JUDGMENT

BHAGWATI, C, J.:— I agree with the Judgment about to be delivered by my learned brother Ranganath Misra, but there are some two or three charges in-regard to which I should like to make more detailed observations since they have not been dealt with fully by my learned brother and he has left it to me to consider them in some detail. Since the genesis of this appeal has been set out by my learned brother at length I do not propose to repeat what has been so ably said by him and I will confine myself only to the facts relating to the charges which are going to be dealt with by me. But I may be permitted to say a few words in regard to two points which have been discussed by my learned brother in his judgment since they are of some importance and can without impropriety bear further discussion.

2. The first point arises out of a contention raised by the learned counsel appearing on behalf of the first respondent (hereinafter referred to as the respondent) that the presumption under S. 4 of the Prevention of Corruption Act 1947 applies only after a charge is framed against an accused and has no application at the stage when the court is considering the question whether a charge should be framed or not. It is said in geometry that a point has position but no magnitude, but we are constrained to observe that this point raised on behalf of the first respondent has not only no magnitude but has even no position. It is wholly without substance and indeed it is surprising that it should have been raised by the learned counsel appearing on behalf of the first respondent. When the Court is considering under S. 245 sub-sec. (1) of the Criminal P. C. whether any case has been made out against the accused which if unrebutted would warrant his conviction, it is difficult to understand as to how the Court can brush aside the presumption under S. 4 of the Prevention of Corruption Act, 1947. Sub-sec. (1) of S. 4 of that Act provides that where in any trial of an offence punishable under S. 161 or S. 165 of the Indian Penal Code or of an offence referred to in Cl. (a) or Cl. (b) of sub-sec. (1) of S. 5 of that Act it is proved that an accused has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain, that gratification or that valuable thing as a motive or reward such as is mentioned in S. 161 or as the case may be, without consideration or for a consideration which he knows to be inadequate. When the Court is called upon to consider whether a charge should be framed or not the question to which the Court has to address itself is whether the evidence led on behalf of the prosecution is such that if unrebutted it would justify the conviction of the accused and the Court has, therefore, to examine the evidence as it stands without rebuttal and come to a conclusion whether on the basis of suck evidence the Court would convict the accused and where the offence charged against the accused is under S. 161 or S. 165 or Cl. (a) or Cl. (b) of sub-sec. (1) of S. 5 the Court must necessarily apply the presumption under S. 4 while considering whether on the basis of the unrebutted evidence which is before it the Court would convict the accused. We do not therefore see any substance in the contention raised on behalf of the first respondent and we must proceed to dispose of this appeal on the basis that even for the purpose of considering whether a charge should be framed or not the presumption under S. 4 must be taken into account.

3. The second point on which considerable controversy was raised before us related to the scope and ambit of S. 165 of the Indian Penal Code. I agree with my learned brother that it may not be desirable at this stage to. define the precise ambit and coverage of S.