Faguna Kanta Nath Vs. The State of
Assam  INSC 2 (13 January 1959)
CITATION: 1959 AIR 673 1959 SCR Supl. (2) 1
CITATOR INFO :
F 1967 SC 553 (7,9) R 1970 SC 436 (14) F 1990
Criminal Law-Abetment-Bribery-Conviction for
bribery set aside-Maintenance of conviction for abetment-Legality-Indian Penal
Code (Act XLV of 1860), ss.1O7,161, 165A.
The appellant was tried for an offence under
s. 165A of the Indian Penal Code for having abetted K, an Inspector in charge
of checking paddy, in the commission of an offence by the latter under s. 161
of the Code. The prosecution case was that while the complainant was taking
paddy for sale K demanded Rs. 200/as bribe and threatened him that unless the
money was paid the paddy would be seized, that at the instance of K the
complainant handed over the bribe money to the appellant for being counted and
that the latter after checking the money paid it to K. The Special judge who
tried the case accepted the prosecution story and convicted K under s. 161 of
the Indian Penal Code and the appellant for abetment of the offence. On appeal,
the High Court was of the opinion that the evidence was not strong enough to
prove payment to K, and set aside his conviction, but confirmed that of the
appellant on the ground that money was taken by him for payment to K as illegal
gratification and whether he actually paid it to him or not the offence fell
under s. 165A.
Held, that the conviction of the appellant
for abetment under s. 165A of the Indian Penal Code must under the
circumstances be set aside. On the facts found, the appellant received the
money in the presence of and for and on behalf of K and if K was acquitted on
the ground that no offence under s. 161 was committed, then no question of
intentionally aiding by any act or omission the commission of the offence
arose. Consequently, the appellant's conviction for the offence of abetment
Dalip Singh v. State of Punjab,  S.C.R.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 203 of 1956.
Appeal by special leave from the judgment and
order dated December 14, 1955, of the Assam High Court at Gauhati in Criminal
Appeal No,. 54 of 1955, arising out of the judgment and order dated May 23, 2
1955, of the Court of the Special Judge, Lower Assam Districts at Dhubri in
Special Case No. 2 of 1954.
Nur-ud-Din Ahmad and K. R. Chaudhury, for the
Naunit Lal, for the respondent.
1959. January 13. The Judgment of the Court
was delivered by KAPUR, J.-This appeal by special leave is directed against the
judgment and order of the High Court of Assam. The appellant before us was
tried for an offence under s. 165A of the Indian Penal Code for having abetted
one Khalilur Rahman in the commission of an offence by the latter under s. 161,
Indian Penal Code. Both the appellant and Khalilur Rahman were convicted of the
offences with which they were charged and sentenced to one. year's rigorous
On appeal the High Court acquitted Khalilur
Rahman but maintained the conviction and sentence of the appellant.
The facts of this appeal are that on May 9,
1952, the complainant Narendra Nath Brahma was taking two carts carrying 25
Mds. of paddy for sale to Billashiparabazar along the path which runs by the
side of the river Gauranga.
When he had gone only a short distance he was
stopped by the paddy-checking Inspector, Khalilur Rahman, who was accompanied
by the appellant and three others. Khalilur Rahman demanded Rs. 200 as bribe
and threatened the complainant that unless the amount demanded was paid his
cart and paddy would be seized. In this he was supported by the appellant and
three others. The complainant expressed his inability to give that much amount
but ultimately he agreed to pay Rs. 150. He borrowed Rs. 100 from one Surajmal
Oswal out of which he offered Rs. 80 to Khalilur Rahman who asked him to hand
them over to the appellant who counted the money and made it over to Khalilur
Rahman. The complainant was also forced to execute a promissory note for a sum
of Rs. 70 in favour of the appellant and he promised that the money would be
paid the following day after the paddy was sold.
The 3 complainant learnt in the bazar that
another person Happaram Rai had been similarly treated but he had only paid Rs.
