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PETITIONER: DALPAT SINGH & ANR.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 13/02/1968

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. MITTER, G.K.

CITATION:  1969 AIR   17            1968 SCR  (3) 189  CITATOR INFO :  RF         1976 SC 294  (12)

ACT: Indian  Penal  Code,  1860  (45  of  1860),  ss.  120B   and 161--Public  servants threaten ill-treatment and  harassment unless money paid to them--Whether can be convicted under s. 161. Prevention of Corruption Act, 1947 (Act 2 of 1947), ss. 5(1) (a), 5(1) (d) and 5(2)--Offence not under s. 161  I.P.C.--If conviction under s. 5(1)(a) possible--Scope of s. 5(1)(d).

HEADNOTE: On the allegation that the appellant-Havaldar and the second appellant-a  Subedar  in the Rajasthan  Armed  Constabulary. were demanding certain amount from a person accusing him  of indulging in blackmarketing and constantly visiting Pakistan and  unless he paid the amount demanded he would  be  beaten and prosecuted, a police trap was successfully laid, and the appellants convicted under ss. 161 and 120B I.P.C. and under s.  5(2)  read  with  s.  5(1)(a)  and  s.  5(1)(d)  of  the Prevention of Corruption Act.  In appeal, this Court. HELD  : The conviction of the appellants under s.  120B  and 161 as well as under s. 5 (2) read with s. 5 (1) (a) of  the Prevention of Corruption Act must be set aside.  The  second appellant’s conviction under s. 5(2) read with s. 5(1)(d) of the  Prevention  of Corruption Act must be  sustained.   The first appellant’s conviction be altered to one under s. 5(2) of the Prevention of Corruption Act read with s. 114 I.P.C. The first appellant was a subordinate of ’second  appellant. From the evidence it is clear that both the appellants  were acting  together.  It is’ obvious that the second  appellant was mainly responsible for the extortions complained of  and the first appellant was aiding him in his activities.  Hence there  was no need to charge the appellants under s. 120  B. I.P.C. The  evidence  clearly showed that  neither  the  appellants intended  to  show any official favour to the  Persons  from whom  they  extorted money nor those  persons  expected  any official  favour  from them.  The amounts in  question  were paid solely with a view to avoid being ill-treated or haras- sed.   Therefore,  it  is dffficult to hold  that  the  acts complained  can be held to constitute offences under s.  161

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I.P.C. State of Ajmer v. Shivji Lal, [1959] Supp. 2 S.C.R. 739  and State  of Uttar Pradesh v. Kuljas Rai.  Cr.  A. No. 177  of. 1960 dated 22-8-62, referred to. Before  an offence can be held to come within s. 5(1)(a)  Of the Prevention of Corruption Act, the requirements of s. 161 I.P.C.,  have to be satisfied.  If an offence does not  fall under s. 161 I.P.C. it cannot come. within s. 5(1)(a) of the Prevention of Corruption Act. [196 C] But  so far as s. 5(1) (d) of the Prevention  of  Corruption Act  is concerned, that stands on a different  footing.   To bring home an offence under s. 5(1) (d), it is not necessary to  prove  that  the acts complained of  were  done  by  the appellants  in  the  discharge  of  their  official  duties. Clause 5(1)(d) is much wider in scope than cl. 5(1)(a). [196 D-197 B] 190 State  of  Uttar Pradesh v. Kuljas Rai, Cr.  A. No.  177  of 1960 dated 22-8-62 and Dhaneshwar Narain Saxena v. The Delhi Administration, A.I.R. 1962 S.C. 195, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal  No.28  of 1965. Appeal  by special leave from the judgment and  order  dated December  14,  1964  of the Rajasthan High Court  in  S.  B. Criminal Appeal No. 656 of 1963. K.   R. Chaudhuri, for the appellants. K.   Baldev Mehta,for the respondent. The Judgment of the Court was delivered by Hegde,  J.  The two appellants were convicted  by  the  High Court of Rajasthan under ss. 120 B and 1 61, IPC, and  under ss.  5 ( 1 ) (a) and 5 ( 1 ) (d) read with S. 5 (2)  of  the Prevention  of Corruption Act.  They have come up in  appeal to this Court by special leave. The first appellant was a Havaldar and the second  appellant a  Subedar  in  the Rajasthan Armed  Constabulary.   At  the relevant  point of time they were serving in the outpost  at SajanKa-Par in Barmer district of Rajasthan State, which was a  border outpost.  That post was within two miles from  the Pakistan border. The  prosecution  case is that  the  two appellants  conspired  to  extort money  as  well  as  other valuable things from the villagersby using force or  threat of  force  or by harassment.Though they  were  indulging  in these  activities for quite some time, the matter came to  a head when they tried to compel PW 1 Mohammad to give them Rs 100.   It was said that about the middle of September  1962, the  first appellant came to the field of Mohammad and  took him  to the outpost saying that the second appellant  wanted him  to go over there.  At the outpost the second  appellant told  him that he was constantly visiting Pakistan;  he  was also   blackmarketing;  hence  unless  he  gave   him   (2nd appellant)  Rs.  200  he would send him  to  prison.   PW  1 pleaded that he was innocent.  He also pleaded that he was a poor man and hence he was unable to pay the amount demanded. As the second appellant insisted on the payment he agreed to pay  him  Rs. 100 but as he had no money at that time  PW  3 Kalla stood surety for him.  After a few days when PW 1  was sitting in the shop of PW 5 Bhoja, he happened to talk about the  illegal activities of the appellants.  It  so  happened that  a CID officer was there who evidently passed  on  that information to PW 17 Kaneihalal the Deputy Superintendent of Police,in the Special Police Establishment.  On getting that

