R.K. Chowdhary, J.
1. This is an appeal by Padam Sen and Shekhar Chand of Hilwai within police station Baraut in the district of Meerut against the judgment and order of the learned Special Judge of Meerut sentencing each of them 10 rigorous imprisonment for 1 year and Rs. 500/- fine, with further & months' rigorous imprisonment in default of payment of the fine, under Section 165A, I. P. C.
2. Shekhar Chand appellant's father Genda Mal sued Mithan Lal P. W. 9 and the latter's brothers for money on pronotes. The Additional Munsif of Ghaziabad passed judgment on 28-7-1954, holding that the defendants had paid Rs. 7049/10/6 on the pronotes instead of the mere Rs. 4050/- admitted by the plaintiff. The offence for which the appellants have been convicted has been found by the court below to have been committed by the appellants during the pendency of that civil litigation.
3. Apprehending that the plaintiff will fabricate his books of account in order to thwart the defence plea of payment over and above that admitted by the plaintiff, the defendants applied to the Munsif for seizure of the books. The Munsif appointed a lawyer, Sri Raghubir Prasad P. W. 4, Commissioner to seize the plaintiff's books of account. In execution of the commission, the lawyer seized the books at Hilwai on 28-3-1954 and brought them to Ghaziabad. According to the prosecution, the appellants committed the offence on 29-3-1954 while the books of account were still with the Commissioner. Shekhar Chand as the plaintiff's son and Padam Sen as Shekhar Chand's friend are said to have offered bribe to the Commissioner to allow them to change the relevant account book.
4. The prosecution case as to how the appellants attempted to bribe the lawyer Commissioner and were caught was as follows. The appellants made offers of bribe thrice on 29-3-1954. at 7.30 a. m. at the lawyer's house, at 1 p. m. at the lawyer's seat in the court compound and again at his house at about 5.30 p. m. On the last occasion they first offered Rs. 600/-, then Rs. 700/-, then Rs. 800/-and finally Rs. 900/-. Sri Raghubir Prasad did not comply with their request and, at the and of their last unsuccessful overture, asked then, to see him again the next morning. At 8 O'clock the same night the lawyer went and reported the matter to the Munsif, Sri S. P. Sharma P. W. 1.
The Munsif wrote a D. O. Ex, P 1 to the Sub-Divisional Magistrate Sri Jamuna Shankar P. W. 5, which the lawyer delivered at 9 p. m. The Magistrate asked the lawyer to come again next morning. Accordingly, at about 6.30 a. m. on 30-3-1954 the lawyer again went to the Magistrate. The Magistrate got the lawyer to write a report on the matter which is Ex. P2. The Magistrate endorsed on it orders to the Sub-Registrar Magistrate Sri Krishna Murari P. W. 2 and to the Station Officer of P. S. Ghaziabad S. I. Sri Narain Sharma P. W. 10 directing them to lay a trap for the accused. The lawyer communicated the orders to the Sub-Registrar Magistrate and the Station Officer, and all three then went to the lawyer's house, picking up two witnesses Mangat Ram P. W. 3 and Ram Chand P. W. 6, on the way.
5. The lawyer took his seat in his office room and the other tour concealed themselves in an adjacent room, leaving the intervening door ajar. About 20 minute's later the appellants arrived. Shekhar Chand reiterated his request to the lawyer and told him that they had brought the money. The lawyer asked them to produce the money whereupon, on being so required by Shekhar Chand Padam Sen took out Rs. 900/- in currency notes, counted them and offered them to the lawyer. Just at that nick of time, in response to a pre-arranged signal given by the lawyer, the four men who were lying in wait in the adjoining room entered the office room, the S. R. Magistrate seized the currency notes from the out-stretched hand of Padam Sen and the police officer arrested Padam Sen and Shekhar Chand. The Sub-Registrar Magistrate drew up the recovery memo Ex. P5, which was duly attested by the witnesses, the police officer sealed the notes in the envelope Ex. P7 and the Magistrate submitted the report Ex. P6 to the S. D. M.
