12. The petitioner has been convicted of the offence of abetment of bribery. It has been found that he went to the house of the Sub-Magistrate of Saidapet, and saying that he wished to introduce one Arunagiri Naick, who was accused in a case then pending before the Sub-Magistrate, as a person to whom some favour should be shown, pressed Rs. 53 in notes into the Sub-Magistrate's hand.
13. The learned Judges, who composed the Bench which heard the revision case, differed only on the question whether the sentence should be reduced for the reason that the petitioner's object in offering a bribe to the Sub-Magistrate may have been rather to lay a trap for a dishonest official than to secure the acquittal of the offender, Arunagiri Naick. Mr. Justice Phillips declined to consider the case in tiffs aspect, as this defence was not raised at the trial or at the hearing of the appeal in the Sessions Court. As the whole case has now been referred to me, it is argued that it is open to me to find that the accused's act did not in law constitute an offence at all, and that I should acquit him.
14. An offence under Section 161 of the Indian Penal Code is committed when a public servant accepts any gratification, other than legal remuneration, as a motive or reward for showing favour or disfavour to any person in the exercise of his official functions, The section says nothing about the intention of the offender, but the 4th 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. Also the motive or reward mentioned in the section is the consideration for showing favour, which is not necessarily identical with the motive or intention of the giver of the illegal gratification. The offence of abetment is committed by a person who instigates any person to do the thing which is made an offence by the words of the section. Illustration (a) to Sections 116 and 109 of the Indian Penal Code removes any doubt that there might be on the question whether the offer of a bribe to a public servant as a motive the reward for his showing some favour in the exercise of his official functions amounts to an offence under Sections 161 and 109 or 116 of the Indian Penal Code, and proves that Sadasiva Aiyar, J., was right, if I may say so, in his interpretation of the expression 'instigates.' Of course a person who gives money because it is demanded or extorted from him is not guilty of any offence under the Code, as there do no instigating or intentionally aiding in his case. As Sections 109 and 161 of the Indian Penal Code do not require as an ingredient of the offence that there should be any particular criminal intention in the minds of the giver or the receiver of the bribe, a superior official who set a trap to catch a corrupt subordinate or a person who acting under the orders of a superior official offered a bribe to a subordinate public servant would, I conceive, be technically guilty of abetment of bribery.
15. In such a caste there would probably be no prosecution Of the abettor, or if there was, it is possible that be might escape by invoking the aid to of Section 79 or Section 81 of the Indian Penal Code and pleading that he acted in good faith and believed himself to be justified by law in his act, or that he did it in good faith for the purpose of avoiding more harm to other persons. But this Village Munsif had no business to go about laying traps for his superior officers in scenes of his own making. There can be ho bona fides about conduct of that sort. If his motive was not the obvious one of procuring the acquittal of Arunagiri Naick, the only ex-planation that seems consistent with his conduct is that his offer of a bribe was part of a plot hatched with the spiteful motive of ruining a man whom he bated. The Sessions Judge observes in his judgment. 'Far from showing-that prosecution first witness bad a grievance against the appellant, the evidence tends to show that the appellant, because his case bad been dismissed, had a motive for getting prosecution first witness into trouble'. This shows that this alternative explanation is the argument of Counsel on both sides and the case having stood over for consideration till this day, the Court made the following.