http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

MAHESH PRASAD

Vs.

RESPONDENT:

THE STATE OF UTTAR PRADESH.

DATE OF JUDGMENT:

29/10/1954

BENCH:

JAGANNADHADAS, B.

BENCH:

JAGANNADHADAS, B.

MUKHERJEA, B.K.

BOSE, VIVIAN

CITATION:

1955 AIR 70 1955 SCR (1) 965

CITATOR INFO :

R 1968 SC1323 (8)

F 1968 SC1419 (4)

R 1976 SC1497 (21)

R 1982 SC1407 (23)

ACT:

Indian Penal Code (Act XLV of 1860), s. 161-Accused's power

or intention to do the official act-Relevancy-Charge-

Prevention of Corruption Act (II of 1947), s. 6(c) (as it

existed prior to August 12,1952) --Indian Railway

Establishment Code Vol. I (1951 Ed.), rule 1705(c)--Test of

sanction.

HEADNOTE:

When a public servant is charged under section 161 of the

Indian Penal Code, and it is alleged that the illegal

gratification was taken by him for doing or procuring an

official act, it is not necessary for the Court to consider

whether or not the accused as public servant was capable of

doing or intended to do such an act.

In a case where the illegal gratification is alleged to have

been received by the accused as a public servant for

influencing some superior officer to do an act, the charge

framed against such accused under section 161 of the Code

need not specify the particular superior officer sought to

be so influenced.

It view of article 311(1) of the Constitution of India and

rule 1705(c) of the Indian Railway Establishment Code,

Volume 1 (1951 Edition) a sanction under section 6(c) of the

Prevention of Corruption Act, 1947 (as it existed prior to

August 12, 1952) may be given either by the very authority

who appointed the public servant or by an authority who is

directly superior to such appointing authority in the same

department. But such sanction is also legal if it is given

by an authority who is equal in rank or grade with the

appointing authority. Sanction is invalid if it is given by

one who is subordinate to or lower than the appointing

authority.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 39 of

1954.

Appeal by Special Leave from the Judgment and Order dated

the 5th May, 1953, of the Lucknow Bench of Allahabad High

Court in Criminal Revision No. 200 of 1952, arising out of

the Judgment and Order, dated the 17th May, 1952, of the

Special Magistrate, AntiCorruption for Uttar Pradesh at

Lucknow in Case No. 40 of 1951.

Hardyal Hardy (K. L. Arora and S. D. Sekhri, with him) for

the appellant.

123

966

C. P. Lal for the respondent.

1954. October 29. The Judgment of the Court was delivered

by

JAGANNADHADAS J.-The appellant in this case was a clerk in

the office of the Running Shed Foreman of -the East Indian

Railway at Kanpur. He was convicted under section 161 of

the Indian Penal Code and sentenced to rigorous imprisonment

for one year and nine months, and also to a fine of Rs. 200.

The conviction and sentence have been upheld by the Sessions

Judge on appeal and by the High Court in revision. The

charge against the appellant was that on the 6th of January,

1951, he accepted illegal gratification of Rs. 150 from the

complainant, Gurphekan-a retrenched cleaner in the

Locomotive Department of the Railway, examined as P.W. 2-as

a motive for getting him re-employed in the Railway (by

arranging with some superior officer). There was an

alternative charge under section 162 of the Indian Penal

Code but it is no longer necessary to notice it since the

conviction is for the main charge under section 161 of the

Indian Penal Code. The Special Police Establishment having

received information of the demand of the bribe arranged for

a trap and caught the appellant just at the time when he

received the sum of Rs. 150 from the complainant and seized

the amount. The appellant admitted the receipt of the money

but denied that he demanded or accepted it as a bribe. His

case was that the complainant had previously borrowed money

from him and that this money was paid in discharge of the

debt. The Courts below have rejected the defence and

accepted the prosecution case and conviction followed

thereupon.

Learned counsel for the appellant has tried to persuade us,

with reference to the evidence in the case, that the view

taken by the Courts below is unsustainable. It is

unnecessary to notice this argument in any detail because

this is an appeal on special leave and nothing so seriously

wrong with the findings of fact have been shown, which call

for interference by this

967

Court. It is sufficient to notice the main legal arguments

that have been advanced.

