1. Dr. Krishna Lal Anand, a member of the U. P. Medical Service was charged, under Section 161, Penal Code and Section 5(2) of the Prevention of Corruption Act (II of 1947). The allegation against him was that on 6-10-1952, as a public servant and Medical Officer-in-Charge of the Sadar Hospital, Etawah, at about 8-30 or 9-00 P.M., at his quarter in the compound of the Sadar Hospital, Etawah, he accepted Rs. 100/- from one Shringirishi as illegal gratification as motive or reward for showing one of his injuries, No. 7, which had been examined by him earlier on 1-10-1952, as grievous in the injury report and thus rendered favour to him and disfavour to the assailants and further by corrupt and illegal means obtained pecuniary advantage by abusing his position as a public servant and he and his wile were found in possession of pecuniary resources disproportionate to his known sources of income and thereby found committing criminal misconduct falling under Section 5(1)(d) of the Prevention of Corruption Act.
2. The opposite party passed the L. S. M. F. Examination from the Medical College, Amritsar and L. T. M. Diploma from the School of Tropical Medicines, Calcutta in 1940. His wife Dr. Sarla Anand IB also a lady doctor and was posted in Shikohabad in November, 1940. Both he and his wife practised at Mandi Bahauddin in Gujrat, Punjab and, then at Shahdadpur in Sind upto December, 1947.
After the partition of the country, he migrated to India and took up service for a month in the Refugee Camp in Kurukshetra and then settled clown at Hapur and his wife took up service in the Female Municipal Dispensary in Hapur and the opposite party engaged himself in private practice and then joined the M. B. B. S. course in the Medical College at Lucknow in August, 1948 and worked for about six months as the House Surgeon.
Then he was taken in the Provincial Medical Service, Class II. His wife was also absorbed in the Medical Service of the State. From January to April 1951 the opposite party was kept on reserve duty at Lucknow and then he was posted to Etawah as a Medical Officer and then he became a sub-charge and as he was selected in the P. M. S. (I), he was permanently posted as Medical Officer-in-Charge of the Sadar Hospital on 1-1-1952.
Between July and August, 1952, he was sent away for special training in public health to Lucknow and except during this period that he was sent for training, ho remained the Medical Officer-in-Charge of the Sadar Hospital at Etawah till 6-10-1952. When he was the in-charge of the Sadar Hospital, Etawah he acquired a reputation that he used to accept illegal gratification.
3. One Shringirishi, resident of village Bhagwatipur, police station Chabia was involved in an occurrence of marpit on 29-9-1952 with the Ahirs of Nagla Seva, a hamlet of village Latoopur, as a result of which he received some injuries. A report was lodged by him about this occurrence on 30-9-1952.
On 1-10-1952 he is alleged to have gone to the. Sadar Hospital, Etawah and got his injuries examined by the opposite party at his quarter. A sum of Rs. 10/- was paid to him as his fee. The opposite party however, alleged that he had received only Rs. 8/- as his examination fee.
It is alleged that the opposite party told Shringirishi that all the injuries Which he had received were simple and if he could pay him Rs. 100/-, he could give a report of grievous injuries, which would make the Ahirs liable to severe punishment. The offer was declined by him and he asked him to give the injury report as the injuries were.
It is then said that the opposite party told him that he did not realise what a grievous injury means and he should bettor consult his lawyers and after that he would be in a position to realise the implications of getting a certificate that the injuries were grievous. The injury No. 7 was a contusion on the outer half of dorsal of right hand.
It had a swelling and fracture or dislocation of the right mctacarpal phalangeal joint of index finger was suspected. The injury was, therefore, kept under observation and it is alleged that the opposite party had directed the complainant to get himself X-rayed and meet him the next day.
On the next day, when the complainant went to his place, he was not found. He then again went to him on the 4th October and asked him to complete the injury report. It is alleged that he was again asked to come the next day, that is 5-10-1952. The complainant did not go to him on the 5th October and again met him on the morning of 6-10-1952 and requested him to complete the report.
