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Criminal Revisions Nos. 141 and 195 of 1952, decided on 29th July 1952.
, Ss. (161)116-Bribe-giver -Mens rea of--Material test in determining his guilt. When section 116 of the Code has to be considered in relation to section 161 what has to be seen is the mind of the person who offers the bribe. That is the material test. It is the "mena rea" of the man who offers the bribe that is material rather than the mens" of the person who takes the bribe.
[Case-law discussed.]
Dinesh Chandra Roy, for Petitioner in No. 141 of 1952.
Dinesh Chandra Roy and A. M. Sayem, for Petitioners in No. 195 of 1952.
These two revision cases deal with a common point of law and have been heard together. They are now disposed of under this one judgment.
When the cases were taken up for hearing, Mr. Dinesh Chandra Roy who appeared in support of the rules, mentioned that the point at issue had already been dealt with by this Bench in Criminal Revision No. 42 of 1952 in which judgment had been delivered on the 16th of July 1952 (P L R 2 Dacca 373.). Mr. Roy however, contended that Mr. Talukdar who had appeared on behalf of the petitioners in Criminal Revision No. 42 of 1952 had merely contented himself with placing before the Court the observations of Ratanlal in his commentary on section 161 of the Penal Code without reference to the content of the different decisions of the different High Courts mentioned therein.
The relevant extract to which our attention was then drawn by Mr. Talukdar is in the following terms
"The Allahabad, the Lahore and the Nagpur High Courts are of the opinion that it is sufficient if the accused thought that a particular public servant had an opportunity to show him favour in the exercise of his official functions, or that a public servant had Promised to show favour in the exercise of his official functions, although be might in reality ha, e no such opportunity. The section 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. Where the accused offered a bribe to an officer, mistaking him for the one whom he wanted to offer it, it was held he was guilty of abetment of the offence under this section- The Madras and the Calcutta High Courts have held to the contrary".
Thereafter Mr. Talukdar referred us to the cases of Shamsul Huq v. King-Emperor (33 C L J 379) to the case of Venkatarama Naidu v. Emperor (30 C L J.1055.) and to tile case of Pulifiativenkiah v. Emperor (25 C L J 396). In Revision Case No. 42 of 1952 we expressed the opinion that the view taken by the Allahabad and the Lahore High Courts in regard to section 161 was the correct view and the real point to see is not whether the particular servant was at that particular time in a position to render the official service sought but whether the accused person was under the impression that he was in a position to show favour in the exercise of his official functions. Accepting this view we discharged the Rule.
Mr. Dinesh Chandra Roy appearing in the two cases now under consideration, wished to argue the case anew and claimed that the Courts which bad pronounced on section 161 and section 161/116 had not considered a most essential ingredient of the section itself. .The section recites : "Whoever being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or regard for doing or forbearing to do any official act or for showing, or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person or With any public servants as such, shall be punished " Mr. Roy claims that the Courts, which bad pronounced on section 161 and sections 161/116 had not placed upon the words "in the exercise of his official functions" the emphasis which they demand.
We have been through the different rulings on section 161 either taken by itself or taken in conjunction with section 116 of the Penal Code in order to see whether there is any substance in Mr. Roy's arguments. The first case which arises for con sideration is the case of Nezamuddin v. Queen-Empress (I L R .28 Cal. 345.), a case of the year. 1900. This was a case in which a peon who was attached to the office of the Superintendent of the Salt Department, was convicted as a public servant for having received illegal gratification. In this particular case the point which really arose for consideration was whether the accused was an officer in the service or pay of Government within the meaning of section 21, clause (9) of the Penal Code, as one who was appointed to some office for the performance of some public duty and the decision of their Lordships was that the peon who was convicted was a public servant and that the circumstances in which he bad accepted the money, brought him within the mischief of section 161 of the Penal Code.
The second case is the case of Emperor v. Bhagwandas Kanji (I L R 31 Bom. 335.), a decision of the year 1907. The decision in this case was given by a Division Bench and as the head note shows, it was field:
"Section 161 of the I. P.C. (Act XLV of .1860) requires proof that an official has obtained, as a motive or reward for official conduct, an illegal gratification for himself or another. That other may or may not be an official, and therefore may be wholly unconnected with the official conduct. The conduct which is contemplated as the consideration for the bribe must be that of the official obtaining it. This is clear from the phrase 'in the exercise of his official functions'. To obtain a bribe as a motive or reward for another 's conduct does not fall within the section though it may be an abetment of that offence or cheating. The performance of the act which is consideration for the bribe is not essential. But it is essential that the bribe should be obtained 'as a motive or reward'".
