Sankaran, J.
1. The accused in Calendar Case No. 1/1955 on the file of the Special Judge's Court at Coimbatore is the appellant. The Principal Assistant Sessions Judge at Coimbatore was appointed as the Special Judge for trying cases under the Prevention of Corruption Act (Act II of 1947) and it was in that capacity as Special Judge that the case against the accused was tried. The accused is an employee under the Southern Railway and was functioning as the Assistant Goods Clerk attached to the Kasargode railway station during the relevant period i. e., between. 25-8-1954 and 13-10-1954.
On getting information that he was in the habit of receiving illegal gratification from persons who had to consign goods from the Kasargode railway station to other places, P. W. 15 the Special Police Sub-Inspector attached to the Special Police establishment, Madras, proceeded to investigate into the matter after obtaining the necessary sanction and filed a charge-sheet against the accused.
When the case came on for trial, the Special Judge framed a charge against the accused under Section 5(1)(a) read with Section 5(2) of the Prevention of Conniption Act (Act II of 1947). The following nine instances of the accused having received illegal gratification were mentioned in the charge:
(1) That the accused' demanded and received from Ambu (examined as P. W. 1) a sum of Rs. 20/- at 8.40 p. m. or. 9-10-1954, for booking 52 bundles of dried fish to Arkonam, 17 bundles of dried fish to Tirur and 51 bundles to Villupuram;
(2) That he demanded and received a sum of Rs. 15/- on 13-10-1954 from T.M. Abdulla (examined as P. W. 5), a partner of P. W. 1, for expediting the despatch of the consignments mentioned in item 1;
(3) That he demanded and received a sum of Rs. 1-4-0 on 25-8-1954 from T.M. Abdulla (P. W. 5) for booking 5 bundles of fish to Olavakkot;
(4) That he demanded and received a sum of Rs. 6-12-0 on 30-8-1954 from T.M. Abdulla for booking 27 bundles of dried fish to Tuticorin;
(5) That he demanded and received a sum of Rs. 5-12-0 on 28-9-1954 from T.M. Abdulla for booking 23 bundles of dried fish to Tirur;
(6) That Le demanded and received a sum of Rs. 8-4-0 from T.M. Abdulla on 30-9-1954 for booking 32 bundles of dried fish to Tirur;
(7) That he demanded and received a sum of Rs. 5/- from T.M. Abdulla on 29-9-1954 for booking 18 bundles of dried fish to Olavakkot and 2 bundles of dried fish to Tuticorin;
(8) That he demanded and received a sum of Rs. 0-8-0 on 25-8-1954 from P- M. Abdulla (P. W. 6) for booking 2 bundles of dried fish to Alwaye; and
(9) That he demanded and received a sum of Rs. 2-8-0 on 4-10-1954 from P. M. Abdulla for booking 10 bundles of dried fish to Kozhikode. The accused pleaded not guilty to every one of these charges.
2. After a due consideration of the evidence adduced by the prosecution, the Special Judge found that the charges under counts 2 to 5 and 7 to 9 were not proved by any satisfactory convincing evidence, but that there was convincing and acceptable evidence in respect of the charges under counts 1 and 6. To sustain a charge under Section 5 (1)(a), read with Section 5 (2) of the Prevention of Corruption Act, at least 3 instances of receipt of illegal gratification had to be proved against the accused.
Since two such instances alone were found to be proved in this case, the Special Judge held that the accused could not be convicted 'under the aforesaid sections, but could only be convicted for the lesser offence punishable under Section 161 of the Indian Penal Code. Accordingly the accused was convicted under Section 161 of the Penal Code and sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 50/-. The appeal is against such conviction 'and sentence.
3. Apart from certain legal points urged against the sustainability of the conviction entered against the accused, it is also argued on behalf of the appellant that the trial Judge erred in holding that there is satisfactory and convincing evidence in proof of charges under counts 1 and 6. The question of reliability of such evidence may be considered at the outset before adverting to the legal points raised on behalf of the appellant.
