1. This appeal arises out of the judgment and Order passed on 22-4-1964 by Mr. N. B. Desai, Special Judge, Rajkot whereby the accused-appellant came to be convicted and sentenced to suffer rigorous imprisonment for four months and to pay a fine of Rs. 500 in default to suffer further rigorous imprisonment for four months in respect of offences punishable under Section 161 of the Indian Penal Code and under Section 5(2) of the Prevention of Corruption Act.
2. The accused-appellant was serving as a Medical Officer, Government City Dispensary at Morvi during the period from May to July 1963. He was class III Officer and was in charge of an out-door dispensary. On the upper storey of the dispensary-building, he had his residential quarters. The dispensary was a free dispensary for all people and that its working hours were 8-30 a.m. to 12-0 p.m. and from 4-0 p.m. to 6-30 p.m. On 6-5-1963 one Natvarsinhji alias Natubha Mansinhbhai of Derala had gone to Morvi along with his servants Husein and Narubha for getting his tractor repaired. They had gone to Prabhat Garage for getting that work done, and then in the afternoon Natubha went to the place of witness Merubha (Ex. 23) for taking some rest. After taking tea at about 4-0 p.m. he went to Prabhat Garage and while he was there, at about 6-0 or 6-30 p.m. he fell suddenly ill and became unconscious. He was consequently taken to the City Dispensary of which the accused was in charge. He was taken there in a taxi by his servants and Merubha and while he was in the taxi the accused appellant examined him and gave him some treatment. In the meantime, Balubha, on receipt of some message from Merubha about the illness of Natubha, came up there and on inquiring about the condition of Natubha from the accused, he was told that his condition was serious and that there were hardly any chances for him to survive. Consequently they told the accused that they would like to take him to his place at Derala as his family was there. The prosecution case was that the accused told them that as his condition was serious and might be on the way, he would be required to inform the police and that he may have, in the event of his death, to perform postmortem examination, and consequently he cannot allow Natubha to be taken away without informing the police. Balubha requested the accused that there was nothing suspicious abouthis illness and that since he had taken ill at Prabhat Garage, he should be allowed to be taken to his house at Derala. While agreeing to his suggestion, the accused is said to have demanded an amount of Rs. 50 for him, and Rs. 5 for his compounder. Since Merubha had no money with him, Balubha (Ex. 9) gave the amount of Rs. 55 to the accused. Narubha then was taken in the same taxi to Derala by Merubha, and some time after reaching home, he died that very night at about 10-40 p.m. That taxi was sent back to Morvi for giving information about Natubha's death to Merubha's parents. The taxi-driver Ranmal also informed Balubha about it as well. Natubha was cremated on the next morning. That day Merubha showed Balubha, a chit written by Juvansinh, the uncle of deceased Natubha on one Gokaldas Pragji for payment of Rs. 500 to him. Out of the amount of Rs. 500 received by Merubha, Rs. 55 were paid to Balubha as an amount that was paid by him to the accused on account of Natubna previous evening and another sum of Rs. 55 as taxi charges to the taxi driver Ranmal. The balance of the amount of Rs. 390 was returned by Merubha to Juvansinh. The first part of the charge (Ex. 6) relates to the accused, being a public servant, having accepted Rs. 55 on 6-5-1963 as a gratification other than his legal remuneration as a motive or regard for discharging Natubha from the hospital and to avoid post mortem examination so as to be liable for an offence under Section 161 of the Indian Penal Code and also under Section 5(2) of Prevention of Corruption Act. Be it said here that this part of the charge is held not established against the accused in the case.
3. Deceased Natubha was insured in the sum of Rs. 5,000 with the Life Insurance Corporation of India as per Insurance Policy Number 14077718 and his heirs had to make a claim for the insurance amount due under his policy from the Corporation. Some forms were obtained for that purpose and they were sent, by Juvansinh, the uncle of deceased Natubha, to Balubha at Morvi for doing needful in the matter. The Form (Ex. 10) was to be filled in and signed by the Medical Officer who had last attended upon Natubha's illness. On 12-7-1963 at about 1-0 or 1-30 p.m. Balubha accompanied by the Field Officer Shri Harilal Sanghvi (Ex. 18) went to the house of the accused. Balubha then requested the accused to fill in the Form (Ex. 10) as he had treated Natubha last just before his death which took place on the night of 6-5-1963. After some hesitation, the accused dictated the contents to be filled in the blank portions of the printed form and he put his signature thereon. The case of the prosecution then was that he did not put his seal below his signature on that form and took Balubha inside the adjacent room and told him that he would give him the form, after he was paid Rs. 50 duly signed and sealed. Balubha told him that he did not have that amount with him and that he would have also to consult the uncle of the deceased Natubha for that purpose. So saying, Balubha came in the front room and then Balubha and the Field Officer Shri Sanghvi left his place. On the way Mr. Sanghvi was told about the amount of Rs. 50 demanded by the accused from him. He, however, asked him toact as he thought proper. It appears that since Balubha had some urgent work he had gone to Bombay, and after his return to Morvi on 26-7-1963 he went to Derala on 29-7-1963. He in-formed Juvansinh (Ex. 35) about the demand of Rs. 50 made by the accused for filling up the insurance claim Form as required. Juvansing, however, told him that while the demand was not proper, he asked him to do whatever he thought proper. Juvansinh paid a sum of Rs. 50 to Balubha for that purpose. Then on the next day i.e. on 30-7-1963 the accused met Balubha in the Bazar. The accused inquired from him as to why he had so far not taken away the Form and Balubha told him that there was some delay as he had gone to Bombay. The accused thereupon told him that he should see him next morning and take away the Form by paying the amount.