That phrase evidently means on the understanding that the bribe is given in consideration of some official act or conduct. Such an understanding need not be proved by explicit evidence of any precise agreement. It may be inferred from circumstances. The head note in this particular case has been lifted bodily from the judgment itself and it shows that their Lordships did consider the phrase to the exercise of his official functions, and required that essential element should be established before a conviction under section 161 could be maintained. The conviction, however, was one under section 161 of the Code.
The third case is the case to which we made reference in our previous judgment and is the case of Shamsul Huq v. King-Emperor (supra). This is a case directly under section 161/ 116 of the Code. In this case the accused who was a taxi driver, was prosecuted for some petty offence under the Motor Car Act. On the 16th June, the case against him was dismissed but on the 21st June be 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 by Nalini Ranjan Chatterjee and Cuming. JJ. that in this case the petitioner could not be convicted of abetment of an offence of taking a gratification as a reward or motive to forbear to do any official act. It was held by their Lordships that as the prosecution bad already been withdrawn on the 16th June it was not within the power of the Sergeant to show any favour to the petitioner on the 21st June as he had by then already been discharged. This case is curious. in that the petitioner apparently stated that he was aware of the fact that the case against him bad already been withdrawn at the time when be made the offer to the Sergeant.
The next case is also under section 161/116 of the Penal Code and is the case of Emperor v. Ajudhia Prasad (I L R 51 Al1. 467.). It was held there that
"It is sufficient to constitute an offence under section 161, read with section 116, of the Indian Penal Code, that there was an offer of a bribe to a public servant, in the belief that he had an opportunity or power in the exercise of his official functions to show the offeror a desired favour, although the public servant bad in reality no such power".
This was a decision of Dalai, J. which has been subsequently quoted with approval as we shall mention in certain subsequent cases.
Then follows chronologically the decision in the case of Venkatarama Naidu (supra). This is a Madras case and it was held by Murray Courts-Trotter, C. J., and Pakenham Walsh, J. that "No offence under section 161 of the Penal Code is committed where the public servant to whom the bribe is offered is at the time when the offer is made functus officio as to the matter in respect of which the bribe is offered". The case is not of very much help because Trotter, C. J. merely observed : "By the cases in India it is held that if the public officer had discharged his duty whatever it may be, the person who attempts to bribe him in circumstances such as the present commits no offence whatever". There is no other argument in the body of the judgment and the learned Chief justice merely goes to comment on the unsatisfactory state of affairs in which it is held that a man commits no offence if he offers a bribe to a public officer who is funetus officio and the officer himself commits no offence presumably if he takes the bribe.
In its chronological order the next is the case from Peshawar, the case of Qazi Rahimullah v. Emperor (A I R 1935 Pesh. 26.). This also is a case under section 161116 of the Code. It was held there that "section 116 makes an abortive attempt at giving a bribe, an offence from the point of view of the person who offers it". In this case M. Abroad A. C. J. following the decision in the cases of Shamsul Huq v. King-Emperor (supra), and Venkatarama Naidu (supra) held that "No offence under section 161 is committed where the public servant to whom the bribe is offered is at the time when the offer is made funotus officio as to the matter in respect of which the bribe is offered", but does hold that under section 161 a man who makes an abortive attempt at giving a bribe commits an offence from the point of view of the person who offers it.
Next follows the case of Allauddin Ahmed Fakhruddin Ahmad v. Emperor (37 C L J 20.). This case is one which deals with the offence of abetment and it was held that a man who attempts to bribe a public servant to induce him to render him service with another public servant who was acting as such, is guilty of an abetment of offence under section 161 of the Penal Code.
Next follows an important decision of the Lahore High Court in the case of Emperor v. Phul Singh (A I R 1941 Lab. 276.).
The headnote states
"Section 161 is not limited to official acts only, but applies even if a public servant is requested to render any service with another 'public servant'. Section 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. 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 by guilty of the offence under section 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 this case their Lordships referred to the cases to which mention has already been made and after reciting the terms of section 161 of the Penal Code they go on to observe 'It would appear from the above that all that is necessary for the application of the section is that the 'gratification' should have been offered as a motive or reward for doing or forbearing to do any official act, or for showing or forbearing to show favour or disfavour to any person, or for rendering or for bearing to render any service or disservice to any person. The section 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. Illustration (c) to the section is noteworthy. It 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 section 161, Penal Code. It is indeed difficult to see any principle on which a distinction should be made between cases in which the public servant is in a position to do the official act, or favour or service and those in which he is not in a position to do so, but is erroneously believed to be in that position. The heinousness of the act obviously lies in the intention of the bribe-giver to corrupt the public servant and I see no good reason, why the act should be considered to be less heinous merely because the public servant does not happen to possess necessary power to do the required favour or service".
Their Lordships then considered the other cases reported in A I R 1924 Mad. 851, A I R 1921 Cal. 344 and I L R 51 All. 467 (supra) to which reference has already been made.
