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Emperor Vs. Kesri Chand - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1945All207
AppellantEmperor
RespondentKesri Chand
Excerpt:
- - ' if otherwise, it is condemned. if first things come first-there is nothing which comes before the safety of the realm-every branch of the administration connected with the army should be absolutely above suspicion, because it is on healthy, happy and contented army that the existence of the state depends. defect in them-by reason of the use of poor or inferior or contaminated stuff-meant positive danger to the health of the soldiers. it must be clearly borne in mind that the learned judges in that case were dealing with the conduct of a judicial officer. having regard to the fact that corruption has, unfortunately, in these days, assumed alarming proportions, i desire to make it perfectly plain that, in my opinion, ram charan v. in this connexion it is well to take note of the.....iqbal ahmad, c.j.1. this is an application in revision by the provincial government and the prayer contained in the application is that the sentence passed on kesri chand, opposite party, be enhanced. kesri chand was tried under two charges and convicted by a magistrate of the first class for offences punishable under section 116 read with section 161 penal code. the charge against kesri chand was that he on two different dates, viz., 31st july 1942 and 10th august 1942, paid rs. 2000 and rs. 1500 respectively to one capt. martin as an illegal gratification with a view to have the inferior stores supplied by firms in which kesri chand was interested passed at the agra ordnance inspection depot. the magistrate sentenced kesri chand to six months' rigorous imprisonment and a fine of rs. 500.....
Judgment:

Iqbal Ahmad, C.J.

1. This is an application in revision by the Provincial Government and the prayer contained in the application is that the sentence passed on Kesri Chand, opposite party, be enhanced. Kesri Chand was tried under two charges and convicted by a Magistrate of the first class for offences punishable under Section 116 read with Section 161 Penal Code. The charge against Kesri Chand was that he on two different dates, viz., 31st July 1942 and 10th August 1942, paid Rs. 2000 and Rs. 1500 respectively to one Capt. Martin as an illegal gratification with a view to have the inferior stores supplied by firms in which Kesri Chand was interested passed at the Agra Ordnance Inspection Depot. The Magistrate sentenced Kesri Chand to six months' rigorous imprisonment and a fine of Rs. 500 on each count and ordered the sentences of imprisonment to run concurrently. On appeal by Kesri Chand, the Sessions Judge of Agra, while affirming the conviction of Kesri Chand with respect to both the charges set aside the sentence of imprisonment and enhanced the sentence of fine from Rs. 500 to Rs. 2500 on each count.

2. The facts that led to the prosecution of Kesri Chand are no longer in controversy and are as follows : There is an Ordnance Inspection Depot at Agra for the supply of stores, tentage, textiles etc., to the military. The Depot places orders with contractors for the supply of the goods and the goods supplied have to conform to specified specifications. Up to 5th April 1942, one Capt. Poster was the officer-in-charge of this Depot. Brigadier Woolfe, the Controller-General of Inspections, was dissatisfied with the conditions prevailing in the Depot and considered that inferior stores were being accepted on receipt of illegal gratifications. Capt. Foster was, therefore, not only removed from the Depot but was put under close arrest and we were informed by the Advocate-General, who appeared on behalf of the Provincial Government, that Capt. Poster was tried and 'cashiered.' Poster was replaced by Capt. Martin. Capt. Martin was sent to Agra with the definite instruction to remedy the evil prevailing in the Agra Depot and was, in due course, advised to lay a trap for the contractors who were either in the habit of, or attempted to offer bribes. On reaching Agra, Capt. Martin found that most of the stores that had been accepted were inferior in quality and he accordingly set up new standards of quality which the contractors regarded as too stiff. The contractors made representations to superior officers, but Capt. Martin's standards were with few modifications, accepted. This, naturally, caused consternation to some of the contractors and they threw out suggestions to Capt. Martin to the effect that he could get Rs. 40,000 a month from contractors as bribe if he passed inferior stores. It is alleged that one of such contractors was Kesri Chand, the opposite party before us.

