iminal Appeal No 39 of 1954
Appeal by Special Leave from the Judgment and Order dated the 5th May 1953 of the Lucknow Bench of Allahabad High Court in Criminal Revision No 200 of 1952 arising out of the Judgment and Order dated the 17th May 1952 of the Special Magistrate AntiCorruption for Uttar Pradesh at Lucknow in Case No 40 of 1951
Hardyal Hardy K L Arora and section D Sekhri with him for the appellant
123 966 C P Lal for the respondent
October 29
The Judgment of the Court was delivered by JAGANNADHADAS J
The appellant in this case was a clerk in the office of the Running Shed Foreman of the East Indian Railway at Kanpur
He was convicted under section 161 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and nine months and also to a fine of Rs 200
The conviction and sentence have been upheld by the Sessions Judge on appeal and by the High Court in revision
The charge against the appellant was that on the 6th of January 1951 he accepted illegal gratification of Rs 150 from the complainant Gurphekan a retrenched cleaner in the Locomotive Department of the Railway examined as PW 2 as a motive for getting him re employed in the Railway by arranging with some superior officer
There was an alternative charge under section 162 of the Indian Penal Code but it is no longer necessary to notice it since the conviction is for the main charge under section 161 of the Indian Penal Code
The Special Police Establishment having received information of the demand of the bribe arranged for a trap and caught the appellant just at the time when he received the sum of Rs 150 from the complainant and seized the amount
The appellant admitted the receipt of the money but denied that he demanded or accepted it as a bribe
His case was that the complainant had previously borrowed money from him and that this money was paid in discharge of the debt
The Courts below have rejected the defence and accepted the prosecution case and conviction followed thereupon
Learned counsel for the appellant has tried to persuade us with reference to the evidence in the case that the view taken by the Courts below is unsustainable
It is unnecessary to notice this argument in any detail because this is an appeal on special leave and nothing so seriously wrong with the findings of fact have been shown which call for interference by this 967 Court
It is sufficient to notice the main legal arguments that have been advanced
It is pointed out that the appellant though employed in the Railway was not himself a person who was in a position to give a job to the complainant nor is it shown that he had any intimacy or influence with any particular official who could give a job
It is urged therefore that the offence if any committed by the appellant could only be one of cheating and not the receiving of a bribe
This argument is without any substance
By the terms of section 161 of the Indian Penal Code a person who is a public servant and accepts illegal gratification as a motive for rendering service with any public servant as such is guilty of the offence thereunder
To constitute an offence under this section it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver with any other public servant and the giver gives the money under that belief
It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it
He may not even have intended to do what he holds himself out as capable of doing
He may accordingly be guilty of cheating
None the less he is guilty of the offence under section 161 of the Indian Penal Code
This is clear from the fourth explanation to section 161 of the Indian Penal Code which is as follows  A motive or reward for doing  A person who receives a gratification as a motive for doing what he does not intend to do or as a reward for doing what he has not done comes within these words
 Illustration c to section 161 of the Indian Penal Code which runs as follows also elucidates this A a public servant induces Z erroneously to believe that A s influence with the Government has obtained a title for Z and thus induces Z to give A money as a reward for this service
A has committed the offence defined in this section
 Thus where a public servant who receives illegal gratification as a motive for doing or procuring an 968 official act whether or not he is capable of doing it or whether or not he intends to do it he is quite clearly within the ambit of section 161 of the Indian Penal Code
The next contention that has been raised is that the charge does not specify the particular public servant who was intended to be influenced by the appellant in consideration of his receiving the money
It is urged that section 161 of the Indian Penal Code would not apply to such a case
It is suggested that the phrase with any public servant in section 161 of the Indian Penal Code must relate to a specified public servant
In the present case the evidence of the complainant and the finding of the High Court is that the appellant purported to attempt rendering of a service to the complainant with another public servant viz the Head clerk at Allahabad But even apart from such a finding there is nothing in the terms of section 161 of the Indian Penal Code requiring that the public servant contemplated therein must be a specified public servant
The material portion of the section is as follows  for rendering or attempting to render any service or disservice to any person with the Central or Provincial Government or Legislature or with any public servant as such
 The phrase Central or any Provincial Government or Legislature does not contemplate any specified individual or individuals
There is no reason why the phrase any public servant used in the same context should be taken to mean any specified public servant
The gist of the offence under section 161 of the Indian Penal Code in so far as it is relevant here is the receipt by a public servant of illegal gratification as a motive or reward for the abuse of official position or function by the receiver himself or by some other public servant at his instance
There is therefore no substance in this argument
The only serious argument that has been advanced and which requires a little closer examination is that there was no valid sanction for the prosecution
There is no doubt that this is a case to which the Prevention 969 of Corruption Act 1947 would apply and that by virtue of section 6c thereof the prosecution requires the sanction of the authority competent to remove the appellant from his office
 It is urged that this requirement was not satisfied on the facts of this case
It has been pointed out that the appellant is a civil servant of the Indian Union and that by virtue of article 311 1 of the Constitution he cannot be removed by an authority subordinate to that by which he was appointed
This appears also to be the position under rule 1705c of the Indian Railway Establishment Code Volume 1 1951 Edition which is as follows No railway servant shall be removed or dismissed by an authority lower than that by which he was appointed to the post held by him substantively
The sanction for the prosecution in this case was granted under exhibit 10 by one Shri L R Gosain Superintendent Power East Indian Railway Allahabad
The order of appointment of the appellant Ex F shows the Divisional Personnel Officer East Indian Railways Allahabad as the appointing authority
