Ram Labhaya, J.C.
1. Ram Swarup and Kailash Chandra, petitioners, have put in' separate revision petitions. be to would be disposed of by this order.
2. The petitioners were convicted under Section 161 and sentenced to 6 months rigorous imprisonment each by the trial Magistrate. They preferred separate appeals in the Court of Session. The learned. Sessions Judge upheld the conviction as well as the sentences. Kailash Chander was a clerk in the Dewar Rationing Office Ram Swaroop was a Sub-Inspector. They as well as one Syed Hussain Head Constable were jointly tried under Sections 161 and 384, Penal Code. Syed Hussain wa3 also convicted and sentenced to six months' rigorous imprisonment. His appeal met a similar fate. He has not applied for revision.
3. Hiralal and Ghisualal are said to have purchased one bale of cut-piece cloth (chindi). This they kept in a room belonging to one Manmal of Beawar. Shiv Raj (P. W. 9) noticed some people cutting cloth in pieces. He informed Goma Ram Constable, P. W. 8, that there was, cloth in a kotha close to where he was on duty. Ratan Singh Constable was also there, They told him they could not do anything without the orders of Syed Hussain Head Constable described in the proceeding as 'Dewanji'. He and Ratan Singh went after Syed Hussain. Kailash Chandra and Ram Swaroop petitioners also met them. Syed Hussain came with the rest. He asked Goma Ram to call Hiralal, the owner of the cloth. Ram Swaroop went to fetch Manmal in whose Kotha the cloth was lying. The room was opened and Syed Hussain and the petitioners checked the cloth lying inside. Ghisualal and Hiralal apprehended trouble and begged for pardon. They were told that they would be prosecuted and imprisoned and their asta could not be condoned. As a result they were made to pay a sum of Rs. 350 as a bribe to Ram Swaroop and Kailash Chandra jointly and a further sum of Rs. 150 to Syed Huasain. The payment of the bribes was arranged through Rekh Raj who is the principal witness in the case. It is he who reported $he matter to the Anti-Corruption Department on 30th December 1947. The bribes were paid on the night between 28th and 29tb.
4. It has been contended by the learned Counsel for the petitioners that a conviction under Section 161 could not be recorded against them as they as public servants were not in a position to do any official act or to show or forbear from showing in the exercise of their official functions:any favour or disfavour to the petitioners. In support of this contention reliance was placed on Shamsul Hag v. Emperor, A. I.R. (8) 1921 Cal. 344 : (23 Cr. L. J. i),In re P, Venkiah A.I.R.. (11) 1924 Mad. 851 : (26 Cr.L.J. 396) and jyazgul Khan and Go. v. Abdul Latif, A. I. It. (22) 1935 Pesh. 25 : (154 I. C. 874). The learned Assistant Public Prosecutor conceded that be to Ram Swaroop and Kailash Chandra being employees of the Food Department, were not in a position to show any favour or disfavour to the petitioners. In their capacity as public servants they had no function to discharge in respect of the cloth that was re. covered. In spite of it if illegal gratification was accepted the case would be covered by Section 161, Penal Code, He relied on Emperor v. Phul Singh, A, I. R. (28) 1941 Lao,. 276 : (42 Cr. L. J. 636) Emperor v. Ajodhia, 51 ALL. 467 : (A.I. it. (15) 1928 ALL. 752: 30 Cr. L J. 67), Gopeshwar Mandal y. Emperor A.I.R. (36) 1948 Nag. 82 : (49 Cr.L.J. 124) and Emperor v. Bhagwandas Kanji, 31 Bom. 335 : (5 Cr. L. J. 309). In Emperor v. Phul Singh A.I.R. (28) 1941 Lah. 276 : (42 cr. L. J. 636) the accused wished to bribothe Reader of the Revenue Assistant in order to get a warrant of attachment signed by the Revenue Assistant in his capacity as a Collector. While he was standing outside the court-room of the Revenue Assistant, he saw a Magistrate coming out of the court-room and asked him whether he was the Nazir (i. e., the Reader). The Magistrate did not give any direct reply, but merely asked him what his business was. The accused then placed two rupees and the warrant of attachment in his hand and asked him to get the warrant signed and take the money. It was held that the accused requested the Magistrate in his capacity as a public servant to render him some service, viz., to get foe him the warrants signed by another public servant. The accused was guilty of an offence under Section 161 read with Section 116, Penal Code, even though the Magistrate to whom the bribe was offered was not the Reader to the Revenue Assistant and was not in a position to show any favour to the accused by doing any official act, as desired by the accused. In this Divisional Bench case the learned Judges considered be to Shamshul Huq v. Emperor A.I.R. (8) 1921 Cal. 344 : (23 Cr. L. J. l) and In re P. Venkiah A.I.R. (11) 1924 Mad. 851 : (26 Or. L. J. 396), which have been relied on by the learned Counsel for the petitioners. These were dissented from. The Calcutta and the Madras cases did no doubt enunciate the law but the language of the section was not considered and the reasons for the view adopted were also not stated.
