1. This is an appeal against the order passed by the learned Special Judge, Thana, convicting the appellant of an offence under Section 165-A, Penal Code and sentencing him to rigorous imprisonment for one day and to pay a line of Rs. 100, in default rigorous imprisonment for one month.
2. The charge against the appellant was that on or about 30-7-1952, at Thana he abetted Mr. Deshmukh, Deputy Chitnis, of Thana, who was a public servant, in the commission of an offence punishable under Section 161, Penal Code inasmuch as he offered Rs. 20 to the said Mr. Deshmukh, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function favour or disfavour to him or for rendering or attempting to render any service or disservice to him with the Collector and thereby he committed an offence punishable under Section 165-A, Penal Code.
3. The prosecution case is very simple, On 30-7-1952, the appellant, who is a Bound Forester, Manor, accompanied one Mohanji Kuverji to the office of the Deputy Chitnis at about 12 or 12-30 p.m. Mohanji had possessed a gun but his gun licence had been cancelled. Against this order of cancellation Mohanji had appealed to the Government and his appeal was pending disposal. As a result of the cancellation of his licence, Mohanji had kept his gun in the stores at the Collector's office. Mohanji, however, wanted to sell his gun and for that purpose he had gone to the Dy. Chitnis on July 30 with an application for sanction to sell his gun. The accused was the Intending purchaser of this gun. That is why he accompanied Mohanji when Mohanji presented an application to the Dy. Chitnis. The application made by Mohanji was in fact endorsed by the accused with the remark that he was willing to purchase the gun.
When the accused and Mohanji approached Mr. Deshmukh they were told that it would take a couple of days to obtain the Collector's sanction authorising Mohanji to sell his gun. The application was accordingly left by Mohanji with Mr. Deshmukh and Mohanji and the accused left the office of Mr. Deshmukh. Mohanji had told Mr. Deshmukh that in case his appeal to the Government against the order cancelling his licence succeeded he might purchase a new gun.
After Mohanji and the accused left Mr. Deshmukh, the accused returned alone to Mr. Desh-mukh's office and he told Mr. Deshmukh that It Mr. Deshmukh could manage to get the order authorising Mohanji to sell the gun by the evening of that day he would pay Mr. Deshmukh Rs. 20 for the purpose. Mr. Deshmukh was annoyed at this offer and he immediately took the accused to the office of the District Magistrate. The District Magistrate, however, had left for his lunch and the accused could not therefore be produced before him. Mr. Deshmukh wanted to take the accused to the Personal Assistant to the Collector, but the accused refused to go with him and left the office. When the District Magistrate returned from his lunch Mr. Deshmukh submitted to him & note and thereupon the statement of Mr. Deshmukh was recorded. The statements of other clerks .who were present in the office of Mr. Deshmukh were likewise recorded. Mr. Deshmukh's statement was treated as the first information and investigation was commenced in respect of the offence alleged by Mr. Deshmukh. As a result of the investigation the accused was arrested and he was charge-sheeted under Section 165-A, Penal Code.
4. The accused denied this charge. It was urged on his behalf before the learned Special Judge that he had not accompanied Mohanji to the office of Mr. Deshmukh and that the whole of the story set out by the prosecution against him is false. In the alternative it was contended that, even if the facts deposed to by the prosecution witnesses were held proved, in law, no offence under Section 165-A can be said to have been established. The learned Judge has rejected both these contentions and has convicted the accused of the offence under Section 165-A, Penal Code.
5. Mr. Malkani for the appellant has urged before us that in dealing with the prosecution evidence against the appellant we ought to bear in mind the fact that the appellant himself is a public servant and that the consequence of his conviction would necessarily be that he would lose his service. Mr. Malkani has therefore appealed to us to consider the evidence very carefully before we accept the finding of the learned Judge that the accused did tell Mr. Deshmukh that he would pay Rs. 20 if Mohanji's application was allowed the same evening. According to Mr. Malkani the appellant had really not gone to Mr. Deshmukh's office at all that day. The evidence on which the prosecution relied in support of their charge against the appellant was given by Mr. Deshmukh himself and by his clerk Shankar. (After discussing the evidence His Lordship proceeded). We are satisfied that on the evidence adduced by the prosecution in the present case, the learned Special Judge was Justified in coming to the conclusion that the accused told the Dy. Chitnis that he would pay him Rs. 20 if the order sanctioning the sale of Mohanji's gun was obtained that very day.
6. The next Question which fails to be considered is whether this conduct of the accused amounts to an offence under Section 165-A, Penal code. Mr. Malkani has contended that the conduct of the accused amounts to preparation and nothing more. It cannot be said to amount to an instigation within the meaning of Section 107 and it does not amount even to an offer. At test it may be regarded as an invitation to make an offer. If the conduct of the accused does not amount to an instigation within the meaning of Section 107 and does not constitute an offer, there may be considerable force in the argument that the accused may not be guilty under Section 165-A, Penal Code.
