iminal Appeal No28 of 1965
Appeal by special leave from the judgment and order dated December 14 1964 of the Rajasthan High Court in section B Criminal Appeal No 656 of 1963
K R Chaudhuri for the appellants
K Baldev Mehtafor the respondent
The Judgment of the Court was delivered by Hegde J
The two appellants were convicted by the High Court of Rajasthan under sections 120 B and 1 61 IPC and under sections 5  1  a and 5  1  d read with section 5 2 of the Prevention of Corruption Act
They have come up in appeal to this Court by special leave
The first appellant was a Havaldar and the second appellant a Subedar in the Rajasthan Armed Constabulary
At the relevant point of time they were serving in the outpost at SajanKa Par in Barmer district of Rajasthan State which was a border outpost
That post was within two miles from the Pakistan border
The prosecution case is that the two appellants conspired to extort money as well as other valuable things from the villagersby using force or threat of force or by harassment
Though they were indulging in these activities for quite some time the matter came to a head when they tried to compel PW 1 Mohammad to give them Rs 100
It was said that about the middle of September 1962 the first appellant came to the field of Mohammad and took him to the outpost saying that the second appellant wanted him to go over there
At the outpost the second appellant told him that he was constantly visiting Pakistan he was also blackmarketing hence unless he gave him 2nd appellant Rs 200 he would send him to prison
PW 1 pleaded that he was innocent
He also pleaded that he was a poor man and hence he was unable to pay the amount demanded
As the second appellant insisted on the payment he agreed to pay him Rs 100 but as he had no money at that time PW 3 Kalla stood surety for him
After a few days when PW 1 was sitting in the shop of PW 5 Bhoja he happened to talk about the illegal activities of the appellants
It so happened that a CID officer was there who evidently passed on that information to PW 17 Kaneihalal the Deputy Superintendent of Policein the Special Police Establishment
On getting that information PW 17 came to the village on September 30 1962 and checked up the 191 facts with PW 1
On the morning of October 1 1962
PW 1 was again called to the outpost by the 2nd appellant and told that the amount should be paid immediately
He promised to pay the same that afternoon and asked the appellants to come to his house that afternoon to which they agreed
Thereafter he passed on that information to PW 17 and gave him the complaint Exh
Then a trap was arranged
PW 1 produced before PW 17 Rs 100 in ten rupee currency notes
PW 17 noted down their numbers in the presence of panch witnesses PW 2 Bhakha and PW 4 Ballu and returned the amount to PW 1 with instructions to give the same to the appellants if they again demanded money
At the same time he instructed PWs 2 and 4 to be with
PW 1 so that they may witness the payment
of the money
Then PW 17 posted himself in a house near the house of PW 1
On the evening of that day the first appellant came to the house of PW 1 and demanded the money
He told PW 1 that the second appellant could not come as
he was not well
Then PW 1 took out the currency notes whose numbers had been noted down earlier and paid the same to the first appellant
The first appellant put them in his pocket
On receipt of that information PW 17 came to the place and asked the first appellant to produce those currency notes
On seeing PW 17 the first appellant became pale and nervous
After some hesitation he took out the notes in question from his pocket and gave them to PW 17
On examining their numbers it was found that they were the very notes which had been returned to PW 1 after noting their numbers
As soon as the villagers came to know of the trap several of them came forward with complaints against the appellants
After investigating all those complaints this case was launched
It was tried by the special judge Balotra who accepted the prosecution case in full and convicted the appellants under sections 161 and 120B IPC and under section 5 2 read with section 5 1 a and 51d of the Prevention of Corruption Act
In appeal the High Court of Rajasthan affirmed the convictions of the appellants in respect of all the charges levelled against them
It did not award any separate sentence in respect of the offence under section 161 or section 120 B IPC
As regards the other offences it reduced the sentence awarded by the trial court
We shall now proceed to consider the evidence relating to the various charges levelled against the appellants
It is not disputed that both the appellants were public servants
So far as the evidence relating to the trap is concerned we have the evidence of PWs 124 and 17
Their evidence has been believed by the trial court as well as the High Court
The plea of the 1st appellant was that on that evening when he was going in front of the house of PW 1 PWs 1 and 192 2 and others caught hold of him and struggled with him at that time his note book fell down thereafter he saw them producing the currency notes in question before PW 17
This is a very artificial story
The same has been disbelieved by the trial court as Well as the appellate court
No case is made out to interfere with their findings
The evidence relating to the trap does not by itself connect the second appellant with that incident but then the evidence of PWs 1 and 3 which has been accepted by the trial court as well as the High Court shows that it was the 2nd appellant who compelled PW 1 to give that amount
