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PETITIONER: V. K. SHARMA

       Vs.

RESPONDENT: THE STATE (DELHI ADMINISTRATION)

DATE OF JUDGMENT13/03/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A.

CITATION:  1975 AIR  899            1975 SCR  (3) 922  1975 SCC  (1) 784  CITATOR INFO :  F          1975 SC1432  (8)

ACT: Section, 4, 5(1)(a)(b)(d), 5(2) of Prevention of  Corruption Act.--Section 161 of I.P.C.--Presumption under Section 4  of the  Act--Competent  authority to  accord  sanction  whether should be competent to remove the accused from Govt. scrvice or from temporary office.

HEADNOTE: The  appellant  was  convicted under  section  5(2)  of  the Prevention  of Corruption Act read with section 5(1)(d)  and under  section  161 of the Indian Penal Code  by  the  Trial Court and was sentenced to rigorous imprisionment for  2-1/2 years.   He  was also sentenced to pay a fine of  Rs.  1000. The  Delhi High Court dismissed the appellant’s  appeal  but reduced the sentence from 21 years to 1 year and reduced the fine  from Rs. 1000 to Rs. 500.  The appellant was  a  Lower Division Clerk in the Central Secretariat.  He was appointed to  the temporary post of Rationing Inspector having a  lien on  the  post  in the Central  Secretariat.   The  appellant demanded a sum of Rs. 100 as bribe from an owner of a Ration Depot.   A  trap  was arranged and  currency  notes  bearing initials  were handed over to the appellant.  He was  caught red  handed.   The  appellant admitted the  receipt  of  the currency   notes   worth  Rs.  80/-.   He,   however,   gave explanation  of the receipt of the money.  Both  the  Courts below  rejected the explanation as untrue.. The counsel  for the appellant contended (1) That the sanctiongiven  by P. W. Iyer in  this  case was invalid and not in accordance with section 6of the Act. (2) That P.W. Arora had no authority to lay a trip to search the  person of the appellant or to make an investigation  in the case.  Whatever was done by him was in contravention  of section 5A of the Act. (3)  That neither of the charges under section 5 (1) (d)  of the Act or section 161 of the Penal Code was legally  proved against the appellant. HELD : While dismissing the appeal, The appellant had his lien in the Central Secretariat.   The Chief  Controller,  Ratioring would have been  competent  to remove the appellant from his office is Rationing  Inspector

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but not from his office in the Central Secretariat.   There- fore,  he  was  not  a  competent  authority  for  according sanction.   The sanction is to be accorded by  in  authority competent  to  remove the accused from  Government  service. [925 B] HELD  FURTHER : Even if the search is assumed to be  illegal it  is  of  no consequence in this  case.   The  presumption arising  under  section 4 of the Act when a  public  servant accepts  gratification other than legal remuneration is  not available  to the prosecution for proving the  charge  under section  5  of  the  Act with reference  to  clause  (d)  of subsection  (1)  of  section 5. The  presumption  arises  in regard to an offence under section 161 of the Penal Code  or to  an  offence under section 5 (1) (a) or  (b).   The  High Court  has elaborately and fully dealt with  the  submission made on behalf of the appellant.  There is no  justification to interfere with the order of the High Court. [925 D, E-G]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 73 of 1971. Appeal  by Special leave from the Judgment and  Order  dated the 7th September, 1970 of the Delhi High Court in  Criminal Appeal No. 85 of 1968. 923 K. B. Rohtagi, for the appellant. S. N. Anand and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by UNTWALIA,  J. The appellant in this appeal by special  leave has  been convicted under section 5(2) of the Prevention  of Corruption  Act, 194 Thereinafter called the Act, read  with section 5 (1) (d) and under section 161 of the Indian  Penal Code.   The Trial Judge sentenced the appellant  under  each count  to  undergo rigorous imprisonment  foe  2-1/2  years. Sentences to run concurrently.  He was also sentenced to pay a  fine  of Rs. 1,000/- under section 5(1) (d) of  the  Act. The  Delhi  High  Court  dismissed  the  appellant’s  appeal subject  to the reduction in his Sentences.  The  concurrent sentence of rigorous imprisonment for 2-2-1/2 years has been reduced to one year under each, count and the imposition  of fine of Rs. 1,000/- has been reduced to Rs. 500/-. The appellant was a quasi-permanent Lower Division Clerk  of the  Central Secretariat Clerical Service, Grade It and  was borne  on  the  cadre  of  Community  Development  and   Co- operation.   At  the  relevant  time  fie  was  working   as Inspector in the Rationing Department. P.W.3  Madan Lal was the owner of Rationing Depot in  Gandhi Nagar.   Delhi.   His complaint was that the  appellant  had been  demanding, Rs. 100/- per month by way of  bribe  under threat of implicating him in some false case.  The appellant came  to  the  said witness on  1.7.1967  and  demanded  the payment of Rs. 100/- that very day.  Madan Lal complained to P.W.  Gian  Chand  Sharma, a Municipal  Council  about  this demand  and  the  latter  called him to  his  house  in  the afternoon.    P.W.  S.L.  Arora,  Assistant  Controller   of Rationing  was called to the Councillor’s place.   He  after recording the statement of Madan Lal, initialled 8  currency notes  of  Rs. 10/- each, of the total value  of  Rs.  80/-. Shri  Arora  instructed Madan Lal to go to  the  appellant’s office alongwith two witnesses.  Madan Lal proceeded to  the appellant’s  office  with  P.W.5 Agya Ram  Batra  and  P.W.8 Deputy Lal Telwar.  He handed over the amount of Rs. 80/  to the appellant saying that he would pay Rs. 20/’- later  on.’

