H.N. Seth, J.
1. State of U. P. has come up in appeal against the judgment of Sri R. C. Bajpai, Special Judge, Far-rukhabad dated 14-4-1972 acquitting Kan-haiyalal for offences under Section 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption Act,
2. The charge against Kanhaiya-lal was that while working as supervisor Kanungo at Kaimganj he, on 5-10-1970 at 9.15 P. M. at his residence, accepted illegal gratification, other than legal remuneration, amounting to Rs. 250/- from Gayadin. It was also alleged that he committed criminal misconduct in the discharge of his official duties as Government servant by accepting the aforesaid amount of Rs. 250/- as reward for getting Pattas executed in favour of Sohan Lal and Kailash Singh of village Savita-pur Behripur.
3. Briefly stated the case for the prosecution was that the accused Kan-haiyalal was posted as Supervisor Kanungo in Kampil circle. Gayadin P.W. 6 was Pradhan of the Gaon Sabha of Savitapur Behripur. He was approached by certain landless persons for the allotment of surplus land to them. He told those persons that he would inform them after talking over the matter with the Kanungo. Thereafter Gayadin met Kan-haiyalal and informed him about the request of landless persons. Kanhaiya Lal asked Gayadin that he would execute the necessary Pattas in case each landless person was prepared to pay him a sum of Rs. 125/-. The landless persons told Gayadin that they were not in a position to pay that amount. Gayadin again met the accused who told him that he would not do the work unless he was paid the amount demanded by him. He also told Gayadin that if he did not arrange the amount he would get him suspended. Some time thereafter, about 10 or 12 days before 5-10-1970 Gayadin went to one Malkhan Singh and told him about the illegal demand made by the accused. Malkhan Singh asked Gayadin to find out from the accused as to when he would like to have the money so that he may get him caught. Gayadin again met Kanhaiyalal about four to six days after he had talked to Malkhan Singh. In the meantime he had a talk with some landless persons out of whom Sohan Lal and Kailash Singh gave a sum of Rs. 250/- on the understanding that steps should be taken to get the accused trapped. After collecting this money Gayadin went to the accused who asked him to come to his house next day. Gayadin then went to Malkhan Singh and told him the entire story. Malkhan Singh asked Gayadin to contact him next morning. Accordingly, Gayadin along with Sohan Lal and Kailash Singh went to Malkhan Singh's village early in the morning of 5th Oct., 1970. He also carried with him a sum of Rs. 250/- which had been paid to him by Sohan Lal and Kailash Singh. All these persons then came to Fatehgarh where Gayadin got an application (Ex. Ka-1) addressed to the Collector Farrukhabad, scribed. In that application he mentioned about the illegal gratification demanded by the accused and requested the Collector to take necessary action. The Collector then wrote a note and directed Gayadin etc., to the Superintendent of Police. The Superintendent of Police called Sri Balbir Singh, Deputy Superintendent of Police and asked him to do the needful. Sri Balbir Singh directed Gayadin to the City Magistrate who recorded his statement and noted down the numbers of the currency notes which were intended to be given to the accused as bribe. After noting down their numbers, the notes were handed back to Gayadin, Gayadin went back to the office of the Superintendent of Police and contacted Sri Balbir Singh there. Sri Balbir Singh then obtained Gayadin's statement from City Magistrate's office and thereafter he along with Gayadin, Sohan Lal, Kailash Singh, Malkhan Singh and Head Constable Ajab Singh proceeded by a Jeep to Kaimganj. After reaching the petrol pump in Kaimganj, Balbir Singh asked Gayadin, Kailash Singh and Sohan Lal. to go to the accused and to find from him as to where he would like to accept the money and thereafter to contact him at the house of Dr. Gangwar. Gayadin, Sohan Lal and Kailash Singh then went to the Tehsil. Gayadin alone went inside the room of the accused and talked to him, Gayadin told the accused that he had brought the landless persons as also the money for getting the Pattas executed in their favour. The accused then asked Gayadin to meet him at about 9 P. M. at his house, Gayadin, Sohan Lal and Kailash Singh then went to the house of Dr. Gangwar and informed Balbir Singh about the conversation which had taken place between Gayadin and the accused. At that time, besides Balbir Singh, Malkhan Singh and Head Constable Ajab Singh, one Loknath was also present there. According to the prosecution Loknath was picked up by Balbir Singh and Malkhan Singh from