2003 Supreme(SC) 215

2003(8) Supreme 901
SUPREME COURT OF INDIA
(From Allahabad High Court)
N. Santosh Hegde & B.P. Singh, JJ.
Shiv Nandan Dixit -Appellant
versus
State of U.P. -Respondent
Criminal Appeal No. 544 of 1997
With
Criminal Appeal No. 546 of 1997
Decided on 19-2-2003
Counsel for the Parties :
For the Appearing Parties : S.C. Maheshwari, R.K. Shukla, P.P. Malhotra, Sr. Advocates, Jabar Singh, Ms. Sandhya Goswami, Naresh K. Sharma, Sahdev Singh, Jitender Kumar Bhatia, Advocates.

IMPORTANT POINT
Words "obtains for himself" in Section 5(1)(d) of Prevention of Corruption Act connote not only receiving the bribe personally but receipt of any bribe either directly or indirectly.

Headnote:(i) Prevention of Corruption Act, 1947-Section 5(1)(d) r/w 5(2) and Section 161 and 120B IPC-Appellant A1 as LDC in Income Tax Office and A2 as class IV employee in that office convicted for having demanded and accepted bribe of Rs. 50/- for return of a document which ITO had ordered to release-Bribe was demanded by A1 in presence of A2 and finally A2 received it on behalf of A2 in a coffee house-Necessary inference should be that A2 knew that money he was collecting was bribe money as part of conspiracy. (Para 8)

       (ii) Criminal Procedure Code, 1973 -Section 196(2)-Prevention of Corruption Act, 1947-Section 5(1)(d) r/w 5(2) and Section 161 and 120B IPC-Appellants A1, an LDC and A2 Class IV employee in office of Income Tax convicted under-Cognizance for offence of criminal conspiracy challenged on ground that no consent in writing of State Government was taken in terms of Section 196(2) Cr.P.C.-Since conspiracy to commit either of offences was punishable with imprisonment exceeding two years, Section 196(2) Cr.P.C. had no application.

       Held : A mere perusal of section 161 IPC and section 5(1)(d) of the Act would make it obvious that the maximum punishment which can be imposed under section 161 IPC (as it then stood) is imprisonment of either description which may extend to three years or with fine or with both. For the offence under section; 5(1)(d) of the Act, the punishment prescribed is 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. Thus, the conspiracy to commit either of the offences was punishable with imprisonment for a term exceeding two years rigorous imprisonment and, therefore, in our view section 196(2) of the Code had no application because in respect of both the offences, the Court had jurisdiction to pass a sentence of over two years rigorous imprisonment. The submission that it was permissible for the Court to award simple imprisonment for any term subject to the maximum prescribed and, therefore, section 196(2) of the Code was applicable, cannot be accepted. Equally without substance is the submission that the conspiracy alleged must be compulsorily punishable with rigorous imprisonment for a term exceeding two years, leaving no discretion in the Court to pass a lesser sentence. The true test is whether the conspiracy alleged was punishable with a term of imprisonment exceeding two years rigorous imprisonment and, as we have noticed earlier, it was so in the instant case having regard to the punishment prescribed for the offences under section 5(1 )(d) of the Act as well as section 161 IPC. Therefore this argument of the appellants has to be rejected. (Para 4)

       (iii) Prevention of Corruption Act, 1947-Sections 4 and 5(1)(d)-Presumption of guilt-Words "obtains for himself" connote not only receiving bribe personally but receipt of any bribe either directly or indirectly.

       Held : According to learned counsel for the appellants, since according to the prosecution case itself the bribe in question was not received by A-l himself, the said presumption is not available to the prosecution. This argument again has to be noted only to be rejected because that is not the intendment of section 4 or 5(1 )(d) of the Act. The words "obtains for himself connote not only receiving the bribe personally but receipt of any bribe either directly or indirectly. The interpretation given by learned counsel for the appellants to section 5(1)(d) if accepted, would do violence to that section hence this argument is also rejected. (Para 6)

       (iv) Indian Penal Code, 1860-Section 161-Bribe obtained with a view to "render any service with the Government concerned"-Return of a document which ITO had ordered for release was an official act and if bribe was demanded for release, it would be an offence under Section 161 IPC.

       Held : In the instant case it is submitted that even according to the prosecution, giving of the bribe was for the purpose of receiving a document back from the custody of the Department which cannot be treated as an act of the Government. This argument also in our opinion is without any substance. The document in question was produced before the income-tax authorities for some official purpose and was in its custody. When the ITO directed the return of the document, he was doing an official duty on behalf of the Government. The order that he passed for the return of the document was an official order and any act which has to be done to fulfil or comply with the said order will also be an official act hence when A-l was directed to return back the document, A-l was not acting in a private capacity, he was doing an official act hence if in that process he demands bribe, it would be an offence under section 161 IPC as it stood then. (Para 7)

       (v) Prevention of Corruption Act, 1947-Section 5(1)(d) r/w 5(2) and Section 161 IPC-Appellants, an LDC and Class IV employee in Income Tax Office, convicted for having demanded and accepted Rs. 50/- for return of a document-Sentence-Appellants lost the job and retiral benefits and prolonged litigation caused them loss and suffering and both had crossed age of 60 years-Sentence of one year imprisonment reduced to period of six months . (Para 10)