3. Kesri Chand is the owner of a firm styled Kesri Chand & Co. He is also interested in two other firms, Lakhmi Chand & Co., and Shil Chand & Co. Lakhmi Chand and Shil Chand are cousins of Kesri Chand. In or about July 1942, three contracts of the value of about Rs. 6 lakhs between the Government and the said three firms for the supply of tents and 'pillows-feather-hospital' were pending. About 750 tents and 24,000 pillows had been supplied under these contracts by the three firms, but Capt. Martin had put the same under query and had not passed the same. It has been found as a fact by the Sessions Judge-and no exception has been taken to this finding-that the tents and the pillows were inferior in quality and did not conform to the requisite specifications. Major Cooper, who is a superior officer, came to Agra about the third week of July and inspected the pillows. He was of the opinion that the pillows were defective and Shyam Lal, father of Kesri Chand, agreed to rectify the defects. The tents were also found to be defective. The three firms were, therefore, faced with an awkward situation and were under the apprehension that the pillows and the tents might be rejected. This would have involved the firms in considerable financial loss. It was in these circumstances that Kesri Chand offered to pay and did pay Rs. 2000 to Capt. Martin on 31st July 1942, for passing the pillows and again paid a sum of Rs. 1500 to Capt. Martin on the evening of 10th August 1942, as a reward for showing favours, in the exercise of his official functions, by passing the inferior stores supplied by the three firms.

4. The payment of these two items to Capt. Martin was admitted by Kesri Chand in the trial Court. He, however, maintained that he was coerced by Capt. Martin to make these payments and he alleged that he did so because Capt. Martin was a person in authority and could reject the supplies made by him. The learned Sessions Judge has, in the course of his judgment, dealt with this contention at length and has rejected the same. He has recorded a categorical finding to the effect that the two charges against Kesri Chand have been proved. This finding of the Sessions Judge has not been assailed before us. The consideration of the present application in revision must, therefore, be approached on the assumption that Kesri Chand, the opposite party, abetted the acceptance of illegal gratification by Capt. Martin, and thus was guilty under Section 116 read with Section 161, Penal Code. Section 116 inter alia provides that whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, be punished with imprisonment provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence; or with such fine as is provided for that offence, or with both. Section 161 prescribes a sentence of imprisonment extending to three years, or fine, or both, for an offence under that section. It follows that Kesri Chand could be sentenced to imprisonment for a period that could extend to nine months and could further be fined. The Sessions Judge assigned two reasons for setting aside the sentence of imprisonment. First he observed that:

I feel that this is not a case in which the appellant should be sent to jail. In the first place, though the first suggestion for offering bribe did not come from Capt. Martin, there is no doubt that he encouraged the appellant and led him to believe that he was open to being purchased. It is true that this was done at the instance of his superior officers. But there is no doubt that a trap was certainly set to catch the appellant.

The second reason assigned by the learned Judge was that,

the probability is that the appellant who is a young man of about 25 was acting on behalf of his father who was apparently directing matters from behind.... The appellant therefore seems to be more an agent of his father than anything else.

5. Sir Tej Bahadur Sapru, who appeared for Kesri Chand, further urged that the law differentiates between the giver and the taker of illegal gratification and contended that, while a severe and deterrent sentence is called for in the case of the latter, the person who offers bribe should be leniently dealt with, the more so when a 'trap' has been laid for him, and in support of these contentions he relied on the decision of this Court in Emperor v. Dinkar Rao : AIR1933All513 . Neither the reasons assigned by the Sessions Judge nor the arguments of Sir Tej Bahadur Sapru commend themselves to me. I am not at one with Sir Tej Bahadur Sapru when he seeks, in asking me to determine the gravity of the offence, to draw a line between him who gives and him who takes the bribe. It is true that the Penal Code does not contain any specific provision dealing with the offer of an illegal gratification, but Section 109 places both the giver and the taker in the same level. Section 116, however, provides for a lighter sentence when the offence abetted has not been committed. There can be, therefore, no doubt as regards the intention of the Legislature.