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information PW 17 came to the village on September 30,  1962 and checked up the 191 facts  with PW 1. On the morning of October 1, 1962.   PW  1 was  again  called to the outpost by the 2nd  appellant  and told  that  the  amount  should  be  paid  immediately.   He promised  to  pay  the same that  afternoon  and  asked  the appellants to come to his house that afternoon to which they agreed.   Thereafter he passed on that information to PW  17 and  gave  him  the complaint Exh.  P1.   Then  a  trap  was arranged.  PW 1 produced before PW 17, Rs. 100 in ten  rupee currency  notes.   PW  17 noted down their  numbers  in  the presence  of panch witnesses PW 2 Bhakha and PW 4 Ballu  and returned  the amount to PW 1 with instructions to  give  the same to the appellants if they again demanded money.  At the same  time  he instructed PWs 2 and 4 to be with.  PW  1  so that they may witness the payment. of the money.  Then PW 17 posted  himself  in a house near the house of PW 1.  On  the evening of that day the first appellant came to the house of PW  1 and demanded the money.  He told PW 1 that the  second appellant  could  not come as. he was not well.  Then  PW  1 took  out  the currency notes whose numbers had  been  noted down earlier and paid the same to the first appellant.   The first appellant put them in his pocket.  On receipt of  that information,  PW  17 came to the place and asked  the  first appellant to produce those currency notes.  On seeing PW 17, the  first  appellant became pale and nervous.   After  some hesitation he took out the notes in question from his pocket and  gave them to PW’17.  On examining their numbers it  was found that they were the very notes which had been  returned to  PW  1  after  noting their  numbers.   As  soon  as  the villagers  came  to know of the trap, several of  them  came forward  with  complaints against  the,  appellants.   After investigating  all those complaints this case was  launched. It  was tried by the special judge,, Balotra,  who  accepted the  prosecution case in full and convicted  the  appellants under ss. 161 and 120B, IPC and under s. 5 (2) read with  s. 5  (1) (a) and 5(1)(d) of the Prevention of Corruption  Act. In   appeal  the  High  Court  of  Rajasthan  affirmed   the convictions of the appellants in respect of all the  charges levelled  against  them.   It did  not  award  any  separate sentence in respect of the offence under s. 161 or s. 120 B, IPC.  As regards the other offences it reduced the  sentence awarded by the trial court. We  shall now proceed to consider the evidence  relating  to the various charges levelled against the appellants.  It  is not disputed that both the appellants were public  servants. So far as the evidence relating to the trap is concerned, we have  the evidence of PWs 1,2,4 and 17.  Their evidence  has been believed by the trial court as well, as the High Court. The plea of the 1st appellant was that on that evening  when he was going in front of the house of PW 1, PWs 1 and 192 2  and others caught hold of him and struggled with him;  at that, time his note- book fell down; thereafter he saw  them producing the currency notes in question before PW 17.  This is a very artificial story.  The same has been  disbelieved- by the trial court as Well as, the appellate court.  No case is made out to interfere with their findings. The evidence relating to the trap does not by itself connect the  second  appellant  with  that  incident  but  then  the evidence  of   PWs 1 and 3, which has been accepted  by  the trial court as well as the High Court, shows that it was the 2nd  appellant who compelled PW 1 to give that amount.   The contention of the second appellant that he had incurred  the