the cold storage which fell in the way to Dr. Gangwar's house. Balbir Singh asked Gayadin and his companions to contact him again at 7 P. M. while Loknath, Kailash, Sohan Lal and Gayadin went away from the house of Dr. Gangwar, Balbir Singh, Malkhan Singh and Ajab Singh stayed back. Gayadin, Loknath, Kailash and Sohan Lal came back at 7 A. M. and after taking mutual search and tallying the numbers of currency notes amounting to Rs. 250/- Balbir Singh handed over the currency notes to Gayadin, He asked Gayadin Sohan Lal and Kailash to go and wait for the accused at the Chabutra of his house. He instructed Loknath and Head Constable Ajab Singh to go and stand on the road and to signal to him as soon as the accused was seen, coming to his house, Gayadin, Sohan Lal and Kailash then went and sat in front of the room of the accused. The accused returned to his house at 9 P. M. and went inside his room. He also asked Gayadin to come inside the room. In the meantime, Loknath informed Balbir Singh that the accused had arrived and that he had asked Gayadin to come in his room, Balbir Singh, accompanied by Malkhan Singh, Loknath and head constable Ajab Singh, reached the door of the room of the accused and found Sohan Lal and Kailash sitting there. There was electric light inside the room. The door of the room was closed in such a way that there was some space in between the two door leaves. Through that space Balbir Singh and other witnesses saw the accused sitting on a Charpoy and Gayadin sitting on a chair. They heard Gayadin telling the accused that he had brought Rs. 125/- from the landless persons for getting the Pattas of Parti land executed in their favour. Two of them, namely Sohan Lal and Kailash Singh were waiting outside. The accused then said that the amount brought by Gayadin was only for the purposes of getting the Patta, executed and that the landless persons to whom the land will be allotted will have to spend a further amount for their verification and mutation of their names. Gayadin took out the money and handed it over to the accused. As soon as the accused held the money in his hands and began to count the same, the police party headed by Balbir Singh, Deputy Superintendent of Police, rushed inside the room and caught the accused with the money in his hands, Sri Balbir Singh disclosed his identity and took the currency notes in his possession. He tallied the number of currency notes with those which had already been noted. He prepared the recovery memo Ex. Ka. 8, read over the same to the witnesses and obtained their signatures on it. After duly sealing the currency notes in an envelope he asked Ajab Singh to go and call the Station Officer of Police Station Kaimganj. Ajab Singh then conveyed the information to the Police Station Kaimganj on telephone. Immediately Station Officer P.W. 4 Raghubir Singh accompanied by constables arrived at the house of the accused. Balbir Singh then handed over the accused, along with the recovered articles to him. Raghubir Singh took the accused and the recovered articles to the police station and registered a criminal case in the general Diary.
3. On 8-10-1970 the Superintendent of Police Sri K.M. Daruwala directed Sri V.N. Singhari Inspector In-charge Police Station Kotwali Farrukhabad, to take up the investigation of the case after obtaining the permission of the District Magistrate. It is said that on 22-10-1970 the District Magistrate permitted police inspector Singhari to investigate the case. Thereafter, Inspector Sin-ghari started the investigation and recorded the statements of Balbir Singh, Deputy Superintendent of Police and some other persons. He recommended the investigation on 3rd December, 1970, when he recorded the statements of dayadin, Sohan Lal and Kailash and prepared a site plan. He recorded the statement of Loknath on 13th December, 1970. On the same day he completed the investigation and submitted a charge-sheet against the accused.
4. The prosecution obtained the necessary sanction under Section 6 of the Prevention of Corruption Act from the Collector Farrukhabad on 15th July, 1971 and thereafter the accused was tried before the Special Judge Farrukhabad as stated above.
5. The accused pleaded not guilty and denied that the currency notes were recovered from his possession. He alleged that he had been falsely implicated in the case at the instance of Malkhan Singh and Gayadin who were inimical to him.
6. In order to prove its case, the prosecution examined P.W. 2 Balbir Singh, P.W. 5 Gayadin, P.W. 6 Kailash Singh and P.W. 7 Loknath who deposed about the circumstances in which the illegal gratification was accepted by Kan-Aiaiyalal, and the currency notes amounting to Rs. 250/- were recovered from his possession.
