INDUR DAYALDAS ADVANI Vs. STATE OF BOMBAY

JUDGEMENT

(1.) His Lordship, after considering the facts and holding that the appellant obtained Rs. 100 from the complainant as bribe, proceeded:] The learned counsel who appears on behalf of the appellant saya however that in this case even so, the prosecution must fail because the appellant had nothing to do with the case of the complainant after 14th January 1950. Now, it is true that Mr. Khoja, the superior of the appellant, gave evidence that he had entrusted the case to the appellant, but we do not think that that evidence can be accepted. The complainant's case was that it was Thadani who was dealing with this case. The order of Mr. Khoja which was referred to above has an obvious reference as to what was to be done in case the complainant: did not appear. There is nothing from which we can come to the conclusion that the appellant had, at the time when the bribe is alleged to have been taken, anything to do with the complainant's case. It may be that subsequently the case may have been referred to the appellant. Thadani had filed a writtenstatement saying as a matter of fact that he had merely got to go into the accounts and the case would have been dealt with later by the latter. Thadani's Indur Dayaldas Advani vs. The State of Bombay (06.04.1951 - BOMHC) Page 2 of 9 statement would not be evidence against the appellant and we obviously cannot use it against him. Even if we are entitled to use it, we find each one would obviously have something to gain by throwing the blame on the other. No reliance could be placed on Thadani'a statement. In that case, we must accept that it is not proved that the appellant had anything to do with the case of the complainant. He had indeed, as it was his duby, to inquire into the question as to whether the complainant had paid the sales tax. Upon having found that he had not paid the sales tax, he has made a report to the superior officer and thereafter it would appear that he had nothing to do with the appellant's caso.

(2.) But in out view, that does not absolve the appellant from the charge undor Section 161, Penal Code. The learned counsel who appears on behalf of the appellant urged that before the appel-lant could be convicted of an offence under Section 161, Penal Code, in the first instance it must be shown that it was within the power of the appellant to show any favour to the complainant, and he says that if it was not within his power to do so, the appellant could not be held guilty of an offence under Section 161, merely because he took Rs. 100 from the complainant.

(3.) Now, the offence under Section 161, if we con-fine ourselves to the relevant portion of the definition, consists of obtaining any gratification other than legal remuneration "as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function favour or disfavour to any person." The section does not say anything about the official act being within the power of the public servant concerned. Not does it say anything about it being within the power of the public servant concerned to show favour or disfavour to any person in the exercise of his official function. It is true that the section does not penalise the public servant in obtaining any gratification other than legal remuneration in all cases. The section would have application only when gratification is taken as a motive or reward for doing the things mentioned above. But even though this would exclude the case in which money is accepted, for example, in a private capacity or for doing something which is entirely unconnected with the official duties of the taker, we do not think that there is anything in the section which requires the State to prove that the act which was committed wag within the power of the public servant concerned. The words "aa a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official function" may constitute the ingredient which English lawyers call mens rea. But these words in the first instance do not postulate a state of mind in the public servant that he was going to do the promised official act or he was going to show the promised official favour. That is quite clear from the last explanation to the section which says about the wards "a motive or reward for doing" that "a person who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within these words." It would appear therefore that a state of mind in the public servant that he was not going to do anything for the giver of the bribe would not render his act innocuous. These words must, therefore, in our view, be interpreted to moan upon a representation that a particular desired official act will be done or forborne and favour or disfavour will be shown. That impliedly at any rate would include a representation that the act was within the power of Indur Dayaldas Advani vs. The State of Bombay (06.04.1951 - BOMHC) Page 3 of 9 the public servant or that it was within the power of the public servant to show favour or disfavour. But if both these representations are there, the only other thing which it is necessary is that graduation should have been taken in order to do an official act as distinguished from a private act or to show favour or disfavour in the discharge of an official function as apart from functions which can he said to be said to be entirely non-official, For example, there was the case of a village watchman who found a widow at the shop of a goldsmith at night, and the goldsmith gave him a reward to hold his tongue to prevent them from being disgraced. Similarly, where a Sub-Inspector helped a candidate for the Legislative Council upon getting what was called a silver tonic, it was held by the Patna High Court that that did not amount to a charge of bribery as canvassing for votes at a Council election was not an official act. But these cases obviously are not authorities for the proposition that where a public servant obtains a bribe for himself or for another upon a representation that favour would be shown to the giver in the discharge of his official functions, the public servant is still not guilty, because it is not within his power to show favour. In our view, it makes no difference whether it was not within his power to show any favour because the act falls within the authority of another servant holding a similar office in the same establishment or because the public servant has become functus officio.