Yahya Ali, J.
1. These are appeals by the Crown Prosecutor under Section 417, Criminal Procedure Code, from the orders of acquittal passed by the Chief Presidency Magistrate in C.C. Nos. 3397 and 3398 of 1945. In the former case two persons, R.K. Pillai and Jayaram Naidu, were charged with having committed offences under Section 161 read with Section 114, Indian Penal Code and under Rule 38(5) read with Rule 34(6)(c) of the Defence of India Rules and in the latter case, one of these two persons, viz., Jayaram Naidu was charged under the same two provisions. They were acquitted in both the cases in respect of both the counts.
2. Although the two cases were tried separately, there is a good deal of common ground between the two and a considerable amount of evidence is also common involving common contentions of fact and of law. It will therefore be convenient to set out generally the facts of the case and the material features and contentions before examining the correctness or otherwise of the Orders of acquittal in each of these cases.
3. Jayaram Naidu is a tax collector in the service of the Madras Corporation while R.K. Pillai is employed in the Oriental Lungi Company, which is a company engaged in textile business. Mr. Satyamurthi, who during the relevant period was Personal Assistant to the Provincial Textile Commissioner, Madras was, before he was drafted into that department, an accountant in the office of the Corporation of Madras. Prior to that he was cashier and in that capacity had known Jayaram Naidu. The prosecution case is that on the 27th November, 1945, Jayaram Naidu presented an application on behalf of the Oriental Lungi Company signed by R.K. Pillai to Mr. Satyamurthi in the Textile Commissioner's office. The application was for a special permit to export 18,000 yards of handloom cloth to Calcutta. Jayaram Naidu was then said to have represented to Mr. Satyamurthi that R.K. Pillai was his brother and that as such he was interested in the matter, The application was immediately date-stamped by Mr. Satyamurthi himself and endorsed for report to the Textile Control Officer. Mr. Satyamurthi was admittedly empowered under a standing office order of the Provincial Textile Commissioner, inter alia, to issue permits for the export of cloth ' with reference to settled policy or special instructions.' On the 28th November, 1945, Jayaram Naidu is said to have gone to the house of Mr. Satyamurthi in the morning Mr. Satyamurthi was then conversing with Mr. Sharma, a friend of his. On seeing Jayaram Naidu at his house, Mr. Satyamurthi told him that he was not in the habit of meeting people who had official business with him at his house and asked Jayaram Naidu to leave the house. Jayaram Naidu is said to have immediately left the place only to turn up again the next morning and this time he was not ' chased away ' as on the previous day. He met Mr. Satyamurthi on the 29th November at about 8 a.m. at his house and delivered to him an open cover which was received by Mr. Satyamurthi. Just at that moment, the sound of the horn of a car was heard outside and Mr. Satyamurthi recollecting that Mr. Narasimhan Deputy Secretary to Government had made an appointment with him to discuss about a house required by a relation of his, went out to meet him. As Mr Narasimhan had parked his car too close to his house, Mr. Satyamurthi asked him to move the car away by a few yards. Mr. Narasimhan complied and then Mr. Satyamurthi placed into the hands of Mr. Narasimhan the cover which he had just then received from Jayaram Naidu and asked Mr. Narasimhan to open the cover and see what it contained saying that the cover had been given to him by a visitor just then. Mr. Narasimhan complied and opened the cover and found in it ten currency notes of Rs. 100 each, wrapped in a letter head of Oriental Lungi Company. Mr. Satyamurthi then told Mr. Narasimhan that the visitor had offered the money to him as illegal gratification and asked Mr. Narasimhan to initial the cover. Mr. Narasimhan again complied and gave back the cover after placing his initials on the cover and not on the currency notes. After advising Mr. Satyamurthi to bring the matter to the notice of the Provincial Textile Commissioner, he left the place in his car without endeavouring to see or interview the person who had given the bribe and without discussing the matter of the house about which he had come to meet Mr. Satyamurthi. Mr. Narasimhan evidently took no further interest in the matter.
