Mahesh Prasad vs The State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 39 of 1954

Decision Date: 29 October 1954

Coram: B. Jagannadhadas, B.K. Mukherjea, Vivian Bose

The matter titled Mahesh Prasad versus The State of Uttar Pradesh was decided on 29 October 1954 by the Supreme Court of India. The judgment was authored by Justice B. Jagannadhadas and the bench comprised Justice B. Jagannadhadas, Justice B. K. Mukherjea and Justice Vivian Bose. The petition was filed by Mahesh Prasad and the respondent was the State of Uttar Pradesh. The date of the judgment is recorded as 29/10/1954. The same bench is listed in several reporting formats, namely the citation 1955 AIR 70 and 1955 SCR (1) 965, and it appears in later citator references such as R 1968 SC 1323 (8), F 1968 SC 1419 (4), R 1976 SC 1497 (21) and R 1982 SC 1407 (23). The statutory provisions discussed include the Indian Penal Code (Act XLV of 1860), specifically section 161 dealing with an accused’s power or intention to perform an official act, and the Prevention of Corruption Act (II of 1947), section 6(c) as it stood before 12 August 1952. The Indian Railway Establishment Code, Volume I (1951 edition), rule 1705(c) was also referred to as the test of sanction.

The headnote of the Court explains that when a public servant is charged under section 161 of the Indian Penal Code on the allegation that he accepted illegal gratification for doing or procuring an official act, the Court need not examine whether the public servant was actually capable of performing or intended to perform that act. In cases where the illegal gratification is alleged to have been received for influencing a superior officer, the charge under section 161 need not name the specific superior officer whose influence was sought. The Court further observed that, in the view of article 311(1) of the Constitution of India and rule 1705(c) of the Indian Railway Establishment Code (Volume 1, 1951 edition), a sanction under section 6(c) of the Prevention of Corruption Act, 1947 (as it existed before 12 August 1952) may be granted either by the authority that appointed the public servant or by an authority directly superior to that appointing authority within the same department. Such sanction is also valid if it is issued by an authority equal in rank or grade with the appointing authority, but it is invalid if it is issued by an authority subordinate to or lower than the appointing authority.

The judgment records that the criminal appeal was numbered 39 of 1954 and was filed by special leave from the judgment and order dated 5 May 1953 of the Lucknow Bench of the Allahabad High Court in Criminal Revision No. 200 of 1952. That order arose from the judgment and order dated 17 May 1952 of the Special Magistrate, Anti-Corruption, for Uttar Pradesh at Lucknow in Case No. 40 of 1951. Counsel for the appellant was represented by Hardyal Hardy, assisted by K. L. Arora and S. D. Sekhri, while the respondent was represented by C. P. Lal. The judgment of the Court was delivered by Justice Jagannadhadas. The appellant in this case was a clerk employed in the office of the Running Shed Foreman of the East Indian Railway at Kanpur. He was convicted under section 161 of the Indian Penal Code.

The appellant was sentenced to rigorous imprisonment for one year and nine months and was also ordered to pay a fine of Rs 200. Both the Sessions Judge on appeal and the High Court in revision affirmed the conviction and the sentence. The principal charge alleged against the appellant was that on 6 January 1951 he accepted an illegal gratification of Rs 150 from the complainant, Gurphekan, who was a retrenched cleaner in the Locomotive Department of the Railway and was examined as PW 2. The alleged motive for receiving the money was to secure his re-employment in the Railway by arranging it through some superior officer. An alternative charge under section 162 of the Indian Penal Code was also framed, but it was unnecessary to pursue that charge because the conviction rested on the primary charge under section 161 of the Indian Penal Code. The Special Police Establishment, having received information regarding the demand for the bribe, organised a trap and apprehended the appellant at the very moment he received the Rs 150 from the complainant, subsequently seizing the amount. The appellant admitted that he had taken the money but denied that he had demanded or accepted it as a bribe. He contended that the complainant had earlier borrowed money from him and that the sum received was merely the settlement of that debt. The courts below rejected this defence, accepted the prosecution’s version of events and consequently upheld the conviction.

