G. C. GUPTA. J. ( 1 ) THE appellant, a Police Constable, has been found guilty of an offence punishable under section 161, I. P. C. and sentenced to one year's R. I. and a fine of Rs. 50/- and in default of payment of fine, a further R. I. for 6 months, by judgment dated 25-3-1982, passed by Shri P. C. Agarwal, Special Judge, Chatarpur, in Special Criminal Case No. 1 of 1980, and has preferred this appeal under section 374 (2) Cr. P. C. challenging his aforesaid conviction and sentence. ( 2 ) APPELLANT was put on trial for having accepted a sum of Rs 30/- as illegal gratification from Arvind Kumar Jam (P. W. 1) on 9-5-1980 at Naogaon while working as a public servant, punishable under section 161, I. P. C. and section 5 (1) (a) of the Prevention of Corruption Act. The learned Special Judge has found the appellant not guilty of offence under section 5 (1) (a) of the said Act, but has held him guilty under section 161, I. P. C. Allegations against the appellant were that in May 1980, the appellant was employed as a Police-Constable and posted at Naogaon. Arvind Kumar Jam (P. W. 1), who was a Member of Educated Unemployed Association, had been given a licence by the Collector, Chhatarpur, for selling kerosene oil in retail at his shop at Naogaon, and was selling kerosene oil on the basis of the said licence. The appellant approached the said Arvind Kumar Jam on 21-4-1980 and enquired as to how the kerosene oil was being sold. Arvind Kumar Jam informed the appellant that kerosene oil was being sold as per orders of the Collector. Appellant asked thesaid Arvind Kumar Jam to meet him in the evening. However, the appellant himself reached the shop of Arvind Kumar Jam in the evening and told him that in case he wanted to sell kerosene oil, he should pay him a sum of Rs. 10/- per day. Arvind Kumar Jam did not agree to make the payment and, therefore, the appellant left the place. Next day, the appellant again met Arvind Kumar Jam and told him that in case be did not pay the money, he would not be able to carryon business. This threat was repeated on the following day as well. 10/- per day. Arvind Kumar Jam did not agree to make the payment and, therefore, the appellant left the place. Next day, the appellant again met Arvind Kumar Jam and told him that in case be did not pay the money, he would not be able to carryon business. This threat was repeated on the following day as well. On this, Arvind Kumar Jam reported the matter to Rajnarayan (P. W. 7), President of the Association, who promised to deal with the appellant. Rajnarayan then met the appellant and persuaded him to accept Rs. 5/ -. per day instead of Rs. 10/ -. Arvind Kumar Jam (P. W. 1), Rajnarayan (P. W. 7) and Anoop Kumar (P. W. 3), thereafter, went to the Collector, Chhatarpur, and lodged report (Ex. P. 1 ). The Collector ordered Sub-Divisional Magistrate, Shri R. P. Mishra (P. W. 2) to take necessary action. Shri Mishra signed a twenty rupee note and a ten rupee note (Arts A-i and A-2) and handed over the same to Arvind Kumar Jam with a direction that these notes be given to the appellant as bribe. A trap was also arranged. Panchnama (Ex. P-3) was recorded at Chhatarpur and it was decided to hand over the money to the appellant at Ansar Pan Bhandar, Naogaon. A. K. Jam (P. W. 8), Deputy Superintendent of Police, was appointed by the Superintendent of Police, Chhatarpur, to participate in the trap. Arvind Kumar Jam, thereafter, gave Rs. 30/- in two currency notes to the appellant, who kept the same in his pocket. On receiving signal from Rajnarayan, R. P. Mishra (P. W. 2) and A. K. Jam (P. W. 8) reached the spot and seized two currency notes on being presented by the appellant. A Panchnama (Ex. PA) was also prepared and appellant arrested. Thereafter, the appellant was put on trial as aforesaid. ( 3 ) THE appellant denied having accepted any illegal gratification. He even denied the knowledge that Arvind Kumar Jam had obtained a licence for selling kerosene oil. Appellants specific defence was that he had purchased an imported pant piece from Arvind Kumar Jain's shop through one Rajandra Kumar Sahu (D. W. 2) for a sum of Rs 85/-, but as this pant piece was not of full length so he had returned the same. Arvind Kumar Jam had paid him Rs. Appellants specific defence was that he had purchased an imported pant piece from Arvind Kumar Jain's shop through one Rajandra Kumar Sahu (D. W. 2) for a sum of Rs 85/-, but as this pant piece was not of full length so he had returned the same. Arvind Kumar Jam had paid him Rs. 50/- at the time of return and had promised to pay Rs. 35/- later on. On 9-5-1980, Arvind Kumar Jam had returned this balance of Rs. 35/- to him, out of which Rs. 30/- were seized. Appellant had examined three defence witnesses to prove his defence. It was also his case that prosecution witnesses are of bad character and known criminals and have firmed a group of their own to harass him. ( 4 ) THE learned Special Judge, relying on evidence of prosecution witnesses, held that the appellant was a public servant and had obtained a sum of Rs. 30/- from Arvind Kumar Jam as illegal gratification. The learned Judge