- (1.) THIS is an appeal by Bhim Singh accused who has been convicted by the learned Special Judge (Session Judge) Bharatpur under sec. 165 A of the Indian Penal Code and sentenced to three months' rigorous imprisonment and a fine of Rs. 30/ -.
(2.) THE circumstances under which the prosecution was started against the appellant are said to be the appellant presented an application, Ex P. 1, before the Sub Tehsildar Kumher for help of the police in preventing the intervention of one Chitar in the cultivation of a certain field in village Pechmoor Subtehsil Kumher, District Bharatpur which according to the appellant had been in his cultivatory possession for sometime past. This application was presented in the Sub Tehsil Kumher on the 13th of August, 1953, and it was forwarded to the Sub Divisional Officer, Bharatpur with a recommendation that the appellant be granted relief prayed for by him. THE application came up before Mr. P. S. Saxena, Sub Divisional Officer and Sub Divisional Magistrate, Bharatpur (hereinafter to be referred to us the Sub Divisional Magistrate) on the 14th of August, 1954, and he, finding no reason to take the action prayed for, consigned it to the record room and directed the appellant to seek his remedy in proper court- THE appellant was present at the time the order was made and after hearing the order, requested the Magistrate to take something from him and make an order in his favour and while1 so saying he put his hand into his pocket and brought out a money bag, THE Sub Divisional Magistrate brought this matter to the notice of the Superintendent of Police by this report Ex. P. 2 dated the 14th of August, 1953. THE Superintendent of Police Bharatpur forwarded the report to the Station Officer, Kotwali Bharatpur who secured a warrant for arrest of the appellant under sec. 3 of the Prevention of Corruption Act, 1947 and arrested the appellant. After necessary investigation the case was challaned under sec. 165 A of the Indian Penal Code in the court of the Special Judge (Sessions Judge ). Bharatpur. The prosecution examined four witnesses namely P. W. l Bhiki an orderly of the Sub Divisional Magistrate's court. P. W. 2 Shri P. S. Saxena Sub Divisional Magistrate, Bharatpur P. W. 3 Shri Bhagtram S. H. O. , Kotwali Bharatpur and P. W. 4 Shri Madan Mohan, reader of the Sub Divisional Magistrate's court. Of these P. W. 3 Shri Bhagatram was a formula witness and the remaining three produced were the eye witnesses of the occurrence. The appellant denied the charge. He admitted that he had made an application Ex. P. 1 in Sub Tehsil Kumer on which orders were passed by Sub Divisional Magistrate, but denied having offered any bribe to him. No defence was however, produced by the appellant. The learned Special Judge was satisfied from the prosecution evidence that an offence under sec. 195-A had been made out against the appellant Bhimsingh and convicted and sentenced him as mentioned above. In this appeal it has been argued by Mr. M. M. Tiwari on behalf of the appellant that in the first instance the prosecution evidence was discrepant and it was not proved that the appellant made any attempt to bribe the Sub Divisional Magistrate. Further, it was argued that the Sub-Divisional Magistrate had no power to order the police to assist the appellant in ploughing the field in question, and therefore, it cannot be said that the accused offered any bribe to the Sub Divisional Magistrate for the discharge of the latter's official functions. It was also argued that in any case the Magistrate had passed the order and, thereafter he became functus officio and consequently even if the appellant offered anything it could not be said to be illegal gratification within the meaning of sec. 16 of the Indian Penal Code Finally, it was argued that at any rate the appellant is an illiterate rustic and did not know the implication of offering any inducement to a Government servant as is apparent from his action and therefore, the sentence awarded to him is severe On behalf of the State it has been argued by Mr. R. A. Gupta that it was fully established by the prosecution evidence that the appellant in order to obtain a favourable order from the Sub Divisional Magistrate attempted to bribe him and that he failed in his attempt simply because the Sub-Divisional Magistrate refused to accept an illegal gratification. Further; it was argued that the Sub-Divisional Magistrate was a revenue officer as well as a Magistrate and therefore, he had full powers to take any action on the application of the appellant. In any case, it was argued that whether the Magistrate had power or not. the appellant thought that the Sub-Divisional Magistrate was fully empowered to grant an appropriate relief in the matter and therefore, if he attempted to bribe the Magistrate for obtaining a favourable order, the fully came within the clutches of