09 March 1956
Supreme Court


Case number: Appeal (crl.) 43 of 1954





RESPONDENT: THE STATE OF DELHI(With connected appeal)

DATE OF JUDGMENT: 09/03/1956


CITATION:  1956 AIR  476            1956 SCR  182

ACT: Prevention of Corruption-"Obtains", Meaning of-Railway Servants,  if  public  servants-Laying  of  traps-Propriety- Prevention  of  Corruption  Act (II of  1947),  s.  5(1)(d), subsection (2)Indian Railways Act (IX of 1890) as amended by Act XVII of 1955. s. 137.

HEADNOTE: The  appellants  were  suspected of  exporting  potatoes  at concessional  rates on false declarations and Madan  Lal,  a Railway  Officer,  was deputed to assist the Police  in  the investigation.    In  course  of  that   investigation   the appellants  offered a bribe to Madan Lal for hushing up  the case  but  he refused to accept it.  As  they  persisted  in their  offer  a trap was laid in Madan Lal’s  house  and  it succeeded.   Two Police Officers and a Magistrate heard  the conversation from the adjoining room and saw the payment  of the bribe through a hole.  The appellants were charged under s. 120-B of the Indian Penal Code for criminal conspiracy to cause the offence of criminal misconduct punishable under s. 5(2) of Prevention of Corruption Act of 1947 to be committed by Madan Lal as also under that section read with s. 116  of the  Indian Penal Code.  They were convicted by the  Special Judge  on both the counts and their convictions were  upheld by  the  High Court.  The contentions on their  behalf  were that  s.  5(2) of the Prevention of Corruption  Act  had  no application to the facts of the case, that Madan Lal was not a public servant within the meaning of the Act and,  lastly, that the laying of the trap was an invitation to commit  the crime and afforded a good reason for    reduction   of   the sentences. Held,  that  the  contentions were  untenable  and  must  be rejected. That  the  word "obtains" occurring in clause  (d)  to  sub- section (1)    of  s. 5 of the Prevention of Corruption  Act does not exclude the idea of acceptance of a bribe on offer, and a public servant, whether he simply accepts a bribe,  or solicits   or  extorts  it,  thereby  obtains  a   pecuniary advantage  by abusing his position as a public  servant  and commits an offence under that section, any consideration  as



to  motive or reward for showing favour or  disfavour  being altogether irrelevant. That  as a result of the amendment of s. 137 of  the  Indian Railways  Act  by  the Amendment Act  of  1955  all  railway servants  have  become  public servants  not  only  for  the limited purposes of Ch.  IX 183 of the Indian Penal Code but generally under the  Prevention of Corruption Act.   That  it cannot be laid down as an absolute rule that  the laying of traps, especially in cases of this nature,  should be  deprecated  as constituting an invitation to  commit  an offence  and  an  offence thus detected does  not  lose  its gravity  thereby  so  as to call  for  a  lenient  sentence. Where, however, proper limits are exceeded and the money  to be  given  as bribe is supplied by the Police,  it  must  be severely condemned. Brennan v. Peek ([1947] 2 All E.R. 572), considered. Rao  Shiv Bahadur Singh and another v. The State of  Vindhya Pradesh ([1954] S.C.R. 1098) and Bamjanam Singh v. The State of Bihar, (Cr.  Appeal No. 81 of 1953), referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  Nos.  43 and 44 of 1954. Appeals  by special leave from the judgment and order  dated the  23rd  October 1953 of the Circuit Bench of  the  Punjab High  Court  at Delhi in Criminal Appeal No.  24-D  of  1953 arising out of the judgment and order dated the 26th  August 1953 of the Court of Special Judge, Delhi in Corruption Case No. 10 of 1953. Jai Gopal Sethi and Naunit Lal for the Appellants in Cr.  A. No. 43 of 1954. Pritam Singh Safeer, for the Appellant in Cr.  A. No. 44  of 1954. 0.   K. Daphtary, Solicitor-General of India, Porus A.   Mehta,  H.  R.  Khanna  and  P.  G.  Gokhale,  for  the respondent in both appeals. 1956.  March 9. The Judgment of the Court was delivered by CHANDRASEKHARA  AIYAR J.-Ram Kishan, the first appellant  in Criminal  Appeal No. 43, is a partnerproprietor in the  firm of  Kundan  Lal  Raja Ram of Saharanpur.   Prem  Chand,  the second appellant, is a partner in the firm of Narain  Prasad and  Prem  Chand  in the same place.   The  appellant,  Gian Chand, is the munim of a firm called Lekh Raj Shambhu  Nath. Some of the Saharanpur merchants, including 184 the  three  firms, were suspected of exporting  potatoes  at concessional  rates  on false declarations  or  certificates that  they  were seed potatoes.   Police  investigation  was proceeding  in  this connection at  Saharanpur  in  October, 1951.  Madan La], Railway Section Officer, examined as P. W. 4  in  the case, was deputed by the  Railway  Department  to assist    the   Special   Police   Establishment   in    the investigation.   Labhu  Ram, Railway Parcels  clerk  in  the Railway at Saharanpur, was deputed by the Station Master  to help the Police party.   It is alleged by the prosecution that during the  progress of the investigation, and after the houses and shops of  the accused persons had been searched, Ram Kishan took Labhu Ram aside and proposed that the three firms would be prepared to pay  Rs. 2,000 if the case was hushed up and that Madan  Lal was to be sounded.  Madan Lal refused to have anything to do



