RAJ BAHADUR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Ram Bahadur Singh, appellant, has been convicted and sentenced under Section 161 I. P. C. to undergo R. I. for one year and to pay a fine of Rs. 200. 00. The appellant was a Sanitary Inspector (Rural) at Agra. Jal Singh (Jai Singh), P. W. 2. resident of village Kakuva, police station Malpure, district Agra, used to bring milk in the city of Agra from his village. Raj Bahadur Singh is said to have demanded Rs. 50/- p. m. from him as an illegal gratifica tion. He told him that if he did not pay this amount, sample of his milk would be taken, water added and then get analysed. Jal Singh made a comp laint about it to the District Magistrate on 28-2-1977, Ex. Ka. 5. The District Magistrate directed him to meet the Superintendent of Police, vigilance. The Superintendent of Police, vigilance asked him to meet Rumal Singh, P. W. 1, Deputy Superintendent of Police, Vigilance. Rumal Singh told him that his complaint lacks particulars. He was asked to give full particulars of the Sanitary Inspector and the amount demanded. On 1-3-1977 Jal Singh gave application, Ex. Ka. 6 to Sri Rumal Singh giving full required particulars. Sri Rumal Singh asked Jal Singh to come on the next day with a sum of Rs. 50/-and 2 witnesses. Jal Singh accordigly reached at the place of Rumal Singh on 2-3- 1977 at about 7 or 7. 30 p. m. Then Rumal Singh along with Shesh Ram Singh, Inspector of Vigilance, P. W. 3, some constables in plain clothes along with Jal Singh, Devi Singh, P. W. 4, proceeded towards Sewal Bus Stand. At about 9. 15 a. m. the appellant came there. Then Jal Singh passed currency note of Rs. 50/- to the appellant as illegal gratification. Immediately then he was apprehended and the sum of Rs. 50/- recovered by Sri Rumal Singh. The appellant was taken to the police station Sadar Bazar, Agra, where Sri Rumal Singh lodged report. The appellant denied the allegations of the prosecution. He asserted that he had been falsely implicated. The prosecution examined Sri Rumal Singh, Jal Singh, Shesh Ram Singh and Devi Singh, P. Ws. 1 to 4 to prove its case. Jal Singh and Devi Singh did not prove that a sum of Rs. 50/- was actually handed over to the appellant on the date and time of occurrence at Sewala Bus Stand. Therefore the prosecu tion declared them hostile. There remain the evidence of Rumal Singh and Shesh Ram Singh, both of the Vigilance department. The learned Second Additional Sessions Judge believed their testimony and convicted the appellant. Learned Counsel for the parties have been heard and record examined. Section 161 I. P. C. punishes a person who being a public servant accepts 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 or for showing or forbearing to show in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person. In the present case Jal Singh who is the pivot of the case did not state that Raj Bahadur Singh had really accepted the sum of Rs. 50/- from him. His companion Devi Singh also did not prove the said fact. There is just the testimony of the vigilance officers. These officers had laid the trap, therefore, they are bound to state that the appellant had accepted the illegal gratification. But their testimony is not supported by any piece of evidence. There is posi tive denial by the appellant of the facts asserted by the prosecution. In this circumstance the conviction of the appellant cannot be sustained merely on ihe testimony of the officers of the vigilance department. There is another aspect of the case. It is not the case of the prosecution that Jal Singh used to bring adulterated milk and that he was prepared to give Rs. 50/- to Raj Bahadur Singh to carry the adulterated milk. The case of the prosecution is that Raj Bahadur Singh demanded Rs. 50/- from Jal Singh, otherwise he would take the sample of his milk, mix water therein and then get it analysed. It means that the act of adulteration would be done by the appellant. On these facts the ingredients of Section 161 are not made out. The appellant had not demanded illegal gratification as a motive or reward for doing or forbearing to do any official act, or for showing or forbearing to show in the exercise of the official functions favour or disfavour to Jal Singh, or for rendering or attempting to render any service or disservice to him. The essence of Section 161 is that a public servant should do an act or omit to do an act which he is expected to do in connection with his official functions. In the discharge of his official functions, a public servant is expected to do acts recognised by law. The law does not recognise acts of a public servant which are not legal. If a public servant does illegal acts, the said acts cannot be said to have been done in the exercise of his official functions. If a Sanitary or Food Inspector takes sample of good milk from a milk vendor and adulterates it, the milk vendor cannot be punished. Such an action cannot be considered as an official act. If the milk vendor pays illegal gratification to him for not adulterating the milk, the case will not fall within the ambit of Section 161. Such a case will been instance of extorting money from a law abiding person. In fact, by taking illegal gratification, he is not showing any favour to a law abiding person. The public servant has no right to take sample of milk which he knows to be good and unadulterated. Illegal gratification is in fact taken for concealing or not exposing an illegal act of an offender or for helping him in some other manner. There is no question of taking illegal gratification from a person whose acts are legal or fortified by law. The position that follows is that even if the allegations of the prosecution are accepted the ingredients of Section 161 I. P. C. are not made out. In view of the above, the conviction of the appellant under Section 161 I. P. C. cannot be sustained. Appeal is allowed and the order dated 2-4-1979 passed by the 2nd Additional Sessions Judge/special Judge, Agra, convicting and sentencing the appellant under Section 161 I. P. C. is set aside. The appellant is acquitted of the charge levelled against him. He is on bail to which he shall not surren der. His bail bonds are discharged. Fine, if paid, shall be refunded to the appellant. .