In our opinion, however, the conduct of the accused in the present case cannot properly be described as amounting merely to preparation or to an invitation to make an offer. Section 165-A, penal Code has been recently enacted by the Criminal Law Amendment Act 46 of 1952. This section provides for the punishment of an abetment of an offence punishable under Section 161 or Section 165 whether or not that offence is committed in consequence of the abetment. The prosecution must, therefore, establish that the conduct of the accused amounts to an abetment of the offence under Section 161. If we turn to Section 161, it would be clear that a public servant would be guilty of the offence of taking gratification under the said section even if he agrees to accept the prohibited gratification. It is thus not necessary in order, to bring home to the public servant the charge under Section 161 to prove that he has actually accepted or obtained illegal gratification. It would be enough if it be shown that he had agreed to ac-cept the said illegal gratification. In other words,, if a proposal is made to the public servant in respect of payment of illegal gratification and the proposal is accepted by the public servant, he would be guilty under Section 161, Penal Code. If that' be the true position, it must follow that the rnaking of the offer would itself constitute an offence under Section 165-A in regard to the payment of illegal gratification. If a person who offers to pay the amount makes his proposal, that constitutes an offence under Section 165-A. If the proposal is accept ed, that constitutes an offence under Section 161, Penal Code.
In this connection it may be relevant to refer to ill. (a) under Section 116 of the Code. Section 116 deals with an abetment of the offence where the offence abetted is not ultimately committed. Illustration (a) to this section deals with the case of an offer of a bribe by A to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. A is punishable under Section 116 even though B may refuse to accept the bribe. It would thus be clear that the offer of the bribe would amount to an abetment under Section 116 and would necessarily constitute an offence under Section 165A. The definition of the word 'instigation' contained in Section 107 leads to the same result. Any act committed by a person which amounts to instigation as defined in Section 107 would attract the provisions of Section 165-A, Penal Code.
In this connection it would be necessary to remember that in the words of Section 2(a), Contract Act, 'a proposal is made by a person when he signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of that other to such act or 'abstinence.' When the accused went to Mr. Deshmukh and said that he would pay Rs. 20 to him in case Mr. Deshmukh secured the Collector's sanction before evening he was obviously making an offer to Mr. Deshmukh. In order that the statement of the accused should amount to an offer, it is not necessary that he should produce the amount before Mr. Deshmukh along with his statement. As soon as the accused clearly and unequivocally conveyed to Mr. Deshmukh that he would pay him a certain amount, that ceases to be the preparation and it amounts to an offer, and if the statement made by the accused amounts to an offer, there is no escape from the conclusion that this offer constitutes an offence under Section 165-A of the Code.
7. Mr. Malkani has, however, invited our attention to a decision of this Court in -- 'Emperor v. Amiruddin', AIR 1923 Bom 44 (2) (A) in support of his contention that the statement of the accused in the present case does not amount to an offer and cannot be held to constitute instigation of the offence under Section 161.
The facts in 'Amiruddin's case (A)' were somewhat unusual and they could be easily distinguished from the facts before us. It appears that in this case the accused had successfully interceded with the Municipal Commissioner on behalf of his cousin, and had obtained an order from the Municipal Commissioner relaxing in favour of his cousin some of the building regulations. After the Commissioner had thus relaxed the regulations in favour of his cousin, the accused saw the Commissioner to thank him. Then he made inquiries about some tender for sleepers and very cleverly suggested to the Commissioner that it was no good putting any tender unless one had influence. That naturally made the Commissioner suspicious about' the motive of the accused in seeing him. The accused asked the Commissioner when he should see him again; and though the Commissioner told him that it was not necessary for the accused to see him again, he said 'shall I see you here or elsewhere'. Then the Commissioner asked 'what about' and the accused added 'about Rs. 5,000'. When the Commissioner inquired which Rs. 5,000, he accused replied 'my cousin wishes to give you Rs. 5,000'.
On these facts the accused had been charged under Section 161 read with Section 116, Penal Code. The learned Magistrate who tried his case had acquitted him and this Court was dealing with his case in an appeal against acquittal. It is clear that when the matter was argued before Macleod C. J. and Shah J. they did not take the same view on the merits of the case. Macleod C. J. held that on the facts the accused was guilty of the offence charged whereas Shah J. came to a different conclusion. The learned Chief Justice set out his reasons in support of his conclusion but ultimately concluded by saying that in view of the fact that his brother was not in favour of the conviction he was content to refrain from, expressing an opinion which would necessitate another hearing.
The judgments delivered by the two learned Judges have to be considered in the light of this background. The learned Chief Justice thought that the words 'my cousin wishes to give you Rs. 5,000' did not legally amount to an offer. They indicated 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, said the learned Chief Justice was well recognised in the law of contract; and bearing in mind this distinction his view was that the words uttered by the accused in the said case did not amount to an offer. That, however, would not be decisive of the matter, because it was still necessary to consider whether the said words amounted to an instigation, within the meaning of Section 107 and would constitute abetment of the offence under Section 161.
Proceeding to consider this aspect of the matter,the learned Chief Justice observed that (p. 46):
'..... .a person is said to instigate another to anact 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.'