5. All that Section 161 requires for its application is that a public servant should accept or obtain illegal gratification as a motive or reward for doing any official act or for showing or forbearing to show in the exercise of his official functions favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person or with any public servant. ,It is not one of its ingredients that a public servant must be in a position to do some official act at the time. This could not be read into the language of the section. All its ingredient would exist if an illegal gratification is accept? ed as a motive or as a reward for doing or forbearing to do some official act. It is wholly immaterial whether the public servant concern, ed is in a position to do any official act or not. This position is made dear by illustration (c) to the section which shows that even if illegal gratification is offered by a person to a public servant by way of reward for services which in fact j were never rendered by him ha would be guilty ; of the offence under s, 161.
6. The petitioners were admittedly public servants. 'They had no direct concern with cloth control. But if they accepted illegal gratification as a motive or reward for forbearing to do acts which they were not in a position to do at the time their case would still be covered by the Section. This view taken by the Allahabad, Lahore and Bombay Courts was later on followed in a Nagpur ease reported in Gopeshwar Mandal v. Emperor, A. 1, E, (35) 1948 Nag. 82 : (49 Cr. L. J. 124). The learned Counsel for the petitioner has sought to distinguish Lahore and Allahbad cases on the ground that in these cases, the persons who offered the bribes were found guilty under Section 116 He contends that they were abettors and abetment is possible even though the person abetted may not be in a position to commit the offence abetted. These cases, he argues, are therefore no precedents for the case of a public servant who accepts the bribe but is not in a position as a public servant to do any official act. 1 do not find any force in this contention. The view taken by the Lahore and Allahabad High Courts is based on the interpretation of Section 161. It cannot be interpreted differently for different persons. The interpretation placed on the language of the section was in the light of illustration (c) and this interpretation was the ratio decidendi in be to the cases. If the interpretation is held correct, there is no escape from the position that a public servant who accepts the bribe as a motive or as a reward for doing or for forbearing to do any. official act even though he is not in a position to do it> would be guilty under Section 161. In the Nagpur case this view was followed in the case of a public servant who was in the same position in which the present petitioners find themselves. I have no hesitation in following the view taken in these cases and I therefore hold that the law was correctly laid down in the Lahore and Allahabad cases and it was further correctly applied to the case of a public servant in the Nagpur case.
7. In the view of the law which I have taken, it becomes necessary to consider whether the petitioners accepted illegal gratification as a motive or as a reward for doing any official act even though they were not in a position to do the act. So far as this question is concerned, the learned Counsel for the petitioners has contended that the conviction of the petitioners rests 9n the uncorroborated testimony of the accomplices. He complains that the Courts below lost sight of the well-recognized rule of prudence that no person can be convicted on the tainted testimony of the person whose position is no better than that of an accomplice, In this connection he bas relied on Mahomed Yusuf Khan v. Emperor A.I.R. (16) 1929 Nag. P. 215 : (30 Cr. L. J. 311). In this case it was held that a person who offers a bribe to a public servant is an accomplice. Similarly, a person who actually obtains the bribe or co-operates in such payments or is instrumental in the negotiations for the purpose is also an accomplice of the person bribed, and a person who, with knowledge that the bribe has to be paid, advances money is clearly an abettor and therefore an accomplice. It was further held in this case that it is generally unsafe to convict a person on the evidence of an accomplice unless corroborated in material particulars. These propositions were not disputed by the learned Counsel for the Crown.
8. The learned Counsel for the petitioners has also drawn my attention to H. T. Huntley v. Emperor A.I.R. (31) 1944 F. C. 06 : (45 Cr. L. J. 756) which lays down that a
charge under Section 161 is one which is easily and may often be lightly made, but is in the very nature of things difficult to establish, as direct evidence must in most cases be meagre ami of a tainted nature These considerations cannot however be suffered to relievo the prosecution of any part of the burden which rests upon it to establish the charge beyond reasonable doubt. If after everything that can legitimately be considered has been given its due weight, loom still exists for taking the view that however strong the suspicion raised against the accused every reasonable possibility of innocence has not been excluded, he is entitled to an acquittal.
This is a very clear and emphatic statement of the legal position from their Lordships of the Federal Court and it is in the light of the decisions in the two cases referred to by the learned Counsel for the petitioners that case against the-accused has got to be examined.