4. Mr. Satyamurthi went to his office at about 11 a.m. and met the Joint Textile Commissioner, Mr. Raghavachari in his room and related to him all that transpired at his house. No statement was taken from Mr. Satyamurthi by Mr. Raghavachari then but Mr. Raghavachari advised Mr. Satyamurthi to send the person if he turned up, to his room and also asked for the file. This was at about 11 a.m. Soon after, Jayaram Naidu accompanied by R.K. Pillai came to the Textile Commissioner's office and met Mr. Satyamurthi and asked him if the permit had been granted to which Mr. Satyamurthi replied that the application was before the Joint Textile Commissioner and they could just as well go and see him. He was then asked whether they could offer some money to Mr. Raghavachari to which Mr. Satyamurthi replied that they could do as they liked. They immediately went out of the office and came back a short while later, met Mr. Satyamurthi again and asked him to take them to the Joint Textile Commissioner. Mr. Satyamurthi took them to Mr. Raghavachari's room and introduced them as the persons who had asked for the permit and leaving them in that room returned forthwith to his table. This was at about 12-30 p.m.
5. Mr. Raghavachari questioned them what they wanted and they said that: they wanted a monthly quota for export. As under the rules they were not entitled to it, not having carried on any export business during the prescribed basic period, Mr. Raghavachari told them that they were not entitled to a monthly quota. Immediately thereupon, Jayaram Naidu took out a cover and passed it on to R.K. Pillai who in turn handed it over to Mr. Raghavachari. Just at that moment the Superintendent of the office, Dandayuthapani dropped into Mr. Raghavachari's room and the accused left. Dandayuthapani was asked to open the cover which was closed and on examining the contents he found five hundred rupee notes in it. As the Superintendent was counting the notes, R.K. Pillai again came into the room and asked when he would get the permit. Mr. Raghavachari on that occasion told him that orders would be passed later, on his application. R.K. Pillai then left the room and Mr. Raghavachari made a note of the contents of the cover on its exterior and admittedly no further action was taken until after 2 p.m. when Mr. Satyamurthi met Mr. Raghavachari who related to him all that took place in his room. A written complaint was then taken from Mr. Satyamurthi and was sent along with another report from Mr. Raghavachari to the Deputy Commissioner of Police, Crime Branch, enclosing with it the two covers handed over respectively to Mr. Satyamurthi at his house and to Mr. Raghavachari in his office room with their contents. The accused were coming to the office fre-quently and enquiring when the permit would be handed over until in the afte-noon of the 30th November, 1945, the Inspector, Crime Branch, arrested them in the Textile Commissioner's office. On a search of their persons, among other things which are not relevant to this case, a piece of green paper was found in the pocket of R.K. Pillai. The sixth paragraph of that paper contains the following note : ' Wants to have monthly issue of permits regularly.' The relevancy of this document and the sixth paragraph thereof will be dealt with in due course.
6. In C.C. No. 3397 of 1945 when first examined, R.K. Pillai stated in his plea that he was not prepared to say anything to explain the circumstances appearing against him but would submit a written statement. He however denied having himself handed the cover to Mr. Raghavachari. Jayaram Naidu also stated the same thing and did not wish to answer any further questions put by the Court Subsequent to the framing of the charges however, a written statement was filed by Jayaram Naidu setting out the defence version and that version seems to have been also adopted by the other accused in C.C. No. 3397 of 1945. The same defence was put forward in C.C. No. 3398 of 1945. The defence version is this : R.K. Pillai is not the brother but only a friend of Jayaram Naidu. He (Jayaram Naidu) went to Mr. Satyamurthi on 27th November, 1945, with an application for an export permit on behalf of the Oriental Lungi Company in view of his acquaintance with Mr. Satyamurthi and to see if he could help the Lungi Company to get a permit. Mr. Satyamurthi then gave Jayaram Naidu to understand that there would be no difficulty in granting the permit to the company but requested Jayaram Naidu to prevail upon R.K. Pillai to contribute at least a sum of Rs. 3,000 to the Mylai Sangeetha Sabha of which Mr. Satyamurthi is the Secretary and the Provincial Textile Commissioner the President. This request of Mr. Satyamurthi was conveyed by Jayaram Naidu to R.K. Pillai : but since the proprietor was absent elsewhere, R.K. Pillai who was only a clerk, could not on his own responsibility pay such a large donation, but agreed to pay a sum of Rs. 1,000 as donation to the Sabha on behalf of the company. Jayaram Naidu again visited Mr. Satyamurthi at his house on 28th November to ask if the permit had been given and he was told that the permit had been granted and that he could come and take it the next day. The next morning he went to Mr. Satyamurthi's house with Rs. 1,000 and handed over the amount after he had been told that the permit had already been ordered in the usual course. Just then a visitor, Mr. Narasimhan, came