- (1.) NIHALCHAND has been convicted under sec. 161 of the Indian Penal Code and sec. 5 (2) read with sec. 5 (l) (d) of the Prevention of Corruption Act and sentenced to one year's rigorous imprisonment under the first count and two years' rigorous imprisonment and a fine of Rs. 1,000/- under the second count by the learned Special Judge, Alwar vide his judgment dated 29th September, 1963 against which the present appeal has been filed by NIHALCHAND.
(2.) THE following facts of the prosecution case are not in dispute. Sardar Singh (P. W. 4) and five other persons were detained at the Police Out Post Akbarpur on 28th January, 1964 under a plea that they shall be prosecuted under sec. 55/109 of the Code of Criminal Procedure by the Head Constable incharge of the Police Out Post, Shri Jaipal Singh. It is said that Nihalchand who was a literate constable of that Out Post was also there. THE detained persons requested the police officers that they were proceeding to their village Alapur but no heed was paid by the police officers to their request. Ultimately it was so decided that Sardarsingh should be allowed to go to village Alapur to bring his brother Laxman Singh (P. W. 1) to the Police Out Post. Sardarsingh was consequently allowed to leave the Police Out Post and he went to Alapur and brought Laxmansingh with him. THE prosecution case further is that Jaipalsingh then demanded Rs. 400/-from Laxmansingh as bribe for releasing the detained persons. It is alleged that after some higgling the matter was settled at Rs. 200/ -. Laxmansingh told the Police Officers that at that moment he had no money with him and that he would pay the same after two days. On this undertaking given by Laxmansingh the detained persons were allowed to go. Laxmansingh was not willing to bribe the Police officer and therefore he made an approach to Shri Ishwardutt, Deputy Superintendent of Police, Anti Corruption Department, Jaipur where he submitted a written report (Ex. P. 1) and gave twenty currency notes of ten rupees each to enable Shri Ishwardutt to lay a trap. A trap was arranged and the two motbir witnesses Latkansingh (P. W. 2) and Guruduttsingh (P. W. 3) were called by the Dy. Superintendent of Police and a memo for putting initials or the currency notes and handing them over to Laxmansingh to be given to the Police Officers was prepared. On the 31st of January, 1964 Laxmansingh with the police party and the motbirs went to village Akbarpur and, it is said, Nihalchand accused met Laxmansingh at the bus stand of Akbarpur. Nihalchand asked Laxmansingh as to what happened to the settlement that was entered into between him and the complainant on the 28th of January, 1964. THEreupon Laxmansingh passed on the initialled notes of Rs. 200/- to Nihalchand and gave a signal to the Dy. Superintendent of Police who was standing near about the bus stand. Shri Ishwardutt then asked Nihalchand to hand over the bribe money that he had taken from Laxmansingh and it is said that he handed over the notes from the pocket of his coat to the Dy. Superintendent of Police for which another memo was prepared by him. After investigation the accused was challaned in the court of the Special Judge to be tried under sec. 161 of the Indian Penal Code and under sec. 5 (2) of the Prevention of Corruption Act. Accused Nihalchand accepted the fact of receiving the money from Laxmansingh but pleaded that the money was given to him for purchasing a cycle from the shop of his brother at Alwar. THE learned judge after the trial found that the onus which lay on the accused under sec. 4 of the Prevention of Corruption Act was not properly discharged by him and therefore he convicted him for offences referred to above. The only question that has been raised in this appeal by the learned counsel for the appellant is that the trial is vitiated because of the defective sanction accorded by the Superintendent of Police to prosecute the appellant. The defect, according to the learned counsel for the appellant, is that the sanction was accorded in respect of a transaction of taking money from the complainant by the accused on 31st March, 1964, whereas this incident had occurred on 31st January, 1964 for which, according to the learned counsel, no sanction was at all accorded by the sanctioning authority. The second question that has been raised is that the accused appellant has been illegally sentenced for both the offences namely, sec. 161 of the Indian Penal Code and sec. 5 (2) of the Prevention of Corruption Act. As these offences, according to him, arise out of one transaction, therefore according to the provisions of sec. 26 of the General Clauses Act the offender could be punished only for either of these two offences and not for both. As regards the first objection it will be relevant to quote verbatim the order of sanction passed by the Superintendent of Police, Alwar District. The letter of sanction reads as follows : "sanction FOR PROSECUTION Whereas it has been brought to my notice that Shri Nihalchand L. C. No. 529 of O. P. Akbarpur demanded Rs. 400/ from Shri Lax-mansingh s/o Bag Singh r/o Alapura on 28. 1. 64 for forebearing to take action u/s 55/109 Cr. P. C. against his brothers and relatives S/shri Kartarsingh, Arjunsingh, Lal singh and others. At the instance of Shri Laxmansingh, Shri Nihal chand lowered his demand from Rs. 400/ to Rs. 200 Shri Nihal chand accepted this amount of Rs. 200/ from Shri Laxmansingh as illegal gratification for the aforesaid motive on 31. 