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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: JAGATSING CHARANSINGH AND ANR.

DATE OF JUDGMENT: 13/08/1963

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B.

CITATION:  1963 AIR  492            1964 SCR  (4) 299

ACT: Penal  Code-Public Servant receiving illegal  gratification- ingredients of the offence-Failure to specify public servant in  charge  sheet-Whether vitiates the  trial-Servant  of  a corporation-When is a person action or purporting to act  in official  capacity-Indian Penal Code, 1860 (45 of 1860)  ss. 21,  161,  197-Road Transport Corporation Act, 1950  (64  of 1950), s. 43.

HEADNOTE: One Dongarsing obtained an application form for applying  to the Transport Corporation at Dhulia for his employment as  a truck  driver  under the Corporation.  He  subsequently  met respondent   no.  2  who  was  employed  in  the   transport department of the corporation.  Respondent No. 2 promised to get  Dongarsing  the employment provided he  paid  money  to respondent  no.   I  who was an  officer  in  the  transport department  at  Dhulia.   Respondent  no.  2  took  him   to Respondent   No.  I and Rs. 50.00 was agreed to be  paid  to Respondent no. I as bribe and Rs. 25.00 was immediately paid and  the  balance  was paid later.   Dongarsing  not  having obtained  the job as promised got suspicious  and  therefore got into touch with the anticorruption department.  A  trap, was  laid for catching respondent no.  I and Rs.  30.00  was paid  to respondent I in currency notes to which  anthracene powder  was applied.  Police thereafter caught respondent  I with the anthracene powder on his fingers and in his  pocket though   he  threw  away  the  currency  note.    Both   the respondents were prosecuted for the commission of an offence under s. 161 of Indian Penal Code. The  trial  court acquitted respondent no. 2 on  the  ground that he was not present when Rs. 30.00 were given to respon- dent  I  and that there was no evidence to convict  him  for abetment.  Regarding respondent no.  I the court found  that he  had accepted the bribe of Rs. 30.00 but on  the  finding that  he was not a public servant either under s. 21  Indian Penal Code or s. 43 of the Indian Transport Corporation Act, 1950, acquitted him also. The  State appealed to the High Court of Bombay.   The  High Court posed two questions namely (1) whether respondent  no. I  was  a public servant within s. 21 of Indian  Penal  Code read  with  s. 43 of the Transport Act and (2)  whether  the

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ingredients of s. 161 Penal Code had been proved.  The  High Court  did  not decide the first question  .  Regarding  the second question relying on the decision of the Court in  the State  of Ajmer v. Shivjilal [1959] Supp.,2 S.C.R. 739,  the High  Court  held  that  as there was  no  averment  in  the complaint or evidence as to the public servant who was to be approached; respondent no.  1 had to be 300 acquitted.   It confirmed the acquittal of respondent no.  2 also.  The present appeal is by way of special leave granted by this court. In the present appeal the same contentions raised before the High Court were raised. Held;  (1)  Where a person is a public servant in  the  very office  where the appointment is to be made and takes  money in  order  to get the appointment made there is  no  further question  of the charge or evidence indicating who  was  the other  public  servant  with  whom  the  service  would   be tendered.  It was enough if it was shown that money was paid to  a public servant in a particular department by which  an order  would  be  made  and if it was  taken  for  doing  an official act in that department.  That part of s. 161  which was considered in Shivajilal’s case is a distinct part where it  would  be  necessary to show who was  the  other  public servant  who would be approached.  The other part of s.  161 applies  not only to receiving gratification by the man  for himself but also for any other person so long as he is in  a position by virtue of his being a public servant to do or to forbear from doing an official act.  The High Court was  not therefore  right in applying the ratio in Shivajilal’s  case to the facts of this case. (2)  Respondent no. 1 would not be a public servant under s. 21  of Penal Code as it stood at the time of the  commission of the offence and before it was amended by Act 2 of 1958. Only  when an officer or servant of a corporation is  acting or  purporting to act in pursuance of any of the  provisions of the Transport Corporation Act or of any other law that he can be said to be a public servant within s. 43 of that Act. So  far  as receiving of a bribe is concerned it  cannot  be brought  within the scope of acting or purporting to act  in pursuance of any of the provisions of Transport  Corporation Act or of any other law.  Therefore a person taking a  bribe cannot be said to be a public servant within the meaning  of s. 21 of the Indian Penal Code in view of the clear words in s. 43 of the Transport Corporation Act. The trial court was right in acquitting respondent no. 1  on the  ground  that he was not a public servant.   It  follows that respondent no. 2 must also be acquitted. Case law reviewed. Gill  v. King (1948) L.R. 75 I.A. 41, Hori Ham Singh v.  The Crown, [1939] F.C.R. 159, Shrikantiah Ramayya Munepalli  .v. State  of  Bombay, [1955] 1 S.C.R. 1177 and Amrik  Singh  v. State of Pepsu [1955] 1 S.C.R. 1302.