in the car and Mr. Satyamurthi went out to speak to him. A short while later the visitor went away and Mr. Satyamurthi returned and asked Jayaram Naidu to bring R.K. Pillai also with him to the office to take the permit that had been granted. Mr. Satyamurthi retained the cover containing the money. As directed he went with R.K. Pillai to the office and then he was told by Mr. Satyamurthi that the sum of Rs. 1,000 paid as donation to the Sabha was not sufficient and that it should be at least raised by another Rs. 500 and that the balance of Rs. 500 may be paid directly into the hands of the Joint Textile Commissioner by way of assuring himself that the entire amount was meant as donation to the Sabha. Both Jayaram Naidu and R.K. Pillai on hearing this, left the office and came back with the additional sum of Rs. 500 and asked Mr. Satyamurthi to take them to the Joint Textile Commissioner. They were ushered by him into Mr. Raghavachari's room and there, out of deference to the latter, they did not ask him any questions but quietly handed over the cover containing the sum of Rs. 500 required by Mr. Satyamurthi, believing in good faith that it would be taken as an additional donation to the Sabha, irrespective of the question of the permit. Both the accused denied that they offered or paid any bribe or abetted the offence. A suggestion was made in the statement that the Textile Department was vigorously collecting donations for the Mylai Sangeetha Sabha through its officers on an extensive scale, that they earnestly believed that there was no harm in making a contribution for a charitable purpose and that the donation that they paid had no relation to the permit that they had asked for, since they were given to understand by Mr. Satyamurthi first that there would be no difficulty in getting it and later that the permit had already been ordered to be given. As for the motive for putting up the case, it was suggested that since the activities of the officers of the Textile Department in this matter had become the subject of public talk, Mr. Satyamurthi wanted by this contrivance to make it appear that the officers of the department were out to put down every kind of corruption in their department.
7. In C.C. No. 3398 of 1945 which is concerned with the bribe said to have been given to Mr. Satyamurthi on the morning of the 29th November at his house, the main evidence is that of Mr. Satyamurthi himself as to what had happened at his house on that date. It is followed up by the evidence of Mr. Raghavachari with regard to the complaint made to him by Mr. Satyamurthi about this matter and the delivery to Mr. Raghavachari of another sum of Rs. 500. The learned Chief Presidency Magistrate taking into consideration a number of features noticed by him in the testimony of Mr. Satyamurthi, found himself unable to accept his evidence and came to the conclusion that the prosecution had not established that Jayaram Naidu, accused in that case, was guilty of having offered illegal gratification to Mr. Satyamurthi.
8. In C.C. No. 3397 of 1945 in which both R.K. Pillai and Jayaram Naidu are accused and which concerns the giving of a bribe of Rs. 500 to Mr. Raghavachari in the afternoon of the 29th November, in his office room, the learned Magistrate found that the amount was paid to Mr. Raghavachari because the accused were misled by Mr. Satyamurthi into believing that an additional sum by way of donation was being paid irrespective of the question of the permit. Upon, these findings the learned Magistrate acquitted the accused in both the cases.
9. The contentions of the Crown in these appeals are twofold. The first contention is that the amounts were offered as bribe pure and simple and not as donations at all. It is argued that the learned Magistrate did not appreciate the evidence correctly and brought unnecessarily the affairs of the Mylai Sangeetha Sabha into the picture. The second contention is that even if the payments to both the officers were in the nature of donations to the Sabha in which those officers were interested, they would still amount to illegal gratification within the meaning of Section 161, Indian Penal Code and it is no defence to say that the money was not intended to be given personally to the officers concerned but was meant for the benefit of the public institution with which they were connected.
10. As pointed out there were two charges in each case. I shall deal with the second charge arising under the Defence of India Rules later. The first and the principal charge is the one under Section 161 read with Section 114, Indian Penal Code. The material portion of that section runs thus:
Whoever, being...a public servant, accepts, or obtains...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 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 Central or any Provincial Government or Legislature), or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
11. In the fourth explanation, the expression ' a motive or reward for doing', is defined in this manner:
A person who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within these words.
then comes illustration (c) to that section:
A, a public servant, induces Z erroneously to believe that A's influence with the government has obtained a title for Z and thus induces Z to give A money as a reward for this service. A has committed the offence defined in this section.
