- (1.) The two appellants in these appeals were convicted by the special judge, Anti-Corruption (Central) , up. , Lucknow for offences punishable under sections 120b IPC, 161, 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947 (for short 'the Act') and sentenced to undergo 2 years' Rl under section 161 IPC and section 5 (1) (d) read with section 5 (2) of the Act, and were further directed to pay a fine of Rs. 500 for an offence punishable under sections 120b and 161 IPC and section 5 (2) of the Act; in default to undergo further sentence of 6 months' Rl. In an appeal filed by the appellants, the High Court of Allahabad, Lucknow, while dismissing the said appeals, reduced the sentence to one year Rl. It is against the said order of the High Court that the two appellants are before us in these two appeals. The basic facts necessary for the disposal of these appeals are as follows : 1.1 At the relevant time, Suleman Tayyab A-1 was working as a LDC in 'b' Ward, Circle II, Income Tax Office, Lucknow and also as a Record Keeper. S. N. Dixit A-2, the appellant in the connected appeal before us was then working as a Class IV employee in the same office and was assigned the work of a 'farash'. One Surendra Kumar PW-3 who was a partner in the firm M/s. Singhal Paper products had applied to the ITO concerned to return the copy of the partnership deed filed in the said office since he wanted the same for obtaining a loan from a Bank. An application in this regard was moved on 21.5.1980 on which the concerned ito passed an order on 26.5.1980 to return the said document after retaining a copy on record. This order of the ITO was sent to A-1 through A-2 for compliance. It is stated that on receiving the said order, A-1 told PW-3 that he was very busy on that day, hence, he will not be available to trace out the document immediately. However, PW-3 impressed upon A-1 as to his urgency in getting the document whereupon A-1 allegedly demanded Rs. 50 as bribe to return the document on the same day. On PW-3 agreeing to pay the said sum of money, A-1 told him that the document in question would be returned to him by about 5.30 p. m. that day at India Coffee House, Hazratganj and that he should pay the amount of Rs. 50 when the document is delivered. The further case of the prosecution is though PW-3 agreed to pay the said amount, he was angered by the said demand hence he went and lodged a complaint exhibit Ka- 7. The S. P. /cbi/spe, Lucknow, ordered registration of the case upon which FIR exhibit Ka-9 was registered. Said SP/cbi entrusted the case to Inspector R. K. Singh, PW-6, for laying a trap. For the purpose of having independent witnesses, the investigating agency wrote a letter to the Central Excise Department to depute two Inspectors to the office of the CBI on the same day. The Assistant Collector, Central excise then directed V. K. Saxena PW-1 and S. L. Banodha PW-2 to attend the CBI office on the same day which they did at about 4.15 p. m. After recording the statement of PW-3, PW-6, the Inspector directed PW-3 the complainant to procure the money which was to be paid as bribe and on receipt of 5 ten-rupee notes the said notes were treated with phenolphthalein powder and PW-3 was instructed to give the said notes to A-1 when he receives the document. At about 5.25 p. m. when PW-3 and rest of the party had taken their allotted place in and near the Coffee House, they noticed A-2 coming over to PW-3 and handing over the document to him and obtaining a receipt for the same and immediately thereafter it was noticed that he collected the money also. On being signalled the concerned officers approached A-2 and identified themselves at which point of time it is stated that A-2 gave the money to PW-6. Since at that place a large number of people had gathered they took A-2 and PW-3 along with other witnesses to the nearby fire station and on testing the fingers of A-2 by phenolphthalein test, it was noticed that A-2 had handled the said currency. It is based on the said result of the trap and further investigation conducted by the CBI, a chargesheet was filed against the appellants herein and as stated above, the two courts below have found the appellants guilty and convicted them.
(2.) Mr. P. P. Malhotra and Mr. S C Maheshwari, learned senior counsel appearing for the appellants, firstly contended that in view of the provisions of section 196 (2) of the Code of Criminal Procedure, 1898 (the Code) , the trial court could not have taken cognizance of the offence punishable under section 120b IPC without the consent in writing of the State government or the district magistrate concerned. Cognizance of the offence punishable under section 120b IPC can be taken without consent under the aforesaid provisions only if the offence is one punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. In the instant case, according to them, since no such consent was taken, the trial court could not have taken cognizance of the offence punishable under section 120b IPC. Section 120b IPC makes it abundantly clear that whoever is charged of a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no expressed provision is made in the Code, for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. In the instant case the appellants were charged of having conspired to commit an offence punishable under section 161 IPC.
(3.) A mere perusal of section 161 IPC and section 5 (1) (d) of the Act would make it obvious that the maximum punishment which can be imposed under section 161 IPC (as it'then stood) is imprisonment of either description which may extend to three years or with fine or with both. For the offence under section 5 (1) (d) of the Act, the punishment prescribed is imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. Thus, the conspiracy to commit either of the offences was punishable with imprisonment for a term exceeding two years rigorous imprisonment and, therefore, in our view section 196 (2) of the Code had no application because in respect of both the offences, the Court had jurisdiction to pass a sentence of over two years' rigorous imprisonment. The submission that it was permissible for the Court to award simple imprisonment for any term subject to the maximum prescribed and, therefore, section 196 (2) of the Code was applicable, cannot be accepted. Equally without substance is the submission that the conspiracy alleged must be compulsorily punishable with rigorous imprisonment for a term exceeding two years, leaving no discretion in the Court to pass a lesser sentence. The true test is whether the conspiracy alleged was punishable with a term of imprisonment exceeding two years' rigorous imprisonment and, as we have noticed earlier, it was so in the instant case having regard to the punishment prescribed for the offences under section 5 (1) (d) of the Act as well as section 161 IPC. Therefore this argument of the appellants has to be rejected.;