JUDGMENT
1. The appellant Rabindra Nath Mukherjee, a constable attached to Ranaghat Government Railway Police Station, was tried upon a charge under Section 161 of the Penal Code under the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, by Sri N. Banerjee, Judge, Special Court, Nadia. As a result of the trial thus held he was convicted and sentenced to pay a fine of Rs. 100/-, in default to suffer rigorous imprisonment for one month. He appeals against this order of conviction and sentence.
2. The facts briefly are that on 25-4-1954 the appellant was on duty on the Ranaghat Station platform at about 10-30 A.M when Baidyanath Kundu (P.W 10), a resident of Eastern Pakistan arrived at the station by the down North Bengal Express. After getting down from the train he proceeded to the Third Class waiting room. He had two mats with him which he was taking to his sister-in-law's house at Santipur.
3. In the waiting room there were other passengers one of whom offered to purchase the mats. Baidyanath Kundu at first refused to sell, but at the insistent request of the gentleman he agreed and he was paid Rs. 3/- as the price thereof. The purchaser also paid -/8/- annas on account of refreshment to the seller Baidyanath Kundu. The appellant who was on duty on the station platform evidently noticed the transaction and he came up towards Baidyanath Kundu and charged him with having been guilty of indulging in blackmarketing in respect of the articles. After having so charged the appellant, took Baidyanath towards the Government Railway Police Station and while so doing he asked Baidyanath to pay him some money.
4. When Baidyanath was just a few steps away from the Government Railway Police Station, he demanded to know why money was being asked of him, when the appellant took away his purse which contained a sum of Rs. 5/- in notes and coins of Indian currency. Baidyanath had some Pakistani notes which were not taken; and he was then told to leave the station platform.
5. After the accused-appellant had separated from Baidyanath, the latter met some witnesses in the case who were standing nearby and had seen the occurrence. Baidyanath Kundu related in detail what had happened whereafter those witnesses (P. Ws. 1, 2 and 3) took him to the shop of one Badriprosad Agarwalla (P.W 6) close by. From Badri's shop Baidyanath was taken to the dispensary of Dr. Debnath Ghosh (P.W 4) and shortly thereafter a Mukhtear (P.W 5) of the local Bar and several other persons appeared at the dispensary when Baidyanath repeated what had happened to him.
6. Baidyanath was taken to the station platform where he identified the appellant as the constable who had taken away Rs. 5/- from him in the presence of those witnesses. The party then proceeded to the Government Railway Police Station where an information was lodged by Baidyanath Kundu which was treated as the First Information Report in the case.
7. Thereafter an investigation started which resulted in the submission of charge-sheet against the appellant who ultimately came to be tried in accordance with the provisions of the West Bengal Criminal Law Amendment Act, 1949, by the Special Court at Nadia.
8. The appellant was tried upon a charge under S. 161, Penal Code with having obtained from P.W 10 Baidyanath Kundu a gratification other than legal remuneration as a motive for releasing him from custody.
9. The appellant pleaded not guilty to the charge framed against him and his defence appears to be that he had arrested the complainant Baidyanath Kundu on the date of the alleged occurrence for having sold the mats within the station premises in contravention of Kailway Rules and that upon arrest he took the appellant to the Assistant Sub-Inspector K.P Mukherjee who was then in charge of the Government Railway Police Station; but Baidyanath Kundu, the complainant, somehow managed to procure his release from custody, and thereafter falsely implicated him out of grudge with having committed the offence.
10. At the trial quite a number of witnesses were examined on behalf of the prosecution in proof of the charge that had been framed against the appellant. There were several eye-witnesses who professed to have seen the main part of the transaction which forms the subject-matter of the charge. There were other witnesses besides to whom Baidyanath Kundu related the occurrence immediately after it was over and gave the details of the incident. These latter witnesses were called to lend support to the evidence of Baidyanath Kundu.
11. The accused-appellant called some evidence in support of the case he made. That evidence was directed to showing that a certain person had been arrested at about the time of the alleged occurrence and taken to the police station.
12. The learned Judge after having considered the evidence in the case came to the conclusion that the charge against the appellant had been established. He referred to the evidence of the witnesses for the prosecution and then considered the evidence called by the defence and the suggestions put forward by the appellant. On the facts and circumstances transpiring, the learned Judge held proved the charge brought against the appellant.
13. On behalf of the appellant it has been argued that upon the allegations made and in view of the evidence on the record, the appellant could not be convicted in law of an offence under S. 161, Penal Code. The contention is that taking the evidence such as it is, it cannot reasonably be said that the accused obtained the sum of Rs. 5/- by way of gratification as a motive for doing or forbearing to do an official act; rather, the evidence if believed suggests a charge of extortion.
14. It is said that in reply to the query made by P.W 10 Baidyanath Kundu as to why he should make any payment, the appellant snatched away the purse containing notes and coins and that would constitute an offence of extortion and not an offence of taking illegal gratification punishable under S. 161, Penal Code.
