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Criminal Revision Nos. 180 and 183 of 1953, decided on 27th July 1953.

S. 197‑Public Servant offering bribe‑Whether sanction necessary for prosecu tion‑Prosecution under Ss. 116 and 161 P. P. C. in effect a prosecution for offering a bribe‑Criterion for decision.

Held, that section 161 of the P. P. C., is the offence of a public servant either accepting or obtaining or agreeing to accept or attempting to obtain from any person for himself or for any other person, any gratification 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 functions, favour or dis-favour to any person, or for rendering or attempting to render any service or disservice to any person. A prosecution under section 116/161 P. P.C., is in effect a prosecution for offering a bribe and by no stretch of imagination can it possibly be claimed on his behalf that when he demands a bribe, be does so in virtue of his office.

A fortiori a public servant can certainly be prosecuted for offering a bribe without any sanction under section 197 of the Code of Criminal Procedure.

H. H. B. Gill v. The King Emperor 52 C W N 567 ref.

R. C. Talukdar for Petitioner in No. 180.

D. C. Roy for Petitioner in No. 183.

Md. A. Hye for the Crown.

‑The petitioner in Criminal Revision No. 183 of 1953, is one Zahurul Haq alias Shah Zahurul Hogue who, at the material time was the Head Clerk of the Civil Supplies Office, Bakarganj.

The petitioner in Criminal Revision No. 180 of 1953, is one Md. Ismail, a Contractor.

The case for the prosecution may be briefly stated as follow : Matiar Rahman, a Sub‑Inspector of Police of the Bakarganj District, Anti‑Corruption Branch, was deputed by Mr. Eskandar Ali Chowdhury, Deputy Superintendent of Police, Anti‑Corruption Branch, to make enquiries into a case of corruption in the Civil Supplies Department in which the petitioner Zahurul Hogue, the Head Clerk, was involved. Matiar Rahman accordingly in this connection seized certain papers from the office of the District Controller of Civil Supplies with the intention of starting a case against Zahurul Hogue. Zahurul Hogue and his co‑petitioner Muhammad Ismail approached the Sub‑Inspector on several occasions and offered him illegal gratification in order to hush‑ up the matter. The Sub‑Inspector reported these proposals to the Deputy Superintendent of Police and the Deputy Superintendent of Police told him to fix up a time and place for the acceptance of the offered bribe and to give him information in order that a trap might be arranged and the culprit caught red‑handed. Following the advice of the Deputy Superintendent of Police, Matiar Rahman fixed the 19th of April 1952, to receive part of the sum of Rs. 1,000 which was being offered to him to hush up the scandal in the Civil Supplies Office. The amount was to be paid over to Matiar Rahman at his residence styled ' Amir Kutir" between 8 and 10 P.m., on the lath April 1952. When these details had been finalised, the Sub‑‑divisional Magistrate was approached to depute a Magistrate to witness the trapping of the petitioner and the Sub‑divisional Magistrate deputed Mr. M. S. Huda, a Magistrate of the 1st Class, to do so. He and certain Police Officers went to the house of Matiar Rahman between 8 and 8‑30 p.m. on the 19th of April 1952, and concealed themselves in the Sub‑Inspector's bedroom. This was separated from the part of the verandah in which the Sub‑Inspector had his office, by a split bamboo fencing, through the interstices of which everything in the verandah could be seen by people inside the bedroom. At about 10 p.m. Zahurul Hogue came to Matiar Rahman in the verandah and requested him to hush up the matter which he was investigat ing. He was followed by Ismail, and Zahurul Hogue asked Ismail to pay over the money. Ismail accordingly brought out 20 ten‑rupee notes from his pocket and put it on the table of the Sub‑Inspector. Matiar Rahman picked it up and began to count it asking Zahurul Hogue and Ismail to wait. As they showed signs of restlessness, the Magistrate Mr. M. S. Huda rushed out of the bedroom and caught hold of Ismail. Ismail pushed him over and began to run away but the Police caught both him' and Zahurul Hoque and brought them to Matiar Rahman's office.

The defence in the Court below was that Zahurul Hogue went to the house of Matiar Rahman on the night of occur rence to explain papers which had been seized by the Sub‑Inspector from the Civil Supplies Office and there he was treacherously arrested and he was sent up on a false case. Ismail took the defence that he was waiting outside and when the hue and cry started, he went near the house of Matiar Rahman out of curiosity and was arrested on suspicion.'

The trying Magistrate Mr. A. M. M. Khan believed the evidence for the prosecution, particularly, the evidence furnished by the Magistrate Mr. M. S. Huda whom he saw no reason to disbelieve and rejected the suggestions of the accused‑the one that he had been treacherously implicated and the other that he had been mistakenly arrested being an innocent sight‑seer, and convicted both of them. Their appeal was dismissed by Mr. D. L. Rahman, Sessions Judge of Bakarganj, and then they approached this Court in the exercise of its Criminal Revisional Jurisdiction.

