Offering a bribe to a public servant constitutes an offence under Section 12 of the Prevention of Corruption Act.

S.S. Jha, J.

1. The Appellant was convicted for offence under Section 12 of Prevention of Corruption Act (hereinafter referred to as to the 'Act'). The Appellant is sentenced to one year's RI with fine of Rs. 1,000/- .

2. The brief facts of the case are that complainant Jaswant Singh Verma was holding the post of Civil Judge, Class 1 and Judicial Magistrate, Ist Class at Lahar, District Bhind. A Civil Suit bearing No. 383/94A, Mohan Singh v. Seeldulaiya was pending in his Court for adjudication. The suit was for declaration of title, possession and accounts. Appellant Rajaram was also impleaded as a party in that suit. On 29-6-1991, at about 8 p.m. complainant was reading newspaper inside of the house. While he was reading newspaper in the bedroom, he heard some sound near the window of the room. Somebody threw a packet of incense sticks through the window-sash. The complainant immediately peeped through the window and saw the accused, moving ahead. He had seen him in the light of tubelight and recognised him. Accused also wished him. He asked Chowkidar Nirdesh and process server Munnekhan, present at his house, to stop the accused, then accused said that he has given the packet for getting judgment in his favour. On opening the packet, an amount of Rs. 5101/- was found. On these facts, the Police presented challan in the Court under Section 165-A, Indian Penal Code. The trial Court framed charges under Section 12 of the Act.

3. Learned Counsel for the Appellant submitted that on the facts alleged, no case under Section 12 of the Act is made out. He submitted that whoever abets in commissioning the offence under Section 7 and 11 of the Act, is liable to be punished. Learned Counsel further submitted that in the absence of any allegation of abetting offence in connivance with main accused, offence under Section 12 of the Act is not made out. The Appellant cannot be convicted for the charges framed against him. In the absence of any evidence, under Section 12 of the Act, the punishment is uncalled for and Appellant is liable to be acquitted.

4. The Learned Counsel for the State submitted that Police has filed challan under Section 165-A of Indian Penal Code, therefore, the Appellate Court has powers to convict Appellant under Section 165-A of Indian Penal Code. Mere framing of wrong charge will not be a ground to acquit Appellant. The Appellant very well knew the charge against him, as such, no prejudice is caused to him if he is convicted for offering bribe to a public servant. Even if Court feels that charges under Section 12 of the Act are wrongly framed they can be modified in appeal. The Appellant can be convicted for offence under Section 165-A Indian Penal Code. Section 165-A, Indian Penal Code is similar to Section 12 of the Act. Section 165-A Indian Penal Code relates to a person who abets any offence punishable under Section 161 or Section 165. Section 165-A Indian Penal Code is distinct and separate offence and therefore abetment of an offence under Section 161 read with Section 116 Indian Penal Code. Section 165-A is not merely restatement of the offence of abetment under Section 116 of the Code. It also comprises abetment under Section 109 of the Code and provides an enhanced penalty of three year's imprisonment. The only question involved in case is whether, the act amounting to instigation may attract the provisions of Section 12 of the Act?

5. Learned Counsel submitted that Appellant is not a public servant therefore, he cannot be convicted for offence under Section 12 of the Act. Now for the purpose of considering the question, provisions of Section 12 of the Act and provisions of Section 165-A read with Section 116 of Indian Penal Code, which are corresponding sections, is required to be considered in this case.

6. Section 109 of Indian Penal Code deals with the punishment of abetment. In explanation of this section it is provided that an act or offence is said to be committed in consequence of abetment, when