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Criminal Appeal No. 406 of 1959, decided on 7th December, 1959.
‑Public servant functus officio at time of accepting bribe‑Not by itself sufficient to negative offence.
For an offence under section 161 of the Penal Code, 1860, the "functus officio" doctrine is no longer accepted. The fact that the public servant is functus officio when money is offered to him as bribe, would not by itself be sufficient to negative the offence under section 161 of the Penal Code, 1860, the gist of the offence being that extra‑legal gratification is obtained as a motive or reward for doing official acts.
The nature of the act must, of course, be official and not attributable purely to the private capacity of the bribe‑taker.
Section 161, Penal Code is not limited to official acts only but applies even if a public servant is requested to render any service with another public servant and it is not necessary that the public servant must in fact be in a position to do the official act. To constitute an offence under section 161 it is sufficient that there is an offer of bribe to a public servant in the belief that he has an authority or power in the exercise of his official functions to show the offeree a desired favour although the public servant has in reality no such power.
Kalipadha Bawali v. The King (1952) 4 D L R 543 and 8hagwandas Kunji I L R 31 Bom. 385. distinguished.
Emperor v. Phul Singh A I R 1941 Lab. 276 ; Gepeshwar Mandal v. Emperor A I R 1948 Nag. 82 and Syed Jafar Shah v. The Crown P L D 1955 B J 6. ref.
‑Offence under section 161 different from offence under section 161/116 Discharge of accused under S. 161/116‑Subsequent trial for offence under S. 161‑Not illegal.
A case of attempt to obtain illegal gratification is different and distinct from an offence of actual obtaining of illegal gratifi cation. The discharge of accused therefore, in the former case does not render his subsequent trial under section 161 of the Code on the same facts illegal.
Hamidul Huq Chowdhury with 1Suacamrnel Huq for Appellant.
Naimuddin Ahmad for the State.
This appeal is directed against the order of Mr. A. S. Muhammad Rashid, Special Judge, Chittagong Division, Noakhali circle who convicted the appellant under section 161 of the Pakistan Penal Code and sentenced him to rigorous imprisonment for one year and further to a fine of Rs. 1,000 in default to rigorous imprisonment for a period of six months.
2. The prosecution case is as follows: ‑
Accused Muzaffar Ahmad was a clerk in the Upper Division of Noakhali Collectorate attached to relief section since 17‑11‑53. Before that he was attached to Revenue Munshi Khana and used to deal with files relating to claims of assets of deceased Pakistanis In foreign countries. One Badu Mia brother of P. W. 1 Muhammad Mia of village Charhazri died in America leaving behind his brother Muhammad Mia and a widow Hashmatunnessa as heirs. The American Government corresponded with the District Magistrate of Noakhali for ascertaining the heirs of late Badu Mia.
3. It is alleged that in connection with the claim of the assets of Badu Mia P. W. 1, Muhammad Mia contacted the accused who promised making necessary correspondence for expeditious payment and the accused gave him to understand that in this matter he would have to spend a lot of money for correspondence with the American Government. Accordingly it is alleged the accused realised Rs. 1,350 from the complainant Muhammad Mia. Out of this he realised Rs 1,150 direct from Muhammad Mia and Rs. 200 through one Joynal. it is further alleged that in the matter of realisation of the said amount, several correspondences were made by the accused directly with Muhammad Mia and also through Joynal. The correspondences have been marked as Exhs. 1 to 1(6) and Exhs. 2 to 2(26).
4. The claim for payment having been delayed inspite of that heavy payment, Muhammad Mia approached the accused once again in Baisakh 1361 B. S. in the company of one P. W. 3 Dalilur Rahman and enquired the reasons for the delay. At this the accused gave oat that he had already spent a further sum of Rs. 1,000 out of his own pocket, and he wanted Muhammad Mia to pay him the said amount. It was then the accused made over two typed papers purporting to tide Authority loiters of Hashmatunnessa authorising Muhammad Mia to withdraw the money due to Hashmatunnessa on her behalf, the two typed papers being marked as Exhs. X and X(1) for identification. It is alleged the accused stated at the time of delivering the authorised letters that he had to pay about Rs. 700 to the Magistrate to secure the same.
5. Thereafter Muhammad Mia got a letter from the American Government the letter marked Y' for Identification. All these letters were shown by Muhammad Mia to his daughter's son Jiaul Huq who advised him not to give any further money to the accused.
