M. Santhosh, J.
1. The appellant Dattatray Gangadhar Bamant in Criminal Appeal No. 331 of 196S was the first accused in Special Case No. 5 of 1961 on the tile of the Special Judge, Belgaum. He and the second accused Kashinath Krishna Bapat were charged with having committed offences under Section 161 of the Indian Penal Code and Section 5 (a) of the Prevention of Corruption Act, read with Section 34 of the Indian Penal Code. The appellant (accused -1) was convicted by the learned Special Judge of the offence under Section 161 I.P.C., and sentenced to one year's R. I. and a fine of Rs. 200/., in default, to suffer rigorous imprisonment for three months. In Cr. A. 331/65 the appellant questions the correctness and legality of the said conviction and sentence.
Accused-2 Kashinath Krishna Bapat has been acquitted by the learned Special Judge of both the charges. Criminal Appeal 4 of 1966 is the appeal filed by the State questioning the correctness of the acquittal of the second accused foe both the charges and the acquittal of accused-1 of the charge under Section 5 (2) of the Prevention of Corruption Act. When Criminal Appeal 4 of 1966 came up for admission, this Court admitted the appeal as against the second accused only and rejected the appeal filed by the State against the acquittal of accused 1 of the charge under Section 5 (2) of the Prevention of Corruption Act. Hence the question of acquittal of accused-1 of the charge under Section 5 (2) of the Prevention of Corruption Act is not before us.
2. Accused-1 was employed as a Head Clerk-cum-Accountant in Belgaum Municipal School Board. Accused.2 was a Primary school teacher serving under the same Municipal School Board. The case of the prosecution is that accused-1 was operating through accused.2 for the purpose of demanding and collecting bribes from school teachers for getting things clone by the Administrative Officer (A. O.) of the School Board, Belgaum. P. W. l Appasaheb was serving in the year 1960 in School No. 12 as Headmaster. On 19-7-1960, he was transferred to School No. 15. As P. W. 1 Appasaheb was a disabled person having lost the use of his right hand and left leg due to rheumatic trouble, he was very much up. get by his transfer.
3. The prosecution case is that accused-2 thereafter approached P. W. l Appasaheb and suggested that if he paid same money to accused-1, this transfer could be cancelled. Accused-2 arranged a meeting of P. W. 1 Appasaheb with accused.1 in the backyard of the Municipal School Board Office on 22-7-1960. Accused 1 demanded Rs. 100/- for getting the transfer can. celled. P. W l Appasaheb pleaded his inability to. pay this big amount. Thereupon accused-1 made an alternative proposal that if he paid Rs. 50/, he would get him transferred to School No. 7, which was near his house, as Assistant Teacher. P. W. 1 Appasaheb agreed to this proposal. Then accused l told him that he could pay this amount to him through accused-2. He also asked P.W. 1 Appasaheb to send an application enclosing a medical certificate.
4. On 2.8.1960, when P. W. 1 Appasaheb received his pay, he paid Rs. 25/- to accused-2 by way of first instalment, requesting him to wait for some time for the second instalment. Then, on, 16.8.1960. P. W. 1 Appasaheb made the second payment of Rs. 15/- to accused-2 requesting him for some more time for making payment of the remaining amount of Rs. 10/-. After the payment of the second instalment, P. W. 1 Appasaheb received the order transferring him to School No. 7 from School No. 15. Thereafter, accused-2 made pressing demands for the payment of the remaining amount of Rs. 10/-. On 8th November 1960, P.W. 1 Appasaheb wrote a note, Exhibit 66, to accused-2, to come and collect the sum of Rs. 10/-. that was due to be paid to accused 1.
