R. G. Jacob Vs. Union of India [1962]
INSC 240 (28 August 1962)
DAYAL, RAGHUBAR DAYAL, RAGHUBAR
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1963 AIR 550 1963 SCR (3) 800
CITATOR INFO :
R 1972 SC2284 (19) RF 1986 SC2045 (3)
ACT:
Criminal Trial-Public Servant accepting
valuable things for securing export permit-'Subordinate', Meaning of-If means
functionally subordinate--Indian Penal Code, 1860 (Act 45 of 1860), s. 165.
HEADNOTE:
The word 'subordinate' used without any
qualification in s. 165 of the Indian Penal Code indicates that the Legislature
intended to include within its ambit also such subordinates as had no
connection with the functions with which the proceeding or business was
concerned. That word cannot be read as functionally subordinate' so as to
defeat the intention and policy of the Legislature.
Consequently where an Assistant Controller of
Imports was prosecuted for accepting valuable things for helping an applicant,
who had appealed to the joint Chief Controller of Imports and Exports. to
secure a permit to export goods and was convicted under s. 165 of the Indian
Penal Code by the special Judge and such conviction was affirmed by the High
Court and the contention on appeal to this Court was that, although the appellant
might be administratively subordinate to the joint Chief Controller of Imports
and Exports, he was not functionally so, having nothing to do with export
permits, and was not, therefore, liable under the section.
Held, that the appellant was subordinate to
the joint Chief Controller of Imports and Exports within the meaning of the
section and had been rightly convicted.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 116 of 1961.
Appeal from the judgment and order dated
December 14, 1960 of the Madras High Court in Criminal Appeal No. 933 of 1959.
801 S. Mohan Kumar Mangalam, R. Ganapathy
Iyer and G. Gopalakrishan, for the appellant.
C. K. Daphtary Solicitor General of India, D,
R. Prem, R. N. Sachthey and P. D. Menon, for the respondent.
1962. August 28. The Judgment of the Court
was delivered by DAS GUPTA, J. The appellant who was the Assistant Controller
of Imports in the office of the Joint Chief Controller of Imports and Exports,
Madras, was tried by the Special judge, Madras on three charges-one under
section 161 of the Indian Penal Code, another under s. 5 (1) (d) read with s. 5
(2) of the Prevention of Corruption Act and the third-which was added
later-under s. 165 of the Indian Penal Code. He was acquitted of the first two
charges but was convicted of an offence under s. 165 of the Indian Penal Code
and sentenced to rigorous imprisonment for one year.
He appealed to the High Court of Madras; but
the High Court dismissed the appeal and affirmed the order of conviction, but
reduced the sentence to that of fine of Rs. 400/in default rigorous
imprisonment for three months. The High Court has however granted a certificate
under Article 134 (1) (c) of the constitution that this was a fit case for
appeal to this Court. On the basis of that certificate this appeal has been
filed.
This prosecution case is that one K. R. Naidu
(who has been examined as prosecution witness No. 8) a merchant having export
business in onions, chillies and groundnuts made on January 21, 1958, an
application for export of chillies. He was informed by a letter dated March 5,
1958, that the application had been rejected. This letter was purported to be
signed by the Assistant Controller 802 of Exports for the Joint Chief
Controller of Imports and Exports. Arumugam (prosecution witness No. 1) who had
been acting on behalf of Naidu in this matter then sought the assistance of
this appellant for getting a permit for Naidu.
