The relevance of illustration (a) of Section 116 of the Code in deciding guilt of an accused charged with the offence under Section 12 of the Act.

( 1. ) THE learned Single Judge, before whom this appeal against conviction under Section 12 of the Prevention of Corruption Act, 1988 (for short the Act)came up for consideration, has referred the following question for decision by a larger Bench :-"whether the offences under Sections 7 and 12 of the Prevention of Corruption Act, 1988 are substantive offences, if yes, being totally independent, the cases falling under it are required to be decided without taking aid of illustration (a) of Section 116 of the penal Code? If yes, whether by taking the aid of Illustration (a) of section 116 of the Penal Code holding that the offence under section 12 of the Act is proved, the case of Rajaram Vs. State of m. P. 2001 (1) MPLJ 624, has been correctly decided?"

( 2. ) FOR a proper appreciation of the rival contentions, it is necessary to refer briefly to the legislative history leading to creation of the offence punishable under Section 12 of the Act. This section that is merely a restatement of Section 165-A of the Indian Penal Code (hereinafter referred to as the Code)punishes abetment of offences defined in Sections 7 and 11 of the Act, which respectively correspond to Sections 161 and 165 of the Code. Originally, there was no provision in the Code for punishing abetment of the offence under Section 161 or 165 thereof. The Prevention of Corruption Act, 1947 also did not contain any punishing Section for the offence of abetment of acceptance of illegal gratification or bribe by a public servant in respect of an official act, that was dealt with by Section 161 of the Code or the offence of obtaining of valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant, that was falling under Section 165 thereof. It was the Criminal Law Amendment Act, 1952 (XLVI of 1952) that inserted Section 165-A in the Code as the penal provision for abetment of these offences. Ultimately, the entire Chapter IX of the Code that comprised the offences by or relating to public servants including the one under Section 165-A was omitted by the Act. However, as pointed out already, Sections 7,11 and 12 of the Act are virtually the verbatim reproductions of Sections 161,165 and 165-A of the Code (since omitted ).

( 3. ) AFTER tracing this legislative history, the learned Senior Counsel appearing on behalf of the appellant has strenuously contended that after coming into force of the Act, illustration (a) appended to Section 116 of the Code (for short the illustration) cannot be utilized for deciding guilt of an accused charged with the offence under Section 12 of the Act. To buttress the contention, primal reliance has been placed on a decision of the Apex Court in Bhajahari Mondal vs. State of W. B. (AIR 1959 SC 8 ). However, learned Deputy Advocate General is of the view that omission of the illustration cannot be assumed, as the legislature has preferred to retain the same in the Code and that too, in me Chapter V titled as "of abetment".

( 4. ) FOR a ready reference, the following excerpts from the judgment in Rajarams case (supra), the correctness of which is at issue, may be reproduced :-

"7. Section 116, Indian Penal Code relates to abetment of offence punishable with imprisonment. Section 116 of Code is reproduced below :-Illustration (a) of the section is reproduced below :-A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of Bs official functions. B refuses to accept the bribe. A is punishable under this section. " thus, it is clear that bribe is offered to a public servant as a reward for showing some favour in discharge of his official function. On refusal of public servant, to accept bribe, the person-offering bribe is punishable under this section. The language of Section 165-A of Code and that of Section 12 of the Act are identical in nature. Since the definition of abetment is not given in the Act, therefore, considering the provisions of