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION : Criminal Appeal  183  of 1961. Appeal  by special leave from the judgment and  order  dated May  17, 1960, of the Bombay High Court in  Criminal  Appeal No. 2 of 1959. 301 H.   R. Khanna and R. H. Dhebar, for the appellant. T. V. R. Tatachari, for respondent no. 1.

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August 13, 1963.  The Judgment of the Court was delivered by WANCHOO  J.-This is an appeal by special leave  against  the judgment  of  the  Bombay  High  Court  by  which  the   two respondents  were acquitted.  The prosecution  case  briefly was that one Dongarsing, a discharged truck driver from  the army, was in need of employment.  Towards the end of October 1955 he made an application to the District Soldiers’ Board, Dhulia  praying  for  help  in  securing  employment.   This application  was forwarded to the Divisional  Controller  of the State Transport Corporation at Dhulia and Dongarsing was asked  by the Corporation to make a formal application on  a printed  form  to  be  obtained on  payment  of  As.  0-2-0. Accordingly  Dongarsing applied for a printed form  sometime in  November  1955 which he received on November  19,  1955. Thereafter Dongar singh met Sheikh Ahmed (respondent No.  2) who  was  in service in the said department  at  jamner  and asked  him  for  help.  Sheikh Ahmed  told  Dongarsing  that jagatsing (respondent No. 1) who was an officer in the State Transport  Corporation at Dhulia would be able to  secure  a job   for   Dongarsing   provided   he   was   paid   money. Consequently,  Dongarsing went to Dhulia along  with  Sheikh Ahmed  and met jagatsing and it was settled that  Dongarsing would pay Rs. 50.00 as bribe to Jagatsingh for securing  the job  of a driver.  Rs. 25.00 were immediately paid  on  that very  day namely November 25,.1955 and the remaining  amount of  Rs. 25.00 was paid a fortnight later about  December  9, 1955.   Dongarsing  was  informed sometime  at  the  end  of January  or beginning of February 1956 that his  application for  the post of driver had been rejected.  He then went  to Jagatsingh again and asked him to return the sum of Rs.  50- 00  already  paid  or secure the  job  for  him.  jagatsingh replied that he could not return the money as it had already been, paid to other persons but said that if he paid another Rs.  50.00 jagatsingh might be able to procure the  job  for him.  So another printed form of application was procured by Jagatsingh  and  Dongarsing  filled it up  and  gave  it  to Jagatsingh.  By this time how- 302 ever  Dongarsing had become suspicious of the bona fides  of jagatsingh  and he therefore approached the  anti-corruption department.  So a trap was laid for catching Jagatsingh  and Rs.  30.00  in currency notes were given to  Dongarsing  for passing on to jagatsing after applying anthracene powder  to them.   Eventually on February 20, 1956, this amount of  Rs. 30.00  was passed on by Dongarsingh to Jagatsing at about  3 p.m.  After the money was paid the police caught  jagatsingh who  had the money in his hands but threw it down  on  being challenged.    It  was  however  found  that  particles   of anthracene  powder  were  on the thumb and  two  fingers  of jagatsing  and also on the seam of the right pocket  of  the pant  of his trousers.  The currency notes were then  picked up  and  the  necessary panchnama  was  prepared  and  after further  investigation  jagatsingh and Sheikh Ahmed  were  I prosecuted. jagatsingh denied his guilt and said that he had nothing  to do  with the appointment of drivers and conductors  and  was never  in a position to do anything for Dongarsing.   Sheikh Ahmed  also denied his guilt and said that all that  he  did was  to help Dongarsing in filling up the printed  form  but that he never told Dongarsing that he had to pay a bribe  to Jagatsingh in order to get the job. The trial court found on the facts that the prosecution  had proved its case beyond reasonable doubt and that  Jagatsingh had accepted the currency notes which Dongarsing gave him on February  20  as  illegal  gratification  as  a  motive  for

