1. The two petitioners were tried by the Additional Chief Presidency Magistrate of Calcutta and were convicted of the offence of bribery. Petitioner 1, K. H. Bhattacharjee was sentenced under Section 161, Penal Code, to undergo rigorous imprisonment for six months. Petitioner 2, Amar Bhattacharjee alias Mantu was sentenced under Section 161/109, Penal Code, to undergo rigorous imprisonment for three months. The two rules have been issued to show cause why the convictions and the sentences should not be set aside. The case for the prosecution briefly is that petitioner, 1 K. H. Bhattacharjee was the personal assistant to the Controller of Inspection, Indian Stores Department, Calcutta Circle, and petitioner 2, Amar Bhattacharjee was a typist in the same office. The complainant Kunja Behary Ghose applied for an appointment in the office of the Indian Stores Department. He was directed to appear for a test and did so. A week after appearing for the test, this witness Kunja Behary Ghose visited the office to ascertain the result. Petitioner 1 then told him that he would get the information later. About a month later, probably some time in August 1942, Kunja Behary Ghose again saw petitioner 1 to ascertain what was his fate. On this occasion, petitioner 1 showed him two fingers, and explained that he would have to pay two hundred rupees. Kunja Behary Ghose stated that he could not pay so much, and he was directed to go to the village home of petitioner 1, on the following Sunday. Kunja Behary Ghose accordingly visited the village home of petitioner 1 on the following Sunday. He there met petitioner 2, Amar whom he had previously seen in the office. Amar represented himself to be the nephew of petitioner 1. Kunja Behary Ghose was told that petitioner 1 was upstairs. He waited for some time, and saw other people going upstairs apparently to interview petitioner 1. He accordingly spoke to Amar, petitioner 2 and requested, him to take him to petitioner 1. Amar did so and on the way upstairs explained to Kunja Behary that he would have to pay the sum of two hundred rupees. Kunja Behary saw petitioner 1 upstairs. Again, he was told by petitioner 1 that he would have to pay two hundred rupees for the job. Ultimately, it was agreed that he should pay one hundred and fifty rupees.
2. On 21st September 1942, Kunja Behary Ghose again went to the office and saw petitioner 1. He was asked if he had the money with him and he replied that he had not He was told that he would get the appointment if he produced the money. On the following day, namely, 22nd September 1942, Kunja Behary called at the office with fifty rupees which he had borrowed from one Jiten Ghose who works in the General Electric Company. The fifty rupees were paid to petitioner 2 to be made over to petitioner 1. On that day, Kunja Behary Ghose was given his letter of appointment, and he wrote his joining letter. On a subsequent occasion, Kunja Behary made a second payment of fifty rupees to Amar, petitioner 2 in the presence of petitioner 1, and the money was handed over by the second to petitioner 1. On 6th or 7th October 1942, Kunja Behary was given to understand that if he did not pay the balance of fifty rupees, petitioner 1 would procure his dismissal. Being unable to find the money, Kunja Behary again went to Jiten Ghose at General Electric Company's office, and tried to obtain the money. He told all the circumstances to Jiten Ghose, and the matter was reported to two officers of the General Electric Company. He was advised to inform the police, Kunja Behary then got in touch with Mr. K. N. Mukherjee, Deputy Superintendent of Police, who had been placed on special duty to investigate cases of bribery. He told the whole story to Mr. K. N. Mukherjee who told him that he would provide him with fifty rupees which he should pay next morning to petitioner 1. In the meantime, Mr. K. N. Mukherjee moved the Chief Presidency Magistrate to provide him with a Magistrate who would be present when the payment was made and to note markings on five ten-rupee notes which would be made over to the recipient of the bribe.
3. Accordingly, on the following day, Kunja Behary was sent to the office, and Mr. Mukherjee and the Magistrate and another gentleman sat in the outer office. Kunja Behary went into the inner office, handed over the sum of fifty rupees in marked notes, then came out and made a signal that he had made the payment. The police officer, the Magistrate and the witness then hurried into the room and found the marked notes in the possession of petitioner 1. Petitioner 1 there and then made a statement to the effect that Kunja Behary had come to him and said that he owed money to Amar and that he was not able to wait to find Amar, and he had asked petitioner 1 to take this money and make it over to Amar on his behalf. Ten prosecution witnesses were examined. No witnesses were examined for the defence. It is not denied that Kunja Behary was an applicant for a post in the Stores Department in July 1942. It is not denied that he received an appointment in September 1942. It is not denied that he entered the room of petitioner 1 on the date of occurrence, and handed over the sum of fifty rupees in marked notes to petitioner 1. The defence does, however, deny that any money was demanded from Kunja Behary as a reward for getting him the job. The defence does deny that any pressure was put on Kunja Behary to make payment after he succeeded in getting the job. The defence does deny that any money was paid to K. H. Bhattacharjee or Amar either on 22nd September or on 6th October 1942, and denies that fifty rupees were paid to K. H. Bhattacharjee on the day of occurrence as a bribe or as a reward for securing the appointment for Kunja Behary. The learned Magistrate examined the evidence with care and came to the conclusion that the case had been proved satisfactorily, and he convicted both the accused persons.
Revision Case No. 754 of 1943.
