Richardson, J.
1. The two appellants before us, Srilal Chamaria and Mimraj Benia, have been convicted by the 3rd Presidency Magistrate of Calcutta on charges framed under Sections 161 and 109 of the Penal Code. The appellant Srilal has been sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs. 1,000 or in default to suffer a further period of two months' rigorous imprisonment. The appellant Mimraj has been sentenced to pay a fine of Rs. 1,000 or in default to suffer rigorous imprisonment for two months. The appeals are preferred from these convictions and sentences.
2. At the trial charges were also framed against the appellants on the footing that they respectively attempted and abetted an attempt to commit an offence punishable under Section 161 read with Section 109 and were, therefore, punishable under Section 511 of the Code or in the case of Mimarj under that section read with Section 109. These charges, however, were not pressed by the prosecution and so far as they are concerned, the learned Magistrate must be taken to have recorded a verdict of not guilty.
3. I am not going to enter upon an elaborate review of the facts in detail. The facts are fully stated in the judgment of the Magistrarte, Mr. K. B. Das Gupta, and, without adopting every word of his reasoning, I agree on essential points with the conclusions at which he has arrived in regard to the appellant Srilal.
4. The outstanding feature of the case is that on the ' night of the 5th February a sum of Rs. 2,500 was admittedly handed over by Srilal to the witness Karuna Bhusan Banerjee, the Bench Clerk and: Interpreter of the Court of the 5th Presidency Magistrate, Mr. Asutosh Mookerjee. A case was at the time pending before Mr. Mookerjee, in which the complainant was a Marwari named Ram Gopal Khemkar and the accused was a wealthy Marwari merchant named Bilas. Roy Chowdhuri. Ram Gopal had been the tenant of a room in a building belonging to Bilas Roy. It is said that he was adjudicated insolvent, looked up the room and paid no rent for two months. Bilas Roy had the room opened and certain things were removed therefrom. The complaint preferred i by Ram Gopal was in respect of that entry. I am not dealing with the merits. The hearing began on the 3rd January and by the 13th January a number of witnesses for the prosecution had been examined. On the 31st January charges were framed against Bilas Roy under Sections 448, 453 and 380 of the Penal Code. It is clear that the case was fought With great personal animosity on both sides, though, after the present case had been instituted against the appellants, a settlement seems to have been arrived at between the parties and Bilas Roy was acquitted on the 22nd February.
5. Now, whether Srilal is the Gomastha or the Munib Gomastha or partner of Bilas Roy, there can be no doubt that in his dealings with Karuna he was acting on Bilas Roy's behalf and that he intended that the money paid should be made over by Karuna to the Magistrate, Mr. Mookerjee, as a bribe to secure the acquittal of Bilas Roy and something more, which I shall presently mention.
6. On the facts the whole controversy turns on the question whether the suggestion that the Magistrate should be bribed came originally from Srilal or from Karuna.
7. According to the case for the prosecution Srilal approached Karuna first on the 13th January, visiting him oh that day and on a number of subsequent occasions at his house. He pressed his proposals and Karuna unsuccessfully tried to put him off. On the 28th January, Karura laid the facts before the Chief Presidency Magistrate, Mr. Swinhoe. Thereafter Karuna played the part of a Police spy, appearing to fall in with the proposals made to him, and finally on the night of the 5th February accepted from Srilal the sum of Rs. 2,500 already mentioned, in the presence of Inspector Mohendranath Mukerjee and two other witnesses, Benode Behari Bose and Narendranath Seal, who were all concealed behind a curtain. The money was seized then and there by the Inspector. The two appellants begged for mercy. The Inspector expressed his in ability to hush up the matter and the appellants after giving their names and addresses went away.
8. As to the 2nd appellant, I should mention that during the first part of the conversation on this occasion between Srilal and Karuna, the former was unaccompanied. When he made his terms with Karuna he went out to get the money. He returned after a short interval with the 2nd appellant, who carried the money in. The money was in notes made up in small packets. The 2nd appellant handed the packets to Srilal, who in his turn handed them to Karuna and the latter counted them and found the total correct. While it cannot be said, therefore, that there is no evidence against the 2nd appellant, the case against him is not a strong one and as we propose to acquit him, I shall from this point confine myself to the case against Srilal.
9. The case for the prosecution was supported in the witness box by Karuna, Mr. Swinhoe, the Inspector and the two other witnesses I have named. Karuna was subjected by Sir Binode Matter to a long and searching cross-examination extending, over six days. I am not saying for a moment that the cross-examination, though exhaustive, was unduly protracted. Karuna was the principal witness for the prosecution and sitting, as we do, in a Court of Appeal with a paper record before us, it can only be a source of satisfaction to us to know that his account of the whole matter was thoroughly tested. Some of the questions put to the witness were no doubt argumentative questions. Some of the answers made by him may suggest the doubts and difficulties which were pressed upon us by learned Counsel. But' on the whole the result of the cross-examination seems to me to have ' left Karuna's evidence unshaken on those points which can properly be regarded as material. That view is confirmed in my mind by ' the corroboration which Karuna's story receives from witnesses for the prosecution who have no reason for not speaking the truth and whose evidence, in my opinion, is beyond suspicion. '
10. The evidence for the prosecution was such that some explanation at least was called for. The case for the defence was first put to Karuna in cross-examination on the 20th March, On the 26th March, after all the prosecution witnesses had been examined, Srilal filed a written statement and to support that statement several witnesses were examined, The case, as it is put for Srilal, is that Karuna came to his office at 2, Royal Exchange Place, on the 4th January and saw and spoke to him a number of times subsequently both there and elsewhere, as, for instance, in the neighbourhood of the Court-house and in the Court-room itself. The gist of what Kuruna finally said was that he was also in treaty with the other side, Ram Gopal, and that Bilas Roy, a wealthy man, would secure results very satisfactory to himself by paying a bribe to the Magistrate, while if no bribe were paid he might find himself in Jail. The witnesses Joy Doyal Kasera, Mr. Griffiths and Mukha Lall were called to speak to seeing Karuna at 2, Royal Exchange Place. I can only say that I am not more favourably impressed than was the Magistrate by the evidence of those witnesses. To my mind their evidence adds not the slightest weight to Srilal's written statement. That statement, in other words, stands uncorroborated by any evidence on which I can place any reliance.
