BHAGWATI - (1.) AGREE with the judgment about to be delivered by mylearned brother Ranganath Misra, but there are some two or three charges inregard to which I should like to make more detailed observations since theyhave not been dealt fully by my learned brother and he has left it to me toconsider them in some detail. Since the genesis of this appeal has been setout by my learned brother at length I do not propose to repeat what has beenso ably said by him and I will confine myself only to the facts relating to the charges which are going to be dealt with by me. But I may be permitted to say a few words in regard to two points which have been discussed by my learned brother in this judgment since they are of some importance and can without impropriety bear further discussion.
(2.) THE first point arises out of a contention raised by the learned counsel appearing on behalf of the first respondent (hereinafter referred to as the 'respondent') that the presumption under S. 4 of the Prevention of Corruption Act, 1947 applies only after a charge is framed against an accused and has no application at the stage when the court is considering the question whether a charge should be framed or not. It is said in geometry that a point has position but no magnitude, but we are constrained to observe that this point raised on behalf of the first respondent has not only no magnitude but has even no position. It is wholly without substance and indeed it is surprising that it should have been raised by the learned counsel appearing on behalf of the first respondent. When the court is considering under S. 245 Ss. (1) of the Code of Criminal Procedure, whether any case has been made out against the accused which if unrebutted would warrant his conviction it is difficult to understand as to how the court can brush aside the presumption under S. 4 of the Prevention of Corruption Act, 1947. Sub-section (1) of S. 4 of that Act provides that where in any trial of an offencepunishable under S. 161 or S. 165 of the Indian Penal Code or of an offence referred to in clause (a) or clause (b) of Ss. (1) of S. 5 of that Act it is proved that an accused has accepted or obtained or has agreed to accept or admitted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or admitted to obtain, that gretification or that valuable thing as a motive or reward such as is mentioned in S. 161 or as the case may be, without consideration or for a consideration which he knows to be inadequate. When the court is called upon to consider whether a charge should be framed or not the question to which the court has to address itself is whether the evidence led on behalf of the prosecution is such that if unrebutted it would justify the conviction of the accused and the court has, therefore, to examine the evidence as it stands without rebuttal and come to a conclusionwhether on the basis of such evidence the court would convict the accusedand where the offence charged against the accused is under S. 161 orSection 165 or clause (a) or clause (b) of Ss. (1) of S. 5 the court must necessarily apply the presumption under S. 4 while considering whether on the basis of the unrebutted evidence which is before it the court would convict the accused. We do not therefore see any substance in the contention raised on behalf of the first respondent and we must proceed to dispose of this appeal on the basis that even for the purpose of considering whether a charge should beframed or not the presumption under S. 4 must be taken into account. The second point on which considerable controversy was raised before us related to the scope and ambit of S. 165 of the Indian Penal Code. I agree with my learned brother that it may not be desirable at this stage to define the precise ambit and coverage of S. 165 because that is a matter which will have to be considered by the High court in depth when the case goes back before the High court and the first respondent is called upon to face his trial on the charges framed against him. But it is necessary to indicate the broad parameters of S. 165 and to emphasise the basic distinction which exist between that S. and S. 161. It may be pointed out straightway that these two S. have been enacted by the legislature with a view to eradicating corruption in public life. We may usefully quote here the following pertinent observations made by this court in In Re Special courts Bill which came by way of Presidential Reference As I read it, this measure is the embryonic expression of a necessitous legislative project, which, if full-fledged, will work a relentless breakthrough towards catching, through the compulsive criminal process, the higher inhabitants of Indian public and political decks, who have,in practice, remained 'untouchable' and 'unapproachable' to the rule oflaw. 'Operation Clean-Up' is a 'consummation devoutly to be wished',although naive optimism cannot obfuscate the obnoxious experiencethat laws made in terrorem against those who belong to the top powerbloc prove in action to be paper tigers. The pathology of our publiclaw, with its class slant, is that an unmincing ombudsman or sentinel onthe qui vive with power to act against those in power, now or before, andoffering legal access to the informed citizen to complain with immunitydoes not exist, despite all the bruited umbrage of political performersagainst peculations and perversions by higher echelons. Law is what lawdoes, not what law says and the moral gap between word and deed menacespeople's faith in life and law. And then, the tragedy-democracy becomesa casualty. 