6. The appellants admitted having gone to Ghaziabad from Hilwai on 29-3-1954 -- Shekhar Chand to find out what books of account of his father had been seized, and Padam Sen to interview one Jialal in connection with a marriage proposal. They also admitted having visited the lawyer at his seat in the Court compound at noon and again at his house in the evening of 29-3-1954. At noon they professed to have caught the lawyer in the act of showing the seized books to Baijnath, one of the defendants in the civil litigation. When Shekhar Chand asked the lawyer to show him the books, the latter told him to come to his house in the evening. When the appellants went to his house in the evening, the lawyer inquired why they wanted to see the books. Shekhar Chand told him that Padam Sen owed him Rs. 900/- which he wanted to repay and the repayment was to be noted in one of the account books. The lawyer replied that he had mislaid the key and asked them to come again the following morning. At 8.30 a. m. on 30-3-1954 the lawyer sent for them, and just as Padam Sen took out Rs. 900/- to pay to Shekhar Chand, the Magistrate and others came out of their hiding and seized the money and arrested them. There were 6 defence witnesses, including the accused Padam Sen himself. These witnesses other than the accused Padam Sen were Jain Prasad D. W. 5 to prove a loan of Rs. 900/- to Padam Sen by Genda Mal in 1944, Jialal D. W, 4 to prove that there was a quarrel at the time of the seizure of books by the Commissioner, Moti Lal D. W. 3 to prove that the appellants stayed with him at Ghaziabad and were sent for by the lawyer, Har Prasad D. W. 2 a petitioner writer to prove that there was a quarrel between the appellants and the lawyer in the afternoon of 29-3-1954 when the former protested against the latter having shown the books of account to the other party, and Kishan Lal D. W. 1 to prove two applications Exhibits D11 and D12 filed by Genda Lal in the court of the Additional Munsif on 5-4-1954 complaining that the Commissioner had shown the accounts to the opposite party.
7. The main question therefore was whether the seized sum of Rs. 900/- was being offered by the appellants as a bribe to the Commissioner or inrepayment of a loan by Padam Sen to Shekhar Chand. The learned Special Judge held that the story of loan of Rs. 900/- by Genda Lal to Padam Sen, which formed the basis of the defence, was pure fiction, that the defence case as to the reason why the accused visited the lawyer was not worthy of belief, and that the lawyer had no motive to rubricate a false case against the accused. On the other hand, he held that the prosecution witnesses were independent and trustworthy, that the testimony of the Sub-Registrar Magistrate, the police officer and the two witnesses Mangat Kam and Ram Chand regarding the talk they overheard and the seizure of the notes immediately after afforded all the corroboration needed for the statement of the lawyer Sri Raghubir Prasad to prove beyond a shadow of doubt that the accused offered a bribe to the lawyer Commissioner. He held further that Shekhar Chand as son of the plaintiff Genda Mal an Padam Sen as a close friend of Shekhar Chand had ample motive to offer the bribe. The learned Special Judge was of the view further that as Sri Raghubir Prasad was in possession of the account books as a Commissioner appointed by the Additional Munsif of Ghaziabad, he was a public servant as defined in Section 21 I. P. C. (fourth clause). In the result, he convicted and sentenced the appellants as aforesaid.
8. The learned counsel for the appellants did not impugne the judgment of the Court below for rejecting the defence case, and on an examination of the evidence produced on behalf of the accused I am clearly of the view that the Court was quite right in doing so. The learned counsel, however, raised a question of fact, namely, that no such conversation as is alleged had really taken place between the appellants and the lawyer immediately before the seizure of the notes, and another of law, namely, that the offence in question was not made out because, firstly, money had not actually changed hands, and, secondly, the Commissioner was not a public servant within the purview of Section 161 I. P. C., tor the abetment of which offence the appellants have been convicted under Section 165A, I. P. C.
9. On the question of fact, the testimony of the relevant prosecution witnesses, the lawyer Commissioner Sri Raghubir Prasad P. W. 4, the Sub-Registrar Magistrate Sri Krishna Murari P. W. 2, the police officer Sri Narain Sharma P. W. 10 and of the two witnesses Mangat Ram P. W. 3 and Ram Chand P. W. 6 is quite specific. It was not urged that the Court below was in error about the trustworthiness of these witnesses. True, as trap witnesses their testimony stood in need of independent corroboration. That corroboration was amply provided by the judgment of the learned Munsif in the civil litigation as proving the motive; the appellants wanted to bribe the Commissioner in order to induce him to let them change one of the seized, account books so as to support the false case of the plaintiff that only Rs. 4050/- instead of Rs. 7049/10/6 had been repaid by the defendants. The question of fact raised has therefore no force.
10. As to the first question of law that money had not actually passed from Padam Sen to Sri Raghubir Prasad, that is immaterial inasmuch as Section 165A, I. P. C., penalises abetment of the offence punishable under Section 161 or section 165 'whether or not that offence is committed in consequence of the abetment.' Now, of the various ways of abetment given in Section 107, I. P. C. the one applicable to the facts of the present case would be the first, namely, instigating any person to do the thing (here, to commit the offence punishable under Section 161 or Section 165). For this form of abetment, unlike the other two mentioned in Section 107, merely instigating another to commit the offence would render the instigator liable as abettor irrespective of whether that of her committed, or even consented to commit, the offence.
