the decision in Ramakrishna, Dalmia's case 1962 (2) CrLJ 805) (SC). 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 Section 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 remuneration for the work entrusted to him, because he neither held any office nor was he employed by the Government


32. The Supreme Court had an occasion in M. Karunanidhi v. Union of India to go into the definition of the words 'public servant' as defined in clause 12 of Section 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 connote 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 clause 12(a) is concerned, viz., "in the service of the Government", undoubtedly signifies a relationship of 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 a public servant who may not be a regular employee receiving salary from his master.

"Then, after referring to various dictionaries for the 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-clause (a) of clause 12 of Section 21, I.P.C33. When the first part of the present clause 12(a) is read in the light of the above position of law, it would be clear that every person 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 of (b) in the pay of the Government, and (2) he is entrusted with the performance of any public duty. If these requirements are satisfied, then he would fall within any one of the two limbs of the first part of sub-clause (a) of clause 12


34. The second part of sub-clause (a), which forms the third limb to bring a person within the ambit of clause 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. When 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 Clause 12(a), the above three necessary conditions should be fully satisfied


35. The authoritative judicial pronouncements on the last part of Clause 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 Clause 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 Clause 12(a). If the expression "by the Government" had not been added, the abovesaid last part of Clause 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 therefor (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 cautiously 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 Clause 12(a) is the expression "remunerated by the Government."


36. 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


37. In Saxena's case 1962 (1) CrLJ 293) (SC), 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 licence 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 licence. His allegation was that he had done so on the advice of Saxena. As Ramnarayan's licence had been cancelled, it was alleged that he again approached Saxena who demanded certain amount for helping him in the matter of restoration of licence. Ultimately, a trap was laid and Saxena was caught while the money was being handed over to him. The main argument in that case centred 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., State of Ajmer v. Shivji Lal 1959 CrLJ 1127), held that it was not necessary to constitute an offence under Section 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 misconducting himself in the discharge of his own duty, he has not committed an offence under Section 5(1)(d). It is also erroneous to hold that the essence of an offence under Section 5(2) read with Section 5(1)(d) is that a public servant should do something in the discharge of his own duty and thereby 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 Section 5(2) read with Section 5(1)(d) of the Act


38. The learned Public Prosecutor next relied on the principles laid down by a Division Bench of the Bombay High Court in Marathe's Case (1938- 39 CrLJ 903), wherein it had been held that a Crown servant, within the meaning of Section 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 Section 5(2) read with Section 5(1)(d) of the Act


39. The decision in Saxena's case 1962 (1) CrLJ 203 (SC)) was considered by the Supreme Court in Dwivedi's Case 1972 CrLJ 1247). 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 Session 5(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 licence, had induced him to part with the money on the promise that he would get the licence 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 clause 12 of Section 21, I.P.C. for the reasons to be stated below. The dictum laid down by the Bombay High Court in Marathe'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 them40. 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 Clause 12(a) of S. 21, I.P.C


41. 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 practioners 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 Rules corrected up to 1-1-1967, marked as Ex.P.A. that in cases which are definitely not prolonged, treatment prescribed may be taken at the consulting room of the authorised medical attendant or at residence of the patient, spread over a period not exceeding ten days. The medical attendance at the consulting room of the A.M.A. should be restricted to four consultations irrespective of the fact whether consultation fee is charged for or not for 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


42. 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 1 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 prevention 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-rule (1) 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 makes 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 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 incurred in getting the treatment under an A.M.A. it cannot be said that the A.M.A. is remunerated by fees or commission for the performance of his public duty by the Government. When the latter part of Clause 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 Government43. For the above stated reason, I hold that none of the ingredients mentioned in any one of the limbs of Clause 12(a) of S. 21 viz. (1) the relationship of master and servant between the Government and the person concerned so as to bring him in 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 and A.M.A. and therefore accused-herein cannot be held to be a public servant within the definition of that term under Clause 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 Clause 12(a) of S. 21 I.P.C


44. Now, I shall pass on to the last contention raised by the learned public Prosecutor, viz., that the principles land down in Dwivedi's case 1972 CrLJ 1247) (SC) cannot be made applicable to the facts of the present case in view of the changes made to Clauses 9 and 12 by Act 40 of 1964


45. In Dwivedi's case, 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 his more marks than he deserved in the examination. Dwivedi was charged with the commission of the offence under Section 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 Clause 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 Clause 9 as it stood before the amendment and incidentally discussed the scope of the amendment Clause 12 of S. 21 I.P.C. Ultimately, the Supreme Court, after discussing the scope of the relevant clauses, relying on a decision in Ramkrishna Dalmia v. Delhi Administration held as follows (Para 10 of AIR) :- 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 holder 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 there 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 Clauses 9 and 12 is that under Clause 12(a), it is not necessary that a person, in order to come within the definition of Clause 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 the Government of to be remunerated by fee or commission for the performance of any public duty, by the Government. To that extent, Clause 12(a) is wider so as to include within the definition, even persons who are not officers; but the condition is that person, to come under the third limb, should be remunerated by way of fee or 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 Clause 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 Spl. Judge has not couched his conclusion quite correctly when he observed that" * the accused doctor, through 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, it 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 46. 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 Section 5(2) read with S. 5(1)(d) of the said Act has to be confirmed 47. Now, let me pass to the appeal No. 627 of 1976. No doubt, the offence in 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 2-4-1975. 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 5 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 40. In the result Criminal Appeal No. 635/75 preferred by accused 1 and Criminal Appeal 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. Criminal Appeal No. 626 of 1976 filed by the State is dismissed.