Province of Bihar vs Rameshwar Prasad Singh

Agarwala, J.—(2nd August 1944)--This is an appeal by the Provincial Government against an order of the Magistrate of the First Class of Manbhum acquitting Rameshwar Prasad Singh on charges preferred against him under Sections 161 and 384, Penal Code. Rame-swar Prasad Singh was an Assistant Price Control Officer at Jharia. In that capacity he had reported against various merchants of Jharia alleging breaches of the various regulations designed to ensure the fair distribution and sale of various commodities. The case for the prosecution is that on 81st October 1943, this officer having received a report from a chaprasi named Abdul Rauf that he had been charged ten annas instead of nine annas for a seer of ata at the shop of Nandlal Ram Kumar in Jharia bazaar went to this shop and taxed the person in charge with having, over-charged the chaprasi. The shopkeeper denied the charge and it is then said that Rame-swar threatened to arrest him and have him taken to Dhanbad bound with a rope. Rame-swar Prasad is alleged to have suggested to the shopkeeper Kishori Lal to talk the matter over with him in a nearby lane and there to have suggested to him that he should pay him Rs. 500 as a consideration for no steps being taken on the complaint of Abdul Rauf. Kishori Lal is said to have agreed to this suggestion and to have promised to meet the Assistant Price Control Officer that evening for the purpose of making the money over to him, but in fact he consulted his uncle, who came to the shop, and persuaded the Assistant Price Control Officer to agree to accept Rs. 300 instead of Rs. 500. Later in the day, Kishori Lal went home and from his home took two one-hundred rupee notes and ten notes of ten rupees each for the purpose of making them over to the Assistant Price Control Officer. Happening, however, to meet Dewan Bahadur D. D. Thakur, an Honorary Magistrate of the First Class, he told him what had happened. The Dewan Bahadur informed Kishori Lal that the Divisional Inspector of Police, Jag Narain Singh was in Jharia that day and suggested to Kishori Lal that he should go and tell this officer the story. At about 8 P. M. Kishori Lal found the Divisional Inspector at the office of the Deshbandhu Coal Co., and told him the story and showed him the notes which he had brought from his home. The Divisional Inspector initialled the two one-hundred rupee notes and one of the ten-rupee notes. Either before handing them back to Kishori LaL or later, he telephoned to the Additional Superintendent of Police telling him the story and discussing with him what steps should be taken. The Additional Superintendent of Police either approved of the step taken by the Divisional Inspector in initialling the notes or agreed that that should be done. There is a doubt on the evidence whether the Additional Superintendent of Police received this telephone message before these notes had been initialled or afterwards. This, however, does not in my opinion make any material difference to the case.

