P (PLP)

Sh. Manzur Qadir, Advocate, for Petitioner. Ch. Muhammad Sharif, Assistant to the Advocate, for Respondent. JUDGMENT.‑Ghulam Muhammad, patwari of Jia Bagga, Lahore District was convicted by a learned Magistrate of Lahore, under section 5 of the Prevention of Corruption Act, 1947 and section 161, Indian Penal Code and sentenced to three years' rigorous imprisonment under the former charge and to one year under the latter, the sentences to run concurrently. In appeal the sentences were reduced to six months and four months' rigorous imprisonment respectively and were ordered to run concurrently as before. This petition is for a revision of the appellate order. By reason of the special procedure provided under the Punjab Public Safety Act, the trial was in the manner of a summons case and a formal charge was framed. The offences the particulars whereof were read out to the petitioner numbered at least ten, and since under section 234 of the Code of Criminal Procedure he could be charged with, and tried at one trial for not more than three offences, the learned Magistrate, while writing the judgment, addressed himself to three of these offences in particular, and convicted him for each of these under section 161, Indian Penal Code. The conviction under the Prevention of Corruption Act, however, was based on all the offences put together. The first objection taken on behalf of the petitioner is that there being a misjoinder of charges the conviction was illegal. The argument is based on the Privy Council ruling in Subrahmaina Ayyar v. King Emperor (I. L. R. 25 Mad. 61), where the accused was tried on an indictment consisting of 41 charges extending over a period of two years. Their Lordships held that this was plainly in contravention of the Code of Criminal Procedure, section 234, which provided that a person may only be tried for three offences of the same kind if committed within a period of twelve months. They repelled the contention that disobedience to the express provision as to a mode of trial was a mere irregularity which could be cured by section

537. Learned Advocate for the Crown relied on another Privy Council ruling reported as Babulal v. Emperor (A. I. R. 1938 P. C. 130) which, however, is a decision on a different set of facts. In that case several persons had conspired to commit offences and had committed overt acts in pursuance of the conspiracy in the course of the same transaction. The main question before the Privy Council turned on an interpretation of section 239 (d) which provides that persons accused of different offences committed in the course of the same transaction may be charged and tried together. The question was whether the sameness of the transaction was to be determined by looking at the accusation or by looking at the result of the trial, and their Lordships decided that for this purpose it was the accusation that had to be looked at not the result of the trial. A subsidiary point involved was whether the charge of theft was properly framed because it alleged a multiplicity of offences whereas the offences did not constitute a single continuing offence. Their Lordships felt that the form of the charge was " most irregular and regrettable ", but they agreed with the High Court that no injustice had been inflicted on the appellants because the specific offences of which they were accused were satisfactorily proved by competent evidence and they thought that the irregularity in the charge was cured under section 537 by the finding that the accused had not been prejudiced. These remarks, however, should not be regarded as having been occasioned by any,, violation of section 239 (d), for in an earlier part of the judgment their Lordships have observed that " it has been taken as settled law on all sides throughout these proceedings that the infringement of section 239 (d) would, if made out, constitute an illegality, as distinguished from irregularity, so that the conviction would require to be quashed under the rule stated in 28 I‑A 257 ". This is the case referred to above as 25 Madras

