Patna High Court
Sailendra Nath Gangully vs State Of Bihar on 27 July, 1961
Equivalent citations: AIR1962PAT8, AIR 1962 PATNA 8
JUDGMENT U.N. Sinha, J.
1. This is an appeal by one Sailendranath Gangully, who has been convicted under Section 165A of the Indian Penal Code by the Special Judge Of Purnea and mentioned to undergo rigorous imprisonment for one year.
2. The charge framed against the appellant may be quoted here:
"That you, on or about the 16th day of December, 1958 at Prem Hotel Cabin, Purnea, abetted Sri Girijanand Mishra, who was a public servant, in the commission of an offence punishable under Section 165A of the Indian Penal Code by offering three G. C. notes of rupees ten each for obtaining blank Refugee registration card forms, and thereby committed an offence punishable under Section 165A of the Indian Penal Code, and within my cognizance and I hereby direct that you be tried by me (of) the said charge."
3. This Girijanand Mishra has been examined as P.W. 8 and at the relevant time he was a dealing assistant in the Rehabilitation Office at Purnea. The prosecution case appears to be, that, the appellant abetted what would have been an offence committed by Girijanand Mishra under Section 161 of the Penal Code, if the latter had acted in pursuance of the abetment of the appellant.
4. The prosecution case mentioned in the report made by K. N. Das (P.W. 6), the superior officer of Girijanand Mishra, addressed to the Sub-Inspector of Police, Khajanchihat Police Sta tion, on the 16th of December, 1958, was as fol lows: On the 13th of December, 1958, Girija nand Mishra had informed K. N. Das in his office that the appellant had approached him for six blank refugee registration card forms and had promised to pay Rs. 450 for the same. Thesa blank refugees registration cards, when forged into real ones, would show the identity of dis placed persons from Pakistan and would entitle them to have rehabilitation benefits granted by the Government Girijanand agreed to comply with this request on the 15th December on the said payment, but he informed K. N. Das about the attempt of the appellant to bribe him. K. N. Das passed on this information to the Superintendent of Police on the 13th December, upon which K. N. Smgh, a Deputy Superintendent of Police (P.W. 1) was deputed to witness a trap to be arranged against the appellant. The appellant, however, did not turn up On the 15th December and on the 16th December Girijanand Mishra (P.W. 8) went to K. N. Das (P.W. 6) at about 12-30 p.m. and informed him that the appellant had come to Girijanand's office and was prepared to pay him a part of the promised money.
K. N. Das asked Girijanand Mishra to enter into the transaction in a hotel named Prem Hotel, situated in front of the Purnea Collectorate. K. N. Das (P. W. 6) informed K. N. Singh (P. W. 1), the Deputy Superintendent of Police and M. N. Ghani (P.W. 2), a Deputy Magistrate of Purnea, as to what was going to take place. K. N. Singh (P.W. 1), in his turn, deputed two officers, named Badrinath Jha (P.W. 3), a Sub-Inspector of Police of the District Central Crime Bureau, and Chandreshwar Prasad Sharma (P.W. 5), an Assistant Sub-Inspector of Police, in plain clothes, to go to Prem Hotel to witness the transaction. K. N. Das (P.W. 6) along with K. N. Singh (P.W. 1) and M, N. Ghani (P.W. 2) also followed. When this party was approaching Prem Hotel, Badrinath Jha (P.W. 3) gave a signal indicating that the proposed transaction was taking place, K. N. Das and his parly went to a cabin of the Hotel and found there the appellant along with Girijanand Mishra (P.W. 8) and Chandreshwar Prasad Sharma (P. W. 5). The appellant had three G. C. notes of ten rupees each in hand and was in the process of offering the same to Girijanand Mishra (P.W. 8). The appellant was asking Girijanand Mishra to accept this money as a part payment. The three G. C. notes were seized and the appellant was taken into custody.
5. What actually happened in Prem Hotel has been stated by Girijanand Mishra (P.W. 8) as follows:
"I accordingly took him to the Prem Hotel, took our seats in a cabin and ordered for tea. There were others in that hotel taking tea, etc. The accused took out 3 G. C. ten rupee notes and offered it to me saying that he was short of money. For this reason he could not come the previous day and promised to pay the balance in two or three days. In the meantime, D.S.P. Saheb, my officer, Ghani Saheb and 2 to 3 others arrived. One of them seized the notes."
