Shiv Raj Singh Vs. Delhi
Administration  INSC 137 (1 May 1968)
01/05/1968 RAMASWAMI, V.
CITATION: 1968 AIR 1419 1969 SCR (1) 183
R 1976 SC1497 (22)
Prevention of Corruption Act (2 of 1947), ss.
5(1) and 6 and Indian Penal Code (Act 45 of 1860), s. 161-Sanction to
prosecute-Sufficiency-Scope of s. 161 I.P.C. and s. 5(1) of the Prevention of
An unmarried woman gave birth to a child and
on her request, her uncle and aunt made arrangements for the child being
brought up by some one who wanted to adopt a child. The appellant, who was a
police officer, accused the uncle and aunt of having disposed of an
illegitimate child and demanded a bribe. The anti-corruption department was
thereupon informed, a trap laid and currency notes which were given as bribe
were recovered from the appellant. He was prosecuted and convicted for offences
under s. 5(2) of the Prevention of Corruption Act and s. 161, I.P.C. The High
Court confirmed the conviction and sentenced him to 2 years R.I.
In appeal to this Court,
HELD : (1) The order of sanction showed on
the face of it what were the facts constituting the offence, that 'a prima
facie case was made out, and that the sanctioning authority had fully and
carefully examined the material Therefore,, the order of sanction fulfilled the
requirements of s. 6 of the Prevention of Corruption Act. [186 B, D] Gokukhand
v. The King, A.I.R. 1948 P.C. 82, distinguished.
(2) (a) When a public servant is charged
under s. 161 I.P.C.
and it is alleged that illegal gratification
was taken by him for doing or procuring an official act, it is not necessary
for the court to consider whether or not the accused public servant was capable
of doing or intended to do such an act. [186 F-G] Mahesh Prasad v. The State of
U.P.  1 S.C.R. 965, followed.
Therefore, though the concealment of the
birth of an illegitimate child is not an offence and the appellant could not
have prosecuted -any one, it could not be said that the obtaining of money by
the appellant for refraining from an imaginary prosecution was not an offence
under 161 I.P.C.
[186 E-F] (b) In any event, the appellant was
guilty of an offence under s. 5(1)(d) of the Prevention of Corruption Act, in
that he grossly abused his position within the meaning of the section and
thereby obtained for himself pecuniary advantage and so, the sentence imposed
on him was not excessive [187 D, E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.124 of 1966.
Appeal by special leave from the judgment and
order dated February 17, 1966 of the Punjab High Court (Circuit Bench) Delhi in
Criminal Appeal No. 63-D of 1964.
184 M. C. Chagla E. C. Agarwala, Santosh
Agarwala and P. C. Agarwala, for the appellant.
D. Narsaraju and R. N. Sachthey, for the
respondents.The Judgment of the Court was delivered by Ramaswami, J. This
appeal is brought, by special leave, from the judgment of the Punjab High Court
dated February 17, 1966 in Criminal Appeal No. 63-D of 1964 affirming the
conviction of the appellant under S. 5(2) of the Prevention of Corruption Act
(Act 11 of 1947) and S. 161 of the Indian Penal Code.
The case of the prosecution is that Miss
Eylene (P.W. 2) used to live in 1962 with her father at Fazilka. She developed
illicit connection with someone and became pregnant. In April 1963. she went to
Ambala to her maternal aunt, who is employed as a sister in the Ambala Air
Force Hospital, and give birth to a son there in July 1963. In August 1963 Miss
Eylene along with her newly born son came to the house of her uncle Russel
Nathaniel in Andrews Ganj, Delhi. Since Miss Eylene was unmarried and could not
keep the son with her, she asked Russel Nathaniel and his wife to make
arrangement for the bringing up of the child. Russel Nathaniel knew Roshan Lal
who had no child of his own and wanted to adopt a child. Accordingly, on August
25, 1963 the child was handed over to Roshan Lal. After the child was handed
over to Roshan Lal, Miss Eylene went to the house of her sister's husband, N.
