1969 P Cr (PLP)

Dates of hearing : 2nd and 3rd March 1954. ABDUL RASHID, C. J.‑

This is an appeal, by special leave, from a decision of the High Court of Judicature at Dacca con firming the conviction of the appellants under section 161/116 of the P. P. C., and the sentences awarded thereunder by a Magistrate of the First Class at Chandpur. The appeal of the convicts was dismissed by the Additional Sessions Judge of Tippera, and the High Court and dealt with the case in the exercise of its powers of revision. On the 20th of April 1949, twenty‑five cases off hosiery goods, were despatched by train front Chandpur in East Bengal to Karimganj in Assam. On the 21st April twenty‑five packages of hosiery goods were seized by Sub‑Inspectors Muhammad Ismail (P. W. 3) and Muhammad Eshaque Ali Sarkar (P. W. 1) while these packages were being conveyed in the river Dakatia in two boats towards Chandpur the goods were taken to the Police Station and a list thereof was prepared by a Magistrate. They were kept in a room under lock and key. Sub‑Inspectors Muhammad Ismail and Muhammad Eshaque Ali Sarkar were holding a preliminary investigation regarding these goods and in. particular, these two officers were searching for the owners of the goods. On the 22nd April Lutfur Rahman appellant went to the house of Sub‑Inspector Muhammad Ismail at Chandpur and told him that he had come to see him on behalf of the owners of the goods. He begged the Sub‑Inspector to release the goods on receipt of some money from him. The Sub‑Inspector refused to receive the money and asked Lutfur Rahman appellant to supply him with the addresses of the owners. On the 23rd April Lutfur Rahjuan again went to Muhammad Ismail and at that time the other two appellants, namely, Abdul Sukur and Anwar ullah, were with him. He told the Sub‑Inspector that one Manumia was the owner of the goods and Anwarulla and Abdul Sukur were the agents of the owner. All the three appellants told Muhammad Ismail that they would pay him Rs. 5,000 if he released the goods. The Sub‑Inspector again declined the offer and asked them to bring the owner with the documents. In due course, the D. S. P. was informed and on the evening of the 24th a trap was arranged in order to catch those who were offering the bribe. At about 9‑15 p.m. all the appellants were captured and currency notes amounting to Rs. 3405 which had been handed over to Muhammad Ismail were taken into possession. The Magistrate who was a member of the raiding party at once recorded the statements of the accused and sent them to the S. D. O. with the report. The defence of Lutfur Rahman and Abdul Sukur was that Sub‑Inspector Muhammad Ismail used to sell property which had been lost by the passengers and had been deposited in the Lost Property Office that on the 24th of April he sent one Sekendar with the information that 25 packages of hosiery goods would be sold at the rate of Rs. 340 for each packet; and that the purchaser would be asked to deposit half the price at that time. The two appellants had gone to the house of Muhammad Ismail in good faith and had purchased these goods and had handed the sum of Rs. 3,405 to Muhammad Ismail in respect of half the price of the packages that they had purchased. The appellant Anwarulla stated that he had gone to see the cinema show at a theatre which is near the house of Muhammad Ismail; that Sekendar called him to the house of Muhammad Ismail on the false plea that he would be required to sign certain documents and that he was arrested on a false charge. The trial Court and the learned Additional Sessions Judge came to the conclusion that the evidence in the case established beyond doubt that the sum of Rs. 3405 was handed over to Sub Inspector Muhammad Ismail as a bribe so that he may release these goods or get them released, and that the appellants were therefore guilty under section 161/116 of the P. P. C. The only point raised before the High Court was that before the 24th of April the goods had been taken charge of by a Magistrate; that Muhammad Ismail was no longer in custody of the goods; and that it was not possible for him in the exercise of his official functions to release the goods or to show any favour or disfavour to the appellants. It was urged that in these circumstances section 161 would have been inapplicable to the case if Muhammad Ismail had accepted the sum of Rs. 3,405 which had been offered to him, and that consequently the offence, if any, committed by the appellants did not fall under sections 161/116 of the P. P. C. The learned Judges of the High Court did not examine the facts of the case in order to determine whether the contention raised by the counsel for the appellants bad any sub stance. Their attention was invited by the counsel for the appellants to the following passage in Rattan Lal's Commentary On the Penal Code :‑ "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 he might in reality have 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 that he was guilty of abetment of the offence under this section. The Madras and the Calcutta High Courts have held to the contrary." After quoting the above passage in their judgment, the learned Judges proceeded to examine the various authorities cited before them and ultimately held that the view taken by the Allahabad and the Lahore High Courts laid down the law correctly. On this finding, the petition for revision preferred by the convicts was dismissed. Special leave was given to the convicts to appeal to this Court on the ground that there was divergence of judicial opinion on the point involved in this case, and that it was desirable that an authoritative pronouncement should be made tin this point. On an examination of the evidence in this case, however, we find that no question of law arises. It is clear from the evidence of Muhammad Ismail (P. W. 3) and Dilawar Hussain (P. W. 4) that preliminary investigation was being carried on by Sub‑Inspector Muhammad Ismail and Muhammad Eshaque and that the preliminary investigation continued till about the 10th of May. On the 24th of April it was possible for Muhammad Ismail to recommend that no offence had been committed in respect of the goods that had been captured on the 20th of April and that the goods should be restored to the persons who claimed to be their owners. Muhammad Ismail definitely states that he and Muhammad Eshaque started enquiry in this matter on the 22nd of April 1949. He further deposes that after the 22nd of April he continued to help Inspector Dilawar Hussain in the investiga tion. On the 23rd and 24th of April he examined a number of witnesses. It is clear, therefore, that Muhammad Ismail was in a position to show favour or disfavour to the appellants in gaining their object. It is also perfectly obvious that the appellants were convinced that Muhammad Ismail could release the goods. This is clear from the following passage in the evidence of Muhammad Ismail :‑ "When the accused first approached me the goods were in the custody of S. D. O. I told the accused that the goods were then in the custody of S. D. O. I told the accused that I could not do anything in the matter, that I could not help them in any manner. The accused insisted that I would be able to help them." The counsel for the appellants relied on this passage to show that Muhammad Ismail could not in the exercise of his official functions favour or disfavour the appellants. This contention, in our opinion, is devoid of force. Muhammad Ismail and Dilawar Hussain were carrying on the investigation. It was not possible for them to release the goods, but they could certainly show favour to the appellants by making a favourable report which might lead to the release of the goods by the Magistrate. If Muhammad Ismail had accepted Rs. 3,405 that were offered to him he would certainly have been guilty under section

161. It was submitted on behalf of the convicts that Muhammad Ismail could only assist the convicts by approaching the Magistrate for the release of goods, and that as he could not release the goods himself, the case would fall under the Third part of section

161. The contention of the counsel was that no charge was framed against the appellants under the Third part of section 161 to the effect that Muhammad Ismail would exercise his influence with another public servant to get the goods released. It was urged that the accused would be gravely prejudiced if it is held that Muhammad Ismail could use his influence as a Police Officer to get the goods released by the Magistrate. We cannot accept this contention. No prejudice has been caused to the appellants as they knew all along that either Muhammad Ismail would release the goods himself or he would help them in getting the goods released if he was not himself in a position to do so. The question of law which has been discussed at great length in the judgment of the Dacca High Court and which was referred to in our order granting special leave to appeal does not therefore A arise on the facts of the present case. On these facts, the conviction is correct. We, therefore, dismiss this appeal. Appeal dismissed.