11. On the evidence, therefore, on this record, without indulging in more speculation as to what may or may not have happened, my finding is, that the first advances were made by Srilal to Karuna.
12. But even if I accepted Srilal's statement, so far as it is at all possible to accept it, that is, to the extent of believing that the suggestion that a bribe should be offered to the Magistrate came first from Karuna, I do not think the result would be different in law. I shall coma to that point later. Meanwhile, I make the following further observations on the facts generally.
13. If Karuna in the first instance tempted Srilal, Srilal very readily succumbed to the temptation. I refuse to believe that either Bilas Roy or Srilal was in the result influenced by any threats' conveyed by Karuna. In Srilal's statement the word threat is not used until near the end. I say that I paid the money on account of Karuna's threat.' The reference appears previously in the statement:
On the 31st (that is after Karuna's interview with Mr. Swinhoe on the 28th, there is nothing said as to any express threat before the 31st), he (Karuna) came to my office at Royal Exchange Place and told me, 'now the, charges have been framed and recognizance bonds have been taken', and I must realize it was a case for Jail.... He assured me that if I did pay, not only would the case be dismissed and declared false but a satiation would be grafted for the prosecution of Earn Gopal, and in case I did not pay, he would close with the other side and Bilas Babu would be sent to Jail.' On the evidence I do not believe that Karuna went to v. Royal Exchange Place on the 31st or on any other day. I cannot, therefore, accept it that the particular threat of which the statement speaks was used.
14. Mr. Langford James, who was called for the defence, tells us that he was consulted by Srilal before the 31st January and gave the opinion that the case against Bilas Roy was 'demonstrably false.'
15. It seems improbable that after that, though I do not forget that the charges were not framed till the 31st January, Marwari merchants like Bilas Roy and Srilal would be frightened by anything that Karuna might say or might have said, In my opinion, they ware out to secure something more than the mere acquittal of Bilas Roy. They wanted the case against him to be declared false and they wanted sanction for the prosecution of Ram Gopal for bringing a false case.
16. Turn to the culminating incident of the 5th February. The conversation between Karuna and Srilal on that occasion was overheard. We have the evidence of the Inspector, Binode and Narendra. There is nothing to show that Srilal was acting under any sort of coercion or threat. He went voluntarily to Karuna's house. There is nothing to suggest that having entered the house he found himself in a strange place. There is nothing in what was said and done on that occasion inconsistent with his having visited the house before. He voluntarily sought the aid and cooperation of Karuna for the purpose of procuring the acceptance of a bribe by the Magistrate. He wanted to assure himself that the money which he took to Karuna would reach the hands of the Magistrate and he stipulated for the case against Bilas Roy being declared false and for sanction to prosecute Ram Gopal. This seems to me too clear for words and it all finds a certain amount of corroboration in Srilal's own statement.
17. There is one point to which I have not yet referred and I will say a word about it. According to both stories the amount of the bribe originally mentioned was Rs. 10,000, On the 28th January, Karuna seems to have told Mr. Swinhoe that Srilal had reduced his offer from Rs. 10,000 to Rs. 5,00o. Srilal says that before the 31st Karuna expressed himself willing to accept 'even Rs. 5000.' It is said that is more in accordance with the general case for the defence than with the general case for the prosecution. I do not think, however, that Karuna's version is necessarily inconsistent with the main trend of his story. Srilal may have begun his bidding with an offer of Rs. 10,000 but he would not spend more than what was necessary. If Karuna showed any signs of yielding, Srilal might conclude that a smaller sum. would suffice. Srilal may also have been influenced by the legal advice which he had1 received. If he was satisfied that Bilas Roy would in any case be acquitted, he was paying only for the sanction to prosecute. He may again have thought that Karuna and the Magistrate would deem it safer to accept the smaller sum than the larger. The larger the sum the more likely it. would be that circumstances might afterwards arise in which the possession of so much money might lead to inquiry and detection. Karuna says that previously Srilal had offered ornaments or ingots of gold instead of money.
18. On the 5th February the total amount agreed upon was Rs. 5,000, Rs. 2,500 was paid at the time and the balance was to be paid later.
19. Our attention was invited to a passage in Note E to the Penal Code as drafted by the commission over which Macaulay pre sided. The passage runs:
There are countries...where men give bribes to Magistrates from exactly the same feeling which leads them to give their purses to robbers or to pay ransom to pirates; where men give bribes because no man can, without a bribe, obtain common justice.' The phraseology is picturesque enough to be Macaulay's own and the statement may represent the state of things which existed in 1837 or even in 1846 (vide paragraph 88 of the second report of the Indian Law Commissioners). But it does not represent the state of things now.
20. Bilas Roy and Srilal are not unsophisticated villagers. They are merchants living in Calcutta in the 20th century, with plenty of money behind them, having ready access to the best legal advice available. They would not put their hands in their pockets at the mere nod of a Bench Cleric. In the present case, who was most likely to act the part of tempter? The rich man or the poor man? The question seems to me to answer itself. Macaulay's phrases do not help Srilal on the facts and as to the law, the commentaries of the various Indian Law Commissions are not evidence, however interesting they may be historically. We are bound to construe the Penal Code in the form in which it was finally passed by the Legislature in 1860, with such amendments as may have been subsequently made by the same authority.
21. On the facts, in my opinion, it is abundantly clear that Srilal's conduct on the 5th February was entirely voluntary. In my opinion on that occasion he instigated Karuna to instigate the ' Magistrate to accept the bribe which he himself delivered to Karuna. Such conduct is shameful and iniquitous in the highest degree. It deserves the strongest condemnation at the hands of every respectable man in the country, every man who feels that it is essential to the welfare of society that justice should be pure and should not be defiled by corruption.