The prosecution case thereafter is that having received back the notes Kishori Lal went to the lorry-stand in Jharia bazaar, which is some few hundred yards from the shop "of Kishori Lal accompanied by one Bandhu Lal. There he was met by the accused who took him a short distance down the lane opposite the bus-stop leaving Bandhu Lal at the bus-stop. In the lane Kishori Lal is said to have handed over the two one-hundred rupee notes and the ten ten-rupee notes to the Assistant Price Control Officer. Having done this he returned to the office of the Deshbandhu Coal Co., and reported the payment to the Divisional Inspector, at the same time informing that officer that the Assistant Price Control Officer had left by bus for Dhanbad where he lives. Kishori Lal is said to have written out an account of the day''s occurrences before leaving the office of the Deshbandhu Coal Co. The Divisional Inspector then proceeded to Dhanbad in the car of one Bajrang Agarwala accompanied by the senior Sub-Inspector of Jharia and an officer of the District Intelligence Bureau. At Dhanbad railway station they found that the bus in which the Assistant Price Control Officer travelled had already arrived and its occupants had dispersed. They took up the Sub-Inspector B. K. Roy of Dhanbad and proceeded towards the Dak Bungalow at Dhanbad. Approaching the Dak Bungalow they saw the Assistant Price Control Officer entering the compound of the Dak Bangalow and stopped the car. At that time Mr. Chow-dhury, the Electrical Sectional Officer, was passing on a bicycle. He was asked to accompany the police party, and guards having been posted round the Dak Bungalow, the police officers, with Bajrang Agarwala and Mr. Chowdhury, entered the Dak Bungalow. The Assistant Price Control Officer was found seated under an electric light talking to one Mr. Bose, a professional dancer. According to the evidence of the prosecution what happened then was that the Divisional Inspector asked the Assistant Price Control Officer whether he had any money with him and having received an answer in the affirmative asked him to pro-duce it. The Assistant Price Control Officer then produced from the inside pocket of his coat a bag or case containing some thirtyone-hundred rupee notes. He was again asked if he had any other money with hhn and then produced two four-anna pieces. The Divisional Inspector again asked him if he had any other sum with him. He at first replied in the nega-tive, but when the Inspector threatened to search him, it is said that the Assistant Price Control Officer brought out a bundle of crumpled notes from the right-hand outside pocket of his coat and that these notes consisted of the two one-hundred rupee notes and one ten-rupee note which had been initialled by the Inspector and nine other ten-rupee notes. The Inspector''s initials on the three notes were-shown to the officers accompanying him and to Bajrang Agarwala and Mr. Chowdhury. They were initialled by Mr. Chowdhury and by Bajrang Agarwala. After that a seizure list was prepared. a copy of which was given to the Assistant Price Control Officer. The Inspector then telephoned to the Additional Superintendent of Police informing him of the seizure of the notes.

It will be observed that so far as the actual fact, of payment of Rs. 300 to the Assistant Price Control Officer is concerned, the direct evidence led by the prosecution consists of the testimony of Kishori Lal and Bandhu Lal. The latter cannot be regarded as a reliable witness at all and I do not propose to take into consideration his evidence with regard to the payment of the notes to the Assistant Price Control Officer; nor can Kishori Lal himself be regarded as a satisfactory witness except in so far as his testimony is corroborated. It is clear that a charge had been preferred against him and that he would therefore undoubtedly have been glad to turn the tables on the officer at whose instance he was likely to be prosecuted. His evidence therefore must be approached with the greatest caution in this case. But there is no doubt about the evidence of Dewan Bahadur D. D. Thakur that at 6 o''clock that evening he was informed by Kishori Lal of the demand for the payment of illegal gratification by the Assistant Price Control Officer as consideration for not prosecuting him. There is no suggestion and no reason for not accepting the testimony of this witness. The evidence of the Dewan Bahadur makes it clear that Kishori Lal was alleging that the Assistant Price Control Officer had demanded a bribe from him before Kishori Lal himself had come into contact with the police officers who subsequently took part in the search at the Dak Bungalow. It is important to bear that fact in mind because the defence of the accused is that his activities had roused the resentment not only of the traders of Jharia with whose illicit operations he had been interfering in his official capacity, but also the resentment of the local police officers who found that the activities of the accused were interfering with a source of illicit gain to themselves. There is no evidence in this case that Kishori Lal was in contact with any police officer up to the time when he met the Dewan Bahadur and it was the latter, who suggested to him that the story should) be told to the Divisional Inspector. The most substantial corroboration of the story of Kishori, Lal that is relied upon by the prosecution is the actual finding of the notes with the Inspector''s initials on them in the pocket of the-accused at the Dak Bungalow. That part of the case is of course strenuously challenged by -the accused. His own version of what happened is thus set out in the written statement:

On my return to Dhanbad I went to the Dak Bungalow and was talking to Mr. Bimalendu Bose regarding his plans for raising money for the War Fund through his performance, when suddenly Inspector J. N. Singh B. K. Roy, S. I. Bhattaeharji, Bajrang Agarwala, Chowdhury and Kishori entered ithe room. Without the slightest warning J. K. Singh thrust his hand in my coat pocket and brought out some currency notes and charged me with having accepted a bribe from Kishori. The manner in which J. N. Singh treated me and his attitude towards Kishori was simply astounding and I found to my bewilderment that the accused for profiteering was now an accuser against me for bribery.