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securing  the  job for Dongarsing.  As to Sheikh  Ahmed  the trial  court  held that it would not be safe to  accept  the testimony of Dongarsing as to the payment of the two sums of money  of Rs. 25.00 in November and December 1955 as he  was an  accomplice.  As to the payment of Rs. 30.00 on  February 20 the trial court held that Sheikh Ahmed was not present at that time and could not be held to be guilty of abetment  of that crime, particularly as the letter Ex. 29/ on, which the charge  of  abetment  was based was  never  handed  over  by Dongarsing  to Jagatsingh.  The trial court further held  as to  jagatsingh that he was not a public servant  within  the meaning of s. 43 of the Road Transport Corpora- 303 tion  Act,  No. 64 of 1950 (hereinafter referred to  as  the Transport  Act).   It therefore acquitted both  the  respon- dents. This  was  followed by an appeal by the State  to  the  High Court  of  Bombay.  The High Court apparently  accepted  the finding of the trial court as to the payment of Rs. 30.00 as bribe  to jagatsingh.  The High Court then addressed  itself to questions of law raised before it.  These questions  were :  (1)  whether jagatsing was a public  servant  within  the meaning of s. 21 of the Indian Penal Code read with s. 43 of the Transport Act, and (2) whether the ingredients of s. 161 of  the  Indian Penal Code with which  jagatsingh  had  been charged had been proved.  The High Court did not decide  the first  question in the view it took of the second  question. Relying  on the judgment of this Court in State of Ajmer  v. Shivjilal(1), the High Court held that as there was no aver- ment  as  to  the public servant who was  to  be  approached either in the complaint or in the evidence, it had no option but to confirm the acquittal ordered by the Special judge in view  of Shivjilal’s case(1).  As the High  Court  acquitted Jagatsing,  it held that there could be no case of  abetment against Sheikh Ahmed.  The State of Maharashtra has come  to this  Court by special leave against the view taken  by  the High Court acquitting the two respondents. We shall first deal with the view taken by the High Court on the second question.  We must say with respect that the High Court  has read more in the decision in Shivjilal’s  case(1) than  what was decided therein.  In that case the bribe  was said to have been given to Shivjilal who was a teacher in  a railway school at Phulera.  The purpose for which the  bribe was  said  to  have  been given was  to  secure  a  job  for Premsingh,  who had given the bribe, in the railway  running shed  at  Abu  Road.   On these facts  it  is  obvious  that Shivjilal  would have nothing to do with the securing  of  a job  at the railway running shed at Abu Road, for he was  in no way connected with that shed and could only approach some officer  at  Abu  Road  for procuring  the  job.   In  these circumstances Shivjilal could only secure the job for Prem- [1959] Supp. 2 S.C.R. 739. 304 singh  by  rendering  or attempting  to  render  service  to Premsing  with some public servant at Abu Road who would  be in a position to secure the job there.  That case  therefore clearly  fell  under  that  part of  s.  161  (omitting  the unnecessary words) which reads as follows :-               "Whoever  being a public servant accepts  from               any  person  for  himself  or  for  any  other               person, any gratification whatever, other than               legal remuneration, as a motive or reward  for                             rendering  or attempting to render any   service               or  disservice to any person with  any  public

