In re: V.K. Dorairajan

M.N. Moorthy, J.—V.K. Dorairajan, the petitioner herein, faced a trial before the Chief Judicial Magistrate, Salem in C.C. No. 190 of

1976 for an offence under S. 165(A), I.P.C and he was convicted and sentenced to pay a fine of Rs. 500 in default to undergo rigorous

imprisonment for six months. An appeal against the conviction and sentence was preferred before the Sessions Judge, Salem, in C.A.79 of 1979.

The learned Sessions Judge dismissed the appeal, confirming the conviction and sentence imposed on the petitioner. The instant revision case is

filed by the petitioner challenging the correctness of the conviction and sentence, confirmed by the learned Sessions Judge.

The case of the prosecution briefly is as follows-P.W. 1 was the Deputy Superintendent of Police, Mettur, in 1976. On 8th December, 1976 at

about 9:30 p.m. the petitioner gained entry into the office-cum-residence of P.W. 1 by sending a chit through P.W. 3, the camp clerk who gave it

to P.W. 2 orderly who in turn gave it to P.W. I. On entering the room, the petitioner gave a petition Ex. P4, addressed to the Superintendent of

Police, with a copy to P.W. 1 requesting recommendation of the assignment of the Pocomoke land adjacent to the police station in lieu of his 12

cents of patta land encroached by the police station. It is the prosecution case that thereafter he placed a cover on the table. When P.W. 1

checked it he found ten 50 rupees currency notes. Immediately P.W. 1 called his camp clerk P.W. 3 and S.I., P.W. 4, who were there present.

They saw the cover taken by P.W. 1 with notes as aforesaid. Subsequently, a case was registered against the petitioner for an offence under S.

165(A), I.P.C.

The defence of the petitioner was one of denial. He stated that this case was foisted on him by P.W. 1, at the instance of one Selvaraj, the then

Superintendent of Police, Coimbatore, and one Rathnasabapathi, Deputy Superintendent of Police, Karaikal, who were the classmates of P.W. 1

and who were related to one Arumugham, who was inimically disposed towards the petitioner on account of land dispute.

The incident is said to have taken place at the office-cum-residence of P.W. 1. After gaining entry into the room, it is the evidence of P.W. 1

that the petitioner gave a petition and then placed a cover containing ten 50 rupees currency notes on the table P.W. 1 asked P.W. 3 and 4 to

come and they saw the cover. The fact that it happened in the residence cum office of F.W 1 enables natural witnesses like P.W. 2 orderly, P.W.

3 camp clerk, and P.W. 4, a Sub Inspector who came to see P.W. I to be present there. Both the courts below have accepted the evidence of

P.W. s 1 to 4. The Learned Counsel for the petitioner is also cot able to discredit their evidence. I accept, as the lower courts have done that on

8th December, 1976, at about 9:30 p.m. the petitioner offered a bribe of Rs. 500 to P.W. I for recommending assignment of the poromboke land

adjacent to the police station in lieu of 12 cents of his patta land occupied by the police station in and around it.

The Learned Counsel for the petitioner argued that previously a similar petition like that of Ex. P.1 was given to the D.S.P. P.W. I, by the

petitioner, requesting him to visit the place and allot the poromboke land to him. P.W. I on 30th November, 1976, inspected the poromboke lands

and found that it was not possible for allotment of any portion to the petitioner as per his endorsement in Ex. PI, as the land was just sufficient for

parade purposes. It was argued that there was no need for the petitioner to present the petition, Ex. Pl to P.W. I to give him money as he had

already taken a definite stand against him. But it has to be noted that the Superintendent of Police, to whom the petition was addressed, will not

dispose of the petition himself and he would definitely or in all probability send it to P.W. I for his views. In such a case, P.W. I would be in a

position to review the matter and recommend the case of the petitioner. This seems to be the reason why the petitioner attempted to. bribe P.W. 1.

The petitioner filed a written statement under S. 243, Crl. P.C. According to him there was longstanding enmity between him and one

Arumugham regarding trespass into the land. The said Arumugham has married the sister of one Subramaniam whose daughter has been married to

the Superintendent of Police, Coimbatore, by name Selvaraj. The said Subramaniam''s son Rathnasabapathi is a Deputy Superintendent of Police,

of Karaikkal. They are interfering in the matter of Arumugham through P.W. I, who was their classmate and a good friend. According to the

petitioner, on 8th December, 1976, P.W. I sent for him through the S.I. of Police. Karumalaikudal Police station, and when he went there, P.W. I

arrested him and foisted this case at the instance of the said Selvaraj and Rathnasabapathi, Police Officers.