12. We notice that the offering or giving of a bribe is not by itself made an offence under this section, but it is rendered punishable as an act of abetment if the requisite elements of abetment are present. Illustration (a) to Section 109 says:
A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. B accepts the bribe. A has abetted the offence defined in Section 161.
13. The case of an offer which is refused is provided for under Section 116, vide illustration (a) which runs thus:
A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official influence. B refuses to accept the bribe. A is punishable under this section.
14. To constitute an abetment of the doing of a thing, therefore, there should be, as required under Section 107 an instigation to do that thing or conspiracy for the doing of it followed by an act or illegal omission in pursuance of that conspiracy, or intentional aid in doing the same by any act of illegal omission. To bring home to the accused the guilt under Section 161 read with Section 114, Indian Penal Code, it would be necessary for the prosecution to prove conclusively with regard to both the payments made to Mr. Satyamurthi and to Mr. Raghavachari that while making the payments they instigated or intentionally aided those officers to accept an illegal gratification for one or other of the purposes mentioned in Section 161. the purpose adumbrated by the prosecution in this case being the granting of a permit which under the practice prevailing in the department or under the rules, the. applicant was not entitled to get in the ordinary course. The case of the accused has always been that while it is true that they paid Rs. 1,000 to Mr. Satyamurthi on the morning of the 29th November, at his house and paid a further sum of Rs. 500 to Mr. Raghavachari the same afternoon in his office room, the payments were entirely independent of the application for permit that they had made and that they were given solely as a donation to the Mvlai Sangeetha they had made and that they were given soley as donation to the Mylai sangeetha Sabha since contributions were being publicly invited for the building fund of the Sabha and were freely pouring in. They contend that there was no further question of the permit, as on the 27th November, itself, Mr. Satyamurthi had assured them that there would be no difficulty in getting it and on the 28th and 29th they had been told even before the money was given that the permit had already been ordered to be given. So there was no need instigate or aid the doing of a been which had already been done nor was the amount given to either of those officers as a reward for the granting of a permit within the meaning of Section 161, but was given expressly at the request of Mr. Satyamurthi that since the Sabha was a public institution, a donation might be obtained from the company. It is manifest therefore that the decision as to which version is correct would largely depend upon the weight that could be given to the testimony of Mr. Satyamurthi, for in one case, i.e., the case in which the payment made to him is involved, the version rests exclusively upon his sole testimony, while in the other case concerning the payment to Mr. Raghavachari, Mr. Satyamurthi's version about the various matters leading up to that payment serves as the prelude, if not the foundation of that part of the case. Mr. Raghavachari's evidence by itself does not conclusively establish that the accused when they entered into his room and handed over the pasted cover, instigated him to accept illegal gratification for the purpose of granting a permit. The position might have been different if all that Mr. Satyamurthi has said as to what transpired before could be acted upon. But if that background fails, Mr. Raghavachari's evidence is not of much probative force having regard to the requirements of Sections 107, 109, 114 and 161, Indian Penal Code. It becomes therefore necessary at the outset to assess the evidence of Mr. Satyamurthi. In assessing that evidence, I must recall to my mind the dicta of the Judicial Committee in Sheo Swarup v. King-Emperor where stress has been laid upon the proper weight and consideration that should be shown by the High Court to the views of the trial Judge as to the credibility of the witnesses and as to the proper attitude of the appellate Court in regard to the findings of fact arrived at by a Judge who had the advantage of seeing the witnesses. After examining the various provisions in the Code bearing upon this question their Lordships said in that case:
Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.
15. This decision was recently reiterated by the Privy Council in Nur Mohammad v. Emperor (1945) 2 M.L.J. 362 where it was observed that there was only one principle, in the strict use of the word, laid down in Sheo Swarup v. King-Emperor that is, that the High Court has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion whether upon that evidence the order of acquittal should be reversed.
16. His Lordship after considering the opinion expressed by the Chief Presidency Magistrate about the credibility of the evidence of Mr. Satyamurthi and the various defects and anomalies in the evidence in these two cases in general and in the evidence of Mr. Satyamurthi in particular concluded as follows.