7. In his defence, the accused examined three witnesses viz., D. W. 1 Fateh Mohammad, D. W. 2 Chandra Saran and D. W. 3 Karamvir Rastogi. The court, in order to test the statement made by D. W. 3 Karamvir Rastogi examined Sri Chandan Gopal Sub-Divisional Magistrate, Kaimganj as a court witness. The learned Special Judge observed that P.W. 6 Kailash had turned hostile and his evidence had to be ignored from consideration. So far as P.W. 7 Loknath was concerned, the learned Special Judge pointed out that he was a resident of a village situated at a distance of about three miles from the house of Kanhaiyalal. He was picked up from the cold storage at the instance of Sri Malkhan Singh who was a person vitally interested in the laying of the trap. In the normal course Loknath should not have been at the cold storage at the time when he is alleged to have been picked up. The explanation given by him for being present at the cold storage at that time did not appear to be correct. His statement was recorded by the investigating Officer at a very late stage. In the circumstances, the learned Special Judge felt that it would not be safe to rely upon his statement specially when the prosecution could get the search witnessed by an independent witness like Dr. Gangwar at whose house Sri Balbir Singh had stayed from 3-30 P. M. till 9 P. M. He, however, did not find any merit in the criticism levelled against the evidence of P.W. 2 Balbir Singh and P.W. 4 Gayadin. The judgment shows that in the opinion of the learned Sessions Judge there was nothing in the evidence of these witnesses which rendered their testimony liable to be rejected.
8. The learned Special Judge pointed out that the permission to investigate the case granted by the District Magisrate to Sri V.N. Singhari, Inspector Incharge Kotwali Farrukhabad, was not, in the circumstances of the case proper. Further, the investigation of the case which was supervised by Sri Balbir Singh, a person vitally interested in the trap, also appeared to be tainted. He held that in order to make out a case under Section 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, the prosecution had to prove that the accused Kanhaiya Lal had accepted the money during the course of his official duty. After considering the evidence produced in the case, he concluded that the only official duty of a Supervisor Kanungo was to check the records, registers and accounts of Bhumi Prabhandak Committee, maintained by Lekhpals. The rules nowhere provide that registration of Pattas in favour of landless persons was the duty of a Supervisor Kanungo. The Kanungo did not have any hand in the registration or verification of Pattas. In this view of the matter even if for the sake of arguments, it be accepted that the accused accepted money as a consideration for getting pattas in favour of landless persons registered, it could not be said that he accepted illegal gratification in the discharge of his official duty. In his opinion such an action on the part of the accused may amount to some other offence like cheating or extortion etc., but it could not amount to a criminal misconduct in the discharge of official duties. He also held that in this case it had not been shown that Collector was the appointing authority of Sadar Kanungo. Accordingly, the prosecution had failed to show that the sanction for the prosecution of the accused, granted by the Collector, was legal. In his opinion lack of proper sanction had the effect of vitiating the entire trial. In the result he acquitted Kanhaiyalal of the offences with which he has been charged and made certain consequential orders regarding the disposal of currency notes alleged to have been seized from him.
9. In this appeal, learned Counsel appearing for the State urged that each and every reason given by the learned Special Judge, for acquitting the accused, is erroneous. According to him there was no defect either in the sanction granted by the District Magistrate or in the investigation of the case. Even if there was some defect in the investigation, it did not affect the trial as there was nothing on the record to show that the accused had been prejudiced on that account. The prosecution evidence was reliable and a case under Section 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption Act was fully made out against the accused.
10. Relevant portion of Section 5-A of the Prevention of Corruption Act lays down that in a State like U. P., no police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under Sections 161, 165 or 165-A of the Indian Penal Code or Section 5 of the Prevention of Corruption Act. without the orders of a Magistrate of the 1st Class. In the case of State of A. P. v. P.V. Narayana : 1971CriLJ676 , the Supreme Court observed that the objective of the enactment was that ordinarily investigating into cases falling under Section 161, Indian Penal Code and Section 5-A of the Prevention of Corruption Act is to be done by a senior Police Officer. Accordingly, the discretion given to a Magistrate to permit investigation by a junior officer is not to be exercised in a mechanical manner i.e., there should be some good reason for permitting investigation into such offences by an officer below the rank of Deputy Superintendent of Police. It, however, held that mere irregularity in investigation would not necessarily vitiate the trial. The trial would be vitiated only if it could be shown that the irregularity in the investigation had prejudiced the accused and had resulted in a miscarriage of justice.