Thereafter comes the case of Afzalur Rahman and 2 others v. King-Emperor (47 C W N 5) where section 161 of the Penal Code was considered by their Lordships of the Federal Court. It was there held that "We may add that under the concluding words of section 161, 1 P C a public servant may be guilty under that section even independently of the exercise of his official function, that is, if he obtains a reward for rendering or attempting to render any service to a person with another public servant. On the facts of this case, it might be possible to bold that even if in the particular act, the Police Officers were not acting in the discharge of their official duty, they received a bribe in consideration of rendering service to Achhey Lal by persuading another public servant, the Excise Sub-Inspector, to let him off. As against this view, it was urged that that was not the charge and reliance was also placed on the observations of a learned judge of the Madras High Court in Re : Puliyati Venkia (47 Mad. L J. 662 (1924)) to the effect that in a charge under section 161 it must be shown that the accused took the bribe as a motive for doing an official act. This statement cannot be taken as an exhaustive statement of the law, because it fails to give effect to the last part of the section".
The next case is the case of Ram Sewak v. Emperor (48 C L J 467.). In the body of the judgment after referring to the two cases of Shamsul Huq v. King-Emperor (supra) and Venkatarama Naidu v. Emperor (supra), Mulla, J. observed
"I do not think that these two authorities can support the applicant's contention in the circumstances of the present case. There is absolutely no suggestion in the present case that the applicant Ram Sewak had any knowledge of the fact that Mr. Hasnain had already made a report against him to the Town Rationing Officer. He obviously offered the bribe with the intention of inducing Mr. Hasnain not to make any report against him. If the argument of learned Counsel for the applicant is accepted certain absurd results will follow. In the first place, it is evident that the applicant Ram Sewak would have been clearly guilty under section 161 read with section 116, 1. P. C if the incident in question had taken place at about 8-30 p.m. on the night of August 14, 1945, instead of August 15, 1945. It is obviously unreasonable to suggest that the very act which would have clearly amounted to an offence if it had been committed on August 14, 1945, was rendered innocuous not by anything done by the applicant himself or by any knowledge or intention on his part but by that Mr. Hasnain had in the meantime made a report to the Town Rationing Officer of which the applicant did not have any knowledge at all. Again, it would appear upon the argument advanced on behalf of the applicant that no offence could be committed and so Mr. Hasnain could have accepted the money offered by the applicant with impunity. In my view the applicant was clearly guilty of an offence under section 161 read with section 116, I. P. C., in the circumstances of the present case ; and the same view was taken by Dalai J in Ajudhia Prasad v Emperor (supra). 113 I. C. 179, A I R. 1928 All. 752, 30 Cr. L. J. 67, (1929) A L J 153".
Next comes the case of Venkatasubbiah (A I R (35) 1948 Mad. 63.). This, however, is a case under section 161 of the Code where it was held by Yahya Ali, J. that "The term 'reward' in the phrase 'motive or reward in section 161, is manifestly intended to cover a case of payment in respect of past favours. What is forbidden generally is receiving any gratification as motive to do or as a reward for having done any such thing as is described in the
In the case of Gopeswar Mondal v. Emperor (A I R (35) 1948 Nag. 82), it was held by Hemeon J. : "To constitute an offence under section 161, it is sufficient that there is an offer of a bribe to a public servant, in the belief that he has an opportunity or power in the exercise of his official function to show the offeror a desired favour, although the public servant has in reality no such power.
Performance of the act which is the consideration for the bribe is not essential. But it is essential that the bribe should be obtained as a motive or reward'. In the body of the judgment his Lordship observed
The contention that the conviction under section 161, Penal Code was wrong as the applicant had no authority to appoint a person to the post of watchman cannot prevail. In 51 All. 467 f supra) it was held that to constitute an offence under that section read with section l16 it was sufficient that there was an offer of a bribe to a public servant, in the belief that he had an oppor tunity or power in the exercise of his official functions to show the oferor a desired favour, although the public servant had in reality no such power. In 28 Cal. 344 (supra) (the first case to which reference has been made) a peon in the Salt Depart ment who had taken money in respect of the issue of salpetre licenses, was adjudged liable under section 1.61 on the ground that the object of the illegal gratification was the rendering of a service to the persons who paid it. In 31. Born. 335 (supra) (the case of Bhagawandas Ranji) a Division Bench made the following observations):
"As the Magistrate observes, the performance of the act which is the consideration for the bribe is not essential. But it is essential that the bribe should be obtained 'as a motive or reward'. That phrase evidently means 'on the under standing that the bribe is given in consideration of some official act or conduct".
