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PETITIONER: SHIV RAJ SINGH

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT: 01/05/1968

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR 1419            1969 SCR  (1) 183  CITATOR INFO :  R          1976 SC1497  (22)

ACT: Prevention of Corruption Act (2 of 1947), ss. 5(1) and 6 and Indian  Penal  Code  (Act 45 of 1860),  s.  161-Sanction  to prosecute-Sufficiency-Scope of s. 161 I.P.C. and s. 5(1)  of the Prevention of Corruption Act.

HEADNOTE: An unmarried woman gave birth to a child and on her request, her  uncle  and aunt made arrangements for the  child  being brought  up  by some one who wanted to adopt a  child.   The appellant,  who was a police officer, accused the uncle  and aunt  of  having  disposed  of  an  illegitimate  child  and demanded  a  bribe.   The  anti-corruption  department   was thereupon  informed,  a trap laid and currency  notes  which were  given as bribe were recovered from the appellant.   He was  prosecuted and convicted for offences under s. 5(2)  of the Prevention of Corruption Act and s. 161, I.P.C. The High Court confirmed the conviction and sentenced him to 2  years R.I. In appeal to this Court, HELD  : (1) The order of sanction showed on the face  of  it what were the facts constituting the offence, that ’a  prima facie case was made out, and that the sanctioning  authority had  fully and carefully examined the  material  Therefore,, the order of sanction fulfilled the requirements of s. 6  of the Prevention of Corruption Act. [186 B, D] Gokukhand v. The King, A.I.R. 1948 P.C. 82, distinguished. (2) (a) When a public servant is charged under s. 161 I.P.C. and  it is alleged that illegal gratification was  taken  by him  for  doing  or procuring an official  act,  it  is  not necessary  for  the  court to consider whether  or  not  the accused  public servant was capable of doing or intended  to do such an act. [186 F-G] Mahesh  Prasad  v. The State of U.P. [1955]  1  S.C.R.  965, followed. Therefore,  though  the  concealment  of  the  birth  of  an illegitimate child is not an offence and the appellant could not have prosecuted -any one, it could not be said that  the obtaining  of money by the appellant for refraining from  an imaginary  prosecution was not an offence under  161  I.P.C.

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[186 E-F] (b)  In  any event, the appellant was guilty of  an  offence under  s.  5(1)(d) of the Prevention of Corruption  Act,  in that  he grossly abused his position within the  meaning  of the  section  and  thereby obtained  for  himself  pecuniary advantage  and  so,  the sentence imposed  on  him  was  not excessive [187 D, E]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.124  of 1966. Appeal  by special leave from the judgment and  order  dated February  17, 1966 of the Punjab High Court (Circuit  Bench) Delhi in Criminal Appeal No. 63-D of 1964. 184 M.  C.  Chagla E. C. Agarwala, Santosh Agarwala  and  P.  C. Agarwala, for the appellant. D.  Narsaraju  and R. N. Sachthey, for  the  respondents.The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the  judgment  of the Punjab High Court dated  February  17, 1966  in  Criminal  Appeal No. 63-D of  1964  affirming  the conviction of the appellant under S. 5(2) of the  Prevention of Corruption Act (Act 11 of 1947) and S. 161 of the  Indian Penal Code. The  case  of the prosecution is that Miss Eylene  (P.W.  2) used  to  live  in 1962 with her  father  at  Fazilka.   She developed   illicit  connection  with  someone  and   became pregnant.  In April 1963. she went to Ambala to her maternal aunt,  who is employed as a sister in the Ambala  Air  Force Hospital,  and give birth to a son there in July  1963.   In August  1963 Miss Eylene along with her newly born son  came to the house of her uncle Russel Nathaniel in Andrews  Ganj, Delhi.   Since Miss Eylene was unmarried and could not  keep the son with her, she asked Russel Nathaniel and his wife to make  arrangement for the bringing up of the child.   Russel Nathaniel  knew Roshan Lal who had no child of his  own  and wanted  to adopt a child.  Accordingly, on August  25,  1963 the  child was handed over to Roshan Lal.  After  the  child was handed over to Roshan Lal, Miss Eylene went to the house of her sister’s husband, N. K. Lal, P.W. 11 and stayed there with  her sister.  It is alleged that on August 29, 1963  at about  9.30  or 10 P.m. the appellant went to the  house  of Russel  Nathaniel  in  police  uniform  and  accused  Russel Nathaniel  and  his wife of disposing  of  the  illegitimate child.   The appellant further warned Mr. &  Mrs.  Nathaniel that if they wanted to save themselves they should make some settlement  with  him and demanded a bribe of  Rs.  1,000/-. But Mr. Nathaniel paid him Rs. 90/- and agreed to pay  later on  a sum of Rs. 700/-.  The appellant thereafter  compelled Russel  Nathaniel  and  his wife to execute  a  document  in writing that they would pay him Rs. 700/- or agree to go  to prison.   It  is  said  that  the  appellant  asked   Russel Nathaniel to bring to him Roshan Lal and when Roshan Lal was called,  ’the appellant asked him to pay something  to  him. Roshan  Lal  ex.  pressed  his  inability  to  pay  anything whereupon  the  appellant  removed a golden  ring  from  his finger.  On the same night the appellant contacted the girl, Miss  Eylene  and wished to record  her  statement.   Russel Nathaniel  and his wife expressed their reluctance  to  send Miss  Eylene  with the appellant to the police  station  and therefore  the appellant interrogated the girl at the  resi- dence of N. K. Lal, her brother-in-law.  The appellant  made

