Ram Krishan And Another vs The State Of Delhi

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

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 43 and 44 of 1954

Decision Date: 09/03/1956

Coram: Vivian Bose, Bhuvneshwar P. Sinha, Syed Jaffer Imam, Chandrashekara Aiyar

In this case, the Court recorded that the matter concerned an appeal by Ram Krishan and another appellant against the State of Delhi, arising from a connected appeal decided on 9 March 1956. The judgment was delivered by a Bench comprising Justice Vivian Bose, Justice Bhuvneshwar P Sinha and Justice Syed Jaffer Imam. The citation of the decision is reported in 1956 AIR 476 and 1956 SCR 182. The applicable statutory provisions included the Prevention of Corruption Act of 1947, particularly section 5(1)(d) and its subsection (2), as well as section 137 of the Indian Railways Act as amended by Act XVII of 1955, and the related provisions of the Indian Penal Code, namely sections 120-B, 116 and chapter IX section 183.

The factual backdrop, as set out in the headnote, involved the appellants who were suspected of exporting potatoes at concessional rates by making false declarations. To investigate the alleged misconduct, a Railway Officer named Madan Lal was deputed to assist the police. During the investigation the appellants offered a bribe to Madan Lal in an effort to have the case suppressed; Madan Lal refused the offer. The appellants persisted, and consequently a trap was laid in Madan Lal’s residence. Two police officers and a magistrate observed the conversation from an adjoining room and witnessed the payment of the alleged bribe through a hole. The appellants were subsequently charged under section 120-B of the Indian Penal Code for criminal conspiracy to cause the offence of criminal misconduct punishable under section 5(2) of the Prevention of Corruption Act, as well as under that section read with section 116 of the Indian Penal Code. Both charges led to convictions by a Special Judge, and the High Court affirmed those convictions.

The appellants contended that section 5(2) of the Prevention of Corruption Act did not apply to the facts, that Madan Lal was not a public servant within the meaning of the Act, and that the laying of the trap amounted to an invitation to commit the offence, thereby warranting a reduction of their sentences. The Court rejected these contentions as untenable. It held that the word “obtains” occurring in clause (d) of sub-section (1) of section 5 does not exclude the acceptance of a bribe on offer; consequently a public servant who simply accepts a bribe, or who solicits or extorts it, thereby obtains a pecuniary advantage by abusing his official position, commits an offence under that provision, regardless of any motive or consideration of favour or disfavour. Furthermore, the Court observed that the amendment of section 137 of the Indian Railways Act by the 1955 amendment act transformed all railway servants into public servants not only for the limited purposes of chapter IX section 183 of the Indian Penal Code but also generally under the Prevention of Corruption Act. Accordingly, the Court affirmed that the appellants’ arguments could not prevail and that the convictions and sentences remained valid.

It was held that no absolute rule could be laid down that the laying of traps, particularly in cases of this nature, must always be condemned as an invitation to commit an offence. The Court explained that even when a trap is employed, the offence that is discovered through the trap retains its full seriousness and therefore does not justify a lighter sentence merely because the offence was detected by a trap. However, the Court emphasized that when the limits of lawful investigation are transgressed and the money that is offered as a bribe is supplied by the police themselves, such conduct must be severely condemned. In arriving at this position, the Court considered the authority in Brennan v. Peek ([1947] 2 All E.R. 572) and also referred to the decisions in Rao Shiv Bahadur Singh and another v. The State of Vindhya Pradesh ([1954] S.C.R. 1098) and Bamjanam Singh v. The State of Bihar (Cr. Appeal No. 81 of 1953).

The matter before the Court was criminal appeals numbered 43 and 44 of 1954, which were taken on special leave from the judgment and order dated 23 October 1953 of the Circuit Bench of the Punjab High Court at Delhi in Criminal Appeal No. 24-D of 1953. Those judgments arose from the judgment and order dated 26 August 1953 of the Court of the Special Judge, Delhi, in Corruption Case No. 10 of 1953. Counsel for the appellants in Criminal Appeal No. 43 of 1954 were Jai Gopal Sethi and Naunit Lal, while the appellant in Criminal Appeal No. 44 of 1954 was represented by Pritam Singh Safeer. The respondent in both appeals was represented by the Solicitor-General of India, O. K. Daphtary, together with counsel Porus A. Mehta, H. R. Khanna and P. G. Gokhale. The judgment was delivered on 9 March 1956 by Justice Chandrasekhara Aiyar.