In support of his averments, the petitioner examined D.Ws. 1 to 3. The court below have assessed the evidence of the defence witnesses and

correctly came to the conclusion that they are not worthy of credence and found that this case was not foisted on the petitioner as stated by him.

The Learned Counsel for the petitioner argued that the petitioner cannot be found guilty of the offence under S. 165-A, I.P.C. unless it is found

on the facts that P.W. I accepted the bribe in which case P.W. '' would be liable either under S. 161 or 165, I.P.C. S. 161, I.P.C. deals with

taking a gratification other than legal remuneration in respect of an official act, etc. S. 165 deals with Public servants obtaining any valuable thing

without consideration from a person concerned in any proceeding or business transacted by such public servant. It is argued that P.W. I has

nothing to do with the assignment of the land which was to be decided by the Revenue department. Even if the amount attempted to be paid to

P.W. I is true, it would not amount to giving a bribe as he cannot be found guilty either under S. 161 or 165, I.P.C. He is handicapped in obliging

the petitioner as the matter pertains to some other department.

The Learned Counsel cited before me a number of decisions in support of his contention. The following cases deal with S. 161, I.P.C-

State of Ajmer v. Shivji Lal 1959 2 S.C.R. 739

Dalpat Singh & Another v. State of Rajasthan 1968 3 S.C.R. 139

B.D. Gupta v. Tripura 1979 1 S.C.R. 306

Bhanuprasad v. Gujarat 1969 1 S.C.R. 22

Bishambar Prasad v. Rex A.I.R 1952 A11. 312

R. Venkatesan v. Dy. Superintendent of Police, Coimbatore 1979 L.W. Crl. l71

The learned Public Prosecutor placed before me the following decisions regarding the scope of S. 161, I.P.C.

1 Chaturdas Bhagwandas Patel Vs. The State of Gujarat,

Mahesh Prasad Vs. The State of Uttar Pradesh,

S. 165A, I.P.C. was inserted by the Criminal Law Amendment Act, Act XLVI of 1952. A person offering bribe can be prosecuted under this

section as it is a distinct offence. The section provides for the punishment for the abetment of an offence punishable under S. 161 or 165, I.P.C,

whether or not that offence is committed in consequence of the abetment. The prosecution should prove the abetment of an offence under S. 161

or 165, I.P.C. The legislature has clearly and expressly made provisions for punishment for abetment of offences under Ss. 161, and 165 I.P.C.

The petitioner has been found guilty for abetment of the offence under S. 165, I.P.C. Hence it is not necessary for me to deal with the

contentions raised regarding the abetment of (sic) I.P.C.

Under S. 163, I.P.C, it is an offence for a public servant to accept or obtain any valuable thing from any person whom he knows to have been

or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant or having any connection

with the official functions of himself or of any public servant to whom he is subordinate.

In the instant case, P.W. I has made an inspection and sent an advance report against the interests of the petitioner. The matter pending before

the Superintendent of Police, a superior officer of P.W. I, is likely to be referred to P.W. I for his view and, in such a case, undoubtedly P.W. I

would be in a position to review the matter and recommend the case of the petitioner. If, in such circumstances, P.W. I had accepted the

gratification, that would certainly amount to an offence under S. 165 , I.P.C. It is not necessary to offer the bribe to the public servant who is in a

position to do that official act required by the bribe giver. If any public servant is offered a bribe for acting in favour of the bribe giver, the offence

is made out under S. 165-A. All that is required is to show that the bribe giver wanted the particular public servant to show him a favour. It is the

mens rea of the bribe giver that has to be taken into consideration and not whether the particular public servant was in fact in a position to do a

favour to him. Thus, in the instant case, the charge framed against the petitioner has been proved by the prosecution.

For the foregoing reasons, I hold that the conviction of the petitioner for an offence under S. 165(A), I.P.C. by the courts below is correct.

The sentence to pay a fine of Rs. 500 in default to undergo six months rigorous imprisonment cannot be said to be excessive. In the result, the

conviction and sentence imposed on the petitioner are confirmed. The criminal revision fails and is dismissed.