On this, it is said that the opposite party again told him that he was not understanding the implications of what had already been explained to him and on this the complainant said that he was only in a position to pay Rs. 50/-, on which the opposite party is alleged to have said that he would not accept even Rs. 500/-.
The complainant then told him that he would give a final reply in the evening. The complainant then approached the District Magistrate at his residence who asked him to meet him in his court. The complainant then went to the District Magistrate in his court. Sri A.P. Jain, City Magistrate, was then called in his eourt. Sri A.P. Jain then recorded the statement of the complainant and obtained Rs, 100/- from the Nazarat with the permission of the District Magistrate and signed them, making preparations for laying a trap.
The complainant was directed to meet him at the kotwali between 7-30 and 8-00 P.M. The complainant went to the Kotwali at the appointed time. There the City Magistrate handed over the currency notes and the injury report to the complainant and divided the trap party into two batches.
At about 8-30 or 9-00 P.M. he dispatched Shringirishi, Sri Johri, Dy. S.P. and Sri Rampal Singh Circle Inspector ahead of him by 50 paces and himself accompanied by Babu Ram Pastore, S. I., D. I. S. followed the first batch. Shringirishi went to the quarter of the Medical Officer and from the verandah called out, while Sri Johri, the Deputy Superintendent of Police and Sri Rampal Singh Circle Inspector remained hovering in the garden of the compound and as they did not hear anything of the conversation between the Medical Officer and the complainant, they had not been produced by the prosecution.
Sri Jain and Sri Babu Ram Pastore remained near the boundary wall of the quarter of the opposite party towards the east and when the opposite party, who was sitting in the main bitting room of the quarter, called in the complainant and when the complainant entered that room, Sri Jain and Sri Babu Ram Pasture also entered the compound and took their positions near the eastern window of the sitting room. This window is a big window with a wire-netting fixed at outer side.
The opposite party is alleged to have been sitting near the main entrance door of the room. His sister Srimati Raj Kumari, her two children and another child of the opposite party were in the room. As soon as Sringirishi entered the room, his sister Srimati Raj Kumari walked into another room and the opposite party and the complainant were left in the room.
The prosecution's further allegation is that the complainant requested the opposite party to write down grievous hurt on the injury report. The opposite party again reiterated that the position had already been explained to the complainant and that he would not accept less than Rs. 500/-. The complainant then entreated him and touched his feet and the bargain was struck at Rs. 200/-. Rs. 100/- in currency notes are alleged to have been handed over and the injury report was also given to the opposite party.
He was then asked to come in the morning when he would put plaster on his hand so that people may take the injury to be grievous and he should also give out that his bone was fractured. After that Shringirishi walked out and took some time in the doorway. At that very moment Sri Jain and Sri Pastore, who claimed to have overheard the conversation between Shringirishi and the opposite party, came over to the verandah and entered inside the room followed by the Deputy Superintendent of Police Sri Johari and the Circle Inspector Rampal Singh and light was switched on.
The opposite party at the very moment got up from the chair with the notes and the injury report in his hand walking into another adjoining room. The other subsequent facts as to how the conversation took place between the opposite party and the raiding party are not disputed. The Civil Surgeon also arrived there either at the quarter of the Medical Officer or at the Kotwali.
The opposite party was then released on bail and the first information report was prepared on the basis of the report made by Sri Jain at the Kotwali. The investigation was taken up by the Station Officer and the opposite party was prosecuted with the offence.
The Special Judge acquitted the opposite party of the charge under Section 161, I. P. C. but convicted him for committing criminal misconduct under Section 5(1) (d) of the Prevention of Corruption Act punishable under Section 5(2) of the Act and sentenced him to five years' rigorous imprisonment and a fine of Rs. 5000/-.
