MAHESH PRASAD ti. October 29 THE STATE OF UTTAR PRADESH. [MuKHERJEA v. The Statt of Uttar Pradllh Jagannadhadas J. - - It of Corruption

· Learned counsel for the appellant has tried to per suade us, with reference to the evidence in the case, that the view taken by the Courts below is ·unsus· tainable. It is unnecessary to notice this argument in any detail because this'is an appeal on special leave and nothing so seriously wrong with the findings of fact have been shown, which call for interference by this ' ! I .. " S.C.R. SUPREME COURT REPORTS 967 r954 Court. . It is sufficient to notice the main legal argu- ments that have been advanced. - M akesh Pr as ail It is pointed out that the appellant though employed v. in the Railway was not himself a person who was in a The Stat•of position to give a job to the complainant nor is it Uttar Pradesh shown that he had any intimacy or influence with any particular official who could give a job. It is urged Jagannadhadaa J. therefore that the offence, if any, committed by the appellant could only be one of cheating and not the _ receiving of a bribe. This argument is without any substance. By the terms of section 161 of the Indian Penal Code a person who is a public servant and accepts illegal gratification as a motive for rendering· service, · with any public servant as such, is guilty of the offence thereunder. To constitute an offence under this section it is enough if the public servant· who receives the money takes it by holding out that he will render assistance to the giver "with any other public servant~' and the giver gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. None the less he is guilty of the offence under section 161 of the Indian Penal Code .. This is clear from the fourth explanation to section 161 of the Indian Penal Code which is as follows: "'A motive or reward for doing.' A person who receives a gratification as a motive for doing what he does not intend to do (or as a reward for doing what he has not done) comes within these words." Illustration (c) to section 161 of the Indian Penal Code which runs as follows also elucidates this: "A, a public servant, induces Z erroneously to believe that A's influence with the Government has obtained a title for Z and thus induces Z to give A money as a reward for this service. A has committed the offence defined in this section. " Thus where a public servant who receives illegal gratification as a motive for doing or procuring an I 1954 ,, .. Mahesh Prasad The Stale of Uttar Prat!esli Jagannodhadas J, %8 SUPREME COURT REPORTS [1955] official act whether or not he is capable of doing it or whether or not he intends to do it he is quite clearly within the ambit of section 161 of the Indian Penal Code. to such a case. It is suggested that The next contention that has been raised is that the charge does not specify the particular public servant who was intended to be influenced by the appellant in It is urged consideration of his receiving the money. that section 161 of the Indian Penal Code would not the phrase "with any public servant" in section 161 of the Indian to a specified public servant. Penal Code must relate In the present case the evidence of the complainant and the finding of the High Court is that the appel lant "purported viz., the the complainant with another public servant, Head-clerk at Allahabad." But even apart from such a finding there is nothing in the terms of section 161 of the Indian Penal Code requiring that the public servant contemplated therein must be a specified public servant. The material portion of the section is as follows : to attempt rendering of a service "for rendering or attempting to render any service or disservice to any person, with the Central or Pro vincial Government or Legislature, or with any public servant as such." contemplate The phrase "Central or any Provincial Government or Legislature" does not any specified individual or individuals. There is no reason why the phrase "any public servant" used in the same context should be taken to mean any specified public servant. The gist of the offence under section 161 of the Indian Penal Code (in so far as it is relevant here) is the receipt by a public servant of illegal gratification as a motive or reward for the abuse of official position or function, by the receiver himself or by some other public servant at his instance. There is, this argument. therefore, no substance The only serious argument that has been advanced and which requires a little closer is that there was no valid sanction for the prosecution. There this is a case to which the Prevention is no doubt that examination I - • ' • 1954 Mahesh Prasllll v. The Statt of Uttar Pradllh Jagannadhadas J. - - S.C.R. SUPREME COURT REPORTS 969 It of Corruption Act, 1947 would apply and that by virtue of section 6 ( c) thereof the prosecution requires the sanction of the authority "comp~tent to remove is urged that this the appellant from his office." requirement was not satisfied on the facts of this case. It has been pointed out that the appellant is a civil servant of that by virtue of Indian Union and article 311 (1) of the Co_nstitution he cannot be removed by an authority subordinate to that by which he was appointed. This appears also to be the position under rule 1705( c) of the Indian Railway Establishment Code, Volume I (1951 Edition) which is as follows: "No railway servant shall be removed (or dismis sed) by an authority lower than that by which he was appointed to the post held by him substantively." the appointing authority. The sanction for the prosecution in this case was granted under Ex. 10 by one Shri L. R. Gosain, Indian Railway, Allaha Superintendent Power, East bad. The order of appointment of the appellant, Ex-F, shows the Divisional Personnel Officer, East Indian It Railways, Allahabad, as may be mentioned that in the appeal before the Sessions Judge a contention was raised that the appointment of the appellant was in fact made by the Divisional Superintendent and that Ex. F was only signed by the Divisional Personnel Officer on his behalf. The Sessions Judge found against this contention and the same has not been challenged before us. What, however, is urged is that the Superintendent Power who gave the sanction for prosecution is not shown to be an officer not lower in rank than the Divisional Personnel Officer who made the appoin!ment. The question as to the validity of the sanction has been raised both before the Sessions Judge as well as before the High Court. The High Court appears to have merely in considering the question the Railway Regulations, that under satisfied Shri L. R. Gosain, Superintendent Power, was a person compet1ent to from his office within the terms of section 6 of the Prevention of Cor ruption Act. The High Court does not appear to have considered the further question whether or not the requirements of article 311(1) of the Constitution and the appellant remove itself 970 SUPREME COURT REPORTS (1955J ·. 