State of Maharashtra vs Jagatsing Charansingh and Anr

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

Court: Supreme Court of India

Case Number: Criminal Appeal 183 of 1961

Decision Date: 13 August, 1963

Coram: K.N. Wanchoo, P.B. Gajendragadkar

In this matter the State of Maharashtra was the petitioner and Jagatsing Charansingh together with another individual were the respondents. The judgment was delivered on 13 August 1963 by a Bench consisting of Justice K. N. Wanchoo and Justice P. B. Gajendragadkar. The case was reported in 1963 AIR 492 and 1964 S. C. R. (4) 299. The controversy concerned the provisions of the Indian Penal Code relating to a public servant receiving illegal gratification, the requirements for specifying a public servant in the charge‑sheet, and the status of a corporation employee as a public servant. Relevant statutory provisions included sections 21, 161 and 197 of the Indian Penal Code, and section 43 of the Road Transport Corporation Act, 1950.

According to the factual narrative, an individual named Dongarsing obtained an application form for a position as a truck driver from the Transport Corporation at Dhulia. He subsequently met the second respondent, who was employed in the transport department of the corporation, and was told that employment could be secured if he paid money to the first respondent, an officer in the same department. The arrangement specified a total bribe of Rs 50; Rs 25 was handed over immediately and the remaining amount was to be paid later. When Dongarsing failed to obtain the promised job, he grew suspicious and approached the anti‑corruption department. The department organised a trap in which Rs 30 was given to the first respondent in currency notes that had been dusted with anthracene powder. Police observed that the first respondent had anthracene powder on his fingers and in his pocket, although he attempted to discard the notes.

Both respondents were charged with an offence under section 161 of the Indian Penal Code. The trial court acquitted the second respondent on the basis that he was not present at the time the Rs 30 was handed to the first respondent and that there was insufficient evidence to prove abetment. Regarding the first respondent, the trial court found that he had indeed accepted the bribe of Rs 30, but concluded that he was not a public servant either under section 21 of the Indian Penal Code or under section 43 of the Transport Corporation Act, and therefore acquitted him as well.

The State of Maharashtra appealed the trial court’s decision to the High Court of Bombay. The High Court framed two questions for determination: first, whether the first respondent qualified as a public servant within the meaning of section 21 of the Indian Penal Code read with section 43 of the Transport Act; and second, whether the essential elements of section 161 of the Penal Code had been established. The High Court chose not to answer the first question. In relation to the second question, relying on the precedent set in State of Ajmer v. Shivjilal [1959] Supp. 2 S.C.R. 739, the High Court held that the complaint and the evidence did not specifically identify the public servant who was approached, and consequently it affirmed the acquittal of the first respondent. The High Court also confirmed the acquittal of the second respondent. The present appeal before this Court has been granted special leave, and it raises the same issues that were previously presented before the High Court.

In this appeal the Court observed that the High Court had affirmed the acquittal of the first respondent and had also confirmed the acquittal of the second respondent. The appeal before this Court was entertained by special leave, and the parties raised precisely the same arguments that had been presented before the High Court. The Court therefore considered the issues anew and set out its reasoning in two principal parts.

The first part of the Court’s reasoning addressed the question of who must be identified as the public servant in a case of bribery involving the procurement of an appointment. The Court held that when a person holds the very office in which the appointment is to be made and receives money in order to secure that appointment, it is unnecessary to produce further evidence to identify another public servant to whom the bribe would be offered. It is sufficient to demonstrate that money was paid to a public servant within the relevant department, that the payment was intended to induce an order within that department, and that the money was taken for the purpose of performing an official act in that department. The Court clarified that the portion of section 161 of the Penal Code considered in the earlier decision of State of Ajmer v. Shivajilal required a distinct showing of the identity of the other public servant who would be approached. By contrast, the other portion of section 161 applies to the receipt of gratification either by the public servant himself or on behalf of any other person, provided the public servant is in a position by virtue of his official status to either do or omit an official act. Consequently, the Court concluded that the High Court erred in applying the ratio of the Shivajilal case to the present facts, because the factual matrix did not require the identification of a second public servant.