The Court recorded that the first appellant, Ram Kishan, was a partner-proprietor in the firm of Kundan Lal Raja Ram located in Saharanpur. The second appellant, Prem Chand, was a partner in the firm of Narain Prasad and Prem Chand, also situated in Saharanpur. The third appellant, Gian Chand, held the position of munim (accountant) in a firm named Lekh Raj Shambhu Nath. It was alleged that a number of merchants in Saharanpur, including the three firms mentioned, were suspected of exporting potatoes at concessional rates by falsely representing those potatoes as seed potatoes and by using falsified certificates. A police investigation into these allegations was underway in Saharanpur in October 1951. Madan Lal, a Railway Section Officer, was examined as plaintiff witness number 4 and had been deputed by the Railway Department to assist the Special Police Establishment in the investigation. Labhu Ram, a Railway parcels clerk stationed at Saharanpur, had been assigned by the Station Master to assist the police party. According to the prosecution, after the houses and shops of the accused had been searched, Ram Kishan took Labhu Ram aside and suggested that the three firms were prepared to pay a sum of Rs 2,000 if the case were quietly dismissed and that Madan Lal would be approached with the proposal. Madan Lal refused to entertain such an offer, but because the accused continued to press the matter, it was eventually decided to lay a trap for them at Delhi in the house of Madan Lal. The Court noted that it was unnecessary to narrate in detail the steps taken in connection with this plan.

The Court recorded that the operation intended to lure the accused was carried out as planned and that the trap was successful. On the morning of 29 December, the three accused persons together with Labhu Ram travelled to Delhi, where a larger sum of rupees 5,000 in cash was handed over to Madan Lal by Ram Kishan. This payment was made while two police officers and a Magistrate listened to the conversation from an adjacent room and observed the handing of the money through a small opening in the door. The appellants were subsequently charged with criminal conspiracy under section 120-B of the Indian Penal Code, the conspiracy being to cause the offence of criminal misconduct punishable under section 5(2) of the Prevention of Corruption Act (II of 1947), an offence that was alleged to be committed by Madan Lal, who was a prosecution witness. In addition, the appellants were charged under the same provision read in conjunction with section 116 of the Indian Penal Code for abetting the commission of criminal misconduct by Madan Lal by paying him the sum of rupees 5,000 as an illegal gratification, although that particular offence was not alleged to have been actually committed by Madan Lal. The Special Judge of Delhi, who tried the case, found the appellants guilty on both counts. He imposed a sentence of three months’ rigorous imprisonment and a fine of rupees 5,000 on Ram Kishan, and sentenced Prem Chand and Gian Chand each to two months’ rigorous imprisonment and a fine of rupees 1,000. No separate conviction or sentence was recorded for the charge of criminal conspiracy. On appeal, the High Court reduced Gian Chand’s sentence to the period of imprisonment he had already served and imposed a fine of rupees 500. The Court noted that there was no dispute that the amount of rupees 5,000 was indeed paid to Madan Lal, even though he claimed he could do nothing to assist the appellants, who had pleaded with him to intervene in the impending prosecution. Testimony from the Magistrate and the two police officers corroborated the discussion, and the lower courts, relying on the evidence of Madan Lal, Labhu Ram and the eavesdroppers, concluded that the rupees 5,000 was offered as a bribe rather than as lawful compensation for amounts legitimately due to the Railway. In the present appeal, counsel for the appellants, appearing as Mr Sethi in Criminal Appeal No. 43 of 1954, raised several points of law. First, he contended that section 5(2) of the Prevention of Corruption Act (II of 1947), under which the appellants had been charged and convicted, was inapplicable to the facts of the case. Second, he argued that Madan Lal did not fall within the definition of a “public servant” under the Act, rendering the charge unsustainable. Third, he urged that cases involving such traps should be strongly discouraged by the courts, asserting that opportunities to commit offences should not be artificially created, lest individuals who succumb to ordinary human temptations be punished as criminals; in his view, offences committed under these circumstances ought to be treated as relatively minor rather than serious crimes.