11. We find that in the instant case the investigation was conducted by Police Inspector Sri V.N. Singhari who was an officer below the rank of Deputy Superintendent of Police. Ex. Ka-13 on the record reveals that the Superintendent of Police Sri K. N. Daruwala issued a memo and asked Sri Singhari to investigate the case after obtaining necessary permission from the District Magistrate.. The District Magistrate merely wrote the word 'permitted' on that memo and authorised Sri Singhari to investigate the case. He did not state any reason why, in the circumstances of the case, investigation by an officer below the rank of a Deputy Superintendent of Police, was being permitted. The record does not indicate that no other Deputy Superintendent of Police, who could investigate the case, was available for investigation. It appears that the District Magistrate mechanically, and without applying his mind accepted the request of Sri Singhari and permitted him to investigate the case. In our opinion the learned Special Judge was quite justified in concluding that in the circumstances investigation by Sri Singhari was not regular. However, as held by the Supreme Court, any such de-feet in investigation will affect the trial only if it could be shown that the accused had on account of such defect, been prejudiced.
12. Learned Counsel for the accused contended that a police officer investigates a case not merely with the intention of collecting evidence against a. particular person but also to find out the truth. He urged that in this case it was not disputed that Sri Balbir Singh Deputy Superintendent of Police was the Circle Officer of the investigating Officer. The investigating Officer had been submitting; case diary purchas to him. It thus appears that Sri Balbir Singh, who was one of the most important witnesses of the trap, was supervising the investigation. In the circumstances, Sri Singhari was not in a position to investigate the case impartially and to find out the truth. This, according to the learned Counsel, clearly implied prejudice to the accused.
13. We are unable to accept the aforesaid submission. The accused can be said to have been prejudiced by a defective investigation only if it can be shown that because of it he did not get a fair trial. The question whether the accused had a fair trial or not will depend upon the facts of each case. Merely because there was some irregularity in the investigation or that the investigating officer had some animus against the accused or that the investigation was being supervised by a person who was interested cannot by itself, lead to an inference that the accused had necessarily been denied a fair trial, Before an accused can, in such circumstances, claim that he has been prejudiced he has to indicate precisely the manner in which a fair trial has been denied to him. In this case, apart from urging that Sri Balbir Singh who had been active in laying the trap had supervised the investigation, learned Counsel could not bring to our notice anything which could indicate as to how such supervision by Sri Balbir Singh had the effect of denying a fair trial of the accused. Consequently, we find that in this case the trial of the accused was not vitiated on account of any defect in investigation.
14. We now proceed to consider the question whether the trial of the accused was vitiated inasmuch as there was no proper sanction for his trial. Relevant portion of Section 6 of the Prevention of Corruption Act runs thus:
No court shall take cognizance of an offence punishble under Section 161 or Section 164 or Section 165 of the Indian Penal Code or under Sub-section (2) of Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction
(c) In the case of any other person of the authority competent to remove him from his office.
15. In this case the accused is a Supervisor Kanungo and the necessary sanction for his prosecution was granted by Sri S. S. Suri, Collector, Farrukhabad. Learned Counsel for the accused contended that Collector Farrukhabad was not competent to remove him from service. Accordingly, the trial in this case was without a valid sanction.
16. In order to show that Collector was competent to remove the Supervisor Kanungo from service and that the sanction granted in this case was valid the prosecution relied upon paragraphs 381 to 390 of Chapter XXXIII of the Land Records Manual published in the year 1944. Paragraph 382 of the Land Records Manual provides that Collector is the appointing authority of a Supervisor Kanungo. Paragraph 390 thereof lays down that Collector is authorised to remove a Supervisor Kanungo from his post. It appears that subsequently these paragraphs were deleted from the Land Records Manual published in the years 1960 onwards. Learned defence counsel argued that after deletion of paragraphs 382 to 390 from the Land Records Manual, the Collector ceased to be the appointing or removing authority of a Supervisor Kanungo. The argument raised by the defence counsel found favour with the special Judge who held that as in this case, it had not been shown as to how the Collector was an authority competent to remove the petitioner from service, no cognizance could be taken on the basis of sanction granted by him.