4. On the next day i.e. on 31-7-1963 Balubha went to Rajkot and lodged a complaint (Ex. 11) at the office of the Anti-Corruption Branch. Then Balubha, accompanied by the police officers, left for Morvi that day at about 4-15 or 4-30 p.m. They went first to the house of Balubha. Then Mr. Kamdar, Deputy Superintendent of Police (Ex. 46) attached to the Anti-Corruption Branch, sent for two Panchas. Those Panchas were Prabhatsing Madhavsing (Ex. 19) and one Kanji Hirji. They were informed the purpose for which they were called. Balubha then produced Rs. 50 in five Currency Notes of Rs. 10 each. The numbers of the Notes were noted down in the Panchanama. Then anthrecane powder was applied to the Notes and the demonstration with the help of the ultra violet lamp was made by constable Bivishi before the Panchas. Nothing was allowed to remain with Balubha except those five Currency Notes of Rs. 10 each which he had placed in the right side pocket of his pant. Then Balubha accompanied by panch Prabhatsing, went ahead and reached the City Dispensary and as he did not find the accused there, they waited for some time. Later on they had gone to the residence of the accused i.e. on the upper storey of the dispensary premises. The accused had put on a Dhoti and a Ganjifrock. Balubha and Prabhatsing went inside the room and Balubha sat on a chair near the table and Prabhatsing sat on a cot tying there. After having some casual talk. Balubha asked the accused to give him the Form which was to be kept ready. Then the accused inquired from him if he had brought the amount of Rs. 50 and Balubha then took out the amount and handed over the same to the accused. The accused brought the form and gave the same to Balubha. The accused had placed those Notes in the fold of his Dhoti. In the meantime, Prabhatsing suggested to Balubha that they may go, and to that Balubha asked him to go ahead and that he will follow him very soon. Prabhatsing accordingly went down and gave a signal by scratching his head as arranged. On seeing the same, Shri Kamdar (Ex. 46) accompanied by the police and Panchas came up there and entered the room of the accused. After Shri Kamdar introduced himself as a Deputy Superintendent of Police attached to the Anti-Corruption Branch, he inquired of the accused if he had accepted the amount of Rs. 50 fromBalubha. The accused was taken aback and as the prosecution case goes, he could not give any reply and tried to run away from there. Shri Kamdar caught hold of him by his shoulder and at that time accused is said to have thrown away his Dhoti as a result of which the five Currency Notes fell from the fold of his Dhoti on the carpet. The accused was then made to put on his Dhoti and sit in a chair. The police constable Bavishi then gave demonstration by means of ultra violet lamp and the numbers of the Currency Notes were found tallying with the numbers noted in the Panchnama, and a panchnama (Ex. 20) was made of all that and Articles 1 to 3 and 6 were attached. The case papers of Natubha came to be produced by compounder Mansukhlal (Ex. 12) and they were attached. The injection register maintained in respect of injections etc. given to the patients was also produced by Mansukhlal and that was also attached at that time. On 1-8-1963 Shri Kamdar recorded statements of various persons such as Mansukhlal, Field Officer Shri Sanghvi and after going to Derala he also recorded statements of Juvansinh, Husein and Nurubha. On 14-8-1963 Shri Kamdar recorded the statement of Anantray Joshi. He produced a letter with envelope. After finishing the investigation of the case, papers were forwarded to the Inspector General of Police, Ahmedabad, and were received back on 24-10-1963. The accused was arrested on 10-1-1964 and was released on bail and on that very day the charge-sheet against him was sent to the Special Judge, Rajkot.
5. The accused pleaded not guilty to the charge levelled against him and according to his written statement (Ex. 50) as also his statement recorded under Section 342 of the Code of Criminal Procedure, he has denied about the first incident having at all taken place as alleged, and so far as the second incident commencing from 12-7-1963 is concerned, he has stated that he had demanded Rs. 50 from Balubha not by way of bribe but by way of his fees for filling, in the form and issuing the certificate desired by him with regard to the death of Nalubha. With regard to the conduct at the time when the police party had come up and the Currency Notes were taken from him he has stated that he was frightened as he had not taken any bribe and was taken aback as to what had happened. He has denied to have tried to run away or removing his Dhoti with a view that the Notes would be thrown out on the ground. With regard to the report (Ex. 26) alleged to have been made by him to Civil Surgeon, Rajkot, he has stated that it was at the instance of Shri Kamdar that it was written out and that the contents thereof were not true. According to him, he bona fide believed that he was entitled to charge the fees for filling in such a form and that way he had taken the amount of Rs. 50.