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her  sign a paper and took the same with him.  On  September 4, 185 1963  Russel  Nathaniel and N. K. Lal decided to  refer  the matter  to  the  anti-corruption  department.   Accordingly, Russel  Nathaniel  went  to  D.S.P.  Mukatdhari  Singh   who recorded  his statement and called two witnesses to  witness the  proceedings.  Russel Nathaniel produced seven  currency notes of the denomination of Rs. 100/- each.  The numbers of those  currency  notes were noted and Russel  Nathaniel  was then  instructed  to  pass on the money  to  the  appellant. Russel  Nathaniel contacted the appellant and asked  him  to come  to the house of N. K. Lal.  They arrived at the  house of  N. K. Lal at about 7.30 or 7.45 P.m. The appellant  sent for  the girl because he wanted to reprimand her and  there- after he asked for the payment of the agreed amount.  Russel Nathaniel  handed over the currency notes to  the  appellant who  put  them  in the left side  pocket  of  his  trousers. Russel  Nathaniel then gave a signai and immediately  D.S.P. Mukatdhari Singh turned up and recovered the currency  notes from  the pocket of the appellant.  On being questioned  the appellant told the D.S.P. that he never asked for bribe  and that  the money was paid to him in repayment of the loan  by him  to  Russel Nathaniel.  The appellant  produced  in  the witness  box Dharam Vir, F. C. Ram Saran, H. C. Jai  Parkash and A. S. Kapur.  After conclusion of the trial the  Special Judge,  Delhi accepted the prosecution case as  correct  and convicted  the appellant of the charged framed  against  him and  sentenced him to undergo rigorous imprisonment for  two years  and  to  pay a fine of Rs. 5001-  or  in  default  to undergo  rigorous imprisonment for a further period  of  six months  under S. 5(2) of the Prevention of  Corruption  Act, and to two years rigorous imprisonment under s. 161,  Indian Penal  Code  and ordered the substantive  sentences  to  run concurrently.   The appellant took the matter in  appeal  to the  Punjab  High  Court.  The  High  Court  maintained  the conviction of the appellant under s. 5(2) of the  Prevention of  Corruption Act and s. 161, Indian Penal.  Code and  also the  sentence to undergo rigorous imprisonment for a  period of  two years awarded to the appellant on each  count.   The High Court. however, set aside the order with regard to  the payment of fine or imprisonment in default. In support of this appeal Mr. Chagla submitted in the  first place  that the order of sanction was bad in law as all  the relevant  papers  and materials were not placed  before  the D.I.G.  Police,  Mr. M. P. Singh who,  was  the  sanctioning authority.   Reference  was made in this connection  to  the decision  of  the Judicial Committee in  Gokulchand  v.  The King(1)  in which it was held that a sanction  which  simply names  the  person  to  be  prosecuted  and  specifies   the provision  of  the  Order  which  he  is  alleged  to   have contravened is not a sufficient compliance with cl. 23.  Mr. Chagla (1) A.I.R. 1948 P.C. 82. 10 Sup.C.I-68-13 186 also  referred  to the evidence of  P.W.  9,  Sub-Inspector, Ascharaj  Lal who said that "all the papers relating to  the case were sent to the D.I.G." When cross-examined, he- could not  say  which were the documents which were  sent  to  the D.I.G. because they were in a sealed cover.  In our opinion, there  is  no substance in the argument put forward  by  Mr. Chagla  on behalf of the appellant.  The Order  of  sanction dated  December 10, 1963 shows on the face of it  what  were the facts constituting the offence charged and that a  prima

