State vs Mehta Rasiklal Baldevdas

Chhatpar, J.—This is a reference by the Sessions Judge, Jhalawad District, recommending that the sentence upon the opponent be enhanced. The opponent-accused was a clerk in the Office of the Executive Engineer of Jhalawad Division at Wadhwan City. He was convicted of offences u/s 161, I.P.C. and Section 5(2), Prevention of Corruption Act by the First Class Magistrate of Wadhwan Taluka on 10-11-1951 and was sentenced to pay a fine of Rs. 100/- only in respect of each of the offences and in default to undergo one month''s rigorous imprisonment. The Sessions Judge thinks that the sentence for the offence of accepting illegal gratification which has been proved in the case to the extent of Rs. 300/- is grossly inadequate and he opines that the accused should be sentenced to at least four months'' rigorous imprisonment for each offence in addition to the fine imposed.

Mr. Trivedi, who appears for the accused-opponent has challenged the conviction, as he is entitled to do so in a reference for enhancement of sentence. We have therefore to deal with the case on merits, so far as the conviction is concerned.

It appears that one Dayaram Chhaganlal had taken a building contract from the Public Works Department for constructing a maternity hospital at Limbdi. He used to present progress bills each month, which used to be checked by the office of the Executive Engineer at Wadhwan; thereafter they were sent to the Treasury Officer; on return they received the final sanction of the Executive Engineer and the bills were then paid.

The Contractor Dayaram had presented one bill of about Rs. 5000/- on 24-11-49. This bill was 1954 passed by the Executive Engineer''s office on 14-12-49 and it was sent to the Treasury Office on 19-12-49. It came back to the Executive Engineer''s Office under some objection on 6-1-50. The case of the prosecution is that it was then that the accused demanded some illegal gratification to expedite the passing of the bill. Dayaram says that the accused was demanding about Rs. 400/- or 500/- but he was inclined to pay not more than Rs. 300/-. At the same time he decided to inform the Anti-Corruption authorities at Rajkot. He came to Rajkot and got in touch with Vinodrai Trivedi, the Deputy Superintendent of Police, who recorded his statement, wherein he stated that the accused was demanding about Rs. 500/- from him but he wanted to pay Rs. 300/-. There is no definite evidence of any agreement between the accused and the complainant Dayaram about the sum to be paid as bribe. But it seems that some sort of an understanding must have been arrived at about the amount or that Dayaram surmised that the accused would be satisfied if he received Rs. 300/-. But Dayaram did not wish to pay the amount.

After his complaint to the Deputy Superintendent of Police it was arranged that a trap should be laid and the accused be caught redhanded as soon as the bribe was accepted. Accordingly, on 9-1-50, Trivedi and two Panches named Chimanlal and Nandlal, the first of whom has been examined in the case, met and three notes of Rs. 100/- each were initialled by both the Panches and Trivedi and handed over to Dayaram. The scene of offence was the ''Lati'' (timber godown) of one Arjunlal and the evidence shows that within about 4 or 5 feet of the ''Lati'' the money was handed over by Dayaram in the presence of his son Maganlal, who has also been examined and the accused put the amount in the pocket of his shirt. The three thereafter went into a cabin in the Lati where Arjunlal was also present. Soon after Dayaram made a pre-arranged sign to the police party and the Panches, who were outside the Lati at a distance of about 30 feet. The Police officers and the Panches came immediately into the cabin and searched the person of the accused and from his shirt pocket were found the identical notes bearing the initials of Trivedi and the Panches. Now this part of the case of the finding of the notes from the pocket of the accused''s shirt has not been challenged. The accused''s explanation is that he was invited into the cabin by Arjunlal to come and take some refreshment, whereafter the Contractor Dayaram and his son Maganlal came and while Dayaram was engaging the accused in conversation, Dayaram slipped into the accused''s shirt-pocket the incriminating notes without the accused knowing anything about it.