The appellant contended that the first point required careful examination of the language used in section 5 of the Prevention of Corruption Act. Section 5 was set out in the judgment in the following terms: “S. 5(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty – (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as a motive of reward such as is mentioned in section 161 of the Indian Penal Code; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or (d) if he, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. (2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both. (3) In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption. (4) The provisions of this section shall be in addition to, and not in derogation of any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him”. The judgment further observed that the object of the Act, as stated in its preamble, was to provide a more effective mechanism for the prevention of bribery and corruption. By creating a new offence of criminal misconduct by a public servant, section 5, through sub-section (2), prescribed punishment of imprisonment of up to seven years, a fine, or both, for any public servant who engaged in the conduct described in clauses (a) to (d).

The Act provided that a person found guilty of the offence could be sentenced to imprisonment for a term that might extend to seven years, or be ordered to pay a fine, or both. The offence was divided into four distinct categories. The first category, identified as clause (a), covered habitual bribery as defined in section 161 of the Indian Penal Code. The second category, identified as clause (b), dealt with habitual bribery of the kind described in section 165 of the Indian Penal Code. The third category, identified as clause (c), involved criminal breach of trust by a public servant and referred to section 405 of the Code. The fourth category, identified as clause (d), was the subject of the present dispute.

It was argued that clause (d) was intended by the legislature to create an offence that was different from a single act of bribery and that it could arise only when there was no overt offer to give or accept a bribe by a public servant. The argument further contended that before clause (d) could be applied, the prosecution had to prove that the public servant had adopted corrupt or illegal means and, by doing so, had obtained for himself or for any other person a valuable thing or a pecuniary advantage. The submission emphasized that forcing a bribe out of an unwilling person differed from accepting a bribe offered voluntarily, and that, for a charge under section 5(1), sub-clause (d) to stand, there must be evidence of a threat, inducement, promise, duress or extortion exercised by the public servant to obtain the pecuniary advantage. This line of reasoning was based on the view that the Act sought to create, and indeed created, an independent offence that was distinct from simple bribery.

While the proposition that clause (d) creates a separate offence was not denied, the Court noted that it did not follow that the two offences could not overlap. The primary task, the Court said, was to examine the language used in the provision and to give it its proper effect. In many cases, a public servant may adopt or pursue corrupt or illegal means in order to gain a pecuniary advantage for himself. The Court observed that the emphasis placed on the word “obtains” in the provision did not eliminate the concept of acceptance of something that is offered; rather, the term also implied an element of effort on the part of the receiver. Accordingly, a public servant might accept money that is offered, solicit a bribe, or extort a bribe by threat or coercion, and in each of these situations he would obtain a pecuniary advantage by abusing his position.

The Court further pointed out that the word “obtains” appears in sections 161 and 165 of the Penal Code, while the expression “corrupt or illegal means” is found in section 162. In addition, the provision includes the phrase “or by otherwise abusing his position as a public servant.” Consequently, any person who obtains a pecuniary advantage by abusing his official position, regardless of the manner in which it is obtained, would be guilty under sub-clause (d). The Court also referred to sections 161, 162 and 163, which speak of a motive or a reward for doing or refraining from doing something, showing favour or disfavour to any person, or for inducing such con-

In this case, the Court explained that to establish an offence under clause (d) it was not necessary to demonstrate the accused’s motive, reward, or any act of favour or disfavour. The essential requirement was that the public servant, by abusing his official position, obtained for himself any pecuniary advantage, irrespective of why the advantage was sought. The Court recognised that the two offences shared certain elements, but it rejected the argument that the offence defined in clause (d) should be interpreted so narrowly as to exclude the broader meaning of bribery. The Court further noted that special courts were created for the speedy disposal of corruption cases, and that investigations by higher police authorities were intended to protect public servants prosecuted under the Act, even though such servants faced harsher penalties, including longer terms of imprisonment and the operation of the presumption described in sub-clause (3).