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On  the  giving of signal by Deputy Lal, Arora  arrived  and recovered  the  currency  notes  from  the  pocket  of   the appellant’s  bush-shirt.   The  amount  recovered  from  the appellant’s  bush-shirt  consisted of the  same  8  currency notes  which had been earlier initialled. by  Arora.   After obtaining   the  sanction  of  P.W.1  S.  P.  Iyer,   Deputy Secretary,  Department  of  Community  Development  and  Co- operation,  Government of India for the prosecution  of  the appellant and after investigation the police filed a challan against him under section 5(1)(d) of the Act and under  sec- tion 161 of the Penal Code. The appellant admitted the receipt of the sum of Rs. 80/- in the  8  currency notes from Madan Lal but  denied  to  have- received  the  sum  by way of illegal  gratification  or  by corrupt  or  illegal means abusing his  position  as  public servant.  He gave an interesting and curious explanation  of the receipt of Rs. 80/- by him from Madan Lal. 924 The   two  courts  below  relying  upon  the   evidence   of Prosecution Witnesses Madan Lal, Arora, Agya Ram and  Deputy Lal and rejecting the explanation of the appellant as untrue have convicted and sentenced him as stated above. Mr.  K. B. Rohtagi, learned counsel for the  appellant  made the following submissions to press for the acquittal of  his client               (1)  That the sanction given by P. W. Iyer  in               this  case was invalid and not  in  accordance               with section 6 of the Act.               (2) That P.W. Arora had no authority to lay  a               trap or to search the person of the  appellant               or  to  make  an investigation  in  the  case.               Whatever was done by him was in  contravention               of section 5A of the Act.               (3) That neither of the charges under  section               5(1)(d) of the Act or section 161 of the Penal               Code   was   legally   ,proved   against   the               appellant. The  High  Court has elaborately and fully  dealt  with  the submissions  made on behalf of the appellant many  of  which were  repeated  in this Court.  We see no  justification  to interfere with the order of the High Court. As already stated the appellant was a quasi-permanent  Lower Division Clerk of the Central Secretariat Clerical  Service. He  was borne in the cadre of Community Development and  Co- operation.   P.W.  Iyer  was the Deputy  Secretary  of  that Department.   He was competent to remove the appellant  from his  office within the meaning of clause (c) of  sub-section (1) of section 6 of the Act.  There was no dispute or debate in  that ’regard.  No question was put to him in his  cross- examination to challenge his authority.  But the  contention on  behalf  of the appellant has been that at  the  time  of commiting the alleged offence he was working in the post  of Rationing  Inspector  having  been appointed  to  that  post sometime  back,  The Chief Controller of Rationing  was  the proper  authority  who could remove him from that  post  and hence  he  was  the  only  competent  authority  to.  accord sanction  for the prosecution of the appellant.  We  see  no substance  in  this argument.  It is not clear  whether  the appellant came as a loanee to the Rationing Department  from the  Central  Secretariat.  What is, however, clear  on  the basis of the various documents considered in the judgment of the  High  Court is that the appellant was relieved  of  his duties  in  the Ministry of Community  Development  and  Co- operation, Government of India on the afternoon of the  20th November,  1965  and  thereafter he  joined  his  duties  as

