Norman Macleod, C.J.
1. The accused was charged before the Acting Chief Presidency Magistrate that he on or about the 14th day of October 1921 at Bombay abetted the commission by H.B. Clayton, Esquire, Municipal Commissioner of Bombay, a public servant, of an offence of taking gratification as the said public servant other than legal remuneration as a motive for doing a future official act, viz., giving contracts, punishable with imprisonment under Section 161 of the Indian Penal Code, which said offence was not committed in consequence of the said abetment and thereby committed an offence punishable under as, 116 and 161 of the Indian Penal Code.
2. The accused was acquitted and Government have appealed.
3. The facts are shortly as follows:-A cousin of the accused, one Ebrahim Mahomedally, had submitted plans to the Municipality, for a building on the Queen's Road, to which objections were raised. On the 21st September, accused called on Mr. Clayton and handed him a memorandum in respect of the objections. The Commissioner sent the memo to the Executive Engineer for report and on his report the objections were eventually withdrawn. On the 21st September, the accused, had spoken to the Commissioner about a tender he had made for the supply of sleepers in reply to an advertisement of the Municipality, and asked the Commissioner whether the result of the tenders was known. As a matter of fact a tender was sent by the accused's firm over his signature on the 22nd September. On the 8th October, a notice was sent to Ebrahim that the objections B and C to the construction of his building had been waived by the Commissioner and he was asked to inform the accused of that fact. On the 12th October, the accused wrote to the Commissioner thanking him for waiving the objections and asking him to dine at the Willingdon Sports Club on any day that might suit him. On the 14th October, before the reply which was endorsed on the letter of invitation could be sent the accused came to see the Commissioner. I give the Commissioner's account of the conversation which then took place :
The accused thanked me far the concession I had made in respect of his cousin's building. He then referred to the tender he had put in for the sleepers. I told him that the contract was not disposed of and that I had nab seen the papers. He then said ' I think that the Municipality is asking for tender for 5000 tons cement' or words to that effect. He asked me whether it was any good to put in a tender for the same. I told him that 1 would be glad if he would put in a tender because I wanted to have as many tenders as possible and he remarked that it was no good putting in a tender unless he had influence. I remember the word 'influence', but I am not certain whether be said 'unless one had influence ' or ' unless I had influence.' 1 told him that the tenderer who put in a tender for cement as per British specification and at the cheapest price would probably get the contract. I expected the accused to leave me at this stage and I asked whether he had anything else to say and the accused said ' when shall I see you again.' I told him there was no necessity for him to see me again. He said 'shall I see you here or elsewhere.' I said 'what about'. He said 'about that Rs. 5000'. I said 'what Rs. 5000'. He replied 'my cousin wishes to give you Rs. 5000'. I began to get suspicious about the accused's intention since he had mentioned the word 'influence'.
4. The Commissioner then called in Mr. Kirpalani who was sitting in a screened off portion in the same room and said :
'This gentleman has just offered me a bribe of Rs. 5000.'...The accused in the presence of Mr. Kirpalani admitted that be bad offered me a sum of money on behalf not of himself but of his cousin. I then requested the accused to leave my office at once and never to come back again. The accused was very reluctant to do so. He was profuse in his apologies.
5. In his statement to the Court the accused was asked:-
Q. Did you in your conversation with Mr. Clayton mention Rs. 5,000 ?
Q. Did you offer that sum as a bribe ?
Q. Do you wish to say in what connection you made mention of that sum?
A. That offer was made on behalf of my cousin towards one of the funds.
Q. Do you wish to say to what funds?
A. I do not know to what funds the Commissioner was interested, but I thought the suggestion would come from the side of the Commissioner.
6. In the written statement, which was put in, the accused said that his cousin saw him and expressed his gratification at the result of the appeal to the Commissioner. Accused understood from him that he was contributing through Mr. Clayton a sum of Rs. 5,000 or so to some fund in which Mr. Clayton might be interested.
7. Para 7 runs as follows: -
I do not remember the exact words in which I replied (to the question 'what about' ) but I intended to convey to him that it was about that sum of Rs. 6000 which my cousin was contributing through him to some fund and about which I believed that my cousin had spoken to or arranged with Mr. Clayton.
8. Now to bribe or to attempt to bribe a public servant is only punishable under the Indian Penal Code as an abetment of the substantive offence of a public servant accepting or attempting to obtain an illegal gratification.
9. Under Section 161 of the Indian Penal Code, 'whoever, being a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, 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, etc. etc., shall be punished with imprisonment or with fine or with both.' Section 116 deals with the abetment of an offence punishable with imprisonment if that offence be not committed in consequence of that abetment.