6. The report of K. N. Das (P. W. 6) was received by M. Tewari (P.W. 7), who was then the Junior Sub-Inspector of Police attached to the Khajanchihat Police Station. A formal first information report was drawn up by P.W. 7 on the report of K. N. Das on the same day, namely, the 16th December, 1958. What had happened in the meantime was this. The Deputy Superintendent of Police had made a report to the Sub-divisional Officer, Sadar, Pumea, in the following:
"S. D. O., Sadar, Puruea. A case of offering bribe to a public servant has been instituted today on 16-12-58 at Khajanchihat P. S. against Sailendra Nath Gangully of Katihar. This may kindly be endorsed to D. I., Sadar for investigation."
The Subdivisional Officer made an endorsement on this report on the same day in the following words:
"D. I., Sadar will investigate.
Sd. Illegible.
16-12-1958".
In accordance with the direction of the Subdivisional Officer, investigation was undertaken by Jugeshwar Sinha (P.W. 9). Charge-sheet was submitted by P.W. 9 On the 26th of March, 1959, upon which the appellant was tried by a Special Judge,
7. According to the defence case made out by the appellant in his statement before the learned Special Judge, he denied his guilt and he stated that the prosecution case that he had offered Rs. 450 to Girijanand Mishra as bribe for six blank refugee registration cards was a false one. With reference to the prosecution case about the offering of Rs. 30 to Girijanand Mishra in Prem Hotel, the appellant stated that he would submit his case in writing. The substance of the appellant's case made out in his written statement was that he had been falsely implicated. The reason for his false implication has been put in a rather curious manner in paragraph 9 of his written statement, which runs thus:
"That P.W. Sri K. N. Das Refugee Officer in his evidence admitted that he met the accused previous to the date of occurrence on two occasions at Katihar and it can therefore be safely presumed that this accused had been vexing the officer and the clerks for payment on his balance of the loan for which a registered document was long ago taken from him."
8. The learned Special Judge has accepted the prosecution case and has held that the charge under Section 165A of the Indian Penal Code against the appellant has been established.
9. Three substantial points have been urged by learned counsel for the appellant, two ot which are questions of law and one on the facts of the case. The questions of law urged are that the trial of the appellant was vitiated as the investigation into the case had been conducted by a person below the rank of a Deputy Superinten-
dent of Police and that order of the Subdivisional Officer dated the 16th December, 1958, quoted above, permitting Jugeshwar Sinha (P.W. 9) to conduct the investigation case was not a real compliance with Section 5A of the Prevention of Corruption Act (Act II of 1947). Secondly, it is urged that even if Girijanand Mishra had supplied these blank refugee registration cards to the appellant on receipt of monetary inducement Girijanand, Mishra would not himself have been guilty of any offence under Section 161 of the Indian Penal Code, and, therefore, the appellant had committed no offence under Section 165A of the Code.
Upon the facts of the case, it is urged that as Girijanand Mishra was a mere typist and was not in charge of the refugee registration cards, the prosecution case that the appellant had tried to obtain these cards from Girijanand Mishra must be a false one. In this connection, it has been contended that the documentary evidence produced by the appellant was wrongly rejected" by the learned Special Judge by his order dated the 7th September, 1959.
10. I will first deal with the third point mentioned above, namely, that, the prosecution case that the appellant had tried to induce Girijanand Mishra to give him six blank refugee registration cards, ought not to be accepted. (After considering the facts his Lordship held) ; I will, therefore, reject the contention raised by learned counsel that it was unlikely that the appellant had attempted to illegally induce Girijanand Mishra (P.W. 8) to hand over to him six blank registration cards for refugees.
11. In my opinion, the first question of law urged by learned counsel for the appellant based On Section 5A of the Prevention of Corruption Act (Act II of 1947) (to be referred to hereinafter as the Act) cannot also succeed. In my opinion, Section 5A of the Act was complied with and in any event, the conviction of the appellant in the instant case by a court of competent jurisdiction, cannot be set aside, even if it be assumed that the investigation was not in accordance with Section 5A of the Act. It appears that in this case, the Deputy Superintendent of Police (P.W. D, who could have conducted the investigation, was himself a witness in the "trap" set up in Prem Hotel. Probably, for this reason, he had recommended to the Subdivisional Officer that the "D. I., Sadar" should be allowed to conduct the investigation. Upon this recommendation the Subdivisional Officer had permitted the "D. I., Sadar" to conduct the investigation. The Deputy Superintendent of Police. K N. Singh was examined as P.W. 1 and no questions were put to him in cross-examination that he had not put all relevant matters before the Subdivisional Officer in obtaining his orders for investigation by Jugeshwar Sinha (P.W. 9).