17. In our opinion the learned Special Judge was wrong in holding that the prosecution had failed to show that the Collector was competent to remove a Supervisor Kanungo from service and as such the sanction granted by him was illegal. The Land Records Manual is merely a compilation of various rules, statutory and non-statutory, relating to land records, for facility of reference. The statutory rules mentioned in the Land Records Manual derive authority from the fact that they have been promulgate ed in accordance with statutory provisions and not from the fact that they are stated in the Land Records Manual. The Land Records Manual merely serves as an evidence of the fact that such statutory rules exist. According to the pre-fatory note to Part IV of the Land Re-cords Manual published in the year 1944, the Rules contained in Chapters XXXII to XXXIV, which includes Chapter XXXIII, had been framed in exercise of power under Section 234 of the Land Revenue Act and had the force of law. Those Rules had been sanctioned by G. O. Nos. 329-B/1-1939 dated 23rd August, 1940. It means that the State Government had in exercise of the powers under Section 234(b) of the Land Revenue Act issued G. O. dated 23-8-1940 promulgating the Rules contained in Chapter XXXIII, relating to appointment, qualifications, salaries, promotion, leave, transfer, punishment and appeals of Supervisor Kanungo, which for purposes of facility had been stated in paragraphs 381 and onwards of the Land Records Manual. The preface to the Land Records Manual as revised and published in the year 1960 contains the following note-
(1) Chapters XXXII and XXXIII paragraphs 361-392 of Part IV and Chapter LXXV (Paras. 671-686) of Part XI of the Manual regarding service Rules of Supervisor Kanungos and Kanungo Inspectors and Instructors have also been eliminated from the Land Records Manual as new service Rules are being framed separately under Article 309 of the Constitution of India.
18. This shows that Paragraphs 381 onwards contained in the Land Records Manual were deleted in its subsequent publication not because the Government order promulgating the Rules contained in paragraphs 38l onwards of the 1944 Manual, had been rescinded but because the compiler of the Land Records Manual, published in the year 1960, thought that no useful purpose will be served by incorporating those rules as they were shortly going to become inoperative after new Rules under Article 309 of the Constitution had been framed. Accordingly, merely because the paragraphs in question had been omitted from the Land Records Manual, published in the year 1960, it does not follow that the Statutory Rules framed by the Government, reference to which had been made in paragraphs 381 onwards, have been abrogated or have ceased to be in force. It is not disputed before us that so far no fresh statutory rules regarding the appointment and removal of Supervisor Kanungo have been framed. As the Government order promulgating the Rules mentioned in paragraphs 381 onwards of the 1944 Manual has as yet not been rescinded, those rules continue to govern the service conditions of the Supervisor Kanungo (appointment and removal) notwithstanding the fact that the paragraphs mentioning those rules have since been deleted from the Land Records Manual. We are therefore, of opinion that the Collector Far-rukhabad was competent to remove the petitioner from service and the sanction granted by him was fully competent. The cognizance of offences under Section 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, taken on the basis of such a sanction was quite valid.
19. The learned Special Judge observed in his judgment that as in this case it had not been shown that getting Pattas executed in favour of landless persons was the official duty of a Supervisor Kanungo, no offence either under Section 161, Indian Penal Code or Section 5(2) of the Prevention of Corruption Act was made out against him. We are inclined to agree with the learned Sessions Judge when he says that the prosecution has failed to prove that getting Pattas executed in favour of landless persons was the official duty of a Supervisor Kanungo. It is significant to note that in this case the prosecution did not adduce any evidence whatsoever to show that getting Pattas executed in favour of landless persons was the official duty of the Supervisor Kanungo. Learned State Counsel relied upon the statement of Sri S. S. Suri Collector Farrukhabad, wherein he stated that as per his impression the work of getting Patta registered was being done by Supervisor Kanungo. Sri Suri could not refer to any Government order according to which the work of gtetting a Patta registered had been entrusted to the Supervisor Kanungo. At one stage in his cross-examination, Sri Suri stated that the power to allot land was with the Kanungo but then he admitted that in this connection the Sub-Divisional Officer and the Tehsildar call for a report from the Kanungo, but ultimately it is the Patwari who makes the report under the influence of the Kanungo. According to him the Kanungo has a hand in making a proposal, but under the Rules he is not directly responsible for any of these things. In his opinion, the Kanungo had the requisite authority as he was a revenue authority. The statement of Sri Suri on this point appears to be confusing. It gives an impression that the Supervisor Kanungo does not directly come into the picture in connection with the execution of Pattas or allotment of surplus land. If at all, he comes into the picture only when the Sub-Divisional Officer or Tehsildar calls for a report from him which report is actually made by the Patwari. The statement of Sri Suri, therefore, does not show that the execution and registration of Pattas in favour of landless persons happens to be the official function of a Supervisor Kanungo.
