P. D. KUDAL, J. - (1.) THIS revision petition is directed against the judgment of the learned Sessions Judge, Jhunjhunu dated 5th February, 1974, whereby the accused-petitioner was convicted for the offence under Sec. 162, IPC and sentenced to three months' rigorous imprisonment and a fine of Rs. 500/-, and in default of payment of fine to a further rigorous imprisonment for one and a half month.
(2.) THE brief facts giving rise to this revision petition are that the accused-petitioner Shishupal Singh is a practising advocate. A case under Sec. 3/7 of the Essential Commodities Act was instituted against 22 persons in the Court of SDM, Jhunjhunu. THE learned SDM acquitted four persons, but convicted 18 persons to one month's rigorous imprisonment and a fine of Rs. 500/- each, except accused-appellant Mahipal who was fined only Rs 500/- on 25th October, 1967. THEse 18 accused-persons feeling aggrieved against the judgment of the learned SDM wanted to go in appeal before the learned Sessions Judge. THE accused-petitioner Shishupal Singh was engaged by these 18 persons to file an appeal before the learned Sessions Judge, Jhunjhunu. It is contended that Shishupal Singh received Rs. 2,000/- from the accused persons on the plea that he will spend Rs. 200/- for engaging a senior counsel Shri Girdhar Gopal Bhargava and that he would pay Rs. 100/- per case to the Sessions Judge to ensure that the accused-appellants are acquitted. Out of these 18 accused-appellants four accused engaged Shri Maheshwar Prasad Advocate to conduct their appeals before the learned Sessions Judge. It is alleged that the money was paid to the accused-petitioner by the accused persons during the pendency of the appeal before the learned Sessions Judge, Jhunjhunu. On 12th March, 1968, the appeal was accepted by the learned Sessions Judge, and the case was remanded for a fresh trial by the learned SDM. On 19th July, 1968, the learned SDM decided the case again and convicted the accused persons till the rising of the Court and also fined them Rs. 100/- each. On 24th July, 1968, Shri B. D. Saxena, Advocate, moved an application on behalf of Pitram PW/1 and Ramnath PW/2, alleging that the accused-petitioner Shishupal Singh has received the money in the manner aforesaid. This application was forwarded by the learned Sessions Judge to the Superintendent of Police, Jhunjhunu for investigation. The prosecuting agency after 'investigation submitted a challan against the accused-petitioner under Sec. 162 and 420, IPC. The accused-petitioner was convicted by the learned Munsif & Judicial Magistrate, Jhunjhunu on 28th March, 1972 and sentenced to six month's rigorous imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine to further rigorous imprisonment for four months under Sec. 420, IPC; and three months' rigorous imprisonment and a fine of Rs. 500/-and in default of payment of fine to one and a half month's rigorous imprisonment under Sec. 162, IPC. The accused-petitioner filed an appeal before the learned Sessions Judge, Jhunjhunu against his conviction. During the pendency of the appeal a compromise-deed was filed on behalf of the 18 accused persons with regard to the offence under Sec. 420, IPC. The compromise-deed was duly verified and the learned Sessions Judge granted permission for compounding the offence under Sec. 420, IPC. In view of this compromise the learned Sessions Judge acquitted the accused of the offence under Sec. 420, IPC, but maintained the conviction under Sec. 162, IPC. It is against this judgment of the learned Sessions Judge that the present revision petition has been filed. On behalf of the accused-petitioner, it has been contended that the facts alleged by the prosecution do not constitute an offence under Sec. 162, IPC. It was further contended that if out of the same facts two offences, viz, one under Sec. 420, IPC and the other under Sec. 162, IPC is made out, then the accused should have been convicted only for one offence and that he has the option to choose under which section he deserves to be condemned. It was also contended, that if on the identical facts, charges may be framed under two sections and that the accused-petitioner had been acquitted of one offence as a result of compromise duly permitted by the Court, then the conviction under the other charge could not be sustained because these two offences had arisen out of the same set of facts. It was also contended that the learned Sessions Judge has seriously erred in law in ignoring the fact that the prosecution witnesses Desh Ram, Shankar and Mukh Ram had become hostile, and did not support the prosecution case. It was also contended that Harnand, Harlal, Malu, Rameshwar and Mahipal were not examined by the prosecution, though, they were party to the contribution of the amount. It was also contended that PW/7 Sanwal, PW/8 Bhagwana and PW/13 Bhoola have not supported the story regarding the payment of Rs. 1,800/-to the accused-petitioner for being transmitted to the learned Sessions Judge, Jhunjhunu. PW/15 Shri Kanhaiyalal Advocate has not supported the prosecution story and was declared hostile by the learned Sessions Judge. It was also contended that, though, the decision on the appeal was announced by the learned Sessions Judge on 12th March, 1 968 yet the application was moved by Shri B. D. Saxena only on 24th July, 1968. Such a long delay in moving the application throws a great doubt on the prosecution version, it was contended. Mr. Khan, learned Public Prosecutor appearing on behalf of the State has opposed the revision petition, and has contended that there are no sufficient grounds for interference on the revisional side. Respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. As a result of the compromise between the accused-petitioner and the 18 accused persons who were convicted, the learned Sessions Judge acquitted the accused for the offence under Section 420, IPC. From the same set of facts on which a charge under Section 420, IPC was made out, a charge under Section 162, IPC was also framed. The gist of the offence under Section 162, IPC consists in receiving a gratification in order to influence a public servant "by corrupt or illegal means". Ordinarily, such will be the case where the public servant concerned employs intermediary as his tout or bribe-agent. But where he is no more than a conduit-pipe between the giver and the receiver of the bribe, conveying what he receives, retaining nothing for himself, the section is inapplicable, for then he receives nothing for inducing "by corrupt or illegal means", the public servant, which is the gist of the crime. A person is said to "corrupt" another, when the former draws the latter aside from the path of rectitude and duty by a bribe. The employment of "corrupt" means implies the payment or promise of a bribe. In such a case the public servant would almost invariably be an abettor of this offence. For one is not likely to receive a bribe to share it with another unless the latter is privy to it. In any other case, the receiver may be guilty of cheating, but he could scarcely be convicted under this section. Of course, a person may bona fide believe that he may be able to induce a public servant by "corrupt" means without having previously consulted him. His attempt to corrupt him may fail, and still he may be guilty ;of an offence under this section. In such a case the accused has the option of choosing his own section for his condemnation. The learned counsel for the petitioner has placed reliance on R. Chinnaswami Iyengar vs. Emperor (1), wherein it was held as under: - "where it was simply found that a certain sum was handed to the accused to be delivered by him as bribe to the Subordinate Magistrate. It was sufficient to support a conviction under Section 162 without a finding that the money was accepted or obtained by the accused as a motive or reward for tampering with the Subordinate Magistrate. " Reliance was placed on Emperor vs. John Mclver (2), wherein it was held as under; - "that S. 235 (1), Criminal P. C, had no application when an offence is based upon the identical facts on which another offence had been charged, that the facts of the cheating offence of which the accused was previously acquitted by reason of compounding, were identical with the facts on which he was put upon trial for the offence of Criminal breach of trust, and that the acquittal of the offence of cheating furnished a valid plea of autra-fois acquit in bar of the accused being again tried for the offence of criminal breach of trust, (2) That there was no "entrustment" in law within the meaning of Section 405, IPC, when property was obtained by cheating. '
(3.) RELIANCE was also placed on Bhagat Ram vs. State of Rajasthan (3), wherein it was held as under: - "the order of the Division Bench unless set aside in appeal to this Court was binding and conclusive in all subsequent proceedings between the parties The principle of res judicata is also applicable to criminal proceedings and it is not permissible in the subsequent stage of the same proceedinss or in some other subsequent proceedings to convict a person for an offence in respect of which an order for his acquittal has already been recorded. The plea of autra fois acquit as a bar to prosecution embodied in section 403 of the Code of Criminal Procedure is based upon the above wholesome Principle. " The ratio decidendi of the adove rulings is that if the two charges under two different sections of the Indian Penal Code are framed on the same set of facts and if as a result of compromise, the accused stands acquitted, then it would not be in the interests of justice to prosecute him for the other offence and to sustain his conviction. The principles underlying the doctrine of res judicata apply with equal force to the criminal proceedings also. The gravamen of the offence in the present set of circumstances was under Sec. 420, IPC, for which the accused-petitioner stands acquitted by the learned Sessions Judge as a result of the compromise entered into the parties. The prosecution has not succeeded in bringing the guilt home to the accused-petitioner. No reasons have been assigned as to why no complaint was filed for a period of about four months and no independent witnesses except Shri Kanhaiya Lal, Advocate, have been examined. Shri Kanhaiyalal Advocate has not supported the prosecution case The persons who advanced the money to the accused-petitioner were also accomplices in the so-called offence and their evidence has to be considered with a great cautious. The learned Sessions Judge, for whom the money was being accepted by the accused-petitioner, was not in the picture. The offence squarely falls under Section 420, IPC only for which the accused-petitioner stands acquitted as a result of the compromise arrived at between the parties, with the permission of the learned Sessions Judge. For the reasons stated above, it is exceedingly difficult to hold that the prosecution has succeeded in bringing the guilt home to the accused-petitioner under Section 162, IPC. The accused-petitioner is, therefore, entitled to the benefit of doubt. In the result, the revision petition is hereby allowed. The conviction and the sentence of the accused-petitioner under Sec. 162, IPC is hereby set aside The bail bonds of the accused-petitioner are hereby discharged. . ;