sec. 165-A of the Indian Penal Code. It was argued that it was not correct that the Magistrate became functus officio after passing the order dated the 14th of August, 1953, as he had full powers to review his order, but even if he had none that would not detract from the crime of the appellant. In support of their legal contentions both the learned counsel cited a number of rulings. Learned counsel for the appellant relied upon the rulings in the case of Shamsul Huq vs. King Emperor (1), Venkatarama Naidu vs. Emperor (2) and Qazi Rahimullah vs. Emperor (3 ). On behalf of the State reliance was placed upon the rulings in the case of Emperor vs. Amruddin Salebhey Tyabjee (4), Rameshwar Singh vs. King Emperor (5), Vanu Ramchandriah in re (6), Emperor vs. Phul Singh (7), Ram Sewak vs. Emperor (8) Indur Dayaldas Advani vs. The State of Bombay (9 ). The State vs. Sadhu Charan Panigrahi (10) and Mahadev Dhannappa Gunaki vs. The State of Bombay (11 ). So far as the facts are concerned, it cannot be said that the learned Judge of the lower court was unjustified in holding that the appellant offered to pay to the Sub-Divsional Magistrate some money for obtaining a favourable order. The evidence of the Sub-Divisional Magistrate, P. W. 2, as well as Bhiki P. W. 1, his peon and Madan Mohan P. W. 4, his reader is quite clear. All these witnesses have stated that the application of the appellant came up for consideration before the Sub-Divisional Magistrate and that the Magistrate made an order dismissing the application. They have also clearly stated that on this the appellant put his hand into his pocket and asked the Sub-Divisional Magistrate to take something and make an order in his favour. The only discrepancy which is pointed out is that while the Sub-Divisional Magistrate had stated that the appellant had taken out his money bag from his pocket, the other witnesses have said that he only put his hand into his pocket and the money bag was not actually taken out of it. This, however, is not a material discrepancy and it may be that the observation of the Sub-Divisional Magistrate or that of the two witnesses was a little faulty in this matter. The fact however, remains 'that in order to obtain a favourable order from the Sub-Divisional Magistrate, the appellant requested the Sub-Divisional Magistrate to accept some illegal gratification and with a view to offer him something put his hand into his pocket in order to take his money bag. It was subsequently found on search that the appellant had a money bag in his pocket and it contained a sum of Rs. 30/12/ -. It cannot, therefore, be said that the offer of the appellant was an empty offer. The question remains whether on the facts proved an offence under sec. 165a is made out against the appellant In the case of Shamsul Huq vs. Emperor (1), it was held that - "where it was not within the powers of the public servant to show any favour to the person offering the bribe, the latter should not be convicted under sec. 161 and 109. " In that case, the case, against the accused was dismissed and latter on he was said to have offered Re. 1 to the sergeant as a bribe to withdraw the charge which the sergeant had brought against him. It was held that it was not within the powers of the sergeant to show any favour to the petitioner who had already been discharged by the Magistrate and no money could have been paid to him as a motive or reward for doing anything for the accused. In the case of Venkatarama Naidu vs. Emperor (2), it was held that - "if a man, in the vain hope of getting a public officer to reconsider a question, as to which that public officer is functus officio offers a bribe he commits no offence whatever. " In that case, the accused was anxious to become a police man and by orders of the District Superintendent of Police he presented himself before the Reserve Inspector who found that he was below the minimum height accepted for the police and rejected his application. On this the accused tendered a five rupee note to the officer in the hope that the officer would reconsider his decision and make a report to the District Superintendent of Police to that effect. The officer had the man charged. But it was held that the officer having become functus officio could not show any favour to the accused and. therefore, the accused could not be guilty of abetment of an offence under sec. 161. In the case of Qazi Rahimullah vs. Emperor, (3', it was held that - "no offence under sec. 161 is committed where the public servant to whom the bribe is offered is at the time when the officer is made functus officio as to the matter in respect of which the bribe is offered. " Reliance was placed in this last mentioned case on Calcutta and Madras cases referred to above. There in the accused was charged for offering unlawful gratification to the Inspector with a view that he should show undue