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displeasure  of  the  their  way  of  smuggling  goods  from Pakistan to India and from India to Pakisthan and  therefore he  ’was  victimised was not,accepted either  by  the  trial court or the High Court.  Those.. courts also did not accept his  version  that several days before the trap was laid  he had  reported against ’most of the prosecution witnesses  in this case.  The defence evidence led by him was  disbelieved by those courts and even the documents produced by him  were rejected either on the ground that they were got up for  the purpose of this case or as having been tampered with.  This’ court  being  a  court of  special  jurisdiction,  does  not interfere with, findings of facts reached by the High  Court except    under   exceptional   circumstances.    No    such circumstance is available in this case. We are unable to accept the contention of the Iearned  coun- sel  for  the appellants that PWs 1, 2, 3, 4  and  17  and,, other  prosecution  witnesses  to whose  evidence  we  shall presently  refer,’ should be considered as accomplices-  and therefore  their evidence is required to be corroborated  in material  particulars before being accepted.  On the  proved facts,  even  those who gave illegal  gratification  to  the appellants cannot be considered ’as accomplices as the  same was  extorted from them.  Though PWs 1, 2, 4 and 17  can  be considered   as  interested.  witnesses  as  regards   their evidence  relating  to trap, as a matter of law, it  is  not correct  to  say  that their. evidence  cannot  be  accepted without  corroboration,  see the State of  Bihar  v.  Baswan Singh(1). The  next  incident  is that spoken to by  Bhoja  PW  5  and Hussain, PW 6. Their evidence was. that on June 22, 1962 the ,second appellant along with the first appellant visited the shop  of PW 5 and told, him that he was  blackmarketing  and that people [1959] S.C.R. 195. 193 from  Pakistan were visiting him.  He denied those  charges. Then  the  second appellant told him that unless he  (PW  5) paid him Rs. 50 he would involve him in some case some  day. But  still  PW  5  did not give  any  money  to  the  second appellant.   Then  the  second  appellant-insisted  that  he should  give at least the wrist watch that he  was  wearing. Finding  no alternative her gave him the watch,  article  3. According to him when all these things happened PW 6 was  in his  shop.  PW 6 fully corroborated PW 5. It was not  denied that  PW  17 seized the watch in question  from  the  second appellant.  But his explanation was that that watch had been pledged by PW 5 with Shriram PW 4for Rs. 50 but that  amount had  been  advanced to DW 4 by him (appellant No. 2);  DW  4 left the watch with him and that is how he happened to be in possession  of the watch.  Neither the trial court  nor  the appellant  court accepted this version.  On the  other  hand they  relied  on. the evidence of PWs 5 and 6  coupled  with the, circumstance that the watch was seized from the  second appellant.  We see no reason to disturb the findings reached by those courts. PW  18 Ukaram spoke to the fact of having paid a sum of  Rs. 101  to  the second appellant in the presence of  the  first appellant  on  August  13, 1962.  Though  his  evidence  was believed  by the trial court, the same was not relied on  by the  High  Court.  Therefore we exclude that  evidence  from consideration. We  next come to the evidence of PWs 8, 11 and 12.  PW 8  is one  Kastura.   His  evidence is that  some  days  prior  to October  1, 1962 the first appellant came and. took  him  to the  outpost.   There the second appellant  accused  him  of

