# [1969] 1 S.C.R. 183

- **Citation:** [1969] 1 S.C.R. 183
- **Court:** Supreme Court of India
- **Decided:** 1968-05-01
- **Case number:** Criminal Appeal No. 63-D of 1964
- **Bench:** V. Ramaswam!, C. A. Vaidial!Ngam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1969-1-s-c-r-183-4368
- **Pages:** 5

## Headnote

Prevention of Corruption Act (2 of 1947), ss. 5(1) and 6 and Indian
Penal Code (Act 45 of !860), s. 161-Sanction to prosecute-Sufficiency
-Scope of s. 161 I.P.C. ands. 5(1) of tile Prevention of Corruption
Act.
An unmarried woman gave birth to a child and on her request, her
uncle and aunt made arrangements for the child being brought up by
some on.c who wanted to adopt a child. The appellant, who was a
police officer, accused the uncle and aunt of having disposed of an
illegitimate child and demanded a bribe. The anti-corruption
department was thereupon informed, a trap laid and currency notes which were
given as .Uribe were recovered from the appellant.
He was prosecuted
and convicted for offences under s. 5(2) of the Prevention of Corruption Act and s. 161, I.P.C. The High Court confirmed
the
conviction
and sentenced him to 2 years R.I.
In appeal to this Court,
HELD : ( 1) The order of sanction showed on the face of it what
were the facts constituting the offence, that 'a prima facie case was
made out and that the sanctioning authority had fully and carefully
examined the material. Therefore, the order of sanction fulfilled
the
requirements of s. 6 of the Prevention of Corruption Act. [186 B, DJ
Gokulclumd v. The King, A.I.R. 1948 P.C. 82, distinguished.
(2){a) When a public servant is charged under s. 161 I.P.C. and
it is a!legetl that 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 public servant was
capable of doing or
intended to do such an act. [186 F-G]
Mahesh Prasad v. Tiie Slate of U.P. [19551 I S.C.R. 965. followed.
Therefore, though the concealment of the birth of an
illegitimate
child is not an offence and the appellant could not have J2rosecuted any
one, it could n.ot be said that the obtaining of money by the appellant
for refraining fron1 an imaginary prosecution was not an offence under
s. 161 J.P.C. [186 E-Fl
(b) In any event. the appellant was guilty of an offence
under
s. 5(l)(d) of the Prevention of Corruption Act, in that he
grossly
abused his position within the meaning of the section and thereby obtained for himself pecuniary advantage. and so, the sentence imposed on
him was nat excessi'C fl 87 D, El