This story of the accused appears to us to be thoroughly unreliable for various reasons. (After considering the evidence his Lordship proceeded.) So that we are left to the unrefuted fact that Rs. 300/- in three one hundred notes initialled by the Deputy Superintendent of Police and the Panches were found in the pocket of the accused''s shirt soon after they were handed over by the complainant. The learned Magistrate after considering the evidence and the surrounding circumstances had come to the conclusion and rightly that the accused had entirely failed to prove as to how these Rs. 300/- came to be found on his person when the search was made.

In order to disprove the prosecution story Mr. Trivedi, the learned advocate for the opponent, has tried to rely upon certain discrepancies particularly in the story of Dayaram as given by him in his evidence and in the complaint before Trivedi and what has bean recorded in the Panchanama. But we think that these discrepancies are very minor. The substance of the evidence leaves no doubt that the accused had accepted the illegal gratification to the tune of Rs. 300/- and he was caught soon after in possession of the identical money paid.

Mr. Trivedi has also argued that there was no occasion for the accused to have demanded the illegal gratification, because the accused, was merely a junior clerk in the office of the Executive Engineer and was not dealing with the bills of contractors. But Jadavji, the senior clerk, says that he was at times dealing with the bills along with Anr. clerk, although Jadavji says that the accused was not handling the particular bill of about Rs. 5000/-. But this aspect of the case is not very material, as it is in evidence that the accused was not only dealing with the bills, of contractors but was also going to the Treasury Office to expedite the disposal of the bills, so that it would be quite legitimate to assume that Dayaram was under the impression that the accused was in a position to help him in the early realisation of the bills. Consequently, we see no substance in this argument.

Section 161, Indian Penal Code, 1860, only requires that the gratification should be given to a public servant as a motive or reward for doing, or forbearing to do any official act or for showing or forbearing to show favour or disfavour in the exercise of his official functions or for rendering or attempting to render any service or disservice to any person with any public servant. It does not require that the public servant himself must have the power or must himself be in a position to perform the act, to show favour or disfavour or to render service or disservice, for doing, showing or rendering which the bribe has been paid to him. See - Mahadeo Daunappa Gunaki and Another Vs. State, . We are, therefore, clearly of the opinion that the offences u/s 161, Indian Penal Code and Section 5(2), Prevention of Corruption Act have been established on facts.

Mr. Trivedi has however raised two legal points: He first contends that the whole criminal proceedings instituted against the accused are bad, as proviso to Section 3, Prevention of Corruption Act, 1947, lays down that the offence u/s 161, Indian Penal Code. and Section 5(2), Prevention of Corruption Act shall not be investigated by a, police officer below the rank of the Deputy Superintendent of Police without an order of the Magistrate of the First Class or make an arrest therefore without a warrant. Mr. Trivedi''s argument is that the first information was lodged by Trivedi, the Deputy Superintendent of Police, who was in the position of an informant, and that the investigation must have been made by the Sub-Inspector of Police, before whom the information was lodged.

Now we have on the record only the first information report, but there is no further evidence of the investigation made in the case. It is admitted that no order of the Magistrate of the First Class was obtained in the present case. The learned Advocate General argues that Trivedi, the Deputy Superintendent of Police, should be considered as the Investigating Officer, as he arranged the trap, was himself present when the offence was committed, made the arrest of the accused and recorded the Panchnama, which were the only material things to be done in the case. The offence was complete the moment the notes handed over by Dayaram to the accused. The investigation in the present case must be deemed to have started the moment Dayaram made the pre-arranged sign to Trivedi, whereupon the latter came along with the police party and the Panches on the scene of the offence and investigated into the offence there and then arresting the accused, making the search of his person and recording the Panchnama. So in the present case we agree with the learned Advocate General that the offence has in fact been substantially investigated into by "Trivedi himself, although he has lodged the formal information before the Sub-Inspector of "Police for the purpose of launching the prosecution. What the Sub-Inspector has done in fact is not on the record.

