29 October 1954
Supreme Court


Case number: Appeal (crl.) 39 of 1954






DATE OF JUDGMENT: 29/10/1954


CITATION:  1955 AIR   70            1955 SCR  (1) 965  CITATOR INFO :  R          1968 SC1323  (8)  F          1968 SC1419  (4)  R          1976 SC1497  (21)  R          1982 SC1407  (23)

ACT: Indian Penal Code (Act XLV of 1860), s. 161-Accused’s  power or  intention  to  do  the  official   act-Relevancy-Charge- Prevention  of Corruption Act (II of 1947), s. 6(c)  (as  it existed   prior   to  August   12,1952)   --Indian   Railway Establishment Code Vol.  I (1951 Ed.), rule 1705(c)--Test of sanction.

HEADNOTE: When  a public servant is charged under section 161  of  the Indian  Penal  Code,  and it is  alleged  that  the  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 as public servant was capable  of doing or intended to do such an act. In a case where the illegal gratification is alleged to have been  received  by  the  accused as  a  public  servant  for influencing  some superior officer to do an act, the  charge framed  against such accused under section 161 of  the  Code need  not specify the particular superior officer sought  to be so influenced. It  view of article 311(1) of the Constitution of India  and rule  1705(c)  of  the Indian  Railway  Establishment  Code, Volume 1 (1951 Edition) a sanction under section 6(c) of the Prevention  of Corruption Act, 1947 (as it existed prior  to August  12, 1952) may be given either by the very  authority who  appointed the public servant or by an authority who  is directly  superior to such appointing authority in the  same department.  But such sanction is also legal if it is  given by  an  authority  who is equal in rank or  grade  with  the appointing authority.  Sanction is invalid if it is given by one  who  is  subordinate to or lower  than  the  appointing authority.



JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 39  of 1954. Appeal  by Special Leave from the Judgment and  Order  dated the  5th May, 1953, of the Lucknow Bench of  Allahabad  High Court  in Criminal Revision No. 200 of 1952, arising out  of the  Judgment  and Order, dated the 17th May, 1952,  of  the Special  Magistrate,  AntiCorruption for  Uttar  Pradesh  at Lucknow in Case No. 40 of 1951. Hardyal Hardy (K.  L. Arora and S. D. Sekhri, with him)  for the appellant. 123 966 C. P. Lal for the respondent. 1954.  October 29.  The Judgment of the Court was  delivered by JAGANNADHADAS  J.-The appellant in this case was a clerk  in the  office of the Running Shed Foreman of -the East  Indian Railway  at Kanpur.  He was convicted under section  161  of the Indian Penal Code and sentenced to rigorous imprisonment for one year and nine months, and also to a fine of Rs. 200. The conviction and sentence have been upheld by the Sessions Judge  on  appeal and by the High Court  in  revision.   The charge against the appellant was that on the 6th of January, 1951, he accepted illegal gratification of Rs. 150 from  the complainant,   Gurphekan-a   retrenched   cleaner   in   the Locomotive Department of the Railway, examined as P.W.  2-as a  motive  for getting him re-employed in  the  Railway  (by arranging  with  some  superior  officer).   There  was   an alternative  charge  under section 162 of the  Indian  Penal Code  but it is no longer necessary to notice it  since  the conviction  is for the main charge under section 161 of  the Indian Penal Code.  The Special Police Establishment  having received information of the demand of the bribe arranged for a  trap  and caught the appellant just at the time  when  he received the sum of Rs. 150 from the complainant and  seized the amount.  The appellant admitted the receipt of the money but denied that he demanded or accepted it as a bribe.   His case was that the complainant had previously borrowed  money from  him and that this money was paid in discharge  of  the debt.   The  Courts  below have  rejected  the  defence  and accepted  the  prosecution  case  and  conviction   followed thereupon. Learned counsel for the appellant has tried to persuade  us, with  reference to the evidence in the case, that  the  view taken   by  the  Courts  below  is  unsustainable.   It   is unnecessary  to notice this argument in any  detail  because this is an appeal on special leave and nothing so  seriously wrong with the findings of fact have been shown, which  call for interference by this 967 Court.  It is sufficient to notice the main legal  arguments that have been advanced. It is pointed out that the appellant though employed in  the Railway  was not himself a person who was in a  position  to give  a job to the complainant nor is it shown that  he  had any  intimacy or influence with any particular official  who could  give a job.  It is urged therefore that the  offence, if  any,  committed by the appellant could only  be  one  of cheating and not the receiving of a bribe.  This argument is without  any substance.  By the terms of section 161 of  the Indian  Penal  Code  a person who is a  public  servant  and accepts  illegal  gratification as a  motive  for  rendering service,  with any public servant as such, is guilty of  the offence  thereunder.   To constitute an offence  under  this