6. The learned Special Judge after considering all the evidence adduced before him, found that the prosecution had failed to prove beyond any reasonable doubt that the accused in his capacity as public servant demanded and accepted a sum of Rs. 55 on 6-5-1963 from Balubha and Merubha as an illegal gratification as a motive or reward for allowing them to take awayNatubha to his house at Derala. In respect of the further charge regarding the payment of Rs. 50 made to him on 31-7-1963, he has found that the accused in his capacity as a public servant had demanded and accepted a sum of Rs. 50 on 31-7-1963 from Balubha as illegal gratification as a motive or reward for signing and stamping medical Form of Life Insurance Corporation in connection with the insurance claim on the policy of deceased Natubha. He also found that the accused had committed the offence of criminal misconduct in the discharge of his duties so as to be liable under Section 5(2) of the Prevention of Corruption Act. In the result, he convicted the accused in respect of the charge for payment of Rs. 50 on 31-7-1963 under Section 161 of the Indian Penal Code. He also convicted him for offence under Section 5 (2) of Prevention of Corruption Act. In respect of both the offences he sentenced him to suffer rigorous imprisonment for four months and to pay a fine of Rs. 500 or in default to suffer further rigorous imprisonment for four months. Feeling dissatisfied with that order, the accused has come in appeal.
7. Before we actually consider the points arising in determination of the guilt or otherwise of the appellant, a point was raised by the learned Government Pleader that in an appeal filed by the accused in respect of the order of conviction, it would be open to him to challenge the finding with regard to the first incident which he said to have taken place on 6-5-1963. According to him, since the charge was a composite one and also under the same sections of law, it is not required that an appeal from that order should be preferred by the State and that it could be gone into when appeal is filed by the accused with regard to the order of conviction in respect of the other part of the charge levelled against him. The charge (Ex. 6) against the accused is no doubt a composite one and the accused is sought to be made liable for an offence under Section 161 of the Indian Penal Code as also under Section 3 (2) of the Prevention of Corruption Act in respect of both the charges. Section 234 of the Code of Criminal Procedure provides that when a person is accused of more offences than one of the same kind committed within the space of 12 months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. The offences are of the same kind when they are under the same section of the Indian Penal Code and a trial of the accused in respect of both the charges together is perfectly proper. Rut that would not mean that if one of the charges is held not to have been established beyond any reasonable doubt against the accused, it will be open to the State to challenge that finding or order passed in that respect, before the appellate Court without having preferred an appeal against any such order under Section 417(1) of the Code of Criminal Procedure. On a plain perusal of the charge (Ex. 6) it obviously contemplates two acts which amount to offences punishable under Section 161 of the Indian Penal Code. Both the acts are quite independent of each other. The dates on which the acts were committed are different. The objects for which the illegal gratification is said to have been demanded and accepted by the accused are different one from enabling Natubha to be taken to his house from the dispensary, and avoid post-mortem examination and the other for filling up the Form (Ex. 10) to enable his heirs to claim the insurance amount under his Insurance Policy. Both the acts in themselves amounted to complete offences, and one act did not depend on the other. Thus the charge (Ex. 6) though a composite one, it covers two acts of the accused, and the points of determination raised by the learned Special Judge are in respect of both the acts separately. If, therefore, the accused-appellant is not found to be guilty in respect of the first act of offence alleged against him, that finding much though no order of acquittal in actual words is passed in the last part of the order in the judgment, amounts obviously to an acquittal of the accused in respect of that part of the charge. If, therefore, the State wants the appellate Court to have that finding set aside or challenged it can only claim to have it done, by preferring an appeal against that finding which in our view, amounts to an acquittal, as required by Section 417(1) of the Criminal Procedure Code. The powers of the appellate Court under Section 423 of the Criminal Procedure Code, cannot be invoked for reversing an order of acquittal, without filing an appeal against the same in an appeal filed by the accused against the order of his conviction in respect of the other part of the charge only.
8. Mr. D. C. Trivedi, the learned advocate for the accused-appellant invited our attention to the decision of our own High Court in a case of Parbhat Laxman v. The State of Gujarat, 1962-3 Guj LR 96: (AIR 1962 Guj 51) where it was held that in absence of any appeal filed by the State, it would not be open to the Appellate Court to convert an acquittal in respect of second criminal act into one of conviction under Section 423 of Criminal Procedure Code. The observations made in that case run as under:
'Another case may arise where an accused person is charged with having committed one offence in respect of one criminal act and another offence in respect of a different criminal act, in the course of the same transaction. If he is convicted of the offence of one criminal act and acquitted of the second criminal act, and if he files an appeal against the former, it is only that conviction which is the subject-matter of the appeal. The facts relating to the acquittal in respect of the second criminal act are not before the appellate Court and it is not open to the appellate Court to convert the acquittal in respect of the second criminal act into one of conviction, when there is no appeal by the State against that acquittal.'
In a case of State of Andhra Pradesh v. Thadi Narayana, AIR 1962 SC 240 the Supreme Court has considered the powers of the appellate Court under Section 423 of the Code of Criminal Procedure and has laid down that:
'Section 423(1)(b)(i) is clearly confined to cases of appeals preferred against orders of conviction and sentences, the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favourof a party in respect of an offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved.'
