The State vs Damodar Krishna Kamli

Gajenragadkar, J.—This is an appeal against the order passed by the learned Special Judge, Thana, convicting the appellant of an offence u/s 165-A of the Indian Penal Code and sentencing him to rigorous imprisonment for one day and to pay a fine of 11s. 100, in default rigorous imprisonment for one month.

The charge against the appellant was that on or about July 30, 1952, at Thana he abetted "Mr. Deshmukh, Deputy Chitnis, of Thana, who was a public servant, in the commission of an offence punishable u/s 161 of the Indian Penal Code inasmuch as he offered Rs. 20 to the said Mr. Deshmukh as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function favour or disfavour to him or for rendering or attempting to render any service or disservice to him with the Collector and thereby he committed an offence punishable u/s 165-A of the Indian Penal Code.

The prosecution case is very simple. On July 30, 1952, the appellant, who is a Round Forester, Manor, accompanied one Mohanji Kuverji to the office of the Deputy Chitnis at about 12 or 12-30 p.m. Mohanji had possessed a gun but his gun licence had been cancelled. Against this order of cancellation Mohanji had appealed to the Government and his appeal was pending disposal. As a result of the cancellation of his licence, Mohanji had kept his gun in the stores at the Collector''s office. Mohanji, however, wanted to sell his gun and for that purpose he had gone to the Dy. Chitnis on July 80 with an application for sanction to sell his gun. The accused was the intending purchaser of this gun. That is why he accompanied Mohanji when Mohanji presented an application to the Dy. Chitnis. The application made by Mohanji was in fact endorsed by the accused with the remark that he was willing to purchase the gun. When the accused and Mohanji approached Mr. Deshmukh they were told that it would take a couple of days to obtain the Collector''s sanction authorising Mohanji to sell his gun. The application was accordingly left by Mohanji with Mr. Deshmukh and Mohanji. and the accused left the office of Mr. Deshmukh. Mohanji had told Mr. Deshmukh that in case his appeal to the Government against the order cancelling his licence succeeded he might purchase a new gun. After Mohanji and the accused left-Mr. Deshmukh, the accused returned alone to Mr. Deshmukh''s office and he told Mr. Deshmukh that if Mr. Deshmukh could manage to get the order authorising Mohanji to sell the gun by the evening of that day he would pay Mr. Deshmukh Rs. 20 for the purpose. Mr. Deshmukh was annoyed at this offer and he immediately took the accused to the office of the District Magistrate. The District Magistrate, however, had left for his lunch and the accused could not therefore be produced before him. Mr. Deshmukh wanted to take the accused to the Personal Assistant to the Collector, but the accused refused to go with him and left the office. When the District Magistrate returned from his lunch Mr. Deshmukh submitted to him a note and thereupon the statement of Mr. Deshmukh was recorded. The statements of other clerks who were present in the office of Mr. Deshmukh were likewise recorded. Mr. Deshmukh''s statement was treated as the first information and investigation was commenced in respect of the offence alleged by Mr. Deshmukh, As a result of the investigation the accused was arrested and he was charge-sheeted u/s 165-A of the Indian Penal Code.

The accused denied this charge. It was urged on his behalf before the learned Special Judge that he had not accompanied Mohanji to the office of Mr. Deshmukh and that the whole of the story set out by the prosecution against him is false. In the alternative it was contended that, even if the facts deposed to by the prosecution witnesses were held proved, in law, no offence u/s 165-A can be said to have been established. The learned Judge has rejected both these contentions and has convicted the accused of the offence u/s 165-A of the Indian Penal Code.