6. Is there, then, any other reason for making a distinction between the two? The answer to this question depends on our conception of the law in its relation to the society and the State. The main, indeed the only function of law is the preservation of society, The merits of law or a particular enactment are judged by the contribution it makes to the development of a healthy society. The 'social conscience' is the ultimate forum to pass the final verdict on its value or utility. Every piece of legislation is judged by the above standard. If and in so far as it makes for the preservation or solidarity of the society or the State, it receives the approbation of 'social conscience.' If otherwise, it is condemned. The same with every individual action. The measure of harm it causes to society is the measure of its condemnation. This is what is really meant by the dictum that 'the State it is that determines whether an act has the status of crime or not' (Principles of Criminology by K. Subrahmania Pillai, page 8). It is for this reason that different sentences have been provided for different offences, because every offence does not cause the same degree of shock to the conscience of the society or the State. Judged by the above test, is there any warrant for making a distinction between him who offers and him who accepts the bribe? Both are parts of the same instrument, the minds of both work in unison; both act in concert and it is their concerted action which produces a result constituting a menace to society.

7. It remains to consider the facts of the present case. The department concerned was a most important department of the State. On its efficient working depends the health and contentment of the class of people who are shedding their blood for the preservation of the State, for its very existence. If first things come first-there is nothing which comes before the safety of the Realm-every branch of the administration connected with the army should be absolutely above suspicion, because it is on healthy, happy and contented army that the existence of the State depends. He who seeks to corrupt the department deserves no quarter. Kesri Chand, the opposite party, undertook to supply pillows to hospitals for wounded soldiers and tents for the military department. These pillows had to come up to a certain standard. Defect in them-by reason of the use of poor or inferior or contaminated stuff-meant positive danger to the health of the soldiers. It is, therefore, manifest that there is no rule of law or social morality which warrants a discrimination in favour of the giver as against or distinguished from the taker of the illegal gratification.

8. It has been contended on the strength of Ram Charan v. Emperor ('33) 20 A.I.R. 1933 All. 437, as a 'trap' was laid against Kesri Chand, a sentence of imprisonment is not called for Ram Charan v. Emperor ('33) 20 A.I.R. 1933 All. 437 is, in my opinion, no authority for the broad proposition advanced by Sir Tej Bahadur Sapru. It must be clearly borne in mind that the learned Judges in that case were dealing with the conduct of a judicial officer. What is a 'trap'?-it is nothing but the means of detecting crimes - by catching the criminal Flagrante delicto. Just as a crime assumes protean shapes, so has the method of its detection to take countless courses and assume countless forms. But the detection must be done by the police or appropriate agency employed by the State. A Judge has to administer justice; his is not the duty to detect crime or serve as an instrument for such detection. If he does that, he exceeds his duty, perhaps violates the sanctity of his sacred office. In Ram Charan v. Emperor ('33) 20 A.I.R. 1933 All. 437 the trap was laid by a judicial officer and it was in this connexion that the learned Judges, who decided that case, observed that

the plan of tempting and trapping the accused was objectionable, and should not have been resorted to by an officer of the Judicial Department.

It was in this view of the matter that the learned Judges considered that a sentence of fine would meet the ends of justice. Having regard to the fact that corruption has, unfortunately, in these days, assumed alarming proportions, I desire to make it perfectly plain that, in my opinion, Ram Charan v. Emperor ('33) 20 A.I.R. 1933 All. 437 does not, in a case of the description with which I am at present dealing, afford any justification for refusal to inflict sentence of imprisonment. The fact that, to quote the words of the. Sessions Judge 'a trap was set to catch' Kesri Chand, did not, in my opinion, constitute a sufficient reason for setting aside the sentence of imprisonment passed on Kesri Chand. It is to be remembered that the offence of offering to or accepting bribe by a public servant cannot, ordinarily, be detected without laying a trap. In this connexion it is well to take note of the observations of Lord Alverstone C.J. in Rex v. Mortimer (1911) 1 K.B. 70. He observed that

the particular transaction of which evidence was given was the result of a police trap, and though I do not like police traps, any more than any one else, still it is only fair to remember that it is almost impossible to detect this class of offence in any other way.