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             servant" It  was  in that connection that this  Court  emphasised  in Shivjilal’s case(1) that where the charge is under this part of  s.  161,  the charge should  specify  the  other  public servant  who was to be approached for rendering  service  or disservice.  At the same time this Court did not lay down in Shivjilal’s case(1) that if the other public servant is  not specified in the charge, the trial would be bad.  Where  the public  servant  is not specified in the charge  that  would only  mean  that there is defect in the charge  and  such  a defect would be curable under s. 537 of the Code of Criminal Procedure  unless such error or omission or irregularity  or misdirection  has in fact occasioned a failure  of  justice. This  Court  then went on to point out in  Shivjilal’s  case that  besides  the  omission to indicate  the  other  public servant in the charge there was nothing in the complaint, in the charge-sheet submitted by the police and in the evidence to  show who was the other public servant with whom  service or  disservice  would be rendered by Shivjilal.  It  was  in these  circumstances  that this Court held that one  of  the main  ingredients  of that part of s. 161 which  applied  to that case had not been proved. The facts in the present case however are different.  It  is not  in  dispute that Jagatsingh was an employ in  the  very office  which would make the appointment of the  driver  for which,  job Dongarsing had applied.  It is also in  evidence that  Dongarsing had approached jagatsingh directly, may  be in the company of Sheikh Ahmed, and jagatsingh had  promised to secure a job in his own office for Dongarsing, if he  was paid a certain amount.  In (1)  [1959] Supp. 2 S.C.R. 739. 305 such  s. case we are of opinion that another part of s.  161 would  apply  which (again omitting the  unnecessary  words) reads as follows :-               "Whoever,  being a public servant, accepts  or               obtains,  or agrees to accept or  attempts  to               obtain from any person for himself or for  any               other  person,  any  gratification   whatever,               other than legal remuneration, as a motive  or               reward  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 person" It  is this part of s. 161 which would in our opinion  apply to the facts of the present case for jagatsingh was  himself in that office and took the money for doing an official  act i.e.  an appointment of a driver by his office.  It is  true that Jagatsingh in his statement said that he had no concern with appointment of drivers and conductors and was not in  a position  to  do anything for Dongarsing in  the  matter  of securing  employment  for  him.  He  was  however  a  senior assistant  in  the  traffic section in  the  corporation  at Dhulia  ; thus even if he was not directly in a position  to make  the appointment himself that would not in our  opinion make  any  difference to his guilt if he took the  money  in order  to  get  an  official  act  done  viz.,  Dongarsing’s appointment  in  that office.  The relevant part of  s.  161 which applies not only refers to receiving of  gratification by the man for himself but also for any other person so long as  he  is  in a position by virtue of his  being  a  public servant  to do or forbear to do any official act or to  show or forbear to show in the exercise of his official functions favour or disfavour to any person.  Where therefore a person is a public servant in the very office where the appointment