The objection regarding investigation by someone other than the Deputy Superintendent of Police was taken in the court of the learned Special Judge at such a late stage that the prosecution had no opportunity to prove that the SubdivisionaI Officer had taken into consideration all relevant matters in permitting the "D. I., Sadar" to investigate into the case. It appears from the order-sheet of the learned Special Judge that the trial-finished on the 21st of August; 1959, when 4th September, 1959, was fixed for argument. It was on the 4th September, 1959, that the written statement on behalf of the accused was filed, in which it was mentioned that the order of the Subdivisional Officer granting permission to the Inspector of Police to investigate into the case was not in compliance with the provision of law. The learned Special Judge has mentioned in his judgment that this objection was really raised for the first time during the course of argument in this case. The learned Judge has stated thus:
"In this case, the objection was raised for the first time during the course of argument. Beyond saying that the prosecution is bad on this account, the learned Advocate for the defence said nothing else. He did not say that the investigation should be ordered to be started afresh by the Deputy Superintendent of Police."
It is perfectly clear in the instant case, that the fact that the Deputy Superintendent of Police had not conducted the investigation, had not caused any prejudice to the appellant. On the contrary, I am of the opinion, that the Deputy Superintendent of Police, who was a witness in the "trap", had shown fairness towards the appellant by recommending that some other police officer should conduct the investigation.
12. The second question of law raised on behalf of the appellant appears to me to be one of substance. The question to be considered is, can Girijanand Mishra be said to have committed an offence under Section 161, Indian Penal Code, in agreeing to accept the money offered to him by the appellant, with a view to supply blank refugee registration cards. Unless the answer to this question can be given in the affirmative, it is clear that the appellant cannot be convicted of an offence under Section 165-A of the Code. Section 165-A refers to abetment of an offence under Section 161 or under Section 165. In this case, Section 165 is not relevant. Section 161, which is relevant, provides:
''Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. "
It is clear upon a plain reading of this section that to constitute an offence thereunder, the illegal gratification accepted or agreed to be accepted by a public servant should be as a motive or reward, either (i) for doing or forbearing to do an official act; or (ii) for showing or forbearing to show favour or disfavour to any person, in the exercise of his official functions; or (iii) for rendering or attempting to render any service or disservice to any prison, with the Central or any State Government or parliament or the Legislature of any State, or with any public servant, as such. No question of rendering or attempting to reader any service or disservice to any person with the Government or Parliament or the Legislature of any State or any public servant is involved in this case. Upon the prosecution case, therefore, Girijanand Mishra would have been guilty of an offence under Section 161, if he had really agreed to accept the money, or had accepted the money from the appellant, as it would have been a motive or reward for doing an official act or for showing a favour to the appellant in the exercise of his official, functions. This could only have been so, if the supply of blank refugee registration cards to the appellant can be called an official act of Girijanand Mishra or a favour shown by him in the exercise of his official functions.
In my opinion, it is not possible to say that the supply of refugee registration cards in a blank state was, in any sense, either an official act of Girijanand Mishra or a favour which he could have shown in the exercise of his official functions. The official duties of Girijanand Mishra as the clerk in charge of refugee registration cards have been described by his superior officer, K. N. Das (P.W. 6) as follows:
"Refugee registration cards are in triplicate and are in booklets. These bear serial numbers. The dealing clerk fills them up and initials it and finally these are placed before me for signature. A card which does not bear my signature or signature of the District Magistrate or that of officers in the Secretariat will not be valid."
According to the tenor of the evidence of Girijanand Mishra (P.W. 8) himself, blank registration cards were never given away. It is clear, therefore, that the handing over of such blank cards was not an official act of Girijanand Mishra, or an act "which he could have done in the exercise of his official functions. It might perhaps have been improper for him to hand over refugee registration cards to the appellant in a blank state. It may even be that Girijanand Mishra would have committed some other offence, but it would not, in my opinion have amounted to an offence under Section 161 of the Penal Code.
