JUDGMENT
Ramabhadran, J.C.
1. The appellant was tried by the Special Judge, Mandi, of an offence under Section 5(2), Prevention of Corruption Act, 1947, and, in the alternative, of an offence under Section 161, I. P. C. The learned Judge found him guilty of the latter offence and sentenced him to imprisonment till the rising of the Court and to pay a fine of Rs. 300/-; in default three months’ rigorous imprisonment.
2. The prosecution case was as follows: The appellant was employed in April 1952 as Reader to Sri G. M. Laul, Magistrate first class, Mandi. One Nag Singh (P. W. 4) was convicted by the said Magistrate on 23-4-1952 of an offence under Section 309, I. P. C. He was released under Section 562, Criminal P. C., on furnishing surety to be of good behaviour. The necessary surety bonds were filled in by Nag Singh the same day and presented to the Reader. But the latter, it is alleged, created obstruction in the way of their attestation, demanded mithai (illegal gratification) from Nag Singh and asked him to come the next day. On the following day, i.e., on 24-4-1952, the appellant persisted in asking for mithai. Thereupon, Nag Singh approached Sri Parkash Chand, Magistrate first class, Mandi, and complained to him against the appellant.
Thereupon, Sri Parkash Chand signed two one rupee notes, Exs. P. 1 and P. 2, and gave them to Nag Singh with instructions to hand them over to the appellant. Accordingly, Nag Singh went to Sri G. M. Laul’s Court and called the appellant, who came out. . Both went down the stairs and, ‘* is alleged, that at a spot near the drain, Nag Singh made over the marked currency notes to the appellant, who placed them inside his pocket. Appellant then went back to the Court room and called Nag Singh for the attestation of the surety bonds. At this juncture, Sri Parkash Chand came to Sri G. M. Laul’s Court-room and, with the permission of the Magistrate, took the appellant outside. There, in the presence of the A. S. I. Mohan Singh and the search witness, Lal Singh, the Magistrate recovered the two one rupee notes from the possession of the appellant. The appellant was then arrested and sent to the police with a report by the Magistrate.
3. The appellant denied having demanded any illegal gratification from Nag Singh, or having received the two one rupee notes in question. He also denied the recovery of these notes from his coat pocket. He alleged enmity with Sri C. P. Mehta, H. V. C., and Sri Sagar, P. S. I. Two defence witnesses were produced.
4. The learned Judge, on a review of the evidence, found that the appellant did demand and take the two one rupee notes as illegal gratification and, accordingly, convicted him under Section 161, I. P. C. Hence, this appeal.
5. I have heard learned counsel for the parties at great length.
6. The following points arise for determination in this case: (1) Whether the appellant accepted the two one rupee notes From Nag Singh? (2) If so, whether he accepted the notes as a motive or reward for doing any official act, or for showing favour to Nag Singh. (3) Whether the sentence inflicted upon the appellant is excessive.
7. As far as the first point is concerned, it is not disputed that, on 23-4-1952, Nag Singh (P. W. 4) was convicted by Sri. G. N. Laul, Magistrate, first class, of an offence under Section 309, I. P. C. and was released, as a first offender, under the provisions of Section 562, Criminal P. C. The surety bond, Ex. P. 3/1, was written out the same day and presented
to the appellant. There is, however, a divergence between the prosecution and the defence as to what happened subsequently. According to the prosecu tion, the appellant asked for mithai, put off the attestation of the bond and asked Nag Singh to come the next day.
The appellant’s contention, however, is that the verification at the back of the bond was completed by him on the same day (23-4-1952) and the Magistrate appended his signature then and there. The Magistrate, Sri G. M. Laul (P. W. 7), stated that he had signed the attestation on 23-4-1952, because that date is given at the foot of the attestation. He was unable, however, to say, with certainty, that he had appended his signatures on that day. From the statement of Shiv Kumar, Ahalmad (P. W. 6), however, it would appear that the appellant gave him the file relating to Nag Singh’s case on 23-4-1952 after 4 P. M. He made the necessary entries in the register and took it to the recordloom on the following day at 11 A. M. and gave it to Mohan Lal, Assistant Record-Keeper (P. W. 3). An hour later, Mohan La] called him and pointed out that the surety bond, which was entered in the index, was not to be found in the file. Shiv Kumar then told him, that the surety bond was lying on the Magistrate’s table.