The contention of the second appellant that he had incurred the displeasure of the their way of smuggling goods from Pakistan to India and from India to Pakisthan and therefore he was victimised was notaccepted either by the trial court or the High Court
Those courts also did not accept his version that several days before the trap was laid he had reported against most of the prosecution witnesses in this case
The defence evidence led by him was disbelieved by those courts and even the documents produced by him were rejected either on the ground that they were got up for the purpose of this case or as having been tampered with
This  court being a court of special jurisdiction does not interfere with findings of facts reached by the High Court except under exceptional circumstances
No such circumstance is available in this case
We are unable to accept the contention of the Iearned coun sel for the appellants that PWs 1 2 3 4 and 17 and other prosecution witnesses to whose evidence we shall presently refer  should be considered as accomplices and therefore their evidence is required to be corroborated in material particulars before being accepted
On the proved facts even those who gave illegal gratification to the appellants cannot be considered as accomplices as the same was extorted from them
Though PWs 1 2 4 and 17 can be considered as interested
witnesses as regards their evidence relating to trap as a matter of law it is not correct to say that their
evidence cannot be accepted without corroboration see the State of Bihar vs Baswan Singh1
The next incident is that spoken to by Bhoja PW 5 and Hussain PW 6
Their evidence was
that on June 22 1962 the second appellant along with the first appellant visited the shop of PW 5 and told him that he was blackmarketing and that people  193 from Pakistan were visiting him
He denied those charges
Then the second appellant told him that unless he PW 5 paid him Rs 50 he would involve him in some case some day
But still PW 5 did not give any money to the second appellant
Then the second appellant insisted that he should give at least the wrist watch that he was wearing
Finding no alternative her gave him the watch article 3
According to him when all these things happened PW 6 was in his shop
PW 6 fully corroborated PW 5
It was not denied that PW 17 seized the watch in question from the second appellant
But his explanation was that that watch had been pledged by PW 5 with Shriram PW 4for Rs 50 but that amount had been advanced to DW 4 by him appellant No 2 DW 4 left the watch with him and that is how he happened to be in possession of the watch
Neither the trial court nor the appellant court accepted this version
On the other hand they relied on
the evidence of PWs 5 and 6 coupled with the circumstance that the watch was seized from the second appellant
We see no reason to disturb the findings reached by those courts
PW 18 Ukaram spoke to the fact of having paid a sum of Rs 101 to the second appellant in the presence of the first appellant on August 13 1962
Though his evidence was believed by the trial court the same was not relied on by the High Court
Therefore we exclude that evidence from consideration
We next come to the evidence of PWs 8 11 and 12
PW 8 is one Kastura
His evidence is that some days prior to October 1 1962 the first appellant came and
took him to the outpost
There the second appellant accused him of being in the habit of visiting Pakistan
When he denied that charge he was asked to kneel down
Sometimes thereafter he was asked to pay Rs 100
As he had no money he was kept in the outpost during the night
On the next morning Imam PW 11 and Bhakha PW 2 happened to come to the post
8 11 and 12 pleaded with the second appellant to accept a lesser sum
Ultimately the second appellant agreed to receive Rs 50
Thereafter PW 1 1 was sent to the house of PW 8 to sell his goats and get Rs 50
He accordingly went to the village sold some goats of PW 8 and  got Rs 50
During this incident according to the evidence of the above witnesses the first appellant was also present in the outpost
Sadiq PW 13 speaks to the fact that about nine days prior to his arrest the first appellant went to his house and took him to the outpost saying that he was wanted by the second appellant
There he was falsely accused of selling goats in Pakistan then he was beaten by the second appellant and thereafter he was
told by the second appellant that he should pay him Rs 100
As 194 he could not make the payment in question he was kept in the outpost that night
Next day his brother Gafoor came there and paid a sum of Rs 80 to the second appellant
It is only thereafter he was allowed to go back
At about the time when money was extorted from PW 13 Alladin PW 14 was said to have been in the outpost
PW 14 corroborated the testimony of PW 13
PW 14 has his own grievance against the appellants
His case was that about 25 days prior his arrest the first appellant came to his field and demanded his camel for cultivation of his field
But as he himself required the camel he refused to give it
After about 8 or 9 days both the appellants came to his field and forcibly took him to the outpost and beat him
Thereafter they demanded from him a sum of Rs 60 and he was told that if he did not pay that amount lie would be prosecuted in some false case
Next we come to the evidence of Murad PW 7 and Subhan PW 9