10. Under Section 107 a person abets the doing of a thing who instigates any person to do that thing.
11. The question, therefore, in this case is whether the accused instigated the Commissioner to attempt to obtain an illegal gratification.
12. It was argued by the Advocate General that what the accused said amounted to an offer of money as a bribe.
13. The learned Magistrate also in his judgment appeared to think that the only question was whether an offer was made, or whether the accused was merely making preparations to make the offer.
14. I think the real aspect of the case has been obscured by the failure to observe that illustration (a) to Section 116 is only an example of abetment of an offence under Section 161. There are many other ways of instigating a public servant to commit an offence under Section 161 besides by means of a direct offer of a bribe.
15. The words ' my cousin wishes to give you rupees five thousand ' do not legally amount to an offer. But they do indicate a state of mind on the part of the cousin that if asked he might give Rs. 5,000. The distinction between an offer and an invitation for offers to be made is well recognised in the Law of Contract, and there is no reason why in a criminal case the same distinction should not be observed, if the sole question is whether an offer has been made or not.
16. Now a person is said to instigate another to an act when he actively suggests or stimulates him to the act by any means or language direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement : 1 Russell on Crimes, p. 164. Taken in connection with what had previously occurred, the conversation on the 21st. September about the tenders for the sleepers, the tender actually made by the accused on 22nd September, the conversation with regard to the tender for cement on 14th October, it cannot be denied that the words 'my cousin wishes to give you Rs. 5000' can perfectly fairly be considered as an instigation to the Commissioner to attempt to get the Rs. 5,000.
17. But the defence is that the Commissioner did not allow the accused to finish the sentence, he wanted to add the words 'for one of your funds.' That when Mr. Kirpalani was called in and told by the Commissioner that accused had offered a bribe, accused was pushed out of the office and was given no chance of explaining what he meant or of clearing up the misunderstanding, which arose in the mind of the Commissioner because the accused wrongly assumed that his cousin must have spoken to the Commissioner about the sum the accused thought his cousin was contributing,
18. This story is not borne out by the evidence of the Commissioner and Mr. Kirpalani. The Commissioner said he asked accused to repeat his offer in the presence of Mr. Kirpalani and accused said he offered the money not on behalf of himself but on behalf of his cousin. He was reluctant to leave the office and was profuse in his apologies. He was not asked in cross-examination whether he pushed the accused out of his office without giving him any chance of explaining what ho had said. The Commissioner is corroborated by Mr. Kirpalani. It is clear, therefore, that the accused had sufficient opportunity to explain, if he had wished to do so, that the money his cousin was willing to give was for one of the funds in which the Commissioner was interested, and nothing would have been simpler than for him to say, if as a matter of fact he was under the impression that his cousin had already spoken to the Commissioner about contributing Rs. 5,000 to some fund : 'I was not suggesting that my cousin should give you Rs. 5,000 but that he should contribute Rs. 5,000 to one of your funds,' I have not the slightest doubt in my own mind that at that time the accused had had no talk with his cousin about any contribution to some fund, and that he was not under the impression that his cousin had mentioned the matter to the Commissioner. His cousin had succeeded in getting the objections to his building removed, and unless he went into the witness-box to say that he intended as a thanks-offering to contribute Rs. 5,000 to one of the Commissioner's funds there is not the slightest reason why we should infer that he was prepared to add another Rs. 5,000 to the cost of the building without any necessity therefor.
19. On the evidence for the prosecution there is a clear case of instigation. The Commissioner was stimulated towards making an attempt to get Rs. 5,000, and if he succeeded the accused might hope that his tenders would be considered more favourably in competition with others.
20. It was open to the accused to satisfy the Court by his own statement either alone, or supported by evidence, that the view of the prosecution evidence was not the right one. In my opinion he has failed to do so. He has relied solely on his own statement which is entirely opposed to the evidence and the probabilities of the case. But even if I assume that the accused was merely instigating the Commissioner to make an attempt to get Rs. 5,000 for one of his funds, I do not see how that could do more than mitigate the offence since under Section 161, gratification is not restricted to pecuniary gratification or to gratification estimable in money.
21. If, during the period prescribed for the making of tenders in answer to his invitation, the Commissioner was to accept or to attempt to obtain from the tenderers or their relations sums of money not for himself but for one of the funds in which he was interested, there can be no doubt he would be liable to be prosecuted under Section 161, and any tenderer who paid him money or offered to pay him money in these circumstances, the obvious object being to induce the Commissioner to look favourably on his tender, would be guilty of abetment.
