D. KRISHNAMOORTHY Vs. STATE BY SPECIAL POLICE ESTABLISHMENT, C.B.I. MADRAS

JUDGEMENT

(1.) THIS revision is directed by the accused in C.C.No.2 of 1985, on the file of the Ninth Additional Special Judge, Madras, against the framing of the following charges by the trial Court : -

(2.) THE facts lending to the framing of the afore -mentioned two charges against the petitioner are as follows: - One Dakshinamurthi gave a complaint to the Superintendent of Police, C.B.I. Madras -6 on 25.6.1984 to the effect that he has studied upto S.S.1.C. and was without permanent employment, that he came to know that one Krishnamurthi/accused/petitioner herein, who is employed as Gang Maistry in Arkonam, is securing employment as Gang -man and approached him in his house at Arakonam on 25.6.1984 seeking his help to secure a job to which he replied that to secure a job as Gangman, he must have worked as temporary Kalasi in the Madras Division and that he will prepare a forged Casual Labour Service Card in the name of the complainant so that he can, with the help of the forged Casual Labour Service Card, register his name in the Madras Division Office' and could secure job as Gangman. For preparing bogus Casual Labour Service Card the complainant was asked to pay the petitioner a sum of Rs. 700/ - The petitioner asked him to bring Rs. 700/ - to his house on 25.6.1984. Since he was not willing to pay bribe, he has given the complaint.

(3.) LEARNED counsel for the petitioner submitted that on the statements of witnesses what is made out is, that the petitioner, has demanded a sum of Rs. 700/ - from the complainant as bribe for his issuing a forged Casual Labour Service Card, which can be used by the complainant to register his name in the Southern Railway, Madras Division and secure job as a Gangman. He then submitted that issue of forged Casual Labour Service Card can be done by anybody and not necessarily by a public servant and further, it is not the duty of the petitioner, as a Gang Maistry, to issue Casual Labour Service Card and therefore, even if the prosecution case is accepted, what the petitioner has done is not an official or as a public servant but only in his individual capacity and as such, it will not constitute an offence punishable under Section 161 of the Indian Penal Code or Section 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act and in order to constitute the aforesaid offence, the act alleged against an accused person should be as a public servant. In the circumstances, no charge can be framed against the petitioner on the materials for the aforesaid offences and the learned Special Judge cannot take cognizance of any offence like forgery independent of the two offences mentioned above falling under section 6(a) of the Criminal Law (Amendment) Act, though he can try for any other offence while trying for an offence falling under section 6(a) of the Criminal Law (Amendment) Act. The learned counsel for the petitioner cited the following decisions in support of his contention: - 1) Bhupesh Das Gupta v. State of Tripura ( : A.I.R. 1978 S.C. 1672 : 1979'(1) S.C.R. 906) 2) J.RamakrishnaRao v. State (1981 M.1.J. (Crl) 104) 3) Ram Dulare Yadav v. State of Uttar Pradesh ( : 1971 Cri.LJ. 983) 4) The State of Gujarat v. Manshankar Prabhashankar Dwivedi ( : 1972 Cri.L.J. 1247 : 1973 (2) S.C J. 211): 5) the unreported decision of the Court in S.S.TIiiagarajan v. State (W.P.No.179 of 1979 dated 25.2.1983): and 6) V.G.Bdlasubramanian v. State by Special Police Establishment C.B.I. Madras ( : 1988 L.W. (Crl) 400 ).