Shyam Lal Brahmin vs State of Rajasthan

Guman Mal Lodha, J.—When ''commission'' partakes character of bribe, is an interesting question debated in this appeal filed by the appellant against the judgment whereby he has been convicted and sentenced as under:

Under Section 161, IPC 1 year''s simple imprisonment with a fine of Rs. 200/- in default, 1 month''s SI. Under Section 5(1)(d)(d) of the Prevention of -do- Corruption Act.

Shyamlal, the appellant, was performing the duties of a Patwari in District Alwar. The complainant Simru Chamar wanted the boundary of his field to be well defined on the spot by what is known as demarcation by stones (Pattharband/Handbandi). The appellant demanded Rs. 50/- for it and accepted it. Afterwards there were series of developments in which the complainant avoided demand, approach and obtained a trap party for lying down trap.

There is no dispute on the point that the trap was successfully laid and the amount was given, taken and recovered from the accused-appellant.

The question conversed by Shri D.L. Bardar the learned Counsel for the appellant, at length with seriousness is that it is customary in villages that Patwari should take for his personal remuneration put in the terminology of his ''commission'' of demarcation by stones (Hadbandi) as it is not part of his job or duty. Shri Bardar took me through the entire record to convince that this was spontaneous defence which was taken by the accused-appellant on the demand by the officer and two documents (Ex. P 13) and (Ex. D 1) provide clinching evidence to prove that the defence was genuine, bonafide and truthful.

Reliance was placed on the stray sentences which have come in the statement of Deen Dayal (PW 6) who was at that time Kanoongo, and who has stated as under:

iRFkj xh djkuk iVokjh dh lk/kkj.k M~;wVh es ugh vkrk gS A ;g Hkh lgh gS fd tks etnwj dke djrs gS mudk [kpkZ iVokjh Hkh ysdj nsrk gS ;k ikVhZ Hkh [kqn etnwjks dks ns nsrh gS A

In the alternative, Shri Bardar argued that the appellant is an old man and it would be too much if he is sent in jail as the entire family would be ruined.

Shri S.B. Mathur, the learned Public Prosecutor has vehemently opposed the appeal. According to him, ''commission'' is a phraseology coined by corrupt officials or employees or persons for camouflaging the evil design of the demand and accepting the bribe which is a social crime, a crime which has ransacked the entire administration and is of serious magnitude increasing every day in the society.

Shri Mathur submitted that if the accused-appellant thought that it is not his duty he could have very well refused to do so but he kept it pending for some time and then demanded and accepted the money in the form of ''commission'' and, thereafter created evidence by preparation of the alleged two documents. All this shows clearly that it was a pure and simple case of bribe taken by the Patwari from a poor ''Chamar'' for demarcation of field by stones (Hadbandi).

In respect of the sentence, Shri Mathur submitted that the offence of bribe is social crime and it is not against individual but against the entire body, politics and the society and the State, it undermines the administration and if any lenient or liberal view is taken on the consideration of the individuals, the entire society would suffer.

Shri Mathur submitted that it was on this reason that the legislation in its wisdom has prescribed the minimum sentence for the offence u/s 5(1)(d) of the Prevention of Corruption Act minimum being 1 year and maximum being 3 years.

I have carefully examined the rival contention of the learned Counsel for the parties and have also perused the relevant record.

There is no manner of doubt that Rs. 50/- were accepted after being demanded by the accused for the specific purpose of demarcation of field by stones (Hadbandi or Pattharbandi) what so ever it may be called for his agricultural field. It is nobody''s case that no revenue or settlement rule or circular provides for charging of such an amount by the Patwari or any one. In my opinion, for the purpose of agricultural land, in village, Patwari is concerned directly or indirectly in all matters to some extent though they may not directly fall in his domain. Moreover, it is not very material whether it falls within the duty of the Patwari or not because, if the amount is taken for doing or undoing act for omission or commission and that amount is taken as motive or reward for doing or forgiving that act, it is immaterial whether it falls within its domain of his duty prescribed under the law or not.

Shri Bardar also admits that Patwari even usually used to do demarcation of fields by stones (Pattharbandi or Hadbandi), and for that purpose they used to take money so that they can pay to labourers or stones masons.

In this view of the matter, I do not find any relevancy to enter into discussion whether it was directly in the duties prescribed by law of a Patwari or not.

The only question which is to be considered is whether either by law or by rule or by practice which is not against public policy, Patwari can accept or demand any amount for the work of demarcation by stones. It should be observed that it cannot be done without the help of revenue record and it can only be done when the measurements are done on the spot. Demarcation means making some marks at the relevant spot for distinguishing the fact that a particular part of the land belongs to a particular person and is in his Khatedari rights or other nature of tenancy.