with such a proposal, but as the accused persisted in  their offer, it was ultimately decided that a trap should be  laid for  them at Delhi in Madan Lal’s house.  It is  unnecessary to narrate in detail the steps taken in connection with this plan.  The trap succeeded.  The three accused and Labhu  Ram were  at  Delhi on the morning of the 29th December  and  an increased sum of Rs. 5,000 was paid in the shape of currency notes  to Madan Lal by Ram Kishan while two police  officers and  a  Magistrate  were hearing the  conversation  from  an adjoining  room  and saw the payment through a hole  in  the door.   The  appellants  were charged under section 120-B  of  the Indian  Penal  Code  for criminal conspiracy  to  cause  the offence of criminal misconduct punishable under section 5(2) of  the  Prevention of Corruption Act (II  of  1947),  to’be committed  by Madan Lal, one of the  prosecution  witnesses. They  also  stood  charged with an offence  under  the  same section  read with section 116 of the Indian Penal Code  for abetting  the commission of criminal misconduct by the  said Madan Lal by paying him a sum of Rs. 5,000 by way of illegal gratification, which offence was, however, not committed  by him. 185 The  Special  Judge, Delhi, who tried the  case,  found  the appellants guilty under both heads of charges.  He sentenced Ram Kishan to three months’ rigorous imprisonment and a fine of  Rs.  5,000;  Prem Chand and Gian Chand  to  two  months’ rigorous imprisonment and a fine of Rs. 1,000 each.  He  did not  separately  convict or sentence the accused  under  the head  of  criminal conspiracy.  The High Court  reduced  the sentence  on Gian Chand to the term of imprisonment  already undergone and a fine of Rs. 500.  There  is no dispute that the amount was actually  paid  to Madan  Lal even though he said he could do nothing  to  help the  appellants, who begged him somehow to help them out  of the impending prosecution.  Evidence has also been given  by the  Magistrate and the police officers about the  talk  and the lower courts have found on the evidence of Madan Lal and Labhu  Ram and the eavesdroppers that Rs. 5,000 was  offered as  a bribe and not as compensation money in  settlement  of the amounts legitimately due to the Railway. An  attack  against the concurrent findings  of  fact  being wholly  futile  in  the circumstances, Mr.  Sethi,  for  the appellants  in Criminal Appeal No. 43 of 1954,  raised  some questions of law on their behalf.  His first point was  that section  5(2)  of the Prevention of Corruption  Act  (II  of 1947),  under which the accused were charged  and  convicted was  inapplicable to the facts.  His second point  was  that Madan Lal was not a " public servant" within the meaning  of the Act and hence the charge was unsustainable.  He urged as his third point that trap cases of this kind must be sternly discouraged  and  deprecated  by  the  courts,  inasmuch  as opportunities  for the commission of offences should not  be deliberately  created  so  that  people  who  yield  to  the temptations  of ordinary human nature might- be punished  as criminaIs;  in  other  words, crimes  committed  under  such circumstances  should  be regarded only as  venial  and  not heinous. To  appreciate the first contention it is necessary  to  pay attention to the language of section 5 of the 186 Prevention of Corruption Act, which is in these terms:-   "S. 5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty,-   (a)if he habitually accepts or obtains or agrees to accept