22. But we are not concerned with the moral quality of Srilal's actions. We are only concerned with their criminal quality. Nothing is a criminal offence which is not made so by the law. If Srilal has committed no offence within the meaning of the Penal Code, be is entitled to an acquittal.* The question before us is even narrower. We do not propose to consider whether Srilal might have been charged and convicted of some offence other than that with which he has been charged' and of which he has been convicted. We confine ourselves to the precise charge on which the conviction rests, to which alone the argument at the Bar has been directed. The question is whether on that charge given the facts I have found, the conviction can or cannot be supported in law.
23. What is charged is that by instigating Karuna to instigate the Magistrate to accept a bribe from Srilal, Srilal committed an offence under Sections 161 and 109 read with Section 116 of the Penal Code. The reference to Section 109 is superfluous and may be disregarded.
24. Section 161 deals with the acceptance by a public servant of an illegal gratification or bribe 'as a motive or reward for doing or forbearing to do any official act, or for allowing or forbearing to show, in the exercise of his official functions, favour to any person.' No question arises upon that section. The money given to Karuna. was to be given to the Magistrate as a bribe.
25. Under the Code the person who offers a bribe to a public servant is treated as the abettor of the offence created by Section 161. If the bribe is accepted, the public servant is punishable under Section 161 and the giver of the bribe under that section read with Section 109. The case is put in illustration, (a) of the latter section. If the bribe is not accepted, the public servant commits no offence, but the person who offers the bribe is still punishable under Section 161 read with Section 116. The case is again put in illustration (a) of Section 116. In both cases the offence committed by the person who offers the bribe is, according to the scheme of the Code, an abetment of the offence described in Section 161, which may for brevity be called the offence of bribery.
26. In the present case, no bribe was actually offered to the Magistrate. The bribe was. given' to Karuna for the Magistrate but; was arrested in his hands. The question is whether in these circumstances Srilal committed abetment of bribery. The answer to it depends on the true construction of Sections 107, 108, 109 and 116 of the Code.
27. It is argued on his behalf that these provisions do not make it punishable for one man to instigate another to instigate the commission of bribery, unless the second abetment is actually committed and the public servant is actually instigated to accept the bribe.
28. Now, Section 107 defines generally what is meant by the abetment of a thing. 'A person abets the doing of a thing who--
First, instigates any person to do that thing; or,
Secondly., engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly, intentionally aids, by an act or illegal omission, the doing of that thing.
29. The explanations appended to the section need not Section 108 defines what is meant by abetting an offence and for the present purpose an offence is a thing made punishable by the Code. (section 40). It is provided in Section 108 that 'a person abets an offence who abets either the commission of an offence or the commission of an act which would be an offence if committed by a person capable by law of committing an offence.' It will be observed that what is abetted is in Section 107 'the doing of a thing' and in Section 108 'an offence' or 'an act'. Abetment as an offence consists of abetting some offence made punishable by the Code.
30. Section 108 has five explanations, of which the second and fourth are as follows:
Explanation 2.--To constitute the offence of abetment, it is not necessary that the act abetted should be committed, or that' the effect requisite to constitute the offence should be caused.'
'Explanation 4.--The abetment of an offence being an offence, the abetment of such an abetment is also an offence.
31. The question before us really turns on Explanation 4, but that Explanation must be construed with the rest of Section 109 and with Sections 109 and 116. I leave out Section 115, which deals with a special case and is on the same lines as Section 116.
32. Sections 100 and 116 prescribe the punishment for the offence created by or described in Section 108, in the two cases (l) when the act abetted is committed in consequence of the abetment and (2) when the offence abetted is punishable with imprisonment and is not committed. The expression 'act abetted ' in Section 109 can only mean 'offence abetted', meaning the principal offence. No one can be punished under Section 109 unless the offence or act abetted within the meaning of Section 108 is actually committed. The word ' act' is used in Section 109 instead of 'offence' as a more general word with reference to' the first clause of Section 103.
33. Explanation 4, as the learned Advocate-General suggested, may be read as follows: 'When the abetment of an offence is an offence, the aliment of such an abetment is also an offence.' The abetment of an offence is not generally an offence, if the offence abetted is not committed and is not punishable with imprisonment (section 110). In other cases the abetment of an abetment of an offence is expressly declared to be an offence, that is, a thing made punishable by the Code. The words ' when the abetment of an offence is one offence' do not mean 'when an abetment of an offence is actually committed.' They mean 'when the abetment of an offence is by definition or description an offence under the Code,' that is, when the abetment of an offence is punishable under Section 109 or Section 116 or some other provision in the Code.
34. But it is argued--and at first I was somewhat impressed by Mr. Das's argument on this point--that though the Code declares in the plainest terms that the abetment of an abetment is under certain conditions an offence, the Code provides no punishment for the abetment of an abetment. It is conceivable that the Legislature were guilty of this omission, but it is not likely. The true view seems to be that reading' Explanation 4 with the rest of Section 108 and with Sections 109 and 116, what is meant is that the abetment of an abetment of an offence is merely one form of the offence made punishable by these sections, namely, abetment of what may be called the principal offence, that is, the offence aimed at by the first abettor.
35. Take the illustration to Explanation 4.
36. 'A instigates B to instigate 0 to murder Z.' If B instigates C and Z is murdered there is no difficulty. It is not disputed that A is punishable, but how is he punishable except under Section 109 for abetment of murder? If B instigates C but C refuses to murder Z, it is similarly not disputed that A is punishable, but he can only be punished under Section 115, again for abetment of murder.
37. Then comes the case which approaches the present case, B refuses to instigate C and Z is not murdered. A is still guilty of abetment of murder just as he was before. A's criminality is under the Code the same in all three oases. Explanation 2 of Section 103 applies when B does not instigate C just as much as when C does not murder Z.
38. The result would be the same, however long the chain may be between A and Z.
39. In this view the abetment of an abetment of an offence is no more and no less than the abetment of that offence. If the second abetment is not committed, Explanation 2 applies. This seems to me the only intelligible way of interpreting the language used. The words mean--when the abetment of an offence is punishable under Section 109 or under Section 116, the abetment of such an abetment is also punishable under one or other of those sections, as the case may be.
