B.K. Sen vs Babu Rajeshwari Prasad

Agarwala, J.—The facts relevant for consideration of the question raised in this petition are set out in the petition Itself, of which notice has been given to the District Magistrate, and which have not been controverted. Since 1937 the petitioner has been the possessor of a double-barrelled breach-loading gun which he holds under a licence issued by the District Magistrate under the Arms Act. On 3rd January 1944, he made an application for the renewal of his licence, tendering the requisite fee. According to the practice which appears to prevail, the application was presented to an officer called the Arms Act Clerk, whose duty it was to place it before the Sub-divisional Officer. The practice is for the latter to sign the licence in token of its renewal on behalf of the District Magistrate. Nothing having been heard of this application for a a week, on 10th January the petitioner''s clerk made an enquiry about it and was then told by the Arms Act Clerk Rajeshwari Prasad that the licence would not be renewed unless the petitioner invested Rs. 100 in War Bonds. Having been informed of this, the petitioner himself visited the Arms Act Clerk on the following day. He was''"then informed by Raje-shwari Prasad that the licence would not be renewed unless Rs. 100 was invested in a War Bond, and that he would not forward the application to the Sub-divisional Officer until this was done. Thereafter the petitioner wrote out a petition of complaint setting out the facts stated above and alleging that they constituted an offence u/s 161 and Section 384 read with Section 511 Penal Code. As the Magistrate had by then left his Court, this could not be presented until the following morning.

On the next morning the complaint was filed, and it was the duty of the Sub-divisional Magistrate u/s 200, Penal Code, at once to examine the complainant on solemn affirmation. This was not done. The petitioner was informed that the complaint could not be dealt with that day as it was a day on which the Magistrate was engaged in revenue matters. On the following morning, that is to say, on 13th January, the petitioner again appeared before the Sub-divisional Magistrate. When he mentioned his complaint he was told that a counter case had been lodged by the Arms Act Clerk, and that in the latter''s absence the petitioner''s complaint could not be taken up. He was told to come back at 1 o''clock. At 1 o''clock he returned to the Sub-divisional Magistrate''s Court, but the Magistrate himself did not do so. Nor was the petitioner apprised of what the Magistrate proposed to do in the matter of his complaint. On the following morning the petitioner''s mukhtar mentioned the case in Court. The petition does not state that the mukhtar was informed, but it does state that he was not told that any order had been made on the petitioner''s complaint. On the 15th and the 16th the criminal Courts were closed, and on the 17th the petitioner learnt from his mukhtar that an order had been made by the Magistrate purporting to have been passed on 18th January. That order is as follows: "

No demand (if any demand was really made) should have been made from a lawyer after protest. As, however, I am not proceeding further with the case I am not giving any finding as to whether the demand was made or not. The complaint is not pressed. Therefore, file.

A perusal of the order discloses peculiarities. The Magistrate was apparently of the opinion that a demand of the nature complained of would provide no grievance to anybody but a lawyer, and not even to a lawyer unless he had protested. Although it is clear from the conduct of the petitioner all through that he was anxious to have his complaint dealt with, he is recorded as not pressing it. As the learned Additional District Magistrate subsequently pointed out, there is nothing on the record of this case to suggest that the petitioner at any time abandoned his intention of pressing the complaint. Furthermore, the Magistrate who made the order himself seems to be well aware of this, for, instead of dismissing it, he merely decided it to be ''filed.'' Lastly, I have the gravest doubt whether this order was ever made on the 13th at all. If it was, I should have expected the petitioner''s mukhtar to be informed of this when he mentioned the case in Court on the 14th. However, the petitioner filed a fresh complaint in the Court of the District Magistrate on the 18th. The District Magistrate sent the complaint and the complainant to Mr. Bilgrami, another Magistrate, for the complainant''s statement to be recorded on solemn affirmation. Mr. Bilgrami was not empowered to take cognizance of the case, but he recorded the complainant''s statement on solemn affirmation and sent it with the complaint to the District Magistrate. The latter then ordered the complaint to be treated as an application u/s 436, Criminal P. C, that is to say, as an application for further enquiry into the original complaint.

