1. The applicant Bishambhar Prasad was convicted by a Magistrate of the first class, Bahraich, under Section 161, Penal Code for accepting a bribe of Rs. 15 and sentenced to rigorous imprisonment for two months and a fine of Rs. 100. His appeal against his conviction and sentence was also dismissed.
2. On behalf of the applicant his learned Counsel has urged that accepting the finding of the learned appellate Court, no offence under Section 161, Penal Code has been made out. I have heard the learned counsel for parties and I am satisfied that this application must be allowed.
3. The prosecution case briefly was that on 12-1-1949, at about 11 A.M. in front of the bungalow of the Superintendent of Police, Bahraich, the applicant accepted from one Baba Din a bribe of Rs. 15 in order to give him an extract from the khasra. The learned Appellate Court in its judgment says :
'It may be that Baba Din and Shri Tulshi Ram were anxious to get the patwari arrested. It is also true that the story that Baba Din wanted the extract of the khasra and the Patwari was demanding Rs. 10 or Rs. 15 for the extract is false, but the fact remains that the Patwari did accept the bribe. It is not proved from the record as to why the Patwari accepted the bribe.'
It seems that the learned appellate Court forgot that under Section 161, Penal Code, it is necessary to prove that the public servant accepted the money 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 functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Legislative or Executive Government of India, or with the Government of any Presidency, or with any Lieutenant Governor, or with any public servant, as such. It may be pointed out that the learned Judge himself says that the reason why the patwari accepted the money is not known. In these circumstances the mere acceptance of money constitutes no offence under Section 161, Penal Code. The application is accordingly allowed, and the conviction and the sentence are set aside. The applicant need not surrender to his bail. The fine if paid, shall be refunded.