He goes on to give the conduct of the Divisional Inspector towards him as a reason for not making any statement at the time. This account by the accused of what happened at the Dak Bungalow is not credible. I find it impossible to accept the story that when the police party entered the room, the Divisional Inspector went directly to the accused who, it must be remembered, is a public officer. Of the rank of a Sub-Deputy Magistrate, and thrust his hand into that officer''s coat pocket without any explanation and without giving any reason for doing so and without warning him that he was suspected of having accepted a bribe. The story told by the accused entirely omits the incidents which preceded the recovery of Rs. 300 from his outside pocket, namely, the questioning by the Divisional Inspector as to what money he had on him; the production, first, of a number of one-hundred rupee notes from his inside pocket and subsequently the production of two four-annas pieces. That this part of the prosecution story is true I have no doubt. Apart from the evidence of the police officers and Bajrang Agarwala with regard to it, there is the evidence of Mr. Chowdhury whom for reasons which I shall presently state, I regard as a reliable witness. (After considering the evidence his Lordship proceeded.) I am satisfied on the evidence that the notes in question were in the pocket of the accused at the time when the police party entered the Dak Bungalow , that the accused knew that they were there and that it was the accused himself who brought them out from his pocket. These conclusions fully corroborate the evidence of Kishori Lal that the notes had been handed over to the accused by (himself after three of them had been marked by the Divisional Inspector. The evidence of Kishori Lal, thus corroborated, there is no reason to reject. I, therefore, do not agree with the learned Magistrate that the case against the accused is the result of a conspiracy between the traders and the Police of Jharia. It is understandable that both these classes of persons may have been very glad to find themselves in a position to get the accused into trouble, but it is quite another thing to come to the conclusion that they actually conspired to do so.

It appears from the evidence in the case that this young officer, who is the accused, has, during his career in Jharia, conscientiously discharged his duties and has been instrumental in bringing to justice many traders who were preying on the public, and that he earned the commendation of his superior officer. It is unfortunate, therefore, that on the occasion which forms the subject-matter of the present charges he should have fallen into temptation as a result of which he has not only ruined the prospects for his future career, but has made himself liable to punishment. In deciding what that punishment should be we take into consideration his youth and his past services and the fact that his career is now ruined. The order of acquittal will be set aside and the accused will be sentenced to to six months'' rigorous imprisonment u/s 161, Penal Code. He is also convicted under, Section 884, but no separate sentence will be passed in respect of that charge. There is an application by one Rai Saheb B. L Gutgutia objecting to certain remarks in the judgment of the learned Magistrate which he regards as castmg a reflection upon his own character. As the judgment of the learned Magistrate is being reversed, it is not necessary to say anything further in regard to this application.

Sinha, J.

