The learned Vakil who has appeared for the petitioner here has raised several ingenious points. Of these, two are legal points and the third is one of a three-fold character which relates to the facts.
The first point which the learned Vakil has raised is that the circumstances which are detailed by the prosecution do not disclose any offence. He suggested that, as there is no allegation that any actual money or other consideration was produced at the time when the proposition was made to the complainant by the petitioner, there was no attempt to bribe. He contends that, in order that any offence contemplated by the provisions of section 116, Penal Code, should have been effected, something more than a mere statement, that if a public servant would do something which he should not do in the discharge of his official duties he would be given an illegal gratification, must be shown. I do not, however, think that this is so. In the case of Rex v. Samuel Vauahan it was there held quite clearly that a mere offer to fay an illegal gratification to a public servant was an attempt to bribe; and I do not think that this proposition of law which was laid down so long ago as the year 1769 has ever seriously since been disputed.
The second point with which the learned Vakil has dealt must be divided into three heads. Of these the first is the suggestion that between the evidence of the complainant and of his servant, who informed him that certain persons were waiting to see him there is a material discrepancy; for the complainant is alleged to have said that his servant had informed him that the mahant was waiting to see him; whilst the servant himself states that he informed his master that it the cook of the mahant who wanted to speak to him (his master). An examination of the evidence which was given by the complainant's servant disposes of this point altogether; for what he says is:
“I conveyed the message to my master that the mahant of Boorhanath wanted to see him and so had sent a man to call him.”
The second point on the facts which has been urged before us by the learned Vakil is perhaps somewhat stronger. He contends that the whole case as to identification rests solely upon the evidence of the complainant; and he complains that, although it was suggested at the trial that there should be a test identification in order to ascertain if the complainant could identify the person who had been arrested, this petition was rejected without any reason. It must at once be stated that the complainant's cook [who was the servant who called him to see the three men who had come to see his (the cook's) master] was unable to identify any of the three men, who had called, as being the petitioner; but although it is, therefore, in a sense, correct to say that the evidence of identification of the petitioner as being the person who had made this offer of a bribe was confined to that of the complainant himself, yet, what took place afterwards indicates to my mind, very strongly, firstly, that there had been such an offer thus substantiating the main truth of the story and, secondly, that the complainant was able to pick out and identify the petitioner in such a manner (and did in fact do so) that any idea of the necessity for a further test identification would have been absurd. It is clearly proved that the complainant pointed out to sub-inspector Abdul Quddus an individual on the verandah of the Court house as being the person who had offered him the bribe; that he did not know at the time who he was and that he asked for information as to his identity. It was on the information received, relative to his queries, that the complaint was eventually filed against the present petitioner.
The third point to which the learned Vakil alludes is relative to the defence which was put forward. It was suggested that the whole story told by the sub-inspector was false and an endeavour was successfully made at the trial by the petitioner to prove an alibi by the testimony of two witnesses. This alibi was believed by neither Court and the circumstances under which the complainant, immediately or shortly after what is alleged to have taken place, told numerous persons about the occurrence and the fact that he evidently had not the slightest intention of taking any proceedings against the petitioner (whose conduct he seems to have regarded as somewhat ridiculous) seem to me to show that there was no motive of animus moving in the mind of the complainant against the petitioner. No reason was suggested as to why the witnesses who purported to provide for the petitioner an alibi should be believed or why this Court should come to a decision on that question different to that at which the two previous Courts had arrived. It was said that there were two witnesses as to alibi whereas there was but one witness as to the petitioner's presence at the time when the offer of the bribe was made. There is nothing remarkable in a bribery case in such a state of affairs and the credence which may have to be attached to the one or the other of the stories does not depend simply upon the numbers of the witnesses. As I have said, the circumstances which took place after the alleged occurrence are of such a character as to my mind to show without any reasonable probability of doubt that the story which the complainant has told throughout has been a truthful one.
The third point which was put forward by the learned Vakil relates to the question of sentence. He points out that under the first portion of the provisions of section 116 a person who is convicted of abetment of an offence punishable with imprisonment can only be punished with a term of imprisonment which shall not be more than one quarter of the longest term provided for the offence in respect of the abetment of which the person is convicted. He also points out that in the second portion of section 116 it is provided that if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor can only be punished with half the longest term of imprisonment which is provided for the substantive offence. It will be observed that in this case the maximum term of imprisonment provided for an offence against the provisions of section 161 is three years and that in this case this petitioner has been sentenced to eighteen months' rigorous imprisonment, that is to say, that he has been sentenced under the latter half of the proviso of section 116. It is contended that this is an illegal sentence. It is suggested that what is meant by the latter part of section 116 of the Indian Penal Code is that it is only in the case of a public servant whose special duty it is to prevent the commission of certain offences that the punishment provided under the latter half of section 116, as distinguished from the lesser punishment provided under the first half of that section, is applicable. The question is one which is based upon the suggestion, made by the learned author Dr. H.S Gour in his work The Penal Law of India, at page 656, 2nd edition, that the half of the longest term of imprisonment provided for the offence of the abetment of which the individual concerned has been convicted is only applicable where the abetment is of a public servant whose duty in his capacity as such public servant is to prevent the commission of the very offence abetted; and he quotes a case in which where a prisoner was tentatively approaching a Civil Surgeon to see if he would accept a bribe and the Civil Surgeon stopped him from making further advances, it was held that the offence of abetment was complete but was one punishable under the first half and not under the latter half of section 116; and this was so because the Civil Surgeon, although undoubtedly a public servant, was not one whose duty it was as a public to prevent the offering of bribes. Unsupported apparently by authority the principle has been suggested by the learned author of the work in question as applicable to the offer of a bribe made to a police officer on the ground that bribery is not a cognizable offence nor was one which it the specific duty of a police officer to prevent. Presumably, however, in the case of cognizable offences even the learned author of this book would agree that the second half of the section might be put into operation. The matter need not be further discussed here because, in view of the position which I think should be adopted with regard to the sentence, the question is not one which need here be decided. The affair here was evidently of a very tentative and not highly important nature. The matter was indeed by this police officer himself regarded as too insignificant to be worth any serious consideration and in the words of the learned Magistrate:
“The sub-inspector simply laughed over this offer and replied that it was not his habit to give copies of police papers in his custody;”
and indeed, later, he seems to have told this story round amongst his friends almost as a good joke. That he was perhaps wrong in taking this nugatory view of what had taken place I have no doubt; but I think that, under the circumstances, the sentence is unduly severs.
Whilst, therefore, seeing no ground for altering the conviction in this case I have come to the conclusion that the sentence should be reduced to one of rigorous imprisonment for six months. The fine will stand.
Adami, J.:— I agree.
Sentence reduced.