The evidence of these two witnesses was that about seven or eight days before the first appellant was arrested 
both the appellants came to their houses in the village Talab Ka Par and took them to the outpost
There they were made to kneel down
Further they were falsely accused of indulging in smuggling of goods and visiting Pakistan without valid permits
Thereafter Rs80 were demanded from PW 7 and Rs 200 from PW 9
Ultimately it was settled that PW 7 should pay Rs 50 and PW 9 Rs 150
By that time Kalla PW 3 came there
He was sent to the house of those witnesses to get money
He got Rs 40 for PW 7 and Rs 130 for PW 9
Those amounts were paid to the second appellant
Next we come to the evidence of Minimal PW 10
His version was that in July or August 1962 his brother in law died and in that connection a feast had been arranged
When the feast was about to commence the first appellant came there and told him that unless he paid a sum of Rs 100 he would not be allowed to have the feast
As he refused to pay that money he was taken to the outpost
There the second appellant again demanded from him Rs 100
Ultimately PW 10 paid the second appellant Rs 30
Lastly we come to the evidence of Nemichand PW 15
His case was that about a month before the first appellant was trap ped he had come to his shop and told him that he should go and meet the second appellant at the outpost
Accordingly he went to the outpost
There the second appellant accused him of indulging in black marketing and demanded from him Rs 100 and he was told that if he did not pay that amount he would be beaten and prosecuted
Ultimately it was settled that he should 195 pay Rs 50
Thereafter he was allowed to go home and get the money
On the next day he went to the outpost and paid Rs 50 to the second appellant
The evidence of all the witnesses mentioned above excepting PW 18 has been accepted by the trial court as well as by the appellate court and we see no reason to differ from them
This takes us to the question whether on the basis of the evidence accepted by the High Court both or any of the appellants could in law have been convicted for any of the offences with which they were charged
The first appellant was a subordinate of the second appellant
From the evidence referred to earlier it is clear that both the appellants were acting together
It is obvious that the second appellant was mainly responsible for the extortions complained of and the first appellant was aiding him in his activities
Hence there was no need to charge the appellants under section 120 B IPC even in respect of the amount received from PW 1
The evidence adduced by the prosecution shows that every single act complained of amounts to an extortion in law
Before an offence is held to fall under section 161 IPC the following requirements have to be satisfied 1 the accused at the time of the offence was or expected to be a public servant 2 that he accepted or obtained or agreed to accept or attempted to obtain from some person a gratification 3 that such gratification was not a legal remuneration due to him and 4 that he accepted the gratification in question as a motive or reward for a doing or forbearing to do an official act or b showing or forbearing to show favour or disfavour to
some one in the exercise of his official functions or c rendering or attempting to render any service or disservice to some one with the Central or any State Government or Parliament or the Legislature of any State or with any public servant
As mentioned earlier admittedly the appellants were public servants
It is also established that they obtained from the several witnesses examined in this case illegal gratification
The word obtain  is a strong word
It includes also things received by extortion
But can it be said that they obtained the gratifications in question as a motive or reward for doing or for forbearing to do an official act or for showing or for forbearing to show favour or disfavour to the persons in question in the exercise of their official functions
The evidence on record clearly shows that neither the appellants intended to show any official favour to the persons from whom they extorted money or valuable things nor those persons expected any official favour from them
 They paid the amounts in question solely with a view to avoid being ill treated 196 or harassed
The scope of section 161 IPC had been considered by this Court in State of Ajmer vs Shivji Lal1 as well as in State Of Uttar Pradesh vs Kuljas Rai2
Though the former decision
was overruled in certain respects by a later decision of this Court to which reference will be made hereinafter that part of the decision which considered the requirements of section 161 IPC was not differed from
Therefore it is difficult to hold that the acts complained against the appellants can be held to constitute offences under section 161 IPC
Before an offence can be held to come within cl
a of subs
1 of section 5 of the Prevention of Corruption Act the requirements of section 161 IPC have to be satisfied
If an offence does not fall under section 161 IPC
it cannot come
within section 51a of the Prevention of Corruption Act
But so far as cl
d of sub section 1 of section 5 of the Prevention of Corruption Act is concerned that stands on a different footing
At the relevant time that sub section read A public servant is said to commit the offence Of criminal misconduct in the discharge of his duty       d if he by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage
Therefore if it is proved that the appellants had by illegal means or by otherwise abusing their position as public servants obtained for themselves money or other valuable things then they can be said to have committed the offence of criminal misconduct in the discharge of their official duties
To bring home an offence under section 5 1 d it is not necessary to prove that the acts complained of were done by the appellants in the discharge of their official duties
The contrary view taken by this Court in State of Ajmer vs Shivji Lal1 was over ruled by this Court in Dhaneshwar Narain Saxena vs The Delhi Administration3
In that case it was observed that the words occurring in section 5 of the Prevention of Corruption Act in the discharge of his duty do not constitute an essential ingredient of the offence under section 5 1 d the ingredients of that offence being 1 that the accused should be a public servant 2 that he should use some corrupt or illegal means or otherwise abuse his position as a 1 1959 Supp 2 SCR 739
2 Cr
Appeal 177 of 1960 decided on 22 8 62
3  197 public servant 3 that he should have obtained a valuable thing or pecuniary advantage and 4 for himself or any other person
That decision was followed in State of Uttar Pradesh vs
Kuljas Rai1
It must be noted that clause 5 1 d is much wider in scope than clause 5  1  a
Therefore the conviction of the Appellants under section 51 d read with section 52 of the Prevention of Corruption Act stands on a firm ground
It was contended on behalf of the State that if this Court holds that the conviction of the appellants under section 161 IPC and under section 5 1  a of the Prevention of Corruption Act is not sustainable their conviction may be altered to one under section 384 IPC It was said that such an alteration cannot be said to prejudice the appellants though they were no charged and tried for that offence
We have not thought it necessary to examine that question as in any event the appellants are liable to be convicted under section 5 2 read with section 5  1  d of the Prevention of Corruption Act
In the result we partly allow the appeal and acquit the appellants under sections 120 B and 161 IPC as well as under section 5 2 read with section 51a of the Prevention of Corruption Act
The second appellants conviction under section 52 read with section 5 1 d of the Prevention of Corruption Act is sustained and for that offence the sentence of 18 months rigorous imprisonment and a fine of Rs 200 in default further imprisonment of two months imposed by the High Court is affirmed
The conviction of the first appellant is altered to one under section 52 of the Prevention of Corruption Act read with section 114 IPC and for that offence he is sentenced to suffer rigorous imprisonment for one year
YP Appeal partly allowed
1 Cr
Appeal 177 of 1960 decided on 22 8 62


Summary:
On the allegation that the appellant Havaldar and the second appellant a Subedar in the Rajasthan Armed Constabulary were demanding certain amount from a person accusing him of indulging in blackmarketing and constantly visiting Pakistan and unless he paid the amount demanded he would be beaten and prosecuted a police trap was successfully laid and the appellants convicted under sections 161 and 120B IPC and under section 52 read with section 51a and section 51d of the Prevention of Corruption Act
In appeal this Court
HELD  The conviction of the appellants under section 120B and 161 as well as under section 5 2 read with section 5 1 a of the Prevention of Corruption Act must be set aside
The second appellant s conviction under section 52 read with section 51d of the Prevention of Corruption Act must be sustained
The first appellant s conviction be altered to one under section 52 of the Prevention of Corruption Act read with section 114 IPC
The first appellant was a subordinate of second appellant
From the evidence it is clear that both the appellants were acting together
It is  obvious that the second appellant was mainly responsible for the extortions complained of and the first appellant was aiding him in his activities
Hence there was no need to charge the appellants under section 120 B IPC
The evidence clearly showed that neither the appellants intended to show any official favour to the Persons from whom they extorted money nor those persons expected any official favour from them
The amounts in question were paid solely with a view to avoid being ill treated or haras sed
Therefore it is dffficult to hold that the acts complained can be held to constitute offences under section 161 IPC State of Ajmer vs Shivji Lal 1959 Supp 2 SCR 739 and State of Uttar Pradesh vs Kuljas Rai
A No 177 of
1960 dated 22 8 62 referred to
Before an offence can be held to come within section 51a Of the Prevention of Corruption Act the requirements of section 161 IPC have to be satisfied
If an offence does not fall under section 161 IPC it cannot come
within section 51a of the Prevention of Corruption Act
196 C But so far as section 51 d of the Prevention of Corruption Act is concerned that stands on a different footing
To bring home an offence under section 51 d it is not necessary to prove that the acts complained of were done by the appellants in the discharge of their official duties
Clause 51d is much wider in scope than cl
51a
196 D 197 B 190 State of Uttar Pradesh vs Kuljas Rai Cr
A No 177 of 1960 dated 22 8 62 and Dhaneshwar Narain Saxena vs The Delhi Administration   referred to