Case Note & Summary
This criminal appeal by special leave arose from the acquittal of two respondents in a bribery case under Section 161 of the Indian Penal Code, 1860. The prosecution alleged that Dongarsing, a discharged army truck driver seeking employment, paid money to respondent No.1 Jagatsing, an officer in the State Transport Corporation at Dhulia, through respondent No.2 Sheikh Ahmed, another employee, to secure a driver's job. In November 1955 Dongarsing obtained a printed application form and met Sheikh Ahmed, who introduced him to Jagatsing. They agreed that Dongarsing would pay Rs.50 as illegal gratification; Rs.25 was paid immediately and Rs.25 later. After his application was rejected, Jagatsing demanded another Rs.50, making Dongarsing suspicious. He approached the anti-corruption department, which laid a trap. On February 20, 1956, Dongarsing passed Rs.30 in currency notes treated with anthracene powder to Jagatsing. Police immediately apprehended Jagatsing; powder was found on his fingers and pocket. Both respondents were prosecuted under Section 161 IPC, with Sheikh Ahmed charged for abetment. The trial court found that Jagatsing had factually accepted the bribe but acquitted him holding he was not a public servant under Section 21 IPC read with Section 43 of the Road Transport Corporation Act, 1950. Sheikh Ahmed was acquitted for lack of evidence of abetment, as he was not present at the trap and the alleged letter was not delivered. The State appealed to the Bombay High Court, which did not decide the public servant issue but relied on State of Ajmer v. Shivjilal to hold that because the complaint and evidence did not specify the other public servant to be approached, the ingredient of Section 161 was not proved, and confirmed the acquittals. In the Supreme Court, the State contended that the High Court misinterpreted Shivjilal and that Jagatsing was a public servant. The respondents argued that receiving a bribe could not be within Section 43 of the Transport Act. The Supreme Court first held that the High Court had erred in applying Shivjilal. That case concerned the first part of Section 161 where the accused could only render service through another public servant, requiring specification of that other public servant. In the present case, Jagatsing was in the very department where the appointment was to be made; the second part of Section 161 applied, which requires no specification of another public servant when the accused himself can perform or forbear an official act. The Court also observed that even where specification is required, its omission is a curable defect under Section 537 of the Code of Criminal Procedure, 1898, unless it occasions failure of justice. However, on the crucial issue of public servant status, the Supreme Court held that Section 43 of the Road Transport Corporation Act, 1950 deems an officer or servant of a corporation to be a public servant only when acting or purporting to act in pursuance of the provisions of that Act or any other law. Receiving a bribe cannot be brought within that scope. Section 21 IPC as it stood before the 1958 amendment did not cover such corporation employees generally. Therefore Jagatsing was not a public servant and could not be convicted under Section 161 IPC. Consequently, Sheikh Ahmed could not be guilty of abetment. The Supreme Court dismissed the appeal and upheld the acquittals of both respondents.
Headnote
A) Criminal Law - Offence of Illegal Gratification - Section 161 Indian Penal Code, 1860 - Two Distinct Parts; Need to Specify Other Public Servant Under First Part - The High Court misinterpreted the decision in State of Ajmer v. Shivjilal; Section 161 has a part requiring that the other public servant with whom service would be rendered be specified, but where the accused is a public servant in the very office where appointment is to be made, the second part applies and no such specification is required. Held that the High Court's application of Shivjilal was erroneous; however, acquittal was ultimately confirmed on ground of public servant status. (Paras Not mentioned) B) Public Servant - Definition Under IPC and Corporation Act - Sections 21 Indian Penal Code, 1860 and 43 Road Transport Corporation Act, 1950 - Receiving Bribe Not Acting or Purporting to Act Under Statute - A corporation employee is a public servant only when acting or purporting to act in pursuance of provisions of the Road Transport Corporation Act or any other law; receiving a bribe cannot be brought within that scope. Held that respondent No.1 was not a public servant under Section 21 IPC at the relevant time, so trial court's acquittal was correct. (Paras Not mentioned) C) Abetment - Principle Offence Fails - Section 161 Indian Penal Code, 1860 - Acquittal of Principal Leads to Acquittal of Abettor - Since respondent No.1 could not be convicted as a public servant, respondent No.2 could not be guilty of abetment. Held that acquittal of respondent No.2 was confirmed. (Paras Not mentioned) D) Criminal Procedure - Defect in Charge - Section 537 Code of Criminal Procedure, 1898 - Omission Curable Unless Failure of Justice - The Supreme Court noted that failure to specify the other public servant is a defect in charge curable under Section 537 CrPC unless it occasions failure of justice; in the present case the second part of Section 161 applied, so no such defect. Held that the High Court erred in treating the omission as fatal but final decision unaffected. (Paras Not mentioned)
Issue of Consideration
Whether respondent No.1 was a public servant under Section 21 IPC read with Section 43 Road Transport Corporation Act, 1950; whether ingredients of Section 161 IPC were proved; whether failure to specify other public servant in charge vitiated trial; whether respondent No.2 could be convicted of abetment after respondent No.1 acquitted.
Final Decision
Supreme Court dismissed the appeal and upheld acquittals. It held that High Court erred in applying Shivjilal case to the second part of Section 161 IPC, but respondent No.1 was not a public servant under Section 21 IPC read with Section 43 of Road Transport Corporation Act, 1950 because receiving bribe is not acting or purporting to act under that Act. Consequently respondent No.2 also acquitted.
Law Points
- Section 161 IPC contains two distinct parts
- a public servant accepting gratification for themselves or any other person for doing or forbearing official act is covered by second part
- failure to specify other public servant under first part is curable defect under Section 537 CrPC
- a corporation employee is public servant under Section 21 IPC only when acting or purporting to act under Road Transport Corporation Act Section 43
- receiving bribe is not acting or purporting to act under statutory provisions
- acquittal of principal accused results in acquittal of abettor
