P L D 1962 Dacca 16 (PLP)

Ground No. 3.‑"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." Ground No. 4.‑"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. Appeal dismissed.