A.P.SAHI, J. - (1.) IN these bail applications, the allegations are of criminal breach of trust and cheating, wherein the complainants allege to have extended payments to the accused in the hope of getting public employment. It may be pointed out that the accused are not Government servants so as to examine the case from the point of view of the Prevention of Corruption Act, 1988. The accused are alleged to be posing themselves capable of ensuring employment to the complainants in governmental organisations or public posts. The leading bail application No. 1865 of 2007 was taken up on 11th September, 2007 whereupon an order was passed to the following effect:- "Heard learned Counsel for the applicant and learned A.G.A. for the State. A perusal of the F.I.R. which has been lodged by Pradeep Kumar Yadav son of Kishan Yadav clearly states that on the offer made by the accused in the present case he was allured to tender a sum of Rs.90,000/- each per candidate for being employed in the Army. He also admits that several persons for the said purpose themselves tendered the said amount to the applicant's husband and the money was transacted through the applicant and his on. The aforesaid admission made in the F.I.R. clearly discloses that an attempt was made by the complainants themselves to obtain employment by fraudulent means. This admission itself amount to a case of criminal offence of having given a bribe. It is strange that after lodging of the F.I.R. no action was taken against the complainant by the investigating agency, inasmuch as they have themselves allegedly abetted the offence. The complainants did not make any attempt to trap the applicant through lawful means. They have rather consciously attempted to obtain employment by offering bribe voluntarily. Let a copy of this order be made available to the learned Government Advocate for forwarding it to the Senior Superintendent of Police, Lucknow, who shall immediately transmit it to the concerned Police Station for taking necessary action in the matter and an Affidavit be filed within 15 days before this Court. List on 28.9.2007."
(2.) SUBSEQUENTLY, the other four applications were also taken up and in bail application Nos. 5072 and 5074, a similar nature of complaint was made that a monetary transaction had taken place for extending benefits of public employment in the Railways. On the same footing are the allegations contained in bail application Nos. 821 of 2007 and 3742 of 2007 wherein employment is sought in the Secretariat of the Government of Uttar Pradesh at Lucknow. The essence of all the complaints is, therefore, failure to get gainful employment sought to be acquired on payment of money in public offices. During the course of arguments the said issue, as to whether the complainants themselves had abetted the offence by making the disclosure as contained in the F.I. Rs or not, that this Court had called upon the State to answer the querries raised vide the aforesaid order dated 11th September, 2007. The matter was listed on 17th September, 2007 when time was sought by the State to file a response. The time sought for by the State was again extended and the matter was directed to come up on 28.9.2007. On the said date, the learned Government Advocate Sri Mahendra Pratap Yadav made a request for a further adjournment and the following order was passed on 28.9.2007: "Sri Mahendra Pratap Yadav, learned Government Advocate has made a request that since the issue in- volved in this case as well as in the connected cases are of certain public importance and have wide ramifications, therefore, the matter be adjourned in order to enable the learned Counsels to address the Court extensively on this issue. On the joint request of learned Counsel for the parties, put up on 4th October, 2007." Two more adjournments were sought on 4th October, 2007 and finally on 9th October, 2007 whereafter the matter was heard on 11th October, 2007 with the assistance of Sri M.P. Yadav, learned Government Advocate, Sri P.P. Shukla, learned A.G.A. and Sri R.K. Dwivedi, learned A.G.A. whose assistance was commendable in supplying the relevant judgments on the issues raised by the Court. Learned Counsel for the applicants also advanced their submissions and urged that the applicants deserve to be granted bail as the offences are triable by a Magistrate and that they are entitled to be released as there was no reason to apprehend that the applicants would misuse their bail as per the provisions of the Criminal Procedure Code. The question raised by this Court in all the cases, as would be evident from the orders quoted herein above is to the effect that the investigating agency failed in its duty to investigate the allegations as per the version of the complainants themselves contained in the F.I.R., where they clearly disclose that they had offered money and had actually paid it to the accused for obtaining public employment in Government offices. The question that arises for consideration is as to whether such a disclosure in the F.I.R. indicates the involvement and commission of the offence by way of abetment keeping in view the fact that the complainants themselves informed the investigating agency about their own attempt to obtain employment by dubious methods. Abetment is defined in section 107 of the Indian Penal Code which is quoted herein below: "107. Abetment of a thing.-A person abets the doing of a thing, who- First-Instigates any person to do that thing; or Secondly.-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or ? Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.-Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
(3.) AN abettor under section 108 of the Indian Penal Code is defined as such: "108. Abettor.-A persons abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Explanation 1.-The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act. Explanation 2.-To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. Explanation 3.-It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge. Explanation 4.-The abetment of an offence being an offence, the abet- ment of such an abetment is also an offence. Explanation 5.-It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed." The punishment for abetment is provided in section 109 of the Indian Penal Code as under :- "109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.-Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation.-An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment." ;