Thereafter, on 9th November I960, P. W. l Appasaheb approached P. W. 36 Keshav, who was the Sub-Inspector attached to Anti-Corruption. Department. P. W 36, P. S. L Keshav got a complaint, Exhibit 67, from Appasaheb and thereafter, applied to the Judicial Magistrate, First Class, Belgaum Taluka, for sanction for laying a trap. The learned Magistrate gave the necessary sanction by Exhibit 182 (A). Then the P. S. I. sent for two Panchas and in their presence P. W. 1 Appasaheb produced currency notes of the amount of Rs. 10/-, the numbers of which were noted in the Panohnama, Exhibit 68, and phenolphthalein powder was also applied to those notes.
5. Then the Panchas and the P. S. I. followed P. W. 1 Appasaheb to his school. At about 2.15 P. M. accused-2 came to the school and entered into P. W. 1 Appaaaheb's class room and closed the door behind him The Panch witness-P. W. 2 Jathar was standing on the verandah, and saw, through the window, P. W. l Appasaheb handing over the currency notes to accused-2. P. W. 2 Jathar then gave the necessary signal to the Sub-Inspector. As accused-2 came out of the class room, the Sub-Inspector detained him and disclosed his identity. When questioned, accused. 2 became confused and stated that he accepted Rs. 10/- from P. W. 1 Appasaheb on behalf of accused-1. Then accused-2 produced the currency notes from the upper pocket of his coat. The numbers of the currency notes were checked and they tallied with the numbers already recorded in the Panchnama, Exhibit 68. At the time when the pockets of the second accused were searched, Exhibit 66, the chit written by P. W. 1 Appasaheb to accused-2, dropped out of his pocket. All these were seized under the Panchnama, Exhibit 72.
6. Thereafter, accused-2 showed his willing, ness to make a confession. He was sent before the Sub-Divisional Magistrate, Belgaum. Exhibit 191 is the statement made by accused-2 be. fore the learned Magistrate under Section 164 of the Code of Criminal Procedure on 11.11.1960. The Sub-Inspector also applied to the Judicial Magistrate, I Glass, Belgaum Taluka, requesting him to grant permission to investigate the offence of acceptance of bribers per Section 6 of the Prevention of Corruption Act and the learned Magistrate, by his order, Exhibit 183.K, granted the requisite permission.
7. Thereafter, a charge-sheet was filed against the accused as Mentioned above before the Special Judge, Belgaum.
8. Before the evidence was recorded, the Pub. lie Prosecutor applied to the Court seeking for an order for re-investigation of the case by an officer not below the rank of a Deputy Superintendent of Police. The Court granted the requisite permission. A revision was filed against this order and it was dismissed by the High Court. After the case was re-investigated afresh by P. W. 37 Deputy Superintendent Kulkarni, the case was taken up for trial and the evidence recorded.
9. The prosecution examined 38 witnesses in support of the charge. The accused did not examine any witness on their behalf. Both the accused denied their guilt. The plea of accused No. 1 was, because he bad come in clash with a group of teachers headed by one Kadabi and Barade, they have set up accused-2 as a tool and foisted this false case against him. Accused-2 admitted having received the various amounts on behalf of accused-1 from P. W.1 Appasaheb for getting him transferred from School No. 16 to School No. 7. He pleaded that accused-l had given him the job and he was under an obligation to him. Taking advantage of this obligation, accused-1 made him operate as his tool to collect money for him. The learned Sessions Judge did not rightly make use of the evidence let in by the prosecution under Section 15 of the Indian Evidence Act to prove the several instances where accused-1 had taken amounts from some other persons on the ground that they were irrelevant so far as this charge is concerned. He also held that Ex. 191, the statement of accused-2 recorded under Section 164, Criminal P. C. was not a confession and did not make use of the same.
10. The learned Special Judge held, that the charge against accused-1 under Section 5 (2) of the Prevention of Corruption Act was not made out, but the charge under Section 161, Penal Code has been fully made out against him. The learned Judge also held that the prosecution has not proved any prior consort or agreement between accused 1 and 2 as required under Section 34, Penal Code. He held, accused-2 was only a messenger and a mere tool in the hands of accused-1 and accused-1 was the sole beneficiary of the amounts collected from P. W. 1, Appasaheb and acquitted accused-2 of both the offences with which he was charged.