40. In the present case A has instigated B to give C a bribe offered by A. If the Code made the giving or offering a bribe an offence under Section 161 in the same way as the section makes the acceptance of a bribe an offence, there would be no difficulty at all. We should have heard nothing of abetment of abetment. It appears to me to make no difference that the giving or offering a bride is punishable under the Code, not under Section 161 but as an abetment under Section 109 or Section 116, as the case may be. The offering a bribe is an offence. That offence was clearly abetted and the abetment amounts to an act punishable under the Code as an abetment of bribery or the acceptance of a bribe.
41. The argument that the Code treats the person abetted as the agent of the abettor is without foundation so far as the Penal Code is concerned. The Code, as I have pointed out, speaks of abetting an act or an offence. Under the Code if A orders B to murder Z and afterwards recalls the order but B nevertheless murders Z, A would still be guilty of abetment of murder. The law in England is apparently different. (Stephen's Digest of the Criminal Law, 42). In fact the cognate topics are dealt with in English Law on lines so different that the English cases which were referred to in the argument appear to me to be of little or no assistance and I do not propose, to deal with them. I feel that' I might easily be misled by false analogies.
42. As to the Indian authorities there seems to be only one case in the Indian Law Reports which is in point. Empress v. Troylukho Natk Chowdhry 4 C. 366 : 3 C.L.R. 525; Ind. Dec. (n.s.) 232. The case when properly read supports the view I have expressed, but the circumstance that there was no argument for the prisoner detracts from it's weight as an authority. As put in the judgment, it is the case of an abetment of an abetment and it is cited by Mayne in support of the proposition that it makes no difference in the guilt of the abettor if the agent 'falls in with the plans of the abettor, knowing his criminal purpose, but intending to cause its detection' (2nd Edition, page 46S). The 'agent' was a man named Cummins. The prisoner as Abettor instigated Cummins to aid the prisoner in stealing the goods of Cummins' master. Cummins informed his master and laid a trap for the prisoner. So it might be said in the present case: Srilal instigated Karuna to aid Srilal in bribing the Magistrate.
43. I have hitherto dealt with the question of law on the footing on which it was principally argued, namely, that the suggestion that the Magistrate should be 'bribed came from Srilal. But I have said above that, if the other view be taken, namely, that Karuna first approached Srilal on the subject, the fact, in my opinion, makes no difference in law. Srilal, as I have found, was a free agent, free to give or refuse a bribe, free to act according to the disposition of his own mind. It is indisputable that the bribe was to come from Srilal, not from Karuna. It is not as if Karuna, for reasons of his own, had determined to bribe the Magistrate and had then been incited by Srilal to pay the bribe out of his (Karuna's) own pocket. The resemblance is not to the case where A instigates B to murder Z, B having already made up his mind to commit the murder. The resemblance is to the case where A, whether he or B first suggested the murder to the other, comes to B at the last minute and gives B, who has no weapon, a loaded pistol for the purpose in view. Karuna could not have moved a step unless money were supplied by Srilal. It was Srilal who eventually did supply the money. The bribe, when delivered, would not have been Karuna's bribe, it would still have been Srilal's bribe delivered through Karuna's hands. Whatever may have previously happened, however much either before on after the 28th January, Karuna may have led Srilal on, it still remains that in the final act, about the facts of which there is really no dispute, Srilal, when he handed over the Rs. 2,500 to Karuna, committed a further, separate and distinct act of, instigation for which the law makes him punishable as for an abetment of bribery. In this view the overt act of supplying the money, Srilal's own act, is given the prominence which it deserves.
44. For the reasons indicated I would dismiss Srilal's appeal.
45. As to Mimraj, we set aside his conviction. The fine imposed upon him must, if paid, be refunded.
Shamsul Huda, J.
46. The appellant Srilal Chamaria and Mimraj Benia were tried together by the 3rd Presidency Magistrate of Calcutta. Srilal has been convicted of an offence under Sections 161 and 109, read with Section 116, Indian Penal Code, and sentenced to three months' rigorous imprisonment and a fine of Rs. 1,000. Mimraj, has been convicted of having abetted the offence committed by Srilal and sentenced to a fine of Rs. 1,000 only. Both of them have appealed. There were other charges framed against them but these were not pressed. before the Magistrate and I am not concerned with them.
47. The story told by the prosecution is to the following effect: On the complaint of one Ram Gopal, Khemkar, Bilas Roy Chowdhury was placed on his trial on charges of Criminal trespass, house breaking and theft before Mr. Asutosh Mookerjee, who was then the 5th Presidency Magistrate for the town of Calcutta. The first date of hearing was the 3rd of January 1918, and the trial lasted till the 22nd of February 1918, when the complainant and the accused having settled their differences, the Court acquitted the accused under Section 258 of the Criminal Procedure Code. It is of some importance in this case to bear in mind the nature of the complaint against Bilas Roy Chowdhury and the defence set up by him in that case, as the gravity or otherwise of the charge against Bilas Roy must have, to a very large extent, influenced the conduct of Srilal. It appears that the complainant Ram Gopal Khemkar was for a long time carrying on business in a room at 203/1, Harrison Road. There was a number of other shops in the same premises. In the meantime Bilas Roy became the lessee of the house and the complainant thus became one of his subtenants. Bilas Roy gave notice to the complainant on the 4th of June 1917 to vacate the room on or before 15th Asarh (Sudi) Sambat 1974 (4th July 1917), and on failure to comply threatened to charge him rent at Rs. 200 a month, complainant having refused a proposal to increase his rent. Complainant, however, did not vacate the room. There were insolvency proceedings against the complainant at the instance of some of his creditors and on the 24th of August 1917 he was adjudicated an insolvent, and on the same day the Official Assignee seized some of the piece goods in the shop and other things found there. Complainant's case was that he had resumed carrying on his business, from the 24th of September 1917 with the permission of the Court, that, as usual, he closed his shop in the evening on the 4th of November 1917 and went to his house, which was near by, after locking up the door. At 10 or 10.30 a. m. on the 5th of November 1917 he was informed by his Darwan that Bilas Roy had broken the pad looks of his shop and carried off all the goods' in it including his account books. It appears that Bilas Roy's Gomasta had filed an application in the Court of the 2nd Presidency Magistrate on the 3rd of November 1917 against Ram Gopal Khemkar, stating that Ram Gopal was his tenant paying him rent at Rs. 71-9-0 per month, that he had become an insolvent and had removed all the goods from the room and had kept the room under look and key for more than two months and had not paid his rent, and he prayed that he may be allowed to open the room in the presence of respectable persons and make a list of articles, if any be found there. The Magistrate examined the complainant and made the order 'file.' Apparently, - after this order passed by the Magistrate, Bilas Roy opened the shop and removed what was there.