disbelieved the defence that Rs. 35/- were returned to the appellant as the balance price of pant piece. The learned Judge, therefore, found an offence punishable under section 161, I. P. C. made out against the appellant. He, however, found nothing to justify a conclusion of commission of offence under section 5 (1) (a) of the Prevention of Corruption Act. That is how the appellant stands convicted and sentenced. ( 5 ) SUBMISSION of the learned counsel for the appellant is that in view of the previous character, conduct and criminality of prosecution witnesses, it would be unsafe to convict the appellant on their testimony. It is also submitted that an adverse inference should be drawn against the prosecution for not-examining independent persons of the locality even when they were available. It is also submitted that even if all facts found proved against the appellant are accepted as correct, there would be no element of discharge of public duty and, hence, section 161, I. P. C. would not be attracted. Grant of sanction is also challenged as not proved and otherwise illegal. Further submission is that defence of the appellant is probable and sufficiently made out from the material on record and should, therefore, have been accepted. At the end, it is submitted that a sentence of jail imprisonment is severe looking to the facts and circumstances of the case. Grant of sanction is also challenged as not proved and otherwise illegal. Further submission is that defence of the appellant is probable and sufficiently made out from the material on record and should, therefore, have been accepted. At the end, it is submitted that a sentence of jail imprisonment is severe looking to the facts and circumstances of the case. The learned Government Advocate has supported the conviction and sentence with his usual vehemence and has pleaded the anxiety of the State Government to root out corruption. ( 6 ) BEFORE examining the submissions of the appellant in detail, it may first be examined if on facts found proved against him, offence punishable under section 161, I. P. C. is made out? A perusal of the impugned judgment indicates that it has been found as a matter of fact that - (i) appellant was employed as a Police Constable on the date of incident and was a public servant; (ii) the appellant had received Rs. 30/- from Arvind Kumar Jam on 9. 5-1980 and (iii) the said amount did not form part of his legal remuneration, but was illegal gratification as a motive or reward for permitting Arvind Kumar Jam to sell kerosene oil contrary to law. The question, therefore, is whether on these facts, it can be held that the appellant is guilty of offence punishable under section 161, I. P. C. ? ( 7 ) SECTION 161, I. P. C. deals with three categories of cases of acceptance of gratification other than legal gratification, viz. (i) as a motive or reward for doing or for bearing to do any official act; (ii) for showing or forbearing to show, in the exercise of his official functions, favour or dis-favour and (iii) for rendering or attempting to render any service or disservice to any person with the Central or any State Government etc. The first two categories relate to official act and-official function of the public servant concerned, while the third category of cases concerns persons with the Central or the State Government or authorities mentioned in the section. As far as the present case is concerned, it is a case of either first or second category and will have to be considered in the context of law relating to the same. As far as the present case is concerned, it is a case of either first or second category and will have to be considered in the context of law relating to the same. Fortunately for us, the provision is as old as the Code itself and, hence, enough case law is available for guidance on the subject. In Ram Krishan versus Delhi State the Supreme Court held that if a man obtains a pecuniary advantage by the abuse of his position he will be guilty under section 5 (1) (d) of Prevention of Corruption Act. Section 161 refers to a motive or reward for doing or forbearing to do something, showing favour or dis-favour to any person, or for inducing such conduct by the exercise of personal influence. It was, however, not necessary to prove all this for an offence under section 5 (1) (d ). It is enough if by abusing his position as a public servant, a man obtains for himself any pecuniary advantage irrespective of motive or reward for showing favour or dis-favour. This case brings outthe distinction between section 161, I. P. C. and section 5 (1) (d) of Prevention of Corruption Act. In State of Ajmer versus Shivji La12 the Supreme Court considered the case of a teacher in a Government school or accused of taking gratification for procuring a job for a person in a Railway Running Shed and was charged for an offence under section 161, I. P. C. and section 5 (1) (d) of Prevention of Corruption Act The Supreme Court held that the mere fact that the person takes money in order to get a job for a person some where, would not, by itself, necessarily be an offence under section 161, unless all ingredients