## Text

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SHIV RAJ SINGH
v .
DELHI ADMINISTRATION
May 1, 1968
[V. RAMASWAM! AND C. A. VAIDIAL!NGAM, JJ.]
Prevention of Corruption Act (2 of 1947), ss. 5(1) and 6 and Indian
Penal Code (Act 45 of !860), s. 161-Sanction to prosecute-Sufficiency
-Scope of s. 161 I.P.C. ands. 5(1) of tile Prevention of Corruption
Act.
An unmarried woman gave birth to a child and on her request, her
uncle and aunt made arrangements for the child being brought up by
some on.c who wanted to adopt a child. The appellant, who was a
police officer, accused the uncle and aunt of having disposed of an
illegitimate child and demanded a bribe. The anti-corruption
department was thereupon informed, a trap laid and currency notes which were
given as .Uribe were recovered from the appellant.
He was prosecuted
and convicted for offences under s. 5(2) of the Prevention of Corruption Act and s. 161, I.P.C. The High Court confirmed
the
conviction
and sentenced him to 2 years R.I.
In appeal to this Court,
HELD : ( 1) The order of sanction showed on the face of it what
were the facts constituting the offence, that 'a prima facie case was
made out and that the sanctioning authority had fully and carefully
examined the material. Therefore, the order of sanction fulfilled
the
requirements of s. 6 of the Prevention of Corruption Act. [186 B, DJ
Gokulclumd v. The King, A.I.R. 1948 P.C. 82, distinguished.
(2){a) When a public servant is charged under s. 161 I.P.C. and
it is a!legetl that 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 public servant was
capable of doing or
intended to do such an act. [186 F-G]
Mahesh Prasad v. Tiie Slate of U.P. [19551 I S.C.R. 965. followed.
Therefore, though the concealment of the birth of an
illegitimate
child is not an offence and the appellant could not have J2rosecuted any
one, it could n.ot be said that the obtaining of money by the appellant
for refraining fron1 an imaginary prosecution was not an offence under
s. 161 J.P.C. [186 E-Fl
(b) In any event. the appellant was guilty of an offence
under
s. 5(l)(d) of the Prevention of Corruption Act, in that he
grossly
abused his position within the meaning of the section and thereby obtained for himself pecuniary advantage. and so, the sentence imposed on
him was nat excessi'C fl 87 D, El
CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal No .
124 of 1966.
Appeal by special leave from the judgment arid order dated
February 17, 1966 of the Punjab High Court (Circuit Bench)
Delhi in Criminal Appeal No. 63-D of 1964.
184
SUPREME COURT REPORTS
( 1969] I S.C.R.
M. C. Chag/a E. C. Agarwa/a, Santosh Agarwa/a and P. C.
A
Agarwala, for the appellant.
D. Narsaraju and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special leave, from
the judgment of the Punjab High Court dated February 17, 1966
in Criminal Appeal No. 63-D of 1964 affirming the conviction
of the appellant under s. 5(2) of the Prevention of Corruption
Act (Act II of 1947) ands. 161 of the Indian Penal Code.
The case of the prosecution is that Miss Eylcnc (P.W. 2) used
to liye in 1962 with her father at Fazilka. She developed illicit
connection with someone and became pregnant. In April 1963,
she went to Ambala to her maternal aunt, who i~ employed as a
sister in the Amba!a Air Force Hospital, and give birth to a son
there in July 1963. In August 1963 Miss Eylcne along with her
newly born son came to the house o{ her uncle Russel Nathaniel
in Andrews Ganj, Delhi. Since Miss Eylene was unmarried and
could not keep the son with her, she asked Russel Nathaniel and
his wife to make arrangement for the bringing up of the child.
Russel Nathaniel knew Roshan Lal who had no child of his
own and wanted to adopt a child. Accordingly, on August 25,
1963 the child was handed over to Roshan Lal.
After the child
was handed over to Roshan Lal, Miss Eylene went to the house
of her sister's husband, N. K. Lal, P.W. II and stayed there with
her sister. It is alleged that on August 29, 1963 at about 9.30
or 10 P.M. the appellant went to the house of Russel Nathaniel
in police uniform and accused Russel Natheniel and his wife of
disposing of the illegitimate child. The appellant further warned
Mr. & Mrs. Nathaniel that if they wanted to save the1nselves they
should make some settlement with him and demanded a bribe of
Rs. 1,000/-. But Mr. Nathaniel paid him Rs. 90/- and agreed
to pay later on a sum of Rs. 700/-. The appellant thereafter compelled Russel Nathaniel and his wife to execute a document in
writing that they would pay him Rs. 700/- or a£ree to go to
prison.
It is said that the appellant asked Russel Nathaniel to
bring to him Roshan Lal and when Roshan Lal was called, the
appellant asked him to pay something to him. Roshan Lal expressed his inability to pay anything whereupon the appellant removed a golden ring from his finger.
On the same night the
appellant contacted the girl, Miss Eylene and wished to record
her statement. Russel Nathaniel and his wife expressed their reluctance to send Miss Eylene with the appellant to the police station and therefore the appellant in!errogated tl1e girl at the residence of N. K. Lal, her brother-in-law. The appellant made her
sign a paper and took the same with him.
On September 4,
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SHIV RAJ SINGH v. DELHI ADMN. (Ramaswami, J.)
185
J 963 Russel Nathaniel and N. K. Lal dceided to refer the matter
to the anti-corruption department.
Accordin_gly, Russel Nathaniel went to D.S.P. Mukatdhari Singh who recorded his statement
and called two witnesses to witness the proceedings.
Russel
Nathaniel produced seven currency notes of the denomination of
Rs. 100/- each. The numbers of those currency notes were noted
and Russel Nathaniel was then instructed to pass on the money
to the appellant.
Russel Nathaniel contacted the appellant and
asked him to come to the house of N. K. Lal.
They arrived at
the house of N. K. Lal at about 7.30 or 7.45 P.M. The appellant
sent for the girl because he wanted to reprimand her and thereafter he asked for the payment of the agreed amount.
Russel
Nathaniel handed over the currency notes to the appellant who
put them in the left side pocket of his trousers. Russel Nathaniel
then gave a signai and immediately D.S.P. Mukatdhari Singh
turned up and recovered the currency notes from the pocket of
the appellant. On being questioned the appellant told the D.S.P.
