Ram Krishan & ANR Vs. The State of
Delhi [1956] INSC 16 (9 March 1956)
CHANDRASEKHARA AIYAR, N. CHANDRASEKHARA BOSE,
VIVIAN SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION: 1956 AIR 476 1956 SCR 182
ACT:
Prevention of Corruption-"Obtains",
Meaning of-Railway Servants, if public servants-Laying of traps-Propriety-
Prevention of Corruption Act (II of 1947), s. 5(1)(d), subsection (2)Indian
Railways Act (IX of 1890) as amended by Act XVII of 1955. s. 137.
HEADNOTE:
The appellants were suspected of exporting
potatoes at concessional rates on false declarations and Madan Lal, a Railway
Officer, was deputed to assist the Police in the investigation. In course of
that investigation the appellants offered a bribe to Madan Lal for hushing up
the case but he refused to accept it. As they persisted in their offer a trap
was laid in Madan Lal's house and it succeeded. Two Police Officers and a
Magistrate heard the conversation from the adjoining room and saw the payment
of the bribe through a hole. The appellants were charged under s. 120-B of the
Indian Penal Code for criminal conspiracy to cause the offence of criminal
misconduct punishable under s. 5(2) of Prevention of Corruption Act of 1947 to
be committed by Madan Lal as also under that section read with s. 116 of the
Indian Penal Code. They were convicted by the Special Judge on both the counts
and their convictions were upheld by the High Court. The contentions on their
behalf were that s. 5(2) of the Prevention of Corruption Act had no application
to the facts of the case, that Madan Lal was not a public servant within the
meaning of the Act and, lastly, that the laying of the trap was an invitation
to commit the crime and afforded a good reason for reduction of the sentences.
Held, that the contentions were untenable and
must be rejected.
That the word "obtains" occurring
in clause (d) to sub- section (1) of s. 5 of the Prevention of Corruption Act
does not exclude the idea of acceptance of a bribe on offer, and a public
servant, whether he simply accepts a bribe, or solicits or extorts it, thereby
obtains a pecuniary advantage by abusing his position as a public servant and
commits an offence under that section, any consideration as to motive or reward
for showing favour or disfavour being altogether irrelevant.
That as a result of the amendment of s. 137
of the Indian Railways Act by the Amendment Act of 1955 all railway servants
have become public servants not only for the limited purposes of Ch. IX 183 of
the Indian Penal Code but generally under the Prevention of Corruption Act.
That it cannot be laid down as an absolute
rule that the laying of traps, especially in cases of this nature, should be
deprecated as constituting an invitation to commit an offence and an offence
thus detected does not lose its gravity thereby so as to call for a lenient
sentence.
Where, however, proper limits are exceeded
and the money to be given as bribe is supplied by the Police, it must be
severely condemned.
Brennan v. Peek ([1947] 2 All E.R. 572),
considered.
Rao Shiv Bahadur Singh and another v. The
State of Vindhya Pradesh ([1954] S.C.R. 1098) and Bamjanam Singh v. The State
of Bihar, (Cr. Appeal No. 81 of 1953), referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 43 and 44 of 1954.
Appeals by special leave from the judgment
and order dated the 23rd October 1953 of the Circuit Bench of the Punjab High
Court at Delhi in Criminal Appeal No. 24-D of 1953 arising out of the judgment
and order dated the 26th August 1953 of the Court of Special Judge, Delhi in
Corruption Case No. 10 of 1953.
Jai Gopal Sethi and Naunit Lal for the
Appellants in Cr. A. No. 43 of 1954.
Pritam Singh Safeer, for the Appellant in Cr.
A. No. 44 of 1954.
0. K. Daphtary, Solicitor-General of India,
Porus A. Mehta, H. R. Khanna and P. G. Gokhale, for the respondent in both
appeals.
1956. March 9. The Judgment of the Court was
delivered by CHANDRASEKHARA AIYAR J.-Ram Kishan, the first appellant in
Criminal Appeal No. 43, is a partnerproprietor in the firm of Kundan Lal Raja
Ram of Saharanpur. Prem Chand, the second appellant, is a partner in the firm
of Narain Prasad and Prem Chand in the same place. The appellant, Gian Chand,
is the munim of a firm called Lekh Raj Shambhu Nath.