15. On May 11, 1952, the complainant
approached the appellant for the refund of his money and the return of his
pronote and although the appellant promised he did not do so. The same day there
was a meeting at Futkibari Middle English School where the Deputy Commissioner
The complainant presented to him a written
complaint describing how he was forced to pay Rs. 80 and made to execute a
pronote for Rs. 70. Thereupon both Khalilur Rahman and the appellant were
prosecuted, the former under s. 161, Indian Penal Code, read with s. 5(2) of
the Prevention of Corruption Act, 1947 (2 of 1947) and the latter under s. 165A
and they were convicted and sentenced by the Special Judge as already stated.
The evidence of the complainant was that
before Rs. 200 was demanded from him, the appellant and Khalilur Rahman "
went aside and had some talks and coming together accused Khalilur Rahman
demanded Rs. 200 ". He also stated " I told them that I managed to
procure Rs. 80 somehow and I wanted to hand over to accused Khalilur Rahman who
directed me to hand over to accused Faguna, saying he would take counting,
accused Faguna counted the money and then made over the entire money to accused
Khalilur Rahman saying that Rs. 80 would not do and I should execute a handnote
for the balance of Rs. 70 promising to pay on the following Saturday ".
According to the complainant it was Khalilur
Rahman who tore out a page from his note book and handed over the same to the
complainant and also lent him his fountain pen and after the pronote was
executed both the pen and the pronote were handed over to Khalilur Rahman. The
Special Judge found:"I am fully convinced that a sum of Rs. 80 was
realised from the complainant for forbearing from seizing of the paddy by the
accused Khalilur Rahman, being helped and abetted by the accused Faguna Kanta
Nath." 4 He therefore convicted Khalilur Rahman under s. 161, Indian Penal
Code, but acquitted him of an offence under s. 5(2) of the Prevention of
Corruption Act, 1947, and convicted the appellant for abetment of that offence.
On appeal Deka, J., held that from the complaint made by the complainant it was
not clear that any payment was made to Khalilur Rahman. He said:
It may be that Khalilur Rahman was a party to
squeezing out some money from a dealer in paddy who tried to evade the law, but
that falls far short of proving that he had accepted the money through
Fagunakanta Nath as alleged now in Court ".
The learned Judge accepted the complainant's
story that money was paid to the appellant but he was of the opinion that the
evidence was not strong enough to prove payment to Khalilur Rahman and
therefore he was "prepared to give the benefit of doubt to Khalilur Rahman
and direct that his conviction tinder s. 161, Indian Penal Code be set aside
As to the appellant he was of the opinion
that money was taken by him for payment to Khalilur Rahman as illegal
gratification and whether he actually paid it to him or not the offence fell
under s. 165A and therefore he held the appellant guilty under that section.
Thus according to the learned Judge the case against Khalilur Rahman was not
proved and as money had been paid to the appellant he was guilty of abetment
under s. 165A, Indian Penal Code. The appellant has come to this Court by
The main argument raised on behalf of the
appellant is that as Khalilur Rahman has been acquitted, on the facts and
circumstances of this case the conviction of the appellant for abetment cannot
be sustained. The evidence of the complainant on which the conviction is based
was that the money was demanded by Khalilur Rahman and at his instance it was
made over to the appellant who counted the money and handed it over to Khalilur
Rahman. The pronote was also written at the instance of Khalilur Rahman and was
handed over to him. The -part played by the appellant according to the story of
the 5 complainant was that before the demand of bribe both Khalilur Rahman and
the appellant "went aside" and held a conference and Khalilur Rahman
then demanded Rs. 200. Rs.
80 was brought by the complainant and paid to
the appellant at the instance of Khalilur Rahman for the purpose of counting
and he in turn gave it to Khalilur Rahman who put it in his trouser's pocket.
About this portion of the evidence the trial Court said " it may not be
fully true " and the finding of the High Court was that the money remained
with him and was not paid to Khalilur Rahman; the question is whether in these
circumstances the offence of abetment can be held to have been made out.
Under the Indian law for an offence of
abetment it is not necessary that the offence should have been committed. A man
may be guilty as an abettor whether the offence is committed or not. Section
165A is as follows:
S. 165A " Whoever, abets any offence
punishable under section 161 or section 165, whether or not that offence is
committee in consequence of the abetment, shall be punished with imprisonment
of either description for a term which may extend to three years or with fine
or with both ".