Mr. Malkani for the appellant has urged before us that in dealing with the prosecution evidence against the appellant we ought to bear in mind the fact that the appellant himself is a public servant and that the consequence of his conviction would necessarily be that he would lose his service. Mr. Malkani has therefore appealed to us to consider the evidence very carefully before we accept the finding of the learned Judge that the accused did tell Mr. Deshmukh that he would pay Rs. 20 if Mohanji''s application was allowed the same evening. According to Mr. Malkani the appellant had really not gone to Mr. Deshmukh''s office at all that day. The evidence on which the prosecution relied in support of their charge against the appellant was given by Mr. Deshmukh himself and by his clerk Shankar, In dealing with the evidence of Mr. Deshmukh it is important to remember that the appellant was a stranger to Mr. Deshmukh and no animus of any kind can be alleged against Mr. Deshmukh when he came out with the story against the appellant. The second circumstance to which reference must be made is the conduct of Mr. Deshmukh immediately after the accused is alleged to have made the offer to Mr. Deshmukh. He took the accused to the office of the Collector, and when it was found that the Collector had left for lunch, he wanted to take him to the office of the Personal Assistant to the Collector. But the accused resisted this attempt and Mr. Deshmukh had to content himself with making a statement before the Collector soon after the Collector returned. In other words Mr. Deshmukh made the complaint without any loss of time and it is clear that the allegations which he made in his statement which was recorded soon thereafter are substantially consistent with the evidence which he gave in the trial Court. In this statement Mr. Deshmukh has narrated how Mr. Mohanji accompanied by the accused came to his office, how the application for permission to sell the gun was presented before him and he has narrated the conversation that took place between himself and the accused and Mohanji. Then Mr. Deshmukh has added that the intending purchaser returned to Mr. Deshmukh about an hour after he and Mohanji had left his chamber, and told him while Mr. Deshmukh was busy in his office work that he would pay Mr. Deshmukh Rs. 20 and that he should be given an order. Immediately thereafter Mr. Deshmukh left his chair and tried to drag the accused to the office of the District Magistrate. Therefore, it is clear that against the complainant no motive can be alleged and the complainant has been very prompt in making the complaint. In his evidence before the Court Mr. Deshmukh has stated that when the accused returned to his office he told him that Mr. Deshmukh should manage to get the order by evening and if his work was done the accused would pay to Mr. Deshmukh Rs. 20. The rest of the evidence given by Mr. Deshmukh, it is unnecessary to set out. Mr. Malkani for the appellant comments on the fact that the evidence given by Mr. Deshmukh on the material point of the offer alleged to have been made by the accused is inconsistent with his statement which was recorded before the Additional District Magistrate. In the latter statement Mr. Deshmukh has averred that the accused offered to pay him Rs. 20 and said that he should be given the order. In our opinion these two averments are substantially the same as the account given by Mr. Deshmukh in the witness-box. The fact that Mr. Deshmukh has stated at the trial that the accused desired that the order should be secured the same evening cannot be regarded as inconsistent with the averments made by Mr. Deshmukh in his prior statement. Even according to these averments the accused wanted the order and said he would pay Rs. 20 if the order was given. The fact that he wanted the order without any loss of time is implicit in the first statement. That fact has been expressly stated in the evidence at the trial. In our opinion the comment made by Mr. Malkani on the evidence given by Mr. Deshmukh does not detract from the value of his evidence at all. He is a public officer of status and, as I have already mentioned, his immediate reaction to the illegal proposal of the accused was so strong that he promptly dragged the accused to the office of the Collector. We see no reason whatever to disbelieve the account given by Mr. Deshmukh, His account has received corroboration from the evidence of Shankar who was working as a clerk in the Dy. Chitnis''s branch in the Collector''s office on July 30, 1952. This clerk was working at his table at a short distance from the table of Mr. Deshmukh and he saw the accused returning to Mr. Deshmukh some time after both the accused and Mohanji had left the office; and he heard that the accused had told Mr. Deshmukh that if he gave an order regarding the gun that day only he would pay Rs. 20. Then he describes how the Dy. Chitnis got angry with the accused and took him to the Collector''s office. The table of this clerk is at a distance of 8 feet from the table of the Dy. Chitnis, so that it would have been very easy for the clerk to hear what the accused told the Dy. Chitnis, in cross-examination it has been brought out that in his prior statement the clerk had said that the accused had told Mr. Deshmukh that he would pay him Rs. 20. He had not mentioned in his earlier statement that the accused had also added that Rs. 20 would be paid if the order was given to him the same evening. In our opinion, the omission on the part of the clerk to mention this detail in. his prior statement is not of material significance. Besides, even if the clerk''s evidence suffers from this minor infirmity, we do not see any reason why Mr. Deshmukh''s evidence by itself should not be accepted as true. The prosecution has also examined Mohanji. But as was to be expected he was inclined to help the accused. Mohanji stated that he met the accused at the corner of the District Court at Thana by arrangement. The accused made his endorsement on the application and then left. In the result Mohanji went to the Dy. Chitnis''s office alone and he did not meet the accused that day thereafter. It is significant that even Mohanji admits that he met the accused by previous arrangement at the corner of the District Court building and that must be true because the accused had to make an endorsement that he was willing to purchase the gun. It seems clear that the offer made by the accused to purchase the gun was a tempting offer inasmuch as he had promised to pay Rs. 700 for the gun. The vendor and the vendee both appeared to have been keen on entering into and completing the transaction without any delay. If that is so, it is extremely improbable that the intending purchaser would wait for Mohanji at the comer of the District Court building, would make an endorsement on the application, but would not care to accompany him to the office of the Dy. Chitnis. Therefore, in our opinion, no reliance can be placed on the statement of Mohanji that he went alone to the office of the Dy. Chitnis. We are satisfied that on the evidence adduced by the prosecution in the present case, the learned Special Judge was justified in coming to the conclusion that the accused told the Dy. Chitnis that he would pay him Rs. 20 if the order sanctioning the sale of Mohanji''s gun was obtained that very day.