It may be mentioned that in the appeal before the Sessions Judge a contention was raised that the appointment of the appellant was in fact made by the Divisional Superintendent and that exhibit F was only signed by the Divisional Personnel Officer on his behalf The Sessions Judge found against this contention and the same has not been challenged before us
What however is urged is that the Superintendent Power who gave the sanction for prosecution is not shown to be an officer not lower in rank than the Divisional Personnel Officer who made the appointment
The question as to the validity of the sanction has been raised both before the Sessions Judge as well as before the High Court
The High Court in considering the question appears to have merely satisfied itself that under the Railway Regulations Shri L R Gosain Superintendent Power was a person competent to remove the appellant from his office within the terms of section 6 of the Prevention of Corruption Act
The High Court does not appear to have considered the further question whether or not the requirements of article 31 1 1 of the Constitution and 970 rule 1705c of the Railway Establishment Code have been satisfied with reference to the inter se position as between the authority who appointed the appellant and the authority who sanctioned the prosecution
The learned Sessions Judge however has recorded a categorical finding that the Divisional Personnel Officer is in the same grade as the Superintendent Power
His finding is in the following terms I therefore hold that the accused could be and was actually appointed by the Divisional Personnel Officer who is in the same grade as the Superintendent Power
It cannot therefore be said that the Superintendent Power Mr L R Gosain was not authorised to remove the accused from service by virtue of rule 1705 and this argument advanced against the validity of sanction exhibit 10 falls to the ground
Learned counsel for the appellant urged that the requirement both of the Constitution and of the rule of the Railway Code contemplates that the authority competent to remove must be either the very authority who appointed or any other authority directly superior to the appointing authority in the same department We do not think that this contention is tenable
What the Constitution requires is that a person should not be removed by an authority subordinate to the one by whom he was appointed and what the rule in the Railway Code prescribes is substantially the same viz the authority competent to remove should not be lower than the one who made the appointment
These provisions cannot be read as implying that the removal must be by the very same authority who made the appointment or by his direct superior
It appears to us to be enough that the removing authority is of the same rank or grade
In the present case it does not appear into which particular branch of the department the appellant was taken in the first instance in 1944 under exhibit F
But it is in the evidence of PW 4 the Head clerk of the office of the Divisional Superintendent that the office of the Running Shed Foreman in which the appellant was a clerk in 1951 was directly under the Superintendent Power
He was obviously the most appropriate officer to grant the sanction 971 provided he was of a rank not less than the Divisional Personnel Officer
Counsel for the appellant urges that the evidence does not support the finding of the learned Sessions Judge that Shri L R Gosain Superintendent Power was of the same grade as the Divisional Personnel Officer who made the appointment
P W 4 in his evidence however quite clearly speaks to this as follows Divisional Superintendent is the head of the entire administrative division
The Divisional Personnel Officer is under him
The Superintendent Power and Superintendent Transport are also under him and also such other officers of the same rank  
Divisional Personnel Officer and the various Superintendents are officers of the same rank
They are not subordinate to each other
It has been commented that this should have been substantiated by the official records and not by oral evidence
That no doubt would have been more satisfactory
The learned Sessions Judge on appeal in order to satisfy himself has referred to the Classified List of Establishment of Indian Railways and the same has also been produced before us for our information
This shows that both the Divisional Personnel Officer as well as Superintendent Power are officers in the senior scale drawing equal scales of pay Rs 625 50 1375
This is an indication that they are officers of the same rank and confirms the oral evidence of PW 4 who being the Head clerk of the Divisional Superintendent s office must be competent to speak about these matters
It certainly cannot be said that the Superintendent Power who has granted the sanction for prosecution of the appellant at the time working under him is of a rank or a grade lower than the Divisional Personnel Officer who appointed the appellant
This matter would probably have been more satisfactorily clarified in the trial court if the question as to the validity of the sanction had been raised not merely with reference to the wording of section 6 of the Prevention of Corruption Act but also as read with article 3111 of the Constitution and rule 1705c of the Railway Establishment 972 Code
On the material we are not satisfied that there is any reason to reverse the findings of the courts below that the sanction is valid
All the contentions raised before us are untenable
This appeal must accordingly fail
It has been represented to us that the appellant who has been refused bail by this court when leave to appeal was granted but has been granted bail subsequently has already served nearly six months of imprisonment in the intervening period that he is a young man and has lost his job
In the circumstances we consider that it is not necessary to send him back to jail
The result therefore is that the appeal is dismissed subject to the modification of sentence of imprisonment
We reduce the sentence of imprisonment to the period already undergone
The sentence of fine stands


Summary:
When a public servant is charged under section 161 of the Indian Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act it is not necessary for the Court to consider whether or not the accused as public servant was capable of doing or intended to do such an act
In a case where the illegal gratification is alleged to have been received by the accused as a public servant for influencing some superior officer to do an act the charge framed against such accused under section 161 of the Code need not specify the particular superior officer sought to be so influenced
It view of article 3111 of the Constitution of India and rule 1705c of the Indian Railway Establishment Code Volume 1 1951 Edition a sanction under section 6c of the Prevention of Corruption Act 1947 as it existed prior to August 12 1952 may be given either by the very authority who appointed the public servant or by an authority who is directly superior to such appointing authority in the same department
But such sanction is also legal if it is given by an authority who is equal in rank or grade with the appointing authority
Sanction is invalid if it is given by one who is subordinate to or lower than the appointing authority