Counsel for the appellant attempted to persuade the Court, relying on the evidential record, that the findings of the lower courts were untenable. The Court found it unnecessary to examine that argument in detail because the appeal was brought on special leave and no serious error in the factual findings was demonstrated that would warrant interference. The Court therefore limited its attention to the principal legal submissions raised. It was highlighted that, although the appellant was employed by the Railway, he did not hold a position enabling him to appoint the complainant, nor was any relationship or influence with a specific official capable of granting a job shown. Consequently, it was submitted that any wrongdoing on the appellant’s part could only amount to cheating, not the receipt of a bribe. The Court rejected this contention as unsubstantial. Under section 161 of the Indian Penal Code, any public servant who accepts an illegal gratification as a motive for rendering service, whether with the aid of any other public servant, commits an offence. The provision is satisfied when the public servant receives money by representing that he will obtain assistance for the giver through another public servant, and the giver furnishes the money in reliance on that representation. Even if the recipient is not actually in a position to provide such assistance, or is aware of his inability, the offence under section 161 is still incurred. He may

In this case, the Court observed that a public servant may be guilty of cheating even if he does not actually possess the ability he claims to have. Nevertheless, the Court held that the individual remains liable under section 161 of the Indian Penal Code. The Court explained that this liability follows from the fourth explanation to section 161, which states: “A motive or reward for doing.” The explanation clarifies that a person who accepts gratification as a motive for acts he does not intend to perform, or as a reward for acts he has not performed, falls within the provision. The Court further referred to illustration (c) to section 161, which reads: “A, a public servant, induces Z erroneously to believe that A's influence with the Government has obtained a title for Z and thus induces Z to give A money as a reward for, this service. A has committed the offence defined in this section.” This illustration shows that a public servant who receives illegal gratification as a motive for doing or procuring an official act, regardless of his actual capability or intention, is clearly covered by section 161. The Court then addressed the argument that the charge does not name the specific public servant whom the appellant allegedly sought to influence by receiving money. It was submitted that section 161 would not apply unless the phrase “with any public servant” were interpreted to refer to a particular individual. The Court noted that the evidence and the High Court finding indicated that the appellant “purported to attempt rendering of a service to the complainant with another public servant, viz., the Head-clerk at Allahabad.” However, the Court emphasized that the language of section 161 does not require identification of a specific public servant. The relevant portion of the statute reads: “for rendering or attempting to render any service or disservice to any person, with the Central or Provincial Government or Legislature, or with any public servant as such.” The expression “Central or any Provincial Government or Legislature” does not point to any named individual, and therefore there is no basis for reading “any public servant” as limited to a particular person. The Court concluded that the essence of the offence under section 161 is the receipt by a public servant of illegal gratification as a motive or reward for abusing official position, whether the gratification is obtained by the public servant himself or by another public servant acting on his behalf.

In the present matter, the Court found that the first contention raised by the appellant lacked any merit. The only substantive issue that required detailed examination concerned the alleged absence of a valid sanction for the prosecution. The Court observed that the offence fell squarely within the ambit of the Prevention of Corruption Act, 1947, and that, under section 6(c) of that Act, a prosecution could proceed only if it was authorised by the authority competent to remove the accused from his office. The appellant argued that such a requirement had not been fulfilled. Emphasising that the appellant was a civil servant of the Indian Union, the Court noted that article 311(1) of the Constitution barred removal of a civil servant by any authority subordinate to the authority that had originally appointed him. The Court also referred to rule 1705(c) of the Indian Railway Establishment Code, Volume 1 (1951 edition), which provided that no railway servant could be removed or dismissed by an authority lower than the one that had appointed him to his substantive post.

The sanction for the prosecution had been issued in Exhibit 10 by Shri L. R. Gosain, Superintendent Power, East Indian Railway, Allahabad. The appointment order, set out in Exhibit F, identified the Divisional Personnel Officer of the East Indian Railways, Allahabad, as the appointing authority. During the appeal before the Sessions Judge, the appellant contended that the actual appointment had been made by the Divisional Superintendent and that Exhibit F bore only the signature of the Divisional Personnel Officer as a proxy. The Sessions Judge rejected that claim, and the decision had not been challenged subsequently. The appellant further maintained that the Superintendent Power who granted the sanction was not an officer senior to the Divisional Personnel Officer who had made the appointment. This question of sanction validity had been raised before both the Sessions Judge and the High Court. While the High Court was satisfied that, under the Railway Regulations, Shri L. R. Gosain was a person competent to remove the appellant for the purposes of section 6 of the Prevention of Corruption Act, it did not examine whether the constitutional requirement of article 311(1) and rule 1705(c) were met in relation to the respective appointing and sanctioning authorities. The learned Sessions Judge, however, made a definitive finding that the Divisional Personnel Officer and the Superintendent Power occupied the same grade, stating: “I, therefore, hold that the accused could be and was actually appointed by the Divisional Personnel Officer who is in the same grade as the Superintendent Power. It cannot therefore be said that the Superintendent Power Mr. L. R. Gosain was not authorised to remove the accused from service by virtue of rule 1705 and this argument advanced against the validity of sanction, Exhibit 10, falls to the ground.”

