Bhagwan Sahai vs State Of Punjab

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 18 December 1959

Coram: S.J. Imam, J.L. Kapur, K.N. Wanchoo

In this case, the Supreme Court of India heard an appeal by special leave from the judgment and order issued by the Punjab High Court on 17 May 1956. The appeal was filed by Bhagwan Sahai, who had been a Naib-Tehsildar in the Ferozepur Jhirka tehsil of Gurgaon district during the period from 1 May 1953 to 2 June 1954. The allegation alleged that while making his regular rounds through the villages of that tehsil, the appellant was accompanied by his son, who was a director of Starline Pictures Ltd., a Delhi-based film company. The allegation further stated that at the time he was attending to land-mutation matters, the appellant urged the parties whose mutations he was verifying to purchase shares in his son’s company, and that many of those persons complied because they felt pressured by the appellant who was offering them official favour in the mutation process.

The factual background leading to the appellant’s conviction began on 8 June 1954 when a First Information Report was lodged against him under Section 5(1)(d) of the Prevention of Corruption Act. The FIR was based on a letter from the Deputy Commissioner, who also acted as the Collector of the district, and the letter enclosed the report of the Revenue Assistant of Gurgaon prepared during an inquiry conducted against the appellant. The letter concluded that the matter fell within Section 5(1)(d) of the Act and recommended that sanction be obtained under Section 6. Accordingly, the Commissioner of the Ambala Division granted the required sanction on 2 December 1954, thereby authorising prosecution of the appellant under Section 5 of the Act.

Cognizance of the case was taken by the Special Judge, Mr Manohar Singh of Gurgaon, on 18 July 1955. The succeeding judge recorded the prosecution testimony on several dates ranging from 2 September 1955 to 19 October 1955. On 2 November 1955, the court framed a charge against the appellant under Section 5(1)(a) of the Act. After the charge was framed, the appellant cross-examined six prosecution witnesses, produced some defence witnesses, and subsequently oral arguments were concluded. The Special Judge delivered his judgment on 4 January 1956, finding the appellant guilty and sentencing him to imprisonment until the rising of the court. The judgment read, “After a careful consideration of the whole evidence, I am of opinion that the offence with which the accused has been charged is proved beyond reasonable doubt. I convict him of an offence under Section 5 of the Prevention of Corruption Act.” It was further noted that the prosecution evidence showed that the appellant had prepared all the share-application forms except for eight, and that the receipts for the monies received were dispatched later by post or through another agency.

The prosecution case alleged that the appellant had abused his official position by collecting subscriptions for shares for the benefit of his son and the company in which his son was a director. It was further alleged that without the appellant’s interference the Meos, an agricultural tribe residing in that tehsil whose land mutations were being processed by the appellant, would not have agreed to purchase those shares. All the prosecution witnesses testified that they did not understand what a share of a company represented and that they had never contemplated buying a corporate share. The witnesses explained that they paid money to the appellant or to his son because they believed that such payment would oblige the appellant, who was responsible for attesting their land mutations, to act in their favour. It was also established that the appellant personally urged various individuals to purchase the shares and that the money was handed to either the appellant or his son in the appellant’s presence. The prosecution further pointed out that the receipts for the amounts received were later dispatched by post or through some other agency, indicating that the appellant was not directly handling the financial documents. This pattern, according to the trial court narrative, suggested a systematic effort by the appellant to channel the subscription money towards his son’s commercial interests.