The next question which falls to be considered is whether this conduct of the accused amounts to an offence u/s 165-A of the Indian Penal Code. Mr. Malkani has contended that the conduct of the accused amounts to preparation and nothing more. It cannot be said to amount to an instigation within the meaning of Section 107 and it doe''s not amount even to an offer. At best it may be regarded as an invitation to make an offer. If the conduct of the accused does not amount to an instigation within the meaning of Section 107 and does not constitute an offer, there may be considerable force in the argument that the accused may not be guilty u/s 165-A of the Indian Penal Code. In our opinion, however, the conduct of the accused in the present case cannot properly be described as amounting merely to preparation or to an invitation to make an offer. Section 105-A of the Indian Penal Code has been recently enacted by the Criminal Law Amendment Act XLVI of 1952. This section provides for the punishment of an abetment of an offence punishable u/s 161 or Section 165 whether or not that offence is committed in consequence of the abetment. The prosecution must, therefore, establish that the conduct of the accused amounts to an abetment of the offence u/s 161. If we turn to Section 101, it would be clear that a public servant would be guilty of the offence of taking gratification under the said section even if he agrees to accept the prohibited gratification. It is thus not necessary in order to bring home to the public servant the charge u/s 161 to prove that he has. actually accepted or obtained illegal gratification. It would be enough if it be shown that he had agreed to accept the said illegal gratification. In other words, if a proposal is made to the public servant in respect of payment of illegal gratification and the proposal is accepted by the public servant, he would be guilty u/s 161 of the Indian Penal Code. If that be the true position, it must follow that the making of the offer would itself constitute an offence u/s 165-A in regard to the payment of illegal gratification. If a person who offers to pay the amount makes his proposal, that constitutes an offence u/s 165-A. If the proposal is accepted, that constitutes an offence u/s 161 of the Indian Penal Code. In this connection it may be relevant to refer to ill. (a) u/s 116 of the Code. Section 116 deals with an abetment of the offence where the offence abetted is not ultimately committed. Illustration (a) to this section deals with the case of an offer of. a bribe by A to B, a public servant, as a reward for showing A some favour in the exercise of B''s official functions. A is punishable u/s 116 even though B may refuse to accept the bribe. It would thus be clear that the offer of the bribe would amount to an. abetment u/s 116 and would necessarily constitute an offence u/s 165-A. The definition of the word "instigation" contained in Section 107 leads to the same result. Any act committed by a person which amounts to instigation as defined in Section 107 would attract the povisions of Section 165-A of the Indian Penal Code. In this connection it would be necessary to remember that in the words of Section 2(a) of the Indian Contract Act, "a proposal is made by a person when he signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of that other to such act or abstinence." When the accused went to Mr. Deshmukh and said that he would pay Rs. 20 to him in case Mr. Deshmukh secured the Collector''s sanction before evening he was obviously making an offer to Mr. Deshmukh. In order that the statement of the accused should amount to an offer, it is not necessary that he should produce the amount before Mr. Deshmukh along with his statement. As soon as the accused clearly and unequivocally conveyed to Mr. Deshmukh that he would pay him a certain amount, that ceases to be the preparation and it amounts to an offer, and if the statement made by the accused amounts to an offer, there is no escape from the conclusion that this offer constitutes an offence u/s 165-A of the Code.