20. The procedure for allotment of surplus land and execution of Pattas in respect of such land was described by the court witness Sri Chandan Gopal, Sub-Divisional Magistrate Kaimganj Etah. In his cross-examination he stated that the Land Management Committee prepares a list of persons applying for allotment of land in Form No. 57 Ka and forwards the same to the Additional District Magistrate. Thereafter Munadi is made inviting further applications for allotment of land. The Land Management Committee then holds meeting and formulates its own proposals in this regard which in their turn are verified by the Sub-Divisional Magistrate who approves or disapproves the proposal made by the Land Management Committee. Thereafter, the Land Management Committee executes Pattas in favour of the person whose name has been approved and it id the Naib Tahsildar who gets that Patta executed. The statement of Sri Chandan Gopal who at the relevant time was the Sub-Divisional Magistrate concerned in Kaimganj, clearly shows that in connection with execution of Pattas to landless persons, the Supervisor Kanungo did not at all come into the picture. Execution of Pattas was the responsibility of Naib Tehsildar and the Land Management Committee. As observed by the learned Special Judge, the Rules framed under the U. P. Zamindari Abolition and Land Reforms Act also show that the only function of a Supervisor Kanungo is to check records, registers and accounts of Bhumi Pratiandhak Samiti which are maintained by Liakhpals, Those Rules nowhere provide for registration of Pattas to landless persons by Kanungo. D. O. No. 24-D-5-420/1969 dated 8-11-1969 issued by the Government showed that the Naib Tehsildar, had been made over-all incharge of the work of distribution of land and in that he could take work from the Kanungo and Lekhpals in the circle. Under Para. 15 of the D. O. a Pradhan was to register the Patta and Naib Tehsildar was to verify the same. Naib Tehsildar was instructed to verify the Patta only on the basis of the register kept in Form G.10 by the Kanungo. The learned Government Advocate did not contest the correctness of the aforementioned observations made by the learned Special Judge. It, therefore, follows that the Kanungo had neither any hand in the registration of Pattas nor in the verification thereof. The prosecution has therefore failed to prove that getting Pattas executed or registered was the official function of a Supervisor Kanungo.
21. Relevant portion of Section 161 of the Indian Penal Code runs thus:
Whoever being...a public servant accepts or obtains...from any person for himself...any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act...shall be punished with imprisonment of either description for a term which may extend to three years...
In order to make out a case under Section 161, Indian Penal Code the prosecution had, apart from showing that the accused who was a public servant accepted some gratification, also to prove that the gratification had been received for doing his official act, i.e., getting pattas executed was the official duty of the accused. As stated earlier, the prosecution has miserably failed to prove that getting patta executed was the official duty of the accused. In these circumstances even if the entire prosecution case be accepted as correct, no charge under Section 161, Indian Penal Code is made out against the accused. We accordingly agree with the learned Special Judge that the prosecution has failed to make out that the accused was guilty of an offence under Section 161, Indian Penal Code.
22. However, the position under Section 5 of the Prevention of Corruption Act, is different. Section 5(2) of the Prevention of Corruption Act provides that any public servant who commits criminal misconduct shall be punished with imprisonment 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. What amounts to criminal misconduct within the meaning of Section 5(2) has been explained in various clauses of Section 5(1). Clause (d) whereof provides that a public servant is said to commit criminal misconduct if he by corrupt or illegal means or otherwise, abuses his position as public servant and obtains for himself or for any other person any valuable thing or pecuniary advantage.
23. A perusal of the aforesaid section shows that the essential ingredients of a criminal misconduct falling under Section 5(1)(d) of the Prevention of Corruption Act are-
(1) That the accused should be a public servant.
(2) He should use some corrupt or illegal means or otherwise abuse his position as a public servant.
(3) He should either for himself or for some other obtain any valuable thing or pecuniary advantage.