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being  in  the habit of visiting Pakistan.  When  he  denied that   charge  he  was  asked  to  kneel  down.    Sometimes thereafter he was asked to pay Rs. 100.  As he had no  money he  was kept in the outpost during the night.  On  the  next morning Imam PW 11 and Bhakha PW: 2 happened to come to  the post.   PWs. 8, 11 and 12 pleaded with the second  appellant to  accept a lesser sum.  Ultimately, the  second  appellant agreed to receive Rs. 50.  Thereafter PW 1 1 was sent to the house  of  PW  8  to sell his goats- and  get  Rs.  50.   He accordingly  went to the village,, sold some goats of  PW  8 and’  got  Rs. 50.  During this incident, according  to  the evidence  of  the above witnesses, the first  appellant  was also present in the outpost. Sadiq PW 13 speaks to the fact that about nine days prior to his  arrest the first appellant went to his house and  took- him  to the outpost saying that he was wanted by the  second appellant.  There he was falsely accused of selling goats in Pakistan;  then, he was beaten by the second  appellant  and thereafter  he  was. told by the second  appellant  that  he should pay him Rs. 100.  As, 194 he could not make the payment in question he was kept in the outpost that night.  Next day his brother Gafoor came  there and  paid  a sum of Rs. 80 to the second appellant.   It  is only  thereafter  he was allowed to go back.  At  about  the time  when money was extorted from PW 13, Alladin PW 14  was said  to have been in the outpost.  PW 14  corroborated  the testimony  of: PW 13.  PW 14 has his own  grievance  against the. appellants.  His case was that about 25 days prior  his arrest, the first appellant ,came to his field and  demanded his  camel for cultivation of his field.  But as he  himself required the camel he refused to give it. After about 8 or 9 days  both the appellants came to his field  .and,  forcibly took  him  to the outpost and beat  him.-  Thereafter,  they demanded from him a sum of Rs. 60 and he was told that if he did  not  pay that amount, lie would be prosecuted  in  some false case. Next we come to the evidence of Murad PW 7 and Subhan PW  9. The evidence of these two witnesses was that about seven  or eight  days before the first appellant was arrested  .  both the appellants came to their houses in the village Talab-Ka- Par  and took them to the outpost.  There they were made  to kneel down.  Further they were falsely accused of  indulging in  smuggling ,of goods and visiting Pakistan without  valid permits.   Thereafter Rs.80 were demanded from PW 7 and  Rs. 200  from PW 9. Ultimately it was settled that PW  7  should pay  Rs. 50 and PW 9 Rs. 150.  By that time Kalla PW 3  came there.  He was sent to .the house of those witnesses to  get money.  He got Rs. 40 for PW 7 and Rs. 130 for PW 9.  Those, amounts were paid to the second appellant. Next we come to the evidence of Minimal PW 10.  His  version was that in July or August 1962 his brother-in-law died  and in  that  connection a feast had been  arranged.   When  the feast  was about to commence the first appellant came  there and  told him that unless he paid a sum of Rs. 100 he  would not be allowed to have the feast.  As he refused to pay that money  he  was  taken  to the  outpost.   There  the  second appellant again demanded from him Rs. 100.  Ultimately PW 10 paid the second appellant Rs. 30. Lastly we come to the evidence of Nemichand PW 15.  His case was that about a month before the first appellant was  trap- ped  he had come to his shop and told him that he should  go and  meet the second appellant at the outpost.   Accordingly he went to the outpost.  There the second appellant  accused him  of indulging in black-marketing and demanded  from  him

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Rs. 100, and he was told that if he did not pay that  amount he  would  be  beaten and  prosecuted.   Ultimately  it  was settled that he should 195 pay  Rs. 50.  Thereafter he was allowed to go home  and  get the money.  On the next day he went to the outpost and  paid Rs. 50 to the second appellant. The evidence of all the witnesses mentioned above  excepting PW 18 has been accepted by the trial court as well as by the appellate court, and we see no reason to differ from them. This  takes us to the question whether on the basis  of  the evidence  accepted  by  the High Court both or  any  of  the appellants  could in law have been convicted for any of  the offences with which they were charged. The  first  appellant  was  a  subordinate  of  the   second appellant.   From  the evidence referred to  earlier  it  is clear that both the appellants were acting together.  It  is obvious that the second appellant was mainly responsible for the  extortions  complained of and the first  appellant  was aiding  him in his activities.  Hence there was no  need  to charge the appellants under s. 120 B, IPC even in respect of the  amount received from PW 1. The evidence adduced by  the prosecution  shows  that  every  single  act  complained  of amounts to an extortion in law. Before  an  offence is held to, fall under s. 161  IPC,  the following requirements have to be satisfied: (1) the accused at the time of the offence was, or expected to be, a  public servant,  (2)  that he accepted, or obtained, or  agreed  to accept,   or  attempted  to  obtain  from  some   person   a gratification,  (3) that such gratification was not a  legal remuneration  due  to  him, and (4)  that  he  accepted  the gratification  in  question as a motive or reward,  for  (a) doing  or forbearing to do an official act; or (b)  showing, or  forbearing to show favour or disfavour to. some  one  in the exercise of-his official functions; or (c) rendering, or attempting to render, any service or disservice to some one, with  the Central or any State Government or  Parliament  or the  Legislature of any State, or with any  public  servant. As  mentioned earlier admittedly the appellants were  public servants.   It is also established that they  obtained  from the   several  witnesses  examined  in  this  case   illegal gratification.   The  word ’obtain’ is a  strong  word.   It includes  also things received by extortion.  But can it  be said that they obtained the gratifications in question as  a motive  or  reward  for doing or for  forbearing  to  do  an official act or for showing or for forbearing to show favour or  disfavour to the persons in question in the exercise  of their  official functions.  The evidence on  record  clearly shows  that  neither the appellants intended  to,  show  any official favour to the persons from whom they extorted money or valuable things, nor those persons expected any  official favour from them., They paid the amounts in question  solely with a view to avoid being ill-treated 196 or  harassed.  The scope of s. 161, IPC had been  considered by this Court in State of Ajmer v. Shivji Lal(1) as well  as in  State  Of Uttar Pradesh v. Kuljas  Rai(2)..  Though  the former  decision.  was overruled in certain  respects  by  a later decision of this Court to which reference will be made hereinafter, that part of ’the decision which considered the requirements  of  s.  161  I.P.C.  was  not  differed  from. Therefore  it is difficult to hold that the acts  complained against  the appellants can be held to  constitute  offences under s. 161, IPC. Before  an  offence can, be held to come within cl.  (a)  of