favour to a friend of the accused against whom a case under sec. 381 of the Indian Penal Code was in process of investigation. Before the offer was made, the order had already been made in favour of the friend of the accused and the case had, been dropped. Under these circumstance it was held that the Inspector had no power to show any favour to the accused at the time the offer was made. Coming to the rulings relied upon by the learned counsel for the State in the case of Ram Sewak vs. Emperor (8), referred to above, the accused had obtained a ration card on the basis of an inquiry form for himself and for other members of his family, It was found by an Inquiry Inspector of the Supply Department that the accused was drawing a ration in excess of that to which he was entitled to and therefore he made a report to the Senior Inspector in the same department. The Senior Inspector made a report against the accused to the Town Rationing Officer on the 15th of August, 1945 and on the same date after the report had been made, the accused attempted to bribe the Senior Inspector. Reliance was placed by the accused on the rulings of Calcutta and Madras High Courts mentioned above, but Mulla J. , did not find himself in agreement with these rulings and held that even though the Senior Inspector had already made a report before the bribe was offered, the accused was guilty of abetment of an offence under sec. 161 of the Indian Penal Code. In the case of the The State vs. Sadhu Charan Panigrahi (10) referred to above, it was held that - "the fact that the public servant is functus officio when money is offered to him as a bribe would not by itself and as a matter of law, be sufficient to negative the offence under sec. 161. " It was further observed that - "the gist of the offence clearly is not that there was at the time an official act to be procured capable of being performed by the taker of the bribe or by another public servant with whom he is intended to exercise his influence, but that the extra legal gratification is obtained as a motive or reward for doing official acts, that is for doing what may be or is believed or held out to be official conduct. The strees in the section is not so much on the performance of the official act itself, or on its being capable of performance but on the nature of the act as be in official. This is meant to exclude from its purview acts which were totally unconnected with any official conduct and which may be attributable purely to the private capacity of the bribe taker or of the other public servant. The emphasis is on the gratification offered being a motive or reward for official conduct (inclusive of that which is believed or held out to be so ). Further the connection between the money and the act sought to be procuring such act must be clearly established either by direct or circumstantial evidence. Illustration C to sec. 161 clearly shows that the inducing of the belief by the taker of the bribe would be quite enough to bring the case within the purview of sec. 161 so long as the achievement contemplated is an act of official character if the bribe is a motive or reward for the same. Similarly, the belief in the give of the bribe would be enough to bring the case under sec. 161/116. " In that case of course the accused was acquitted but it was because it was held that it was not established that the accused offered money for any favourable orders by the Registrar in his official capacity. The cases discussed above were considered by their Lordships of the Supreme Court in the case of Mahadev Dhanappa Gunki vs. The State of Bombay, (11) With reference to the cases of Shamsul Huq vs. Emperor, (1) and Venkataram Naidu vs. Emperor, (2) referred to above, their Lordships observed that the question of law was not fully discussed and the reasons in support of the conclusion arrived at were not clear or convincing. With reference to the cases of Ram Sewak vs. Emperor (8) and State vs. Sadhucharan Panigrahi, (10) referred to above and other cases where a similar view was taken, their Lordships observed that the point of law appears to have been more fully discussed in these and the reasonings set out therein appeared to their Lordships as at that time advised to be more convincing than those set out in Calcutta and Madras cases referred to above. Their Lordships however, did not consider it necessary to express any definite opinion whether the fact that the officer to whom the bribe was offered had become functus officio took the act of the accused out of the ambit of sec. 165 A, because in that case it was held that the officer in question had not became functus officio. Their observations all the same are entitled to great weight. I have read all the above cases carefully and to my mind, the reasons given by Mulla J. in the case of Ramsewak vs. Emperor, (8) and Jagannadhadas and Pani-grahi, JJ. in