48. The defence of Bilas Roy to the charge was that as landlord he had a right to do what he did, that the goods of the complainant in his shop had vested in the Official Assignee and the complainant could not, therefore, complain of the action taken by Bilas Roy. It was also stated by Bilas Roy in one of his applications to this Court that there was nothing in the shop except a, chisel, a hammer, a few gunnies and some waste papers; all the articles in the shop having been previously removed by the Official Assignee. When these proceedings were going on between Ram Gopal and Bilas Roy, the prosecution case is that on the 13th of January 1918 Srilal Chamaria, who looked after the business of Bilas Roy and was either his Gomasta or partner, came to the house of Karuna Bhusan Banerjee, the Bench Clerk of the 5th Presidency Magistrate, and offered to pay the Magistrate Rs. 10,000 on behalf of Bilas Roy as a bribe for acquitting Bilas Roy. Karuna had in the beginning of the interview told Srilal that he would try but afterwards declined to make such an offer to the Magistrate, whereupon Srilal left. Srilal, renewed his visits from time to time, but Karuna remained abdurate and even told him not to come to his house. On the 24th of January 1918 Srilal offered ' Rs. 1,500 as reward to Karuna. A day or two later he came again and Karuna'e attitude did not change. On the 28th of January 1918, Karuna seems to have thought that his position was being compromised, as it appears from his evidence that he had some suspicion that he was being watched by Ram Gopal's men, that be felt uneasy at the thought that Srilal's constant visits in a motor oar may have attracted the attention of his neighbours and that different men that accompanied Srilal at different time's might also circulate the fact. Accordingly, for his own protection he went to the Chief Presidency Magistrate and told him what had happened. The Magistrate told him to 'play' with Srilal and himself communicated with the Police. Srilal came again, the next day and offered ornaments worth Rs. 5,000, if money was not acceptable. After the interview with the Chief Presidency Magistrate, Karuna's attitude to wards Srilal changed and he was holding out false hopes to Srilal and it was ultimately arranged that Mohendra Nath Mukerjee, Inspector of C. I. D., with two respectable residents of the locality, would remain in hiding in Karuna's house and that Srilal would be invited to come and make the payment. On the 5th of February 1918, Karuna sent word to Srilal to come to his house between 8 and 9 p. m. with the money. He came at about 7-15 p. m., had a talk with Karuna, then went out for a while and then came back with Mimraj. There were currency notes with Mimraj and 25 packets, each consisting of currency notes of Rs. 10 and 5 to the value of Rs. 100, were handed to Karuna and as soon as this was done, Mohendra and his companions, who were in hiding and were hearing what was going on between Srilal and Karuna, came out of their hiding place and seized the packets of notes, which were afterwards produced before the Chief Presidency Magistrate. From the conversation that was overheard by Mohendra Nath Mukerjee the arrangement between Srilal and Karuna seems to have been this: that Srilal was to pay Rs. 2,500 then and the remaining Rs. 2,500 he was to pay the next Saturday to the Magistrate himself when Karuna would introduce him to the Magistrate. Mohendra and the witnesses as well as Karuna also state that Srilal not only insisted on an acquittal for Bilas Roy but also insisted on the Magistrate sanctioning the prosecution of Ram Gopai Khemkar for bringing a false case. These are the salient facts of the case as alleged by the prosecution.
49. It may be convenient to dispose of the case of Mimraj first. It would be seen from the facts I have stated above, that evidence against him is insufficient to support his conviction. Agreeing with my learned brother I direct that he be acquitted.
50. I shall now deal with the case of Srilal. He admits that on the 5th of February he paid Rs. 2,500 to Karuna, but denies that the proposal to bribe the Magistrate emanated from him. His defence, which is contained in his written statement filed before the trying Magistrate on 26th March 1918, is to the effect that it was Karnna who instigated him to bribe the Magistrate, that Karuna, when the case was going on, saw him several times in his place of business in the Royal Exchange and in the precincts of the Court, proposed that he should pay a bribe to the Magistrate and get rid of the case pending against Bilas Roy, that he was unwilling to do so at first but afterwards yielded, being threatened that if he did not pay, Karuna will close with the other side who were also proposing to pay a bribe to the Magistrate and Bilas Roy would be sent to Jail, but on the other hand if he agreed to pay, not only the case against Bilas Roy will be dismissed but also sanction will be given for prosecution of the complainant under Section 211, Indian Penal Code.
51. The trying Magistrate has accepted the story as told by the prosecution and has disbelieved the defence.
52. In support of the appeal by the accused persons, it has been contended before us that the story told for the prosecution is inconsistent with the, probabilities of the case and the true version is that given by the defence. The defence, I may state, examined some witnesses mainly to prove Karuna's visits to Srilal at the Royal-Exchange. Karuna denies having ever gone there. An attempt has been made on behalf of the appellants to show that Karana had been punished for misappropriating money out of fine realised from a. convicted person and is not a man of the high moral character which he claims to be, It appears that a earn of Rs. 3 had. actually been misappropriated and the question was, who had misappropriated the money, the Beach Clerk Karuna or Amarnath Bose the cashier. The Chief Presidency Magistrate believed the cashier and punished Karuna but subsequently Amarnath Bose was, within a few months of this incident, tried and convicted of criminal breach of trust to the extent of Rs. 1,000 and thereafter Karuna approached the Chief Presidency Magistrate for reconsideration of his previous decision and the Chief Presidency Magistrate rescinded his previous order and restored Karuna to his former grade and post. I do not think there, is sufficient., evidence in the record upon which I could say that Karuna had misappropriated this amount. I am not, however, prepared to believe Karuna's story so far as it is not supported by any other evidence, and although I do not consider the defence evidence to be satisfactory, there are circumstances in the case which make me hesitate to accept Karuna's story that up to the 28th of March he had spurned Srilal's proposals with contempt, that before the 28th of March he had held out no hopes and had given no encouragement to Srilal.