K. Lal, P.W. 11 and stayed there with her sister. It is alleged that on August
29, 1963 at about 9.30 or 10 P.m. the appellant went to the house of Russel
Nathaniel in police uniform and accused Russel Nathaniel and his wife of
disposing of the illegitimate child. The appellant further warned Mr. &
Mrs. Nathaniel that if they wanted to save themselves they should make some
settlement with him and demanded a bribe of Rs. 1,000/-.
But Mr. Nathaniel paid him Rs. 90/and agreed
to pay later on a sum of Rs. 700/-. The appellant thereafter compelled Russel
Nathaniel and his wife to execute a document in writing that they would pay him
Rs. 700/or agree to go to prison. It is said that the appellant asked Russel
Nathaniel to bring to him Roshan Lal and when Roshan Lal was called, 'the
appellant asked him to pay something to him.
Roshan Lal ex. pressed his inability to pay
anything whereupon the appellant removed a golden ring from his finger. On the
same night the appellant contacted the girl, Miss Eylene and wished to record
her statement. Russel Nathaniel and his wife expressed their reluctance to send
Miss Eylene with the appellant to the police station and therefore the
appellant interrogated the girl at the residence of N. K. Lal, her brother-in-law.
The appellant made her sign a paper and took the same with him. On September 4,
185 1963 Russel Nathaniel and N. K. Lal decided to refer the matter to the
anti-corruption department. Accordingly, Russel Nathaniel went to D.S.P.
Mukatdhari Singh who recorded his statement and called two witnesses to witness
the proceedings. Russel Nathaniel produced seven currency notes of the
denomination of Rs. 100/each. The numbers of those currency notes were noted
and Russel Nathaniel was then instructed to pass on the money to the appellant.
Russel Nathaniel contacted the appellant and
asked him to come to the house of N. K. Lal. They arrived at the house of N. K.
Lal at about 7.30 or 7.45 P.m. The appellant sent for the girl because he
wanted to reprimand her and thereafter he asked for the payment of the agreed
amount. Russel Nathaniel handed over the currency notes to the appellant who
put them in the left side pocket of his trousers.
Russel Nathaniel then gave a signai and
Mukatdhari Singh turned up and recovered the
currency notes from the pocket of the appellant. On being questioned the
appellant told the D.S.P. that he never asked for bribe and that the money was
paid to him in repayment of the loan by him to Russel Nathaniel. The appellant
produced in the witness box Dharam Vir, F. C. Ram Saran, H. C. Jai Parkash and
A. S. Kapur. After conclusion of the trial the Special Judge, Delhi accepted
the prosecution case as correct and convicted the appellant of the charged
framed against him and sentenced him to undergo rigorous imprisonment for two
years and to pay a fine of Rs. 5001or in default to undergo rigorous
imprisonment for a further period of six months under S. 5(2) of the Prevention
of Corruption Act, and to two years rigorous imprisonment under s. 161, Indian
Penal Code and ordered the substantive sentences to run concurrently. The
appellant took the matter in appeal to the Punjab High Court. The High Court
maintained the conviction of the appellant under s. 5(2) of the Prevention of
Corruption Act and s. 161, Indian Penal. Code and also the sentence to undergo
rigorous imprisonment for a period of two years awarded to the appellant on
each count. The High Court. however, set aside the order with regard to the
payment of fine or imprisonment in default.
In support of this appeal Mr. Chagla
submitted in the first place that the order of sanction was bad in law as all
the relevant papers and materials were not placed before the D.I.G. Police, Mr.
M. P. Singh who, was the sanctioning authority. Reference was made in this
connection to the decision of the Judicial Committee in Gokulchand v. The
King(1) in which it was held that a sanction which simply names the person to
be prosecuted and specifies the provision of the Order which he is alleged to
have contravened is not a sufficient compliance with cl. 23. Mr. Chagla (1)
A.I.R. 1948 P.C. 82.