As distinguished from Section 161, Indian Penal Code, in order to be criminal misconduct, the action of a public servant deriving pecuniary advantage, need not necessarily be connected with the performance of his official duty. Even if an accused, who is a public servant, obtains some pecuniary advantage for himself by abusing his position as a public servant he would come within the clutches of haw. Accordingly, the view expressed by the learned Special Judge that as the prosecution failed to show that the accused accepted the money in the discharge of his official duty, no offence under Section 5(2) of the Prevention of Corruption Act was made out, cannot be accepted as correct. In case the prosecution evidence that the accused accepted a sum of Rs. 250/- for getting Pattas executed is held to be reliable there will be no escape from the position that he accepted that money by abusing his position as a Supervisor Kanungo and the offence under Section 5(2) of the Prevention of Corruption Act, would be made out against him.
24. This brings us to the question whether the evidence produced by the prosecution indicating that the accused accepted a sum of Rs. 250/- from Gaya-din at his house on 5-10-1970 at about 9 P. M. can be relied upon or not. In order to prove the circumstances in which the bribe was given to Kanhaiyalal, the prosecution examined P.W. 2 Balbir Singh, Dy. S. P. P.W. 5 Gayadin, P.W. 6 Kailash and P.W. 7 Loknath. The precise prosecution case regarding the circumstances in which Gayadin Pradhan came and informed Malkhan Singh about the bribe being demanded by the accused as also the circumstances in which Gayadin collected a sum of Rs. 250/- from P.W. 6 Kailash and a trap was organised by P.W. 2 Balbir Singh and witnessed by P.W. 7 Loknath have already been mentioned in the earlier portion of this judgment.
25. According to the prosecution case, Kailash and Sohan handed over a sum of Rs. 250/- to Gayadin a number of days before 5th of October, 1970. P.W. 6 Kailash however stated that he gave the money to Gayadin the very same day on which the trap was laid. The prosecution therefore, made an application to declare Kailash as hostile and sought permission to cross-examine him, That permission was granted and the prosecution cross-examined Kailash. In these circumstances the evidence of Kailash cannot be relied upon.
26. So far as Loknath is concerned, he claims to be an independent witness who accompanied the party, headed by Sri Balbir Singh, which recovered Rs. 250/- from Kanhaiyalal at 9 P. M. According to the prosecution when the party headed by Balbir Singh reached near the cold storage near the Tehsil, Sri Balbir Pingh, at the instance of Malkhan Singh, picked up Loknath from the cold storage and thereafter Loknath witnessed the incident at 9 P. M. wherein the accused was arrested while accepting the bribe. Normally, before conducting the search, the prosecution should have picked up a witness of the locality. Loknath is a resident of a place which is about three miles away from the house of the accused. The prosecution tried to explain this by saying that no witness of the locality was picked up as Sri Balbir Singh apprehended that if he contacted the witnesses of locality the information may leak out and the trap itself might have fizzled out. This explanation does not appeal to us, specially when according to prosecution's own case the party headed by Sri Balbir Singh stayed in the house belonging to one Dr. Gangwar from 3-30 P. M. to about 9 P. M. It has come in evidence that Dr. Gangwar had come to his house at about 4 or 5 P. M. when the party headed by Sri Balbir Singh was still there at his house. It is difficult to believe that when the party headed by Sri Balbir Singh had stationed itself in the house of Dr. Gangwar, Sri Balbir Singh would not have taken him into confidence. It is obvious that if in the circumstances Dr. Gangwar had been picked up to be a recovery witness the prosecution did not run any risk with regard to the trap. If the police party so desired they could have requested Dr. Gangwar, who admittedly was a man of some status and in whom they had confidence, to accompany them at the time of the search. No such attempt was made by Sri Balbir Singh. Accordingly we are not satisfied with the explanation that no witness of the locality was picked up as there was an apprehension that information about the trap might leak out. It appears that Loknath was picked up for being a witness of the trap because he was known to Malkhan Singh, a person who was vitally interested in laying a trap against the accused from before. According to Loknath he had gone to the cold storage to purchase potatoes, when the party headed by Balbir Singh arrived there. In his cross-examination he admitted that although he spent about two or three hours at the cold storage, he did not, in fact purchase any potato on that date. He said that he purchased potato after about 10 or 15 days of the incident. In the circumstances it is difficult to believe that the witness went to the cold storage for purchasing potato as alleged by him. Again we find that the statement of this witness was recorded by the Investigating Officer after about two months. In our opinion the Special Judge has rightly pointed out that the prosecution has failed to give an adequate explanation for such belated examination of this witness. Again the witness stated that at the time of the trap, Gayadin had told the accused that he had brought money for getting the Pattas executed but then he did not make any such statement during the investigation. All these circumstances affect the credibility of the evidence given by this witness. In our opinion the Special Judge was quite justified in observing that the evidence of this witness also could not be relied upon.
