BHIM SINGH Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by Bhim Singh accused who has been convicted by the learned Special Judge (Session Judge) Bharatpur under sec. 165 A of the Indian Penal Code and sentenced to three months' rigorous imprisonment and a fine of Rs. 30/ -.

(2.) THE circumstances under which the prosecution was started against the appellant are said to be the appellant presented an application, Ex P. 1, before the Sub Tehsildar Kumher for help of the police in preventing the intervention of one Chitar in the cultivation of a certain field in village Pechmoor Subtehsil Kumher, District Bharatpur which according to the appellant had been in his cultivatory possession for sometime past. This application was presented in the Sub Tehsil Kumher on the 13th of August, 1953, and it was forwarded to the Sub Divisional Officer, Bharatpur with a recommendation that the appellant be granted relief prayed for by him. THE application came up before Mr. P. S. Saxena, Sub Divisional Officer and Sub Divisional Magistrate, Bharatpur (hereinafter to be referred to us the Sub Divisional Magistrate) on the 14th of August, 1954, and he, finding no reason to take the action prayed for, consigned it to the record room and directed the appellant to seek his remedy in proper court- THE appellant was present at the time the order was made and after hearing the order, requested the Magistrate to take something from him and make an order in his favour and while1 so saying he put his hand into his pocket and brought out a money bag, THE Sub Divisional Magistrate brought this matter to the notice of the Superintendent of Police by this report Ex. P. 2 dated the 14th of August, 1953. THE Superintendent of Police Bharatpur forwarded the report to the Station Officer, Kotwali Bharatpur who secured a warrant for arrest of the appellant under sec. 3 of the Prevention of Corruption Act, 1947 and arrested the appellant. After necessary investigation the case was challaned under sec. 165 A of the Indian Penal Code in the court of the Special Judge (Sessions Judge ). Bharatpur.

(3.) TAKING up another argument of the learned counsel for the appellant that it was not within the power of the Sub-Divisional Magistrate to order the police to assist the appellant as requested by him, in the first instance, it cannot be said that the Magistrate had no power to order the police to assist the appellant. He could have taken action under sec. 145 of the Criminal Procedure Code or sec. 107 of the Criminal Procedure Code and could have ordered the police to attach the property to safeguard the appellant before the decision of the case. Simply because the Sub Divisional Magistrate considered that the application was not made under any particular provision of law and made an order that the application be filed, does not show that he could not have taken any action favourably to the appellant if he had not been simply led away by the omission to state any provision of law in the application under which action was required. Even supposing however, that the Sub-Divisional Magistrate had no power to assist the appellant, the question is not what the Sub-Divisional Magistrate could have done but the question is what the appellant wanted him to do. The appellant certainly wanted that the Sub-Divisional Magistrate in his official capacity should assist him and for that he made an offer to pay him some cash. It was held in the case of Emperor vs. Phool Singh, (7) cited above that sec. 161 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. It was held that - "illustration (c) to the section shows that even if a person offers gratification to a public servant by way of reward for services which in fact were never rendered by him, he would still be guilty of the offence under sec. 161. The heinousness of the act obviously lies in the intention of the bribe-giver to corrupt the public servant and the act does not become any the less heinous merely because the public servant does not happen to possess the necessary power to do the required favour or service. " In the case of Indur Dayaldas Advani vs. The State of Bombay (9) also quoted above it was held that - "sec. 161 does not require that the public servant must himself have the power or must himself be in a position to per-from the act or show favour or disfavour, for doing or showing which the bribes has been paid to him. From the last explanation to the section it is clear that it is not necessary, in order to constitute an offence under sec. l6l,that the act for doing which the bribe is given should actually be performed. It is sufficient if a representation is made that it has been or that it will be performed and a public servant, who obtains a bribe by making such representation, will be guilty of the offence punishable under this section, even if he had or has no intention to perform and has not performed or does not actually perform that act. A representation by a person that he has done or that he will do an act impliedly includes a representation that it was or is within his power to do that act. "