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Rationing  Inspector on being appointed to that post  a  few days earlier on the 15th of November.  On a consideration of the relevant materials the High Court has rightly held  that the appellant was an employee of the Central Secretariat  at the time of the commission of the offence but was  appointed to  the temporary post of Inspector, Rationing.  We may  add that even assuming the argument put forward on behalf of 925 the  appellant  to be correct that he did not  come  to  the Rationing   Department   as  a  loanee  from   the   Central Secretariat, there is no difficulty in appreciating that he’ must have come temporarily to the Rationing Department  with his  lien  on  his post in  the  Central  Secretariat.   The purport of taking the sanction from the authority  competent to  remove a corrupt Government servant from his  office  is not only to remove him from his temporary office but to  re- move  him  from Government service.  The  Chief  Controller, Rationing would have been competent to remove the  appellant from  his  office as Rationing Inspector but  not  from  his office in the Central Secretariat.  That being so P.W.  Iyer in  our  judgment  was the  competent  authority  to  accord sanction for the prosecution of the appellant. The  second  submission made on behalf of the  appellant  is devoid of any substance. After  the  incident.  in  the office of the appellant in the afternoon ofthe   1st    of July, 1967 the First Information Report was lodged with  the police.  The investigation within the meaning of section  5A of the Act started thereafter.  No semblance of any argument could  be advanced before us to show that the  investigation made  thereafter  was  not  in  accordance  with  the   said provision  of  law.   Section 5A is not meant  to  clothe  a person  with authority or competency to lay a trap.   It  is not  necessary  to go into the question as to  whether  P.W. Arora  was  legally competent to search the  person  of  the appellant.Even  assuming  it  to  be illegal  it  is  of  no consequence in this case. On  search the 8 notes of  Rs. 10/-  each  were  recovered.The recovery  of  the  notes  is admitted by the appellant. The  High Court has ’relied upon several decisions  of  this Court for coming to the conclusion that the charges  against the  appellant must be deemed to have been proved.   We  may make  a slight clarification here.  The presumption  arising under  section  4 of the Act when a public  servant  accepts gratification  other  than  legal  remuneration,ion  is  not available  to the prosecution for proving the  charge  under section  5(2)  of the Act with reference to  clause  (d)  of subsection  (1).   The presumption arises in  regard  to  an offence under section 161 of the Penal Code or to an offence referred  to in clause (a) or clause (b) of sub-section  (1) of  section  5  of  the Act.  On  the  facts  of  his  case, therefore,  it  must  he held that the  charge  against  the appellant  that he obtained for himself pecuniary  advantage in  the sum of Rs. 80/- by corrupt or illegal means  and  by abusing  his  position as a public servant must be  held  to have been proved on the evidence of P.Ws Madan Lal, Agya Ram and  Deputy  Lal  and  trot on the  basis  of  the  rule  of presumption  engrafted in section 4. On the other  hand  the charge  under section 161 of the Penal Code must be held  to have  been  proved  by pressing into  service  the  rule  of presumption   enacted  in  section  4  of  the   Act.    The explanation  given  by  the appellant even on  the  test  of preponderance of probability was not only unsatisfacory  and unacceptable but untrue.  In that view of the matter accept- ance of the gratification of Rs. 80/- by him from P.W. Madan Lal must be presumed to have been done as a motive or reward

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such  as  as  mentioned in section 161 of  the  Penal  Code. Almost  an identical case on the point is the decision of  a Constitution Bench of this Court 926 in  Sri C. I. Emden v. The State of U.P.(1). There also  the appellant  before  the  Supreme  Court  demanded  from   the complainant Rs. 400/per month in order that the  complainant may be allowed to carry out his contract peacefully  without any harassment.  A sum of Rs. 375/- was proved to have  been paid to the appellant.  The conviction under section 161  of the  Penal  Code  was maintained only on the  basis  of  the presumption  arising  under.  section  4  of  the  Act.   On identical  facts  conviction  under section  5(2)  was  also upheld.  WC may refer to the decision of this Court in V. D. Jhangan  v. State of Uttar Pradesh(1)  On the facts of  that case it was held that the prosecution evidence  sufficiently established the charges under section 5(2) read with section 5(1)(d)  of the Act and section 161 of the Penal  Code.   In regard  to  the latter charge the rule  of  presumption  was applied  as  laid down by this Court in the case  of  C.  I. Emden referred to above. For  the reasons stated above, we find no substance  in  the appeal  and  maintain the order of conviction  and  sentence passed against the appellant. P.H.P.                          Appeal dismissed. (1) [1960] (2) S.C.R. 592. (2) [1966] (3) S.C.R. 736. 927