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is  to  be  made  and  takes  money  in  order  to  get  the appointment made there is no further question of the  charge or evidence indicating who was the other public servant with whom  the  service would be rendered.  The part  of  s.  161 which was considered in Shivjilal’s case1’) was an  entirely distinct  part where it would be necessary to show  who  was the  other public servant who would be approached.   But  on the facts of the present case it is not neces- [1959] Supp. 2 S.C.R. 739. 306 sary to show whether there was any other public servant  who was  to  be approached where the public servant  taking  the money is himself in the very office by which the appointment would  be made.  In such a case the person would  be  taking money  for himself or for any other person in his office  in order to do any official act or get it done.  The High Court therefore was not right in applying the ratio in Shivjilal’s case(1) to the facts of this case, for it was not  necessary on  the  facts of this case to indicate who  was  the  other public servant with whom service would be rendered.  It  was enough  if  it  was shown that money was paid  to  a  public servant  in a particular department by which an order  would be  made and if it was taken for doing any official  act  in that  department.  The reason therefore that has been  given by the High Court in acquitting jagatsing and in consequence Sheikh Ahmed cannot be upheld. That brings us to the first question which was posed  before the  High  Court and which the High Court  did  not  decide, namely,  whether jagatsingh was a public servant within  the meaning of s. 21 of the Indian Penal Code read with s. 43 of the  Transport Act.  This question was decided by the  trial court in favour of jagatsingh and we think it fit to  decide this  question  ourselves even though we have  not  had  the advantage of the High Court’s view in the matter, for we  do not think that we should remand the case after this lapse of time  for  this  purpose to the High Court.  It  is  not  in dispute that jagatsingh would not be a public servant  under s.  21 as it stood before the amendment by Act 2 of 1958  by which  the twelfth clause was added to the section in  these terms :-               "Every  officer  in. the service or pay  of  a                             local authority or of a corporation en gaged  in               any trade or industry which is established  by               a  Central,  Provincial or State Act or  of  a               Government  company as defined in section  617               of the Companies Act, 1956" This  clause  was  not there when the  present  offence  was committed in 1956 and we have therefore to see whether s. 43 of  the Transport Act makes jagatsingh a public servant  for purposes of s. 21 of the Indian Penal Code. Section 43 is in these terms (1)   [1959] Supp. 2 S.C.R. 739.- 307               "All   members  of  a  corporation,  and   all               officers   and  servants  of  a   Corporation,               whether  appointed by the State Government  or               the  Corporation, shall be deemed when  acting               or  purporting  to  act in  pursuance  of  the               provisions of this Act or of any other law, to               be  public  servants  within  the  meaning  of               section 21 of the Indian Penal Code." Now  if  the  words "when acting or  purporting  to  act  in pursuance  of  any of the provisions of this Act or  of  any other  law"  had not been there in s. 43, there  would  have

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been  no difficulty in holding that jagatsingh was a  public servant  under  s.  21  of  the  Indian  Penal  Code.    The difficulty  is  created by these words and the  argument  on behalf of the respondents is that the effect of these  words in s. 43 is that all officers and servants of a  corporation are public servants only when they are acting or  purporting to  act  in  pursuance  of any  of  the  provisions  of  the Transport Act or of any other law, and that taking of  bribe is  not acting or purporting to act in pursuance of  any  of the provisions of the Act or of any other law. The question whether sanction of the Government was required under  s.  197 of the Code of Criminal Procedure  where  any public servant is accused of an offence alleged to have been committed  by him while acting or purporting to act  in  the discharge of his official duty came UP for consideration  by the  Privy  Council in cases under ss. 161 and  409  of  the Indian  Penal Code against public servants.  In Gill v.  The King(1), the Privy Council held that prosecution for  taking a  bribe  under  s. 161 of the Indian  Penal  Code  did  not require sanction under s. 197 because taking of a bribe  was not  acting  or purporting to act in the  discharge  of  the official duty of a public servant. Again  in Hori Ram Singh v. The Crown(1), the Federal  Court held that sanction was required for prosecution of a  public servant  for  an  offence under s.  477-A  as  his  official capacity  is  involved  in the very  act  complained  of  as amounting to a crime ; but that no sanction was required for a  charge  under, s. 409, because the official  capacity  is material  only in connection with the entrustment  and  does not necessarily enter into the later act (1) [1948] L.R. 7 X. 41.         (2) [1939] F.C.R. 159. 308 of  misappropriation  or conversion which is  the  act  com- plained of.  This view of the Federal Court was approved  by the Privy Council in Gill’s case (1). We  may  also  refer  to two cases of  this  Court  in  this connection,  namely, Shreekantiah Ramayya Munipalli  v.  The State of Bombay(1) and Amrik Singh v. State of Pepsu(3).  In the first case it was pointed out that s. 197 should not  be construed too narrowly, for if that was done it could  never be applied as it is no part of an official’s duty to  commit an offence and never can be.  But it was not the duty of  an official  which  had  to be examined so  much  as  his  act, because an official act could be performed in the  discharge of  official duty as well as in dereliction of it.  In  that case  misappropriation was facilitated by a  public  servant allowing certain stores to pass out of the Engineering Depot at Dehu and it was held that sanction was necessary  because misappropriation  could  never have been  committed  if  the official  act of passing out the stores had not  been  done. Therefore the public servant who allowed the stores to  pass out  and  thus was guilty of  abetment  of  misappropriation could  not  be  prosecuted without sanction as  his  act  in passing    out    the   stores   which    facilitated    the misappropriation was an official act. The  matter  was examined again in the second case  and  the position was summed up there in these words at p. 1307 :-               "It  is  not  every  offence  committed  by  a               public’  servant  that requires  sanction  for               prosecution  under section 197 (1) of the  Co&               of  Criminal  Procedure ; nor even  every  act               done  by him while he is actually  engaged  in               the performance of his official duties; but if               the  act complained of is  directly  concerned               with   his   official  duties  so   that,   if