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facie  case was made out against the appellant.   The  Order also  further recites that Mr. M. P. Singh,  D.I.G.,  "after fully  and carefully" examining the material before  him  in regard to the "aforesaid allegations" in the case, considers that  a prima facie case is made against the appellant.   It is manifest that the decision of the Judicial Committee  has no  application  to  the  present case,  for  the  order  of sanction  in that case was much more cryptic and  materially different.   We are satisfied that the order of sanction  in the  present  case fulfils the requirements of S. 6  of  the Prevention  of  Corruption Act.  We accordingly  reject  the argument of Mr. Chagla on this aspect of the case. It  was then contended that the concealment of the birth  of an  illegitimate child was not an offence under  the  Indian Penal  Code  or  any  other  criminal  statute  and  if  the appellant  had  obtained  money from  Russel  Nathaniel,  it cannot   be   said  that  the  appellant  had   obtained   a gratification  for doing or forbearing -to do  any  official act,  or for showing or forbearing to show, in the  exercise of  his official functions, favour or disfavour to any  per- son.   In other words, the argument was that  the  appellant could  not prosecute either Miss Eylene or Russel  Nathaniel or  anybody else for any offence and obtaining of  money  by the  appellant  for  refraining  from  any  such   imaginary prosecution  cannot be said to be an offence under  S.  161, Indian  Penal  Code  or  S. 5(1)(d)  of  the  Prevention  of Corruption  Act.  We are unable to accept this  argument  as correct.   When  a public servant is charged under  s.  161, Indian Penal Code and it is alleged that the illegal  grati- fication was taken by him for doing or procuring an official act,  it is not necessary for the Court to consider  whether or  not the accused public servant was capable of  doing  or intended  to do such an act: see the decision of this  Court in  Mahesh Prasad v. The State of Uttar Pradesh(1).  In  the second place, the charge against the appellant is also under s. 5(1)(d) of the Prevention of Corruption Act which states               "5.(1) A public servant is said to commit  the               offence of criminal misconduct- (1) [1955] 1 S.C.R.965. 187               (d)   if he, by corrupt or illegal means or by               otherwise  abusing  his  position  as   public               servant, obtains for himself or for any  other               person   any  valuable  thing   or   pecuniary               advantage or," Section 5(2) states :               "(2)  Any public servant who commits  criminal               misconduct    shall   be    punishable    with               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                     X       X               :               Provided  that the court may, for any  special               reasons recorded in writing, impose a sentence               of imprisonment of less than one year." Upon the facts which have been found by the High Court to be proved  there can be no doubt that the appellant was  guilty of grossly abusing his position as public servant within the meaning  of s. 5(1)(d) of the Prevention of  Corruption  Act and  thereby  obtained  for  himself  a  valuable  thing  or pecuniary  advantage, and the charge under that  section  is established.   We  are  therefore of the  opinion  that  Mr. Chagla is unable to make good his argument on this aspect of the case also.

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Lastly, Mr. Chagla submitted that the sentence of  imprison- ment   was  excessive.   We  are  unable  to   accept   this contention.  Upon the finding of the High Court in this case it  is  manifest  that  the  appellant  grossly  abused  his position as a police officer and extorted money from  Russel Nathaniel and his wife and also a gold ring from Roshan Lal. The  appellant in his official capacity as a police  officer was expected to maintain a high standard of integrity and to uphold  the maintenance of law.  Instead them  proved  facts disclose  that  there  was a gross  abuse  of  his  official position   on  the  part  or  the  appellant  and   in   the circumstances of the case we are satisfied that the sentence imposed is not excessive. For the reasons expressed we affirm the judgment of the High Court  of Punjab dated February 17, 1966 in Criminal  Appeal No. 63-D of 1964 and dismiss this appeal. V.P.S. 188