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PETITIONER: R. G. JACOB

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 28/08/1962

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS

CITATION:  1963 AIR  550            1963 SCR  (3) 800  CITATOR INFO :  R          1972 SC2284  (19)  RF         1986 SC2045  (3)

ACT: Cirminal Trial-Public Servant accepting valuable things  for securing  export permit-’Subordinate’, Meaning  of-If  means functionally subordinate--Indian Penal Code, 1860 (Act 45 of 1860), s. 165.

HEADNOTE: The word ’subordinate’ used without any qualification in  s. 165 of the Indian Penal Code indicates that the  Legislature intended to include within its ambit also such  subordinates as  had  no  connection with the functions  with  which  the proceeding  or business was concerned.  That word cannot  be read as functionally subordinate’ so as to defeat the inten- tion and policy of the Legislature. Consequently  where an Assistant Controller of  Imports  was prosecuted  for  accepting valuable things  for  helping  an applicant, who had appealed to the joint Chief Controller of Imports and Exports. to secure a permit to export goods  and was  convicted under s. 165 of the Indian Penal Code by  the special  Judge and such conviction was affirmed by the  High Court  and the contention on appeal to this Court was  that, although the appellant might be administratively subordinate to the joint Chief Controller of Imports and Exports, he was not  functionally  so,  having nothing  to  do  with  export permits, and was not, therefore, liable under the section. Held, that the appellant was subordinate to the joint  Chief Controller of Imports and Exports within the meaning of  the section and had been rightly convicted.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 116 of 1961. Appeal  from the judgment and order dated December 14,  1960 of the Madras High Court in Criminal Appeal No. 933 of 1959. 801 S.   Mohan   Kumar  Mangalam,  R.  Ganapathy  Iyer  and   G.

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Gopalakrishan, for the appellant. C.   K. Daphtary Solicitor General of India, D, R.   Prem,  R.  N.  Sachthey  and  P.  D.  Menon,  for   the respondent. 1962.  August 28.  The Judgement of the Court was  delivered by DAS   GUPTA,  J. The  appellant  who  was  the   Assistant Controller  of  Imports  in the office of  the  Joint  Chief Controller of Imports and Exports, Madras, was tried by  the Special judge, Madras on three charges-one under section 161 of  the Indian Penal Code, another under s. 5 (1)  (d)  read with  s. 5 (2) of the Prevention of Corruption Act  and  the third-which was added later-under s. 165 of the Indian Penal Code.   He  was acquitted of the first two charges  but  was convicted  of  an offence under s. 165 of the  Indian  Penal Code  and sentenced to rigorous imprisonment for  one  year. He appealed to the High Court of Madras; but the High  Court dismissed  the appeal and affirmed the order of  conviction, but  reduced  the sentence to that of fine of Rs.  400/-  in default  rigorous imprisonment for three months.   The  High Court  has however granted a certificate under  Article  134 (1)  (c)  of the constitution that this was a fit  case  for appeal to this Court.  On the basis of that certificate this appeal has been filed. This prosecution case is that one K. R. Naidu (who has  been examined  as  prosecution witness No. 8) a  merchant  having export  business in onions, chillies and groundnuts made  on January 21, 1958, an application for export of chillies.  He was  informed  by  a letter dated March 5,  1958,  that  the application had been rejected.  This letter was purported to be signed by the Assistant Controller 802 of  Exports  for the Joint Chief Controller of  Imports  and Exports.  Arumugam (prosecution witness No. 1) who bad  been acting  on  behalf of Naidu in this matter then  sought  the assistance of this appellant for getting a permit for Naidu. When  he  met  the  appellant later  the  same  evening  the appellant told him that an appeal would have to be preferred against the rejection order to the Joint Chief Controller of Imports   and  Exports,  Rangaswamy.   The  appellant   also proposed  that  if he was given two bags of cement  and  Rs. 50/-he  would use his influence and help him to get him  the permit.   Arumugam agreed and the appellant gave Arumugam  a sheet  of paper stating the address to which the cement  was to  be sent.  On the next day the memorandum of  appeal  was sent  by  registered  post to Rangaswamy,  the  Joint  Chief Controller.    The   same  day  Arumugam  saw   the   Deputy Superintendent, Special Police Establishment, and gave him a complaint  in writing mentioning all the facts.  A trap  was thereafter  laid with a view to catch the appellant  in  the actual act of accepting the bribe.  On the evening of  April 3,  1958, Arumugam went to the house of the  appellant  with two  cement bags which had been marked by  putting  attested cards  inside  the  bags and Rs. 50/in  currency  notes  the number  of which were noted by the Deputy Superintendent  of Police.   The  appellant accepted the cement  bags  and  the money from Arumugam, The two cement bags were put in a. room of  the building as directed by the appellant.   Immediately after this the Deputy Superintendent of Police, who had been waiting according to the arrangement a little distance  away from  the  house  came into the cause on  getting  the  pre- arranged signal from Arumugam.  He revealed his identity  to the appellant and asked him to produce the money and  cement bags.   The  accused then took him upstairs  and  opened  an Almirah with his own keys