22. Mr. Inverarity contended that if offering monies for a charity amounted to offering a bribe a good many persons would be in jail, as many Indian Princes and others contributed large auras towards charities in which the Viceroy or the Governor of a Province was interested. They did so not because they cared for the charities but because they wanted to ingratiate themselves with the Viceroy or the Governor. I trust that persons of wealth take a higher view of their duties to humanity, but I am only concerned with the case before us, and I should be establishing a very dangerous precedent if I were to hold that an officer is protected if he agrees to allow his official acts to be swayed by the motive of accepting a gratification to be used not for his own personal benefit but for some public object such as charity, science or religion. The object of the abettor remains the same, to influence the public servant in his favour, In Imp. v. Appaji Yadavrao I.L.R. (1806) 21 Bom. 517 Jardine J. held that the plain words of Section 161 of the Indian Penal Code excluded such a defence
23. But having stated what I consider to be the law in the case, and what 1 consider to be the proper inferences to be drawn from the evidence, it remains to be considered whether the appeal should be allowed and the accused convicted. If I had been the trying Magistrate I should not have taken a very serious view of the conduct of the accused considering all the circumstances of the case. If I had convicted I should not have imposed a heavy penalty, and if it had been in my power I would have discharged the accused with a caution. Sitting to hear an appeal by Government from the order of acquittal, considering that my brother Shah is not in favour of a conviction, I am content to refrain from expressing an opinion which would necessitate another hearing. I feel quite sure that the accused must have realised by this time that at the best he acted very foolishly in using words which might be construed as an attempt to influence the Commissioner in his favour by suggesting that the Commissioner might be able to secure for himself or for some charity a monetary advantage. If he had only been wiser he should have known that nothing could be more likely to damage his case.
24. In this case Mr. Clayton, the Municipal Commissioner of Bombay, is the complainant. His complaint was that the accused offered him a bribe of Rs. 5,000 on the 14th October 1921 in his office that the fact was admitted in the presence of his Deputy, Mr. Kirpalani, and that the accused was guilty of abetment of an offence under Section 161, punishable under Sections 161 and 116, Indian Penal Code. The complainant and his Deputy were examined as witnesses and a charge was framed against the accused to the effect that he abetted the commission of an offence by a public servant of taking gratification in that capacity other than legal remuneration as a motive for doing a future official act, viz., giving contracts and that as the offence was not committed in consequence of the said abetment his act was punishable under Sections 161 and 116, Indian Penal Code. The learned Chief Presidency Magistrate came to the conclusion that the abetment was not proved as the matter had not reached the stage of offer, that there was locus penitentice, that it was not clear beyond doubt that the alleged offer to the public servant was really as a motive or reward for any official favour, and accordingly acquitted the accused.
25. The present appeal is preferred by the Local Government against the order of acquittal.
26. It is urged on behalf of the Crown that what the accused said to the complainant at the interview amounted to an offer of Rs. 5,000 as a bribe, that whether it was an offer or not it amounted to instigating the public servant to agree to accept or to attempt to obtain a bribe or rather to do something which, if done, would amount to an offence punishable under Section 161, Indian Penal Code. It is urged that in view of the proved conduct of the accused there was no locus penitentice and that the instigation, however feeble and ineffective, was complete, so as to bring the case within the scope of Section 107(a) read with Section 161.
27. On behalf of the accused it is urged that there was no offer of the bribe, that the statement that his cousin wanted to give Rs. 5,000 had really no reference to any future official act, that, according to his then knowledge, he thought he intended to give it as a thanks-offering to one of the public charitable funds in which the complainant was interested, that an innocent act of his was misinterpreted by the complainant without sufficient ground, and that owing to the somewhat unexpected and embarrassing position in which the accused found himself when Mr. Kirpalani was suddenly called in by the complainant he got confused and could not explain what he could have explained, if left to himself. The real nature of his statement, it is suggested, was misunderstood much too readily.
28. I may add that it is urged on behalf of the Crown that the accused has adduced no evidence in support of his statement made at the trial that his cousin intended to give the sum for the benefit of one of the funds, and that he has not examined his cousin. On the other hand, it is pointed out that it was not thought necessary to do so, that, apart from the evidence of the cousin, there was no reason to distrust the explanation offered by the accused, and that his cousin can be examined even now, if his evidence is thought to be material by the Court.