On 3rd February, the petitioner filed a fresh petition pointing out that he had not asked for a further enquiry into the original complaint, and that he had made a further complaint on 18th January which he required to be investigated. In spite of this protest the District Magistrate maintained the original order and sent the case to Mr. Sohoni, the Additional District Magistrate. What Mr. Sohoni did between 24th January and 19th April does not transpire. But it was not until the latter date that he made an order directing an enquiry to be made by Mr. R. B. Lal, another Magistrate. Mr. Lall appears to have taken his time in carrying out the Additional District Magistrate''s order, for it was not until 26th June that he submitted a report stating that the facts, if true, did not disclose the commission of an offence. On the same day the Additional District Magistrate made an order dismissing the petitioner''s complaint for the reasons stated in Mr. Lal''s report. The first question for consideration, therefore, is whether, if the facts alleged be true, Rajesh-wari Prasad, the Arms Act Clerk, committed any offence. It was conceded before us that if an offence was committed it was not an offence u/s 384/511, Penal Code. But it was urged that an offence u/s 161 was committed. In so far as it is relevant for the present purposes that section is as follows:

Whoever, being a public servant, 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, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

It was the official duty of the Arms Act Clerk to put up to tne Sub-divisional Officer the application which the petitioner made for renewal of the licence for his gun. As a condition to the performance of that duty the Arms Act Clerk demanded that the petitioner should invest Rs. 100 in war loan. The question we have to decide is whether that was an attempt to obtain a gratification within the meaning of the section. It was not, of course, an attempt by the Arms Act Clerk to obtain any monetary advantage for himself,-though one may assume, I think, that his efforts to persuade people to invest in war loans would redound to his advantage in the matter of his promotion, and so on. There was, however, and is, an advantage sought for Government by persuading people to invest in war loans. The matter has been concisely put by Jar-dine J., in Imperatrix v. Appaji (97) 21 Bom. 517. Referring to the language of the section his Lordship said:

The plain words exclude the defence that the benefit bargained for was to go to somebody else, and also exclude the notion that an officer is protected if he agrees to let his official acts be swayed by the motive of accepting gratification to be used professedly for advancing some public, not private, object, such as charity, science, or religion. That kind of motive is different to the desire of private lucre. But it may easily lead to suppression, and the subject in the pur, suit or enjoyment of a right ought not to be hampered by any thought of pleasing the officer by promising a subscription of any kind, however laudable.

In a later case the learned Chief Justice of the Bombay High Court in Emperor Vs. Amiruddin Salebhoy Tyabjee, observed:

I should be establishing a further dangerous precedent if I were to hold that an officer is protected if he agrees to allow his official acts to be swayed by the motive of accepting a gratification to be used, not for his own personal benefit, but for some public object such as charity, science or religion.

The demand of the Arms Act Clerk amounted, [in my opinion, to an attempt to obtain a gratification not for himself, but for his employers as a reward for doing his official duty, to forward the petitioner''s application for renewal of his licence to the Sub-divisional Officer, and therefore, constitutes an offence u/s 161, Penal Code. I would, therefore, set aside the order of the Magistrate and of the Additional District Magistrate dismissing the petitioner''s complaint and direct that Rajeshwari Prasad, the Arms Act Clerk, be tried u/s 161, Penal Code, on the complaint of the petitioner filed on 13th January 1944. The trial will be held in the Court of Babu Suraj Prasad Singh, Munsif Magistrate of Patna, as the petitioner cannot be expected to entertain any confidence that he will obtain justice at the bands of any Magistrate subordinate to the district executive authorities. The conclusion arrived at, that on the facts stated in the petition, an offence u/s 161 has been established, is not, of course, intended to pre, Clude the Magistrate from finding on the evidence that the facts are not as stated in the petition. The person who is to meet the charge is Rajeshwari Prasad, and it will be open to him to deny the facts alleged by the .complainant and to challenge them either by cross-examining or by himself producing evidence to controvert them.

Meredith, J.

I agree.