10 Sup.C.I-68-13 186 also referred to the
evidence of P.W. 9, Sub-Inspector, Ascharaj Lal who said that "all the
papers relating to the case were sent to the D.I.G." When cross-examined,
hecould not say which were the documents which were sent to the D.I.G. because
they were in a sealed cover. In our opinion, there is no substance in the
argument put forward by Mr.
Chagla on behalf of the appellant. The Order
of sanction dated December 10, 1963 shows on the face of it what were the facts
constituting the offence charged and that a prima facie case was made out
against the appellant. The Order also further recites that Mr. M. P. Singh,
D.I.G., "after fully and carefully" examining the material before him
in regard to the "aforesaid allegations" in the case, considers that
a prima facie case is made against the appellant. It is manifest that the
decision of the Judicial Committee has no application to the present case, for
the order of sanction in that case was much more cryptic and materially
different. We are satisfied that the order of sanction in the present case
fulfils the requirements of S. 6 of the Prevention of Corruption Act. We
accordingly reject the argument of Mr. Chagla on this aspect of the case.
It was then contended that the concealment of
the birth of an illegitimate child was not an offence under the Indian Penal
Code or any other criminal statute and if the appellant had obtained money from
Russel Nathaniel, it cannot be said that the appellant had obtained a
gratification for doing or forbearing -to do any official act, or for showing
or forbearing to show, in the exercise of his official functions, favour or
disfavour to any person. In other words, the argument was that the appellant
could not prosecute either Miss Eylene or Russel Nathaniel or anybody else for
any offence and obtaining of money by the appellant for refraining from any
such imaginary prosecution cannot be said to be an offence under S. 161, Indian
Penal Code or S. 5(1)(d) of the Prevention of Corruption Act. We are unable to
accept this argument as correct. When a public servant is charged under s. 161,
Indian Penal Code and it is alleged that the illegal gratification was taken by
him for doing or procuring an official act, it is not necessary for the Court
to consider whether or not the accused public servant was capable of doing or
intended to do such an act: see the decision of this Court in Mahesh Prasad v.
The State of Uttar Pradesh(1). In the second place, the charge against the
appellant is also under s. 5(1)(d) of the Prevention of Corruption Act which
states "5.(1) A public servant is said to commit the offence of criminal
misconduct(1)  1 S.C.R.965.
187 (d) if he, by corrupt or illegal means or
by otherwise abusing his position as public servant, obtains for himself or for
any other person any valuable thing or pecuniary advantage or," Section
5(2) states :
"(2) Any public servant who commits
criminal misconduct shall be punishable with imprisonment for a term which
shall not be less than one year but which may extend to seven years and shall
also be liable to, fine X X :
Provided that the court may, for any special
reasons recorded in writing, impose a sentence of imprisonment of less than one
year." Upon the facts which have been found by the High Court to be proved
there can be no doubt that the appellant was guilty of grossly abusing his
position as public servant within the meaning of s. 5(1)(d) of the Prevention
of Corruption Act and thereby obtained for himself a valuable thing or
pecuniary advantage, and the charge under that section is established. We are
therefore of the opinion that Mr. Chagla is unable to make good his argument on
this aspect of the case also.
Lastly, Mr. Chagla submitted that the
sentence of imprisonment was excessive. We are unable to accept this
contention. Upon the finding of the High Court in this case it is manifest that
the appellant grossly abused his position as a police officer and extorted
money from Russel Nathaniel and his wife and also a gold ring from Roshan Lal.
The appellant in his official capacity as a
police officer was expected to maintain a high standard of integrity and to
uphold the maintenance of law. Instead them proved facts disclose that there
was a gross abuse of his official position on the part or the appellant and in
the circumstances of the case we are satisfied that the sentence imposed is not
For the reasons expressed we affirm the
judgment of the High Court of Punjab dated February 17, 1966 in Criminal Appeal
No. 63-D of 1964 and dismiss this appeal.