In A I R 1941 Lab. 276 (supra) (Emperor v. Phul Singh) it was pointed out that section 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, and the Division Bench followed the rule in the Allahabdd case (supra). With these authorities I am in respectful agreement and it was obvious in the case before me that the applicant had promised to show favour to Maniklal in the exercise of his official functions although he had no authority to appoint him.
Lastly, is the case of Sadhu Charan Panigrahi v. The State (1952 C L J 367.). This is the decision of the Orissa High Court and was delivered by Jagannadhadas and Panigrahi, JJ. In this case their Lordships reviewed all the previous decisions which bad been given on section 161/116 of the Penal Code and their con clusions are summarised in the following headnote
"The fact that the public servant is funetus 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 section 161. However, such fact may have, in any particular case an important bearing oil the question whether the gratification offered or accepted was intended to be or was believed or held out to be an official act.
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 stress 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 being 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 procured as being by way of motive or reward for procuring such act must be clearly established either by direct or circumstantial evidence. Illustration (c) to section 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 section 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 giver of the bribe would be enough to bring the case under section 161/116'.
Turning then to the present Revision Cases Nos. 141 and 195 of 195,2, we are not satisfied that Mr. Dinesh Chandra Roy has placed before us any reason why we should change .our minds on the question in issue. It is true that it has been held in these decisions in I L R 31 Born. 335 (supra) (the case of Bhagswanalds Kanji) that the bribe must be taken by the bribe taker to do something within the exercise of his official functions. This has been found to be a necessary ingredient in each case which comes under section 161 of the Code only, but as the rulings pointed out and in particular the cases of Gopeswar Alandal and Sadhu Charan Panigrahi (supra) when section 116 of the Code has to be considered in relation to section 161 what has to be seen is the mind of the person who offers the bribe. That is the material test. It is the "mans tea" A of the man who: offers the bribe that is material rather than the "mens" of the person who takes the bribe. A- study of all the cases cited above leads us to the definite conclusion that our decision in- Criminal Revision No. 42 of 1952 was the correct decision and we see no reason at all to change our minds. Mr. Roy was unable to cite in his favour any reported case on section 161 /,116, P. P. C.
Turning now to the two cases under revision, in Criminal Revision No. 141 .of .1952 the Rule was issued on the District Magistrate of Khulna to show cause by the conviction of Kalipada Bawali under section 161/116 of the Penal Code and the sentence of rigorous. imprisonment imposed on him for four months and also the fine of , Rs. 00 in default to rigorous imprisonment for two months by Mr. M. A. Qasmi, a Magistrate of the let Class of Khulna on the 15th of March 1951, should not be set a side.
The rule was issued on two grounds. Ground No. 2 recites
"For that the trial having been initiated upon the accusations in Exh. A which does not snake out any offence, the order of conviction of the petitioner is not sustainable".
Ground No 3 reads
For that upon the evidence the offence does not come within the purview of section 161/116, P. P. C. even if P. W. 1 had accepted Rs. 40 as the alleged bribe in view of the finding of the trial Court not displaced by the lower appellate Court that P. W. 1 was not competent to hush up the levy case nor could he realize the money, the alleged gratification was not offered to a public servant as motive or reward for doing or forbearing to do an official act' and in that view your petitioner is entitled to an acquittal
For the reasons given above, we cannot find that there is any substance in ground No. 3 relating to an offence under Faction 161/116 of the Code and we have not found that there is any substance in ground No. 2. In. these circumstances, the rule issued in Criminal Revision No., 141 of 1952 is discharged and the conviction and sentence are maintained and we direct that the petitioner do now surrender to his bail forthwith and serve out the remainder of his sentence and we further direct that he will also pay the fine required of him or in default undergo the term of imprisonment imposed in lieu thereof.
In Criminal Revision No. 195 of 1952 a Rule was issued on the District Magistrate of Tippera at the instance of three persons, Lutfar Rahman, Abdus Shukur and Anwarulla. They were convicted under section 161/116 of the Code by Mr. Abdus Sobhan, a Magistrate of the 1st Class of Chandpur on the 5th of August, 1950, and their appeal to the Sessions judge was dismissed by Mr. W C. Ahmad, Additional Session judge on the 20th of February 1952. They thereafter approached this Court and obtained the present rule in which the question of section 161/116 of the Penal Code is the material ground.
For the reasons which we have already given, we, cannot find that there is any substance in this ground or that Mr. Roy has been able to substantiate his case that the acts which the petitioners are found to have committed by the Court below, do not fall within the mischief of this section.
In these circumstances, the rule is discharged and the convictions and sentences are maintained. The petitioners will now surrender to their bail forthwith and serve out. the remainder of their sentences and they will also pay the fine required of them or in default undergo the term of imprisonment imposed, in lieu thereof.
----I agree.
A. H. Rules discharged.
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