V. K. SHARMA v. THE STATE (DELHI ADMINISTRATION) March 13, 1975
(A. ALAGIR!SWAMI AND N. L. UNTWALIA, JJ.] Section, 4, 5(1)(a)(b)(d), 5(2) of Prevelllion of Corruption Act.-Section 161 of l.P.C.-Pres11mptio11 under Section 4 of the Act-Competem authority to
• accord sanction whether should be competent to remove the accused from Govt. service or from temporary oOlce. · The appellant was convicted under section 5(2) of thr, Prevention of Corruption Act read with section 5(1 )(d) and under section 161 of the Indian Penal Cede bv the Trial Court and was sentenced to rigorous imprisonment for 2! years. He was also sentenced to pay a fine of Rs. 1000. The Delhi High Co11rt dismissed the appellant's appeal but reduced the sentence from 2f years to 1 year and reduced the fine from Rs. HlOO to Rs. 500. The appellant was a Lower ,.,,ivision 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 au 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 explanai-ion of the receipt of the money. Both the Courts below rejected the explanation • untrue. The counsel for the appellant contended :
J
(1) That the sanction given by P. W:Iyer iri this case was invalid an'.! not in nccordancc with section 6 of the Act.
(2) Th<'.t P.W. Arora had no authority to lay a trap to search the person of the ap;Jellant or to make an investigation in the case. Whatever was done by him 11<1> in contrnvention of section 5A of the Ac.t.
(}l That neither of the charges under section 5(1)(d) of the Act or section 161 uf. th·~ 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, Rationing. would· have been competent to remove th·e appellant from his office as Rationing Inspector but not from his office in the Central Secretariat. Therefore, he was not a competent authority for according sa.nction. The sanction is to be acccrded bi' an authority competent to remove the accused from Government service. [925 BJ 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 availab.Je to the J'rosecution for proving the charge under section 5 of the Act wi~h r~ference to clause (d) of sub-se~tion (1) of section 5. The presumption · anses 10 regard to an offence under sect10n 1.61 of the Penal Code or to an offence under section 5 ( l) (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]
·F
CRDHNAL APPEU.jATE JuR1so1cnoN : Criminal Appeal No. 73 of
Appeal by Special leave from the Judgment and Order dated the • September, 1970 of the Delhi High Court r,1 Criminal Appeal No. 'f 1968.
• v. K. SHARMA v. DELHI ADMN. (Vntwalia, J.)
K. B. Ro.h(agi, for the appellant.
5. 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, 1947-hereinafter called the Act, read with section 5Ql)(d) and under ·section 161 of the Indian Penal Code. The Trial Judge. sentenced the appellant u1.1der each count to undergo rigorous imprisonment for : 1· years. Sentences to run concurrently. He was also sentenced to P'JY 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 impriso',1ment ~or 2t years has been reduced to one year under each count ancl the imposition of fine of Rs. 1,000 1- has been reduced to Rs. 500/-.
The appellant was a quasi-permanent Lower Division Clerk of the Central Secretariat Clerical Service, Grade II and was borne on the cadre of Community Development and Co-operation. At the releva!at time he was working as Inspector in the Rationing Department. P.W.3 Madan Lal was the owner of Rationing Depot in Gandhi Nagm; Delhi. His complaint was that the appella!at had been demanding Rs. 100/- per month by way of bribe under threat of implicatij_)g 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 Councillor about this demand and the latter called him to his house in the afternoon; P.W. S.L. Arora, Assistant Controller of Rationinm was called to the Councillor's place. He after recording the statement of Mad•an Lal, initialled 8 currency i10tes of Rs. 10 /- each, of tl1e total value of Rs. 80/-. Shri Arora instructed Madan Lal to go to the appellant's office aldagwith 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. 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 section 161 of the Penal Code. Jhe appellant admitted tl\e 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.
[19751 3 s.c.R.
The two courts below relying upon the evidence of Prose.cut~on Witnesses Madan Lal, Arora, Agya Ram and Deputy. Lal and re3ecttng the explana\ion of the appellant as untrue have convicted and sentenc· .cd him as stated above. ~.Ir. 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 Jay 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 SA of the Act.
(3) That neither of the charges under section 5(l)(d) of the Act or secti'on 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 o~ the Central Secretariat Clerical Service. He was !Jome in the cadre of Community Development and Co-o:::ieration. P.W. Iyer was the Deputy Secretary of that Department. He was competer.l to remove the appellant from his oflice within the meaning of clause (c) of sub-section ( l) of section 6 of the Act. There was no dispute or debate in .that regard. No question was put to him in his cross-examinafron to challenge his authority. But the contention on behalf of the appellant has been that at the time of committing 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. lt is not clear whether the appellant came as a loanee to the Rati·oning 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 Rationing · Inspector on beinµ- appointed to that post a few days earlier on the 15th of November. On a consideration of the rtlevant 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 Insoector, Rationing. We may add that even assuming the argument put forward on behalf "of v. K. SHAR~IA I". DHHI AD~IN. (U111walia, .l.)
the <tpp~llant l'o be correct that he did not come to the Rationing Department as a loanec from the Central Secretariat, there is no difliculty in appreciating that he must have come temporarily to the Rationing Department with his lien on his ·post i!l the Central Secretari:.it. The purport of taking the sanction from the authority c·ompctcnt to remove a corrupt Governme11t servant from his office is not only to remove him from his temporary oftice but to remove him from Gov'crnment service. The Chief Controller, Rationing would have been competent to remove the appellant from his office as Rationing Inspcctor but not from his office in the Central Secretariat. That being so P.W. lyer 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 th.: afternoon of the 1st of July, I 967 the First Information Report was lodged with the. police. The investigati'on within the meaning of section SA ot the Act started thereafter. No semblance of an:y argument could be advanced before us to show that the investigation made thereafter w1s 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 int'O 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 o( 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 is not available fo the prosecution for proving the charge under section 5 ( 2) of the Act with reference to clause ( d) of sltb-section (I). The presumption arises in regard to an offence unde( section 161 of the Penal Code or to an offence referred to in clause (a) or . clause (b) of sub-section (I) 'Of section 5 of the Act. On the facts of this case, therefore, it must be held that. the charge against the appellant that h obtained for himself pecuniary advantage in the sum of Rs. 80 /- by corrupt or illegal means and by abusing hii position as a pub! ic servant must be held to_ have been proved on the evidence of P.Ws Madan Lal, Agya Ram and Deputy Lal and ll'Jt 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 pre-ponderer,ce of probability was not only unsatisfactory arid unacceptable but untrue. In that view of the matter acceptance of the· gratification of Rs. 80/- by him from P.W. Madan Lal must be presumed ro have been done as a motive or reward such as is 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
U9751 3 s.c.R.
in Sri C. I. Emden v. The State of U.P.('). There also the appellant before the Supreme Court demanded from the complainant R,s. 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 arisirlg under section 4 of the Act. On identical facts conviction under section 5(2) was also upheld. We m<1y refer to the decision of this Court in V. D. Jhangan v. State of Uttar Pradesh('). On the f~cts 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. f. 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.
(l) [1960] (2) S.C.R. 59 (2) [1966] (3) S.C.R. 736.
Appeal dismis_;cd.