the case of State vs. Sadhucharan Panigrahi (lo) referred to above on behalf of the prosecution are much more convincing that the reasons given in the cause cited on behalf of the appellant. Illustration C to sec. 161 reads as follows: - "a, a public servant, induces Z erroneously to believe that A's influence with the Government has obtained a title for Z to give A money as a reward for this service. A has committed the offence defined in this section. " This illustration as observed by Jagannadhadas and Panigrahi JJ, shows that the inducing of the belief by the taker of the bribe would be quite enough to bring the accused with the purview of sec. 161 so long as the achievement contemplated is an act of official character if the bribe is a motive or reward for the same. Similarly, the belief in the given of the bribe would be enough to bring the case under sec. 161/116. If the view taken by the Madras and Calcutta High Courts and Peshawar Judicial Commissioner's court taken in the rulings relied on by the learned counsel for the appellant be taken to be correct, then, as observed by Mulla J. in the case of Ram Sewak vs. Emperor, (8) a public officer can accept with impunity illegal gratification after an act had been done in favour of a particular person. I am therefore, not agreeable with the view that if a public servant accepts or is offered bribe after he has passed a particular order, no offence of accepting illegal gratification or offering illegal gratification is established. It is however, necessary that it should be proved that the offer was made to the public servant for the purpose of getting an official act done by him. Coming to the next argument of the learned counsel for he appellant that the mere fact of the appellant asking the sub-Divisional Magistrate to take something from him and make an order in his favour was not sufficient to constitute an offence of attempt to pay bribe to the -Sub-Divisional Magistrate. I hold that it was not necessary that the appellant should have placed the cash which he wanted to pay to the Sub-Divisional Magistrate before the latter. It was enough that the appellant had money in his pocket and after requesting the Sub-Divisional Magistrate to take something from him for making a favourable order, he put his hand in his pocket to take out his money bag which was not empty and contained a sum of Rs. 30/12/ -. In the case of Ramesh-war Singh vs. King Emperor, (5) quoted above, it was held. A mere offer to pay an illegal gratification to a public servant, although no money or other consideration is actually produced, amounts to an attempt to bribe. " In that case the accused asked the complainant whether he had in his possession the police diaries which referred to what was known as the Shahkund murder case which was then before long to be tried, and on the complainant stating that these diaries were in his possession, the accused stated that if it was possible for the complainant to supply him with copies of these diaries he was willing to pay a bribe of Rs. 3000/- for copies of these papers. No money was actually produced before the Sub-Inspector but it was held that the offer in the circumstances of the case was quite sufficient to make out a case of abetment of an offence under sec. 161 against the accused. In the case of Vanu Ramchandriah, in re, (5) decided by the Madras High Court quoted above, it was held that "to constitute an offence under sec. 161, a firm offer to pay money being sufficient, it is not necessary that the illegal gratification should actually have been produced nor is it essential that the person to whom the firm offer was made should have accepted it. " In that case the accused informed the manager of the Municipal Office that if he used his influence with the Chairman and Councillors to secure the contract for a particular person he would get Rs. 300/- from that person or if not from him, then from himself. It was held that the fact that the money was not actually produced, did not take out the case from the ambit of abetment of an offence under sec. 161.
(3.) TAKING up another argument of the learned counsel for the appellant that it was not within the power of the Sub-Divisional Magistrate to order the police to assist the appellant as requested by him, in the first instance, it cannot be said that the Magistrate had no power to order the police to assist the appellant. He could have taken action under sec. 145 of the Criminal Procedure Code or sec. 107 of the Criminal Procedure Code and could have ordered the police to attach the property to safeguard the appellant before the decision of the case. Simply because the Sub Divisional Magistrate considered that the application was not made under any particular provision of law and made an order that the application be filed, does not show that he could not have taken any action favourably