In a case where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the appellate court. If an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the appellate Court and not the order of acquittal. Therefore, the assumption that the whole case is before the High Court when it entertains an appeal against conviction is not well founded and as such it cannot be pressed into service in construing the expression alter the finding' in Section 423 (1) (b) (2). The expression 'alter the finding' has only one meaning and that is 'alter the finding of conviction and not the finding of acquittal' in exercising the powers conferred on it by Section 423(1)(b), the High Court cannot convert acquittal into conviction.' It is, therefore, clear that while dealing with an appeal against an order of conviction of the accused, it would not be open to us to consider the correctness or otherwise of the finding given by the learned Special Judge with regard to the first act said to have been committed by the accused on 6-5-1963. The mere fact that the learned Special Judge has not specifically mentioned in his last order that the accused is acquitted, when in fact, on a point of determination in respect of that part of the charge is given, as not established, it cannot justify the State to say that no order of acquittal is passed, and therefore it could not file the appeal and that the finding in that respect can be challenged in this appeal filed by the accused. That part of the case cannot be said to be before us in this appeal, and the learned Government Pleader cannot agitate against that finding of the Court without having filed an appeal against the same.
9. Turning to the facts of the second part of the charge, relating to the incident which took place on 31-7-1963, it was contended by Mr. D. C. Trivedi, the learned advocate for the accused-appellant, that it is not enough that the accused accepted the amount of Rs. 50 as a gratification but that it must be shown to be 'other than legal remuneration' as a motive or reward for doing his work in giving a certificate by filling in the Form (Ex. 10) in his capacity as a Medical Officer in discharge of his duties as such public servant. According to him, even if the case of the prosecution as disclosed from its evidence is accepted and that the report (Ex. 26) sent by the accused to the Civil Surgeon, Rajkot, on the next day of the incident was not correct, unless all the necessary ingredients of the offence under Section 161 are proved beyond any reasonable doubt, he cannot be held guilty for the offence as found by the learned Special Judge. Mr. Trivedi pointed out that under the rules and the circulars governing the accused, a Government Medical Officeris allowed private practice, and that such work of giving a certificate for the purpose of making an insurance claim was permissible and the fees for the same, he would be entitled to claim as his own -- unless the patient had died in the hospital--in which case, even he would be entitled to claim at the rate of Rupees 5 in the minimum as per the schedule of fees produced at Ex. 44 in the case. If, therefore, he demanded an amount of Rupees 50 from Balubha for giving a certificate as required to be given in the Form (Ex. 10), howsoever, unreasonable the amount, he cannot be said to have asked for an amount which is other than his legal remuneration so as to come within the ambit of Section 161 of the Indian Penal Code. It is necessary, therefore, to examine and find out whether the work or the purpose for which he demanded Rs. 50 from Balubha was such as amounted to private practice and in respect of which he was entitled to claim any amount asked by way of fees or the like. If he was so entitled to, it cannot amount to an illegal gratification or gratification other than legal remuneration as contemplated in Section 161 of the Indian Penal Code.
10. The main facts do not appear to be much in dispute except with regard to the contention raised by the accused-appellant regarding the acceptance of the amount said to be for the work done by him as his fees, and with regard to the conduct of the accused suggestive of his guilty mind and his improvement in the version given out on 1-8-1963 in his report (Ex. 26) to the Civil Surgeon of Rajkot. It is common ground that on 12-7-1963 Balubha accompanied by Mr. Sanghvi, the Field Officer of the Life Insurance Corporation had approached the accused who happened to be the Medical Officer in charge of the Government City Dispensary, Morvi. The accused had treated deceased Natubha on the evening of 6-5-1963 by giving him some injections for which he had not charged him and it was on that night that Natubha died at his house at the village of Derala at a distance of about 18 miles from Morvi. A blank form required to be filled in for claiming an insurance amount from the Life Insurance Corporation was Given to the accused on 12-7-1963 as he was the medical attendant who had last treated Natubha before his death. That form was filled in at the dictation of the accused by witness Balubha (Ex. 9) himself and was signed by the accused. It was attested by Balubha at the same time. That Form was to be filled in by the medical attendant in his last illness and it was that way that the form assumed importance as it was required to be filled in by the accused himself. The Form was filled in and after putting his signature. Balubha was taken inside the other room where he was told that he will have to pay Rs. 50 so as to put his stamp thereon and he could take away the Form by making payment thereof. Again on 30-7-1963 both of them had met and the accused had reminded him for taking away the Form by making payment. It was thereupon that Balubha approached the Deputy Superintendent of Police Shri Kamdar attached to the Anti Corruption Branch where his complaint (Ex. 11) was recorded and necessary arrangements were made for arranging the trap. On 31-7-1963 Balubha accompanied by Panch witness Prabhatsing went to the house of the accused and the Currency Notes on which anthracent powder was applied and the numbers