1. This is an appeal filed by the State against an order of acquittal passed by the Special Judge, North Satara, at Satara in Sessions Case No. 2 of 1955. The accused Shamrao Navji Patil was charged before the Special Judge with having committed offences under Section 161 of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act, 1947. The learned Special Judge tried the case under the provisions of the Criminal Law Amendment Act, 1952, and acquitted the accused. The learned Special Judge held that it was established by the prosecution that the accused had obtained gratification for issuing a solvency certificate to the complainant BalkrishnaRamchandra Ghadge and to Vishnu Sambhaji. The learned Special Judge also held that there was a proper sanction given for prosecuting the accused. But the learned Judge held that there was no provision of law which required a Police Patil to issue a solvency certificate as part of his duty and, therefore, receiving gratification for issuing a solvency certificate, which was to be used in criminal proceedings, could not be regarded as an official act. The learned Judge on that view acquitted the accused. The State of Bombay has preferred an appeal against the order of acquittal.
2. The Assistant Government Pleader submits that when the accused, who was at the relevant time a Police Patil, was asked by Balkrishna Ghadge to issue a solvency certificate, he was asked to do an official act, and when the accused demanded Rs. 25 for issuing that certificate and actually received that amount, he committed an offence punishable under Section 161 of the Indian Penal Code. The Assistant Government Pleader contends that within the meaning of Section 161 of the Indian Penal Code an official act for the doing of which a public servant accepts or obtains or agrees to accept or attempts to obtain gratification other than legal remuneration, must be an act which in his capacity as a public servant he can do, but need not be an act which the public servant is obliged to do. In our view, the contention raised by the learned Assistant Government Pleader is correct. Section 161 of the Indian Penal Code provides, in so far as that section is material:
Whoever, being a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatsoever, other than legal remuneration, as a motive or reward 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, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant, as such, shall be punished with imprisonment.
prescribed thereunder. Evidently, on the words of the section the person who accepts or obtains or agrees to accept or attempts to obtain, must be a public servant and he must accept, obtain or agree to accept or attempt to obtain gratification other than legal remuneration and such acceptance, etc. must be as a motive or reward for doing or forbearing to do an official act. The Legislature has not provided that the official act must be an act which it is obligatory upon the public servant to do. Provided the act is done or intended to be done in his official capacity as distinguished from his purely private capacity, it is not necessary that the public servant should be obliged to do the act. In other words, the act or omission for the doing of which gratification is obtained or accepted or attempted to be obtained must be in connection with the official functions of the public servant. In our view, the learned Special Judge was in error in holding that the official act 'must be part of his duty for which he is paid.' He was also in error in holding' that illegal gratification 'can only be applied in respect of a part of the duty for which the accused is already paid and for which the accused cannot demand any payment from others.' It is true that where the act has no concern with his official function a public servant does not commit an offence under Section 161 of the Indian Penal Code by demanding, receiving or attempting to receive any valuable thing as gratification for doing that act. The words of Section 161 of the Indian Penal Code are plain and clear and it is impossible to impose thereon any restrictions of the nature suggested by the learned Special Judge. This Court in Indur Advani v. State of Bombay : AIR1952Bom58 held that where a public servant obtained a bribe for himself upon a representation that favour would be shown to the giver in the discharge of his official functions, the public servant was guilty of an offence under Section 161 of the Indian Penal Code, notwithstanding1 the fact that it was not within his power to show favour. It is clear from that case that even though the public servant, who was charged with having committed an offence under Section 161 of the Indian Penal Code and who was ultimately convicted by this Court, was in the exercise of his authority as public servant not competent to do the act for the doing of which he accepted gratification, the Court held that he had still committed an offence under Section 161 of the Indian Penal Code., Mr. Justice Chainani observed in that case (p. 705) :
The act in respect of which the bribe is paid must, however, be an official act and the favour or disfavour must be shown in the exercise of official functions. The official 'act' or official 'functions' referred to in the section obviously mean an act or function which a public servant can perform in his official capacity and not in the capacity of a private citizen. The act, for doing which the bribe is received or paid must, therefore, have some connection with the office which the public servant receiving the bribe is holding or must be one in regard to which the person giving the bribe can reasonably believe that it could be performed by the public servant receiving the bribe.
In our judgment, that observation furnishes an adequate test for ascertaining what may be regarded as 'official acts'. Applying that test, we are of the view that in this case when the accused was approached for giving a solvency ' certificate and when he did in fact give a solvency certificate describing himself as the Kamgar Patil, he was doing an official act, and if for doing that official act he accepted a sum ofRs. 25, which the complainant says the accused accepted, he must be regarded as guilty of an offence under Section 161 of the Indian Penal Code.
3. The rest of the judgment is not material to the report.
4. In our view, the learned Special Judge was right in holding that the accused received gratification for issuing the solvency certificate which was demanded by Balkrishna Ghadge. Disagreeing with the view of the learned Special Judge, we hold that the amount of Rs. 25 which was received by the accused was received for doing an 'official act' and we hold him guilty of having committed an offence punishable under Section 161 of the Indian Penal Code. Having regard to the evidence, we convict the accused of an offence under s.161 of the Indian Penal Code and direct that the accused do suffer rigorous imprisonment for six months. Warrant to issue for arrest of the accused.