4. Mr. Carden Noad appearing on behalf of Mr. K. H. Bhattacharjee has argued that the case against petitioner 1 really rests on the evidence of Kunja Behary Ghose. He contends uthat the other evidence in the case does not prove that any offence was committed by his client. Mr. Carden Noad went further and said that it was proved in the case that Kunja Behary had altered his story in material particulars from time to time, and that therefore Kunja Behary was altogether unreliable. To substantiate this argument, Mr. Carden Noad drew our attention to the statement of Kunja Behary in evidence that petitioner 2 Amar was a nephew of petitioner 1, and he contrasted this with the statement made by Mr. K. N. Mukherjee to the Chief Presidency Magistrate in Ex. 9 when asking that a Magistrate be deputed to witness the payment. He also drew our attention to the facts that in his evidence, Kunja Behary states that during the interview in the village home of petitioner 1, it was agreed that one hundred and fifty rupees would be accepted in place of two hundred rupees as originally demanded, and he, contrasted this with the statement made by Mr. K. N. Mukherjee in Ex. 9 that two hundred rupees was always in demand, and with a similar statement in the petition of complaint. The evidence on record shows that the petition of complaint was drawn up by a pleader on instructions from Mr. K. N. Mukherjee. By no stretch of imagination, can it be held that the witness Kunja is responsible for the statements either in the petition of complaint or in Ex. 9. At best, it can be said that Mr. K. N. Mukherjee and the pleader made statements at variance with the statements of Kunja Behary in Court. Their statements were hearsay evidence. The witnesses were not prepared to say definitely that they heard these statements from Kunja Behary, and the fact that the statements made by these witnesses did not agree with the statement of Kunja Behary is no reason, in my opinion, for distrusting the evidence of the latter. Nothing that Mr. Carden Noad was able to point to us justifies us in holding that Kunja Behary Ghose was unreliable.
5. Mr. Carden Noad next contended that Kunja Behary was an accomplice inasmuch as he was paying a bribe to a Government servant, and that, therefore, his evidence cannot be accepted unless it is corroborated in material particulars both as regards the nature of the crime committed and as regards the persons concerned in that crime. Even if it be conceded that Kunja Behary Ghose was an accomplice, there was ample corroborative evidence so far as petitioner 1 was concerned. Mr. Carden Noad next contended that even if the evidence be accepted as reliable, the offence that his client committed was the offence of extortion punishable under Section 384, Penal Code, and his client ought not to be convicted of an offence punishable under Section 161 of the Code. Mr. Carden Noad went further and said that as the offence which his client committed was the offence of extortion, sanction under Section 197, Criminal P.C. and consent under Section 270, Government of India Act, 1935, for his prosecution under Section 161 ought not to be relied upon and was insufficient for the prosecution in the present case. In my opinion there is no substance in this contention. Even if we considered that the offence was principally an offence under Section 384, Penal Code, that would be no bar to conviction and isentence under Section 161 of the Code if the offence came within the definition of that section; but in the present case, viewed as a whole, the offence was essentially the offence of bribery. It is true that according to the complainant, the later sums were extorted from him, but the original payment and the original demand were offences punishable under Section 161, Penal Code, and not (probably) offences punishable under Section 384. In my opinion, Section 161, Penal Code, is appropriate in the present case, and there was no error in law in trying the petitioners under Section 161 in preference to trying them for offences under Section 384, Penal Code.
6. Lastly, Mr. Carden Noad contended that the question whether the accused could be tried under Section 161 in preference to being tried under Section 384, Penal Code, and the question whether the consent accorded under Section 270 (1), Government of India Act, 1935, to his prosecution under Section 161 was a sufficient consent for his prosecution in the present case are all questions involving the interpretation of Section 270, Government of India Act, 1935, and that, therefore, certificate for leave to appeal to the Federal Court ought to be granted. In my opinion, there is no substantial question of law as to the interpretation of any section of the Government of India Act, 1935, involved in the present case, and consequently, there is no justification for the grant of certificate for leave to appeal to the Federal Court. In my opinion, the case against the petitioner K. H. Bhattacharjee was proved to the hilt. I can find no error of law which would justify interference by this Court. In my opinion, the Rule obtained by the petitioner, K. H. Bhatta-charjee must be discharged.
7. (Rern. Case No. 755 of 1943.)--On behalf of petitioner 2, Amar Bhattacharjee alias Mantu, Mr. Mukherjee has contended that there is no corroboration whatever of Kunja Behary Ghose's evidence as to the complicity of petitioner 2. Mr. Mukherjee has argued that Kunja Behary was an accomplice and must, therefore, be corroborated before his evidence can be acted upon. It is true that there is really no corroboration of the evidence of Kunja Behary so far as petitioner 2, Amar is concerned. The learned Additional Chief Presidency Magistrate relied upon the statement of petitioner 1 when arrested as corroboration against Amar, but, in my opinion, he was wrong in doing so. The case-against petitioner 2 really rests on the uncorroborated testimony of Kunja Behary Ghose. It is true in a sense that the person who pays bribe is an accomplice of the person who receives the bribe; but the position is essentially different from that of, say, one dacoit deposing regarding the dacoity against his fellow dacoits. In the present case, Kunja Behary Ghose was not in danger of prosecution. He had nothing to gain by falsely implicating other accused persons. Though, technically an accomplice, he was essentially, as the learned Magistrate has pointed out, a victim.
8. There is no hard and fast Rule regarding the corroboration of an accomplice. The Legislature has left the Courts free to act on the uncorroborated testimony of an accomplice if the Courts believe that evidence. In the present case, I can find no indication that Kunja Behary Ghose could have any motive for falsely implicating petitioner 2, and I can find no reason whatever for distrusting his evidence in so far as it implicates petitioner 2. That his evidence is true in main details is proved by corroboration in other respects. In these circumstances, it seems tome that the Court was justified in acting oil the uncorroborated testimony of Kunja Behary Ghose and in convicting Amar Bhattacharjee alias Mantu. In this view the Rule obtained by petitioner 2 must be discharged. The result is that both the rules are discharged in toto. The petitioner must forthwith surrender to their bail and serve out the remainder of the sentences of rigorous imprisonment imposed upon them. Certificate for leave to appeal to the Federal Court under Section 205 (1), Government of India Act, 1935, is refused.
9. I agree.