Mr. Malkani has, however, invited our attention to a decision of this Court in Emperor Vs. Amiruddin Salebhoy Tyabjee, in support of his contention that the statement of the accused in the present case does not amount to an offer and cannot be held to constitute instigation of the offence u/s 161. The facts in Amiruddin''s ease were somewhat unusual and they could be easily distinguished from the facts before us. It appears that in this case the accused had successfully interceded with the Municipal Commissioner on behalf of his cousin, and had obtained an order from the Municipal Commissioner relaxing in favour of his cousin some of the building regulations. After the Commissioner had thus relaxed the regulations in favour of his cousin, the accused saw the Commissioner to thank him. Then he made inquiries about some tender for sleepers and very cleverly suggested to the Commissioner that it was no good putting any tender unless one had influence. That naturally made the Commissioner suspicious about the motive of the accused in seeing him. The accused asked the Commissioner when he should see him again; and though the Commissioner told him that it was not necessary for the accused to see him again, he said "shall I see you here or elsewhere". Then the Commissioner asked "what about" and the accused added "about Rs. 5,000". When the Commissioner inquired which Rs. 5,000, the accused replied "my cousin wishes to give you Rs. 5,000". On these facts the accused had been charged u/s 161 read with Section 116 of the Indian Penal Code. The learned Magistrate who tried his case had acquitted him and this Court was dealing with his case in an appeal against acquittal. It is clear that when the matter was argued before Macleod C.J. and Shah J. they did not take the same view on the merits of the case. Macleod C. J. held that on the facts the accused was guilty of the offence charged whereas Shah J. came to a different conclusion. The learned Chief Justice set out his reasons in support of his conclusion but ultimately concluded by saying that in view of the fact that his brother was not in favour of the conviction he was content to refrain from expressing an opinion which would necessitate another hearing. The judgments delivered by the two learned Judges have to be considered in the light of this back-ground. The learned Chief Justice thought that the words "my cousin wishes to give you Rs. 5,000" did not legally amount to an offer. They indicated a state of mind on the part of the cousin that if asked he might give Rs. 5,000. The distinction between an offer and an invitation for offers to be made, said the learned Chief Justice, was well recognised in the law of contract; and bearing in mind this distinction his view was that the words uttered by the accused in the said case did not amount to an offer. That, however, would not be decisive of the matter, because it was still necessary to consider whether the said words amounted to an instigation within the meaning of Section 107 and would constitute abetment of the offence u/s 161. Proceeding to consider this aspect of the matter, the learned Chief Justice observed that (p. 542):

...a person is said to instigate another to an act when ha actively suggests or stimulates him to the act by any means or language direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement.