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subs.  1  of s. 5 of the Prevention of Corruption  Act,  the requirements  of  s. 161, IPC have to be satisfied..  If  an offence  does  not fall under s. 161, IPC. it  cannot  come. within s. 5(1)(a) of the Prevention of Corruption Act. But so far as cl. (d) of sub-s.  1 of s. 5 of the Prevention of  Corruption Act is concerned, that stands on a  different footing.  At the relevant time that sub-section read               "A  public  servant  is  said  to  commit  the               offence   Of   criminal  misconduct   in   the               discharge of his duty-                .............................               (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. Therefore if it is proved that the appellants had by illegal means  or  by  otherwise abusing their  position  as  public servants  obtained  for themselves money or  other  valuable things, then, they can be said to have committed the offence of  criminal misconduct in the discharge of  their  official duties.  To bring home an offence under s. 5 (1) (d), it  is not necessary to prove that the acts complained of were done by the appellants in the discharge of their official duties. The  contrary view taken by this Court in State of Ajmer  v. Shivji  Lal(1)  was over-ruled by this Court  in  Dhaneshwar Narain Saxena v. The Delhi Administration(3).  In that  case it  was  observed that the words occurring in s.  5  of  the Prevention of Corruption Act "in the discharge of his  duty" do  not  constitute an essential ingredient of  the  offence under  s. 5 (1) (d), the ingredients of that  offence  being (1) that the accused should be a public servant, (2) that he should use some corrupt or illegal means or otherwise  abuse his position as- a (1) (1959) Supp. 2 S.C.R. 739. (2)  Cr.  Appeal 177 of 1960, decided on 22-8-62. (3)  A.I.R. 1962 S.C. 195. 197 public; servant; (3) that he should have obtained a valuable thing  or  pecuniary advantage, and (4) for himself  or  any other person.  That decision was followed in State of  Uttar Pradesh v.Kuljas Rai(1).  It must be noted that clause 5 (1) (d) is much wider in scope than clause 5 ( 1 ) (a). Therefore,  the conviction of the, Appellants under S.  5(1) (d)  read with s. 5(2) of the Prevention of  Corruption  Act stands on a firm ground. It  was contended on behalf of the State that if this  Court holds  that the conviction of the appellants under  s.  161, IPC and under s.  5 (1 ) (a) of the Prevention of Corruption Act  is,, not sustainable, their conviction may, be  altered to one under S. 384, IPC It was said that such an alteration cannot be said to prejudice the appellants though they  were no charged and tried for that offence.  We have not  thought it  necessary to examine that question as in any  event  the appellants  are liable to be convicted under s. 5  (2)  read with s. 5 ( 1 ) (d) of the Prevention of Corruption Act. In  the  result we partly allow the appeal  and  acquit  the appellants under ss. 120 B and 161, IPC, as well as under s. 5 (2)     read   with  S.  5(1)(a)  of  the  Prevention   of Corruption Act. The second  appellants conviction  under  s. 5(2) read with s. 5 (1) (d) of the Prevention of  Corruption Act  is  sustained and for that offence the sentence  of  18 months  rigorous  imprisonment and a fine of  Rs.  200,  ’in default  further imprisonment of two months imposed  by  the High  Court  is  affirmed.   The  conviction  of  the  first

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appellant is altered to one under s. 5(2) of the  Prevention of Corruption Act read with s. 114, IPC and for that offence he  is  sentenced to suffer rigorous  imprisonment  for  one year. Y.P.                      Appeal   partly  allowed. (1) Cr. Appeal 177 of 1960, decided on 22-8-62. 198