4. For substantiating the charge under count 6, the prosecution has relied upon the testimony of P. Ws. 1 and 5 supported by the documentary evidence furnished by Exts P-7 (h) and P-28 and P-28 (a). The charge is that on 30-9-1954 the accused in his capacity as Assistant Goods clerk demanded and received a sum of Rs. 8-4-0 as illegal gratification from P. W. 5 in connection with the despatch of 33 bundles of dried fish from Kasergode railway station to Tirur railway station. (After discussion of evidence, His Lordship proceeded:)
Thus, on a consideration of the evidence and all the circumstances relating to the charge under count 6, we have come to the conclusion that there is no satisfactory and convincing evidence in proof of this particular charge. It follows therefore that the Special. Judge's finding in respect of this charge lias to be reversed and the accused acquitted of the charge under this count.
5. Then there remains only the charge under count 1 relating to the demand and receipt of Rs. 20/- from P. W. 1 on 9-10-1954 by way of illegal gratification for the despatch of 120 bundles of dried fish. The evidence in support of this charge consists of the testimony of P. Ws. 1 to 4, 12 ar.d 15 and also the documents marked as Exts. P-1 to P-5 and the currency notes marked as M. Os. 1 to 4. (After discussing the evidence with regard to this count His Lordship proceeded:)
6. On a careful consideration of the evidence of P. Ws. 1 to 3, 12 and 15, we agree with the lower court in holding that the version spoken to by them can be accepted as true and correct. The plea put forward by the accused is such that it only strengthens the conclusion that the truth is as stated by the aforesaid witnesses. In view of the evidence relating to the recovery of the currency notes M. Os. 1 to 5, as per the Mahazar Exts. P. 9 and P. 11, it could not be denied that these notes were recovered from the accused's table at about 8.45 p. m. on 9-10-1954.
But the attempt of the accused had been to make out that the currency notes were not in his custody and were not recovered from the drawer of his table but had been thrust beneath the papers on his table by P. Ws. 1 and 2 without his knowledge. At the same time, the suggestion put forward in his plea is that .P. Ws. 1 and 2 were not known to him at all.
His version is that sometime before P. W. 15 came to his room, two other persons came to his room and stood hear his table and that he did not pay any attention to them. After some time he went out of the room to spit and immediately after his return P. W. 15 also entered the room and recovered the currency notes from underneath the papers on the table. Such is the version given by the accused in the report Ext, D-6 sent by him to the D.T.S. on 10-10-1954.
On the same day S. M. also sent another report Ext. D-7 to the D.T.S. and the version contained in that report also is similar to the version of the accused in Ext. D. 6., the definite suggestion is that the notes were thrust under these papers by P. Ws. 1 and 2 just when he had gone out of the room. This suggestion was put forward to P. Ws. 1 to 3 in their cross-examination and all of them have emphatically repudiated the suggestion and have stated that the currency notes were taken by the accused himself from the left-hand drawer of his table and handed over to P. W. 15.
To the same effect is the evidence given by P. Ws. 12 and 15 also. The accused's version that P. Ws. 1 and 2 were unknown to him cannot also be believed to be true. They had been to him during the early hours of the day in connection with the despatch of 120 bundles of dried fish. The forwarding notes Exts. P-2, P-3 and P-4 were also prepared at that stage. The accused has also initialled the railway receipts Exts. P-2 (a), P-3 (a) and P-4 (a). .
This fact is sworn to by the Station Master, examined as P. W. 13. Apart from all these aspects, it is too much to believe that the accused would have permitted two unknown persons to enter into his room and to take their stand near his table and to remain there for some time according to their sweet will and pleasure.
The story that he went out of the room leaving them in that position and that they stealthily placed the currency notes beneath the papers on the table, is also highly unnatural and improbable and cannot be believed. The accused's attempt to give such an artificial turn to the recovery of the currency notes from him by P. W. 15, only betrays his guilty conscience and his desperate attempt to invent some story which might fit in with his pretended innocence! .
The story thus evolved by the accused out of his own imagination has only to be discarded as baseless and untrue in the face of the direct and convicing evidence given by P. Ws. 1 to 3, 12 and 15, supported by the mahazars Exts. P-5, P-9 and P-l1 and the entry in the station diary Ext. D-4. It may also be mentioned here that an attempt is seen to have been made by the railway employees at Kasergode to throw some suspicion on the entry made at page 391 of Ext, D-4 by P. W. 15 immediately after recovery of the currency notes from the accused.