When he met the appellant later the same
evening the appellant told him that an appeal would have to be preferred
against the rejection order to the Joint Chief Controller of Imports and
Exports, Rangaswamy. The appellant also proposed that if he was given two bags
of cement and Rs. 50/-he would use his influence and help him to get him the
permit. Arumugam agreed and the appellant gave Arumugam a sheet of paper
stating the address to which the cement was to be sent. On the next day the
memorandum of appeal was sent by registered post to Rangaswamy, the Joint Chief
Controller. The same day Arumugam saw the Deputy Superintendent, Special Police
Establishment, and gave him a complaint in writing mentioning all the facts. A
trap was thereafter laid with a view to catch the appellant in the actual act
of accepting the bribe. On the evening of April 3, 1958, Arumugam went to the
house of the appellant with two cement bags which had been marked by putting
attested cards inside the bags and Rs. 50/in currency notes the number of which
were noted by the Deputy Superintendent of Police. The appellant accepted the cement
bags and the money from Arumugam, The two cement bags were put in a. room of
the building as directed by the appellant. Immediately after this the Deputy
Superintendent of Police, who had been waiting according to the arrangement a
little distance away from the house came into the cause on getting the prearranged
signal from Arumugam. He revealed his identity to the appellant and asked him
to produce the money and cement bags. The accused then took him upstairs and
opened an Almirah with his own keys 803 and produced from inside the Almirah
the very notes of which the number had been taken by the Deputy Superintendent
of Police. The cement bags with the marks inside were also found down-stairs.
The accused pleaded not guilty. He admits the
recovery of the cement bags and the currency notes from his house but pleads
that neither of these have been given to him and that the notes were found on
the table and the cement bags were in the hall nearby; and these had been kept
in his house without his knowledge or consent by Arumugam who wanted to make up
a false case against him. According to him the whole story of his being
approached by Arumugam or his asking for cement bags or money, or accepting
them, is entirely false.
The Special Judge as also the High Court
accepted the prosecution evidence in these matters as true and rejected the
defence version and Mr. Kumaramangalam has rightly not tried to challenge
before us the findings of facts. His principal contention in support of the
appeal is that assuming the findings to be true, an offence under s. 165,
Indian Penal Code had not been established. This contention is based mainly on
the fact that the appellant was Assistant Controller of Imports only and had no
connection with the issue of export permits. According to the learned Counsel
he was not therefore "subordinate" to the Joint Chief Controller of
Imports and Exports to whom the appeal petition had been filed and consequently
his acceptance of cement bags from Arumugam did not amount to an offence under
section 165 of the Indian Penal Code. Section 165 of the Indian Penal Code runs
thus:"165. Whoever, being a public servant, accepts or obtains, or agrees
to accept or attempts to obtain, for himself or for any 804 other person, any
valuable thing without consideration, or for a consideration which 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 such public servant, or having arty 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 shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both." What has
been proved in this case is ; (1) that the appellant, a public servant,
accepted some valuable things from Arumugam without consideration. (2) Arumugam
was concerned in an appeal against an order rejecting an application for export
licence. (3) this proceeding bad connection with the official functions of the
Joint Chief Controller of Imports and Exports who was a public servant.
(4) The appellant knew that Arumugam was concerned
in this proceeding having connection with the official function of the Joint
Chief Controller of Imports and Exports. (5) The appellant was in respect of
his official position subordinate to the Joint Chief Controller of Imports and
Exports. It may be mentioned that it is not disputed that at the relevant time,
viz., March, 1958, the accused was the Assistant Controller of Imports only and
had nothing to do with export permits.
All the ingredients of an offence under
s.165, Indian Penal Code, appear therefore to have been proved prima facie. Mr.
Kumaramangalam's contention is that the fifth fact mentioned above, viz., that
the appellant was in respect of his 805 official position 'subordinate" to
the Joint Chief Controller of Imports and Export is not sufficient to establish
his "subordination" to the Joint Chief Controller of Imports and
Exports within the meaning of s. 165.
Subordination of public servants to other
public servants is a well known and inevitable feature of public
administration. And, when a question arises in any case whether a public
servant A is a subordinate to public servant B it presents little difficulty.
Thus, in that branch of the State's public administration which deals with
regulation of Imports into and exports from India, one would state without
difficulty that an Assistant Controller of Imports is "subordinate"
to the Joint Chief Controller of Imports and Exports; so also the Assistant
Controller of Exports is subordinate to the Joint Chief Controller of Imports
and Exports; but the Assistant Controller of Exports is not subordinate to the
Assistant Controller of Imports;
nor is the Assistant Controller of Import
subordinate to the Assistant Controller of Exports. According to the learned
Counsel, in s. 165 the word "subordinate" should be interpreted as
"functionally subordinate". He contends that while the appellant was
administratively subordinate to the Joint Chief Controller of Imports and
Exports he was not "functionally subordinate" to that officer; as
Assistant Controller of Imports, he had nothing to do with the matter of appeal
against the rejection of the application for exports, so, he was not
"subordinate" to the Joint Chief Controller, within the meaning of
the section.