The word ''investigation'' has been defined in the Code of Criminal Procedure by Section 4(1) as including all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorised by a Magistrate in this behalf. The Bombay High Court in - ''Emperor v. Tribhovandas Brijbhukandas 26 Bom 533 (B) observed:

The definition of the term ''investigation'' in Section 4 is not exhaustive. It would, I think, be placing an undue limitation on the simple meaning of words to hold that a Police Inspector who had got information that persons were carrying on wagering business, and having satisfied himself had obtained a warrant u/s 6, Gambling Act and effected the arrest of the accused and the seizure of their books, had not taken any part in the investigation into the offence in respect of which the accused was being prosecuted.

In the present case, the entire investigation seems to have been completed at the scene of the offence by Trivedi on the spot by arresting the accused, making a search of the person of the accused and recording the Panchnama. Nothing important was necessary to be done further. We therefore hold that the provisions of the proviso to Section 3, Prevention of Corruption Act have been complied with.

The next technical argument advanced by Mr. Trivedi is that the sanction to the prosecution by the Rajpramukh is bad, as the person who was authorised to remove the accused from service was the Chief Engineer and he alone could sanction the prosecution u/s 6(c), Prevention of Corruption Act. It is true that the accused being a junior clerk in the last grade could be appointed and dismissed from office by the Chief Engineer. He could be appointed temporarily by the Executive Engineer, but the question is whether the Rajpramukh by delegating the authority of appointment and dismissal to the Chief Engineer divested himself permanently of the power of the appointment or dismissal.

It is not contended that the authority of appointment or removal is vested in the Chief Engineer by any statute. It is by departmental orders that the Rajpramukh has delegated some of his powers as the executive head of the Government to his subordinates. Where any power delegated is in fact exercised by the subordinate, it would be binding upon the Rajpramukh. But so long as there is no; exercise of such power, the Rajpramukh could exercise the same power himself on the general law that a principal can always exercise the power which he delegated to his agent, if the principal can at any moment revoke the authority of the agent. The Rajpramukh could at any moment put an end to1 the delegation of authority to the Chief Engineer and he could invest any other officer with this power or could reserve it to himself. The delegation of authority by the principal which is in its essence revokable cannot have the effect of divesting, the donor of the power permanently. We therefore think that the action of the Rajpramukh in sanctioning the prosecution was legal. We therefore repel the argument of the learned Advocate for the accused that the Rajpramukh could not sanction the prosecution. This disposes of the case so far as the conviction of the accused is concerned.

Now there remains the question of the enhancement of the sentences imposed by the Magistrate, for which the reference has been made by the Sessions Judge. Mr. Trivedi pleads that considerable time has elapsed, as the offence was committed in the beginning of 1950, the case was decided by the Magistrate on 10-11-1951 and the reference by the Sessions Judge was made in 1952. He has relied upon a ruling of the Bombay High Court in - ''Emperor v. Roger De Silva 13 BLR 1185 (C) in support of his argument that'' the High Court should not enhance the sentence after lapse of considerable time.

But in the present case a part of the delay in the disposal of the case is attributable to the accused himself. After his conviction the Sessions Judge on scrutinising the monthly return of cases decided, thought that this was a fit case in which the sentences should be enhanced; but he was unable to serve any notice on the accused as his whereabouts were not traceable. He had ultimately to make an ''ex parte'' reference in May 1952. There was therefore no delay such as to attract the principles laid down in the Bombay case relied upon. Sentence of mere fine of Rs. 200/- for an offence of accepting illegal gratification of Rs. 300/- seems to us ridiculous.

While maintaining the conviction u/s 161, Indian Penal Code and Section 5(2), Prevention of Corruption Act, we think that there is no necessity to impose separate sentences, as the act of accepting illegal , gratification which is an offence u/s 161, Indian Penal Code is also an offence u/s 5(2), Prevention of Corruption Act (See in this respect Ratanlal & Dhirajlal''s Law of Crimes, 1948 Edition, page 115). Giving the case our best consideration, we are of the opinion that the accused should undergo a sentence of six months'' rigorous imprisonment for the offence u/s 161, Indian Penal Code and Section 5(2),'' Prevention of Corruption Act, in addition to the fine of Rs. 200/- imposed and which has already been paid as we are so informed. We order accordingly.

Baxi, J.

I agree.