For this form of abetment, therefore, the words 'whether or not that offence is committed in consequence of the abetment' occurring in Section 165A are redundant. It follows therefore that as soon as the appellants had instigated Sri Raghubir Prasad to let them change the book of account in question by offering Rs. 900/- to him, the offence of abetment of the offence under Section 161 was complete within the intendment of Section 165A quite irrespective of the fact that Sri Kaghubir Prasad did not accept, or even consent to accept, the money. The first question of law raised therefore fails.
11. The second question of law raised by the learned counsel constituted his main argument. The offence under Section 161 the abetment of which is punishable under Section 165A must be committed by a public servant. According to the prosecution, Sri Raghubir Prasad was a public servant under the fourth clause to Section 21 inasmuch as he was an officer of Court of Justice (the Court of the Additional Munsif of Ghaziabad) whose duty it was, as such officer, to take charge of property (the books of account of the plaintiff Genda Mal), or to execute any judicial process (the commission to seize the said books). One argument put forward by the learned counsel for the appellants in support of the contention that Sri Raghubir Prasad was not a public servant was that the Civil Procedure Code did not provide for the issue of a commission to seize property, that the Additional Munsif had therefore no jurisdiction to appoint Sri Raghubir Prasad Commissioner for that purpose, and that execution of a commission of that nature could not in consequence be legally described as a duty the performance of which clothed Raghubir Prasad with the powers of a public servant.
Now, there is no doubt that the relevant provisions relating to commissions in the Civil Procedure Code, namely, the general powers of courts in Section 75 or the detailed provisions in Order XXVI, do not provide for a commission to seize property but only for commissions to examine a witness, to make a local investigation, to examine or adjust accounts and to make a partition. The argument of the learned counsel for the appellants would appear therefore to pre-suppose two things: that the Code is exhaustive of all that pertains to the procedure obtaining in civil courts, and that civil courts have no power to do anything in the realm of procedure not expressly provided for in the Code.
12. Both these pro-suppositions ignore the provision as to the saving of the inherent powers of the Court contained in Section 151 of the Code. Under that section nothing in the Code limits or otherwise affects the inherent power of the Court to make such orders as may be necessary for one of the two purposes -- for the ends of justice, or to prevent abuse of process of the Court. From its very terms the section does not confer any new powers but only saves the inherent power to make orders for one or the other of he said two purposes.
Unless therefore anything is prohibited by the Code (for instance, altering or adding to a judgment once it is signed in contravention of the provisions or Order XX, Rule 3), or is excluded from its jurisdiction (for instance, entertaining a suit which is not of a civil nature under Section 9), or is in contravention of some other law (for instance, the law of limitation), the Court will, where the circumstances require it, 'act upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of which alone it exists'. Hukum Chand v. Kamalanand, ILR 33 Cal 927 (at 931-32). So it was held by this Court in Durga Dihal Das v. Anoraji, ILR 17 All 29, that although there was no provision in the Code strictly applicable to the case, the High Court was warranted ex debito justitiae in setting aside in second appeal the proceedings of both the Courts below and directing a retrial by the first Court where a party was illegally prevented from producing oral evidence, and it was also held that the Code was not exhaustive.
13. Applying the above principles to the facts of the present case, the first thing to see is whether the issue of a commission for seizure of books of account of a party was prohibited. No specific prohibition was cited, but it was submitted by the learned counsel that there was an implied prohibition in that neither Section 75 nor Order XXVI of the Code provided for such a commission. This argument has no force on the very face of it since mere absence of a provision in the Code would not necessarily amount to a prohibition.
This would appear clearly from the decision of this Court in Durga Dihal's case, ILR 17 All 29 cited above. The learned counsel for the appellants referred to certain case law. He relied firstly, on a Division Bench decision of the Lahore High Court reported as Mohammad Wazir v. Jahangir Mal, AIR 1949 Lah 72. That was a first appeal from dismissal of a suit for specific performance of a contract of sale. One of the questions in issue in the case was whether the plaintiff was a creditor within the meaning of Section 3-A, Punjab Alienation of Land Act, as 'a person carrying on the business of advancing loans'.
The trial Court referred the decision of the question to a Commissioner. On appeal Cornelius J. held that that was clearly in contravention of Section 75, Civil P. C., which limits the power of a Court in regard to the issue of Commissions to the tour purposes enumerated above. The action of the trial Court was manifestly illegal because in referring the decision of the aforesaid question to a Commissioner it was delegating it a judicial functions to another. The finding of the trial Court should therefore have been set aside on that ground.
With the actual reasoning adopted by the learned Judge, namely, that the trial Court's action was in contravention of Section 75, I am unable, with all respect, to agree. There is nothing in Section 75 which prohibits the issue of such a commission, so that if there were otherwise no bar to it, issuance of the commission would be unassailable. That bar clearly lay in the rule enunciated in Order XX, Rule 5, Civil P. C., according to which the finding or decision on a material issue has to be the finding or decision of the Court itself and not that of another.