11. The evidence against accused on which the learned Special Judge has relied, consists of the following:
(1) Evidence of P. W. 1. (2) Corroborative evidence of P. W. 3 Ambewadkar in regard to the meeting between accused-1 and 2 and P. W. 1 Appaaaheb. (3) Chit, Exhibit 66 written by P. W. 1, Appasaheb to accused-2 to take Rs. 10/- due to accused-1. (4) Evidence relating to trap and the recovery of Rs. 10/- from accused-2.
12. Before we discuss the evidence, it may be convenient to deal with the contention that the investigation conducted in the case was illegal and the permission granted by the learned Magistrate to P. W. 36, P. Section 1. Keshav to investigate the case was legally defective. The order passed by the learned Magistrate is not a speaking order. He had not applied his mind while granting the said permission. The further investigation conducted by P. W. 37, Deputy Superintendent of Police Kulkarni, does not cure the previous illegalities committed by the P. S. I. during the investigation. The learned Special Judge has held that the previous illegalities committed by the P. S. I. were cured by the subsequent investigation by the Deputy Superintendent of Police. He has also held that the trial has not become vitiated by these defects and that there was no want of bona fides on the part of the P. S. I. and the said Sub Inspector has not put up any false case against the accused as contend-ed by the defence.
It is well settled that illegality in the investigation does not vitiate the result of the trial unless it has resulted in miscarriage of justice. In Rishbud v. State of Delhi : 1955CriLJ526 , at para. 9 of the judgment, their Lordships of the Supreme Court have stated as follows:
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an Illegality committed in the coarse of investigation does not afloat the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in 'Parbhu v. Emperor' AIR 1944 VC 78 and 'Lumbhardar Zutshi v. The King' AIR 1950 PC 26.
Further, in para. 10, their Lordships have observed as follows:
It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defeat rectified, by ordering such re-investigation as the circumstances of an individual case may call for.
13. This view has again been reiterated by the Supreme Court, in Munnalal v. State of Uttar Pradesh : 1964CriLJ11 . Their Lordships have held that Section 5-A of the Prevention of Corruption Act is mandatory and not directory and as investigation conducted in violation thereof is illegal. If however there was irregular investigation and Section 5A was not complied with in sub-stance, the trial could not be held to be illegal unless it was shown that miscarriage of justice had been caused on account of the illegal investigation. It has not been argued or shown that the initial defect in the investigation has in any way resulted in the miscarriage of justice in this case.
14. Taking first the evidence of P. W. 1 Appadaheb, he has stated how he was transferred from School No. 12 to School No. 15 and how accused-2 approached him and arranged a meeting between him and accused 1. He has stated how accused 1 demanded Rs. 100 and on his expressing his inability to pay this amount, accused 1 came out with an alternative suggestion that he would get him transferred to School No. 7 if he paid Be. 50. P. W. 1 has also stated how he had paid Rs. 25 and Rs. 15 into the hands of accused 2 to be paid over to accused 1. P. W. 1 Appasaheb has also stated how, thereafter, he gave a complaint to P. W. 36 P.S.I. Keshav and as per the trap laid, he handed over Rs. 10 to accused and how it was recovered from the pocket of accused 2.
15. It is contended by Sri Shamanna, learned Counsel appearing on behalf of the first accused that the evidence of P. W. 1 Appasaheb is tainted evidence and he has got a grouse against accused l and as such it is very unsafe to rely on his evidence. The learned Special Judge, bearing in mind the criticism that P. W. 1 Appasaheb is the complainant and a partisan witness, has elaborately dealt with the criticisms levelled against the evidence of P. W. l. He has held that the various documents, Exhibits 61 to 64 produced by P. W. l Appasaheb corroborate his version and show that he is speaking the truth. After going through the evidence of P. W. 1 carefully, we have no hesitation in agreeing with the learned Special Judge that the evidence given by P. W. l Appasaheb is true.