9. I may state at the outset that the Court below were not wholly oblivious of the general' rule that the testimony of the accomplice should receive independent corroboration in material, particulars before it can form the basis of a conviction, The learned Magistrate who tried the accused came to the conclusion that direct evidence in the case received support from the cir-substantial evidence. The learned Sessions Judge similarly observed that the testimony of the accomplices was corroborated by evidence oral and circumstantial.
10. In these circumstances, the only question that remains to he examined is whether the testimony of the accomplices was corroborated in material particulars by independent evidence. The learned Counsel for the petitioner has taken me through the evidence. He has contended that Rekh Raj, the principal witness, who is alleged to have offered the bribes to the petitioners was admittedly an accomplice. He made different statement on the moat important point in the case. His statement as to the payment of bribes to the petitioners did not receive support From any independent testimony and actually stood contradicted by Johrilal the only person who according to him though interested may not be placed in the category of the accomplices. I have carefully considered the evidence and I do not think this contention can prevail. The alleged occurrence took place on the night between 28/29th. On 29th December, Syed Husaain made a report to the effect that the petitioners had asked for police assistance to search a house in Gali Halwayan. On receiving the information he went there. Ha was informed that in the house of Manmal there was considerable quantity of cloth foe sale in black market and a search of the house was necessary. He wag requested to arrange for witnesses of the search. He then called Ramzani and Abdul Sattar. Manmal to whom the house belonged was also sent for. He disclosed that though the house (Kotha) belonged to him, ha had given it for temporary use to Ghiaualal and Hiralal. They were also sent for. The Kotha was searched, The cloth found inside was checked. The state, meets of the persons concerned were taken by the petitioners. Then they told the people to leave. According to this report there were 474 pieces of cloth. It was remarked in the report that the pieces of cloth recovered were not Covered by an order relating to the control of cloth. It was on 30th December that Rekh Raj, P. w. .1, made a written report to the Anti Corruption Department. He disclosed that Hem Raj purchased a bale of cloth. He sold it to Hiralal on that very day. Hiralal came to him late in the evening and told him that the police and the officers of the Rationing Department had raided the room in which the cloth was lying. On receiving this information from Hira lal he went to the place and found Syed Hussain and one petitioner, Ram Swaroop, along with Other constables. They asked for the key of the room which Hiralal produced. The room was opened. Scattered pieces of cloth were found therein. The officers of the Rationing Department recorded the statement of Hiralal and Ghisualal, They then started threatening Hiralal and Ghisulal who were very much frightened on being told that they would be handed over to the police. They requested him (Rekh Raj) to settle the matter some how. He negotiated and paid a sum of Us. 150 to Syed Hussain and. after that paid Ra. 350 to the petitioners. Shiv Raj, the informer of the police, was paid Rs. 27, After this the petitioners and Syed Hussain left the place and the cloth lying there was ordered to be removed. The learned Counsel for the petiturners points out that so far as the actual payment is concerned Rekh Raj stated in Court that after settling the amount with the officers he came out of the room to enquire if any man had the money, Hemraj told him that he had Section 350. This he got from him and paid to Kailash Chandra, acoused, of the Rationing Department. Gulab Chand brought Es. ISO from his house and the amount received was handed over to Syed Hussain. Rekh Raj also stated that Johri Lal was looking in through the window from outside. The learned Counsel argues that from this it is obvious that the alleged payment was made inside the room according to the witness. He then referred to the statement of the witness incross-examination bearing on actual payment, This second statement was made (i months after the first statement. In this Reich Raj stated that he and Kmlash Chandra alone were present when a sum of us, 360 was paid. Johri Lal was at some distance and ho admitted that this money was given outside the room in open chowk. At a distance of one or two paces from the room there were many people in the polo (doorway) but not in chowk. From this statement it is clear that the pole (doorway) was at , some distance from the room in_ which the cloth was. Between the pole and door of the room there was a small courtyard. There wag no one in the court-yard where the money was alleged to have been paid. But there were persona in the doorway that is a few paces away. Johri Lal deposed that he could see what was happening. He stated that when the checking of the cloth was finished, the witnesses were told to go. He and other persons inside the room were also told to leave the room, But he was permitted to stay being the brother of Manmal to whom the house belonged. The petitioners, Rekh Raj and Syed Hussain, were in the room. He was just outside in the chowk. It. was then that Rekh Raj talked to the petitioners. Rekh Raj was coming out and going in. After some time he paid the money to Kailash Chandra in notes. He further stated that he did not see Rekh Raj getting money from anybody. I do not find any serious contradiction between the versions given by two witnesses Rekhraj and Johrilal. Johrilal was just outside the door of the room. The