So in Ram Krishna v. Ratan Chand, , it was held that Rule 9 of Order XXVI relating to commissions for local investigations did not authorise a Court to delegate to a Commissioner the trial of any material issue which the Court itself is bound to try. This, as I have stated above, should have been the ground for upsetting the finding of the trial Court, and not that the appointment of the Commissioner was in contravention of Section 75.
On the contrary, it was held in a Division Bench decision of this Court reported as Gopal Das v. Jagannath Prasad : AIR1938All266 , that in a case of alleged infringement of copyright involving minute scrutiny of alleged similarities and dissimilarities and extensive and lengthy comparison of certain publications it was not only proper but essential that the case should be tried with the aid of experts who might be appointed Commissioners to investigate and report similarities. Section 75 does not contemplate appointment of such Commissioners. I am therefore of the view that there was nothing in Section 75 or Order XXVI of the Code or in any other rule or law barring the appointment of a Commissioner for seizure of the books.
14. It has however still to be seen whether the appointment was necessary for (the ends of justice or to prevent an abuse of the process of the Court. That point is easily disposed of, and its disposal rests on the judgment delivered by the learned Additional Munsif in the civil litigation in which the Commissioner was appointed. That judgment shows that the plaintiff's claim that only Rs. 4050/- had been repaid under the pronotes was false, since according to the learned Munsifs finding the defendants had repaid as much as Rs. 7049/10/6.
Had the plaintiff's books of account not been seized he would have carried out the object for the achievement of which his son and the latter friend sought to bribe the Commissioner. They would have changed the particular book and thus prevented justice being done in the case. I am therefore clearly of the view that the appointment of Sri Raghubir Prasad as Commissioner to seize the books of account was legal and intra vires the powers of the Additional Munsif, so that in taking charge of the books or executing the commission Sri Raghubir Prasad was performing his duty as an officer of the Court and was therefore a public servant within the definition of that term as given in the fourth clause of Section 21, I. P. C.
15. Another argument put forward in this connection was that in letting the appellants change the books of account Sri Raghubir Prasad could not have done or forborne to do any official act or shown or forborne to show in the exercise of his official functions favour to the appellants. And in support of this argument reliance was placed on Nirsu Narayan v. Emperor AIR 1926 Pat 499. That was a case where Nirsu Narayan was tried for defamation under Section 500, I. P. C., on the complaint of a Sub-Inspector of Police in respect of a statement alleged to have been made by the former implying that the latter had been Bribed in the sense of Section 161, I. P. C., to support one of the candidates in an election.
It was held by Ross J. that the said interpretation was wrong inasmuch as it was not suggested that anything that the Sub-Inspector did in the matter of the election was an official act or was done in the exercise of official functions. On the con-trary, the Government servants were strictly prohibited under their rules from helping candidates in elections. In other words, the help which, according to the allegedly defamatory statement, the Sub-Inspector is said to have been given to one of the candidates was not given as a Sub-Inspector of Police but as a private person.
Now, it appears to me that the view points for judging the offences under Sections 161 and 165A have necessarily to be different since the mens rea to be considered in one case is that of the bribe taken and in the other of the bribe giver. The common factor in the two cases of course is that the person bribed, or attempted to be bribed, should be a public servant, but in a case under Section 165A since it is the mens rea of the bribe giver that has to be considered, it should be sufficient to render him liable if his object in bribing or attempting to bribe the public servant was to induce the public servant to do an official act or show or forbear to show, in the exercise of his official functions, favour or disfavour to him, it being quite immaterial whetherthe public servant was not in fact in a position to do or not to do the act or show or forbear to show the favour or disfavour in question.
Judged in this light, there could be no doubt but that the appellants offered bribe to Sri Raghubir Prasad to induce him as a Commissioner, and not as a private person, to permit them to change one of the books of account. What is more, Sri Raghubir Prasad was in fact in a position to do the act or show the favour in question to the appellants since the seized books being still with him, he was still the Commissioner and was in a position to let the appellants do what they wanted. The Patna case cited by the learned counsel has therefore no application to the facts of the present case. On the contrary, those facts point clearly and unmistakably to the culpability of the appellants.
16. The arguments of the learned counsel went higher still and he submitted, relying on a F. B. decision of the Rangoon High Court reported as O. N. R. M. M. Chettyar Firm v. Central Bank of India, Ltd., AIR 1937 Rang 419, that no one is to be deprived of his property in any judicial proceeding unless he has had an opportunity of being heard. Suffice it to say [that by the seizure of his books the plaintiff Genda Mal was not being deprived of his property but only temporarily denied user of the same.
17. The legal position against the appellantsappears to be as clear as the factual, and I haveno doubt whatever that their conviction is well-founded. The appeal is accordingly dismissed. Theappellants shall submit forthwith to their bail andserve out their sentences.