whereof were taken down in the Panchnama were given to the accused. The accused had accepted the amount and put the same in the fold of his Dhoti. In the meantime Prabhatsing went ahead and after giving necessary signal to the police accompanied by Panch turned up and the amount of Rs. 50 in five Currency Notes of Rs. 10 each were found from the accused. That the amount was thus demanded and accepted by the accused has not been in dispute. Now, the evidence of Balubha (Ex. 9) is to the effect that while he was in company of Shri Sanghvi (Ex. 18), he was taken in the other room by the accused and then he was told that he should pay for giving him the certificate duly signed by him as required by the Life Insurance Corporation. As he had no money and he wanted to consult Juvansing (Ev. 35) the uncle of deceased Natubha, he left the place telling the accused that he would come after consulting them. He had then spoken to witness Sanghvi (Ex. 18). Mr. Sanghvi (Ex. 18) has stated that Balubha had then told him that accused was asking for Rs. 50/- and he told him that he might do as deemed fit. Balubha had thereafter gone to Derala and spoken about this fact to Juvansing (Ex. 35), uncle of deceased Natubha and if we look to the evidence of Juvansing (Ex. 35) we find that he was told by Balubha that the doctor was demanding Rs. 50 for charges, bribe or whatever it may be. He then told him that that was not proper and then he paid Rs. 50 to him. From this evidence although one can say about the accused having demanded a sum of Rs. 50 from Balubha for issuing the form (Ex. 10) duly signed by the accused, it appears abundantly clear that Balubha must have been under the impression that this accused who was in charge of a Government Hospital and who had given treatment to Natubha on 6-5-1963 was bound to issue a certificate and had no right whatever to claim any amount or any such fees. On the other hand it appears that the accused probably knew at that time that he was entitled to claim any such amount exceeding Rs. 5 by way of his fees for issuing a certificate as per Ex. 10 in the case. If we turn to his own report (Ex. 26) made to his superior officer i.e. Civil Surgeon, Rajkot, on the next day of the incident i.e. on 1-8-1963, we feel no doubt that he chose to give out some explanation with regard to the incident which took place on the previous day namely on 31-7-1663. This letter was written by his son-in-law Bhagvatiprasad (Ex. 25) at his dictation. In his cross-examination as also in the written statement (Ex. 50) filed by the accused in the case, an attempt was made to get over this letter by saying that the Deputy Superintendent of Police Shri Kamdar had asked him to send such a letter to the Civil Surgeon on that very day and that the draft of that letter was written by him at the instance of Shri Kamdar. That part of the evidence of Bhagvatiprasad cannot be believed for the obvious reason that he is closely related to him and the version set out by him in that respect appears to be obviously untrue. Shri Kamdar had no reason whatever to ask him towrite such a letter and it would be too much to say that the accused who happened to be a Medical Officer, and his son-in-law Bhagvati-prasad who was also a Senior Clerk in the Labour Welfare Centre at Rajkot, would go to the length of writing such a letter contents of which were far from true. To say that it was written at the instance of Shri Kamdar cannot be accepted in any way as true in the circumstances of the case. He had, however, to find out a device to get over such a letter which contained facts which went against his defence in the case before the learned Special Judge. The first part of the letter shows that for the treatment given to Natubha on 6-5-1963, a bill of Rs. 25 was due from Balubha, and that Balubha though had promised to pay the same in about two days' time had not paid the same. Then on 12-7-1963 when Balubha accompanied by Shri Sanghvi went to him for having the insurance form filled up, he agreed to do so on his paying Rs. 25 which Balubha had not paid to him so far in spite of his requesting him to do so. Then he goes on to say that on 31-7-1963 at 7-0 p.m. when Balubha came to his house and asked for the Form at the same time asking him to accept the amount of his bill, the accused-appellant handed over the form (Ex. 10) to him and in turn Balubha gave him a bundle of Currency Notes which took thinking them to be his amount under the bill. But as he counted the Notes, he found that it was an amount of Rs. 50 and it was on that account that he threw away the Notes telling him that his bill was for Rs. 25 only and that he will not accept more than that amount. The version given at the time of the trial before the learned Special Judge was entirely different. According to him he claimed that amount of Rs. 50 for the work of filling the form so as to enable Natubha's heirs to claim the insurance amount. Nothing of the kind suggested before the Court finds place in this report which was made soon on the next day of the incident to his superior officer namely the Civil Surgeon, Rajkot. As pointed out hereabove the whole version is entirely different and an attempt in that report was to explain as to how Balubha had paid him Rs. 50 on that day. It can, therefore, be easily said that the version before the Court was an afterthought and obviously far from true compared to the version given in his previous report (Ex. 26) made by him to the Civil Surgeon. That he was required to do as acceptance of even Rs. 25 for treatment given to Natubha at the dispensary was obviously an illegal demand, as treatment was to be given free at the hospital. It was therefore natural that he had to change the version and in fact, he must have later on realised that the rules permitted him to claim such amount, that, he put up a case of his demanding Rs. 50 for his fees for the work to be done viz. of issuing the certificate regarding death of Natubha as per Form (Ex. 10) so as to enable Natubha's heirs to claim his insurance amount from the Life Insurance Corporation.