(After considering the evidence of P.Ws. 3, 2 and 4 in Paras 16 to 18 and holding that these are independent witnesses and whose evidence fully corroborate the evidence of P.W. 1, the judgment proceeds : )
19. The next question to be considered is whether the charge under Section 161, I.P.C. has been made out against accused 1. It is not disputed that accused 1 was a public servant. The evidence discloses that he accepted gratification from P. W. 1 Appasaheb as a motive or rewards for rendering or attempting to render assistance-to P. W. 1 Appssaheb with another public servant. We have already pointed out that accused 1 was the Head Clerk-cum-Accountant of the Administrative Officer who was the authority to transfer school teachers. It was the function of accused 1 to put up notes to the Administrative Officer when questions of transfer came up before him. Though the charge of the complaint does not specify that accused l took money to influence the Administrative Officer, there can be no doubt that the person to be influenced was the Administrative Officer the authority making the transfers of school teachers. In Mahesh Prasad v. State of Utter Pradesh : 1955CriLJ249 , their Lordships of the Supreme Court have observed, at page 71, as follows:
To constitute an offence under this seat ion, 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. Ha may not even have intended to do what be holds himself out as capable of doing. He may accordingly be guilty of cheating. Nonetheless he is guilty of the offence under Section 161 of the Indian Penal Code.
Again, in paragraph 4, at page 72, their Lordships have observed as follows:
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 I.P.C. would not apply to such a case. It is suggested that the phrase 'with any public servant' in Section 161 I.P.C. 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 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 I.P.C. requiring that the Public servant contemplated therein must be a specified public servant.
We have, therefore, no hesitation in agreeing with the learned special Judge that the charge under Section 161 of the Indian Penal Code has been established beyond all reasonable doubt against accused 1. We therefore confirm the conviction and sentence passed on him by the learned Special Judge for that offence.
20. Taking next Criminal Appeal No. 4 of 1966 against accused 2, we agree with the learned Special Judge that the charges against accused 2 have not been proved. There is no satisfactory evidence that there was any prior consort or agreement or any pre-arranged plan between accused 1 and accused 2 in this case. Accused 2 seems to have acted as a sort of messenger on behalf of accused 1 for collecting money from P. W. 1 Appasaheb. It is not the case of the prosecution that any portion of this amount went into the pocket of accused 2. Accused 2 has stated that accused 1 gave him his appointment and he was under an obligation to him and being weighed down by this obligation, he acted as a messenger between accused 1 and P. W. 1 Appasaheb.
21. Sri Dayanand, learned Counsel appearing on behalf of the State has contended, even though the charge against accused 2 was one under Section 34 I. P. C, it is possible for this Court to convict him for the offence of abetment. He has cited before us a decision of the Supreme Court in Bamaswamy Nadar v. State of Madras : 1958CriLJ228 in support of the said argument. Even assuming the appellate Court has got the power to do so, we may point out that no charge of abetment has has been framed against accused 2. This aspect of the case has not been urged by the prosecution in the trial court. As there was no charge and no argument was addressed before him, the learned Special Judge has not expressed any opinion on this question. This Court has not got the benefit of the views of the learned Special Judge on this aspect of the case. We may further point out that even in the appeal memo filed by the State before this Court, no ground has been raised that accused 2 is guilty of abetment. We are of opinion that it is not open to the prosecution in the circumstances mentioned above to spring surprise on accused 2. If we permit the prosecution to do BO at this late stage in the appeal, the accused would undoubtedly be gravely prejudiced. For the reasons mentioned above, we are not prepared to allow Sri Dayanand to argue this point without even raising the same in the grounds of appeal. We therefore, agree with the learned Special Judge that no case has been made out against accused 2. It is not possible to say that the decision of the learned Special Judge, so far as accused 2 is concerned, is either erroneous or unreasonable.
22. In the result, there is no merit in Criminal Appeal No. 331/65 and Criminal Appeal No. 4 of 1966 and both of them are dismissed.