3. 64 at a tea stall at village Alapura. Shri Nihalchand obtained and accepted this amount of Rs. 200/-by corrupt or illegal means or by otherwise abusing his position as a public servant as a motive & reward for not taking action u/s. 55/109 Cr. P. C. against the aforesaid persons S/shri Kartarsingh and others. The amount of Rs. 200 so accepted by Shri Nihalchand as illegal gratification from Shri Laxmansingh was also recovered at the spot from the possession of the said Shri Nihalchand in the presence of Motbirs; and Whereas it has also been brought to my notice that the said Shri Nihalchand L. C. had on previous occasion accepted rupees seven only from Shri Prabhatilal on 5. 1. 64 as illegal gratification for not taking action against his wife on the report of theft of Pala lodged by Shri Deela Mal Singhi, and Whereas from the perusal of the facts and evidence on record of case No. 11/64 of the Anti Corruption Department, I am Satisfied the Shri Nihalchand L. C. has committed offence under section 161 IPC and under sec. 5 (1) (d) of the Prevention of Corruption Act, 1947. Now, therefore, in pursuance of sec. 6 of the Prevention of Corruption Act, 1947 I being the competent authority to remove Shri Nihalchand L. C. from his office do hereby accord sanction for the prosecution of the said Shri Nihalchand for the aforesaid offences in a court of competent jurisdiction. Sd/- 21. 7. 64 Superintendent of Police, Alwar District" This letter shows that the sanction was accorded by the sanctioning authority about taking of Rs. 200/ from Laxmansingh by Nihalchand for forebearing to take action under sec. 55/109 Cr. P. G. against Sardarsingh and others who were detained by the police authorities at Akbarpur out post on 28th January, 1964. It is also mentioned in this letter that first of all a demand of Rs. 400/ was made from Laxmansingh for that purpose but later on the demand was lowered to Rs. 200/. There is no doubt that the date for taking the money as mentioned in the order is 31st March, 1964 but the fact constituting the offence as mentioned in the said order leave no room for doubt that section relates to the present incident of taking money by Nihalchand on 31st January, 1964. It so appears that 31st March, 1964 has been wrongly typed in the order of sanction. This is nothing but a trivial typing error and such a trivial error cannot go to vitiate the sanction. In my opinion the sanction is valid and therefore I do not find any force in the argument raised by the learned counsel for the appellant. In support of his second objection that awarding of sentence both under secs. 161 IPC and 5 (2) of the Prevention of Corruption Act is illegal, reliance has been placed on Lohana Kantilal vs. State (l ). Sec. 26 of the General Glauses Act no doubt lays down that where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted under either or any of those enactments, but shall not be liable to be punished twice for the same offence. In the present case the accused appellant has been found guilty for taking Rs. 200/- as illegal gratification for forebearing to do something which he ought to have done and therefore he has been convicted both under sec. 161 IPC and sec. 5 (2) of the Prevention of Corruption Act. His conviction under the provisions of Indian Penal Code and the Prevention of Corruption Act is, however, permissible under the provisions of sec. 26 of the General Clauses Act but it specifically prohibits awarding of sentence to the offender for both these offences if they arise out of the same transaction and therefore sentences awarded for both the offences are not legal. The court could award sentence for any one of the aforesaid offences. This view finds support from the Saurashtra authority cited before me. In this view of the matter sentences for any one of the two offences awarded by the trial Judge shall have to be set aside. Learned counsel for the appellant urged that in this case the main culprit was Jaipalsingh who was incharge of the Akbarpur Police Out Post and who had detained Sardar Singh and others and it was he who had settled the bribe with Laxmansingh. The accused, according to him, was responsible only for receiving the money in pursuance of the bargain entered into between Jaipalsingh and Laxmansingh, and therefore lenient view may be taken in the matter of awarding sentence. It may be mentioned that Jaipalsingh has not been prosecuted by the police. From the prosecution evidence it appears that the major part in committing this offence was played by Jaipalsingh. The accused appellant was however present when bribe money was settled with Laxmansingh and in pursuance of that settlement he received the amount. Therefore in the special circumstances of this case I would like to set aside the sentence under sec. 5 (2) of the Prevention of Corruption Act and maintain the sentence passed by the trial judge under sec. 161 of the Indian Penal Code. The appeal is, therefore, partly allowed. Conviction of the appellant under sec. 161 IPC and sec. 5 (2) of the Prevention of Corruption Act is maintained but the sentence of two years' rigorous imprisonment and a fine of Rs. 100/-awarded under sec. 5 (2) of the Prevention of Corruption Act is set aside while the sentence awarded under sec. 161 Indian Penal Code is upheld. .;