The second part of the Court’s analysis examined whether the first respondent could be deemed a public servant within the meaning of section 21 of the Indian Penal Code as it existed before the amendment effected by Act 2 of 1958. The Court explained that an officer or servant of a corporation is regarded as a public servant under section 43 of the Transport Corporation Act only when he is acting, or purporting to act, in pursuance of any provision of that Act or any other law. The act of receiving a bribe does not fall within the ambit of acting in pursuance of any such provision. Accordingly, a person who accepts a bribe cannot be classified as a public servant for the purpose of section 21 of the Indian Penal Code, given the explicit language of section 43 of the Transport Corporation Act. On this basis, the Court affirmed that the trial court was correct in acquitting the first respondent on the ground that he was not a public servant. By the same reasoning, the Court held that the second respondent must also be acquitted. The Court cited the authorities Gill v. King (1948) L.R. 75 I.A. 41, Hori Ham Singh v. The Crown [1939] F.C.R. 159, Shrikantiah Ramayya Munepalli v. State of Bombay [1955] 1 S.C.R. 1177 and Amrik Singh v. State of Pepsu [1955] 1 S.C.R. 1302 in support of its conclusions.

In this appeal, special leave was granted to question the judgment of the Bombay High Court dated 17 May 1960, which had acquitted the two respondents. Counsel for the appellant were H. R. Khanna and R. H. Dhebar, while counsel for respondent number one was T. V. R. Tatachari. The judgment was delivered on 13 August 1963 by Justice Wanchoo. The prosecution’s case was that a former army truck driver named Dongarsing, having been discharged, was seeking employment and in late October 1955 submitted an application to the District Soldiers’ Board at Dhulia requesting assistance in obtaining a job. The board forwarded this request to the Divisional Controller of the State Transport Corporation at Dhulia, who instructed Dongarsing to submit a formal application on a printed form that required a fee of Rs. 0‑2‑0. Dongarsing obtained the form in November 1955, receiving it on the 19th of that month. Subsequently, Dongarsing approached Sheikh Ahmed, identified as respondent number two, who was employed in the same department at Jamner, seeking his help. Sheikh Ahmed informed Dongarsing that Jagatsing, respondent number one, who held an officer position in the State Transport Corporation at Dhulia, could secure a driver’s job for him if a payment was made.

Accordingly, Dongarsing travelled to Dhulia with Sheikh Ahmed and met Jagatsing, where an agreement was reached that Dongarsing would pay Rs. 50 as a bribe to obtain the driver’s position. An initial payment of Rs. 25 was made on 25 November 1955, and the balance of Rs. 25 was paid approximately two weeks later, around 9 December 1955. At the end of January or the beginning of February 1956, Dongarsing was advised that his application for the driver’s post had been rejected. He returned to Jagatsing and demanded the return of the Rs. 50 already paid or the procurement of the job. Jagatsing replied that the money could not be returned because it had already been handed over to other persons, but suggested that an additional payment of Rs. 50 might enable him to secure the appointment. Consequently, another printed application form was obtained by Jagatsing, completed by Dongarsing, and handed to Jagatsing. Growing suspicious of Jagatsing’s honesty, Dongarsing approached the anti‑corruption department, which arranged a trap. The department supplied Dongarsing with Rs. 30 in currency notes that had been treated with anthracene powder. On 20 February 1956, at about three in the afternoon, Dongarsing handed the powdered notes to Jagatsing. Police officers present seized Jagatsing, who dropped the money when challenged. Examination revealed traces of anthracene powder on his thumb, two fingers, and on the seam of the right pocket of his trousers, confirming the successful execution of the trap.

