http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: FAGUNA KANTA NATH

       Vs.

RESPONDENT: THE STATE OF ASSAM

DATE OF JUDGMENT: 13/01/1959

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. WANCHOO, K.N.

CITATION:  1959 AIR  673            1959 SCR  Supl. (2)   1  CITATOR INFO :  F          1967 SC 553  (7,9)  R          1970 SC 436  (14)  F          1990 SC1210  (5,6,8,9)

ACT:        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.

HEADNOTE: 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 wag-not maintainable. Dalip   Singh  v.  State  of  Punjab,  [1954]  S.C.R.   145, distinguished.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

JUDGMENT: 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 appellant. 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 conimission 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  imprisonment. 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  com- plainant  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  Happa- ram 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  was  present. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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 special leave. 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  "

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

and  the  finding of the High Court was that the  money  re- mained  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 committe  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 ".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

In  that  case although the High Court had  acquitted  three accused persons of an offence under s. 302 read (1) [1902] 2 K.B. 339.         (2) [1955] 2 S.C.R. 881. (3)  [1954] 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  appel- lant.   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 discharged.                                    Appeal allowed. 8