53. That Srilal would at the very beginning come out with a proposal to Pay Rs. 10,000 and then reduce the amount to Rs. 5,000 seems to be only consistent with the amount of bribe being ' a matter of negotiation between Karuna and Srilal, Karuna asking for a larger amount and Srilal only agreeing to pay a smaller sum. This conduct of Srilal is wholly inconsistent with the prosecution story that all the importunity and solicitation was on the side of Srilal and lends support to the story of the defence. It is proved that on the 5th of February Srilal wanted from Karuna an assurance that the money which he was going to pay would ultimately reach the Magistrate. This was a reflection on Karuna and was an insult to him. If all the importunity was on the side of Srilal, would he dare to offend Karuna in this way? Srilal's attitude on the 5th of February may, however, be explained by the fact that Karuna during the last few days before that date had pretended that he was anxious to close the bargain with Srilal, and it is a possible explanation that Srilal took advantage of Karuna's pretended anxiety to close with him and did not hesitate to dictate his own terms, tut reduction of the offer from Rs. 10,000 to Rs. 5,000 cannot be so easily explained. It is not clear from Karuna's evidence on what date the offer was reduced from Rs. 10,000 to Rs. 5,000, and I feel a strong suspicion that Karuna felt uneasy after he spoke of this reduction as having taken place before the 28th February and then changed his story and added that this reduction was made after that date i. e., after Karuna had communicated with the Chief Presidency Magistrate. This was in examination-in-chief. Mr. Swinhoe's evidence suggests that the reduction from Rs. 10,000 to Rs. 5,000 had been made before Karuna saw the witness on the 28th of January. That Karuna told an untruth when he changed his own story is clear from his statement contained in Exhibit I. If this be so, I consider Karuna to be unreliable and this conclusion is based largely on the broad facts of this case and not on anything said by him under the stress of cross-examination.
54. If the reduction was made before the 28th of January, it must have been on the 25th or the 26th at the latest, as Srilal did not see Karuna again before the 29th Apparently, the position of Bilas Roy in relation to the proceedings taken against him was less favourable on the 26th than it was on the 13th of January, when Srilal first saw Karuna. The only explanation that can be suggested is that Srilal had become somewhat confident of success by reason of the advice given by Mr. Langford James. This advice, however, appears to have been given about the 28th or the 29th of January and could not have, therefore, influenced Srilal if he had offered the reduced amount on the 25th or 26th.
55. It is also inconsistent with the prosection story that although Karuna felt indignant at the offer of a bribe, he did not forthwith tell anything about it to the 5th Presidency Magistrate, to whose Bench he was attached and whom he met every day in Court. Karuna has given no satisfactory explanation of this omission. It appears from the evidence of the Magistrate that he came to know from Karuna for the first time on the 6th of February of the attempt made to bribe him. Karuna's evidence does not also explain how Srilal, having agreed to pay Rs. 5,000, came on the 5th prepared to pay only Rs. 2,500 that day, agreeing to pay the rest later on. It is also significant that when making the payment Srilal for the first time makes a new condition of an important nature about sanction to prosecute Ram Gopal. From the tenor of the conversation overheard by Mohendra and from the evidence of Mr. Swinhoe it would seem that this condition was not wholly new but had been previously discussed between Karuna and Srilal but Karuna has chosen to withhold the information.
56. It has also been suggested on behalf of the defence that there is no explanation why the detection of Srilal did not take place on the 3rd of Febraury or at any rate on the 4th. It appears from Mohendra's evidence that he was ready on the 3rd as well as on the 4th to go to Karuna's house. Karuna's explanation that he was afraid, if he tried to secure witnesses, the report might reach the ears of Srilal does not appear to be satisfactory and the defence suggestion that Srilal could not be easily induced to part with his money is not without force. Karuna's conduct in continuing a pretended attitude of friendliness towards Srilal when Mohendra detected him in the act of paying money to Karuna is also suspicions and explains why Srilal did not then and there expose Karuna before the Police Officer. The impression produced in Srilal's mind was that both he and Karuna were taken by surprise by the Police Officer, and not that Karuna had betrayed him.
