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SUPREME COURT OF INDIA
9th March 1956
BOSE, SINHA, IMAM AND CHANDRASEKHARA AIYAR, JJ.
Ram Krishan and another, Appellants
Versus
State of Delhi, Respondent.
Gian Chand, Appellant,
Versus
State of Delhi, Respondent.
Criminal Appeal No. 43 and 44 of 1954.
Criminal Appeal No. 43 of 1954.
Criminal Appeal No. 44 of 1954.
Advocates Appeared
Mr. Jai Gopal Sethi, Senior Advocate, (Mr. Naunit Lal, Advocate, with him) (in No. 43) and (Mr. Pritam Singh Safeer, Advocate, (in No. 44), for Appellants : Mr. C. K. Daphtary, Solicitor-General of India, (Mr. Porus A. Mehta, Mr. H. R. Khanna and Mr. P. G. Gokhale, Advocates, with him), for Respondent in both appeals.
The accused were persisting in their offer of bribe to a Railway officer for hushing up certain matter. The trap was laid and was successful. The appellants were charged under S. 120-B, Penal Code for criminal conspiracy to cause the offence of criminal misconduct punishable under S. 5(2), Prevention of Corruption Act, 1947, to be committed by M, the railway employee. They also stood charged with an offence under the same section read with S. 116, Penal Code for abetting the commission of criminal misconduct by the said M by paying him a sum of Rs. 5,000 by way of illegal gratification, which offence was, however, not committed by him.
Three points were urged on behalf of the accused: (1) S. 5 (2),
Prevention of Corruption Act, 1947, under which the accused were charged and convicted was in applicable to the facts; (2) M was not a "public servant" within the meaning of the Act and hence the charge was unsustainable; (3) 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.
Held: (I) It has been argued that the intention of the Act was to create by means of clause (d)1 an offence different from a simple act of bribery and that it can come into play only when there is no offer to give and 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. This argument cannot prevail. The word "obtains" in S. 5 (1) (d) of the Act 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 the 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, Penal Code, refer to a motive or a reward for doing or forbearing to do something, showing favour or dis-favour to any person, or for inducing such conduct by the exercise of personal influence. It is not necessary for an offence under cl. (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 cl. (d) does not come within the meaning of bribery is to place too narrow a construction on the sub-clause.
1.Clause (1) of S. 5(1) of the Prevention of Corruption Act, 1947 reads:
A public servant is said to commit the offence of criminal mis-conduct in the discharge of his duty,-
(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) Before the amendment of S. 137 of the Railway Act, 1890, by Act 17 of 1955, railway servants were treated as public servants only for the purposes of Chap. IX, Penal Code. But now, as the result of the Amendment, all railway servants have become public servants not only for the limited purposes but also generally. In any event, they are public servants under the Prevention of Corruption Act.
(3) 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. 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, - RAILWAY SERVANT
Railways Act (1890), S. 137 (1) (as amended by Act 17 of 1955)-Railway servant is "public servant" -Prevention of Corruption Act (1947), Section 5(1) (d)-Penal Code, Section 21.
Judgement
CHANDRASEKHARA AIYAR, J. : Ram Krishan, the first appellant in Criminal Appeal No. 43, is a partner-proprietor in the firm of Kundan Lal Raja Rama 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 Sahmbhu Nath. Some of the Saharanpur merchants, including 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 Lal, 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 Sation Master to help the Police party.
2. It is alleged by the prosecution that during the progress of the investigation, and after the houses and shop 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 a 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.
3. The appellants were charged under S. 120-B, Penal Code for criminal conspiracy to cause the offence of criminal misconduct punishable under S. 5(2), Prevention of Corruption Act (2 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 S. 116, 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.
4. 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 under gone and a fine of Rs. 500.
5. 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.
6. 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 S. 5(2), Prevention of Corruption Act (2 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
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