In the High Court, it was contended that the appellant’s conduct did not constitute criminal misconduct because he himself did not obtain any pecuniary advantage. Counsel for the appellant pointed to the language of the charge, which described the appellant as “was in the habit of obtaining illegal gratification,” and argued that the charge was therefore misdirected. Nevertheless, the High Court held that the evidence had been presented before the appellant, that he was aware of the case against him, and that he understood the defence he had to meet. The High Court’s own finding, quoted verbatim, stated: “It is clear that the appellant’s son obtained a pecuniary advantage by the sale of these shares and it is equally clear that the appellant herself used his official position to persuade various persons to purchase those shares. Under Section 5 of the Prevention of Corruption Act a person who abuses his official position for obtaining a pecuniary advantage either for himself or for any other person commits the offence of criminal misconduct, and on the facts proved in this case there can be no doubt that the appellant did, abuse his official position in order to obtain pecuniary advantage for his son, and, in my opinion, therefore, the appellant’s conviction under Section 5 of the Prevention of Corruption Act is justified.” The appellant raised two principal questions before this Court: first, that the sanction for prosecution had been issued under Section 5(1)(d) and therefore he could not be convicted under Section 5(1)(a); second, that the High Court lacked authority to alter a conviction under Section 5(1)(a) to one under Section 5(1)(d) because the charge itself was framed under Section 5(1)(a). A subsidiary point was also raised, asserting that, in any event, no offence under Section 5(1)(d) could be established against the appellant because no pecuniary advantage had been proven. The present appeal then proceeded to consider the provisions of Section 6 of the Act.

The Court observed that a court may take cognizance of an offence punishable under Section 5 of the Prevention of Corruption Act only when a prior sanction has been obtained from the authority specified in the statute. It was not disputed that such sanction had indeed been granted by the appropriate authority. The contention raised, however, was that the sanction had been issued specifically for an offence falling under Clause (d) of Section 5(1), and although the sanction did not expressly cite the clause, the factual narration within the sanction showed that it was intended for prosecution under Clause (d) and not under any other clause of the section. To resolve this issue, the Court examined the wording of the sanction issued by the Commissioner. The relevant portion stated that Shri Bhagwan Sahai, while serving as Naib Tehsildar, had between July 1953 and February 1954 obtained a pecuniary advantage for his son, Daya Kishan Bhardwaj, who was a director of Starline Pictures Ltd., Delhi. The advantage was secured by abusing his public office and by persuading persons who dealt with him in his official capacity to purchase shares of the company, the total value of which was Rs. 1,840. A list of sixty-eight names of alleged purchasers and the amounts each paid was appended. The operative clause of the sanction read: “Now, therefore, in exercise of the powers conferred upon me by Section 6 of the Prevention of Corruption Act 1947 I… sanction the prosecution of Shri Bhagwan Sahai, Naib Tehsildar… under Section 5 of the Prevention of Corruption Act, 1947.”

The appellant argued that the language of the sanction clearly indicated that it was directed at an offence under Section 5(1)(d). Consequently, the appellant maintained that a conviction by the Special Judge for an offence under Section 5(1)(a) was unlawful. To support this submission, reliance was placed on the Supreme Court’s decision in Jaswant Singh v. State of Punjab. In that precedent, the sanction had been granted for the receipt of a Rs. 50 bribe from a person named Pal Singh. The charge alleged that the accused habitually accepted illegal gratification and specifically that he had received the Rs. 50 from Pal Singh, thereby bringing the charge within Section 5(1)(a). The Special Judge convicted the accused under that provision. On appeal, the High Court considered the sanction and held that, because the sanction covered only the receipt of the Rs. 50 from Pal Singh, the accused could not be convicted for the habit of accepting illegal gratification; however, the sanction related to the specific bribe was valid, and the conviction on that basis was upheld. The appellant’s further contention was that, since the sanction was confined to the illegal gratification of Rs. 50 and the charge addressed the habitual acceptance of illegal gratification, the trial court lacked jurisdiction to convict the accused of any offence. This argument was rejected, and the Supreme Court affirmed that the accused could be convicted under Section 5(1)(d). The present case therefore required an analysis of whether the sanction, when interpreted, covered the accused’s obtaining of a pecuniary advantage for his son, and consequently, whether the conviction under Section 5(1)(a) was sustain­able.