that he never asked for bribe and that the money was paid to
him in repayment of the loan by him to Russel Nathaniel. The
appellant produced in the witness. box Dharam Vir, F. C. Ram
Saran, H. C. .Tai Parkash and A. S. Kapur. After conclusion of
the. trial the Special Judge, Delhi accepted the prosecution case
as correct and convicted the appellant of the charged framed
against him and sentenced him to undergo rigorous imprisonment
for two years and to pay a fine of Rs. 5001- or in default to
undergo rigorous imprisonment for a futiher period of six months
under s. 5(2) of the Prevention of Corruption Act, and to two
years rigorous imprisonment under s. 161, Indian Penal Code
and ordered the substantive sentences to run concurrently. The
appellant took the matter in appeal to the Punjab High Court.
The High Court maintained the conviction of the appellant under
s. 5(2) of the Prevention of Corruption Act and s. 161, Indian
Penal Code and also the sentence to undergo rigorous imprisonment for a period of two years awarded to the appellant on each
count. The High Court, however, set aside the order with regard
to the payment of fine or imprisonment in default.
In support of this appeal Mr. Chagla submitted in the first
place that the order of sanction was bad in law as all the relevant
papers and materials were not placed before the D.I.G. Police,
Mr. M. P. Singh who was the sanctioning authority. Reference
was made in this connection to the decision of the Judicial Committee in Gokulchand v. The King(') in which it was held that
a sanction which siJY.ply names the person to be prosecuted and
specifies the provision of the Order which he is alleged to have
contravened is not a sufficient compliance with cl. 23. Mr. Chagla
(1) A.l.R.19481'.C.82.
JO
Sup. C.I-68-!3
186
SUPREME conn REPORTS
[ 1969] I S.C.R
also referred to the evidence of P.W. 9, Sub-Inspector, Ascharaj
Lal who said that ··an the papers relating to the case were sent
to the D.I.G." When cross-examined, he could not say wbich
were the documents which were sent to the DJ.G. because they
were in a sealed cover.
In our opinion. there is no substance
in the argument put forward by Mr. Chagla on behalf of the
appellant. The Order of sanction dated December I 0, I 963 shows
oa the face of it what were the fact.s constituting the offence charged and that a prima facie case was made out against the appellant. The Order also further recites that Mr. M. P. Singh, D.l.G.,
"after fully and carefully" examining the material before him in
regard to the "aforesaid allegations" in the case, considers that a
prima facie
case is made against the appellant.
It is manifest
that the decision of the Judicial Committee has no application to
the present case, for the order of sanction in that case was much
more cryptic and materially different.
We are satisfied that the
order of sanction in the present case fulfils the requirements of
s. 6 of the Prevention of Corruption Act.
We accordingly reject
the argument of Mr. Chagla on this aspect of the case.
It was then contended that the con.:calment of the birth of
an illegitimate child was not an offence under the Indian Penal
Code or any other criminal statute and if the appellant had obtained money from Russel Nathaniel, it cannot be said that the
appellant had obtained a gratification for doing or forbearing to
do any official act. or for showing or forbearing to show, in the
exercise of his official functions. favour or disfavour to any person. Jn other words, the argument was that the appellant could
not prosecute either Miss Eylene or Russel Nathaniel or anybody
else for any offence and obtaining of money by the appellant for
refraining from any such imaginary prosecution cannot be said
to be an offence under s. 161. Indian Penal Code or s. 5~ )(d)
of the Prevention of Corruption Act.
We arc unable to accept
this argument as correct. When a public servant is charged under
s. 161, 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 public servant was c:ipablc of doing or intended to do
such an act: sec the decision of this Court in
Mahesh Prasad
v. The State of Uttar Pradesh(').
In the second
place.
the
charge against the appellant is also under s. 5(1)(d) of the Prevention of Corruption Act which states :
"5. (I) A public servant is said to commit the offence
of criminal misconduct-
(I) [195j) I S.C.R. 965.
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SHIV RAJ SINGH V. DELHI ADMN. (Ramaswami, J.)
187
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(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for hinlself or for any other person any
valuable thing or pecuniary advantage or,"
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Section 5(2) states :
"(2) Any public servant who commits crinlinal misconduct shall be punishable with inlprisonment for a
term which shall not be less than one year but which
may extend to seven years and shall also be liable to
fine:
Provided that the court may, for any special reasons
recorded in writing, impose a sentence of inlprisonment
of less than one year."
Upon the facts which have been found by the High Court to
be proved there can be no doubt that the appellant was guilty of
grossly abusing his position as public servant within the meaning
of s. 5(1)(d) of the Prevention of Corruption Act and thereby obtained for himself a valuable thing or pecuniary advantage, and·
the charge under that section is established.
We are therefore
of the opinion that Mr. Chagla is unable to make good his argu-·
ment on this aspect of the c~ also.
Lastly, Mr. Chagla submitted that the sentence of imprisonment was excessive.
We are unable to accept this contention.
Upon the finding of the High Court in this case it is manifest that
the appellant grossly abused his position as a police officer and
extorted money from Russel Nathaniel and his wife and also a
gold ring from Roshan Lal. The appellant in his official capacity
as a police officer was expected to maintain a high standard of
integrity and to uphold the maintenance of law.
Instead the
proved facts disclose that there was a gross abuse of his official
position on the part or the appellant and in the circumstances of
t~e case we are satisfied that the Sentence imposed is not excessive.
For the reasons expressed we affirm the judgment of the High
Court of Punjab dated February 17, 1966 in Crinlinal Appeal No.
63-D of 1964 and dismiss this appeal.
V.P.S.