9. It is not, and cannot be, disputed that the sentence imposed on a person convicted of an offence must be commensurate with the gravity of the offence and must amount. to a punishment. The accused in the present case was a substantial contractor who must have made large profits during the war. A sum of Rs. 5000 that he was ordered to pay as fine, was no punishment to him, and I regret that this aspect of the matter was wholly ignored by the Sessions Judge. The second reason assigned by the Sessions Judge for setting aside the sentence of imprisonment was, as already stated, that Kesri Chand, who is a young man of about 25, was acting more or less as the agent of his father in paying the bribes. This again, to my mind, was no reason for interfering with the discretion exercised by the Magistrate in the matter of sentence. That Kesri Chand is a businessman of mature age admits of no doubt. It is equally clear that he offered the bribe with the deliberate intention of corrupting a responsible military officer. In these circumstances, if I was hearing an appeal against the decision of the Magistrate, I would have certainly refrained from setting aside the sentence of imprisonment imposed by the Magistrate.

10. It was suggested in the course of arguments that as Poster was not tried by a regular Court of law and was not sentenced to imprisonment, the Court should take a lenient view of the offence committed by Kesri Chand. I find it impossible to accede to this argument. It is no concern of mine that Foster was not put for trial in the Municipal Courts and was tried by a Military Tribunal. It is, I consider, the duty of the Court, on conviction, to pass an appropriate sentence on the accused irrespective of the fact whether another offender, who was equally guilty with the convicted person, has or has not been sent up for trial. Further I cannot overlook the fact that there can be no question of acceptance of illegal gratification unless there is someone to offer such gratification. The ball is therefore set rolling by the person who offers the bribe, and, as such, he is the primary culprit. Notwithstanding the observations made above, I have decided not to interfere with the appellate order of the Sessions Judge in the exercise of the revisional jurisdiction of this Court. I have done so for two reasons. I find from an affidavit that has been filed, that after the conviction of Kesri Chand the contracts into which he had entered with the Military Department were cancelled and that has occasioned to him a loss in the neighbourhood of Rs. 50,000. Further, this application in revision is a belated application and was filed more than six months after the appellate decision of the Sessions Judge. For the reasons given above, while I do not approve of the interference by the Sessions Judge on the question of sentence, I would dismiss this application.

Malik, J.

11. This revision has been filed on behalf of the Provincial Government for enhancement of sentence. The accused, Kesri Chand, was one of the proprietors of firm Kesri Chand & Co., and was interested in some capacity or other in two other firms, known as Shil Chand & Co., and Lakhmi Chand & Co. These three firms were working as military contractors at Agra. Contracts for the supply of feather pillows and tents had been placed by the Military Department. Capt. Foster was the officer-in-charge of the Ordnance Depot at Agra, and it was his duty to see that the goods supplied by the various contractors were in accordance with the sample and were up to the standard. There were complaints received by the Military Department that the goods passed by Capt. Foster were of inferior quality, and the Department had reason to believe that Capt. Foster was accepting illegal gratification for passing such inferior goods. They thereupon put Capt. Foster under arrest and appointed Capt. Martin in his place. Capt. Martin took over charge on some date in the month of May 1942, and he fixed new standards of quality for the goods supplied. This caused the contractors great uneasiness. They appealed to Capt. Martin to revise his standards, and they also appealed to the higher Military authorities on whose intervention the standard was slightly reduced, but in the main the standards fixed by Capt. Martin were accepted. During the months of May and June certain hints were dropped to Capt. Martin that, if he would not be so strict in his dealings, the contractors would make it worth his while. However, during this period things went on rather uncomfortably for the contractors as Capt. Martin was not amenable to their suggestions, and he put query marks on the pillows and tents belonging to the three firms in which Kesri Chand was interested, as he thought they were below standard. Some of these pillows had been passed by the examiners appointed by the Military Department before Capt. Martin took over charge. It is not clear whether Capt. Foster also had or had not passed some of these pillows. Probably they had not reached beyond the stage of an examination by the examiners. The contractors not being 'able to influence Capt. Martin appealed to the higher authorities, and Major Cooper inspected the pillows and the tents in the third week of July. He agreed with Capt. Martin that the goods were not up to the standard. As regards the pillows, the father of the accused Kesri Chand is said to have agreed to have them re-made. As regards the tents, however, he appealed further to the higher authorities at Cawnpore.