57. My conclusions, therefore, are that the truth of the defence story has not been negatived and it has not been established beyond reasonable doubt that the instigation first came from Srilal, and I am not prepared to say that the suggestion to pay a bribe to the Magistrate did not first emanate from Karuna. As I have said before, it is possible that immediately before the 28th of January something had happened which frightened Karuna and he went to the Magistrate to clear his character. If he was from the very beginning indignant at Srilal having made such a daring proposal to him, it is not likely that Srilal would have persisted in visiting Karuna about 6 times unsuccessfully. It is noticeable that although Karuna's present story is that Srilal had visited him 6 times before the 2Sth January to the Chief Presidency Magistrate he mentioned only two such visits. If Srilal came to Karuna's house as often as it is alleged in motor car, the absence of any of Karuna's neighbours from the witness box to prove such visits would also throw suspicion on the story. Without, therefore being able to say that the defence case has been fully established, I would say that upon the evidence I am not satisfied that the story of the prosecution except as regards the incidents of the 5th of February has been established beyond reasonable doubt. I however, see no reason to disbelieve the story of the prosecution relating to the occurrence of the 5th of February as disclosed in the evidence of Mohendra Nath Mookerjee, Benode Behary Basu and Norendra-Nath Seal. It appears from the evidence of Mohendra Nath Mookerjee that on the 5th of February Srilal came to the house of Karuna at about 7-30 P. m. and called him from outside. Karuna, who was then in the room which is his baita-khana the doors of which were bolted from inside, asked who he was and a voice answered 'Manmatha'. Then Karuna went out, saw the visitor and came back. Karuna then opened the door of his room and Srilal came in and. had a talk with Karuna. He told Karuna that he was going to give Rs. 2,500 then and on being satisfied that the Magistrate had got the money after an interview with him on the following Saturday, he would pay the balance of Rs. 2,500. His condition was that the case before the 5th Magistrate was to be declared false and the prosecution party were to be charged under Section 211. Then Srilal went out saying that he was going to fetch the money. He then returned with Mimraj. Mimraj handed a bundle of papers to Srilal, out of which Srilal took out 25 packets of Government currency notes and gave them to Karuna, Karuna counted the contents of each packet and as soon as the counting wag finished, Mohendra Babu and his companions came into the room from behind the screen and snatched the bundle from Karuna. Srilal and his companion beseeched the Inspector to hash up the matter. They took off their pugris and placed them at Mohendra's feet and wept. The Inspector then prepared a search list which was signed by his companions and Karuna,
58. The question is whether this evidence, if believed, is sufficient for a conviction. It is urged on behalf of the appellants that mere offer of a bribe is not an offence unless the act amounts to abetment of an act of receiving a bribe by a public servant under Section 161, Indian Penal Code. If the defence story is true and Srilal did net instigate Karuna to pay money to the Magistrate but on the other hand it was Karuna who was trying to induce Srilal to pay a bribe to the Magistrate, threatening him with injury if he did not comply, Srilal would not be guilty of any offence. As I have said before, I am not satisfied that the incitement in the first instance came from Srilal arid upon this view of the case I hold that the instigation charged against Srilal has not been established. It is not unusual in this country for ministerial officers to take bribe in the name of their superiors. There is some evidence in the record to show that the atmosphere of the Police Court is not wholly pure (P. W. No. 6, page 25, Part I).
59. It has been further contended that even upon the facts as alleged by the prosecution, on the 5th and for some days immediately preceding that date, Karuna was inciting Srilal to pay the money with the ultimate object of catching him into a trap according to instructions given to him by the Chief Presidency Magistrate. Upon the charge as framed and on which Srilal has been convicted the question to. be answered is, whether on the 5th February Srilal was instigating Karuna to instigate the 5th Presidency Magistrate to accept a bribe; my answer is in the negative. Admittedly on that day Karuna had himself sent for Srilal and had asked him to come with money to bribe the Magistrate. The ~ incitement or instigation came from Karuna, and not from Srilal. The case is different from that of a Police spy who procures the commission of an offence for the purpose of detecting it. In those cases the instigation by the spy does not affect the offence committed at his instigation. Here the question being whether Srilal instigated Karuna, the fact that Karuna was himself instigating Srilal would negative his being instigated by Srilal.
60. The next argument; put forward on behalf of the prosecution raises a question of considerable difficulty and importance and although upon the view of the' case that I take it is not necessary to decide that question, yet as the point has been fully argued I think I may shortly express my views on it. It has been contended that under Explanation 4 of Section 108, Indian Penal Code, the abetment of an abetment means the abetment of an act which subsequently ripens into an actual abetment of the principal and not an abetment or incitement merely to incite another when that other has not at all been incited. In other words, it is urged that without Karuna inciting the Magistrate the abetment of Karuna by Srilal did not amount to an abetment of an abetment. The language of Explanation 4 is not very clear. The idea that the law was expressed in the form of syllogism cannot be entertained. It would be so foreign to the usual method of drafting a Statute. It is suggested by the learned Advocate General that Explanation 4 should be read thus when the abetment of an offence is an offence, the abetment of such an abetment is an offence.' I think this is the correct way of interpreting the section.
61. The question mainly turns on the meaning of the words ' abetment of an abetment.' Having regard to the nature of the charge in this case, the only form of abetment we need consider is abetment by instigation. There is no question of a conspiracy as according to the prosecution case, Karuna and Srilal were at circumstance purposes from the very beginning. I would, therefore, substitute the word 'abetment' by the word ' instigation' and put the question in this form. Was there in this case an instigation of an instigation? Having regard to the definition of the word. 'abetment' as including both the abetment of an offence as well as the abetment of an act which, if committed, would be an offence, the question is whether there was on the part of Srilal an instigation of an actual instigation by Karuna, which instigation 'amounted, to an offence, or the instigation of an act which, if committed would have amounted to an offence. It is clear there was in this case no instigation of an actual instigation, but if the prosecution story is true, Karuna was instigated to do an act which, if committed, would have been an offence. The position seems to me to be fairly clear. Our attention has been drawn to an expression of opinion contained in 4th Edition of Mayne's, Indian Penal Code (p. 239), that if A asks B to go to a place and instigate 0, A commits no offence until B has instigated C. It is noticeable that this expression of opinion is not to be found in the author's own edition of the book but for the first time appears in the 4th Edition revised by Mr. Swami-nadhan. No authority is cited for this proposition and I do not consider that the expression of opinion is well-founded. Reliance has been placed on various cases on both sides, but I do not think it necessary to go farther into this question as I agree with all that has been said on the point by my learned brother.
62. I regret to have to differ from him. On the conclusions arrived at by me I would acquit Srilal also and discharge him from his bail-bond.
63. By the Court. As regards Srilal Chamaria, the appellant in this appeal, our opinions differ, They will be laid before the Hon'ble the Chief Justice under Section 429, Criminal Procedure Code, in order that be may appoint another Judge to hear the case.
64. The Chief Justice referred the case to Fletcher, J.,~ who delivered the following
65. This case comes before me under the provisions of Section 429 of the Code of Criminal Procedure. The appellant Srilal Chamaria was tried along with one Mimraj Benia, by the 3rd Presidency Magistrate and convicted on charges framed under Sections 161 and 109 of the Indian Penal Code. Mimraj was also convicted, but his conviction has been set aside by this Court.