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803 and produced from inside the Almirah the very notes of which the  number had been taken by the Deputy  Superintendent  of Police.   The  cement bags with the marks inside  were  also found down-stairs. The  accused pleaded not guilty.  He admits the recovery  of the  cement bags and the currency notes from his  house  but pleads that neither of these have been given to him and that the  notes were found on the table and the cement bags  were in  the  hall nearby; and these had been kept in  his  house without  his knowledge or consent by Arumugam who wanted  to make  up  a false case against him.  According  to  him  the whole  story  of  his being approached by  Arumugam  or  his asking  for  cement  bags or money, or  accepting  them,  is entirely false. The  Special  Judge  as also the  High  Court  accepted  the prosecution  evidence in these matters as true and  rejected the  defence version and Mr. Kumaramangalam has rightly  not tried  to  challenge before us the findings of  facts.   His principal  contention  in  support of  the  appeal  is  that assuming  the findings to be true, an offence under s.  165, Indian Penal Code had not been established.  This contention is based mainly on the fact that the appellant was Assistant Controller  of Imports only and had no connection  with  the issue  of export permits.  According to the learned  Counsel he was not therefore "subordinate" to the Joint Chief  Cont- roller  of Imports and Exports to whom the  appeal  petition had  been  filed and consequently his acceptance  of  cement bags  from  Arumugam  did not amount  to  an  offence  under section  165 of the Indian Penal Code.  Section 165  of  the Indian Penal Code runs thus:-               "165.    Whoever,  being  a  public   servant,               accepts  or  obtains, or agrees to  accept  or               attempts to obtain, for himself or for any               804               other  person,  any  valuable  thing   without               consideration,  or for a  consideration  which               knows to be inadequate from any person whom he               knows  to have been or to be, or to be  likely               to be concerned in any proceeding or  business               transacted  or about to be transacted by  such               public servant, or having arty connection with               the  official functions of himself or  of  any               public  servant to whom he is subordinate,  or               from any person whom he knows to be interested               in or related to the person so concerned shall               be   punished  with  imprisonment  of   either               description  for  a term which may  extend  to               three years, or with fine, or with both." What  has  been  proved  in this case  is  ;  (1)  that  the appellant,  a public servant, accepted some valuable  things from  Arumugam  without  consideration.  (2)  Arumugam   was concerned  in  an  appeal  against  an  order  rejecting  an application  for  export licence. (3)  this  proceeding  bad connection  with the official functions of the  Joint  Chief Controller of Imports and Exports who was a public  servant. (4)  The appellant knew that Arumugam was concerned in  this proceeding  having connection with the official function  of the  Joint Chief Controller of Imports and Exports. (5)  The appellant   was   in  respect  of  his   official   position subordinate  to  the Joint Chief Controller of  Imports  and Exports.   It may be mentioned that it is not disputed  that at the relevant time, viz., March, 1958, the accused was the Assistant  Controller of Imports only and had nothing to  do with export permits.