of that section are made out. The matter was examined in detail in Dalpat Singh versus State of Rajasthan3 where the appellant, a Havaldar and Subedar in the Rajasthan Armed Constabulary and serving in border outpost at a distance of about two miles from the Pakistan border extorted money from the villagers by using force or threat of force and harassment. They were charged for having obtained an illegal gratification of Rs. 100/- by threatening his prosecution for indulging in black marketing and crossing the border-line. The Supreme Court examined the aforesaid in the context of section 161 Penal Code, and held as under: 16. They were charged for having obtained an illegal gratification of Rs. 100/- by threatening his prosecution for indulging in black marketing and crossing the border-line. The Supreme Court examined the aforesaid in the context of section 161 Penal Code, and held as under: 16. Before an offence is held to fall under section 161 I. P. C. , the following requirements have to be satisfied: (1) the accused at the time of the offence was, or expected to be, a public servant, (2) that be accepted, or obtained, or agreed to accept, or attempted to obtain from-some person a gratification, (3) that such gratification was not a legal remuneration due to him, and (4) that be accepted the gratification in question as a motive or reward, for (a) doing or forbearing to do an official act, or (b) showing, or for bearing to show favour or disfavour to some one in the exercise of his official functions or (c) rendering, or attempting to render, any service or dis-service to some one, with the Central or any State Government or Parliament or the Legislature of any State, or with any Public servant. As mentioned earlier, admittedly the appellants were public servants. It is also established that they obtained from the several witnesses examined in this case illegal gratification. The word obtain is a strong word. It includes also things received by extortion, But can it be said that they obtained the gratifications in question as a motive or reward for doing or for forbearing to do an official act or for showing or for bearing to show favour or disfavour to the persons in question in the exercise of their official functions? The evidence on record clearly shows that neither the appellants intended to show any official favour to the persons from whom they extorted money or valuable things nor those persons expected any official favour from them. They paid the amounts in question solely with a view to avoid being ill-treated or harassed. The scope of sec. 161, I. P. C, had been considered by this Court in State of Ajmer v. Shivji La14, as well as in State of Uttar Pradesh v. Kuijas Rai5. They paid the amounts in question solely with a view to avoid being ill-treated or harassed. The scope of sec. 161, I. P. C, had been considered by this Court in State of Ajmer v. Shivji La14, as well as in State of Uttar Pradesh v. Kuijas Rai5. Though the former decision was overruled in certain respects by a later decision of this Court to which reference will be made hereinafter that part of the decision which considered the requirements of section 161, I. P. C. was not differed from, Therefore, it is difficult to hold that the acts complained against the appellants can be held to constitute offences under section 161, I. P. C. On the basis of the aforesaid, the Supreme Court held that one of the appellants was guilty of violating section 5 (1) (d) of the Prevention of Corruption Act and nothing else. In Trilok Chand v, State of Delhi6, it was held that the phrase as a motive or reward for means on the understanding that the bribe is given in consideration of some official act or conduct on the part of the public servant. The Supreme Court, however, held that in law, the incapacity of the Government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the purview of this section. Nevertheless, it is an important factor bearing on the question as to whether the accused had taken the gratification as a motive or reward for doing or forbearing to do any official act for showing any favour or disfavour in exercise of his official functions. Following this law, it has been held that when the act is not part of his official duty or is not in the exercise of his official functions or has no connection with his official functions, a public servant does not commit an offence under this section by accepting, or obtaining gratification other than legal remuneration fordoing that act. (The State v. Sadhu Charan. Allahabad High Court in Bachelal v. State, held that where a person accepts money for giving an information which he is not bound to give, he is not guilty under this section, even though he came across the information whileperforming his official duties. (The State v. Sadhu Charan. Allahabad High Court in Bachelal v. State, held that where a person accepts money for giving an information which he is not bound to give, he is not guilty under this section, even though he came across the information whileperforming his official duties. The reasoning given by the High Court was that by giving