66. The appellant Srilal was sentenced by the learned Magistrate to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 1,000 or in default to undergo a further period of two months' rigorous imprisonment;
67. Srilal appealed to this Court. His appeal was heard by Richardson and Huda, JJ. The learned Judges were divided in their opinion, Richardson, J., was for upholding the conviction, whilst Huda, J., was of opinion that the conviction ought to be set aside.
68. The facts in the case are fully set out in the judgment of the Magistrate as well as in the judgments of the two learned Judges. Richardson J., remarks in the course of his judgment: 'The outstanding feature of the case is that on the night of the 5th of February, a sum of Rs. 2,500 was admittedly handed over by Srilal to the witness Karuna Bhusan Banerjee, the Bench Clerk and Interpreter of the Court of the 5th Presidency Magistrate, Mr. Asutosh Mookerjee. A case was at that time pending before Mr. Mookerjee, in which the complainant was a Marwari, named Ramgopal Khemkar, and the accused was a wealthy Marwari merchant, named Bilas Roy Chowdhury. Ramgopal had been the tenant' of a room in a building belonging to Bilas Roy. It is said he' was adjudicated insolvent, looked up the room and paid no rent for 2 months. Bilas Roy had the room opened and certain things were removed therefrom. The complaint preferred by Ramgopal was in respect of that entry. I am not dealing with the merits. The hearing began on the 3rd January and by the 13th of January a number of witnesses for the prosecution had been examined, On the 31st January charges were framed against Bilas Roy under Sections 448, 453 and 383 of the Penal Code. It is clear that the case was fought with great personal animosity on both sides, though after the present case had been instituted against the appellants a settlement seems to have been arrived at between the parties and Bilas Roy was acquitted on the 22nd February.' The facts contained in the above' statement are not disputed. Srilal is a Gomasta or partner of Bilas Roy and in the course of his dealings with Karuna he was acting on behalf of Bilas Roy. He intended that the bribe should be made over by Karuna to the 5th Presidency Magistrate in order to secure the acquittal of Bilas Roy. '
69. The main controversy in this case has been as to whether the suggestion that the Magistrate should be bribed came originally from Srilal or Karuna.
70. The case for the prosecution is that Srilal visited Karuna on the 13th of January and on subsequent occasions at his house, that Karuna on the 28th January saw Mr. Swinhoe with reference to the matter, after which Karuna played the part of a Police spy and that on the night of the 5th of February Srilal made over to him Rs. 2,500 in the presence of a Police Inspector and two other witnesses who were' concealed in Karuna's house, and the money was seized by the Inspector, On the side of the defence it was stated that the first suggestion of a bribe came from Karuna and that he subsequently saw Srilal at his office at 2, Royal Exchange. Witnesses were called in support of this defence. I may say at the outset that I do not accept the evidence adduced by the defence.
71. The question, therefore, is whether it is safe to Convict Srilal on the evidence on the record. So far as regards the evidence apart from the incidents of the 5th of February, I think it would not be safe to convict the appellant. I am not, on the whole impressed with the evidence of. Karuna, although I think it is not improbable that he is right in his statement that Srilal first approached him. But apart from' the incidents of the 5th of February, I should hesitate to act on the evidence of Karuna without corroboration.
72. The incidents of the 5th of February, however, stand on a different basis. They are amply corroborated, in fact they are not denied.
73. On that day Srilal went to Karuna's house voluntarily. He was under no sort of coercion or threat. The conversation between Srilal and Karuna was overheard by witnesses and deposed to by them. Srilal wanted to be satisfied that the money reached the Magistrate. He wanted the case to be declared false and sanction to prosecute Ramgopal to be granted.
74. There seems to have been a clear incitement by Srilal of Karuna to instigate the Magistrate to accept a bribe, which Srilal then handed over to Karuna.
75. The question is whether on these facts the conviction of Srilal can be supported. The answer depends on the meaning of Sections 107, 108, 109 and 116 of the Penal Code. No bribe was actually offered to the Magistrate. It was argued on behalf of the defence that the Code does not make it an offence for a man to instigate another to instigate the commission of bribery unless the second abetment is actually committed. Under Section 107 a person abets the doing of a thing who instigates any person to do that thing.
76. Section 108 defines what is meant by the abetment of an offence. There are five explanations to this section. The second explanation provides that to constitute the offence of abetment, it is not necessary that the act abetted should be committed or that the effect requisite to, constitute the offence should be caused.
77. Explanation 4 is in the following terms: 'The abetment of an offence being an offence, the abetment of such an abetment is also an offence.' The prosecution read the explanation as follows: 'When the abetment of an offence is an offence, the abetment of such an abetment is also an offence.' Both Richardson and Shamsul Huda, JJ., adopted this view. On consideration I am of the same opinion. As Richardson, J., points out in his judgment, the words 'when the abetment of an offence is an offence' do not mean 'when an abetment of an offence is actually committed.' They mean when the abetment of an offence is by definition of description an offence under the Code, that is, when an abetment of an offence is punishable under Section 109 or Section 116 or some other provision of the Code, then the abetment of such abetment is also an offence.
78. Now, if that be the true reading of Explanation 4 to Section 108, there can, to my mind, be no doubt about the correctness of the conviction of Srilal. Srilal, when be handed over on 5th of February Rs. 2,500, committed a distinct incitement of Karuna to instigate the Magistrate to accept a bribe,
79. It makes no difference in the guilt of the abettor if the agent 'falls in with the plans of the abettor, knowing his criminal purpose, but intending to cause its detection' [Mayne's Criminal Law, 2nd Edition, page 469, Empress v. Troylukho Nath Chowdhry 4 C. 366 : 3 C.L.R. 525 : Ind. Dec. (n.s.) 232].
80. In the circumstances, I hold that the appellant Srilal was rightly, convicted and accordingly dismiss his appeal.
81. The appellant must surrender and serve out his sentence.