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State of Orissa Vs. Siba Prasad Moda - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 458 of 1949
Judge
Reported inAIR1952Ori180; 17(1951)CLT160
ActsIndian Penal Code (IPC), 1860 - Sections 107, 116 and 161
AppellantState of Orissa
RespondentSiba Prasad Moda
Appellant AdvocateGovernment Adv.
Respondent AdvocateK. Patnaik, Adv.
DispositionRevision allowed
Excerpt:
.....gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - but on carefully going through his evidence i am not satisfied that the sessions judge's inference is correct......against the said bajaj requested him to drop the case. the s. i. further stated that the opposite party offered bribe to him if the case would be hushed up. thereupon the s. i. arranged for a trap and on 5-9-47 at about 9 p. m., the opposite party fell into the trap and was caught red-handed as soon as he offered bribe of rs. 500/- to the s. i. in the latter's house. a deputy superintendent of police (p. w. 2), a 1st class magistrate (p. w. 4) and some other officials who lay concealed in the adjacent room at the time of offering the bribe rushed into the room and arrested the opposite party. the opposite party then tried to swallow up the currency notes which he had previously handed over to the s. i. but these were extracted from his mouth, though in a damaged condition.3. on these.....
Judgment:

Narasimham, J.

1. This revision, is by the State of Orissa for enhancement of the sentence passed on the opposite party by the Sessions Judge bf Cuttack, on appeal, in a case of attempt at bribery.

2. The opposite party is a Marwari merchant of Cuttack town. On 2-9-47 Sri Narendra Kishore Mohonti (P. W. 1), a Sub-Inspector of Police (C. I. D. Enforcement), seized certain incriminating account books from the shop of one Dwarakanath Bajaj, a retail cloth dealer, and started investigation in a case of black-marketing. On the next day the opposite party who had some previous acquaintanceship with the Sub-Inspector met him in the Collectorate compound and after making general enquiries about the case against the said Bajaj requested him to drop the case. The S. I. further stated that the opposite party offered bribe to him if the case would be hushed up. Thereupon the S. I. arranged for a trap and on 5-9-47 at about 9 p. m., the opposite party fell into the trap and was caught red-handed as soon as he offered bribe of Rs. 500/- to the S. I. in the latter's house. A Deputy Superintendent of police (P. W. 2), a 1st Class Magistrate (P. W. 4) and some other officials who lay concealed in the adjacent room at the time of offering the bribe rushed into the room and arrested the opposite party. The opposite party then tried to swallow up the currency notes which he had previously handed over to the S. I. But these were extracted from his mouth, though in a damaged condition.

3. On these facts the trying Magistrate had sentenced the opposite party to six months' rigorous imprisonment and a fine of Rs. 500/-. On appeal, the learned Sessions Judge set aside the substantive sentence of imprisonment and reduced the sentence of fine to Rs. 200/- relying mainly on the reasons given in 'EMPEROR v. DIN-KAR RAO', AIR 1933 All 513, for passing such a lenient sentence. The learned Sessions Judge held that the invitation to offer bribe came from the S.I. in the first instance and that consequently though the opposite party cannot escape conviction a somewhat lenient sentence might suffice.

4. The facts were practically admitted by the opposite party. The only extenuating circumstance urged by him was that it was the S. I. who induced him to offer the sum of Rs. 500/- as bribe on the assurance that he would drop the case against the said Bajaj. The learned Sessions Judge relied on certain passages in the cross-examination of the S. I. (P. W. 1) for accepting the statement of the opposite party as to who first asked for the bribe. But on carefully going through his evidence I am not satisfied that the Sessions Judge's inference is correct. It was the opposite party who first saw the S. I. in the Collectorate compound at Cuttack and guardedly enquired about the case against Bajaj. The S. I. at that time did not commit himself. But the opposite party, of his own accord, again went to the house of the S. I. in the evening of that day (3-9-47) and again requested him to see that the case against Bajaj was dropped. In his examination-in-chief the S. I. further stated that then the opposite party offered him bribe if the case would be dropped. All that was elicited from him in his cross-examination was that during the course of his conversation with the opposite party it occurred to him that he could entrap the opposite party in a bribery case and that thereupon hisattitude of indifference which he had, previously assumed changed and he expressed his willingness to help the opposite party on receipt of money. These answers in cross-examination are not in any way inconsistent or contrary to the statement in his examination-in-chief about the offer of bribe having been first made by the opposite party and consequently I cannot agree with the learned Sessions Judge that it was on the asking of the S. I. in the first instance that the opposite party agreed to pay any money. On the other hand, the circumstances under which the opposite party of his own accord met the S. I. on two occasions on 3-9-47, guardedly broached the topic about the case against Bajaj and requested his help in hushing it up and his readiness to offer money, seem to indicate that he had come with the idea of bribing the S. I. and was cautiously trying to feel his way. It is true that the actual amount of bribe was first mentioned by the S. I. as stated by him. But that cannot in any way exonerate the opposite party from having first suggested monetary consideration for the S. I. dropping the case against the said Bajaj. I would therefore believe the evidence of the S. I. and differ from the finding of the learned Sessions Judge on this question of fact. In view of this finding there can be no doubt about the legality of the conviction of the opposite party under Section 161/116, I. P. C.

5. Mr. Patnaik has, however, urged, that the finding of the learned Sessions Judge to the effect that the invitation to offer bribe came from the S. I. should be accepted and that in that view the opposite party was entitled to an acquittal bearing in mind the observation of the authors of the Indian Penal Code quoted in full in the judgment of the learned Sessions Judge. This point has however been met by the learned Sessions Judge himself who rightly relied on 'EMPEROR v. DINKAR RAO', AIR 1933 All 513 in support of his view that if an offer of bribe is made on the 'invitation of a public servant such offer would still be 'intentional aid' which, is one' of the ingredients of abetment under Section 107, I. P. C. It may be that in such a case there was no instigation by the opposite party. But his conduct, in bringing the money and giving it to the S. I. would amount to 'intentional aid' and would, as such, constitute abetment. I would fully agree with the reasoning given by the learned Judges of the Allahabad High Court in support of their view and it is hardly necessary to repeat them again.

6. As regards the sentence, I cannot agree with the learned Sessions Judge that the case calls for a nominal sentence. As already pointed out, it was the opposite party who first approached the S. I. and the offence committed by him is not in any way minimised by the apparent willingness shown by the S. I. in accepting the money. The Allahabad case on which the learned Sessions Judge has relied was decided more than 17 years ago and since then conditions have changed considerably. Drastic laws for the prevention of corruption amongst public officials have been enacted by the Legislature and provisions have been made for passing deterrent sentences on corrupt officials. There seems to be no justification for treating an abettor leniently, especially when the abettor is not a simple-minded villager but a Marwari merchant of Cuttack town who wanted to take advantage of his previous acquaintanceship with the S. I. For such an offender a sentence of fine is merely a flea-bite and a substantive sentence of imprisonment alone would serve as a real deterrent.

7. I would while maintaining the conviction under Section 161/116, I. P. C. set aside the sentence passed by the learned Sessions Judge and restore the sentence of six months' rigorous imprisonment and a fine of Rs. 500/- passed by the learned Magistrate. In default of payment of the fine he should undergo imprisonment for two months more. The order of the learned Sessions Judge confiscating the five half-chewed hundred-rupee currency notes recovered from the opposite party's mouth is maintained.

Ray, C.J.

8. I agree.


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