implication of the statement made in examinationin-chief by Rekh Raj was that Johrilal could see the payment clearly from where he was. In cross-examination, 6 months after the first statement, he stated that actual payment was made outside the room but within one or two paces of it. The second statement of Rekh Raj was made some i months after the statement of Johrilal and about a year after the actual occurrence. The second statement made by Rekh Raj agrees with the statement made by Johrilal. It was in the subsequent statement made in cross-examination that he had said that he was outside the door when the payment was made. The door of the room was not closed and it is not very material whether the payment was made inside the room or outside the room in which the cloth was, when the payment is alleged to have been made near the door. The prosecution case, however, should not fail on this single circumstance as apart from this the case as a whole receives substantial corroboration from the circumstantial evidence. Sheo Raj Singh noticed that the cloth was being cut into pieces in suspicious circumstances. He brought the police and the officers of the Rationing Department to the scene of occurrence. Syed Hussain and 'Ram Swaroop accused be to admitted this. Independent witnesses were sent for. These were Ramzani and Sattar. They deposed that the pieces of cloth inside the room were checked. Sattar stated that he and his companions were detained till about 1 A.M. The accused were there when they left. The cloth pieces were checked and counted and some statements were recorded. As a regular raid by the officers of the police and the Rationing Department would naturally give rise to the fear of prosecution, Hiralal and Ghisulal to whom the cloth belonged must naturally have felt frightened. The dealers of cloth would also know whether they were guilty of any transgression. Shiv Raj's statement suggests that what was discovered there was not a collection of cut-pieces but that the cloth was being cut into pieces. This circum-stance suggests that some kind of action was possible. If pieces of cloth recovered were completely exempt from control laws it may not have been possible for the accused to get any money out of the dealers of cloth. The independent witnesses were sent away. Other persons were also asked to leave. All these points stand proved by independent evidence.
11. The most important circumstance is that after prolonged proceedings as to checking, counting of pieces and the recording of the statement no action of any kind was taken. The cloth was not seized, The room was not sealed. The evidence shows that Hiralal and Ghisualal were directed to remove the cloth from that place.
12. The two petitioners remained there till after midnight, They bad nothing to do with offences against the order relating' to cloth control. They were employees of the Food Department. They were informed by their officers that even if there was any offence committed by the cloth dealers, it was none of their concern. The police was already on the scene. There is no explanation for their continued interest in the entire proceedings. They did not inform any officer in charge of the cloth rationing as to what they bad seen or heard or done in the case on the night.
13. Syed Hussain's report made next day was an attempt at showing that cloth recovered was of the waste variety, which was not covered by any order relating to the cloth control. Even that report was made very late. No reference was made to the officers in charge of the cloth rationing. If the three accused were aware that no legal action was possible against the owners of the cloth, their presence and their subsequent conduct can only be explained on the hypothesis that they were to make money out of the transaction. Sbeo Raj, the person who gave the information, admitted to have received some money viz., Rs. 26-10-0. Rekh Raj's report to the Anti-Corruption Department refers to this payment. Sheo Raj Singh is not an accomplice. He had no reason for any hostility against the petitioners. It has not been shown why he should not be believed. His statement is that Rekh Raj talked to all the accused separately. He was taken away from the scene by Syed Huasain to Pateh-puria Chowk. From this place he again returned to the house in question, and stayed outside. Later on he wa3 told that no case was made out as the cloth was all of the wa3fce variety. He was paid Rs. 26-10-0. The payment made to Sheo Raj was apparently hush money.
14. Joharilal is a brother of Manmal. The cloth was found in Manmal's house though at the time it was in the possession of Hiralal and Ghisulal. Joharilal had no hand in the payment of the bribe. He did not participate in the negotiations. He was just watching. He had no motive to make a false statement against the petitioners. He supports Rekh Raj even on the fact of payment. The rest of the statement apart from the actual payment is practically admitted. There is no reason why Joharilal's statement be completely discarded. It lends necessary Corro-boration to the statement of Rekhraj. Even Rekh Raj had no motive for a wholly false charge against the petitioners.
15. The two Courta below have concurrently found that the charge has been fully substantiated and after going through the evidence I am unable to come to the conclusion that the statement of the accomplice in this case was not corroborated in material particulars by independent testimony. It is contended that Hemraj, the person who is alleged to have given Rs. 350 to Rekh Raj, has no t been produced. But he too was an accomplice, and his statement could not have improved- the prosecution case. The independent testimony which was available to the prosecution case has all been produced. The petition therefore fails and is hereby dismissed. The bail-bonds of the accused are cancelled.