When the police seized Jagatsingh, they observed that particles of anthracene powder were present on the thumb and the second finger of his right hand, and the same powder marked the seam of the right pocket of the trouser he was wearing. The currency notes that had been handed to him were immediately collected, and a detailed panchnama recording the seizure was prepared. Following this discovery, the investigating officers proceeded to prosecute both Jagatsingh and Sheikh Ahmed. In the trial, Jagatsingh denied any involvement, asserting that he had no authority to appoint drivers or conductors and that he was never in a position to assist Dongarsing. Sheikh Ahmed also repudiated the charge against him, stating that his only participation had been to help Dongarsing complete the printed application form, and that he had never informed Dongarsing of any requirement to pay a bribe to Jagatsingh in order to obtain the job. The trial court examined the evidence and concluded that the prosecution had established its case beyond reasonable doubt. It held that Jagatsingh had indeed taken the currency notes handed to him on 20 February as illegal gratification, intending to secure the employment sought by Dongarsing. Regarding Sheikh Ahmed, the court found that the testimony of Dongarsing concerning two earlier payments of Rs 25 in November and December 1955 could not be relied upon because Dongarsing was himself an accomplice. For the payment of Rs 30 on 20 February, the court observed that Sheikh Ahmed was not present at the time of the transaction and therefore could not be held liable for abetment, especially since the incriminating letter marked as Exhibit 29, on which the abetment charge was based, had never been produced to Jagatsingh. The trial judge also determined that Jagatsingh did not satisfy the definition of a public servant under section 43 of the Road Transport Corporation Act, No 64 of 1950, and consequently acquitted both accused persons. The State of Maharashtra appealed this judgment to the High Court of Bombay. The High Court accepted the trial court’s finding that the Rs 30 had been given as a bribe to Jagatsingh and then turned to two questions of law: first, whether Jagatsingh qualified as a public servant under section 21 of the Indian Penal Code read with section 43 of the Transport Act; and second, whether the essential elements of section 161 of the Indian Penal Code, on which Jagatsingh was charged, had been proven. The High Court chose not to answer the first question, stating that it must first resolve the second. Relying on the precedent set in State of Ajmer v Shivjilal, the High Court observed that the original complaint and the evidence contained no specific allegation identifying a public servant as the person to be approached, and therefore, following the reasoning in the Shivjilal case, it felt compelled to confirm the acquittal ordered by the Special Judge. By affirming Jagatsingh’s acquittal, the High Court also concluded that no case of abetment could be made out against Sheikh Ahmed.

The Court first considered the High Court’s reasoning on the second issue, namely whether the elements of section 161 of the Indian Penal Code had been established against the accused. It was observed that the High Court had interpreted the earlier decision in State of Ajmer v. Shivjilal (1) more broadly than the Supreme Court’s actual holding in that case. In Shivjilal’s case the bribe was alleged to have been paid to Shivjilal, who was employed as a teacher in a railway school at Phulera, for the purpose of obtaining a posting for Premsingh in the railway running shed at Abu Road. The facts made it clear that Shivjilal himself had no connection with the Abu Road shed and therefore could not directly secure a job there; he could only approach another officer stationed at Abu Road who possessed the authority to grant the appointment. Consequently, Shivjilal could have facilitated Premsingh’s appointment only by rendering or attempting to render a service to Premsingh through that other public servant. This situation fell squarely within the portion of section 161 (excluding the superfluous words) that provides: “Whoever being a public servant accepts from any person for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for rendering or attempting to render any service or disservice to any person with any public servant.” In Shivjilal’s case the Supreme Court emphasized that when an offence is alleged under this clause, the charge must specify the other public servant who was to be approached for the alleged service or disservice. However, the Court also clarified that the failure to name that public servant in the charge does not automatically render the trial invalid; such an omission is a defect that can be cured under section 537 of the Code of Criminal Procedure, provided the defect has not caused a miscarriage of justice. The Court further observed that, apart from the omission of the other public servant’s identity, there was no material in the complaint, the police charge‑sheet, or the evidence that identified who the other public servant might have been. On that basis, the Court concluded that one of the essential ingredients of the relevant part of section 161 had not been proved in Shivjilal’s case.

In the present case the facts were unlike those in the earlier decision. It was not contested that Jagatsingh was employed in the very office that was responsible for making the appointment of a driver for which Dongarsing had applied. The record also showed that Dongarsing had approached Jagatsingh directly, perhaps together with Sheikh Ahmed, and that Jagatsingh had promised to secure a position for Dongarsing in his own office on the condition that a certain sum of money was paid. Referring to the earlier case reported in (1) [1959] Supp. 2 S.C.R. 739, the Court expressed the view that a different portion of section 161 of the Indian Penal Code was applicable. That provision, without the superfluous wording, reads: “Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person.” The Court held that this part of section 161 applied to the present facts because Jagatsingh, being a public servant in that office, had taken money for the purpose of performing an official act, namely the appointment of a driver. Although Jagatsingh, in his statement, claimed that he had no responsibility for appointing drivers or conductors and that he was not positioned to assist Dongarsing in obtaining employment, the evidence established that he was a senior assistant in the traffic section of the corporation at Dhulia. Consequently, even if he was not the individual who directly made the appointment, that circumstance did not, in the Court’s opinion, absolve him of liability when he accepted money to obtain an official act, namely Dongarsing’s appointment, in that office. The relevant segment of section 161 not only addresses gratification received by the public servant for himself but also includes gratification taken for any other person, provided the public servant is situated in a capacity that enables him to do or refrain from doing an official act or to show favour or disfavour in the exercise of his duties. Therefore, when a public servant occupies the very office where the appointment is to be made and accepts money to secure that appointment, there is no further requirement for the charge or the evidence to identify another public servant with whom the service would be rendered. The portion of section 161 that was applied in Shivjilal’s case was an entirely separate clause that required identification of another public servant to be approached. In contrast, the facts of the present case rendered it unnecessary to demonstrate the existence of any additional public servant, because the public servant who received the money was himself the authority in the office responsible for the appointment.