Therefore for a person to be guilty of
abetment of an offence under s. 161, it is not necessary that the offence
should have been committed. Abetment is defined in s. 107 arid a person abets
the doing of a thing when (1)he instigates any person to do that thing or
(2)engages with one or more other person or persons in any conspiracy for the
doing of that thing....... or (3) intentionally aids, by any act or illegal
omission the doing of that thing.
Explanation (2) to s. 107 is as follows:"
Whoever, either prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of that act, and thereby
facilitates the commission thereof, is said to aid the doing of that act."
It is not suggested that there was any instigation by the appellant for the
commission of the offence.
6 Further the circumstances proved against
the appellant did not bring the case under the second part of s. 107 because it
is not alleged that there was any conspiracy and a charge of conspiracy must
necessarily fail-if the other alleged conspirator is acquitted: See The King v.
Plummer (1) which has received the approval of this Court in Topandas v. State
of Bombay (2). In either of these cases it is immaterial hether the person
instigated commits the offence or not or the persons conspiring together
actually carry out the object of conspiracy.
There then remains the third part of s. 107
that is abetment by aid. A person abets by aiding when by the commission of an
act lie intends to facilitate and does facilitate the commission thereof By the
acquittal of Khalilur Rahman the High Court must be deemed to have held that
there was no offence under s. 161. But it was contended on behalf of the
respondent that the acquittal of Khalilur Rahman was wrong and this Court
should hold that a wrong acquittal does not prevent the conviction of the
appellant for the offence of abetment. Counsel for the respondent referred to
Dalip Singh v. State of Punjab (3) where at p. 156 Bose, J., said:
" We have taken into consideration the
fact that the High Court considers that the portion of Mst. Punnan's story
regarding the lambardars has been falsely introduced by the police, also that
both courts have rejected the evidence about the dying declaration. Despite
that, we agree with the learned Sessions Judge that Mst. Punnan and Mst. Charni
are to be believed regarding the main facts and that they correctly named all
seven accused as the assailants.
On that finding the conviction under section
302 read with section 149 can be sustained. We accordingly uphold these
convictions. The acquittals in the other three cases will of course stand but
the mere fact that these persons have, in our opinion, been wrongly acquitted
cannot affect the conviction in other cases ".
In that case although the High Court had
acquitted three accused persons of an offence under s. 302 read (1)  2
K.B. 339. (2)  2 S.C.R. 881.
(3)  S.C.R. 145.
7 with s. 149, Indian Penal Code, yet as in
the opinion of this Court the acquittal was wrong s. 149 was held applicable in
the case of four others who had been convicted by the High Court of s. 302 read
with s. 149. The decision in that case must be circumscribed to the peculiar
circumstances of that case. In the present case the person who demanded the
illegal gratification for allowing the carts to proceed was Khalilur Rahman who
had the authority to do or not to do a particular act and all that the
appellant is alleged to have done was to receive the money at the instance of
Khalilur Rahman for counting and then paid the money to him. It is not the
prosecution case that the appellant abetted the offence by instigating Khalilur
Rahman to demand the illegal ratification; nor has the prosecution set up or
proved a case of conspiracy between the appellant and Khalilur Rahman for the
commission of an offence under s. 161. On the findings of the Court the
appellant received the money for and on behalf of Khalilur Rahman and the
evidence of the complainant is that Khalilur Rahman had asked him to hand over
the money to the appellant. If Khalilur Rahman is acquitted and therefore the
offence under s. 161 is held not to have been committed, then in this case no
question of intentionally aiding by any act or omission the commission of the
offence arises. It may be as counsel for the respondent contended that the
acquittal of Khalilur Rahman is wrong and it appears and we say so with respect
that the findings of the High Court are inconsistent but as the matter of
Khalilur Rahman is not before us by way of appeal against acquittal we do not
express any opinion on that question.
We are of the opinion that on the facts found
and circumstances established in this case and as Khalilur Rahman has been
acquitted the appellant's conviction cannot be upheld. We therefore allow this
appeal and set aside the order of conviction. The bail bonds shall also stand