29. There is really no dispute as to what happened in fact at the interview between the accused and the complainant. The real dispute is as to its effect and as to the intention of the accused. I do not consider it necessary to recapitulate the facts preceding the interview, which have been fully stated in the judgment of the lower Court nor do I consider it necessary to quote here the passage from the complainant's evidence as to the account of the interview. It is contained in the passage in the latter part of his examination-in-chief commencing from his statement that, on the 14th October, the accused called on him in his office. I adopt that in its entirety as representing what happened then. This too has been stated with sufficient fulness in the judgment of the trial Court. Mr. Kirpalani's evidence supports this account of the interview so far as it took place in his presence after he was called in. Both the witnesses are agreed that the accused was not in the room for more than two minutes after Mr. Kirpalani was called in, As regards the public funds the complainant's statement is as follows :-
I am interested in getting contributions from persons of wealth for certain funds. The fund I am particularly responsible for is the Acworth Leper Asylum and I am the President, of the Board of Management. 1 am interested in collecting subscriptions for a great many deserving objects. On certain occasions I have requested some of the leading men in Bombay to subscribe to a particular fund.
30. The evidence has been fully discussed before us; and after a careful consideration of the arguments and the evidence, I am unable to hold that the acquittal is wrong or that the accused has been shown to be guilty of having instigated the complainant to do something which, it done, would be punishable under Section 161.
31. I shall briefly deal with the arguments in the light of the evidence.
32. It is urged that there was an offer of a sum of Rs. 5,000 by the accused. This position is taken up with reference to illustration (a) to Section 116, Indian Penal Code. The illustration assumes the fact of an offer for an improper purpose as stated in Section 161. It is in dispute here. All that the accused asked was as to when he could see the complainant again and explained that it was with reference to a sum of Rs. 5,000 which his cousin wanted to give. I do not think that the conversation amounted to an offer. I do not desire to elaborate this point as the lower Court has taken this view and as the learned Chief Justice also takes the same view.
33. It is urged, however, that whether it was an offer or not, it really amounted to an instigation to do a thing punishable under Section 161, Indian Penal Code, and that the accused is guilty of abetment. This argument requires a closer examination. A careful perusal of the evidence as to the interview shows that the accused inquired of the complainant as to when he could be seen again in connection with ' that sum of Rs. 5000,' which the cousin of the accused wanted to give him. In order to bring the case within the ambit of the Penal Code, the prosecution must show that this was an instigation and further it was an instigation to a public servant to agree to accept or to attempt to obtain from the accused or his cousin for himself or for any other person a gratification other than legal remuneration as a motive or reward for doing some official act or for showing any favour in the exercise of his official functions. In my opinion it is far from clear that this conversation was really an instigation. It is not easy to define the word : and really it must be decided with reference to the facts of each case whether the words used have the natural effect-not necessarily effect in face-of instigating a person to do that thing. I do not think that without straining the meaning of the language used it could be said that the accused instigated the complainant to do anything. Particularly where the conversation does not amount to an offer the Court should be slow to infer a sinister purpose from words, which do not naturally bear that interpretation.
34. Assuming, however, that it was instigation within the moaning of Section 107(a), the question is whether it was for doing something, which, if done, would be punishable under Section 161. That is really the most important question and in my opinion more difficult than the question whether the conversation does amount to instigation; and it may be said at once that if the sinister purpose of the accused was clear, it might induce the Court to hold that there was instigation on his part from his conduct and words, which might not otherwise bear that interpretation.
35. In order to appreciate this part of the case it must be remembered that the cousin of the accused was building a house on the Queen's Road; and that there were certain conditions imposed by the Municipal authorities, which were of a restrictive nature. On a representation made on his behalf these conditions were dispensed with by the complainant after reference to and on the recommendation of the Executive Engineer. These conditions were of a technical nature from the Municipal point of view as staled by the authorities, but involved restrictions of a substantial character so far as the builder was concerned. The removal of these restrictions would naturally please the builder and the accused so far as he was interceding on his behalf. At the date of the interview this concession was an accomplished fact. Further, at that time the accused had put in a tender and was likely to put in another tender for certain contracts: and he might expect official favour in respect thereof. The charge refers to a future act and not to the act already done by the complainant. Though this limitation in the charge was not realised in the course of the argument it is as well to bear it in mind in determining the intention of the accused. The words used indicate an inquiry by the accused of the complainant as to that Bum of Rs. 5.000 which his cousin wanted to give. That might refer and would refer to the favour already shown to him, if it has any reference to any favour. It does not refer to the favour which the accused might expect in respect of his tenders. If the case made in the charge is to be considered, and if the future act is to be looked to, as stated in the charge. I do not think that the conversation justifies such an inference. Of course it is possible that the accused may have the prospect of such a favour in view. But the complainant did not make any further inquiry of the accused as to the reason why the cousin of the accused wanted to give Rs. 5,000, and in the absence of any indication to connect it with the future act, I do not think that any inference against the accused could be reasonably drawn. The fact that he had expressed his opinion that without influence his (or one's) chance in respect of the tenders would not be worth considering is not sufficient, in my opinion, to alter the character of his statement. It is not suggested that his cousin had anything to do with the tenders and it is clear that his cousin was the person benefited by the restrictive conditions as to his building having been removed. On the statements made by the accused at the interview the theory that his cousin may have thought of giving Rs. 5,000 is perfectly possible and unless by implication or in terms that suggestion can be said to be excluded by the evidence in the case, I do not see how it could be said that the sum mentioned at the interview had any reference to any future act in respect of which the charge is framed.