4. The opposite party has filed an appeal against the decision of the Special Judge in this Court which is No. 271 of 1954 and the State Government has filed Appeal No. 1162 of 1954 against the order of acquittal of the charge under Section 161, I. P. C. The following charges against the opposite party were as follows:
'Firstly--That he on 6-10-1952 being a public servant in U. P. Medical Service and Medical Officer-in-charge Sadar Hospital, Etawah, at about 8-30, or 9 P.M. at his quarter in the compound of the Sadar Hospital, Etawah agreed to accept and obtained Rs. 100/- for himself from P. W. Sringirishi as illegal gratification as motive or reward for his agreeing to show injury no. 7 in Ex. P-3 which he had examined on Ist October, 1952 as grievous, and thus in discharge of his official function to render favour to P. W. Shringirishi and disfavour to his alleged assailants.
And thereby committed an offence punishable under Section 161, Penal Code.
'Secondly--By obtaining pecuniary advantage by corrupt and illegal means ho abused his position as public servant and he and his wife on his behalf were found in possession of pecuniary resources disproportionate to jus known sources of income and thereby he committed criminal misconduct falling under Section 5(1) (d) of the Prevention of Corruption Act (No. II of 1917) punishable under Section 5(2) of the said Act.'
5. As regards the charge under Section 161, the Special Judge acquitted him on the ground that the opposite party had a right of private practice and when he gave a report to Shringirishi, he acted in his capacity as a private practitioner and not in the discharge of his official duty as the Medical Officer-in-charge of the hospital and he cannot be said to have taken illegal gratification as motive or reward in the discharge of his official function to render favour or disfavour to someone.
It was contended by the counsel for the State that when the opposite party accepted Rs. 100/- from the complainant, he was the Medical Officer-in-charge of the Sadar Hospital, Etawah and consequently he acted in the discharge of his official function, even though he was allowed private practice.
In our opinion, there is no force in this contention of the counsel for the State. The fact that the, Opposite party was the Medical Officer-in-charge of the hospital and thus a public servant within the meaning of the Indian Penal Code, does not necessarily mean that when ho accepted Rs. 100/- from the complainant, he did it 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 function favour or disfavour to any person.
Reliance was placed by the State Counsel on the cases of Ramachandriah v. Emperor AIR 1927 Mad 1011(A), Chhutkannoo Singh v. Rex AIR 1949 Oudh 84 (B) and Supdt. and Remembrancer of Legal Affairs, Bengal v. Tarapada Biswas AIR 194G Cal 270 (G). They wore the cases where the person had accepted the gratification for getting some work done through a superior officer or wore cases where the person who offered the bribe, had given it on the understanding that the public servant was in a position to do him some favour in the discharge of his official duties.
The cases are distinguishable on the facts of the present case and, in our opinion, when the right of private practice was given to the opposite party he when giving his report to the complainant, was not acting in the discharge of his official duty and consequently he has been rightly acquitted by Special Judge of the charge under Section 161, I. P. G.
6. He has, however, been convicted by the Special Judge for criminal misconduct under Section 5 (1) (d) punishable under Section 5 (2) of Act II of 1947. The Special Judge has not given any finding to the effect that the opposite party was in possession of pecuniary resources disproportionate to his known sources of income and consequently the presumption referred to under Section 5 (3) of the Prevention of Corruption Act could not be availed of in the present case. Section 5 of the Prevention of Corruption Act provides
'(1) A public servant, is said to commit the offence of criminal misconduct in the discharge of his duty-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as motive or reward such as is mentioned in Section 161, Penal Code;
(d) if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.'
Sub-section (2) Section 5 provides :
'Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both.' The Special Judge has held that by enacting Section 5 of the Prevention of Corruption Act, the Legislature has enlarged the scope of the offence of bribery. The offence of bribery has been defined as 'misconduct' by the Legislature under Section 5 of the Act. The opposite party by obtaining pecuniary advantage by corrupt and illegal means abused his position as a public servant.