(2.8-1944) I agree. I wish to add,a few observations of my own in support of the conclusion arrived at by my learned brother. But before I do that, I should say something about the prosecution witnesses,, particularly Kishori Lall, Harnarain Agarwala'' and Bandhu Lall (P. Ws. 1 to 3) and the police witnesses Basanta Kumar Ray (P.W. 10); the Divisional Inspector of Police (v. w. ll). In my opinion in their anxiety to support a true case they have not hesitated to say something which was not absolutely true, particularly in respect of the entry in the so-called search-list in which they got it mentioned that the accused had gone to the length of claiming the money as his own. They would have been well-advised to keep absolutely to the straightforward path of truth; and as public servants these police witnesses were expected to do that. They would not only have been serving the cause of justice and truth but also serving themselves by adopting that course. But I am sorry to observe that they did not hesitate, particularly prosecution witness 10, to support the version that the accused had as a matter of fact claimed the money as his own. They also went to the length of denying the presence of Kishori Lall at the Dak Bungalow when the occurrence, the subject-matter of the charge, came to its concluding stages. These witnesses did lend a handle to the defence and the learned Deputy Magistrate who held the trial in the Court below to make observations against their veracity and to throw doubt on the prosecution case itself. I have no doubt that if an absolutely true version of what took place at the Dak Bungalow had been given, the learned Magistrate would have come to the right conclusion that the occurrence as alleged by the prosecution in its main part is true. The false embellishments added to the prosecution case did not serve the prosecution well. Again, I cannot understand why the Court accepted the public Prosecutor''s request to cross-examine the prosecution witness Hari Sinna Chow-dhury, the Electrical Sectional Officer (p.w. 17) who of all the material witnesses examined in the Court has impressed me as a very truthful witness. He did say something which did not accord with the evidence of the police witnesses particularly. That was absolutely no reason why he should have been allowed to be cross-examined by a party which had called him as a witness. In my opinion, the Public Prosecutor should not have lent himself to having this witness declared hostile, as it is said in ordinary parlance, because it does lend itself to an argument that the prosecution itself has given away one of its most important witnesses in this case, apart from the police witnesses, whose evidence was most material on the question of what took place at the Dak Bungalow. I entirely agree with my learned brother in holding that Mr. Chow-dhury (P.W. 17) has given an absolutely true version of that part of the occurrence which took place at the Dak Bungalow.

On the question of the occurrence itself, to my mind the most significant thing which would strike any impartial Judge in the case, who has the evidence before him, is the conduct of the accused himself at the time when the currency notes were either brought out by himself, or taken out by the Inspector as alleged by the accused. He should have been the first person to express a complete surprise at the production of the notes and he should have come out with his own defence then and there if he had any defence; but the very fact that he did not offer any explanation as to how and in what circumstances the currency notes found their way into his pocket lent a great deal of support to the prosecution version that the currency notes were there in his pocket, not as he suggested in his statement before the Court, but as deposed to by the prosecution witnesses, namely, in a dishonest manner. For all these reasons I agree that the judgment of the learned Magistrate in the trial Court is not sustainable and that the accused is guilty of the charge levelled against him. I agree, therefore, that he deserves the sentence which my learned brother has proposed to impose upon him.

Agarwala, J.

(7.8.1944)-After the judgments set out above had been delivered but before my learned brother''s judgment had been signed the learned advocate for the accused intimated that he desired to raise a question affecting the jurisdiction of the Court below to try the appellant on the charges on which he has now been found guilty. The question of jurisdiction is based on Section 197, Criminal P. C. That section provides that

when a Judge, a Magistrate or a public servant, not removable from his office save by or with the sanction of a Provincial Government or some higher authority, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognisance of such offence except with the previous sanction, in the case of a person employed in connexion with the affairs of a Province, of the Governor of that Province exercising his individual judgment.

In the present case the Additional Deputy Commissioner of Dhanbad applied for sanction u/s 197 on 1st November 1943, and on 11th December 1943, sanction was given in the following form:

Under Section 197, Criminal P. C. 1898 (5 of 1898), the Governor of Bihar is hereby pleased to sanction the prosecution under Sections 392 and 161, Penal Code, of Babu Rameswar, Singh, temporary Sub-Deputy Collector, posted as Assistant Price Control Officer at Dhanbad and to direct that the case shall be tried by Mr. A. S. Khan, Magistrate exercising 1st Class powers at Dhanbad.

By order of the Governor of Bihar, Sd. S. K. Das. Secretary to Government.