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             questioned, ’it could be claimed’ to have been               done  by virtue of the office,  then  sanction               would  be  necessary; and that  would  be  so,               irrespective  of  whether it was, in  fact,  a               proper  discharge of his duties, because  that               would  really  be a matter of defence  on  the               merits which would have to be investigated ’at               the trial,’and could L.R. 75 I.A. 41. (2) [1955] 1 S.C.R. 1177. [1955] 1 S.C.R.  1302. 309               not  arise  at  the  stage  of  the  grant  of               sanction,  which must precede the  institution               of the prosecution." In  that  case,  however,  it was  held  that  sanction  was necessary  for prosecution under s. 409 of the Indian  Penal Code  because the accused in that case claimed that  he  had paid  the  amount to the person to whom it was due  and  had taken a receipt from him. Similar  considerations would apply when one has  to  decide whether an officer or servant of a corporation was acting or purporting  to act in pursuance of any of the provisions  of the Transport Act or of any other law, for it is only if  he is  so  acting that he can be said to be  a  public  servant within the meaning of s. 43.  Now so far as the receiving of a  bribe is concerned, it cannot in our opinion  be  brought within the scope of acting or purporting to act in pursuance of  any  of the provisions of the Transport Act  or  of  any other  law.  It cannot be the case of the  prosecution  that jagatsingh while acting or purporting to act in pursuance of any  of the provisions of the Transport Act or of any  other law  would  take this money.  Therefore when  he  took  this money  from Dongarsing he could not be said to be acting  or purporting  to act in pursuance of any of the provisions  of the  Transport Act or of any other law.  Therefore he  could not  be a public servant within the language of s. 43  which requires that an officer or servant of a corporation  should be  acting or purporting to act in pursuance of any  of  the provisions of the Transport Act or of any other law in order that he may be a public servant within the meaning of s.  21 of the Indian Penal Code. It  is  urged that in this view all  members,  officers  and servants  of a Corporation would be free to take bribes  and would never be liable to be prosecuted under s. 161 and that this could not have been the intention behind s. 43.  It  is certainly unfortunate that such a result should follow  from the  words  used in s. 43.  But the words are clear  and  it seems that members, officers and servants of the corporation were intended by the legislature to be public servants  only when  they were acting or purporting to act in pursuance  of the provisions of the Transport Act or of any other law  and not otherwise.  As taking 310 of  bribe cannot under any circumstances be shown to  amount to  acting or purporting to act in pursuance of any  of  the provisions  of  the Transport Act or of any other  law,  the person taking a bribe cannot be said to be a public  servant within the meaning of s. 21 of the Indian Penal Code in view of the clear words of s. 43.  The difficulty has however now been  obviated by the amendment of s. 21 by the addition  of the  twelfth  clause  therein.  But as s. 21  stood  at  the relevant  time  we  have to take recourse to s.  43  of  the Transport  Act and the words of that section make  it  quite clear  that members, officers and servants  of  corporations can only be. public servants when they act or purport to act

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in  pursuance of any of the provisions of the Transport  Act or of any other law ; and taking of a bribe can never amount to  acting or purporting to act in pursuance of any  of  the provisions  of  the Transport Act or of any other  law.   In these circumstances the trial court was right in  acquitting Jagatsingh  on the ground that he was not a public  servant. It follows therefrom that Sheikh Ahmed must be acquitted. We  therefore  dismiss  the  appeal,  though  for  different reasons.                      Appeal dismissed. 311