12. Before Major Cooper inspected these goods in the third week of July, Capt. Martin had, in the beginning of July, received instructions from Brigadier Woolfe to behave to the eon-tractors as if he was amenable to bribe and to lay a trap for them so that they may be caught. Capt. Martin had Brigadier Woolfe's instructions to him to behave in a manner which would indicate that he was willing to accept illegal gratification and was prepared to pass goods of inferior quality. That being so, it is not clear to me why the accused or somebody else on behalf of the contractors did not attempt to bribe Capt. Martin and why the contractors appealed to the higher authorities against Capt. Martin's judgment and indeed with regard to the tents they appealed further to Cawnpore and claimed that the goods were up to the quality. Several days after Major Cooper had condemned these goods it is said that Capt. Martin was approached by Kesri Chand. He on behalf of the contractors suggested to Capt. Martin that, if he would pass these goods, the contractors would make it worth his while, and it is said he offered him some money in his office. Capt. Martin, however, said he had objection to taking money in the office and it was arranged that he would be given this money at a cinema house. At the cinema house, however, nothing happened, and on 31st July 1942, Kesri Chand is said to have gone to Capt. Martin with the sum of Rs. 2000. Capt. Martin refused to take the money in his office and asked Kesri Chand to give him the money on the road and Kesri Chand is said to have placed a sum of Rs. 2000 in the car of Capt. Martin on 31st July 1942. This money Capt. Martin deposited with his superior officers. Capt. Martin after this incident went to the District Magistrate and told him what had happened and wanted him to depute a Magistrate who would be present at the time when bribe was again offered to him. Capt. Martin thereafter arranged with the accused, Kesri Chand, that the further instalment of the bribe should be paid at his house on 10th August 1942. Mr. Chistle, Magistrate, who was deputed by the District Magistrate, lay in wait for Kesri Chand when Kesri Chand went to the house of Capt. Martin on 10th August 1942, and started discussions with him about the future rate at which bribe was to be given. It is admitted on behalf of the prosecution that Capt. Martin led him on to this talk, while the accused protested that he had not come to settle the rate for the future. However, the rate was discussed and a sum of Rs. 500 was paid to Capt. Martin as a part payment towards the amount settled for his passing the pillows and the tents. Mr. Chistle, at the moment when the money was being handed over, came out and placed the accused under arrest.