11. The prosecution has examined Anantray (Ex. 37) with a view to show the rules governing the Government medical service. According to his evidence, if any emergency case was brought to the dispensary either during or after officehours, the Medical Officer cannot charge his fees for medicine or injection. Then he has stated that there are rules in the Bombay Civil Medical Code for the fees that Medical Officers can charge for filling in forms like the form at Ex. 10 and those rules are rules 639 and 641 with Schedule at page 169 of the Bombay Civil Medical Code, 1951 Edition. In Rule 639 of the Medical Code it is provided that the Surgeon General has accorded his sanction to the acceptance of fees by the officers of the Indian Medical Service, Bombay Medical Service, Class III and General Provincial service in Civil employ for services other than professional attendance at the rate given in the Schedule subject to the conditions laid down in Rule (2). Rule 641 provides that the grant of death certificate in respect ot the patients dying in State Hospitals required for special purposes such as Life Insurance, probate, letters of administration, succession, etc. is held to be a work of non-professional nature coming within the scope of the term 'medico-legal examination'. The extra fee realised for this work can be retained by the medical officer who gives the certificate. Then comes the Schedule (Ex. 44) which entitles the Class III Officers such as the Medical Officer accused where rate of fee admissible would be Rs. 5 provided that if any special examination involving prolonged or highly specialised investigation is needed, a higher fee up to Rs. 33 as a maximum may be charged subject to the approval of Government. Then another resolution (Ex. 45) has been produced with a view to show that the private practice when it is allowed to a Medical Officer in Government service means that the Medical Officer can examine cases privately outside the place and hours of duty by paying visits to the residence of the patients, if necessary prescribe the required treatment and medicines, perform the requisite operations or give necessary injections provided it does not interfere with the discharge of his legitimate duties. Then it lays down certain restrictions with which we are not concerned. On a perusal of all these rules it appears abundantly clear that a Government Medical Officer is entitled to have his private practice of a particular character, and that the Surgeon General has accorded his general sanction to the acceptance of fees by the Medical Officers for services other than professional attendance at the rates mentioned in the Schedule. Heading this Schedule and Rules 639 and 641 together, the deduction that can be drawn is that if a patient had died in the State Hospital, certificate with regard to his death for purposes such as Life Insurance, Probate, Letters of Administration, Succession, etc. that would be issued, the work done by the Medical Officer would be treated as a non-professional nature i.e. other than professional attendance and his remuneration is regulated as set out at Ex. 44. In the present case, it is an undisputed fact that Natubha was no doubt treated at the Government City Dispensary, but he did not die at the Dispensary. He was removed to his place and it was thereafter at 10-40 p.m. that he died at his house at Derala which is 18 miles away from Morvi. The fees contemplated in the Schedule read with Rule 641 would not, therefore, help the prosecution in saying that he wasonly entitled to claim Rs. 5 for issuing such a certificate for purposes such as Life Insurance etc. If the patient had died at his house and a certificate as contemplated in form (Ex. 10) was required to be issued by the Medical Officer who attended upon that patient, it would obviously he the work of non-professional nature and since the claim that he would be entitled to make for giving such a certificate would not be covered by the rates contemplated in the schedule read with Rule 641 of the Bombay Civil Medical Code, he would be entitled to claim any remuneration for the work that he would be doing in giving a suitable certificate required to be filled in a Form such as Ex. 10 in the case. If that is so, the claim of Rs. 50 made by him, much though one may possibly feel as unreasonable, it cannot be said that his claim was such which was against and in violation of any rule or circular governing his service. The words 'legal remuneration' as explained in Section 161 are not restricted to remuneration which a public servant can lawfully demand but include all remuneration which he is permitted by the Government, which he serves to accept. If it is shown from the evidence led by the prosecution itself that the accused who was a public servant was entitled to claim such amount by way of remuneration other than his pay or the like, for the work done, and if there is no rule or circular which prohibits him from claiming or accepting any such amount, the essential ingredient that should be established before the offence under Section 161 can be held proved, would be wanting in a case like this. There can be no offence unless the gratification demanded and accepted was shown to be illegal in the sense that it was forbidden by law or by rules or circular issued by the Government in respect of such work done by Medical Officers. In fact Anantray has also stated that there is no rule or circular which requires or obliges a Medical Officer to fill in the Form like one at Ex. 10, in case the insured dies out of hospital. In other words the mere fact that Natubha was treated at the Hospital before he died would not bring him within the rules referred to above so as to show that he was not entitled to claim any amount more than Rs. 5 for that work.
12. Now, the learned Special Judge has fallen in error to think that since he used his stamp designating as a Medical Officer, City Dispensary, his work was that of a Government servant and since Natubha was treated by him at the hospital on 6-5-63, he cannot demand any such fees and the error was further carried in the thought that his version in Court was false inasmuch as it was an improvement from the one given in his report (Ex. 26) to the Civil Surgeon of Rajkot on 1-8-1963. Now, it is not a seal that he had to affix on that Form. There is nothing to show that any particular seal was assigned to the office and that it was so affixed on certificate (Ex. 10). He had signed the Form and below that he had to show his designation which instead of writing out himself, stamped the same. There is nothing wrong or objecttionable in using such a rubber stamp. He had treated him as a Medical Officer of City Dispensary and those words of his designation areput below his signature. He has thus signed it as a Medical Officer who fast attended on the illness of Natubha. It is not suggested that he signed it as private practitioner, but what is urged is that the work he did for Balubha was such, for which he was entitled to claim his remuneration, in absence of any rule or circular forbidding him or such Medical Officer from so claiming. As for the falsity of his version in Ex. 26, or even in respect of the one before the Court it cannot help prosecution in any manner. It can succeed or fail on the strength of evidence, and it is perfectly open to the accused to say that his defence may be false, but that cannot make the case of prosecution true or rather such as if accepted, would constitute an offence for which he is sought to be made liable. Even if his conduct at the time of the raid, is taken to be of a guilty mind, as we would be inclined to so think, that cannot also help the prosecution in establishing the fact that the gratification given to him was illegal in the sense that it was other than his legal remuneration as explained in Section 161 of the Indian Penal Code.