to the appellant if he had not been simply led away by the omission to state any provision of law in the application under which action was required. Even supposing however, that the Sub-Divisional Magistrate had no power to assist the appellant, the question is not what the Sub-Divisional Magistrate could have done but the question is what the appellant wanted him to do. The appellant certainly wanted that the Sub-Divisional Magistrate in his official capacity should assist him and for that he made an offer to pay him some cash. It was held in the case of Emperor vs. Phool Singh, (7) cited above that sec. 161 does not require that the public servant must in fact be in a position to do the official act, favour or service at the time. It was held that - "illustration (c) to the section shows that even if a person offers gratification to a public servant by way of reward for services which in fact were never rendered by him, he would still be guilty of the offence under sec. 161. The heinousness of the act obviously lies in the intention of the bribe-giver to corrupt the public servant and the act does not become any the less heinous merely because the public servant does not happen to possess the necessary power to do the required favour or service. " In the case of Indur Dayaldas Advani vs. The State of Bombay (9) also quoted above it was held that - "sec. 161 does not require that the public servant must himself have the power or must himself be in a position to per-from the act or show favour or disfavour, for doing or showing which the bribes has been paid to him. From the last explanation to the section it is clear that it is not necessary, in order to constitute an offence under sec. l6l,that the act for doing which the bribe is given should actually be performed. It is sufficient if a representation is made that it has been or that it will be performed and a public servant, who obtains a bribe by making such representation, will be guilty of the offence punishable under this section, even if he had or has no intention to perform and has not performed or does not actually perform that act. A representation by a person that he has done or that he will do an act impliedly includes a representation that it was or is within his power to do that act. " It is quite clear in this case that the Sub-Divisional Magistrate was a public servant. It is also quite clear that the appellant moved the public authorities to assist him in the cultivation of his field. He, therefore, moved the authorities with the clear intention that he should obtain an order from them in his favour. While requesting the Magistrate to accept something from him he put his hand in his pocket to take out his money bag, thus he clearly attempted to give illegal gratification to the Sub-Divisional Magistrate The fact that the Magistrate had already passed an order against him is not material as has been shown above. In the first instance the order passed by the Magistrate was not such an order which he could not re-consider or could not review, but even if he could not, the appellant made an offer under the impression that the Magistrate could still pass an order in his favour. The offer made by him was quite firm because he not only asked the Magistrate to accept something from him, but put his hand in his pocket and tried to take out the money bag. It may be that by the action of the Magistrate he was prevented from placing any cash actually before the Magistrate, but it does not affect the matter. The appellant was clearly guilty of an offence under sec. 165a of the Indian Penal Code. The only question remains whether the sentence should be reduced. To ray mind the appellant in his rustic simplicity did not know the full consequences and implications of his act. This is clear from the fact that he asked the Magistrate to accept something publicly in open court. It would, therefore, not be proper to treat him in the matter of punishment in the same way as is necessary in the case of those bribe givers who deliberately want to corrupt public officials in order to gain their ends. The appellant has been in jail for sometime after his conviction and I therefore, consider it proper to reduce the term of his imprisonment to that already undergone. At the same time, I consider it proper to increase the amount of fine to Rs. 100/- The appeal is partly allowed, the conviction is maintained, but the sentence of imprisonment is reduced to that already under gone. Instead, the fine of Rs. 30/- is increased to a fine of Rs 100/ -. The appellant is on bail and need not surrender to it under the circumstances of the case. He is given one month's time to pay the fine or the balance of fine, if he has already paid the fine imposed upon him by lower courts. In default of payment of fine within the period allowed, he shall undergo two months rigorous imprisonment. . ;