The Sessions Judge held that the Divisional Personnel Officer occupied the same grade as the Superintendent Power official. Consequently, the Judge concluded that Superintendent L. R. Gosain was authorised to remove the accused from service under rule 1705, and that the objection relying on Exhibit 10 was untenable. Counsel for the appellant argued that both the Constitution and the Railway Code required the removal authority to be either the appointing authority itself or an authority superior to the appointing authority within the same department. The Court did not accept this contention, observing that the constitutional requirement merely prohibits removal by an authority subordinate to the appointing authority. The Court further noted that the Railway Code provision similarly states that the competent authority for removal must not be lower in rank than the authority that made the appointment. The Court held that these provisions do not require the removal to be carried out by the very same appointing authority or by that authority’s direct superior. According to the Court, it is sufficient that the removing authority be of the same rank or grade as the appointing authority. The Court then examined the factual record concerning the particular branch of the department to which the appellant had initially been assigned in 1944, as shown in Exhibit F. Evidence from the Head Clerk of the Divisional Superintendent’s office indicated that the appellant’s position as Running Shed Foreman in 1951 fell directly under the Superintendent Power. The Court found that the Superintendent Power was the appropriate officer to grant sanction, provided his rank was not lower than that of the Divisional Personnel Officer who made the original appointment.

Counsel for the appellant argued that the evidence did not support the Sessions Judge’s finding that Superintendent Gosain and the Divisional Personnel Officer were of the same grade. Nevertheless, the testimony of the Head Clerk, identified as PW-4, clearly stated the hierarchy within the division. He described the Divisional Superintendent as the head and placed the Divisional Personnel Officer together with the Superintendents of Power and Transport at the same rank beneath him. PW-4 asserted that the Divisional Personnel Officer and the various Superintendents were officers of the same rank and were not subordinate to each other. The Court noted that the reliance on oral testimony rather than documentary records was commented upon, but accepted the oral evidence as it was corroborated by official classified lists. In order to confirm the rank relationship, the Sessions Judge on appeal referred to the Classified List of Establishment of Indian Railways, which was placed before the Court. The Classified List showed that both the Divisional Personnel Officer and the Superintendent of Power were senior-scale officers drawing equal pay ranges of Rs. 625-50-1375, indicating they occupied the same seniority. The Court therefore accepted that the official classification confirmed the oral testimony regarding the equivalence of rank between the two officers. Consequently, the requirement that the sanctioning authority be of a grade not lower than the appointing authority was satisfied.

The material placed on record confirms that the Superintendent Power and the Divisional Personnel Officer occupy the same hierarchical grade, and this conclusion reinforces the oral testimony of P.W. 4. As the Head Clerk of the Divisional Superintendent’s office, P.W. 4 was positioned to observe and describe accurately the relative status of officials within the division, and therefore his statements regarding the equality of rank are deemed credible. The Court accepted that the role of Head Clerk involved regular interaction with both the Superintendent Power and the Divisional Personnel Officer, which added additional weight to his observations on their relative status. In light of this verification it follows that it cannot be said that the Superintendent Power, who at the relevant time authorized the sanction for prosecuting the appellant while the appellant was employed under his supervision, held a rank or a grade that was lower than that of the Divisional Personnel Officer who had originally appointed the appellant to his post. The Court reflected that the question of whether the sanction was valid might have been more precisely resolved at the trial stage had the arguments been framed not only on the literal wording of section 6 of the Prevention of Corruption Act but also by referring to the protective provision of article 311(1) of the Constitution and to rule 1705(c) of the Railway Establishment Code, which together govern the procedure for granting such sanctions. After a careful review of the evidence and submissions, the Court found no justification to disturb the factual findings of the lower tribunals that the sanction was lawfully obtained. The Court therefore concluded that the procedural requirements for granting the sanction had been complied with and that no violation of statutory or constitutional provisions could be demonstrated. All of the contentions raised before this Court were therefore regarded as untenable, and the appeal was consequently required to fail. It was further brought to the attention of the Court that the appellant had initially been denied bail by this Court when leave to appeal was granted, that bail was subsequently granted, and that during the intervening period he had already served nearly six months of the imprisonment imposed, that he is a young individual and that he has lost his job as a result of the proceedings. Considering these personal circumstances, the Court decided that it was not necessary to order his return to custody. Accordingly, the final outcome is that the appeal is dismissed, with the modification that the term of imprisonment is reduced to the period that has already been served, while the monetary fine imposed earlier remains enforceable. The Court further noted that the reduction of the custodial term did not prejudice the other components of the conviction, and that the fine could continue to be collected in accordance with the judgment. Consequently the order of the lower court remains in force except for the adjustment of the period of detention. The appeal is thus dismissed.