or attempts to obtain from any person for himself or for any other   person,   any  gratification   (other   than   legal remuneration) as a motive of reward such as is mentioned  in section 161 of the Indian Penal Code, or  (b)if he habitually accepts or obtains or agrees to  accept or  attempts to obtain for himself or for any other  person, any   valuable   thing  without  consideration  or   for   a consideration  which  he 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 him, or having any 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, or  (c)if  he  dishonestly or fraudulently  misappropriates  or otherwise converts for his own use any property entrusted to him  or under his control as a public servant or allows  any other person so to do, or (d)if  he,  by  corrupt or illegal  means  or  by  otherwise abusing  his  position  as a  public  servant,  obtains  for himself  or  for  any other person  any  valuable  thing  or pecuniary advantage.  (2)Any  public servant who commits criminal  misconduct  in the   discharge  of  his  duty  shall  be  punishable   with imprisonment for a term which may extend to seven years,  or with fine, or with both. (3) In any trial of an offence punishable under  sub-section (2) the fact that the accused person or any other person  on his  behalf is in possession, for which the  accused  person cannot  satisfactorily  account, of pecuniary  resources  or property disproportionate to his known sources of income may be 187 proved,  and on such proof the Court shall  presume,  unless the contrary is proved, that the accused person is guilty of criminal  misconduct in the discharge of his  official  duty and  his conviction therefor shall not be invalid by  reason only that it is based solely on such presumption.  (4)The provisions of this section shall be in addition  to, and not in derogation of any other law for the time being in force, and nothing contained herein shall exempt any  public servant  from  any proceeding which might, apart  from  this section, be instituted against him". The object of the Act as set out in the preamble is to  make more  effective provision for the prevention of bribery  and corruption.   A  new  offence of criminal  misconduct  by  a public servant is created by section 5 and under sub-section (2) it is made punishable with imprisonment for a term which may  extend to seven years or with fine or with  both.   The offence is of four kinds or categories.  Bribery as  defined in section 161 of the Indian Penal Code, if it is  habitual, falls  within clause (a).  Bribery of the kind specified  in section 165, if it is habitual, is comprised in clause  (b). Clause (c) contemplates criminal breach of trust by a  public servant and the wording takes us to section  405   of    the Code.  It is with clause (d) that we are really concerned in the present case. It was argued that the intention of the Act was to create by means  of clause (d) an offence different from a single  act of bribery and that it can come into play only when there is no  offer  to give an d acceptance of a bribe  by  a  public servant.   Before  it can be made applicable there  must  be proof, it was said, that the public servant adopted  corrupt or illegal means and thereby obtained for himself or for any



other person any valuable thing or pecuniary advantage.   To force  a bribe out of an unwilling person is different  from the  acceptance of a bribe from a voluntary giver  and  that before a charge under section 5(1), sub-clause (d) could  be sustained,  there must be threat or inducement,  or  promise proceeding  from the public servant or duress  or  extortion practised by 188 him  to  obtain  the  pecuniary  advantage.   This  argument proceeds  upon the footing that the Act seeks to create  and creates an independent offence distinct from simple bribery. In  one sense, this is no doubt true but it does not  follow that there is no overlapping of offences.  We have primarily to look at the language employed and give effect to it.  One class  of cases might arise where corrupt or  illegal  means are  adopted  or pursued by the public servant to  gain  for himself a pecuniary advantage.  The word "obtains", on which much  stress  was  laid  does  not  eliminate  the  idea  of acceptance  of what is given or offered to be given,  though it  connotes  also an element of effort on the part  of  the receiver.  One may accept money that is offered, or  solicit payment  of  a  bribe,  or extort the  bribe  by  threat  or coercion; in each case, he obtains a pecuniary advantage  by abusing  his  position  as  a  public  servant.   The   word ’obtains’ is used in sections 161 and 165 of the Penal Code. The other words     "corrupt or illegal means" find place in section162.    Apart  from "corrupt and illegal  means",  we have also the words "or by otherwise abusing his position as a  public servant".  If a man obtains a pecuniary  advantage by  the abuse of his position, he will be guilty under  sub- clause (d).  Sections 161, 162 and 163 refer to a motive  or a  reward for doing or forbearing to do  something,  showing favour or disfavour to any person, or for inducing such con- duct  by  the  exercise of personal influence.   It  is  not necessary for an offence under clause (d) to prove all this. It is enough if by abusing his position as a public  servant a man obtains for himself any pecuniary advantage,  entirely irrespective  of  motive  or reward for  showing  favour  or disfavour.   To a certain extent the ingredients of the  two offences  are  common,  no doubt.  But  to  go  further  and contend  that the offence as defined in clause (d) does  not come with. in the meaning of bribery is to place too  narrow a  construction  on the sub-clause.  A  speedy  disposal  of corruption  cases  by  special courts, the  benefit  of  in- vestigation  by  higher police authorities are some  of  the provisions intended for the protection of public    189 servants  prosecuted under the Act while they are subjected also  to increased disabilities, namely, a  longer term  of imprisonment as punishment and the  application  of the presumption referred to in subclause (3.).   In  support  of the contention that Madan Lal  was  not  a "public  servant", reference was made to section 137 of  the Indian  Railways Act.  Under the Act as it stood  before  it was  amended by Act XVII of 1955, every railway servant  was deemed,  to  be a public servant only for  the  purposes  of Chapter  IX of the Indian Penal Code and it was provided  by sub-clause (4) that "notwithstanding anything in section  21 of  the  Indian Penal Code a railway servant  shall  not  be deemed  to  be a public servant for any of the  purposes  of that  Code  except  those mentioned  in  Chapter  IX".   The amended sub-clause (1) is in these terms:   "Every  railway  servant, not being a  public  servant  as defined  in  section 21 of the Indian Penal  Code  shall  be deemed to be a public servant for the purposes of Chapter IX