This is evident from the letter Ext. D-5 sent to the D. T. S. on 10-10-1954 by P. W. 13 the Station Master. Along with that letter the ex-' tract from the entry in Ext. D-4 was also forwarded. the letter contains a definite allegation that on the morning of 10-10-1954, P. W. 15 had come to the railway station and had taken the station diary, to the Upper Class Waiting room and had made certain corrections in the entry which he had made on the previous evening.
The letter Ext. D-5 itself states that P. W. 13 has no direct knowledge about the imputations. and. that such a version was given to him by Krishnan Unni, another Station Master, who was on duty at the relevant time. This Krishnan Unni is not a witness in this case. The evidence of P. W. 13 does not prove that the corrections in the entry in Ext. D-4 were made on the morning of JO-10-1954 as suggested in the letter Ext. D-5.
AS against the absence of such evidence, there is the positive evidence of P. W. 15 himself that the corrections were made by him on the 9th itself immediately after he had made the entry. The appearance of the corrections is clearly in support of this version being true. It may also bp stated that the corrections are of no material importance. The first correction relates to the reference to the party who had booked 120 bundles of dried fish.
At first it was written that P. W. 15 had. information that Narayanaswami, Assistant Goods Clerk, Kasergode railway station, had received illegal gratification towards, the booking of 120 bundles of dried fish from Ambu and Madhavan. The booking was really done by Ambu and Madhavan (P. Ws. 1 and 2) and so their names were correctly entered at first.
AH the same it must have immediately struck to P. W- 15 that the receipt of illegal gratification was from Ambu alone even though P. W. 2 was present at that time. That must have been the reason why he made the correction then and there by scoring off the words 'and Madhavan' and inserting the words 'fish merchant, Kasergode' as descriptive of Ambu. Consistent with this modification the word 'parties' in the latter portion, of the entry had also to be corrected to 'party'.
Thus it is clear that the correction does not in any way go against the prosecution case that the currency notes which the accused had taken from the left-hand drawer of the table and handed over to P. W. 15 represented the illegal gratification received by the accused from P. W. 1. The fact that the accused had produced the currency notes from the left-hand drawer of the table was clearly mentioned in the entry as it was made on the 9th itself and the numbers noted in that entry,
There has been no complaint by p. W. 13 or any of his co-employees that there has been any tampering with these particulars 93 noted in the entry made on the 9th itself. It is obvious that the railway employees were trying to get out of the bad situation in which they were placed when they sent the reports Exts. D-5, D-6 and D-7 to their official superior.
The corrections found in the entry in Ext. D-4 were also prominently made mention of to suggest that there was something wrong in the investigation that was being conducted by the Special Police Officer. We are clearly of opinion that there is no real basis for such a suggestion.
7. Even though the prosecution evidence against the accused is clear and convincing, in respect of the charge under the first count, it is urged on his behalf that such evidence cannot be accepted because the substantial part of such evidence is not better than the tainted evidence of an accomplice. The main attack. on this ground is directed against the evidence of P. Ws. 1 and 2. Of these two witnesses, P. W. 1 alone has taken part in the actual payment of the illegal gratification to the accused. But it has to be remembered that he was not a willing party to such payment. he had no inclination at all to secure an advantage from the accused by payment of illegal gratification to him. On the other hand he was all along protesting and complaining against the conduct of the accused in insisting on payment of such illegal gratification as a condition precedent to the prompt despatch of goods consigned by traders like P. W. 1.
Such an attitude on the part of P. W. 1 is evident from the complaint petition Ext. P-1 presented by him to P. W. 15 on 7-10-54. Even in respect of the consignment of 120 bundles of dried fish covered by the forwarding notes Exts. P-2, P-3 and P-4, P. W. 1 is seen to have tried to avoid payment of illegal gratification to the accused. But the accused was insisting on such payment and hence P. W. 1 was forced to report the matter to P. W. 15 who thereupon made up his mind to trap the accused if he was really indulging in demanding and receiving illegal gratification.