Mr. D. C. Roy has appeared on behalf of Zahurul Hoque and before us he has agitated grounds Nos. 2 and 3 of his petition. Ground No 2 reads: " For that the learned judge erred in law in holding that sanction which is a condition precedent to taking cognizance of an offence under section 161 P.P. C., is not necessary for the prosecution of the public servant charged with an offence under section 116 read with section 161 P. P. C.", while ground No. 3 reads : " For that an offer of a bribe to a public servant by a public servant requires a sanction where the public servant offering the bribe is an accused and the absence of sanction in the present case rendered the trial void ab initio and as such your petitioner is entitled to an acquittal ".

Mr. R. C. Talukdar appearing on behalf of the petitioner Muhammad Ismail, protested that the case of his client had not been separated from the case against Zahurul Hoque and he had been prejudiced by the manner in which his separate defence had been ignored by the Magistrate and he asked for a rehearing of the‑appeal.

Mr. Abdul Hye appeared for the Crown.

We are not convinced that there is any substance in this argument put before us by Mr. Dinesh Chandra Roy. The question as to whether or not sanction under section 197, Criminal P. C. was necessary for the prosecution of a public servant charged with an offence under section 161, was set at rest by their Lordships of the Privy Council in the case of H. H: B. Gill v. The King Emperor (52 C W N 567). Their Lordships decided that sanction under section 197 of the Criminal P. C., was not necessary when a public servant was charged with an offence under section 161 or with an offence under section 120‑B read with either sections 161, 165 or section 420 of the Penal Code. Certain observations in this judgment are of pregnant interest. "A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act ; nor does a Government Medical Officer act or purport to act as a public servant in picking the pocket of a patient whom lie is examining though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office". Their Lordships of the Privy Council held that sanction under section 197 was not necessary for the prosecution of a public servant for an offence under section 161. Section 161 is the offence of a public servant either accepting or obtaining or agreeing to accept or attempting to obtain from any person for himself or for any other person, any gratification, as a motive or reward for doing or forbearing to do any official act or for showing or for bearing 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.

A prosecution under sections 116/161 is in effect a prosecution for offering a bribe. We have seen that a public servant can be prosecuted for demanding or for accepting a bribe without any sanction under section 197. A fortiori, a public servant can certainly be prosecuted for offering a bribe without any sanction under section 197. By no strech of imagination can it possibly be claimed on his behalf that when he demands a bribe, he does so in virtue of his office.

Similarly, no sanction, in our opinion, was necessary under section 6 of Act II of 1947. That section provides : " No Court shall take cognizance of an offence punishable under section 161 or section 165 of the I. P. C., or under sub section (2) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, (a) in the case of a person who is employed in connection with the affairs of the Federation and is not removable from his office save by or with the sanction of the Central Government or some higher authority, Central. Government ; (b) in the case of a person who is employed in connection with the affairs of a Province and is not removable from his office save by or with the sanction of Provincial Government or some higher authority, Provincial Government; (c) in the case of any other person, of the authority competent to remove him from office." Once more this section calls for sanction in respect of an offence under section 161 or 165, i.e., for demanding or for taking a bribe. It does not apply to the case of a public servant who tenders a bribe, even though he may be an accused himself.

We are, therefore, unable to accept Mr. Roy's contention that the trial of the petitioner Zahurul Hoque was bad in law in the absence of any sanction.

With regard to the petitioner Muhammad Ismail, Mr. Talukdar claims that his case ought to lave been separately considered inasmuch as he had a separate defence. It is true that the two petitioners were separately defended before the Magistrate but it is equally true that when the witnesses were cross‑examined before that Magistrate, one person conducted the cross‑examination for both the accused, although in one instance when P. W. 4 was cross‑examined, there was one line of separate cross‑examination on behalf of the petitioner Muhammad Ismail. When the petitioners moved against their conviction, they filed separate appeals before the Sessions Judge but when on the 30th of December 1952, they filed a petition for time, the petition was originally filed in the name of both the petitioners but the name of the second petitioner Muhammad Ismail, was subsequently struck off. It is, however, a fact that they both asked for time for Mr. Rezai Karim to argue the appeal on behalf of both of them and as we see from the record, Mr. Rezai Karim did so argue on behalf of both of the petitioners. Their cases have been separately distinguished both in the judgment of the Magistrate and in the judgment of the appellate Court. We are therefore, unable to find any substance in Mr. Talukdar's contention.

In the result then, both the Rules are discharged. The petitioners will now surrender to their bail and serve out the remainder of their sentences. They will also pay the fine required of them or in default undergo the term of imprison ment imposed in lieu thereof.

‑I agree.

K. B. A Rules discharged.

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