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All the ingredients of an offence under s.165, Indian  Penal Code, appear therefore to have been proved prima facie.  Mr. Kumaramangalam’s contention is that the fifth fact mentioned above, viz., that the appellant was in respect of his                             805 official   position   ’subordinate"  to  the   Joint   Chief Controller  of  Imports  and Export  is  not  sufficient  to establish his "subordination" to the Joint Chief  Controller of Imports and Exports within the meaning of s. 165. Subordination of public servants to other public servants is a   well   known   and   inevitable   feature   of    public administration.   And,  when a question arises in  any  case whether  a  public  servant A is  a  subordinate  to  public servant  B  it presents little difficulty.   Thus,  in  that branch of the State’s public administration which deals with regulation of Imports into and exports from India, one would state  without  difficulty that an Assistant  Controller  of Imports  is "subordinate" to the Joint Chief  Controller  of Imports  and  Exports; so also the Assistant  Controller  of Exports  is  subordinate to the Joint  Chief  Controller  of Imports and Exports; but the Assistant Controller of Exports is  not subordinate to the Assistant Controller of  Imports; nor is the Assistant Controller of Import subordinate to the Assistant  Controller of Exports.  According to the  learned Counsel,  in  s.  165  the  word  "subordinate"  should   be interpreted as "functionally subordinate".  He contends that while the appellant was administratively subordinate to  the Joint  Chief  Controller of Imports and Exports he  was  not "functionally  subordinate"  to that officer;  as  Assistant Controller of Imports, he had nothing to do with the  matter of  appeal  against  the rejection of  the  application  for exports,  so,  he was not "subordinate" to the  Joint  Chief Controller, within the meaning of the section. The  use  of the words "functionally subordinate"  does  not appear to be very happy; as in every case of  administrative subordination there is also subordination in respect of some functions at least.  What the learned Counsel really means 806 by  his argument is that "subordinate" in the section  means "subordinate  in  respect of those very  official  functions with  which the business or transaction has connection."  In support  of his arguments he has drawn our attention to  the provisions of a. 161, s. 162 and s. 163 of the Indian  Penal Code  and  he points out that s. 161  makes  punishable  the taking  by a public servant of gratification in  respect  of his  officials act or his official functions; s.  162  makes punishable  the  taking of gratification by any  person  for inducing by corrupt or illegal means a public servant to  do or  not  to do some thing in connection  with  his  official functions;   s.   163  makes  punishable   the   taking   of gratification by any person for inducing by the exercise  of personal  influence  a  public servant to do or  not  to  do something   in  connection  with  his  officials   function. Section  164  it  may  be  mentioned  makes  punishable  the abetment of offences under s. 162 and 163.  In this context, the learned Counsel argues, the words in s. 165 should be so interpreted  as  to  make punishable  only  such  taking  of gratification  by  a  public  servant as  has  in  some  way connection with his own official functions, and so he argues "subordinate"  in  the  section  should  be  interpreted  as suggested  by  him.  To a emphasise his point he  gave  this illustration , X the Collector of a District is dealing with a  matter of assessment of revenue on A’s application.  Y  a office  Peon of a department under the Collector  which  has nothing  to  do with revenue matters accepts  money  from  A

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knowing  that  A has such business with X; Y  will  then  be committing  an  offence under is. 165 even though Y  has  no connection whatsoever with the functions of X in respect  of A’s application. It  will  perhaps  not  often happen that  Y  will  have  an opportunity of accepting money from A                             807 when  he has not even a plausible chance of doing  something for  A  in connection with the application.   But,  assuming that  he has that opportunity and does accept the  money  as stated  in  the  illustration  above,  we  cannot  see  what untoward  consequences  will ensue if Y’s  conduct  is  made punishable  under s. 165.  It has to be noticed that s.  165 has been so worded as to cover cases of corruption which  do not come within s. 161 or a. 162 or s. 163.  When with  that intention the legislature has used the word "subordinate" in s. 165 without any limitation there is no justification  for reading  into  the  word the  limitation  suggested  by  the learned  Counsel  by  the words "in respect  of  those  very functions".   It is plain that the interpretation  suggested by  Mr. Kumaramangalam needs the addition of some  words  in the  section, and that is clearly not permissible.   By  the use of the word "subordinate" without any qualifying  words, the  legislature has expressed its legislative intention  of making  punishable  such  subordinates  also  who  have   no connection  with  the function with which  the  business  or transaction   is  concerned.   To  limit  the   meaning   of "subordinate"  in  the section as suggested by  the  learned Counsel  would be defeating that legislative  intention  and laying down a different legislative policy.  This the  Court has  no power to do.  The argument that "subordinate"  means something-more  than  "administratively  subordinate"   must therefore  be rejected, The appellant has therefore  rightly been held to be "Subordinate" to the Joint Chief Controller, even  though the appellant had no functions to discharge  in connection with the appeal before the Joint Chief Controller of Imports and Exports. Mr.  Kumaramangalam then wanted to argue that the facts  and circumstances of the case showed that Arumugam was a  police informer and that he was really not concerned in the  appeal before the 808 Joint  Chief Controller of Imports and Exports.   Therefore, he  points  out,  it would be reasonable  to  hold  that  no offence  under s. 165 had been committed by his client.   We find  however  that the High Court granted  the  certificate only  on the ground that the question raised by the  Counsel as  regards the interpretation of the word "subordinate"  in the section was a substantial question of law, which was not covered by any specific authority and was also a question of public importance.  In view of this we do not think it right to  investigate the further question sought to be raised  by Mr. Kumaramangalam in this case and we have not allowed  him to argue that matter. We  think  it proper to add that we have not  been  able  to appreciate why the High Court thought it necessary to reduce the sentence imposed by the Trial Court. The appeal is accordingly dismissed. Appeal dismissed. 809