section it is enough if the public servant who receives  the money takes it by holding out that he will render assistance to  the giver "with any other public servant" and the  giver gives  the  money  under that belief.  It may  be  that  the receiver of the money is in fact not in a position to render such  assistance and is even aware of it.  He may  not  even have intended to do what he holds himself out as capable  of doing.  He may accordingly be guilty of cheating.  None  the less  he is guilty of the offence under section 161  of  the Indian   Penal  Code.   This  is  clear  from   the   fourth explanation to section 161 of the Indian Penal Code which is as follows :    "A motive or reward for doing.’ A person  who  receives a gratification as a motive for doing what he does not  intend to do (or as a reward for doing what he has not done)  comes within these words.  " Illustration  (c)  to section 161 of the Indian  Penal  Code which runs as follows also elucidates this: A,  a public servant, induces Z erroneously to believe  that A’s influence with the Government has obtained a title for Z and  thus  induces Z to give A money as a reward  for,  this service.   A  has  committed the  offence  defined  in  this section.  " Thus   where   a  public  servant   who   receives   illegal gratification as a motive for doing or procuring an 968 official  act  whether or not he is capable of doing  it  or whether  or  not  he intends to do it he  is  quite  clearly within the ambit of section 161 of the Indian Penal Code. The next contention that has been raised is that the  charge does  not  specify  the particular public  servant  who  was intended to be influenced by the appellant in  consideration of his receiving the money.  It is urged that section 161 of the Indian Penal Code would not apply to such a case.  It is suggested  that  the  phrase "with any  public  servant"  in section  161  of  the Indian Penal Code  must  relate  to  a specified public servant.  In the present case the  evidence of the complainant and the finding of the High Court is that the  appellant "purported to attempt rendering of a  service to  the complainant with another public servant,  viz.,  the Head-clerk at Allahabad." But even apart from such a finding there  is nothing in the terms of section 161 of the  Indian Penal  Code requiring that the public  servant  contemplated therein  must be a specified public servant.   The  material portion of the section is as follows: "  for  rendering  or attempting to render  any  service  or disservice  to  any person, with the Central  or  Provincial Government  or Legislature, or with any public  ,servant  as such.  " The   phrase  "Central  or  any  Provincial  Government   or Legislature"  does not contemplate any specified  individual or  individuals.   There is no reason why  the  phrase  "any public servant" used in the same context should be taken  to mean any specified public servant.  The gist of the  offence under section 161 of the Indian Penal Code (in so far as  it is  relevant  here) is the receipt by a  public  servant  of illegal gratification as a motive or reward for the abuse of official position or function, by the receiver himself or by some  other  public  servant at  his  instance.   There  is, therefore, no substance in this argument. The  only serious argument that has been advanced and  which requires  a little closer examination is that there  was  no valid sanction for the prosecution.  There is no doubt  that this is a case to which the Prevention 969



of  Corruption Act, 1947 would apply and that by  virtue  of section  6(c) thereof the prosecution requires the  sanction of the authority "competent to remove the appellant from his office." It is urged that this requirement was not satisfied on the facts of this case.  It has been pointed out that the appellant  is a civil servant of the, Indian Union and  that by  virtue of article 311 (1) of the Constitution he  cannot be  removed by an authority subordinate to that by which  he was  appointed.  This appears also to be the position  under rule  1705(c)  of  the Indian  Railway  Establishment  Code, Volume 1 (1951 Edition) which is as follows: "No  railway servant shall be removed (or dismissed)  by  an authority  lower than that by which he was appointed to  the post held by him substantively". The  sanction for the prosecution in this case  was  granted under Ex. 10 by one Shri L. R. Gosain, Superintendent Power, East Indian Railway, Allahabad.  The order of appointment of the appellant, Ex-F, shows the Divisional Personnel Officer, East   Indian   Railways,  Allahabad,  as   the   appointing authority.   It may be mentioned that in the  appeal  before the  Sessions  Judge  a  contention  was  raised  that   the appointment  of  the  appellant  was in  fact  made  by  the Divisional Superintendent and that Ex.  F was only signed by the Divisional Personnel Officer on his behalf The  Sessions Judge  found  against this contention and the same  has  not been challenged before us.  What, however, is urged is  that the   Superintendent  Power  who  gave  the   sanction   for prosecution is not shown to be an officer not lower in  rank than   the  Divisional  Personnel  Officer  who   made   the appointment.   The  question  as  to  the  validity  of  the sanction  has been raised both before the Sessions Judge  as well   as  before  the  High  Court.   The  High  Court   in considering  the question appears to have  merely  satisfied itself  that  under  the Railway  Regulations,  Shri  L.  R. Gosain,  Superintendent  Power, was a  person  competent  to remove  the  appellant from his office within the  terms  of section  6  of the Prevention of Corruption Act.   The  High Court  does  not  appear  to  have  considered  the  further question whether or not the requirements of article 31 1 (1) of the Constitution and 970 rule  1705(c)  of the Railway Establishment Code  have  been satisfied with reference to the inter se position as between the authority who appointed the appellant and the  authority who sanctioned the prosecution.  The learned Sessions Judge, however,  has  recorded  a  categorical  finding  that   the Divisional  Personnel Officer is -in the same grade  as  the Superintendent  Power.   His  finding is  in  the  following terms: "I,  therefore,  hold  that the accused  could  be  and  was actually  appointed by the Divisional Personnel Officer  who is  in  the,  same grade as the  Superintendent  Power.   It cannot  therefore be said that the Superintendent Power  Mr. L.  R. Gosain was not authorised to remove the accused  from service  by virtue of rule 1705 and this  argument  advanced against  the  validity  of sanction, Ex. 10,  falls  to  the ground". Learned counsel for the appellant urged that the requirement both  of  the Constitution and of the rule  of  the  Railway Code,  contemplates that the authority competent  to  remove must be either the very authority who appointed or any other authority  directly superior to the appointing authority  in the same department, We do not think that this contention is tenable.   What the Constitution requires is that  a  person should not be removed by an authority subordinate to the one