With that object in view, P. W. 15 directed P. W. 1 to go to the accused with the currency notes whose numbers were noted in the mahazar Ext. P-5 and to demand the railway receipts in respect of the goods 'covered by Exts. P-2, P-3 and P-4. P. W. 1 was also specially directed that he need pay the amount to the accused only in case of his demanding the same by way of mamool.
The payment of the currency notes M. Os. 1 to 4 by P. W. 1 to the accused, was made under such circumstances. It is thus obvious that in the matter of such payment P. W. 1 was merely rendering the necessary assistance for the detection of the crime that the accused was committing. It was not a voluntary payment on his part and he had not the mens rea that he was paying the amount to secure a favour from the accused.
When such criminal intention was totally absent on his part, it cannot be said that he aided or abetted the commission of the offence of receiving illegal gratification by, the accused. P. W. 1 cannot therefore be said to have been an accomplice in the commission of such an offence by the accused. he was not a willing participant in that offence but was only a victim of it because the accused was really extracting the amount from P. W. 1.
The question as to when the giver of a bribe has to be treated as an accomplice came up for consideration in Papa Kamalkhan v. Emoeror, AIR 1935 Bom 230 (A), and there it was pointed out that 'the objections which usually arise to the evidence of an accomplice do not really apply where the alleged accomplice, i. e., the person who pays the bribe, is not a willing participant in the offence, but is really a victim of that offence.' In State V. Minaketan, AIR 1952 Orissa 267 (B), also this question arose for consideration. In dealing with the question Narasimham J., made the following observations:
'From Section 109, Illustration A, and Section 161 Illustration A, Penal Code, it is clear that mere offer of money or illegal gratification to a public servant would not amount to an offence of abetment of bribery unless that offer is made ,as a reward for showing that person some favour in exercise of the official functions of the public servant.
That is to say, there must be the necessary criminal intention on the part of the officer, in the case of a trap witness engaged for the purpose of decoying a public official by offering him marked currency notes, this essential criminal intention is wanting ....... A person engaged by the police to give marked currency notes to a public officer, with a view to detect the offence of bribery, is not an accomplice, because he lacks the necessary criminal intention.' the same question came up for consideration of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322 (C), and there it was ruled that the evidence of a witness who was not a willing party to the giving of the bribe to the accused but was only actuated by the motive of trapping the accused, cannot be treated as the evidence of an accomplice. It was also pointetd out that th9 evidence of such a witness has to be treated as the evidence of a partisan witness who was out to entrap the accused.
In that particular case the evidence of the partisan witnesses was found to be not quite satisfactory and accordingly it was stated that their evidence could not be relied on for implicating the accused without independent corroboration. It is significant to note that it was not laid down as a rule of law that without independent corroboration the evidence of partisan witnesses can under no circumstances be relied on as sufficient to sustain a conviction of the accused.
After all, the rule regarding independent corroboration is only a rule of prudence. If in any particular case the evidence of partisan witnesses is seen to be thoroughly reliable and trustworthy, there will be nothing wrong in the court in acting upon such evidence and entering a conviction against the accused. Even in the cases of witnesses standing in the position of accomplices, their evidence is not totally discarded.
All that is insisted on as a matter of prudence is that before acting upon such evidence the court must be satisfied that such evidencehas been corroborated in material particulars byother items of independent evidence. In AIR.1935 Bom 230 (A), it was pointed out that the rule of the court which requires corroboration of the evidence of an accomplice, applies with verylittle force to a case in which the charge against the accused is that he extorted bribe from otherpersons.
8. On a consideration of the evidence of P. Ws. 1 and 2 in the light of the principles already explained, it is clear that the evidence of these two witnesses cannot be treated as evidence of accomplices. The utmost that can be said about them is that they are partisan witnesses who rendered assistance to P. W. 15 to trap the accused. All the same it is seen that their evidence is thoroughly reliable and trustworthy.