27. This leaves us with the evidence of P.W. 2 Balbir Singh and P.W. 5 Gayadin. Both the witnesses were vitally interested in the success of the trap. Normally it would not be safe to place implicit reliance on the statement of such witnesses without proper corroboration. The prosecution sought to get their evidence corroborated by P.W. 7 Loknath whose evidence, as observed above, cannot be relied upon.
28. In support of his case the accused examined D. W. 3 Karamvir Rastogi. Advocate, Sri Rastogi stated that on 5th October, 1970, at about 9-30 or 10 P. M., he was returning to his house. When he reached near the house of the accused he found five or six persons including Malkhan Singh standing at the door of Kanungo's house. One of those persons called the Kanungo and said that the Tehsildar wanted him to go to his place. AS the door was opened, all these persons entered inside the house. At that time, the accused was wearing only an underwear and a vest. Malkhan Singh was armed with a revolver. Malkhan Singh rebuked the Kanungo and said that he would teach him a lesson for not executing a Patta in his favour. The Dy. S. P. and Malkhan Singh then asked Gayadin to take out the currency notes the numbers of which had already been rioted. The witness then made a protest to the Deputy Superintendent of Police and asked him as to why he was acting irregularly. The Deputy Superintendent of Police then got annoyed and told him not to interefere with his work. The witness claims that thereafter the same night the reported the matter to Sri Syed Ali Tehsildar. Next morning he also made a report about the incident to Sri Chandan Gopal, Sub-Divisional Magistrate and the District Magistrate. The fact that Sri Karamvir Rastogi made a report about the alleged high-handed action of the Police to Sri Chandan Gopal is admitted by Sri Chandan Gopal when he appeared to give evidence as a Court witness. There is absolutely no reason for not accepting the testimony of Sri Chandan Gopal. The accused had been arrested on 5th October, 1970, and according to the prosecution case at that time there was no one else present in the house. In these circumstances, it is difficult to believe that if Sri Chandan Gopal was not present at the time of the search, as alleged by him, the accused could have instructed him to make a false complaint to the Sub-Divisional Magistrate and the District Magistrate. Admittedly, the accused did not give any such instructions to Sri Rastogi in the presence of Dy. S. p. It follows that Sri Rastogi went and talked to Sri Chandan Gopal next morning at his house on his own. It is not shown that Sri Rastogi had any special interest in the accused or that he had any special reason to be hostile to the prosecution. Further, according to the prosecution case when the accused came back to his house at about 9 p.m. he found Gaydin waiting for him. He went inside his room and put off his clothes. At the time of accepting the alleged gratification he was dressed only in underwear and vest. The fact that when the police party reached the house of the accused he was in that condition is admitted by defence witness Sri Karamvir Rastogi. If the prosecution case that Gayadin was waiting for the accused when he arrived at his house at 9 P.M. be correct, there was absolutely no reason why before accepting the money the accused should have put off his clothes and he dressed only in underwear and vest. In the normal course he would immediately have called Gayadin inside his room and talked to him about the illegal gratification. It was not at all necessary for him to change into vest and underwear more so, when at 9 P. M. in the month of October (the accused was arrested on 5th October, 1970) the weather condition in Kaimganj would be quite moderate and not such that any one would like to get rid of his clothes immediately on returning to his house. It, therefore, appears that the prosecution had developed the story that after coming to his house, the accused put off his clothes, in order to show that Deputy Superintendent of Police had enough time to arrive at the spot and to hear the talk between Gayadin and the accused and to see the money changing hands. Moreover, the condition in which the accused was, namely that he was wearing a vest and an underwear, goes a long way to corroborate the evidence of Karamvir Rastogi, that at that time, the accused was sleeping and he came out of his room on hearing his door being knocked. In these circumstances, we are inclined to prefer the testimony of Sri Karamvir Rastogi Advocate to that of Gayadin and Balbir Singh, the two witnesses who were vitally interested in the laying of the trap.
29. In the result, we are not satisfied that the prosecution has proved beyond doubt that the accused was caught with the currency notes in the circumstances alleged by it. The prosecution has thus failed to establish its case even under Section 5(2) of the Prevention of Corruption Act. The accused, in our opinion, was rightly acquitted of the charges under Sections 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. The appeal, therefore, fails and is dismissed.