13. There can be no doubt that illegal gratification was offered by the accused to Capt. Martin. It is the case for prosecution that Capt. Martin had no intention of accepting bribe. On these facts Sir Tej Bahadur Sapru has argued that the accused is not guilty. According to him offering money to an officer who has no intention of taking, and is not prepared to accept, bribe is not an offence. In Ram Charan v. Emperor ('33) 20 A.I.R. 1933 All. 437 this very point was raised by Sir Tej Bahadur Sapru on behalf of the accused and was decided against him by a Division Bench of this Court. It is not necessary for me to express any opinion and I content myself by saying that I am bound by that decision. Next remains the question of sentence. The learned Advocate-General appearing on behalf of the Provincial Government has strenuously argued that a mere sentence of fine was not enough and the accused must be sentenced to a term of imprisonment. He has argued that bribery and corruption in supply of military contracts has become now a public scandal and a deterrent sentence was called for. On the question of sentence, however, the learned Sessions Judge considered the fact that the accused was a young man of twenty-four years and he was acting under the instructions of his father who was really the elder member of the firm. The learned Sessions Judge has also taken into consideration the fact that a trap was laid for the accused, and considering these facts he sentenced the accused to a fine of Rs. 2500 on each count, i.e., Rs. 5000 in all. The Provincial Government has filed this revision under Sections 435 and 439, Criminal P.C. for enhancement of sentence. The learned Advocate-General has argued that the decision in Ram Charan v. Emperor ('33) 20 A.I.R. 1933 All. 437 is taken by the subordinate Courts as of general authority and we must lay down that the mere fact that a trap was laid for the accused should not be any ground for awarding a lighter sentence. I may, however, point out that the question of sentence must in each case depend upon a variety of considerations and is a matter primarily in the discretion of the Court which passes the sentence. This Court in passing the sentence of a nominal fine in Ram Charan v. Emperor ('33) 20 A.I.R. 1933 All. 437 did so in view of the facts of that case and never intended to lay down any general principles in the matter of awarding sentences in cases of bribery. It will be improper for me in this case to say anything which might be interpreted to fetter the discretion of the lower Courts, and all that I need say is that this Court did not, when deciding the case in Ram Charan v. Emperor ('33) 20 A.I.R. 1933 All. 437, intend to fetter the discretion of the lower Courts in any manner as to the adequate sentence to be passed in cases of abetment of bribery.

14. Coming now to the case before us, there are several matters that we have to consider. It is no doubt true that bribery and corruption in connexion with military contracts have become so common that they amount to a public scandal and it is necessary that deterrent sentences should be passed. At the same time, we have to bear in mind that the conduct of the officer accepting the bribe is probably more reprehensible than even the conduct of the contractor who gives the bribe. If a military officer, to whom is entrusted the duty of checking whether goods supplied are or not according to standard, is dishonest, he can reject goods whether they are good, bad or indifferent and cause great loss to the contractors. Human nature being what it is, it is too much to expect that under these circumstances the contractors would stand by and have their goods rejected in the hope of getting redress from the higher authorities. That there has been considerable amount of dishonesty in passing the goods has now become a matter of public notoriety. Further, the officer concerned is never put up for trial along with the contractors and the Courts have no means of finding out how he was dealt with by the Military Tribunals. In view of the serious consequences due to the defective materials supplied and the wide extent to which bribery and corruption are now spreading deterrent sentences are no doubt called for. But to my mind, the proper way of putting down this evil is to punish not only those who offer bribes but still more severely those who take bribes. It has been argued before us that it is impossible to detect bribery unless traps are laid. This is largely true, even though one may dislike such traps. But at the same time where the facts disclose that the bribe was solicited, even with the object of getting a man caught and punished, it would, to my mind, render the abetment less culpable than it would otherwise be.

15. The accused has been fined a sum of Rs. 5000. An affidavit has been filed before us that various sums of money, deposited as securities by his firms, have been forfeited, all his contracts have been cancelled and the goods got ready by him for the performance of the various contracts are now a dead loss in his hands. Further, we cannot lose sight of the fact that the predecessor of Capt. Martin was a dishonest officer and probably it was impossible to get goods passed by him unless he was paid for it. This was bound to have its reaction on the quality of the goods supplied. There was, therefore, when Capt. Martin came, a great temptation to have the inferior goods passed by him in the same way as was done before rather than suffer loss. This case has come before us in revision. There is a well-established practice in this Court not to entertain a belated criminal revision. An application filed beyond ninety days is generally rejected merely on that ground. The judgment of the Sessions Judge was delivered in this case on 16th July 1943 and this revision was not filed till 10th January 1944. Further, this Court is very reluctant in criminal revisions to differ from the discretion exercised by the Courts below unless the discretion can be said to have been perversely exercised. I can very well see that in cases where the punishment awarded is manifestly inadequate or there has been a grave miscarriage of justice, this Court may, in very exceptional eases, substitute its own discretion for the discretion of the Courts below. But in view of the fact that this is, as I have already said, a belated application and in view of the other facts and circumstances mentioned by me above, I do not think this is a fit case where I would like to interfere.

16. The application is dismissed.


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