1 954 Mahtsh Prasad v, The State of Uttar Pradesh Jagannadadhas. J• · rule 1705(c) of the Railway Establishment Code have been satisfied with reference to the inter se poS1t10n as between the authority who appointed appellant and the authority who sanctioned the prosecution. The learned Sessions Judge, however, has recorded a cate gorical finding that the Divisional Personnel Officer is in the same grade as the Superintendent Power. His finding is in the following terms : • - .. "I, therefore, hold that the accused could be and was actually appointed by the Divisional Personnel Officer who is in the same grade as the Superintendent Power. the Super intendent Power Mr. L. R. Gosain was not authorised the accused from service by virtue of rule to remove 1705 and this argument advanced against the validity of sanction, Ex. 10, falls to the ground". It cannot therefore be substantially Learned counsel for the appellant urged that the requirement both of the Constitution and of the rule of the Railway Code, contemplates the authority competent to remove must be either the very authority who appointed or any other auth<>rity directly superior to the appointing authority in same department. We do not think that this contention is tenable. What the Constitution r.equires is that a person should not be to the one by removed by an authority subordinate rule in the whom he was appointed and what the same, viz., Railway Code prescribes is "the authority competent should not be lower than the one who made the appointment". These provisions cannot be read as implying that the removal authority who made the must be by the very same appointment or by his direct superior. is of the the removing autl1ority us to be enough that same rank or grade. In the present case it does not appear into which particular branch of the department taken, in the first instance in 1944 the appellant was under Ex. F. But it is in the evidence of P.W. 4, Head-clerk of the office of the Divisional Superintend" ent, that the office of the Running Shed Foreman in which the appellant was a clerk in 1951 was directly Superintendent Power. He was obviously under the sanction.; to grant rhe most appropriate officer to remove It appears · the S.C.R .. SUPREME COURT REPORTS 971 provided he was of a rank not less Personnel Officer. than the Divisional 1954 · Mahesh PraSad v. ·-- The State_ of Uttar Pradesh ·JagonnOdhadas J . • - r -l - Counsel for the appellant urges that the evidence does not support the the learned Sessions finding of Judge that Shri L. R. Gosain, Superintendent Power, was of the same grade as the Divisional Personnel Qfficer who made the appointment. P.W. 4 in his evidence, however, quite clearly speaks to this as follows : "Divisional Superintendent division. The Divisional is the head of the entire administrative Personnel Officer is under him. The Superintendent Power and Superintendent Transport are also under him and also such other officers of the same rank . ........... Divisional ·Personnel Officer and the various Superintendents officers of the same rank. They are not subordinate to each other". . Judge on learned Sessions It has been commented that this should have been substantiated by and not by oral the official records evidence. That no doubt would have been more satis factory. The appeal, in referred to the Classified order to satisfy himself, has List of Establishment of Indian Railways and the same has also been produced before us for our information. This shows that both the Divisional Personnel · Officer as well as Superintendent Power are officers in the senior scale drawing equal scales of pay, Rs. 625-50-1375. This is an indication that they are officers of the same rank and confirms the oral evidence of P.W. 4 who being the Head-cle_rk of the Divisional Superintendent's. office must be competent to speak about these matters. It certainly cannot be that the Superintendent : Power who has granted the sanction for prosecution of . the appellant at the time working under him, is of a rank or a grade lower than the Divisional Personnel Officer who appointed the appellant. This matter would probably have been more satisfactorily clarified in the trial court if the question as the validity of the sanction had been raised not merely with reference to_ the wording of section· 6 of the Prevention of Corrup-·' tion Act but also as read with article 311(1) of the Con- · stitution and rule 1705(c) of the Railway Establishment .. ,[ • \_ " 1954 MaMsh Prasad v. Tlle$fatf!of Ult., I+a¢ah J•gtµ1nadhadas ]. 'l72 SUPREME COURT REPORTS [1955J Code. On the material we are not satisfied that there is any reason to reverse the findings of the courts belmf that the sanction is valid. It has All the contentions raised before us are untenable. been repre This appeal must accordingly fail. sented to us that the appellant who has been refused bail by this court when leave to appeal was granted but has been granted bail subsequently has served intervening nearly six months of imprisonment in the period, that he is a young man and has lost his job. In the circumstances we consider that it is not neces sary to send him back to jail. The result, therefore, is the modification that the appeal is dismissed subject to of sentence of imprisonment. We reduce the sentence of imprisonment to the period already undergone. The sentence of fine stands. already Appeal dismissed ASSAM BENGAL CEMENT CO. LTD. f), THE COMMISSIONER OF INCOME-TAX, WEST BENGAL [MEHAR CHAND MAHAJAN C.J., s. R. DAS, BHAGWATI and VENKATARAMA AYYAR JJ.J Income-tax Act (XI of expenditure-Meaning of I922), s, 10(2)(xv)-Capital and distinction Indian expenditure-Revenue between the two. Section 10(2)(xv) of the Indian Income-tax Act, 1922, uses the term 'capital expenditure' for which no allowance is given to the assessee. The term 'capital expenditure' is used as contrasted with the term 'revenue expenditure' in respect of which the assessee entitled to allowance under section 10(2) (xv) of the Act. As pointed out by the Full Bench of the Lahore High Court in 15 l.T.R. 185], it is not easy Benarsidas fagannath, In re [(1946) the abstract or to lay to define the test to discriminate between a down any g~neral and satisfactory capital ancf_ a revenue expenditure. Though it to re concile al\ the decided i;:ases on the subject, as each case had been decided on its peculiar could be term 'capital expenditure' in so1ne broad principles is not easy fac; ts,