Some of the Saharanpur merchants, including
184 the three firms, were suspected of exporting potatoes at concessional rates
on false declarations or certificates that they were seed potatoes. Police
investigation was proceeding in this connection at Saharanpur in October, 1951.
Madan La], Railway Section Officer, examined as P. W. 4 in the case, was
deputed by the Railway Department to assist the Special Police Establishment in
the investigation. Labhu Ram, Railway Parcels clerk in the Railway at
Saharanpur, was deputed by the Station Master to help the Police party.
It is alleged by the prosecution that during
the progress of the investigation, and after the houses and shops of the
accused persons had been searched, Ram Kishan took Labhu Ram aside and proposed
that the three firms would be prepared to pay Rs. 2,000 if the case was hushed
up and that Madan Lal was to be sounded. Madan Lal refused to have anything to
do with such a proposal, but as the accused persisted in their offer, it was
ultimately decided that a trap should be laid for them at Delhi in Madan Lal's
house. It is unnecessary to narrate in detail the steps taken in connection
with this plan. The trap succeeded. The three accused and Labhu Ram were at
Delhi on the morning of the 29th December and an increased sum of Rs. 5,000 was
paid in the shape of currency notes to Madan Lal by Ram Kishan while two police
officers and a Magistrate were hearing the conversation from an adjoining room
and saw the payment through a hole in the door.
The appellants were charged under section
120-B of the Indian Penal Code for criminal conspiracy to cause the offence of
criminal misconduct punishable under section 5(2) of the Prevention of
Corruption Act (II of 1947), to' be committed by Madan Lal, one of the
prosecution witnesses.
They also stood charged with an offence under
the same section read with section 116 of the Indian Penal Code for abetting
the commission of criminal misconduct by the said Madan Lal by paying him a sum
of Rs. 5,000 by way of illegal gratification, which offence was, however, not
committed by him.
185 The Special Judge, Delhi, who tried the
case, found the appellants guilty under both heads of charges. He sentenced Ram
Kishan to three months' rigorous imprisonment and a fine of Rs. 5,000; Prem
Chand and Gian Chand to two months' rigorous imprisonment and a fine of Rs.
1,000 each. He did not separately convict or sentence the accused under the
head of criminal conspiracy. The High Court reduced the sentence on Gian Chand
to the term of imprisonment already undergone and a fine of Rs. 500.
There is no dispute that the amount was
actually paid to Madan Lal even though he said he could do nothing to help the
appellants, who begged him somehow to help them out of the impending
prosecution. Evidence has also been given by the Magistrate and the police
officers about the talk and the lower courts have found on the evidence of
Madan Lal and Labhu Ram and the eavesdroppers that Rs. 5,000 was offered as a
bribe and not as compensation money in settlement of the amounts legitimately
due to the Railway.
An attack against the concurrent findings of
fact being wholly futile in the circumstances, Mr. Sethi, for the appellants in
Criminal Appeal No. 43 of 1954, raised some questions of law on their behalf.
His first point was that section 5(2) of the Prevention of Corruption Act (II
of 1947), under which the accused were charged and convicted was inapplicable
to the facts. His second point was that Madan Lal was not a " public
servant" within the meaning of the Act and hence the charge was
unsustainable. He urged as his third point that trap cases of this kind must be
sternly discouraged and deprecated by the courts, inasmuch as opportunities for
the commission of offences should not be deliberately created so that people
who yield to the temptations of ordinary human nature might- be punished as criminals;
in other words, crimes committed under such circumstances should be regarded
only as venial and not heinous.