It would be i noticed that on this view of the interpretation of the word 'instigation', it was impossible to accede to the argument of the accused in the said case that the words used by him did not amount to instigation and would not, therefore, constitute an offence of abetment of an offence under Section 161, Penal Code. That is how the learned Chief Justice would have been prepared to deal with this matter on the merits. Shah J., however, approached the case from a different point of view and came to a different conclusion. But it is necessary to emphasise that the conclusion of Shah J. was based substantially upon the view that he took of the facts in the case itself.
Shah J. was not satisfied that on the evidence it was established beyond doubt that the reference to Rs. 5,000 made by the accused had any connection with the improper purpose as mentioned in Section 161. It has been observed by Shah J. that the instigation, if any, must be to make the complainant agree to accept or attempt to obtain the sum as a motive or reward for any official act. The learned Judge also was not satisfied on the whole that there was any offer of bribe or that there was any instigation to the complainant to do 'something which is prohibited by Section 161 of the Code'.
In our opinion Mr. Malkani would not be able to succeed in the present case even if we were to apply the test laid down by Shah J. in his Judgment. What the accused had told the Municipal Commissioner In the said case was that his cousin wanted to. see him and that his cousin wished to give him Rs. 5,000. Perhaps it may be possible to take the view that these statements would not amount to an offer unless there was some evidence to connect these statements with the object which the payment of Rs. 5,000 was intended to serve and so they may not amount even to instigation and therefore to abetment. In our opinion the observations made by Shah J. must be read in the light of his findings on question of fact and, with respect, they cannot be said to lay down any general proposition of law.
In the present case the position is perfectly clear. The object which the accused wanted to achieve is not in doubt. The application which was made by Mohanji and which the accused had endorsed as the intending purchaser clearly, shows that the accused was keen on purchasing the gun; and it appeared to the accused that the delay of a couple of days should be avoided and an order authorising Mohanji to sell the gun should be obtained immediately if possible. It was with this clear object in his mind that he went to Mr. Deshmukh and he conveyed to Mr. Deshmukh his object in unambiguous terms when he told him that he would pay him Rs. 20 if the order was forthcoming that evening. Therefore, there can be no difficulty at all in holding that the statement made by the accused amounted to an offer to pay illegal gratification, and if that is so, his conduct clearly falls within the mischief of Section 165-A, Penal Code.
8. There are two other decisions to which our attention has been invited. In -- Emperor v. Dinkar Rao' : AIR1933All513 (B) the Allahabad High Court had to deal with the case of two sets of persons who had been charged under Section 161 read with Section 116, Penal Code. A suit was pending before the Subordinate Judge. One J approached the Subordinate Judge and told him that the plaintiff would give him Rs. 10,000 if he would decree the suit. The Judge turned out J. A few days later M, who was a Pujari, came to see the Judge at his house. The Judge suspected that the Pujari was approaching him in connection with the same offer of bribe and so he decided to set up a trap. With that object the Judge himself suggested his willingness to take the bribe and the amount and the date were settled.
On the fixed date M and D, who was the son of the plaintiff, came to the Judge with the amount whereupon they were caught by certain officers who had been concealed in the house by the Judge. On these facts two questions arose for the decision of the High Court. They were, whether J could be said to have committed an offence under Section 161, read with Section 116, said whether D and M had committed the same offence. It is unnecessary to refer to the judgment which deals with the case against D and M. The observations made by the learned Judges in respect of the case, against J are, however, relied upon by Mr. Malkani before us. The learned Judges found that on the evidence it did not appear that Jagat Narain was acting in concert with the plaintiff or with M and so his conversation with the Judge cannot be said to have had any connection whatsoever with M's visit to the Judge a few days later. That is why they came to the conclusion that J could not be held to be guilty ' under Section 161 read with Section 116.
Then the learned Judges went on to observe that all that J had done was to tell the Judge that the plaintiff would be willing to give Rs. 10,000 if the Judge would decree the suit. On these facts he might have been held to have in stigated the Judge to send for the plaintiff am to ascertain whether he was in fact willing to pay the money as alleged. It is significant the the judgment proceeds to add that this conduct might amount to instigating the Judge to attempt to commit an offence under Section 161, Penal Code. But the learned Judges did not proceed to convict him of that offence because no charge had been framed on those lines. These observations would show that even the statement which had been made by J that the plaintiff would be willing to give certain amount of bribe to the Judge in case he decreed the plaintiff's suit would, in the opinion of the learned Judges, constitute an abetment of the offence under Section 161 read with Section 107, Penal Code.
9. The next decision to which our attention has been drawn is the judgment delivered by Adami and Bucknill JJ. in -- 'Rameshwar Singh v. King-Emperor', : AIR1925Pat48 . It has been held in this case that 'a mere offer to pay an illegal gratification to a public servant, although no money or other consideration is actually produced, amounts to an attempt to bribe.' In our opinion this view is justified on a fair and reasonable construction of the plain and clear words used in Section 161 and Section 165-A, Penal Code.
10. The result is we confirm the order of conviction and sentence passed by the learned Judgeagainst the appellant and dismiss this appeal.
11. Appeal Dismissed.