36. There is a further difficulty in the way of the prosecution. It is not a necessary inference from the conversation between the accused and the complain ant that the cousin proposed to give the sum for an improper purpose, that is, as a motive or reward for any favour having been shown to him by the complainant in the exercise of his public functions. The benefit, which he got from the removal of the restrictions on his building, was substantial, and there is nothing unlikely in his entertaining or at any rate it is well within the range of reasonable possibility that he may entertain a desire to please the Commissioner without meaning to offer it as a motive or reward for his official acts. If the complainant had pursued the inquiry a little further and ascertained or elicited some further facts to enable him to ascertain that it was really offered as a motive or reward for showing some official favour and not for any innocent purpose the case would have been different. But as he says he began to get suspicious about the accused's intention since he had mentioned the word 'influence'. He at once called Mr. Kirpalani and when he came in instead of allowing the accused to state what he liked, he stated to Mr. Kirpalani that the accused had offered him a bribe and asked the accused to repeat what he bad stated to him already. The interview ended in a very short time. The accused was very profuse in his apologies and admitted what he had stated to the complaninant before Mr. Kirpalani came in. I am unable to draw any inference against the accused from his omission to mention during that short interval that the sum was really intended by his cousin for a contribution to some fund and for an innocent purpose. The accused saw that the complainant had already put a definite interpretation upon his conduct, and in the confusion of the moment, he might omit to mention what might be true from his point of view. Some persons in such a condition may act with coolness and composure and some may not: but I do not think that in a criminal case it could be fairly treated as giving him an opportunity of explaining his position. He was at once told to go out: and though his reluctance to move out promptly has been referred to by the learned Advocate General as telling against him I do not think that the circumstance can be treated as having any such significance. Thus the accused had really his first opportunity at the trial to explain his position. The accused has explained in his statement that his cousin wanted to contribute to one of the funds in which the complainant was interested, and that his information about it was incomplete and that he was under the impression that his cousin had spoken to the complainant about it. In short his defence is that his statement as to the sum of Rs. 5,000 had nothing to do with a future act of the complainant and that his inquiry about it was merely casual and on behalf of his cousin without the slightest intention of offering it as a motive or reward for any official act of the complainant. This explanation is undoubtedly open to the criticism that it may be-and it is contended by the Crown that it is-an afterthought and not true. Indeed if the case for the defence on this point rested on its being made out that it was true it might fail for want of evidence. But where the inference suggested by what happened at the interview is equivocal and where the explanation put forward by the accused is reasonably possible the theory of innocence cannot be said to have been sufficiently negatived by the prosecution. The absence of the cousin from the witness box does not matter under the circumstances. It would matter if the accused had to establish affirmatively the truth of his allegation. In view of the fact that the complainant was interested in the collection of several funds, it was particularly desirable for him to put it beyond question by further inquiry that the proposed donation was not meant for any such innocent purpose.
37. Taking a general view of all the facts and circumstances of the case, I think the complainant was justified in feeling suspicious about the accused's intention; but he was not justified in interring, as he did by the time Mr. Kirpalani arrived on the scene, that the accused had offered him a bribe of Rs. 5,000. The case for the prosecution is not free from doubt and difficulty. On the whole I am not satisfied that there was any offer of a bribe nor am I satisfied that there was any instigation to the complainant to do something which is prohibited by Section 161, Indian Penal Code. It is not clear that the instigation, if any, was to make the complainant agree to accept or attempt to obtain the sum as a motive or reward for any official act.
38. For these reasons I am of opinion that the appeal fails and must be dismissed.
39. I desire to make it clear that I do not wish to be understood as approving of the conduct of the accused in any sense, even taking it in the light most favourable to him. All that I bold is that the facts necessary to constitute the offence charged have not been made out, and that is all that I am concerned with in this appeal.