It is pointed out that the appellant though employed in the

Railway was not himself a person who was in a position to

give a job to the complainant nor is it shown that he had

any intimacy or influence with any particular official who

could give a job. It is urged therefore that the offence,

if any, committed by the appellant could only be one of

cheating and not the receiving of a bribe. This argument is

without any substance. By the terms of section 161 of the

Indian Penal Code a person who is a public servant and

accepts illegal gratification as a motive for rendering

service, with any public servant as such, is guilty of the

offence thereunder. To constitute an offence under this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

section it is enough if the public servant who receives the

money takes it by holding out that he will render assistance

to the giver "with any other public servant" and the giver

gives the money under that belief. It may be that the

receiver of the money is in fact not in a position to render

such assistance and is even aware of it. He may not even

have intended to do what he holds himself out as capable of

doing. He may accordingly be guilty of cheating. None the

less he is guilty of the offence under section 161 of the

Indian Penal Code. This is clear from the fourth

explanation to section 161 of the Indian Penal Code which is

as follows :

"A motive or reward for doing.' A person who receives a

gratification as a motive for doing what he does not intend

to do (or as a reward for doing what he has not done) comes

within these words. "

Illustration (c) to section 161 of the Indian Penal Code

which runs as follows also elucidates this:

A, a public servant, induces Z erroneously to believe that

A's influence with the Government has obtained a title for Z

and thus induces Z to give A money as a reward for, this

service. A has committed the offence defined in this

section. "

Thus where a public servant who receives illegal

gratification as a motive for doing or procuring an

968

official act whether or not he is capable of doing it or

whether or not he intends to do it he is quite clearly

within the ambit of section 161 of the Indian Penal Code.

The next contention that has been raised is that the charge

does not specify the particular public servant who was

intended to be influenced by the appellant in consideration

of his receiving the money. It is urged that section 161 of

the Indian Penal Code would not apply to such a case. It is

suggested that the phrase "with any public servant" in

section 161 of the Indian Penal Code must relate to a

specified public servant. In the present case the evidence

of the complainant and the finding of the High Court is that

the appellant "purported to attempt rendering of a service

to the complainant with another public servant, viz., the

Head-clerk at Allahabad." But even apart from such a finding

there is nothing in the terms of section 161 of the Indian

Penal Code requiring that the public servant contemplated

therein must be a specified public servant. The material

portion of the section is as follows:

" for rendering or attempting to render any service or

disservice to any person, with the Central or Provincial

Government or Legislature, or with any public ,servant as

such. "

The phrase "Central or any Provincial Government or

Legislature" does not contemplate any specified individual

or individuals. There is no reason why the phrase "any

public servant" used in the same context should be taken to

mean any specified public servant. The gist of the offence

under section 161 of the Indian Penal Code (in so far as it

is relevant here) is the receipt by a public servant of

illegal gratification as a motive or reward for the abuse of

official position or function, by the receiver himself or by

some other public servant at his instance. There is,

therefore, no substance in this argument.

The only serious argument that has been advanced and which

requires a little closer examination is that there was no

valid sanction for the prosecution. There is no doubt that

this is a case to which the Prevention

969

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

of Corruption Act, 1947 would apply and that by virtue of

section 6(c) thereof the prosecution requires the sanction

of the authority "competent to remove the appellant from his

office." It is urged that this requirement was not satisfied

on the facts of this case. It has been pointed out that the

appellant is a civil servant of the, Indian Union and that

by virtue of article 311 (1) of the Constitution he cannot

be removed by an authority subordinate to that by which he

was appointed. This appears also to be the position under

rule 1705(c) of the Indian Railway Establishment Code,

Volume 1 (1951 Edition) which is as follows:

"No railway servant shall be removed (or dismissed) by an

authority lower than that by which he was appointed to the

post held by him substantively".

The sanction for the prosecution in this case was granted

under Ex. 10 by one Shri L. R. Gosain, Superintendent Power,

East Indian Railway, Allahabad. The order of appointment of

the appellant, Ex-F, shows the Divisional Personnel Officer,

East Indian Railways, Allahabad, as the appointing

authority. It may be mentioned that in the appeal before

the Sessions Judge a contention was raised that the

appointment of the appellant was in fact made by the

Divisional Superintendent and that Ex. F was only signed by

the Divisional Personnel Officer on his behalf The Sessions

Judge found against this contention and the same has not

been challenged before us. What, however, is urged is that

the Superintendent Power who gave the sanction for

prosecution is not shown to be an officer not lower in rank

than the Divisional Personnel Officer who made the

appointment. The question as to the validity of the

sanction has been raised both before the Sessions Judge as

well as before the High Court. The High Court in

considering the question appears to have merely satisfied

itself that under the Railway Regulations, Shri L. R.

