The intention to corrupt a public servant by offering him a bribe is sufficient to constitute an offence under Section 161, read with Section 116, Penal Code, even if the public servant is not actually in a position to do the act or show favour or render service, for doing, showing or rendering which the bribe is offered to him.

JUDGMENT - Chainani, J.

1. The charge, which was framed against the accused by the trying Magistrate, was that on 23rd March 1949, they and the deceased Pattan, in furtherance of their common intention, offered Rs. 15,000 as illegal gratification to Police Inspector Naik in his room at the police club, Belgaum, in order that he should help them in getting the Income-tax inquiry against them dropped and in getting back their account-books, which had been attached by the police at Rabkavi. The investigation of the case, in which the accused are said to have cheated Government of income-tax by not disclosing the greater part of their income and in which their account-books had been seized, was being conducted by the Deputy Superintendent of Police Gudi and by Inspector Naik, under Gudis supervision. Naik could not, therefore, himself close the investigation or return the account-books to the accused. Ho could do so only after obtaining the permission of Gudi and probably also of higher officers.

Naik has also stated that when the accused asked him to return the account-books, he told them that the sanction of the Magistrate was required for their return. It has, therefore, been urged that Naik was not in a position to do any official act in favour of the accused or to show them any favour in the exercise of his official functions and that consequently the accused are not liable. It is true that Naik had submitted a report against the accused on 12th March 1949. The accused were probably not aware of this report at the time when they paid Rs. 15,000 to Naik. It was, however, possible for Naik to submit a further report to his higher officers, stating for instance that ho had made further inquiries into the matter, that he was satisfied with the explanations given by the accused and that their account-books should be returned to them. Although he could not himself return the account-books to the accused, he could perform an official act or show favour to them in the exercise of his official functions or render service to them with his superior officers by making a recommendation to his higher officers that the account-books should be returned to them.

Assuming, however, that he was not in a position to do so, that would not make any difference. For, Section 161, Penal Code, only requires that the gratification should be given to a public servant as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show favour or disfavour in the exercise of his official functions or for rendering or attempting to render any service or disservice to any person with any public servant. It does not require that the public servant himself must have the power or must himself be in a position to perform the act, to show favour or disfavour or to render service or disservice, for doing, showing or rendering which the bribe has been paid to him. As observed by Bhide J. in Emperor v. Phul Singh, I. L. R. (1942) 23 Lah. 402 at. p. 406.

"It is difficult to see any principle on which a distinction should be made between eases in which the public servant is in a position to do the official act, or favour or service and those in which he is not is a position to do so, but is erroneously believed to be in that position."

We also agree with the learned Judges observations (p. 406) that "the heinousness of the act obviously lies in the intention of the bribe-giver to corrupt the public servant" and that there is "no good reason, why the act should be considered to be less heinous merely because the public servant does not happen to possess the necessary power to do the required favour or service." In Phul Sings case the Lahore High Court held that it is sufficient to constitute an offence under Section 161 read with Section 116, Penal Code, if there is an offer of bribe to a public servant in the belief that ho had the power in the exercise of his official functions to show the dasired favour, although the public servant h

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