and section 409 of that Code".   Sub-section  (4) has now been omitted.  The Prevention  of Corruption Act provides by section 2 that "For the  purposes of  this  Act, ’public servant’ means a  public  servant  as defined in section 21 of the Indian Penal Code".  The result is that before the amendment, railway servants were  treated as  public servants only for the purposes of Chapter  IX  of the Indian Penal Code but now as the result of the amendment all  railway servants have become public servants  not  only for the -limited purposes but generally under the Prevention of Corruption Act.   It  has  been  stated already that a  trap  was  laid  for catching the appellants and this circumstance, according  to the learned counsel for the appellants, should be taken into account in the matter of sentence.  In this connection,  our attention   was  invited  to  the  well-known  and   weighty observations  of  Lord Goddard, C.J. in Brennan  v.  peek(1) where his Lord- 25 (1)  [1947] 2 All E.R. 572. 190 ship expressed the hope that "the day is far distant when it will  become  a common practice in this country  for  police officers to be told to commit an offence themselves for  the purpose  of  getting evidence against someone;  if  they  do commit  offences  they  ought  also  to  be  convicted   and punished,  for the order of their superior would  afford  no defence".  While there is much to be said in support of  the opinion expressed by the learned Chief Justice, it cannot be laid down as an absolute rule that the laying of traps  must be prohibited on the ground that by so doing we hold out  an invitation for the commission of offences.  The detection of crime   may   become  difficult  if   intending   offenders, especially   in  cases  of  corruption  are  not   furnished opportunities  for  the display of  their  inclinations  and activities.   Where  matters  go  further  and  the   police authorities  themselves  supply the money to be given  as  a bribe,  severe condemnation of the method is merited, as  in Rao  Shiv Bahadur Singh and another v. The State of  Vindhya Pradesh(1).See   also  Ramjanam  Singh  v.  The  State,   of Bihar(2).   But whatever the ethics of the  question  ’might be,  there  is  no warrant for the view  that  the  offences committed  in  the course of traps are less grave  and  call only for lenient or nominal sentences.   For  the appellant in the connected Appeal No. 44  it  was urged  by his learned counsel that he was only a munim of  a firm  and  not  a  partner or  a  proprietor  as  the  other appellants  and that it could not be stated of him  that  he was interested in giving or attempting to give any bribe for hushing  up  the  case.  There is, however,  the  clear  and definite  evidence of Labhu Ram that Gian Chand  came  along with  the  appellants to him when the talk about  the  bribe took  place.   He  says  that on the  morning  of  the  29th December,  1951, the three accused who were staying  at  the Coronation  Hotel,  Delhi, told him that  they  had  amongst themselves  collected Rs. 5,000 to be paid to Madan Lal  and that  in the of Madan Lal all the three accused one  by  one made request to Madan Lal to hush up the potato case pending against them.  This (1) [1951] S.C.R. 1098. (2) Cr.  Appeal No. 81 of 1953.                                191 is  corroborated by Madan Lal who states that all the  three accused  said  that the money had been  subscribed  by  them jointly  and  requested him to accept the same and  get  the



case  withdrawn.  The case of Gian Chand does not  stand  on any different footing from that of the other appellants. The  convictions and sentences are confirmed and the  appeal will stand rejected.