In this case, the Court observed that when the public servant who receives the money is himself the officer in the very department responsible for making the appointment, it is unnecessary to identify any additional public servant who might have been approached. The payment, therefore, is made either for the benefit of the officer himself or for another person within his office, with the purpose of obtaining or facilitating an official act. Consequently, the High Court was incorrect in applying the ratio established in Shivjilal’s case to the present facts, because the present facts did not require a determination of which other public servant would have rendered the service. It was sufficient to demonstrate that money was paid to a public servant in a specific department that had authority to issue the order, and that the payment was intended to secure the performance of an official act in that department. For this reason, the rationale offered by the High Court in acquitting Jagatsing and, consequently, Sheikh Ahmed cannot be sustained. The Court then turned to the first question originally presented to the High Court but left undecided, namely whether Jagatsingh qualified as a public servant within the meaning of section 21 of the Indian Penal Code read in conjunction with section 43 of the Transport Act. Although the trial court had decided this question in favour of Jagatsingh, the Court considered it appropriate to resolve the issue itself, noting that a remand to the High Court after such a lapse of time would be unnecessary. The Court noted that Jagatsingh could not be regarded as a public servant under section 21 as it existed before the amendment effected by Act 2 of 1958, which inserted a twelfth clause defining a public servant to include “every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act or of a Government company as defined in section 617 of the Companies Act, 1956.” This clause was not in force at the time the alleged offence occurred in 1956; therefore, it was necessary to examine whether section 43 of the Transport Act, by deeming all members, officers and servants of a corporation to be public servants when acting or purporting to act in pursuance of the provisions of that Act or any other law, rendered Jagatsingh a public servant for the purposes of section 21 of the Indian Penal Code. Section 43 states: “All members of a corporation, and all officers and servants of a corporation, whether appointed by the State Government or the corporation, shall be deemed when acting or purporting to act in pursuance of the provisions of this Act or of any other law, to be public servants within the meaning of section 21 of the Indian Penal Code.” The Court then considered the implications of the phrase “when acting or purporting to act in pursuance of any of the provisions of this Act or of any other law.”

Had the words now found in section 43 not been present, the Court would have found it straightforward to classify Jagatsingh as a public servant within the meaning of section 21 of the Indian Penal Code. The difficulty, however, arises from the language that qualifies the status of officers and servants of a corporation. The respondents contend that the effect of the wording in section 43 is to deem such officers and servants public servants only when they are acting, or purporting to act, in pursuance of any provision of the Transport Act or any other law. Accordingly, they argue that the act of taking a bribe does not fall within the scope of “acting or purporting to act in pursuance” of the Act or any other law, and therefore it should not automatically render the accused a public servant for purposes of section 21.

The question of whether a governmental sanction under section 197 of the Code of Criminal Procedure is required when a public servant is charged with an offence alleged to have been committed while “acting or purporting to act in the discharge of his official duty” has been examined by the Privy Council in cases involving sections 161 and 409 of the Indian Penal Code. In Gill v. The King, the Privy Council held that a prosecution for taking a bribe under section 161 of the Indian Penal Code did not require sanction under section 197 because the taking of a bribe was not an act done in the discharge of the public servant’s official duties. Similarly, in Hori Ram Singh v. The Crown, the Federal Court ruled that sanction was necessary for a prosecution under section 477‑A where the official’s capacity was directly involved in the criminal act, but that no sanction was required for a charge under section 409 because the official capacity was relevant only to the entrustment and did not necessarily form part of the subsequent act of misappropriation or conversion. The Privy Council later affirmed this view in Gill’s case. The Supreme Court has also addressed this issue, notably in Shreekantiah Ramayya Munipalli v. The State of Bombay and in Amrik Singh v. State of Pepsu. In the former case, the Court cautioned against a narrow construction of section 197, observing that it would be impossible to apply the provision if it were limited only to acts that are part of an official’s duty, since no official duty ever includes the commission of an offence. The Court emphasized that the focus should be on the act itself rather than the duty, because an official act may be performed either in the proper discharge of official duties or in dereliction of those duties. The case involved misappropriation that was facilitated by a public servant who allowed certain stores to leave the Engineering Depot at Dehu, thereby abetting the offence.