the information which he was not bound to give, the public servant was not doing an official act. In Vishnu Prasad v. State of UP7, Allahabad High Court acquitted a Police Constable for this offence who had gone to arrest an offender, but in his absence, had carried away his wife and demanded gratification for her release. The reasoning of the High Court was that illegal gratification was not demanded in the exercise of his official function. This analysis of judicial decisions would clearly show that mere demand of money by misusing his position would not amount to an offence under section 161, I. P. C. In order to convict a person under this section, it has to be further shown that it was demanded and obtained as a motive or reward for doing official act of anyone of the three categories mentioned in the section. It may, therefore, be examined if it can be said that this essential requirement of law is satisfied in the instant case. ( 8 ) THAT the appellant was employed as a Constable and that Arvind Kumar Jam (P. W. 1) was permitted by the Collector by issuing a licence to sell kerosene oil in retail, not being in dispute. It may be examined if the appellant, as a Police Constable, had any connection whatsoever with the retail sale of kerosene oil? There is nothing on record to indicate under what provision of law, Arvind Kumar Jam was granted licence by the Collector and yet it may be assumed that it must have been done under the Essential Commodities Act. It has been found as a matter fact that the appellant threatened Arvind Kumar that unless he was willing to pay the illegal gratification, he would not be able to do his business. It has been found as a matter fact that the appellant threatened Arvind Kumar that unless he was willing to pay the illegal gratification, he would not be able to do his business. The question for consideration is whether the appellant, as a Police Constable, was in a position to provide protection to Arvind Kumar Jam for carrying on his business of retail selling of kerosene oil in return of money, or was in a position to force closure of his business in the event of his refusal to pay? There is nothing on record to answer these questions one way or the other. A perusal of the Essential Commodities Act and Orders made there under relating to retail sale of kerosene oil, does not indicate that any role whatsoever has been assigned to a Police Constable in the matter. Kerosene (Fixation of Selling Prices) Order, 1970, appears to be relevant to the case, as it provides for obligations which a dealer is required to perform. This order does not authorize a Police Constable to do anything against the dealer. In the absence of any evidence on record, it must be held that the appellant had no official connection whatsoever with the dealing of kerosene oil by Arvind Kumar Jam. Admittedly, Arvind Kumar Jam had been granted licence by the Collector and, therefore, the appellant could not stop his business as long as the licence remained valid. Appellant had no right to inspect or seize the kerosene oil and, therefore, he was not in a position to either help or harass the said Arvind Kumar Jam. Considered in this context, the conduct of the appellant would have no relationship whatsoever either with his official position or discharge of official functions. Under the circumstances, the case would be governed by the dictum of the Supreme. Court in Dalpat Singh's case (supra) and it will have to be held that the appellant cannot be convicted under section 161, I. P. C. In the said case also, the appellants were Police Constables having no authority whatsoever to put the complainant on trial in discharge of their official duties. The position in the instant case appears to be worse factually. The position in the instant case appears to be worse factually. In the Supreme Court case, the Constables could have detained the complainant for illegally crossing the border whereas, in the instant case, there is nothing that the appellant could do against Arvind Kumar Jam legally. In this view of the matter, it must be held that there is no material whatsoever on record to hold the appellant guilty of offence punishable under section 161, I. P. C. His conviction and sentence must, therefore, be set aside. ( 9 ) INSPITE of the aforesaid verdict, this Court is not happy with the prosecution not charging this appellant for contravention of section 5 (1) (d) of the Prevention of Corruption Act, as, according to Dalpat Singhs case (supra), this appellant would be guilty of this offence, if finding of the learned Special Judge on aforesaid fact is confirmed by this Court. This Court would not be in a position to punish the appellant for the said violation in the absence of any charge in that behalf. ( 10 ) IN view of the finding aforesaid, it is not considered necessary to examine various other submissions of the learned counsel for the appellant. ( 11 ) THE appeal succeeds and is allowed. The conviction and sentence of the appellant for an offence under section 161 I. P. C. is set aside. Since the appellant is on bail, his bail bonds are cancelled. Appeal Allowed. .