107 The impact of 'summit' crimes in the Third World settingis more terrible than the Watergate syndrome as perceptive social scientists have unmasked. Corruption and repression-cousins in such situations-hijack developmental processes. And, in the long run, lagging national progress means ebbing people's confidence in constitutional means to social justice. And so, to track down and give short shrift to these heavyweight criminaloids who often mislead the people by public moral weight-lifting and multipoint manifestos is an urgent legislative mission partially undertaken by the Bill under discussion. To punish such super-offenders in top positions, sealing off legalistic escape routes and dilatory strategies and bringing them to justice with high speed and early finality, is a desideratum voiced in vain by Commissions and Committees in the past and is a dimension of the dynamics of the Rule of Law. The court must therefore interpret S. 165 according to its plain language without in any manner being anxious or astute to narrow down its interpretation. S. 165 must be construed in a manner which would advance the remedy and suppress the mischief which is intended to be curbed. This was the canon of construction which was adopted by this court in interpreting S. 165 in R. G. Jacob v. Union of India. There are a few decisions of ancient vintage which have dealt with the interpretation of S. 165 but since we are not finally laying down the true scope and ambit of S. 165 we do not propose to discuss these decisions. Suffice it to point out at the present stage that on its plain terms S. 165 is wider than S. 161 and that an act of corruption not falling within S. 161 may yet come within the wide terms of S. 165. What S. 161 envisages is that any gratification other than legal remuneration should have been accepted or obtained or agreed to be accepted or attempted to be obtained by the accused for himself or for any other person as a motive or reward for doing or forbear ing to do any official act or for showing or forbearing to show. in the exercise of his official function, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, while S. 165 does not require taking of gratification as a motive or reward for any specific official action, favour or service but strikes at obtaining by a public servant of any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been orto be or likely to be concerned in any proceeding or business transacted orabout to be transacted by such public servant or having any connection withthe official functions of himself or of any public servant to whom he is subordinate or from whom any person whom he knows to be interested in orrelated to the person so concerned. Whereas under S. 161 it is necessary to establish that the taking of gratification must be connected with any specific official action, favour or service by way of motive or reward, no such connection is necessary to be proved in order to bring home an offence under S. 165 and all that is necessary to establish is that a valuable thing is accepted or obtained or agreed to be accepted or attempted to be obtained by a public servant from any person whom he knows to have been or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant or having any connection with the official function of such public servant and such valuable thing has been accepted or obtained or agreed to be accepted or attempted to be obtained without consideration or for a consideration which such public servant knows to be inadequate. The reach of S. 165 is definitely wider than that of S. 161. Moreover, it is clear from illustration (v) to S. 165 that money or currency is regardedby the legislature as a valuable thing and if it is accepted or obtained by a public servant without consideration or for inadequate consideration in the circumstances set out in S. 165, such public servant would be guilty of an offence under that section. Having said this much on the interpretation of. S. 165 we now proceed to examine the facts on the basis of which the High court has declined to frame certain charges against the first respondent. We will first deal with the 35th, 36th and 37th of the draft charges which were submitted by the learned counsel for the appellant before the High court and on the basis of which the High court was invited by him to frame charges against the first respondent. These charges related to a transaction in which according to the appellant, a sum of Rs. 8 lakhs was paid by one Ramesh Merchant and his partners by way of contribution to Indira Gandhi Pratibha Pratishthan on 16/04/1981 as a motive for the granting of no objection certificate by the first respondent for letting out of certain premises by M/s Nanubhai Jewellers of which Ramesh Merchant and some others were partners to Indo-Suez Bank. The facts giving rise to these charges insofar as relevant may be briefly stated as follows.
(3.) THERE was a firm called M/s Nanubhai Jewellers which was in possession of certain ground floor premises situate at 113/115, Mahatma Gandhi Road, Fort, Bombay as a tenant. THERE were various changes in the constitution of this firm from time to time but we are not concerned with these changes in the present appeal. What is material to note is that at the relevant time this firm consisted of Mukesh Dadlani, Lal Chand Rohra, Ramesh Merchant, his father and two other partners. The rent payable by this firm was originally Rs. 3,000.00 per month but under a new agreement of lease dated 27/09/1979 the rent was raised to Rs. 15,000.00 per month in consideration of the landlords giving to the tenant power to sub-let the premises. It seems that since 1979-80 this firm was incurring losses and was not in a position to make use of the premises for its own purposes and hence it decided to sublet the entire premises barring about 500 sq. ft. to Indo-Suez Bank at a monthly rent of Rs. 1,24,120.00 and an agreement of lease was entered into between them on 12/12/1980. But it was not possible for this firm to sub-let the premises to Indo-Suez Bank without a no objection certificate from the Controller of Accommodation in view of the Bombay Land Requisition Act, 1948. The partners of this firm therefore made an application to the Controller of Accommodation on 13/01/1981 pointing out that the Indo-Suez Bank had approached them with a request to allow them to use the premises for the purpose of opening their branch office in Bombay and that it would be advantageous to the country to make it possible for the Indo-Suez Bank to open a branch office and requesting the Controller of Accommodation "to grant the necessary permission.... to permit the Bank to use the premises on sublease basis". Though this application was dated 13/01/1981, it appears from the endorsement made on the application that it was received in the office of the Controller of Accommodation on 11/02/1981. THEREafter, on 19/02/1981 an officer from the office of the Controller of Accommodation visited the premises and certain documents relating to the partnership of M/s Nanubhai Jewellers were handed over by Lal Chand Rohra and the father of Ramesh Merchant to such officer. They also handed over to such officer copies of the rent receipts for November, 1973 and November, 1980 as also also a xerox copy of the registration certificate of the firm under the Bombay Shops and Establishments Act. Ramesh Merchant several .times went to the office of the Controller of Accommodation for no objection certificate but he was told that the application was under process. Now the record shows that on 14/02/1981 a noting was made in the file seeking a direction whether suppressed vacancy inquiry should be made to ascertain whether the premises could be requisitioned as a suppressed vacancy or whether the no objection certificate should be granted. Further inquiry was thereupon madefor the purpose of determining whether there was a suppressed vacancy inrespect of the premises and after such inquiry was completed a furthernoting was made on 2/03/1981 recommending that in view of the facts setout in that noting "it is for orders whether we may consider the request andgrant" the no objection certificate in this case. Shri Rawat, who was anAccommodation Officer, made an endorsement on the foot of his furthernoting pointing out that according to the inquiry made by the office no vacancy had actually occurred at any time in the premises and there was accordingly no suppressed vacancy and moreover only a part of the premises was proposed to be sub-let by the firm of M/s Nanubhai Jewellers and hence the premises could not be requisitioned as a suppressed vacancy and consequently no objection certificate might be granted. The file containing these notings thereafter went to the Additional Chief secretary who also placed his signature below that of Shri Rawat indicating his agreement with the endorsement made by Shri Rawat. The date below the signature of the Additional Chief secretary is a little doubtful but we can safely take it to be 2/03/1981 since there is an endorsement at the bottom of the page showing that the file was received in the Secretariat of Chief secretary on 12/03/1981 and obviously it must have gone to the Secretariat to the Chief Minister after making of the endorsement by the Additional Chief secretary. The page of the file containing the endorsement of Shri Rawat also contains in red ink an endorsement made by the first respondent and this endorsement reads "in view of 'A', 'B' may be done" and below this endorsement is the signature of the first respondent and below that is the date which presently reads 16/3. We shall revert to this endorsement of the first respondent a little later when we examine the arguments urged on behalf of the parties. Now according to the evidence of Ramesh Merchant he came to know from the staff of the office of the Controller of Accommodation in the first week of April, 1981 that file relating to their application for no objection certificate had been forwarded to the first respondent. Ramesh Merchant knew the first respondent quite well since he and his father had been stitching clothes for the first respondent. Ramesh Merchant therefore, after consulting his partners, went to the residence of the first respondent a day or two after he received the above information that the file had been forwarded to the first respondent. Ramesh Merchant stated in his evidence that he told the first respondent about the application for permission made on behalf of the firm of M/s Nanubhai Jewellers and requested the first respondent to sanction grant of no objection certificate stating that he and his father were partners in that firm. The first respondent stated that he knew that the file of the firm of M/s Nanubhai Jewellers had been forwarded to him and that if the pemises were to be given to a Bank there could be no objection to grant of a no objection certificate. The first respondent, however, asked Ramesh Merchant "to make a handsome donation to the Indira Gandhi Pratibha Pratishthan" and when Ramesh Merchant asked the first respondent as to how much he would like them to donate, the first respondent asked Ramesh Merchant to donate Rs. 10 lakhs. Ramesh Merchant thereupon pointed out to the first respondent that there was a registered agreement between the government of India and the government of France whereunder the government of France had permitted the State Bank of India to open its branch at Paris and the government of India had consequently permitted Indo-Suez Bank to open its branch at Bombay and he accordingly requested the first respondent "to name a reasonable amount for donation". The first respondent, according to the evidence of Ramesh Merchant considered his request sympathetically and asked him to donate Rs. 8 lakhs. Ramesh Merchant thereupon told the first respondent that he would consult his other partners and let him know. Ramesh Merchant thereafter contacted Lal Chand Rohra and other partners and told them that he had met the first respondent in connection with the grant of no objection certificate and the first respondent had demanded Rs. 10 lakhs for the no objection certificate but it was ultimately agreed that the firm of M/s Nanubhai Jewellers would pay Rs. 8 lakhs by way of donation to a government Trust namely Indira Gandhi Pratibha Pratishthan. Lal Chand Rohraand other parties agreed to donate the amount of Rs. 8 lakhs to Indira GandhiPratibha Pratishthan and a cheque for Rs. 8 lakhs was accordingly issued by thepartners of the firm of M/s Nanubhai Jewellers. Ramesh Merchant took thischeque to the first respondent at his residence on April 16, 1981 and on beinginformed that a cheque had been brought the first respondent called one ofhis secretaries and asked Ramesh Merchant to hand over the cheque to him.Ramesh Merchant accordingly handed over the cheque for Rs. 8 lakhs to theSecretary. Ramesh Merchant was at this stage in his evidence asked thefollowing question by the learned counsel appearing on behalf of the appellant : What did the accused tell you about the NOC ? and to this questionthe following answer was given by Ramesh Merchant: The accused told me that the needful would be done in the matter.Ramesh Merchant reiterated in cross-examination by the learned counselappearing on behalf of the first respondent : After I handed over the cheque the accused stated that he will dothe needful in the matter. The no objection certificate was thereafter issued by the office of the Controllerof Accommodation on 18/04/1981. On these facts the learned counselappearing on behalf of the appellant submitted that offences under S. 161,165 of the Indian Penal Code and S. 5(2) read with S. 5(l)(d) of thePrevention of Corruption Act, 1947 were clearly made out on behalf of theprosecution so as to warrant the framing of charges for the said offences againstthe first respondent.;