15. The relevant part of S. 161, Penal Code is to the effect that whoever being a public servant obtains 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 for doing or forbearing to do an official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, shall be punished in a particular manner indicated in the section.
16. There is an explanation attached to the section which says that a person who receives a gratification as a motive for doing what he does not intend to do, or as a reward Cor doing what he has not done, comes within the expression “a motive or reward for doing.” The word “gratification” is explained as not being restricted to pecuniary gratification or to gratification estimable in money.
17. The essential ingredients of Section 161 of the Code are therefore that if a person being a public servant obtains or attempts to obtain from any person any gratification which is not legal remuneration as a motive for doing or forbearing to do any official Act the offence described is committed. Question is raised whether when force is applied or when a person is under some sort of compulsion to part with money, that circumstance would lift the case out of S. 161, Penal Code.
18. It has been argued that a person who happens to be the victim must in every case understand that the money which is passing from him to the person charged is so passing as hush-money; and there must be some evidence to indicate that the victim willingly parts with the money or other gratification which is said to be the motive for doing or forbearing to do an official act on the part of the person charged.
19. It is quite conceivable that a public servant may commit extortion by compelling a person put in fear to part with property. But whether in a given case the evidence makes out a charge of extortion or one under S. 161 is a question to be decided upon the facts of each case.
20. Upon the general question as to whether the victim must know that the money he is made to part with is gratification or hush-money as motive for doing or forbearing to do an official act, I think, there can be no difficulty in holding that the gratification must be impressed with the character of being illegal remuneration which is knowingly given as such and knowingly taken as such. If the victim has not the slightest notion that the money or other illegal gratification which passes from him is not taken as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to, show favour or disfavour to the victim, then it is indeed difficult to Hold that such transaction will amount to an offence described in S. 161, Penal Code.
21. In the present case, however, that question does not strictly arise. The evidence in the case clearly indicates that the person who parted with the money, that is to say P.W 10 Baidyanath Kundu knew very well why money was being demanded of him by the constable. The evidence is clearly to the effect that the appellant charged him with having been guilty of blackmarketing in respect of the mats in question. He was told to accompany the appellant to the Government Railway Police Station.
22. Then the appellant took him along the platform towards the Police Station and when the appellant and Baidyanath came to the vicinity of it the former asked the latter to pay him money. Then Baidyanath demanded to know why money was being demanded of him when the appellant replied by relieving him of his purse which contained a sum of Rs. 5/-.
23. Taking this evidence into account there can be no manner of doubt that Baidyanath Kundu was clearly charged with having been guilty of indulging in blackmarketing which presumably afforded quite intelligible clue to the action of the appellant who dragged him towards the Police Station, and when just a few steps from it, the accused asked him to pay the money; it was then upon a remonstrance in the shape of an interrogation that the accused-appellant took away the purse. It has been argued on behalf of the appellant that the interrogation “Why are you demanding money from me?” is significant.
24. The query, it is said, disclosed a complete state of ignorance as to why the money was being demanded of him by the appellant. I cannot agree with this contention. Having regard to the context in which the demand was made, it must be held that this interrogation was not so much a query as a denial of complicity in the crime of blackmarketing. It was almost a figure of speech.
25. When the question was asked by P.W 10 Baidyanath Kundu, he was not expecting an answer. He was clearly asserting something with emphasis and saying that he was by no means anxious to purchase release since he had not indulged in black-marketing. That was an effective protest and not a question put in expectation of an answer. It is to be observed that before this query was made the appellant had already asked him for money.
26. Taking the sequence of events into consideration and the context in which they happened, only one conclusion seems possible and that is the witness had no manner of doubt why money, which was gratification other than legal remuneration, was being demanded of him. He could not possibly be left in doubt inasmuch as he had been openly charged with having committed blackmarketing. He was told to accompany the appellant to the police station and when just a few steps away from it the demand for money was made.
27. This completes the picture and satisfies, in my view, the elements of S. 161, Penal Code. The section which I have read above makes it clear that when a public servant obtains or attempts to obtain from any person illegal gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do an official act, he commits the offence. So there is no question that in this particular case there was in any event an attempt to obtain from the victim Baidyanath Kundu (P.W 10) a sum of money as illegal gratification, other than legal remuneration.
28. I must, therefore, hold that the allegations against the appellant do disclose an offence under S. 161, Penal Code and, therefore, in accordance with the provisions contained in the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, the appellant was liable to be tried by a Special Court only. The conviction and the sentence cannot, therefore, in my view, be challenged on the ground that the trial should not have been held by a special Court but by an ordinary Court of the land.
29. (His Lordship then discussed evidence and concluded).
30. Taking the entire evidence as a whole I think there is no ground for interference with the conviction of the appellant. The learned Judge had the advantage of seeing the witnesses and hearing the evidence; and unless there is good reason for differing from him, there can be no question of appraising that evidence differently.
31. The result, therefore, is that the conviction of the appellant is affirmed. The sentence is by no means severe.
32. The appellant will now pay the fine.
33. The appeal is, accordingly, dismissed.
D.H.Z
34. Appeal dismissed.