The first question that falls to be decided on this objection to the jurisdiction of the Courts below is whether the accused was accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty. If that question be answered in the affirmative, the next point that will require consideration is whether the sanction required by Section 197, in the circumstances which prevailed at the time that this case was instituted, was the sanction of the Governor of the Province exercising his individual judgment, or the sanction of the Governor of the Province in his discretion. The charges framed against the accused are, first, that on or about 31st October 1942, at Jharia, he committed extortion by putting Kishori Lal Agharwalla in fear of certain injury, to wit, wrongful restraint, and thereby dishonestly induced him to deliver to the accused Rs. 300, and thereby committed an offence punishable u/s 384, Penal Code. The second charge was that on or about the same day and place being a public servant in the Jharia Control Department, the accused directly accepted from Kishori Lal Agharwalla a gratification other than legal remuneration as a motive for forbearing to do an official act, namely, not to prosecute him for the alleged sale of ata at a higher price than the controlled rate, and thereby committed an offence punishable u/s 161, Penal Code. The precise meaning and scope of the words "while acting or purporting to act in the discharge of official duty" in Section 197, Criminal P. C, have been a source of difficulty in the Courts for a very long period. The language of Section 197, so far as these words are concerned, is not dissimilar from the language of Section 270 Clause (2), Government of India Act, 1935. That Sub-section provides:

Any civil or criminal proceedings instituted, whe ther before or after the coming into operation of this part of this Act, against any person in respect of any act done or purporting to be done in the exe cution of his duty as a servant of the Crown shall be dismissed unless the Court is satisfied that the acts complained of were done in good faith.

The phrase "in respect of any act done or purporting to be done in execution of his duty as a servant of the Crown" has been considered by their Lordships of the Federal Court in recent cases. In AIR 1939 43 (Federal Court) Sulaiman J., with reference to S.270 observed:

Obviously the section does not mean that the very act which is the gravamen of the charge and constitutes the offence should be the official duty of the servant of the Crown. Such an interpretation would involve a contradiction in terms because an offence can never be an official duty. The words as used in the section are not ''in respect of any official duty,'' but ''in respect of any act done or purporting to be done in the execution of his duty.'' The two expressions are obviously not identical. 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 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.

To me it is inconceivable that the act of [taking a bribe can ever be said to be an act done in the execution of duty. One has only to imagine the state of mind of the two parties concerned in such a transaction to see how wrong any other interpretation would be. The person demanding or accepting a bribe is fully conscious of the fact that in doing so he is neither performing an official act nor purporting to perform such an act, and the person who offers or pays a bribe is equally conscious that the person receiving the payment is not receiving it for doing or purporting to do an official act. The latest observation of the Federal Court, to my mind, leaves no doubt about the matter. In Hector Huntley v. King-Emperor AIR 1944 P. C. 66 Zairulla Khan J., stated:

Section 270 (1), Constitution Act, relates to proceedings against a person in respect of any act done or purporting to be done in the execution of his duty as a servant of the Crown. In AIR 1939 43 (Federal Court) this Court laid down that to attract the provisions of the section it was not sufficient merely to establish that the person proceeded against was a public servant, and that while acting as a public servant,, or taking advantage of his position as a public servant he did certain acts; it must be established that the act complained of was an official act. In this, case the act complained of was the act of receiving illegal gratification. That surely could not be an act done or purporting to be done in the execution of duty.

It is contended however, and rightly, that in the two cases of the Federal Court to which reference has been made above, the section under consideration was Section 270, Constitution Act, and not Section 197, Criminal P. C. That, of course, is true; but in my view there is no material distinction between the relevant phrases in the two sections, and although their Lordships of the Federal Court were dealing with the actual language used in the Constitution Act, their observations aptly describe the position which arises u/s 197, Criminal P. C. In my opinion, therefore, it follows that no sanction at all was necessary in this case for the prosecution of the accused in respect of the offences of which he was charged as they were not acts done by him while acting or purporting to act in the discharge of his official duty. In this view of the matter, it is not necessary to express an opinion with regard to the second question, namely, whether in the event of sanction being necessary the. sanction accorded in the present case complied with the requirements of Section 197.

Sinha, J.

I agree.