This is corroborated by the statement of Mohan Lal (P. W. 3), Record-Keeper. This is also supported by the statement of Sri Laul that on 23rd April, he had directed Nag Singh to satisfy him about the status and financial condition of the surety. Din Dayal (P. W. 8) was called by the surety, Bhagwant, to the Court of Sri G. M. Laul to verify his status. The appellant asked Bhagwant and the witness to wait outside. Witness was again called by Bhagwant to Sri Laul’s Court, but, by the time he reached the Court-room, the Magistrate had risen for the day. Under these circumstances, I concur with the view of the trial Judge that the bond had not been finally accepted on 23rd April.
8. Nag Singh’s allegation is that the appellant demanded mithai and put off the attestation of the bond. Nag Singh replied that he was a poor man and had no money. It was when the appellant again asked for illegal gratification that Nag Singh approached Sri Parkash Chand, Magistrate first class, and the latter arranged for the trap. Sri Parkash Chand took the precaution of noting the numbers of the two notes on Ex. P. B and signing the notes themselves. As to the factum of recovery of these notes from the coat pocket of the appellant, there is plenty of evidence. On this point, we have the testimony, not only of Sri Parkash Chand, Magistrate, but also those of Mohan Singh, A. S. I. and Lal Singh, witness. The mere denial on the part of the appellant to the effect that these notes were not recovered from his coat pocket is not sufficient to rebut the prosecution evidence on this point.
9. It was urged by learned counsel for the appellant that the search was illegal. Learned counsel argued that the search was not sanctioned by any law and, in this connection, reference was made to–‘Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1954 SC 322 (A), wherein their Lordships of the Supreme Court observed as follows:
“It may be that the detection of corruption may some times call for the laying of traps, but there is no justification for the police authorities to bring about the taking of a bribe by supplying the bribe money to the bribe-giver where he has neither got it nor has the capacity to find it for himself. It is the duty of the police authorities to prevent crimes being committed. It is no part of their business to provide the instruments of the offence.
The Magistrate should not be employed by the police as witnesses of police traps. The independence of the judiciary is a priceless treasure to be cherished and safeguarded at all costs against predatory activtities of this character and it is of the essence that public confidence in the independence of the judiciary should not be undermined by any such tactics adopted by the executive authorities.”
10. The learned Government Advocate pointed out that there was nothing illegal in the search. Under Section 96, Criminal P. C., the Magistrate had power to issue a search warrant under certain circumstances. It is true, in Section 96 the expression used is Court and not Magistrate. In–‘Lottus Otway Clarke v. Brojendra Kishore Roy’, 13 Cri LT
693 (PC) (B), however, it was observed by their Lordships of the Privy Council that in the Criminal Procedure Code the terms “Court” and “Magistrate” are jointly used as convertible terms. Further, in
— ‘Municipal Committee, Jhang v. Muhammad Hayat’, AIR 1914 Lah 587 (C), a single Judge of that High Court pointed out that:
“Under section 96, Criminal P. C., a Magistrate is competent to issue a search warrant for documents in possession of the accused, and such documents can, after production, be inspected by the prosecution or by any experts appointed by the Court in this behalf.”
“The words ‘a person’ in Ss. 94 and 96, Criminal P. C., include the person accused in the case and the words ‘documents or thing’ in the sections are general and cover any document the production or inspection of which is ‘necessary or desirable or will serve the ends of justice’. There is nothing in the sections to limit their provisions to the finding of such documents or things only in respect of which the alleged offence may have been committed.’
My attention was also invited to the provisions of Section 105, Criminal P. C., according to which, any Magistrate may direct a search to be made in his presence at any place, for the search of which he is competent to issue a search warant. Under these circumstances, it is urged on behalf of the respondent and in my opinion not without justification, that the search was perfectly legal. As an alternate argument, learned Government Advocate urged that even if we assume for the sake of argument, that the search was irregular, it would make no difference to the guilt of the appellant. Reliance was placed, in this connection, on–‘Rure Mal v. Emperor’, AIR 1929 All 937 (D), where it was held that:
“Any irregularity or illegality in the search can neither vitiate the trial nor, affect the conviction of the accused where the accused has not been prejudiced by the defect.”
A similar view was held by the Rangoon High Court in–‘San Myin Mg. v. Emperor’, AIR 1930 Rang 49 (E), where Baguley J., observed that:
“Although a search made in person’s house may be illegal rendering the person who made the search liable to be sued for damages, still if some property is found, possession of which is an offence the person in unlawful possession is liable to be convicted.”
In my view, it is not necessary, to dilate any further on this point because the search was perfectly valid and legal.