13. The learned Government Pleader then urged that no sooner the amount of Rs. 50 is found to have been accepted by the accused-appellant on 31-7-1963, a presumption should be raised against him as contemplated in Section 4(1) of the Prevention of Corruption Act, for showing that the amount that the accused accepted was as a motive or reward for doing that work of issuing the certificate as per the Form (Ex. 10) in the case and that since the version given by the appellant in Court was an afterthought and even a false one when he said that he had accepted the amount as his fees for that work, he should be held liable for that offence. Section 4(1) of the Act provides that where in any trial of an offence under Section 161 or Section 165 or Section 165A of the Indian Penal Code, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other person, any gratification other than legal remuneration, or any valuable thing from any other person, it shall be presumed unless the contrary is proven that he accepted or obtained as the case may be, as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code. A plain reading of this section makes it clear that it introduces an exception to the general rule of burden of proof in criminal cases, and shifts the onus on to the accused in certain circumstances. The presumption as contemplated therein can only arise on prosecution establishing not only the fact that the amount is accepted or obtained of agreed to be accepted or obtained, but after it further establishes a fact that it is gratification other than legal remuneration. As already stated above, the term 'legal remuneration' is explained below Section 161 of the Indian Penal Code as not only 'which a public servant can lawfully demand, but also includes gratification which he is permitted by the Government which he serves, to accept'. The prosecution is, therefore, required to further show before Section 4(1) of the Act can be invoked, that the amount accepted by the appellant accused in this case was other than legal remuneration. That is one of the essential ingredients of an offenceunder Section 161, and if on the evidence in the case, it is not established, the question of any presumption under Section 4(1) of the Act cannot arise. We have pointed out hereabove, that while the prosecution has established the payment of Rs. 50 to the accused who happened to be a public servant, it has failed to show that it was an illegal gratification in the sense that it was other than legal remuneration, and when that is so, there would not arise any question of raising the presumption under Section 4(1) of the Prevention of Corruption Act against the accused-appellant in this case. It is not that the burden of proof on the prosecution is over, as soon as it is able to show that the amount was accepted by the public servant. It has further to show that the acceptance of any such amount was forbidden by any law or rules or circulars governing the person serving under the Government. It is only then that the gratification becomes illegal-or otherwise than his legal remuneration so as to be liable under Section 161 of the Indian Penal Code. We have already shown that there is no prohibition or a bar to his taking any such amount from Balubha as Natubha had died at his residence at Derala, and not in the hospital at Morvi, and that the work such as of issuing a certificate regarding his death was permissible under the rules governing his service. The learned Special Judge has thought that he should not have charged more than Rs. 50 (sic) for doing that work, but that appears to us to be quite an erroneous view, as it is only if Natubha had died at the Government Hospital that he could have claimed Rs. 5 for the work as provided under the Schedule (Ex. 44) in the Rules governing the medical service, he being a class III Officer. But since no such restriction is placed by any rules, in case the person had died outside state Hospital, it was open to him to charge the fees as he considered proper. If he charged more than reasonable, it may be a matter of propriety or unreasonableness on his part and no more. He cannot on that account be said to have claimed illegal remuneration for that work as he did not commit breach of any rule or circular governing his service, and for such work done by him as a Government Medical Officer much though he had treated him before his death at the State Hospital. We, therefore, disagree with the learned Special Judge and hold that the order of conviction passed by the learned Special Judge, in respect of that charge cannot be sustained.
14. Next it was contended by Mr. Chokshi, the learned Government Pleader for the State that even if he stands to be acquitted on that ground, his conviction under Section 5(2) of the Prevention of Corruption Act can stand as, according to him, the case would fall under Section 5(1)(d) read with Section 5(2) of the Act, inasmuch as he was guilty of misconduct by reason of his having abused his position of a Medical Officer in demanding and accepting the amount of Rs. 50 for issuing the certificate as per Ex. 10 in the case. Section 3(1)(d) provides that:
'A public servant is said to commit the offence of criminal misconduct in the discharge of his duty . . . . . if, he, by corrupt or illegal means or otherwise abusing his positionas a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.'
Clause (2) of Section 5 then provides that:
'Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable 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 for fine'.