by  whom he was appointed and what the rule in  the  Railway Code  prescribes  is  substantially  the  same,  viz.,  "the authority  competent to remove should not be lower than  the one  who made the appointment".  These provisions cannot  be read  as implying that the removal must be by the very  same authority  who  made  the  appointment  or  by  his   direct superior.   It appears to us to be enough that the  removing authority is of the same rank or grade.  In the present case it  does  not  appear into which particular  branch  of  the department the appellant was taken, in the first instance in 1944 under Ex.  F. But it is in the evidence of P.W. 4,  the Head-clerk  of the office of the Divisional  Superintendent, that  the  office of the Running Shed Foreman in  which  the appellant  was  a  clerk  in 1951  was  directly  under  the Superintendent Power.  He was obviously the most appropriate officer to grant the sanction, 971 provided  he  was  of a rank not less  than  the  Divisional Personnel Officer. Counsel  for the appellant urges that the evidence does  not support the finding of the learned Sessions Judge that  Shri L. R. Gosain, Superintendent Power, was of the same grade as the  Divisional Personnel Officer who made the  appointment. P.  W. 4 in his evidence, however, quite clearly  speaks  to this as follows: "Divisional  Superintendent  is  the  head  of  the   entire administrative  division.  The Divisional Personnel  Officer is  under him.  The Superintendent Power and  Superintendent Transport are also under him and also such other officers of the same rank............. Divisional Personnel Officer  and the  various Superintendents are officers of the same  rank. They are not subordinate to each other". It   has   been  commented  that  this  should   have   been substantiated  by  the  official records  and  not  by  oral evidence.  That no doubt would have been more  satisfactory. The  learned Sessions Judge on appeal, in order  to  satisfy himself,   has   referred   to  the   Classified   List   of Establishment of Indian Railways and the same has also  been produced  before  us for our information.  This  shows  that both   the   Divisional  Personnel  Officer   as   well   as Superintendent  Power  are  officers  in  the  senior  scale drawing  equal scales of pay, Rs. 625-50-1375.  This  is  an indication  that  they  are officers of the  same  rank  and confirms  the  oral evidence of P.W. 4 who being  the  Head- clerk  of  the Divisional Superintendent’s  office  must  be competent to speak about these matters.  It certainly cannot be  said that the Superintendent Power who has  granted  the sanction  for  prosecution  of the  appellant  at  the  time working  under him, is of a rank or a grade lower  than  the Divisional  Personnel Officer who appointed  the  appellant. This  matter  would probably have been  more  satisfactorily clarified  in  the trial -court if the question  as  to  the validity  of  the sanction had been raised not  merely  with reference  to the wording of section 6 of the Prevention  of Corruption  Act but also as read with article 311(1) of  the Constitution and rule 1705(c) of the Railway Establishment 972 Code.   On the material we are not satisfied that  there  is any reason to reverse the findings of the courts below  that the sanction is valid. All  the contentions raised before us are  untenable.   This appeal must accordingly fail.  It has been represented to us that  the appellant who has been refused bail by this  court when  leave to appeal was granted but has been granted  bail subsequently  has  already  served  nearly  six  months   of



imprisonment  in the intervening period, that he is a  young man and has lost his job.  In the circumstances we  consider that  it  is not necessary to send him back  to  jail.   The result,  therefore, is that the appeal is dismissed  subject to the modification of sentence of imprisonment.  We  reduce the   sentence  of  imprisonment  to  the   period   already undergone.  The sentence of fine stands. Appeal dismissed