6. In Magh 1361 B. S. it is alleged Muhammad Mia again came to Maizdi and met the accused at his residence in company with Dalilur Rahman, Haul Huq and Joynal. The accused then demanded Rs, 1,000 from him and gave out that unless that amount was paid he would see that Muhammad Mia did not get the money from America and if the amount was made promptly he would help in early payment from America.
7. Accordingly Muhammad Mia agreed to pay Rs.300 next day in the morning and the balance within 15 days thereafter.
8. Muhammad Mia then approached P. W. 5 Inspector Anti corruption; and at the latter's request he left Rs. 300 in three hundred rupee Pak. G. C. Notes with him for laying a trap. The Inspector advised Muhammad Mia to meet him on the next day in the morning.
9. In the meantime, the S. D. O. was contacted and in consultation with the S. D. O. the Anti‑corruption Inspector arranged for a trap. Mr. J. Ahmad Magistrate exercising first class powers was deputed to attend the trap. Accordingly on the next day, complainant Muhammad Mia met the Inspector at his residence when the three hundred rupee G. C. Notes had been returned to the complainant with an instruction to pay the money to the accused in the relief office and to give signal after the pay ment. On their arrival, accused Muzaffar Ahmad enquired about the money and Muhammad Mia gave out that he had brought the money. Then money was paid to the accused who accepted the same in the presence of Joynal and Jiaul Huq. Immediately thereafter the police party entered the room and found the three G. C. Notes in the palm of the right hand of the accused.
10. On seeing the police officer and the Magistrate, the accused threw away the notes on the floor by the side of his table. The three Notes were seized and marked Exh. 3 and on com parison they were found to tally with the particulars noted in the report and the marks and initials of the S. D. O.
11. Three files also relating to the claim of the assets of Badu Mia were found in the accused's office room one was lying on the table while the other two were in the almirah of the relief office and a: case was started against the accused.
12. Already another case had been started against the accused on a petition dated 17‑1‑55 by the complainant with the Anti‑corruption Inspector and the same was sent to the officer‑in charge of Sudharam Police Station.
13. The present case was registered in Sudharam Police Station as a separate case in relation to the occurrence of 18th of January 1955 on the report of Abdur Rashid Sikdar on 28‑4‑55 treating the said report as F. I. R. marked Exh. 10 (1). It may be mentioned that the previous case related to the occurrence of 17th of January 1955, relating to attempt to take bribe and the present case was a case of actual bribe taking.
14. The defence of the accused was that he was not guilty to the accusation made 'against him and his plea was that Muhammad Mia took his instructions sometime in 1953 regarding his claim in the assets left by his brother Badu Mia in America. Later on in April or May 1954, one Aminulla set up his claim in the aforesaid assets and met the accused to apprise him of his claim. Accordingly the accused advised him to submit his claim. This enraged the complainant Muhammad Mia who in collusion with Haul and Joynal and the police arranged a trap and in pursu ance of the said arrangement Muhammad Mia in company with Jiaul and Joynal met the accused in the relief office on the day of occurrence and on a pretext of giving a loan of Rs. 300 to Joynal through the hand of the accused; the amount of Rs. 3,30 had been made over to the accused for payment to Joynal.
Muhammad Mia and Joynal being neighbours and relations of the accused, the accused did not suspect any foul play and readily accepted the amount for payment to Joynal.
Muhammad Mia then wanted the accused to stand surety for the amount, which the accused refused and returned the amount to Muhammad Mia. Muhammad Mia then dropped the amount on the floor when the police party in company with the Magistrate rushed into the room and arrested him. The accused denied the allegation of previous payment of Rs. 3,150 by Muhammad Mia.
Prosecution examined as many as 12 witnesses while the defence examined three witnesses.
On those facts, however, the learned Special Judge convicted and sentenced the appellant as above.
Mr. Hamidul Huq Chowdhury, the learned Advocate for the appellant urged inter‑related grounds Nos. 2, 3, and 4 of the memo of appeal which are as follows: -
."For that the learned Special Judge misconstrued ingredients of section 161, P. P. C. and wrongly applied the section to the facts alleged in the case."
‑"For that in view of the prosecution evidence that the accused Head Clerk of the Relief Section ceased to have any official function to discharge in the disputed matter which was exclusively dealt with by the Revenue Deposit section of English Department, section 161, P. P C. was not there fore at all applicable to the facts of the case."
‑"For that the learned Special Judge had no jurisdiction to try the case inasmuch as on the prosecution evidence itself, whatever the accused did in the matter was not in his capacity as a public servant.