The Court then turned to the contention that Madan Lal was not a “public servant.” Reference was made to section 137 of the Indian Railways Act as it existed before amendment by Act XVII of 1955. At that time, every railway servant was deemed a public servant solely for the purposes of Chapter IX of the Indian Penal Code, and sub-clause (4) expressly excluded railway servants from being considered public servants for any other purposes of the Code. The amendment introduced a new sub-clause (1) stating that every railway servant, not being a public servant as defined in section 21 of the Indian Penal Code, shall be deemed a public servant for the purposes of Chapter IX and section 409 of that Code, and the previous sub-clause (4) was omitted. Section 2 of the Prevention of Corruption Act defined “public servant” by reference to section 21 of the Indian Penal Code. Consequently, after the amendment, railway servants were no longer limited to the narrow classification previously applicable; they became public servants for all purposes under the Prevention of Corruption Act, not merely for the limited purposes of Chapter IX.

The Court also addressed the argument made by counsel for the appellants that a trap had been laid to catch the accused and that this circumstance should influence sentencing. In support of that argument, the Court’s attention was drawn to the well-known observations of Lord Goddard, C.J., in Brennan v. Peek, where the Chief Justice expressed the hope that “the day is far distant when it will become a common practice in this country for police officers to be told to commit an offence … for the purpose of getting evidence against someone; if they do commit offences they ought also to be convicted and punished, for the order of their superior would afford no defence.” While the Court acknowledged the force of those observations, it held that they could not be elevated to an absolute rule prohibiting the use of traps on the ground that such tactics might invite the commission of offences. The Court recognised that detecting crime, especially corruption, often required providing opportunities for the offender’s inclination to manifest, and that severe condemnation was warranted when police authorities themselves supplied money to be taken as a bribe. However, the Court concluded that ethical considerations alone did not justify a blanket prohibition against the use of traps in the investigation of corruption.

The Court noted that the learned Chief Justice had warned that police officers who entrap suspects “for the purpose of getting evidence against someone; if they do commit offences they ought also to be convicted and punished, for the order of their superior would afford no defence.” While the Court recognized that the Chief Justice’s observation was persuasive, it held that it could not be proclaimed as an immutable rule that the use of traps must be forbidden merely because such tactics might appear to invite the commission of offences. The Court explained that if prospective offenders, particularly in corruption cases, are denied the chance to display their illicit intentions, the detection of crime would become exceedingly difficult. However, the Court added that where police officials themselves provide the money to be offered as a bribe, the method deserves strong condemnation, referring to the authority in Rao Shiv Bahadur Singh and another v. The State of Vindhya Pradesh (1) and also to Ramjanam Singh v. The State, of Bihar (2). The Court further stated that irrespective of any ethical considerations, there is no justification for treating offences committed during the conduct of a trap as less serious or deserving only of nominal or lenient punishment. Regarding the appellant in the connected Appeal No. 44, the Court observed that counsel had contended the appellant was merely a munim of a firm and not a partner or proprietor like the other accused, and therefore could not be said to have been interested in offering or attempting to offer a bribe to obtain the termination of the case. The Court rejected this argument, citing the unequivocal testimony of Labhu Ram, who affirmed that Gian Chand had been present when the discussion of the bribe took place. Labhu Ram recounted that on the morning of 29 December 1951, the three accused, who were residing at the Coronation Hotel in Delhi, informed him that they had collectively gathered Rs. 5,000 to be handed to Madan Lal and that, in the presence of Madan Lal, each of the three accused separately requested him to accept the money and cause the pending potato case to be withdrawn. This account was corroborated by Madan Lal, who testified that all three accused declared the sum had been jointly subscribed and urged him to accept it so that the case could be withdrawn. The Court concluded that the testimony of Gian Chand did not differ in substance from that of the other accused, and therefore affirmed the convictions and sentences, rejecting the appeal.