In support thereof reliance was placed on a case of M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC 1116. The observations relied upon by the learned Government Pleader relate to the consideration of the words 'or otherwise abusing the position of a public servant' in that Clause 5 (1)(d) of the Act. Their Lordships have observed that:
'It covers acts done 'otherwise' than by corrupt or illegal means by an officer abusing his position. The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. 'Abuse' means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than these means. The word 'otherwise' has wide connotation and if no limitation is placed on it, the words 'corrupt;' 'illegal' and 'otherwise' mentioned in the clause become surplus age, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say, something savouring of dishonest act on his part.' Their Lordships have further observed that:
'The juxtaposition of the word 'otherwise with the words corrupt or illegal means' and the dishonest implicit in the word 'abuse' indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether be abused his position or not depends upon the facts of each case.'
Before considering the point raised by the learned Government Pleader, it is essential to set out the Charge (Ex. 6) against the accused-appellant in the case: --
'That you being a public servant as a Medical Officer in Morvi City Dispensary at Morvi, you demanded and accepted an amount of Rs. 55 on 6-5-63 and an amount of Rs. 50 on 31-7-63 from Shri Balubha Bhurubha Judeja of Morvi as illegal gratification other than legal remuneration as a motive or reward for discharging Natvarsinh Mansinh from the hospital and to avoid post-mortem and for the work relating to filling of insurance form of the deceased Natvarsinh Mansinh of Derala respectively and thereby you have committed offence of accepting illegal gratification and criminal misconduct punishable under Section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act within the cognizance of this Court.'
The charge thus mainly sets out the facts constituting two acts, one in respect of an incident of 6-5-63, (in respect of which the accused is acquitted) and the other in respect of the incident that took place on 31-7-63. After setting out the details of that charge under Section 161 of the Indian Penal Code, the learned Special Judge has added 'and criminal misconduct' punishable under Section 5(2) of the Prevention of Corruption Act. Section 5(1) of the Act at the outset refers to the offence of criminal misconduct, committed by a public servant in the discharge of his duty. Then acts of misconduct are set out in four clauses, and the accused-appellant is said to have committed criminal misconduct as contemplated in Clause (d) of Section 5(1) of the Act. Sub-section (2) of Section 5 of the Act is a punishing clause for any such criminal misconduct committed by a public servant in discharge of his duty.
15. Now the charge has to be fairly specific, in respect of the offence the accused is required to meet in a criminal trial. As required in Section 221 of the Criminal Procedure Code, it has to state the offence with which he is charged. Clause (2) of Section 221 says that if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name, and if it does not give any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged as required under Clause (3) of Section 221 of the Code of Criminal Procedure. Clause (4) thereof further says that the law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. In view of these provisions of law relating to charge, in our opinion, it would not be enough to say that he committed criminal misconduct punishable under Section 5(2) of the Prevention of Corruption Act. The offence of criminal misconduct is one contemplated in all or any of the four Clauses (a) to (d) of Section 5 (1) or the Act and what the accused is sought to be made guilty is for criminal misconduct as contemplated in only one clause viz Clause (d). Nor does the charge set out any substance of the act as contained in that Clause (d) of Section 5(1) of the Act. It does not refer even to Clause (d) of Section 5(1) in any manner and to merely say that he was guilty under Section 5(2) of the Act cannot be enough. The accused cannot, therefore be said to have been given any sufficient notice of the charge which is now sought to be made against him. It is not the same thing as a charge under Section 161 of the Indian Penal Code. Section 5(1)(d) read with Section 5(2) of the Act has wider implications that those contained in Section 161 of the Indian Penal Code. It appears to have been taken for granted that when the charge is one under Section 161 of the Indian Penal Code, the charge under Section 5(2) of Prevention of Corruption Act follows. The learned Special Judge seems to have dealt with that part of the charge under Section 5(2) of the Act, as, if he is guilty under Section 161 of the Indian Penal Code, he is also guilty under Section 5(2) of the Act. The point made out by Mr. Chokshi has, therefore, not been twisted, much less considered, and at any rate it does not say that he has committed the offence of criminal misconduct as contemplated under Section 5(1)(d) of the Act. That beingso, we are unable to hold that there existed a charge against the accused-appellant under Section 5(1)(d) of the Act, and that way, the accused-appellant had no opportunity to meet the same.
16. Apart from that position, in the view that we have taken namely that the accused was entitled to claim any such amount for the work that he did for Balubha, it is difficult to hold as to how he can be said to have misused or abused his position and that again with any dishonest intention on his part to bring him within that Clause (d) of Section 5(1) of the Prevention of Corruption Act as laid down by the Supreme Court fn the case referred to hereabove. He was a Medical Officer and as such he had treated Natubha in the evening of 6-5-1963. He is not sought to be held liable for any amount taken by him in respect of the treatment given to him at that time and if he had made any demand and if any amount was paid, it would have been possible to say that he abused his position in taking the amount when he was in no way entitled to claim for the treatment given to the patient which was entirely free. At the same time if Natubha had died at the hospital, and the certificate as per Ex 10 was asked for, and if he had claimed more than Rs. 5 permissible tinder the rules governing his service, it may be possible to urge that he by reason of his position of a Medical Officer, abused his position in claiming more amount such as Rs. 50 in the case and that way liable for the alleged misconduct as that was to be in the discharge of his duty. In any view of the case therefore, the accused cannot be held guilty for that offence as well.
17. In the result, the appeal is allowed and the order of conviction and sentence passed against the accused appellant by the learned Special Judge, Rajkot is set aside. He is acquitted.