EMPEROR Vs. BIHARILAL KALACHARAN

JUDGEMENT

(1.) [His Lordship, after dealing with questions of fact arising in the case, proceeded :] Mr. Lulla has then raised a rather interesting point of law. According to him even assuming that the prosecution have established their case against the accused no offence in law has been committed. According to Mr. Lulla under Section 213 it is only when the accused actually screens any person from legal punishment that the offence is complete. According to him the mere promise to screen a person from legal punishment and to receive gratification for that promise does not constitute an offence. We are unable to accept that contention. Looking to the plain meaning of the section, apart from any authority, it seems to us that the mischief that is aimed at by the Legislature is the accepting of a gratification for concealing an offence or screening any person from legal punishment or not proceeding against any person for the purpose of bringing him to legal punishment, and not the actual concealing of an offence, or the screening of any person from legal punishment or not proceeding against any person for the purpose of bringing him to legal punishment. Once a person accepts a gratification and if the consideration for accepting that gratification is his concealing the offence or screening the person from legal punishment, the offence is complete. The consideration may be either a promise to conceal an offence or screen the person from legal punishment or it may be a past consideration, the person having already concealed the offence or screened the person from legal punishment and receiving gratification for having rendered that service. It is unnecessary to state that in law a consideration may be as much a promise as something actually done or achieved. Mr. Lulla contends that the Legislature does not enact that if a person receives gratification in consideration of his agreeing or promising to conceal an offence or screen any person from legal punishment, he would be guilty of an offence. According to Mr. Lulla if the Legislature intended to punish even an agreement or promise to conceal or screen, then those words should have found a place in the section. In our opinion there is very good reason why those words do not find a place in the section. Because if those words had been placed there by the Legislature then the consideration would have referred only to something to be done in future. It would not have covered the case of past consideration. The neutral word used by the Legislature "consideration" is wide enough to cover both cases, the case of something having been done or achieved in the past and also the case of something to be done in Futuro. The other difficulty that arises if we were to accept the interpretation put upon the section by Mr. Lulla is as to the point of time when it could be said that the offence was complete. If we accept Mr. Lulla's interpretation, then the offence would not be complete when the accused received the gratification, but it would only be complete when the offence was concealed or a person was screened from legal punishment. Therefore if the accused took a gratification after having promised to conceal the offence or screen the person giving gratification from legal punishment if he chose to break his promise and not stand by his agreement then no offence would be committed, although he received both the gratification and committed a breach of the agreement quae the person who gave him the money. But the offence according to Mr. Lulla would only be committed if he received the gratification and further went on to keep his promise and abide by his agreement. Unless the words of the section were clear and plain and compelled us to place that interpretation upon it, we think that the interpretation suggested by Mr. Lulla results in serious difficulties and anomalies and should not be accepted.

(2.) Reliance is placed on a decision of this Court in Emperor V/s. Sanalal Lallubhai (1913) I.L.R. 37 Bom. 658 : s.c. 15 Bom. L.R. 694. Mr. Justice Batchelor and Mr. Justice Shah were considering a case where one Gordhandas gave certain jewellery to one Manilal by way of jangad and Manilal pledged the same with one Sanalal under circumstances which constituted such pledging an offence of criminal breach of trust. The jewellery was later returned by Sanalal to Gordhandas on the latter undertaking not to prosecute Manilal for the offence of criminal breach of trust. Manilal was tried for the offence of criminal breach of trust with regard to the jewellery and was acquitted. Sanalal and Gordhandas were then tried for offences under Secs.213 and 214 and the charge against them was that they offered and took restitution of property in consideration of screening an offence, and the two learned Judges held that the accused must be acquitted in that the offence of criminal breach of trust had not been proved and therefore no offence could be committed under Secs.213 and 214. Now, really that case has not much bearing upon the facts that we have to consider because there it was found that there was no offence whatsoever which could be concealed or in respect of which any person could be screened. Once the person who offered the bribe was acquitted and it was held that he had committed no offence, then the person accepting the bribe and promising to screen him from legal punishment could not naturally be convicted under Section 213. Because it could not be said that he had. received any gratification in consideration of his concealing an offence or screening any person from legal punishment as there was no offence to conceal and no person to screen from legal punishment. The very basis of Section 218 is that there must be an offence committed which can be concealed and there must be an offender who has to be protected from legal punishment.

(3.) The case most strongly relied upon by Mr. Lulla is a decision of the Calcutta High Court reported in Hemchandra Mukherjee V/s. Emperor (1924) 1 Q.B.D. 141 That is a case directly in point and there a Divisional Bench of that Court consisting of Mr. Justice Now bould and Mr. Justice Mukerji came to the conclusion that there must be an actual concealment of an offence, or screeing of a person from legal punishment, or abstention from proceeding criminally against a person in order to attract the application of Section 213. There would be no offence if a gratification was accepted merely on a promise to conceal, screen or abstain and nothing more. Now, with very great respect to these two learned Judges, we are unable to accept that, decision as a correct, decision. Mr. Justice Mukerji realised the difficulty in which he found himself in giving that construction to the section, because at the bottom of p. 156 the learned Judge says : Actual concealment or screening even for a short time may be sufficient, but there must be some concealment or screening actually proved. Now, why "some concealment or some screening actually proved" ? If the construction is, what the learned Judges of the Calcutta High Court suggest the correct construction of Section 213, then it is not the case of "some concealment" or "some screening" to be proved. Full and complete concealment or screening, and effective concealment or screening would have to be established before it could be said that the offence was committed under Section 213. It is difficult to see how there can be any half way house between the two interpretations. Either the actual concealment or screening has nothing to do with the commission of the offence, the commission of the offence being complete as soon as the gratification is received; or the law intended that the offence was only committed after the offence was concealed or the person was screened from legal punishment. In the latter case the prosecution would have to establish the actual and complete concealing of the offence, equally the actual and complete screening of the person from legal punishment. Mr. Justice Mukerji also points out that the Legislature has not used the words "agreeing or promising to conceal." As we have pointed out earlier, there is very good reason why the Legislature did not use that expression.