TMI Blog1963 (8) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... tsingh (respondent No. 1) who was an officer in the State Transport Corporation at Dhulia would be able to secure a job for Dongarsing provided he was paid money. Consequently, Dongarsing went to Dhulia along with Sheikh Ahmed and met Jagatsingh and it was settled that Dongarsingh would pay ₹ 50.00 as bribe to Jagatsingh for securing the job of a driver. ₹ 25.00 were immediately paid on that very day namely November 25, 1955 and the remaining amount of ₹ 25.00 was paid a fortnight later about December 9, 1955. Dongarsingh was informed sometime at the end of January or beginning of February 1956 that his application for the post of driver had been rejected. He then went to Jagatsingh again and asked him to return the sum of ₹ 50.00 already paid or secure the job for him. Jagatsingh replied that he could not return the money as it had already been paid to other persons but said that if he paid another ₹ 50.00 Jagatsingh might be able to procure the job for him. So another printed form of application was procured by Jagatsingh and Dongarsingh filled it up and gave it to Jagatsingh. By this time however Dongarsingh had become suspicious of the bona fides o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the trial court as to the payment of ₹ 30.00 as bribe to Jagatsingh. The High Court then addressed itself to questions of law raised before it. These questions were : (1) whether Jagatsingh was a public servant within the meaning of s. 21 of the Indian Penal Code read with s. 43 of the Transport Act, and (2) whether the ingredients of s. 161 of the Indian Penal Code with which Jagatsingh had been charged had been proved. The High Court did not decide the first question in the view it took of the second question. Relying on the judgment of this Court in State of Ajmer v. Shivjilal [1959] Su. 2 S.C.R. 739, the High Court held that as there was no averment as to the public servant who was to be approached either in the complaint or in the evidence, it had no option but to confirm the acquittal ordered by the Special Judge in view of Shivjilal's case [1959] Su. 2 S.C.R. 739. As the High Court acquitted Jagatsingh, it held that there could be no case of abetment against Sheikh Ahmed. The State of Maharashtra has come to this Court by special leave against the view taken by the High Court acquitting the two respondents. 5. We shall first deal with the view taken by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be rendered by Shivjilal. It was in these circumstances that this Court held that one of the main ingredients of that part of s. 161 which applied to that case had not been proved. 7. The facts in the present case however are different. It is not in dispute that Jagatsingh was an employ in the very office which would make the appointment of the driver for which job Dongarsing had applied. It is also in evidence that Dongarsing had approached Jagatsingh directly, may be in the company of Sheikh Ahmed, and Jagatsingh had promised to secure a job in his own office for Dongarsing, if he was paid a certain amount. In such a case we are of opinion that another part of s. 161 would apply which (again omitting the unnecessary words) reads as follows :- Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person 8. It is this part of s. 161 which wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if it was taken for doing any official act in that department. The reason therefore that has been given by the High Court acquitting Jagatsingh and in consequence Sheikh Ahmed cannot be upheld. 9. That brings us to the first question which was posed before the High Court and which the High Court did not decide, namely, whether Jagatsingh was a public servant within the meaning of s. 21 of the Indian Penal Code read with s. 43 of the Transport Act. This question was decided by the trial court in favour of Jagatsingh and we think it fit to decide this question ourselves even though we have not had the advantage of the High Court's view in the matter, for we do not think that we should remand the case after this lapse of time for this purpose to the High Court. It is not in dispute that Jagatsingh would not be a public servant under s. 21 as it stood before the amendment by Act 2 of 1958 by which the twelfth clause was added to the section in these terms :- Every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act or of a Government company as defined in section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 409, because the official capacity is material only in connection with the entrustment and does not necessarily enter into the later act of misappropriation or conversion which is the act complained of. This view of the Federal Court was approved by the Privy Council in Gill's case L.R. 75 IndAp 41. 14. We may also refer to two cases of this Court in this connection, namely, Shreekantiah Ramayya Munipalli v. The State of Bombay 1955CriLJ857 and Amrik Singh v. State of Pepsu 1955CriLJ865 . In the first case it was pointed out that s. 197 should not be construed too narrowly, for if that was done it could never be applied as it is no part of an official's duty to commit an offence and never can be. But it was not the duty of an official which had to be examined so much as his act, because an official act could be performed in the discharge of official duty as well as in dereliction of it. In that case misappropriation was facilitated by a public servant allowing certain stores to pass out of the Engineering Depot as Dehu and it was held that sanction was necessary because misappropriation could never have been committed if the official act of passing out the stores had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the language of s. 43 which requires that on officer or servant of a corporation should be acting or purporting to act in pursuance of any of the provisions of the Transport Act or of any other law in order that he may be a public servant within the meaning of s. 21 of the Indian Penal Code. 18. It is urged that in this view all members, officers and servants of a corporation would be free to take bribes and would never be liable to be prosecuted under s. 161 and that this could not have been the intention behind s. 43. It is certainly unfortunate that such a result should follow from the words used in s. 43. But the words are clear and it seems that members, officers and servants of the corporation were intended by the legislature to be public servants only when they were acting or purporting to act in pursuance of the provisions of the Transport Act or of any other law and not otherwise. As taking of bribe cannot under any circumstances be shown to amount to acting or purporting to act in pursuance of any of the provisions of the Transport Act or of any other law, the person taking a bribe cannot be said to be a public servant within the meaning of s. 21 of the Indian Pen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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