In the present case, the opposite party obtained, according to the Special Judge, a sum of Rs. 100/-from Shringrishi wickedly and consequently even though he was not discharging any official act or function, he obtained a valuable thing or pecuniary advantage by corrupt or illegal means by abusing his position as a public servant.
The Special Judge has lost sight of the opening words of Section 5 of the Prevention of Corruption Act. Every misconduct enumerated in Sub-section (1) of Section 5 is not punishable under Sub-section (2). A misconduct, which is punishable under Sub-section (2) is a misconduct in the discharge of his duties as a public servant and in the present case when the opposite party was not acting as a public servant but in the exercise of his right as a private practitioner, he cannot be regarded as having committed misconduct in the discharge of his duty as a public servant nor can he be regarded to have obtained any pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant.
In our opinion, therefore, the opposite party was wrongly convicted under Section 5 (2) of the Prevention of Corruption Act. It has also been urged by the counsel for the opposite party that even on facts the prosecution has not been able to establish that the opposite party accepted Rs. 100/- in order to show any favour to the complainant and disfavour to others. On 1-10-1952 the injury No. 7 in the injury report was described as follows :
'Contusion on outer half of dorsum of right hand, swelling, suspected fracture and dislocation of right metacarpal -- phalangeal joint of index finger -- under observations.' The report in the circumstances, cannot be regarded as having been purposely kept vague. Before an X-ray examination it was not possible by an outer examination for the doctor to have found out whether there was any fracture and consequently the injury was kept under observation.
Whenever there is a swelling apparently on any portion and a fracture is suspected it cannot be detected by any outer, examination in that condition the doctors generally keep such injuries under observation and it cannot therefore, be argued from the nature of the report that the doctor purposely kept a loop hole in the report given by him on the first of October 1952 for subsequent changes for the benefit of the complainant.
It also appears improbable that the doctor would have insisted upon the complainant to pay him something for making injury No. 7 a grievous injury although in fact it was a simple injury and would have insisted upon his going to lawyers to understand the implications of the injury being shown as grievous.
If a complainant goes to doctor and asks him to falsely give a report showing an injury to be grievous although it is in fact simple the doctor may insist upon getting illegal gratification for doing so but it is not probable that although the complainant is not anxious to have a report showing the injury to be grievous, still the doctor insists upon his paying him illegal gratification and getting a false report to the effect that injury was grievous.
The prosecution has led evidence to show that on 1-10-1952 when Shringirshi was first examined by the doctor and he gave his report, he had been asked by the doctor to give him Rs. 100/- if he wanted a report of grievous injury.
On the first day the complainant refused. He said that he was not in a position to pay a sum of Rs. 100/-. He goes to the doctor again on the 4th of October and asked him to complete his injury report. He was asked by the doctor to come the next day and when he was not found on 5-10-1952, he again went to the doctor in the morning of the 6th October and the demand was reiterated.
The complainant bargained with him and said that he was willing to pay only Rs. 50/-. Thereupon the complainant said that he would give his final reply in the evening and sent to the District Magistrate and gave him the whole report. The whole conduct of the complainant does not inspire any confidence and it docs not appear reasonable that if he had no mind to pay the money to the doctor and wanted the matter to be brought to the notice of the District Magistrate he would not have done so on 1-10-1952 when the demand was made to him for the first time by the doctor and would have waited till the 6th of October to inform the District Magistrate.
The statement of the complainant, in our opinion cannot be accepted. If his statement is discarded, there is no evidence to show that the sum of Rs. 100/- which was paid on the 6th October in the evening to the doctor and was recovered from his possession was given to him as an illegal gratification for showing favour to the complainant.
7. In the result we are of opinion that the Government Appeal No. 1162 of 1954 must tail and it is accordingly rejected. We, however, allow criminal Appeal No. 271 of 1954 and set aside the conviction of the appellant and the sentences passed against him. He need not surrender to his hail.
8. The fine if paid shall be refunded.