# [1955] 1 S.C.R. 965

- **Citation:** [1955] 1 S.C.R. 965
- **Court:** Supreme Court of India
- **Decided:** 1952-08-12
- **Case number:** CRIMINAL APPELLATE JurusmcTION : Criminal Appeal No. 39 of 1954
- **Bench:** MuKHERJEA, VIVIAN BosE, Jagannadhadas Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-1-s-c-r-965-1222
- **Pages:** 8

## Headnote

Indian
Penal Code
(Act XLV of 1860), s.
161-Accused's
power or intention to do the official
act-Relevancy-ChargePrevention 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.
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~
In view of article 311 ( 1) of the Constitution of India and rule
1705(c) of the
Indian
Railway Establishment
Code,
Volume I
(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.
CRIMINAL
APPELLATE
JurusmcTION :
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.
1954
October 29
966
SUPREME COURT REPORTS
[1955]
x954
0. P~ Lal for the respondent.
Mahesh Prasad
1954. October 29. The Judgment of the Court was
v.
delivered by
The State of'--------· ·
Uttar Pradesh\' · JAGANNADHADAS J.-The appellant in thi3 case was
· -
a clerk in the office of the Running Shed Foreman of
Jagannad~ad"' J. 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 HighCourt 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 retren~
ched 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 notic.e 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 ·unsus·
tainable. It is unnecessary to notice this argument in

## Text

' -~>
... .
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(
S.C.R.
SUPREME COURT REPORTS
965
MAHESH PRASAD
ti.
THE STATE OF UTTAR PRADESH.
[MuKHERJEA,
VIVIAN
BosE, and JAGANNADHADAS JJ.J
Indian
Penal Code
(Act XLV of 1860), s.
161-Accused's
power or intention to do the official
act-Relevancy-ChargePrevention 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.
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~
In view of article 311 ( 1) of the Constitution of India and rule
1705(c) of the
Indian
Railway Establishment
Code,
Volume I
(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.
CRIMINAL
APPELLATE
JurusmcTION :
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.
1954
October 29
966
SUPREME COURT REPORTS
[1955]
x954
0. P~ Lal for the respondent.
Mahesh Prasad
1954. October 29. The Judgment of the Court was
v.
delivered by
The State of'--------· ·
Uttar Pradesh\' · JAGANNADHADAS J.-The appellant in thi3 case was
· -
a clerk in the office of the Running Shed Foreman of
Jagannad~ad"' J. 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 HighCourt 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 retren~
ched 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 notic.e 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 ·unsus·
tainable. 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
I
' !
.. "
I
S.C.R.
SUPREME COURT REPORTS
967
Court. . It is sufficient to notice the main legal argur954
ments that have been advanced.
M akesh Pr as ail
It is pointed out that the appellant though employed
v.
in the Railway was not himself a person who was in a
The Stat•of
position to give a job to the complainant nor is it Uttar Pradesh
shown that he had any intimacy or influence with any
-
particular official who could give a job. It is urged Jagannadhadaa J.
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 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
1954
Mahesh Prasad
,, ..
The Stale of
Uttar Prat!esli
Jagannodhadas J,
%8
SUPREME COURT REPORTS
[1955]
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
I
-
•
'
•
-
-
S.C.R.
SUPREME COURT REPORTS
969
of
Corruption Act, 1947
would apply and
that
by
virtue of section
6 ( c) thereof the prosecution requires
the sanction of the authority
"comp~tent 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 Co_nstitution 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 I (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 appoin!ment.
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
compet1ent 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 311(1) of the Constitution and
1954
Mahesh Prasllll
v.
The Statt of
Uttar Pradllh
Jagannadhadas J.
1 954
Mahtsh Prasad
v,
The State of
Uttar Pradesh
Jagannadadhas. J• ·
970
SUPREME COURT REPORTS
(1955J ·.
rule 1705(c) of the Railway Establishment
Code have
been satisfied with reference to the inter se poS1t10n 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 auth<>rity directly
superior
to the appointing authority in the
same department.
We do not think that this contention is tenable.
What
the Constitution r.equires is that a person should not be
removed by an authority subordinate
to the
one 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 autl1ority 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 Superintend"
ent, 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
rhe most appropriate
officer
to grant · the
sanction.;
• -
..
•
-
r -l
-
S.C.R ..
SUPREME COURT REPORTS
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 Qfficer
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-cle_rk 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 Corrup-·'
tion Act but also as read with article 311(1) of the Con- ·
stitution and rule 1705(c) of the Railway Establishment
1954
· Mahesh PraSad
v. ·--
The State_ of
Uttar Pradesh
·JagonnOdhadas J .
1954
MaMsh Prasad
v.
Tlle$fatf!of
Ult., I+a¢ah
J•gtμ1nadhadas ].
'l72
SUPREME COURT REPORTS
[1955J
Code. On the material we are not satisfied that there
is any reason to reverse the findings of the courts belmf
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 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
ASSAM BENGAL CEMENT CO. LTD.
f),
,[ ..
•
THE COMMISSIONER OF INCOME-TAX,
\_ "
WEST BENGAL
[MEHAR CHAND MAHAJAN C.J., s. R. DAS,
BHAGWATI and VENKATARAMA AYYAR JJ.J
Indian
Income-tax Act (XI of I922), s,
10(2)(xv)-Capital
expenditure-Revenue
expenditure-Meaning of
and
distinction
between the two.
Section 10(2)(xv) of the Indian Income-tax Act, 1922, uses the
term 'capital expenditure' for which no allowance is
given to the
assessee. The term 'capital expenditure' is used as contrasted with
the term 'revenue expenditure' in respect of which the assessee is
entitled to allowance under section 10(2) (xv) of the Act.
As pointed out by the Full Bench of the Lahore High Court in
Benarsidas fagannath, In re [(1946)
15 l.T.R. 185], it is not easy
to define the
term 'capital expenditure' in
the
abstract or to lay
down any g~neral and satisfactory test to discriminate between
a
capital ancf_ a revenue expenditure.
Though it is not easy
to reconcile al\ the decided i;:ases on the subject, as each case had
been
decided
on its
peculiar
fac;ts,
so1ne broad
principles
could be