Gosain, Superintendent Power, was a person competent to

remove the appellant from his office within the terms of

section 6 of the Prevention of Corruption Act. The High

Court does not appear to have considered the further

question whether or not the requirements of article 31 1 (1)

of the Constitution and

970

rule 1705(c) of the Railway Establishment Code have been

satisfied with reference to the inter se position as between

the authority who appointed the appellant and the authority

who sanctioned the prosecution. The learned Sessions Judge,

however, has recorded a categorical finding that the

Divisional Personnel Officer is -in the same grade as the

Superintendent Power. His finding is in the following

terms:

"I, therefore, hold that the accused could be and was

actually appointed by the Divisional Personnel Officer who

is in the, same grade as the Superintendent Power. It

cannot therefore be said that the Superintendent Power Mr.

L. R. Gosain was not authorised to remove the accused from

service by virtue of rule 1705 and this argument advanced

against the validity of sanction, Ex. 10, falls to the

ground".

Learned counsel for the appellant urged that the requirement

both of the Constitution and of the rule of the Railway

Code, contemplates that the authority competent to remove

must be either the very authority who appointed or any other

authority directly superior to the appointing authority in

the same department, We do not think that this contention is

tenable. What the Constitution requires is that a person

should not be removed by an authority subordinate to the one

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

by whom he was appointed and what the rule in the Railway

Code prescribes is substantially the same, viz., "the

authority competent to remove should not be lower than the

one who made the appointment". These provisions cannot be

read as implying that the removal must be by the very same

authority who made the appointment or by his direct

superior. It appears to us to be enough that the removing

authority is of the same rank or grade. In the present case

it does not appear into which particular branch of the

department the appellant was taken, in the first instance in

1944 under Ex. F. But it is in the evidence of P.W. 4, the

Head-clerk of the office of the Divisional Superintendent,

that the office of the Running Shed Foreman in which the

appellant was a clerk in 1951 was directly under the

Superintendent Power. He was obviously the most appropriate

officer to grant the sanction,

971

provided he was of a rank not less than the Divisional

Personnel Officer.

Counsel for the appellant urges that the evidence does not

support the finding of the learned Sessions Judge that Shri

L. R. Gosain, Superintendent Power, was of the same grade as

the Divisional Personnel Officer who made the appointment.

P. W. 4 in his evidence, however, quite clearly speaks to

this as follows:

"Divisional Superintendent is the head of the entire

administrative division. The Divisional Personnel Officer

is under him. The Superintendent Power and Superintendent

Transport are also under him and also such other officers of

the same rank............. Divisional Personnel Officer and

the various Superintendents are officers of the same rank.

They are not subordinate to each other".

It has been commented that this should have been

substantiated by the official records and not by oral

evidence. That no doubt would have been more satisfactory.

The learned Sessions Judge on appeal, in order to satisfy

himself, has referred to the Classified List of

Establishment of Indian Railways and the same has also been

produced before us for our information. This shows that

both the Divisional Personnel Officer as well as

Superintendent Power are officers in the senior scale

drawing equal scales of pay, Rs. 625-50-1375. This is an

indication that they are officers of the same rank and

confirms the oral evidence of P.W. 4 who being the Head-

clerk of the Divisional Superintendent's office must be

competent to speak about these matters. It certainly cannot

be said that the Superintendent Power who has granted the

sanction for prosecution of the appellant at the time

working under him, is of a rank or a grade lower than the

Divisional Personnel Officer who appointed the appellant.

This matter would probably have been more satisfactorily

clarified in the trial -court if the question as to the

validity of the sanction had been raised not merely with

reference to the wording of section 6 of the Prevention of

Corruption Act but also as read with article 311(1) of the

Constitution and rule 1705(c) of the Railway Establishment

972

Code. On the material we are not satisfied that there is

any reason to reverse the findings of the courts below that

the sanction is valid.

All the contentions raised before us are untenable. This

appeal must accordingly fail. It has been represented to us

that the appellant who has been refused bail by this court

when leave to appeal was granted but has been granted bail

subsequently has already served nearly six months of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

imprisonment in the intervening period, that he is a young

man and has lost his job. In the circumstances we consider

that it is not necessary to send him back to jail. The

result, therefore, is that the appeal is dismissed subject

to the modification of sentence of imprisonment. We reduce

the sentence of imprisonment to the period already

undergone. The sentence of fine stands.

Appeal dismissed