To appreciate the first contention it is
necessary to pay attention to the language of section 5 of the 186 Prevention
of Corruption Act, which is in these terms:- "S. 5(1) A public servant is
said to commit the offence of criminal misconduct in the discharge of his
duty,- (a)if he habitually accepts or obtains or agrees to accept or attempts
to obtain from any person for himself or for any other person, any
gratification (other than legal remuneration) as a motive of reward such as is
mentioned in section 161 of the Indian Penal Code, or (b)if he habitually
accepts or obtains or agrees to accept or attempts to obtain for himself or for
any other person, any valuable thing without consideration or for a
consideration which he knows to be inadequate, from any person whom he knows to
have been, or to be, or to be likely to be concerned in any proceeding or
business transacted or about to be transacted by him, or having any connection
with the official functions of himself or of any public servant to whom he is
subordinate, or from any person whom he knows to be interested in or related to
the person so concerned, or (c)if he dishonestly or fraudulently
misappropriates or otherwise converts for his own use any property entrusted to
him or under his control as a public servant or allows any other person so to
do, or (d)if he, by corrupt or illegal means or by otherwise abusing his
position as a public servant, obtains for himself or for any other person any
valuable thing or pecuniary advantage.
(2)Any public servant who commits criminal
misconduct in the discharge of his duty shall be punishable with imprisonment
for a term which may extend to seven years, or with fine, or with both.
(3) In any trial of an offence punishable
under sub-section (2) the fact that the accused person or any other person on
his behalf is in possession, for which the accused person cannot satisfactorily
account, of pecuniary resources or property disproportionate to his known
sources of income may be 187 proved, and on such proof the Court shall presume,
unless the contrary is proved, that the accused person is guilty of criminal
misconduct in the discharge of his official duty and his conviction there for
shall not be invalid by reason only that it is based solely on such
presumption.
(4)The provisions of this section shall be in
addition to, and not in derogation of any other law for the time being in
force, and nothing contained herein shall exempt any public servant from any
proceeding which might, apart from this section, be instituted against
him".
The object of the Act as set out in the
preamble is to make more effective provision for the prevention of bribery and
corruption. A new offence of criminal misconduct by a public servant is created
by section 5 and under sub-section (2) it is made punishable with imprisonment
for a term which may extend to seven years or with fine or with both. The
offence is of four kinds or categories. Bribery as defined in section 161 of
the Indian Penal Code, if it is habitual, falls within clause (a). Bribery of
the kind specified in section 165, if it is habitual, is comprised in clause
(b).
Clause (c) contemplates criminal breach of
trust by a public servant and the wording takes us to section 405 of the Code.
It is with clause (d) that we are really concerned in the present case.
It was argued that the intention of the Act
was to create by means of clause (d) an offence different from a single act of
bribery and that it can come into play only when there is no offer to give an d
acceptance of a bribe by a public servant. Before it can be made applicable
there must be proof, it was said, that the public servant adopted corrupt or
illegal means and thereby obtained for himself or for any other person any
valuable thing or pecuniary advantage. To force a bribe out of an unwilling
person is different from the acceptance of a bribe from a voluntary giver and
that before a charge under section 5(1), sub-clause (d) could be sustained,
there must be threat or inducement, or promise proceeding from the public
servant or duress or extortion practised by 188 him to obtain the pecuniary
advantage. This argument proceeds upon the footing that the Act seeks to create
and creates an independent offence distinct from simple bribery.
In one sense, this is no doubt true but it
does not follow that there is no overlapping of offences. We have primarily to
look at the language employed and give effect to it. One class of cases might
arise where corrupt or illegal means are adopted or pursued by the public
servant to gain for himself a pecuniary advantage. The word
"obtains", on which much stress was laid does not eliminate the idea
of acceptance of what is given or offered to be given, though it connotes also
an element of effort on the part of the receiver. One may accept money that is
offered, or solicit payment of a bribe, or extort the bribe by threat or
coercion; in each case, he obtains a pecuniary advantage by abusing his
position as a public servant. The word 'obtains' is used in sections 161 and
165 of the Penal Code.
The other words "corrupt or illegal
means" find place in section162. Apart from "corrupt and illegal
means", we have also the words "or by otherwise abusing his position
as a public servant". If a man obtains a pecuniary advantage by the abuse
of his position, he will be guilty under sub- clause (d). Sections 161, 162 and
163 refer to a motive or a reward for doing or forbearing to do something,
showing favour or disfavour to any person, or for inducing such con- duct by
the exercise of personal influence. It is not necessary for an offence under
clause (d) to prove all this.
