LexDraft · Judgments

Ram Krishan and Another v. the State of Delhi

Supreme Court of India · 1956 INSC 13 · 1956

Coram: N. CHANDRASEKHARA AIYAR, VIVIAN BOSE, BHUVNESHWAR PRASAD SINHA, SYED JAFFER IMAM

Source: sci_open_data

CRANDRASEKHARA AIYAR J.-Ram Kishan, the first appellant in Criminal Appeal No. 43, is a partner­ proprietor 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 mt'lrchants, including 1956 Ram Krishan and another v. The State of Di:lhi Chandrasi:khara Aiyar J, 184 SUPREME COURT REPORTS [1956) the three firms, were suspected of exporting potatoes at concessional rates on false declarations or certifi­ cates that they were seed potatoes. Police investi­ gation was procee<lingin this connection at Saharan­ pur in October, 1951. Madan Lal, 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 Saha­ ranpur, was deputed by the Station Master to help the Police party. It is alleged by the prosecution that during the pro­ gress 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 sha.pe of currency notes to Madan Lal by Ram Kishan while two police officers and a Magistrate were hearing the con versa­ tion 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. S.C.R. SUPREME COURT REPORTS 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 imprison­ ment and a fine of Rs. 1,000 each. He did not sepa­ rately 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 some­ how 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 settle­ ment of the amounts legitimately due to the Rail., way. An attack against the concurrent findings of fact being wholly futile in the circumstances, Mr. Sethi, for the appellants in Criminal Appeal No. 43of1954, 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 a.s 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 criminals; in other words, crimes committed under such circum­ stances 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 1956 Ram Krishan and another v. The State of Delhi Chandrasekhara Aiyar J. 1956 Ra1n K rishan and another v. The State of Delhi Cl1audrasckhara Aiyar J, 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 re­ ward 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 considera­ tion or for a consideration which he knows to be in­ adequate, 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 ser­ vant 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 misappro­ priates 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 other­ wise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. (2) Any pub1ic servant who commits criminal misconduct in the discharge of his duty shall be punishably 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 dispro­ portionate to his known sources of income may be S.C.R. SUPREME COURT REPORTS 187 proved, and on such proof the Court shall presume, 1956 unless the . contrary is proved, that the accused per- Ram K rish an son is guilty of criminal misconduct in the discharge and another of his official duty and his conviction therefor shall v. not be invalid by reason only that it is based solely The State of Delhi on such presumption. ( 4) The provisions of this section shall be in Chand.-asekhara d . d . f h l Aiyar J, addition to, an not m erogat10n o any ot er aw for the time being in force, 1 and nothing contained herein shall exempt any public servant from any pro- ceeding which might, apart from this section, be in- stituted 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 crimi­ nal misconduct by a public servant is created by sec­ tion 5 a~d under sub-section (2) it is made punish­ able 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 sec­ tion 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 and accept­ ance 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 advan­ tage. To force a bribe out of an unwilling person is different from the acceptance ofa bribe from a volun­ tary 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 1956 Ram Krishan and another v. The State of Delhi Chandrasekhara Aiyar J, 188 SUPREME COURT REPORTS (1956) him to obta.in the pecuniary advantage. This argu­ ment 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 overlap­ ping 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 ad vantage. 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 ex­ tort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his posi­ tion 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 .section 162. 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 ad;vantage 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 art 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 pecu­ niary advantage, entirely irrespective of motive or reward for showing favour or disfavour. To a certain extent the ingredients of the two offences are com­ mon, 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 con­ struction 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 S.C.R. SUPREME COURT REPORTS 189 servants prosecuted under the Act while they are 7956 subJ"ected also to increased disabilities, namely, a Ram Krishan longer term of imprisonment as punishment and the and a11other ... application of the presumption referred to in sub- v. clause (3). The State of Delhi In support of the contention that Madan Lal was not a "public servant", reference was made to sec- Chandrasekltara Aiyur J. tion 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 pub- lic 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 pur- poses 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 ser­ vant 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 Preven­ tion 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 amend­ ment, railway servants were treated as public ser­ vants 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, ac­ cording to the learned counsel for the appellants, should be taken into account in the matter of sen­ tence. 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- (1) (1947] 2 All E.R. 57~. ~5 1956 Ra1n K 1'ishan and another v. The Side of Delhi Chandrasekhara AiyarJ. 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 evi­ dence 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 opi­ nion expressed by the learned Chief Justice, it can­ not be laid d.own 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 diffi­ cult if intending offenders, especially in cases of cor­ ruption 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 Singhandanotherv. The Stateof VindhyaPradesh(').­ See also Ramjanam Singh v. The State of Bihar(•). 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 them­ selves collected Rs. 5,000 to be paid to Madan Lal and that in the house 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 (ll [19MJ s.o.R. 1098. (2) Or. Appeal No. 81of1953, S.C.R. SUPREME COURT REPORTS 191 is corroborated by Madan Lal who states that all the 1956 three accused said that the money had been sub- Ram Krishan scribed by them jointly and requested him to accept and another the same and get the case withdrawn. The case of v. Gian Chand does not stand on any different footing The State of Delhi from that of the other appellants. d fi d d Chandrasekhara The convictions an sentences are con rme an AiyarJ. the appeal will stand rejected.