It may also be pointed out that their evidence is fully corroborated in all material particulars by the evidence of P. W. 3 who is a respectable and independent witness. AS for the recovery of the currency notes M. Os. 1 to 4 from the left-hand drawer of the table of the accused, there is also the evidence of the other independent witness P W. 12. His evidence corroborates the evidence of P. Ws. 1 to 3.
AH of them have stated that the currency notes were taken by the accused himself from the left hand drawer of the table and handed them over to P. W. 15. They have also stated that their numbers were the same as those noted in the Mahazar Ext. P-5 which P. W. 15 had prepared in respect of the currency notes that were in the possession of P.W. 1 when he proceeded to meet the accused.
Under these circumstances the learned Special Judge was fully justified in accepting the evidence already referred to and in finding the accused guilty of the offence under the first count in the charge-sheet.
9. The next point urged on behalf of the accused-appellant is that the conviction entered against him under Section 161 of the Indian Penal Code is unsustainable because the charge framed against him did not make mention of an offence under this particular section. The charge against the accused was that he committed the offence punishable under Section 5 (1) (a) read with Section 5 (2) of the 'Prevention of . Corruption Act (Act II), 1947; in so far as he had received illegal gratification on nine different occasions as specified in the charge sheet.
The argument advanced on behalf of the appellant is that criminal misconduct by a public servant in the discharge of his official duties is a new offence made punishable under S, 5 of the Prevention of Corruption Act and that such an offence has no counter-part in the Indian Penal Code. It is further contended on his behalf that he is not a public servant as contemplated by Section 2 of the Prevention of Corruption Act.
That section states that for the purpose of the Act, 'public servant' means a public servant as defined in Section 21 of the Indian Penal Code. This definition did not take in railway employees and hence Section 137 of the Indian Railways Act (IX of 1890) made a special provision regarding railway servants. Sub-section (1) of that section states that 'every railway servant shall be deemed to be a public servant for the purpose of Chapter IX of the Indian Penal Code'.
It may be mentioned here that Section 161 of that Code finds a place in Chapter IX. Sub-section 2 of Section 137 of the Indian Railways Act states that 'In the definition of 'legal remuneration' in Section 161 of the Penal. Code, lhe word 'Government' shall for the purpose of Sub-section (1), be deemed to include any employer of a railway servant as such'. Subsection (4) of Section 137 states that
'Notwithstanding anything in Section 21 of the Indian Penal Code, a Railway servant shall not be deemed to be a public servant for any of the purposes of that Code except those in Sub-section (1)'. These provisions were in force at the time of the commencement of the present case against the accused. But by Act XVII of 1955 an amendment was made to Section 137 of the Indian Railways Act. Sub-section (1) of that section was amended as follows:
'Every railway servant not being a public servant as defined in Section 21 of the Penal Code shall be deemed to be a public servant for the purposes of Chapter IX and Section 409 of that Code.' By the amending Act Sub-section (4) of Section 137 was omitted. The result of the amendment is that the railway servant has to be deemed to be a public servant for the purpose of Chapter IX and Section 409 of the Indian Penal Code. The position taken up by the appellant is that such an extended definition cannot be made applicable to him so far as this case is concerned, which commenced prior to the date of the aforesaid amendment.
That position has to be accepted as correct. But it has no significance so far ag the present case is concerned, because the accused has not been convicted of an offence under Section 409 of the Penal Code. There was no charge also against him under that section. His conviction is under section 161 of the Penal Code. As. already stated, this section appears in Chapter IX of the Penal Code, and by virtue of Sub-section (1) of Section 137 of the Indian Railways Act as it stood before the amendment of the year 1955, every railway servant had to be deemed to be a public servant for the purpose of Chapter IX of the Penal Code. Thus there can be no doubt that as a public servant the accused could be tried and convicted of the offence under Section 161 of the Indian Penal Code.
10. Coming to the objection that the offence under Section 5 of the Prevention of Corruption Act is a new offence independent of. The offence under Section 161 of the Penal Code, we are clearly of opinion that there is no force or merit in that objection. Clauses (a) to (d) of subsection (1) of Section 5 of the Prevention of Corruption Act, specify the different offences which would amount to criminal misconduct by a public servant in the discharge of his official duty and punishable under Sub-section (2) of Section 5.