17. In the face of these numerous defects some of which appear indeed to be very material, the question is whether in an appeal against acquittal this Court will interfere with the estimate of the trial Court as regards the credibility of Mr. Satyamurthi or disturb the findings of fact that that Court has reached based upon the evidence of the witnesses who were seen by it. I have no doubt on a review of the entire evidence upon which the order of acquittal in C.C. 'No. 3398 of 1945 (C.A. No. 615 of 1946) is founded that the conclusion reached upon that evidence can only be that the order of acquittal therein should not be reversed.
18. His Lordship then discussed certain features found in C.A. No. 614 of 1946 and concluded as follows.
19. The learned Magistrate has on a close scrutiny of all the circumstances, come to the conclusion that the accused did not offer any illegal gratification to Mr. Raghavachari and that they paid the amount because they were misled by Mr. Satyamurthi into believing that it was expected as a further donation by Mr. Raghavachari for the Sabha irrespective of the question of the permit. On a review of the entire evidence and the attendant factors I am unable to hold that this conclusion is unwarranted.
20. In this view of the facts and the evidence in both the cases, it is, strictly speaking, unnecessary to go into the further question raised by the learned Advocate-General that even if the payments were made as donations to the Sabha while as a matter of fact the application of 27th November was still pending disposal, it would none the less amount to an offence within the meaning of Section 161 read with Section 114, Indian Penal Code, as it is immaterial whether the bribe was offered for the personal use of the officer concerned or for the benefit of an institution in which he was interested. The learned Advocate-General was fair enough to state in Court on behalf of the Crown that he was not interested in securing punishment for the respondents but was only desirous that the law should be correctly laid down.
21. The legal principle applicable to such cases is not and has never been in doubt. The principle was put in forcible language by Jardine, J., in Imperatrix v. Appaji bin Yadavrao I.L.R. (1897) Bom. 517. In that case the Mahars of a certain village had been suspended from their office for some months. A meeting of the villagers was held at the house of the Patel at which the Patel was present, to consider the question of their restoration to office and an agreement was reached to which the Patel was a party to the effect that they should be restored to their respective offices on their paying a sum of Rs. 300 towards the repair of the village temple. The question for determination, by the Court was whether what was done came within the meaning of Section 161, Indian Penal Code and the learned Judge stated the law thus:
The plain words (of Section 161, Indian Penal Code) exclude the defence that the benefit bargained for was to go to somebody else, and also exclude the notion that an officer is protected if he agrees to let his official acts be swayed by the motive of accepting gratification to be used professedly for advancing some public, not private, object such as charity, science or religion. That kind of motive is different to the desire of private lucre; but it may easily lead to oppression and the subject in the pursuit or enjoyment of a right ought not to be hampered by any thought of pleasing the officer by promising a subscription of any kind however laudable. Nor ought an officer to be affected in his duty to the Crown in dealing with a subject by such a consideration.
22. As a justification for this rule, the learned Judge also mentioned that in that case there was a danger that if the village Mahars paid Rs. 300 for restoration to office, they might make the enterprise profitable by illegal or dishonest practices, since in their capacity as village Mahars they had duties connected with the public revenue, the village police and the civil administration. In Emperor v. Amiruddin Salebhoy Tyabjee : AIR1923Bom44 this decision was followed. In the judgment of the learned Chief Justice he pointed out that he would be establishing a further dangerous precedent if he were to hold that an officer is protected if he agrees to allow his official act 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. Both these cases were referred to and followed in a reeent decision of a Division Bench of the Patna High Court in B.K. Sen v. Rajeswari I.L.R. (1945) Pat. 138. In that case an Arms Act clerk, whose duty it was to put up to the Sub-Divisional Officer applications for gun licences, imposed on an applicant a condition precedent to the performance of that duty, viz., that the applicant should invest Rs. 100 in war bonds. The learned Judges observed that it was not of course an attempt by the Arms Act clerk to obtain any monetary advantage for himself though one might assume that his efforts to persuade people to invest in war loans would redound to his advantage in the matter of his promotion. Nevertheless the demand of the Arms Act clerk amounted to an attempt to obtain a gratification not for himself, but for his employers as a reward for doing his official duty, to forward the petitioner's application for renewal of his licence to the Sub-Divisional Officer, and it