61. The result is that so far as the trial under the Criminal Procedure Code goes, it is illegal and should be set aside. On the same facts, however, the trial purports to be one for an Offence under section 5 of the Prevention of Corruption Act, 1947, Under section 5 (1) (a), a public servant is said to commit the offence of criminal misconduct in the discharge of his duty if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification other than legal remuneration as a motive or reward such as is mentioned in section 161 of the Indian Penal Code. Under subsection (2), any public servant who commits criminal misconduct in the discharge of his duty shall‑be punishable with imprisonment for a term which may extend to seven years, or with fine, or with both. In order to prove that a person habitually accepts bribes, it would be necessary to prove either a number of previous convictions under section 161, Indian Penal Code, or to prove a number of instances in which bribe was accepted, and it is the latter course that has been adopted in the, present case. It thus happens that for the purpose of proving the offence of criminal misconduct which has been created by the Prevention of Corruption Act, 1947 instances have to be proved which would under the ordinary law constitute more than three offences, a procedure which has been declared illegal by section 234 of the Code. Section 5 (2) of the Code, however, permits the adoption of any special procedure in the trial of offences under any other law than the Indian Penal Code by providing that such offences " shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions " (the provisions of the Code of Criminal Procedure), but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences ". The result in my opinion is that while the trial for the offences under section 161, Indian Penal Code is illegal, it is legal for the offence of criminal misconduct. In that view of the case, the convictions under section 161, Indian Penal Code, should be set aside. The next objection is that 'the evidence consists exclusively of the statements of the accomplices who under a firmly estab lished rule of law are unworthy of credit unless corroborated in material particulars. There are 16 witnesses, and with one exception they each deposed to having paid some money to the patwari in consideration of receiving some allotment of land. It should be explained here that the witnesses are almost entirely refugees from East Punjab who came in most cases Without any means of livelihood and bad to depend upon the mercy of the, Rehabilitation Authorities for being settled on land. The procedure was that some Revenue Officer handed over a chit to each refugee directing the subordinate revenue officials to allot land to him in a certain village. In due course the chit went to the patwari whose duty it was to accommodate the allottee. It thus rested with patwari to give preferences both in point of time and. in relation to the quality of land, and it could often happen' that even if land was available, the allottee was put off from day to day and left in state of uncertainty. Dost Muhammad P. W., a refugee from Amritsar, says that in Jia Bagga where he had settled he learnt that the petitioner patwari allotted land to refugees on receiving illegal gratification. He, therefore, went to an acquaintance, Jalal Din (P.W. 9) to whom the patwari was previously known. Jalal Din himself had been put off from time to time until he had paid Rs. 20 to the patwari. When Dost Muhammad came to him, he accompanied him to the Patwari and paid to the latter Rs. 30 on behalf of Dost Muhammad, whereupon Dost Muhammad's name was included in the permit of Ilam Din (P W. 2). It is unnecessary to go through the rest of the evidence which is more or less similar. The main attack on the witnesses is that they did not complain to anybody until the Deputy Superintendent of Police had come to record their evidence. This officer has appeared as P. W. 17 and stated that he had been directed to make. an enquiry on receipt of complaints against the patwari. When particulars of the offences were stated to the petitioner he made no statement but indicated that he would give a written statement after consulting his counsel. This he did not do. He, however, produced eleven witnesses, in defence. Of these, the first was a Nai6‑Tahsildar to whose circle the petitioner belonged. This officer stated that no complaint of bribery had been made to him against the petitioner. This statement is 'really in defence of the witness himself because if he makes an admission that complaints were made to him but that he did nothing, he would himself be guilty of dereliction of duty. Another defence witness, Rahim Bakhsh patwari (D. W: 9), is " a bird of the same feather ". The remaining witnesses are refugees who state that allotments were made to them without any monetary consideration. That may be true. On the other hand, some people are more grateful than others even if the object of their gratitude results from a pecuniary benefit conferred by themselves in the first instance. I return to the contention that the witnesses being accomplices their testimony should not be believed. Reliance was placed for this contention on Queen Empress v. Maganlal and Moti Lal (I. L. R. 14 Born. 115). In that case the accused were revenue officials who classified land for the imposition of land revenue. In order that the classification should be favourable to the ryots, the latter had collected a subscription and paid it by way of bribe to the officials concerned. One of the learned judges observed :‑

" I think it clear the witnesses were accomplices on their own statement. They had subscribed together in order to bribe the Government classer either to return their lands as liable to a 'lower assessment, or to leave them undisturbed in their own work at ‑a time when they were liable to be called out to assist at the Government survey. In offering money for such a purpose they were, in the eyes of the law, abettors of the offence of bribery: and I do not doubt they were themselves aware they were liable to the criminal law in offering money to a Government servant for a corrupt purpose. By the law both of India and England the evidence of an accomplice is admissible, and a conviction is not illegal because it proceeds upon the uncorroborated testimony of an accomplice (section 133, Indian Evidence Act). But the presumption allowed by illustration (b) of section 114 of the Evidence Act, that an accomplice is unworthy of credit unless he is corroborated in material particulars, has become a rule of practice of almost universal application ..They may be, however, cases of an exceptional character in which the accomplice evidence alone convinces a judge of the facts required to be proved, and section 133 would support him if he acted on that conviction without the corroboration usually insisted on. But it must clearly appear to the Court sitting in revision that the character of the witnesses was present in his mind when the judge or Magistrate came to such a conclusion, but if that is so, there is no ground for interference of a revisional character". The next paragraph in the judgment is important " Then comes the question : Are these cases of that ex ceptional character ? Accomplice evidence is held untrust worthy for three reasons:‑(1) because an accomplice is likely to swear falsely in order to shift the guilt from himself ; (2) because an accomplice, as a participator in crime, and consequently an immoral person, is likely to disregard the sanction of an oath ; and (3), because he gives his evidence under promise of a pardon, or in the expectation of an implied pardon, if he discloses all he knows against those with whom he acted criminally : and this hope would lead him to favour the prosecution . None of these elements is present here. The witnesses who have appeared are not anxious to shift their guilt to the patwari for there never was any question of their guilt. In the eye of the law they might be guilty as abettors, but on broad principles of justice it would not occur to Government to prosecute them. They were driven by necessity to act in this manner without incurring any loss to Government or to any other person. They could not have the feeling that they were participating in a crime and could not therefore regard themselves as immoral persons. There was no question of any pardon or a promise of pardon or of a bestowal of further favours on them if they made these particular statements. It will have been seen that almost an equal number of their brother refugees have appeared on the defence side to say that no consideration was paid by themselves. I, therefore, hold that the trial Magistrate could have had no doubt as to the truth of the statements which were made by these witnesses. The petition for revision is dismissed so far as it relates to the conviction under section 5 of the Prevention of Corruption Act. The result is that the petitioner will undergo a sentence of six months' rigorous imprisonment. I cannot help observing that the learned Additional Sessions judge acted leniently in reducing the sentence so drastically in a case in which for each separate offence a separate sentence ranging between three and six months might have been justly imposed. I, therefore, issue a notice to the petitioner to show cause why his sentence should not be enhanced. K. M. A./A. U. Revision partly accepted.