In interpreting the words "for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person" occurring in Section 161 of the Penal Code. I would like to refer to certain expressions which were Included in Section 270 (1) of the Government or India Act, 1935, and the relevant expressions included in Section 197 of the Code of Criminal Procedure. The words occurring in Section 270 (1) of the Government of India Act, 1935, were, "in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown," and the words occurring in Section 197 of the Code of Criminal Procedure are, "alleged to have been committed by him while acting or purporting t& act in the discharge of his official duty". In the case of Hori Ram Singh v. Emperor, AIR 1939 FC 43, their Lordships of the Federal Court were interpreting the words of Section 270 (1) of the Government of India Act, 1935, quoted above. Sulaiman, J. stated thus:
"The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in the execution of the duty. The reference is obviously to an offence committed in the course of an action, which is taken or purports to be taken in compliance with an official duty, and is in fact connected with it. The test appears to be not that the offence is capable of being committed only by a public servant and not by any one else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The Section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. If the act complained of is an offence, it must necessarily be not an execution of duty, but a declaration of it. What is necessary is that the offence must bo in respect of an act gone or purported to be done in execution of duty that is in the discharge of an official duty. It must purport to be done in the official capacity with which he pretends to be clothed at the time, that is to say under the cloak of an ostensibly official act, though of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to bo acting in pursuance of his official duty and means to convey to the mind of another, the impression that he is so acting.
"The Section is not intended to apply to acts done purely in a private capacity by a public servant. It must have been ostensibly done by him in his official capacity in execution of his duty, which would not necessarily be the case merely because it was done at a time when he held such office, nor even necessarily because he was engaged in his official business at the time. For instance, if a public servant accepts as a reward a bribe in his office while actually engaged in some official work, he is not accepting it even in his official capacity, much less in execution of any official duty, although it is quite certain that he could never have been able to take the bribe unless he Were the official in charge of some official work. He does not even pretend to the person who offers the bribe that he is acting in the discharge of his official duty, but merely uses his official position to obtain the illegal gratification."
Their Lordships of the Federal Court had also an occasion to deal with the words of Section 197 of the Code of Criminal Procedure quoted above.
Hori Ram Singh's case, AIR 1939 FC 43 was considered by their Lordships of the Privy Council in the case of H.H.B. Gill v. The King, AIR 1948 PC 128. Their Lordships of the Privy Council in H. H. B. Gill's case, AIR 1948 PC 128 stated thus:
"A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty......... .The test may well be whether the public servant, if challenged, cart reasonably claim that, what he does, he does in virtue of his office."
The principles laid down in H. H. B. Gill's case, AIR 1948 PC 128 were reiterated by their Lordships of the Privy Council in the case of Albert West Meads v. The King, AIR 1948 PC 158. In the case of Amrik Singh v. State of Pepsu reported in (S) AIR 1955 SC 309, the cases of Hori Ram Singh, AIR 1939 FC 43 and Albert West Meads, AIR 1948 PC 156 have been dealt with by the Supreme Court. Dealing with Hori Ram Singh's case, AIR 1939 FC 43, the Supreme Court, stated as follows;--
"In AIR 1939 FC 43, the medicines had not been entered in the stock book, and were removed by the accused to his residence and the charge against him was that in so removing them he had committed miappropriation. It was no part of the duty of the accused to remove medicines to his houses, and he could not claim that he did so by virtue of his office. He could have made such a claim if he had, let us suppose, entered the medicines in the stock books and shown them as expended in the hospital."
After a consideration of the decisions mentioned above, it appears to me that in the instant case, if Girijanand Mishra had agreed to supply blank registration cards to the appellant, while Girjanand Mishra was acting as a typist and a clerk in charge of the refugee registration cards, it cannot be said that he had agreed to do an official act or to show favour to the appellant in exercise of his official function. The employment of Girjanand Mishra as a clerk in this particular office, may have given him an opportunity to supply blank cards to the appellant, but the agreement to supply blank cards was certainly not to do an official act. This question of law in my opinion, must be decided in favour of the appellant.
13. It must follow, therefore, that the appellant had not abetted any offence punishable under Section 161 of the Indian penal Code and as such, he was wrongly prosecuted under Section 165A of the Code. The appeal is, therefore, allowed and the conviction of the appellant and the sentence imposed upon him are set aside. It the appellant is on bail, his bail bond is hereby discharged.
G.N. Prasad, J.
14. I agree.