It is enough if by abusing his position as a
public servant a man obtains for himself any pecuniary advantage, entirely
irrespective of motive or reward for showing favour or disfavour. To a certain
extent the ingredients of the two offences are common, no doubt. But to go
further and contend that the offence as defined in clause (d) does not come
with. in the meaning of bribery is to place too narrow a construction on the
sub-clause. A speedy disposal of corruption cases by special courts, the benefit
of in- vestigation by higher police authorities are some of the provisions
intended for the protection of public 189 servants prosecuted under the Act
while they are subjected also to increased disabilities, namely, a longer term
of imprisonment as punishment and the application of the presumption referred
to in sub clause (3.).
In support of the contention that Madan Lal
was not a "public servant", reference was made to section 137 of the
Indian Railways Act. Under the Act as it stood before it was amended by Act
XVII of 1955, every railway servant was deemed, to be a public servant only for
the purposes of Chapter IX of the Indian Penal Code and it was provided by
sub-clause (4) that "notwithstanding anything in section 21 of the Indian
Penal Code a railway servant shall not be deemed to be a public servant for any
of the purposes of that Code except those mentioned in Chapter IX". The
amended sub-clause (1) is in these terms:
"Every railway servant, not being a
public servant as defined in section 21 of the Indian Penal Code shall be
deemed to be a public servant for the purposes of Chapter IX and section 409 of
that Code".
Sub-section (4) has now been omitted. The
Prevention of Corruption Act provides by section 2 that "For the purposes
of this Act, 'public servant' means a public servant as defined in section 21
of the Indian Penal Code". The result is that before the amendment,
railway servants were treated as public servants only for the purposes of
Chapter IX of the Indian Penal Code but now as the result of the amendment all
railway servants have become public servants not only for the -limited purposes
but generally under the Prevention of Corruption Act.
It has been stated already that a trap was
laid for catching the appellants and this circumstance, according to the
learned counsel for the appellants, should be taken into account in the matter
of sentence. In this connection, our attention was invited to the well-known
and weighty observations of Lord Goddard, C.J. in Brennan v. peek(1) where his
Lord- 25 (1) [1947] 2 All E.R. 572.
190 ship expressed the hope that "the
day is far distant when it will become a common practice in this country for
police officers to be told to commit an offence themselves for the purpose of
getting evidence against someone; if they do commit offences they ought also to
be convicted and punished, for the order of their superior would afford no
defence". While there is much to be said in support of the opinion
expressed by the learned Chief Justice, it cannot be laid down as an absolute
rule that the laying of traps must be prohibited on the ground that by so doing
we hold out an invitation for the commission of offences. The detection of
crime may become difficult if intending offenders, especially in cases of corruption
are not furnished opportunities for the display of their inclinations and
activities. Where matters go further and the police authorities themselves
supply the money to be given as a bribe, severe condemnation of the method is
merited, as in Rao Shiv Bahadur Singh and another v. The State of Vindhya
Pradesh(1).See also Ramjanam Singh v. The State, of Bihar(2). But whatever the
ethics of the question 'might be, there is no warrant for the view that the
offences committed in the course of traps are less grave and call only for
lenient or nominal sentences.
For the appellant in the connected Appeal No.
44 it was urged by his learned counsel that he was only a munim of a firm and
not a partner or a proprietor as the other appellants and that it could not be
stated of him that he was interested in giving or attempting to give any bribe
for hushing up the case. There is, however, the clear and definite evidence of
Labhu Ram that Gian Chand came along with the appellants to him when the talk
about the bribe took place. He says that on the morning of the 29th December,
1951, the three accused who were staying at the Coronation Hotel, Delhi, told
him that they had amongst themselves collected Rs. 5,000 to be paid to Madan
Lal and that in the of Madan Lal all the three accused one by one made request
to Madan Lal to hush up the potato case pending against them. This (1) [1951]
S.C.R. 1098.
(2) Cr. Appeal No. 81 of 1953.
191 is corroborated by Madan Lal who states
that all the three accused said that the money had been subscribed by them
jointly and requested him to accept the same and get the case withdrawn. The
case of Gian Chand does not stand on any different footing from that of the
other appellants.
The convictions and sentences are confirmed
and the appeal will stand rejected.
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