The Court observed that the earlier argument that the accused could not be convicted of any offence was rejected, and held that the accused could be convicted under Section 5(1)(d). In support of this conclusion, the Court quoted its earlier observation at page 766 of the Supreme Court Reports, stating: “Section 6(1) of the Act bars the jurisdiction of the court to take cognizance of an offence for which previous sanction is required and has not been given. The prosecution for an offence under Section 5(1)(d) therefore is not barred because the proceedings are not without previous sanction which was validly given for the offence of receiving a bribe from Pal Singh. However, the offence of habitually receiving illegal gratification could not be taken cognizance of, and the prosecution and trial for that offence were void for want of sanction, which is a condition precedent for the courts taking cognizance of the alleged offence. Consequently, the High Court rightly set aside the conviction for that offence.” The Court then analysed the sanction in the present case and identified the following factual matrix: (i) the accused obtained a pecuniary advantage for his son; (ii) the advantage was obtained between July 1953 and February 1954; (iii) the accused obtained it by abusing his position, persuading sixty-eight persons mentioned in the record to purchase shares; and (iv) those persons either dealt with him in his public capacity or were expected to do so. The question framed for determination was whether the sanction fell under Section 5(1)(a), Section 5(1)(d), or both. The Court reproduced the relevant provisions: Section 5(1) declares that a public servant commits the offence of criminal misconduct in the discharge of his duty if, (a) he habitually accepts, obtains, agrees to accept, or attempts to obtain from any person for himself or another any gratification (other than legal remuneration) as a motive or reward as mentioned in Section 161 of the Indian Penal Code; … (d) if he, by corrupt or illegal means or otherwise abusing his position as a public servant, obtains for himself or another any valuable thing or pecuniary advantage. To establish an offence under Clause (a), it must be proved that the accused was a public servant, that he habitually accepted or obtained gratification from any person for himself or another, and that such gratification was motivated by the reward for performing or refraining from an official act. For an offence under Clause (d), it must be proved that the accused was a public servant, that he employed corrupt or illegal means or otherwise abused his position, and that he obtained for himself or another any valuable thing or pecuniary advantage. The Court noted that the elements of the sanction, as set out above, do not exclude the possibility of habituality, and that receipt of illegal gratification as a motive or reward for an official act can coexist with the abuse of position contemplated by Clause (d).

The Court observed that receiving illegal gratification as a reward or motive for performing an official act satisfied the essential element of the offence. Although the word “habitually” was not expressly mentioned in the sanction, the period covered by the alleged transactions and the involvement of multiple persons could reasonably be interpreted as indicating a pattern of habitual conduct. The Court further noted that while not every form of gratification qualifies as a pecuniary advantage or a valuable thing, the categories of pecuniary advantage and valuable thing are nevertheless encompassed within the broader concept of gratification. In addition, the expression “abusing his position” was held not to exclude the requirement of a “motive for doing an official act.” The Court acknowledged that in other legal contexts the phrase “abusing his position” might carry a different meaning, but in the present matter the accused was alleged to have attested mutations, an act that is unquestionably an official function. Consequently, the Court concluded that the sanction imposed on the accused fell squarely within both Clause (a) and Clause (d) of Section 5(1) of the relevant Act.

Because the sanction could be construed as covering offences under both Clause (a) and Clause (d) of Section 5(1), the Court determined that framing the charge under Clause (a) was legally permissible. The High Court, while making certain observations that might have suggested a reinterpretation, did not actually alter the conviction from Clause (a) to Clause (d). The High Court’s remarks indicated that the accused had not taken a bribe in the ordinary sense of the word; rather, he had misused his position to enable another individual to obtain a pecuniary advantage. The factual record showed that this conduct persisted for several months, thereby amounting to a habitual procurement of gratification on behalf of another person in the discharge of his official duties. Accordingly, the High Court’s judgment was consistent with the original charge framed under Clause (a) of Section 5(1). In light of this analysis, the Court dismissed the appellant’s appeal.