The Court held that sanction was required because the misappropriation could not have occurred without the official act of issuing the stores. Consequently, the public servant who permitted the stores to leave the depot and therefore abetted the misappropriation could not be prosecuted unless sanction was obtained, since his act of issuing the stores was an official act. The issue was revisited in a later case, and the Court summarized the principle on page 1307 as follows: The quoted passage stated that not every offence committed by a public servant demands sanction for prosecution under section 197(1) of the Code of Criminal Procedure, nor does every act performed while the servant is engaged in official duties automatically require sanction. However, if the complained‑of act is directly connected with the servant’s official duties such that it could be claimed to have been performed by virtue of the office, then sanction becomes necessary. The need for sanction applies regardless of whether the act actually constitutes a proper discharge of duties, because any question of proper performance is a matter of defence that must be examined at trial, not at the stage of granting sanction. The Court noted that the grant of sanction must precede the institution of prosecution. In the same case, the Court also held that sanction was required for a prosecution under section 409 of the Indian Penal Code because the accused argued that he had paid the amount due and possessed a receipt. These authorities illustrate that the requirement of sanction depends on whether the act alleged is performed in the performance of official functions, not merely on the fact that the person is a public servant.

The Court observed that similar reasoning applies when determining whether an officer or employee of a corporation acted, or pretended to act, in pursuance of any provision of the Transport Act or any other law, because only such acting can render the person a public servant within the meaning of section 43. Regarding the receipt of a bribe, the Court expressed the view that such conduct cannot be classified as acting or purporting to act in pursuance of any provision of the Transport Act or any other statute. Accordingly, the prosecution could not argue that Jagatsingh, while allegedly acting in the execution of the Transport Act or any other law, received the bribe. The Court therefore concluded that when Jagatsingh accepted money from Dongarsing, his conduct could not be described as acting or purporting to act in pursuance of any statutory provision. As a result, the Court held that Jagatsingh could not be deemed a public servant within the language of section 43, which requires that an officer or servant of a corporation be acting or purporting to act in pursuance of a law. Consequently, the requirement of sanction under section 197 did not arise in connection with the alleged bribery.

In this case, a person is deemed a public servant within the meaning of section twenty‑one of the Indian Penal Code only when that person acts, or purports to act, in pursuance of any provision of the Transport Act. The same test applies when the person is acting under any other law, and the definition does not extend to conduct unrelated to those statutes. The counsel argued that, under this interpretation, every member, officer and servant of a corporation could take bribes without ever being liable under section one‑sixty‑one. He further submitted that such a result could not have been intended by the legislature when it enacted section forty‑three. The Court observed that, although the consequence is regrettable, the language of section forty‑three is clear and unambiguous. It appears that the legislature intended the label of public servant to apply only when the corporate official is acting, or purports to act, in pursuance of the Transport Act or any other law. Because acceptance of a bribe can never be shown to amount to acting, or purporting to act, in pursuance of any provision of the Transport Act or any other law, the conduct does not satisfy the definition of a public servant. Accordingly, under section twenty‑one of the Indian Penal Code, a person who takes a bribe cannot be said to be a public servant, as required by the clear wording of section forty‑three. The Court noted that the difficulty created by this interpretation has been removed by the later amendment of section twenty‑one, which inserted a twelfth clause. However, because the events in question occurred before that amendment, the Court was required to apply the law as it stood at the relevant time, namely the language of section forty‑three of the Transport Act. The words of that provision make it clear that members, officers and servants of corporations may be regarded as public servants only when they act. They are also regarded as public servants when they purport to act in pursuance of any provision of the Transport Act or of any other law. Taking a bribe can never satisfy that condition, so a person who receives a bribe cannot be said to be a public servant. Consequently, the trial court was correct in acquitting Jagatsingh on the ground that he was not a public servant. From that finding, the Court concluded that Sheikh Ahmed must likewise be acquitted of the charges, as the same legal principle applies. Therefore, the appeal was dismissed, although the grounds for dismissal differed from those that led to the acquittal of the first respondent. Accordingly, the appellate court entered a formal order dismissing the appeal and confirming the acquittals of both respondents.