11. As regards the reference to AIR 1954 SC 322 (A), I may point out that in the present case the trap was laid by the Magistrate himself. The police knew nothing about it and they appeared on the scene only after the notes had been tendered and actually accepted by the appellant. It cannot, therefore, be said that the Magistrate (Sri
Parkash Chand) allowed himself to be employed by the police as a witness for the trap.
12. In view of what has been said above, it is proved, beyond all reasonable doubt, that the two notes, Exs. P. 1 and P. 2, were accepted by the appellant and were recovered from his coat pocket.
13. One other argument raised on behalf of the appellant was that the criminal intent necessary to constitute an offence under Section 161, I. P. C., does not exist in the present case, i.e., it is urged that the appellant did not accept the notes as a motive or reward for doing any Official act or for showing any favour to Nag Singh. This contention also, in my opinion, must fail. As already shown, the appellant put off the attestation of the surety bond, Ex. P. 3/1, and asked Nag Singh to come on the following day and, in the meantime, asked for mithai. No enmity between the appellant On the one side, and Nag Singh on the otner was alleged. Why Nag Singh should take into his head to go and make a false complaint to Sri Parkash Chand–assuming that the whole case was concocted–remains a mystery. The appellant pleaded enmity with Sri Sagar, P. S. I., and Sri C. P. Mehta, H. V. C. This plea takes it for granted that Sri Parkash Chand, Magistrate, allowed himself to be made a tool by these two persons. There is nothing on the record to justify such inference, nor was the alleged enmity proved.
The defence witnesses produced by the appellant do not say anything at all, regarding this matter. I am unable to accept the statement of Ikadasu (D. W. 2) to the effect that A. S. I. Mohan Singh did not get himself searched and the search memo, was not prepared at the spot. A. S. I. Mohan Singh has clearly stated that he had offered himself to be searched by the appellant and the latter satisfied himself by touching his pockets. He has also stated that the search memo, Ex. P. C. was prepared on the spot and on this point he is corroborated by Sri Parkash Chand and Lal Singh (P. W. 2). I would, therefore, hold that the appellant demanded the money from Nag Singh as a reward for having attested the surety bond. Therefore, the motive or reward is apparent. The learned trial Judge has also rightly pointed out that under Section 4, Prevention of Corruption Act, the Court must presume that the appellant, under the circumstances, accepted the money as a motive or reward as contemplated under Section 161, I. P. C. As was pointed out in–‘Mahfuz Ali v. The State’, AIR 1953 All 110 (F):
“The presumption available under Section 4 is not confined to those cases only where the accused is, in fact, charged under Section 161, Penal Code, but it is also available in cases, where the accused is charged under some other section where the gravamen of the charge is the same as that under Section 161, Penal Code.”
The learned Government Advocate also drew my attention to –‘Indur Dayal’ Das v. State of Bombay’, AIR 1952 Bom 58. (G), wherein a Division Bench of that High Court observed that:
“From the last explanation to the section, it is clear that it is not necessary in order to constitute an offence under Section 161 that the act for doing which the bribe is given should actually be performed. It is sufficient if a representation is made that it has been or that it will be performed and a public servant, who obtains a bribe by making such representation, will be guilty of the offence punishable under this section, even if he had or has no intention to perform and has not performed or does not actually perform that act. A representation by a person that he has done or that he will do an act impliedly includes a representation that it was or is within his power to do that act.”
14. To sum up, therefore, it is clearly proved that the appellant demanded and accepted a sum of Rs. 2/- from Nag Singh as a motive or reward for attesting the bail bond, Ex. P. 3/1.
15. The trial Judge sentenced the appellant to undergo imprisonment till the rising of the Court and to pay a line of Rs. 300/-; in default three months’ K. I. It was brought to my notice that the appellant has put in 29 years of service and is about 50 years of age. At the time the offence was committed, he was drawing Rs. 93/- per month., including dearness allowance. As a result of his conviction, he has been dismissed from the service. He also forfeited his right to pension. The learned judge considered that a severe punishment was not called for as, in his opinion, the appellant had been happed into the commission of this offence. I do not quite agree with the view taken by the trial judge on this point but, considering that the appellant has been dismissed and has forfeited his right to pension and bearing in mind his long record of service, I would reduce the fine to Rs. 50/- and maintain the sentence of imprisonment till the rising of the Court.
ORDER
16. The conviction of the appellant of the offence under Section 161, I. P. C., is maintained and so is the sentence of imprisonment till the rising of the Court. The sentence of fine is reduced from Rs. 300/- to Rs. 50/- in default one month’s R. I. Fine, in excess of Rs. 50/- realised from the appellant, shall be refunded to him. Subject to these modifications, the appeal is rejected.