What is significant to note is that every one of the offences specified in Clause (a) to (d) is an offence made j punishable under the Penal Code also. All that has been done by Section 5 of the Prevention of Corruption Act is to make a special provision so far as public servants are concerned and not to create any new offence. The charge against the accused in the present case is that he is guilty of offence under Clause (a) of Sub-section (1) of Section 5, Sub-section (1) (a) runs as follows:
'A public servant is said to commit the offence of criminal misconduct in the discharge of his duty if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code.' It is thus clear that the essential ingredients of the offence under Section 5 (1) (a) of the Prevention of Corruption Act are the same as the ingredients of the offence under Section 161 of the Indian Penal Code subject to one difference, viz., that the offence under Section 5 (1) (a) is an aggravated form of the offence under Section 161. Repetition of the offence under Section 161 of the Indian Penal Code would amount to the offence of criminal misconduct under Section 5 (1) (a) of the Prevention of Corruption Act.
It follows therefore that the charge framed against the accused in this case that he has committed the offence under Section 5 (1) (a) of the Prevention of Corruption Act necessarily implies that he has committed the offence punishable under Section 161 of the Indian Penal Code. In fact, the particulars specified under each of the 9 counts mentioned in_ the charge sheet are such as to give notice to the accused that he is called upon to answer nine separate offences falling under Section 161 of the Penal Code. There is thus no basis nor scope for the complaint that the accused had no notice of the charge regarding the offence punishable under Section 161 of the Penal Code or that he was in any way prejudiced by the omission to specify Section 161 also in the charge.
As already pointed out, Section 161 of the Penal Code is expressly referred to in Section 5 (1) (a) of the Prevention of Corruption Act, under which the charge against the accused was framed. Thus it cannot be said that there has been any serious or material defect in the charge framed in this case., It cannot also be said that any prejudice has been caused to the accused on account of any defect in the form of the charge or on account of the manner in which the trial proceeded.
The objections raised on the basis of such grounds against the sustainability of the conviction under Section 161 cannot, therefore, prevail and they have only to be overruled. In this connection, the mandatory provision contained in Section 537(b) of the Code of Criminal Procedure has also to be taken note of. That provision is in the following terms ;
'Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall bs reversed or altered under Chap. XXVII or on appeal or revision on account of any error, omission or irregularity in the charge including any misjoinder of charges.'
11. Viewed in another aspect also, the conviction of the accused under Section 161 of the Indian Penal Code is seen to bs perfectly legal and sustainable. In entering such a conviction against the accused the learned Special Judge was acting within the scope of his authority as conferred by Section 238 of the Code of Criminal Procedure. Sub-section (1) of that section states that
'When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it'
The particulars mentioned in the charge-sheet in this case were such as to constitute 9 separate offences punishable under Section 161 of the Penal Code, the combined effect of all these particulars being the commission of an aggravated form of such smaller offences. If the repetition of these smaller offences as specified in the charge had been proved against the accused, he could have been convicted of the aggravated offence under Section 5 (1) (a) of the Prevention of Corruption Act,
Since the particulars relating to one only of the several instances specified in the charge have been clearly and conclusively proved against the accused and since those particulars by themselves ere sufficient to constitute the smaller offence punishable under Section 161 of the Penal Code, the conviction of the accused for that smaller offence is legal and is warranted by Section 238 of the Code of Criminal Procedure.
Thus in any view of the case the conviction entered against the accused under Section 161 of the Indian Penal Code has to be confirmed. In the matter of awarding the sentence, the learned Special Judge has been very lenient and the accused cannot have any grievance about the same. We see no justification for interfering with the sentence.
12. The appellant has succeeded only in getting a reversal of the Special Judge's finding that the charge against the accused under item 6 has been proved by the prosecution. But, the finding in respect of item 1 of the charge-sheet stands and we are confirming it. That finding by itself is sufficient to sustain the conviction under Section 161 of the Indian Penal Code.
13. In the result the conviction enteredagainst the accused under Section 161 of the IndianPenal Code and the sentence awarded to him by the Special Judge are confirmed and the appeal is dismissed. The appellant's bail bonds are cancelled and he is remanded to custody.