Mr. Chowdhury has developed ground No. 2 by submitting that the purpose of the bribe must be some official act. In this case, according to him what the appellant did, was done in his private capacity, the accused having left Munshi Khana, that is the Revenue Department as early as 6‑4‑53.
15. Furthermore even assuming that the act of the appellant in dealing with the file was of official nature, what the appellant did with the complainant's file after 6‑4‑53, that is, after his transfer from the Munshi Khana to another part of the Collectorate, could not be regarded as official act which he was competent to do, he having become functus officio by them.
So far as ground No. 3 goes, there is nothing in the prosecu tion evidence to indicate that the work was done exclusively by the Revenue Department.
16. At any rate, the appellant continued to deal with it even after he left the department, which is borne out by his endorse ments on Exh. 16(() dated 2‑5‑53; Exh. 18(1) dated 15‑12‑53. It appears that the appellant was clinging to the file even long after he left that particular branch and the Collector by his conduct of signing endorsements treated him as competent to handle the tile even from the relief section and there is unrebutted evidence that on the date of trap, the papers relating to the subject, were found in the room of the relief section where the accused was posted at the time.
17. Mere transfer from the revenue to the relief section of the Collectorate, which is to be regarded as one whole unit, did not have the effect of rendering the accused functus officio and into a private person as distinguished from public servant. He continued to be a clerk of the Collectorate though in a different branch.
It cannot be denied that the act is an official act inasmuch as it relates to office. The American Government got into touch with the Collectorate for ascertaining the position and status of the various claimants although it is true that some private corres pondence did also take place. What the appellant did was also regarded by the Collector as in the exercise of the accused's official functions tacitly perhaps because of the experience of the appellant with regard to the file.
The act of the endorsing "M. A. Muzaffar Ahmad" was an official act and official function and a personal and private function.
18. Mr. Chowdhury ‑has urged that in cases of offences purely under section 161 of the Penal Code as distinguished from section 161/11.6 of the Penal Code the mental condition of the bribe‑giver is irrelevant.
19. This view, of course, finds some support from the decision of Kalipadha Bawali v. The King ((1952) 4 D L R 543), wherein it was observed on the authority of the decision in the case of Bhagwandas Kunji (I L R 31 Bom. 385) that the bribe must be taken by the bribe‑taker to do something within the exercise of his official functions and this was a necessary ingredient la each case which comes under section 161 of the Penal Code only and the mental condition of the bribe‑giver would be relevant only when section 161 of the Penal Cod had to be considered in relation to section 116 of the Penal Code.
Mr. Chowdhury forgets that the present is not a case where the victim as led to believe that the appellant would do the work for him but is a case were there was no dispute that the act was official and the bribe‑taker was taking the bribe as remuneration for his labours as a clerk of the Collectorate.
20. The only question is was the act official or not or in the exercise of official functions. The act of endorsement was not a private act nor was it in the exercise of private functions in which case the Collector would not have put final signature on docu ments bearing appellant's initials.
21. Furthermore the "functus officio" doctrine does no longer seem to be accepted doctrine. The fact that the public servant is functus officio when money is offered to him as bribe, would not by itself be sufficient to negative the offence under section 161 of the Penal Code, the gist of the offence being that extra legal gratification is obtained as a motive or reward for doing official acts.
The nature of the act must, of course, be official and not attributable purely to the private capacity of the bribe‑taker.
22. Mr. Naimuddin Ahamed for the State has cited the decision in Emperor v. Phul Singh (A I R 1941 Lah. 276), as to urge that section 161 of the Penal Code is not limited to official acts only but applies even if a public servant is requested to rend; a any service with another public servant and that it is not necessary that the public servant must in fact be in a position to do the official act.
Mr. Muzammel Huq for Mr. Chowdhury contended that the case just cited was a case of section 161/116 of the Penal Code taken together and, therefore, what has been stated therein does not apply to a case of pure 161 of the Penal Code as the present one. I do not, however, see any distinction in principle.
23. Mr. Naimuddin Ahmed for the State has also cited the decision in Gopeshwar Mandal v. Emperor (A I R 1948 Nag. 82), in which it was held that to constitute an offence under section 161 of the Penal Code, it is sufficient that there is an offer of bribe to a public servant in the belief that he has an authority or power in the exercise of his official functions to show the offeree a desired favour although the public servant has in reality no such power.
24. He has also cited the decision in Syed Jafar Shah v. The Crown (P L D 1955 B J 6), as wherein it was held that to constitute an offence under section 161 of the Penal Code, it was not necessary that the public servant should be capable of doing favour and it is enough if the person giving bribe thinks that the public servant has opportunity to show him favour. I find myself in respectful agreement with the principles of the decisions cited and I do not see any reason why they should not apply in the present case.