The use of the words "functionally subordinate"
does not appear to be very happy; as in every case of administrative
subordination there is also subordination in respect of some functions at
least. What the learned Counsel really means 806 by his argument is that
"subordinate" in the section means "subordinate in respect of
those very official functions with which the business or transaction has
connection." In support of his arguments he has drawn our attention to the
provisions of a. 161, s. 162 and s. 163 of the Indian Penal Code and he points
out that s. 161 makes punishable the taking by a public servant of
gratification in respect of his officials act or his official functions; s. 162
makes punishable the taking of gratification by any person for inducing by
corrupt or illegal means a public servant to do or not to do something in
connection with his official functions; s. 163 makes punishable the taking of
gratification by any person for inducing by the exercise of personal influence
a public servant to do or not to do something in connection with his officials
function.
Section 164 it may be mentioned makes
punishable the abetment of offences under s. 162 and 163. In this context, the
learned Counsel argues, the words in s. 165 should be so interpreted as to make
punishable only such taking of gratification by a public servant as has in some
way connection with his own official functions, and so he argues
"subordinate" in the section should be interpreted as suggested by
him. To a emphasise his point he gave this illustration , X the Collector of a
District is dealing with a matter of assessment of revenue on A's application.
Y a office Peon of a department under the Collector which has nothing to do
with revenue matters accepts money from A knowing that A has such business with
X; Y will then be committing an offence under is. 165 even though Y has no
connection whatsoever with the functions of X in respect of A's application.
It will perhaps not often happen that Y will
have an opportunity of accepting money from A 807 when he has not even a
plausible chance of doing something for A in connection with the application.
But, assuming that he has that opportunity and does accept the money as stated
in the illustration above, we cannot see what untoward consequences will ensue
if Y's conduct is made punishable under s. 165. It has to be noticed that s.
165 has been so worded as to cover cases of corruption which do not come within
s. 161 or a. 162 or s. 163. When with that intention the legislature has used
the word "subordinate" in s. 165 without any limitation there is no
justification for reading into the word the limitation suggested by the learned
Counsel by the words "in respect of those very functions". It is
plain that the interpretation suggested by Mr. Kumaramangalam needs the addition
of some words in the section, and that is clearly not permissible. By the use
of the word "subordinate" without any qualifying words, the
legislature has expressed its legislative intention of making punishable such
subordinates also who have no connection with the function with which the
business or transaction is concerned. To limit the meaning of
"subordinate" in the section as suggested by the learned Counsel
would be defeating that legislative intention and laying down a different
legislative policy. This the Court has no power to do. The argument that
"subordinate" means something-more than "administratively
subordinate" must therefore be rejected, The appellant has therefore
rightly been held to be "Subordinate" to the Joint Chief Controller,
even though the appellant had no functions to discharge in connection with the
appeal before the Joint Chief Controller of Imports and Exports.
Mr. Kumaramangalam then wanted to argue that
the facts and circumstances of the case showed that Arumugam was a police
informer and that he was really not concerned in the appeal before the 808
Joint Chief Controller of Imports and Exports. Therefore, he points out, it
would be reasonable to hold that no offence under s. 165 had been committed by
his client. We find however that the High Court granted the certificate only on
the ground that the question raised by the Counsel as regards the
interpretation of the word "subordinate" in the section was a
substantial question of law, which was not covered by any specific authority
and was also a question of public importance. In view of this we do not think
it right to investigate the further question sought to be raised by Mr.
Kumaramangalam in this case and we have not allowed him to argue that matter.
We think it proper to add that we have not
been able to appreciate why the High Court thought it necessary to reduce the
sentence imposed by the Trial Court.
The appeal is accordingly dismissed.
Appeal dismissed.
Back