constituted an offence under Section 161 of the Code. It is to be noticed that both in Imperatrix v. Appaji bin Yadavrao I.L.R. (1897) Bom. 517 and in B.K. Sen v. Rqjeswari I.L.R. (1945) Pat. 138 a connection was in fact established between the performance of the official duty and the demand or payment of the gratification. In the Bombay case the amount was demanded directly for the restoration of the Mahars to the office and in the Patna case the investment was asked for specifically for the performance of the clerk's duty of putting up the paper to the higher officer who had the power of granting the licence. The sine qua non is the establishment of such a connection before it can be said that the gratification offered is a motive or reward for any of the purposes mentioned in Section 161, Indian Penal Code. Attention was invited also to Lakshminarayana Aiyar, In re (1917) M.W.N. 831. In that case a village munsiff offered money to a Sub-Magistrate coupled with a request that the Magistrate should show favour to an accused person in a case pending in his Court. The object of the village munsiff in doing so was not to secure any benefit for that person for whom favour was solicited but to lay a trap for the Magistrate who was suspected to be a corrupt official. The village munsiff was evidently set up to do this act by others who wanted to establish direct evidence of the acceptance on the part of the Magistrate of a bribe in connection with a pending case. A Division Bench consisting of Sadasiva Aiyar and Phillips, JJ., heard the case and although they agreed in a broad sense that even the person who lays the trap is guilty of abetment of an offence under Section i6i, Indian Penal Code, they differed on the question of sentence and the case was referred to Spencer, J., who held that Section 161 says nothing about the intention of the offender, but the fourth explanation to the section makes it clear that a bribe may be received as a motive for doing a thing that the public servant who takes the bribe has not the least intention of doing, and yet the offence will be complete. The learned Judge pointed out that the motive or reward mentioned in the section is the con-sideration for showing favour which is not necessarily identical with the motive or intention of the giver of the illegal gratification. In the end it was found that the act of the village munsiff amounted to an attempt to pervert the course of public justice and required to be punished severely and he confirmed the sentence awarded by the Magistrate. Here also it was definitely established that payment was avowedly made to a Judicial Officer in connection with a case pending before him. If, as in all the cases cited above, it had been affirmatively or by necessary inference from surrounding circumstances, established in the present case that the payment of Rs. 1,000 to Mr. Satyamurthi and of Rs. 500 to Mr. Raghavachari was made either as a motive for granting a permit (whether export permit or monthly permit) or as a reward for having already granted the export permit, there could be no doubt that the accused would be guilty under Section 161 read with Section 114, Indian Penal Code, in both the cases. But, as I have already found, no such connection has been established. On the contrary it has been established by the defence from all the attendant circumstances that the amounts were offered independently of the result of the application dated 27th November, 1945. I would for these reasons agree with the finding of the learned Chief Presidency Magistrate that the accused in both the cases have not been conclusively proved to have committed the offences under Section 161 read with Section 114, Indian Penal Code.
23. Now remains the second charge in each of these cases under Rule 38(5) read with Rule 34(6)(c) of the Defence of India Rules. Rule 34(6) contains the definition of' prejudicial act ' and Clause (c) thereof runs thus:
To render...any public servant incapable of efficiently performing his duties as such or to induce...any public servant to fail in the performance of his duties as such.
24. Rule 38(5) provides the punishment for contravention of the abovementioned rule. It was argued for the Crown that the case falls within both the parts of Clause (c) and that while the second part, viz., inducing the public servant to fail in the discharge of his official duties is co-extensive with Section 161, the first part dealing with the question of efficient performance of duty is of wider import and it was stressed that in the present case the offer of the money had in regard to both the officers affected the efficient performance of their duties. It is unnecessary to consider this argument for in neither of the two cases does the charge refer to the earlier part of the rule concerning efficient performance of duty. The pre-judicial act with which the accused were charged is mentioned to be the inducement offered to each of the officers concerned to fail in the discharge of their official duties. For the reasons given with regard to Section 161, Indian Penal Code, it must be held that there was no such inducement offered to them to fail in the performance of their duties and consequently no prejudicial act was committed by the accused in either of these two cases within the meaning of Rule 34(6)(c).
25. I would in the result dismiss both the appeals.