Madan Mohan vs State of Haryana

J.M. Tandon, J.—Madan Mohan Petitioner appeared as a prosecution witness on April 30, 1984, in State v. Abhey Singh u/s 161/165-A/109, Indian Penal Code and Section 5(3) of the Prevention of Corruption Act, 1947 (hereinafter the Act) and stated that he had been obtaining permits for the purchase of cement sanctioned in the name of other persons from the office of B.D. and P.O. Kaithal on payment of illegal gratification at the rate of Rs. 10 per bag of cement. He further stated that there was no question of any pressure of illegal demand made by the officials including the accused and that he paid them illegal gratification of his own because he was in need of the cement bags for the construction of rice sheller. The Special Judge, Kurukshetra, vide order dated April, 30, 1984, summoned the Petitioner as an accused to stand trial u/s 165-A, Indian Penal Code read with Section 5(3)(ii) of the Act. The Special Judge by another order dated June 4, 1984, opined that in view of the provisions contained in Section 8 of the Act, the Petitioner could not be prosecuted for an offence u/s 165-A. He was, however, ordered to be charged u/s 5(3)(ii) of the Act. On the same date the Petitioner was charged as under:

That you habitually gave illegal gratifications to the officials of the office of Block Development and Panchayat Officer, Kaithal for getting permits of cement bags issued in the names of others and in particular, you on 14th September, 1981, at Kaithal, gave Rs. 150 to Abhey Singh Head Clerk of the said office as illegal gratification, for giving you a permit of eight bags of cement issued in the name of Manohar Lal and thereby committed an offence punishable u/s 5(3)(ii) of the Prevention of Corruption Act, 1947, and within my cognizance.

And I hereby direct that you be tried by me on the said charge.

The Petitioner has assailed the orders dated April 30, 1984, and June 4, 1984, in the present petition u/s 482, Code of Criminal Procedure.

The learned Counsel for the Petitioner has argued that the Petitioner cannot be prosecuted on the basis of his statement dated April 30, 1984 in State v. Abhey Singh u/s 5(3)(ii) of the Act as well in view of the provisions contained in Section 8 thereof. The contention of the learned Counsel for the State is that irrespective of the fact that the Petitioner cannot be prosecuted u/s 165-A, Indian Penal Code, in view of the provisions contained in Section 8 of the Act but he can be prosecuted u/s 5(3)(ii) of the Act because it is an independent offence. The point for consideration is whether Section 5(3)(ii) of the Act constitutes an offence independent of Section 165-A, Indian Penal Code or not.

Section 165-A, Indian Penal Code, reads:

165-A. Punishment for abetment of offences defined in Section 161 or Section 165.-

Whoever abets any offence punishable u/s 161 or Section 165, whether or not that offence is committed in consequence of the abetment, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 8 of the Act reads:

Statement by bribe giver not to subject him to prosecution.-

Notwithstanding anything contained in any law for the time being in force, a statement made by a person in any proceeding against a public servant for an offence u/s 161 or Section 165 of the Indian Penal Code (45 of 1860), or under Sub-section (2) or Sub-section (3-A) of Section 5 of this Act, that he offered or agreed to offer any gratification (other than legal remunertion) or any valuable thing to the public servant, shall not subject such person to a prosecution u/s 165-A of the said Code.

It is clear that u/s 8 of the Act, the Petitioner is immune from prosecution u/s 165-A, Indian Penal Code, for his statement dated April 30, 1984, in State v. Abhey Singh.

Section 5(3) of the Act reads:

Whoever habitually commits:

(i) an offence punishable u/s 162 or Section 163 of the Indian Penal Code (45 of 1960), or

(ii) an offence punishable u/s 165-A of the Indian Penal Code, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine:

Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.

The abetment of an offence u/s 161 or 165, Indian Penal Code, is an independent offence u/s 165-A, Indian Penal Code. Section 5(3) of the Act prescribes more severe punishment for an accused convicted of an offence u/s 165-A, Indian Penal Code, if he commits that offence habitually. It is difficult to infer that Section 5(3) of the Act constitute an offence independent of Section 165-A. An accused who habitually commits an offence shall still be convicted u/s 165-A, Indian Penal Code. In other words, a person who is immune u/s 8, cannot be prosecuted u/s 5(3) of the Act. A contrary view taken by the learned Special Judge, Kurukshetra, in the impugned order dated June 4, 1984, cannot be sustained.

In the result, the petition is allowed and the impugned orders of the Special Judge Kurukshetra, dated April 30, 1984, and June 4, 1984, as also the charge framed against the Petitioner u/s 5(3)(ii) of the Act in State v. Abhey Singh are quashed.