VARKEY Vs. STATE

JUDGEMENT

(1.) The accused in C.C. No. 1/1953 on the file of the Special Judge at Trichur is the petitioner. He was tried for the offence under S.165A of the Penal Code and was found guilty of the offence charged against him. The Special Judge has accordingly convicted him under that section and sentenced him to undergo rigorous imprisonment for a period of one month. The legality and the sustainability of such conviction and sentence are challenged by the accused by means of this revision petition.

(2.) The prosecution case against the accused is that on the morning of 10.7.1953 the accused offered a sum of Rs. 35 to PW 1, who was at that time the Tahsildar at Trichur, and induced him to accept the same as illegal gratification and to show him some special undue favours in the course of the discharge of the Tahsildar's official duties. The accused had already obtained some lands on registry in the Panamcherry Village within the jurisdiction of the Trichur Tahsildar. He also unauthorisedly occupied large extents of unregistered lands adjoining his own registered holding. The revenue authorities started proceedings against him to have him evicted from the lands unauthorisedly occupied by him. In one such case prohibitory assessment had already been levied and in another the matter was pending orders. The accused tried to escape from such prohibitory assessment and to get the lands either on registry or on lease and he had filed the necessary petitions in that direction. While matters were at this stage, PW 1 inspected the locality on 8.7.1953 and as a result of such local inspection he came to the conclusion that more lands were in the unauthorised occupation of the accused. After instructing his subordinates to survey such lands also and to take up fresh eviction cases against the accused, PW 1 returned to his residence at Trichur. On the next day the accused went there to meet PW 1 but did not succeed in his attempt. Next day ie., on 10.7.1953 he again went to the residence of PW 1 at 8 AM and met him. After representing his difficulties to PW 1 the accused requested that he may be saved from further troubles and prayed that no more cases may be taken against him. In respect of the cases already taken the accused wanted the help of PW 1 to get exemption from prohibitory assessment and also for getting lands on registry or on lease. After making these requests, the accused offered to PW 1 currency notes to the value of Rs. 35 enclosed in an envelope and placed the same on the table near which PW 1 was seated. It is also stated that the accused offered an apology for the smallness of the amount. PW 1 immediately sent Ext. H letter to the District Magistrate who was residing close by, intimating him of what had transpired and requesting for orders to take the accused into custody and to proceed against him in due course of law. The District Magistrate forwarded the letter to the local Police after passing the order Ext. H(1) on it directing the Police to proceed to the spot and take immediate action. PW 6 who was then in charge of the Police Station, at once proceeded to the residence of PW 1 and prepared the Mahazar Ext. K regarding the envelope and the currency notes placed on the table in front of PW 1 and took the same into custody. The letter Ext. J. addressed to the Inspector of Police which PW 1 had prepared and which also referred to the episode, was also entrusted to PW 6. PW 6 prepared the first information report Ext. A at 10 A.M. on the same day. The further investigation of the case was taken up and completed by PW 7 who was at the time the Assistant Superintendent of Police at Trichur, and charge sheeted the case against the accused under S.165A of the Penal Code before the Special Judge.

(3.) The prosecution in this case was conducted in accordance with the provisions of the Criminal Law Amendment Act, Act XLVI of 1952 and also in accordance with the provisions of the Prevention of Corruption Act, Act II of 1947 as amended by Act LIX of 1952. Acceptance of illegal gratification by public servants in connection with the discharge of their official duties as been made punishable under S.161 and 165 of the Penal Code. By S.3 of the Prevention of Corruption Act, offences under S.161 and 165 of the Penal Code were declared to be cognizable offences. But the proviso to S.3 states that a public officer below the rank of Deputy Superintendent shall not investigate any such offence without the order of a Magistrate of the First Class or make any arrest therefor without a warrant. The law relating to this matter underwent further changes with the passing of the Criminal Law Amendment Act, Act XLVI of 1952. By S.3 of this Act a new section was added to the Penal Code as S.165A by which abetment of offences coming under S.161 or S.165 was itself made a substantive offences. The new section i.e., 165-A runs as follows:-