In view of the above, all that is to be considered is whether either by only mention by cross-examination or production of the defence or by evidence or by looking into any law or rules or notification or precedent, it can be said that Patwari as a matter or right can take commission for the purpose of doing Pattharbandi. Obviously the officers who have come in evidence have denied any such practice more so in the district where the Patwari-appellant was working.

The only stray sentences which have come in evidence of Deen Dayal PW 6 and which have been extracted above, are that when the labourers do the work then Patwari used to take money from the party and pay it to labourers. It was suggested that the payment is made to the workers for the purpose demarcation is made. It cannot mean that the Patwari can take commission and he can devolve money for himself.

The defence suggested such methods or practice but, if such practice of nature of taking money in the form of commission to exclude from the definition of bribe or illegal gratification is to be proved then, in my opinion the defence would have produced some relevant data giving instances and the practice both orally or documentary.

More over, no such practice which is against public policy, against law, can be contended or accepted for the purpose of legislation of the bribe. A bribe taker cannot plead in defence that giving or taking bribe is practice prevalent in the area. No law, rule, notification or recorded decision of any revenue authorities or the courts have been shown to me under which such amount can be taken as a legal remuneration and can be taken out from the definition of illegal gratification or bribe.

A government servant normally cannot camouflage bribe in the cover of commission. Commission in what so ever form is pure and simple camouflaging, though coated in beautiful terminology of the commercial world and the Government officers are not expected to accept commission from the private agencies for doing or for bearing from doing any act.

In the instant case, the accused has used word ''commission'' in the document Ex. P. 13 which was prepared after the trap party has caught hold of him. When he was caught hold of red-handed by the trap party, I am, therefore, of the opinion that creating exception by terminology or phraseology of commission when the amount is given to a government servant for doing or forbearing from doing act as motive or reward which falls in the definition of ''illegal gratification'', would be in substance abetting offence of the bribe taking and corruption by judicial process of interpretation.

I am firmly of the opinion that no judicial forum much less High Court should adopt such interpretation which would indirectly or directly abet increase or open the flood gates of corruption under the garb of camouflaging and deceptive phraseology of ''commission.''

I have, therefore, no hesitation in holding that the accused has committed an offence with which he has been charged with and has rightly been convicted.

The next question which calls for consideration is whether on the grounds mentioned by Shri Bardar creating human emotions, and sentiments in favour of the accused, I should release the accused on payment of fine.

I am constrained to think that the sentiments or emotions how so ever well placed it may be, sufficient for the release of the accused even though he has not remained in judicial custody even for a day. The fact that accused would lose job or has lost the job, in my opinion, cannot be a consideration for not sending him to jail. The minimum sentence of imprisonment provided is one year and for special reasons it can be reduced.

Shri Bardar submitted that in the present case, as per the admissions made by some of the witnesses in cross-examination and the defence evidence, the practice was going on where Patwari used to charge money in the form of commission for demarcation of field by stones (Hadbandi).

It is pointed out that even if such practice is not legitimate yet it can be considered for the purpose of imposition of sentence against him because the Patwari who has lost the job and is last in the ladder would not be able to appreciate nicety of law. In my opinion, though the sentence of imprisonment is mandatory to be imposed in cases of corruption, and I would not allow the accused to be released on the payment of fine only because the payment of fine in such cases i-the surest method by which accused can be let off and go away scot free in corruption cases, yet, I do feel that the contention of Shri Bardar, of Patwari''s practice though illegal, deserves some consideration for the purpose of reduction of the sentence.

Thsir Lordships of Apex Court in Jeet Singh v. State of Punjab 1980 Cr. L.R. 248 on the point of awarding less than minimum sentence, observed as under:

The proviso confers on the Court convicting and sentencing the accused, is of the opinion that for any special reasons which the court is under an obligation to record in writing sentence of imprisonment for a term less than the minimum is called for. Conceding that the quantum of sentence is in the discretion of the trial court, where the Legislature stepped in and circumscribed and fettered the discretion by directing imposition of a minimum sentence, the court can exercise its discretion within the limited sphere left open by legislature.

The only two special reasons according to the High Court for awarding less than minimum sentence are: (i) appellant has lost his job; and (ii) he is a married man with children. These two reasons would be common to ninety nine per cent of cases tried under the Prevention of Corruption Act and if they can be styled as special reasons for awarding less than the minimum sentence the proviso would be rendered wholly nugatory;

There was no justification, much less special reasons statutorily required, for awarding less than the minimum sentence. Strict sense court exceeded its jurisdiction while interfering with the quantum of sentence.

Consequently, the sentence of imprisonment is, therefore, in view of the special circumstances, reduced to four month''s S.I. on each count. Both the sentences would run concurrently and the fine imposed by the trial court is maintained. With the above modification in the impugned judgment, the appeal is partly allowed to that extent only. The trial court would proceed further for the arrest of accused.