It would be noticed that on this view of the interpretation of the word "instigation", It was impossible to accede to the argument of the accused in the said case that the words used by him did not amount to instigation and would not, therefore, constitute an offence of abetment of an offence u/s 161 of the Indian Penal Code. That is how the learned Chief Justice would have been prepared to deal with this matter on the merits. Mr. Justice Shah, however, approached the case from a different point of view and came to a different conclusion. But it is necessary to emphasise that the conclusion of Mr. Justice Shah was based substantially upon the view that he took of the facts in the case itself. Mr. Justice Shah was not satisfied that on the evidence it was established beyond doubt that the reference to Rs. 5,000 made by the accused had any connection with the improper purpose as mentioned in Section 161. It has been observed by Mr. Justice Shah that the instigation, if any, must be to make the complainant agree to acceptor attempt to obtain the sum as a motive or reward for any official act. The learned Judge also was not satisfied "on the whole that there was any offer of bribe or that there was any instigation to the complainant to do something which is prohibited by Section 161 of the Code, In our opinion Mr. Malkani would not be able to succeed in the present case even if we were to apply the test laid down by Mr. Justice Shah in his judgment. What the accused had told the Municipal Commissioner in the said case was that his cousin wanted to see him and that his cousin wished to give him Rs. 5,000. Perhaps it may be possible to take the view that these statements would not amount to an offer unless there was some evidence to connect these statements with the object which the payment of Rs. 5,000 was intended to serve and so they may not amount even to instigation and therefore to abetment. In our opinion the observations made by Shah J. must be read in the light of his findings on question of fact and, with respect, they cannot be said to lay down any general proposition of law. In the present case the position is perfectly clear. The object which the accused wanted to achieve is not in doubt. The application which was made by Mohanji and which the accused had endorsed as the intending purchaser clearly shows that the accused was keen on purchasing the gun; and it appeared to the accused that the delay of a couple of days should be avoided and an order authorising Mohanji to sell the gun should be obtained immediately if possible. It was with this clear object in his mind that he went to Mr. Deshmukh and he conveyed to Mr. Deshmukh his object in unambiguous terms when he told him that he would pay him Rs. 20 if the order was forthcoming that evening. Therefore, there can be no difficulty at all in holding that the statement made by the accused amounted to an offer to pay illegal gratification, and if that is so, his conduct clearly falls within the mischief of Section 165-A of the Indian Penal Code.

There are two other decisions to which our attention has been invited. In Emperor v. Chaube Dinkar Rao I.L.R.(1933) All. 654 the Allahabad High Court had to deal with the case of two sets of persons who had been charged u/s 161 read with Section 116 of the Indian Penal Code. A suit was pending before the Subordinate Judge. One J approached the Subordinate Judge and told him that the plaintiff would give him Rs. 10,000 if he would decree the suit. The Judge turned out J. A few days later M, who was a Pujari, came to see the Judge at his house. The Judge suspected that the Pujari was approaching him in connection with the same offer of bribe and so he decided to set up a trap. With that object the Judge himself suggested his willingness to take the bribe and the amount and the date were settled. On the fixed date M and D, who was the son of the plaintiff, came to the Judge with the amount whereupon they were caught by certain officers who had been concealed in the house by the Judge. On these facts two questions arose for the decision of the High Court. They were, whether J could be said to have committed an offence u/s 161 read with Section 116, and whether D and M had committed the same offence. It is unnecessary to refer to the judgment which deals with the case against D and M. The observations made by the learned Judges in respect of the case against J are however, relied upon by Mr. Malkani before us. The learned Judges found that on the evidence it did not appear that Jagat Narain was acting in concert with the plaintiff or with M and so his conversation with the Judge cannot be said to have had any connection whatsoever with M''s visit to the Judge a few days later. That is why they came to the conclusion that J could not be held to be guilty u/s 161 read with Section 116. Then the learned Judges went on to observe that all that J had done was to tell the Judge that the plaintiff would be willing to give Rs. 10,000 if the Judge would decree the suit. On these facts he might have been held to have instigated the Judge to send for the plaintiff and to ascertain whether he was in fact willing to pay the money as alleged. It is significant that the judgment proceeds to add that this conduct might amount to instigating the Judge to attempt to commit an offence u/s 161 of the Indian Penal Code. But the learned Judges did not proceed to convict him of that offence because no charge had been framed on those lines. These observations would show that even the statement which had been made by J that the plaintiff would be willing to give certain amount of bribe to the Judge in case he decreed the plaintiff''s suit would, in the opinion of the learned Judges, constitute an abetment of the offence u/s 161 read with Section 107 of the Indian Penal Code.

The next decision to which our attention has" been drawn is the judgment delivered by Adami and Bucknill JJ. in Rameshwar Singh v. King-Emperor I.L.R(1924) 3 Pat. 647. It has been held in this case that "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 our opinion this view is justified on a fair and reasonable construction of the plain and clear words used in Section 161 and Section 165-A of the Indian Penal Code.

The result is we confirm the order of conviction and sentence passed by the learned Judge against the appellant and dismiss this appeal.