25. Mr. Chowdhury has next contended that in the examina tion of the accused under section 342 of the Code of Criminal Procedure there Is no reference to official act or official function that the accused was supposed to render or to have rendered.
26. The question as put, shows that accused took the money on the plea to show favour to Muhammad Mia in the matter of obtaining payment of the assets left by his deceased brother of Babu Mia in America.
The American Government got into touch with the Collector ate at Noakhali to ascertain the status of the different claimants to the fortunes of the deceased and it cannot be denied that what the Collectorate was doing in the matter was anything other than the official act. The American Government would not be safe to pay anyone except through the verification of the Collectorate and the actual payment and ascertainment was done through the aid of the Collectorate. Whatever the Collectorate did in the matter was official and if the appellant did only put up the file with endorsements before the Collector that would be sufficient official act by a public servant.
27. Under the circumstances as stated before, it was not necessary that the public servant should have be n attached at the moment to the particular department, namely Revenue, to his act an official act.
28. As pointed out by Mr. Naimuddin Ahmed there is a reference in the examination under section 342 to the use of official influence in gaining the payment of assets from the American Government. There is thus no force in this contention.
Mr. Chowdhury has next urged ground No. 5 which reads as follows
"For that the accused having been discharged after charge -sheet in special Case No. 6 of 1955, and the discharge having had the effect of an acquittal, the subsequent trial on the same facts has been illegal."
As regards this contention Mr. Naimuddin Ahmed has rightly pointed out that the earlier case was not simply proceeded with and that was a case of attempt to obtain illegal gratification, while the present is a distinct offence of actual obtaining of illegal gratification on 18‑1‑55 for which a separate case was registered and the information regarding which was lodged in the thana on 28‑4‑55 and before this information no information relating to the actual incident of 18th of January, was given to any thana.
Mr. Chowdhury has next urged ground No. 7 which is as follows: ‑
"For that investigation In the case having been done by Abdur Rashid Sikdar, Inspector D. A. B. charge‑sheet having been submitted by P. W. 6 Huzzatullah and none of these officers having obtained permission from any Magistrate of first class for the investigation, the charge‑sheet based on the said unauthorised investigation was contrary to section 5(A) of the Criminal Law Amendment Act of 1953 and as such the Special Judge had no jurisdiction to take cognizance of the case."
29. It appears that Abdur Rashid Sikdar investigated the case after obtaining necessary permission from the S. D. O. as per petition for permission marked Exh. 17 and the order of the S. D. O. marked Exh. 17 (i) thereupon.
30. So, it is not correct to state that none of Abdur Rashid Sikdar and Huzzatullah had obtained permission to investigate. Abdur Rashid Sikdar investigated under clear permission and Huzzatullah submitted the charge‑sheet only on the death of Abdur Rashid Sikdar.
11 Mr. Chuwdroury has dilated on the evidence in the case at length and referred to certain discrepancies and contradictions in the evidence of witnesses, not all of which call for discussion. His main grievance in that P. W. 1 at whose instance this case was started has given different dates and month with regard to the demands of the accused from him. He has drawn particular attention to what the P. W. 1 stated namely, "in Magh 1361 B. S. the accused made over two sheets of papers to him [marked Exhs. X and X(1)] "and again" in that Magh of 1361 B. S. I came to accused Muzaffar and he demanded Rs. 1,000 and if this was paid he will see that the money is obtained from America on which I agreed to pay Rs. 300 next morning". In next page 3 at the bottom of first para P. W. 1 stated that he got the papers "X" and X(1) from Muzaffar in Baisakh 1361 B. S.
32. A confession no doubt has been created by reason of the expressions "In that Magh" "in Baisakh", "at that time". But it is clear from the examination under section 342 of the Criminal Procedure Code that the accused quite understood that there was reference to two different incidents: one of demands of Rs. 1,000 previous to the day of trap as referred to in 13th of Aswar to the third question put in examination under section 342" and the other to the matter in which Exhs. X and X(1) were delivered to P. W. 1 by the accused as clarified by the question at page 4 of the examination under section 342.
If there was any doubt about the dates, that has been made clear by the examination.
33. Under those circumstances there is no substance in this point also. These are all the grounds placed before me by the learned Advocate for the appellant.
The result is that the appeal is dismissed. The appellant who is on bail will now surrender to his bail bond and serve out the sentence and pay the fine imposed on him.
R. M. A.
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