Hon'ble Apex Court found that merely because he was entrusted with
some money to be passed on the accused No.1, it could not be held that
he was guilty of any one of the offences unless it was established that
he was party to the alleged understanding arrived at between
complainant and accused No.1. Hon'ble Apex Court also found that
arrangement if any was between accused No.1 and complainant and
accused No.2 was not party to it.
18. Facts of matter at hand are identical. Here complainant or
panch witness PW3
do not depose that they informed the appellant
that Rs.1500/was
being deposited with him for its transmission to
deceased accused No.1. In this respect, perusal of Section 12 of 1988
Act becomes essential. It contemplates abetment of any offence
punishable under 1988 Act. Hon'ble Apex Court has in the matter of
Central Bureau of Investigation .Vs..Shukla and Ors. reported in
(1998) 3 SCC 410 considered the provisions of section 12 of
Prevention of Corruption Act 1947. Relevant discussion is contained
in paragraph No.50 and 51. Hon'ble Larger Bench of Apex Court finds
that as ''abetment'' is not defined under Prevention of Corruption Act,
it has to refer to its exhaustive definition in Section 107 of Indian
Penal Code. Discussion by Hon'ble Court shows that for first two
clauses of Section 107 of Indian Penal Code, it it not necessary that
offence instigated should have been committed. While considering
clause (iii) of Section 107, Hon'ble Apex Court took aid of explanation
of (2) and arrived at findings that when a person abets by aiding, the
act so aided should have been committed in order to make such aiding
an offence. Said paragraph No.50 reads as under:''
Undoubtedly for a person to be guilty
thereunder it is not necessary that the offences
mentioned therein should have been committed
pursuant to the ''abetment''. Since ''abetment'' has
not been defined under the Prevention of
Corruption Act we may profitabley refer to its
exhaustive definition in Section 107 of the Indian
Penal Code. As per that Section a person abets
the doing of a thing when he does any of the acts
mentioned in the following three clauses;
(i) instigates any person to do that thing, or
(ii) engages with one or more other person or
persons in any conspiracy for the doing of that
thing ........, or
(iii) intentionally aids, by any act or illegal
omission, the doing of that thing.
So far as the first two clauses are concerned it is
not necessary that the offence instigated should
have been committed. For understanding the
scope of the word "aid" in the third clause it
would be advantageous to see Explanation 2 in
Section 107 I.P.C. which reads thus:
''Explanation 2.Whoever,
either prior to or at the
time of the commission of an act, does any thing
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 thus clear that under the third clause that
when a person abets by aiding, the act so aided
should have been committed in order to make
such aiding an offence. In other words, unlike the
first two clauses the third clause applies to a case
where the offence is committed''.
19. These observations of Hon'ble Apex Court also apply in
present facts. It was never the case of prosecution that the appellant
instigated complainant to pay bribe or then engaged himself and
conspired to facilitate receipt of bribe. In fact there is no charge of
conspiracy at all. The only remaining part therefore, is of aiding and,
the provisions of Clause III
of section107 show that aiding has to be
with intention. Facts necessary to demonstrate that the appellant was
dwelling under such intention are not brought on record. Prosecution
has only established the payment of Rs.1500/by
complainant to
appellant. However, its nature as bribe could not be established.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 408 OF 2005
Abdul Mannan Mohd.Yusuf Vs The State of Maharashtra,
CORAM
: B.P. DHARMADHIKARI , J.
DATED : 16.05.2019
Print Page
some money to be passed on the accused No.1, it could not be held that
he was guilty of any one of the offences unless it was established that
he was party to the alleged understanding arrived at between
complainant and accused No.1. Hon'ble Apex Court also found that
arrangement if any was between accused No.1 and complainant and
accused No.2 was not party to it.
18. Facts of matter at hand are identical. Here complainant or
panch witness PW3
do not depose that they informed the appellant
that Rs.1500/was
being deposited with him for its transmission to
deceased accused No.1. In this respect, perusal of Section 12 of 1988
Act becomes essential. It contemplates abetment of any offence
punishable under 1988 Act. Hon'ble Apex Court has in the matter of
Central Bureau of Investigation .Vs..Shukla and Ors. reported in
(1998) 3 SCC 410 considered the provisions of section 12 of
Prevention of Corruption Act 1947. Relevant discussion is contained
in paragraph No.50 and 51. Hon'ble Larger Bench of Apex Court finds
that as ''abetment'' is not defined under Prevention of Corruption Act,
it has to refer to its exhaustive definition in Section 107 of Indian
Penal Code. Discussion by Hon'ble Court shows that for first two
clauses of Section 107 of Indian Penal Code, it it not necessary that
offence instigated should have been committed. While considering
clause (iii) of Section 107, Hon'ble Apex Court took aid of explanation
of (2) and arrived at findings that when a person abets by aiding, the
act so aided should have been committed in order to make such aiding
an offence. Said paragraph No.50 reads as under:''
Undoubtedly for a person to be guilty
thereunder it is not necessary that the offences
mentioned therein should have been committed
pursuant to the ''abetment''. Since ''abetment'' has
not been defined under the Prevention of
Corruption Act we may profitabley refer to its
exhaustive definition in Section 107 of the Indian
Penal Code. As per that Section a person abets
the doing of a thing when he does any of the acts
mentioned in the following three clauses;
(i) instigates any person to do that thing, or
(ii) engages with one or more other person or
persons in any conspiracy for the doing of that
thing ........, or
(iii) intentionally aids, by any act or illegal
omission, the doing of that thing.
So far as the first two clauses are concerned it is
not necessary that the offence instigated should
have been committed. For understanding the
scope of the word "aid" in the third clause it
would be advantageous to see Explanation 2 in
Section 107 I.P.C. which reads thus:
''Explanation 2.Whoever,
either prior to or at the
time of the commission of an act, does any thing
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 thus clear that under the third clause that
when a person abets by aiding, the act so aided
should have been committed in order to make
such aiding an offence. In other words, unlike the
first two clauses the third clause applies to a case
where the offence is committed''.
19. These observations of Hon'ble Apex Court also apply in
present facts. It was never the case of prosecution that the appellant
instigated complainant to pay bribe or then engaged himself and
conspired to facilitate receipt of bribe. In fact there is no charge of
conspiracy at all. The only remaining part therefore, is of aiding and,
the provisions of Clause III
of section107 show that aiding has to be
with intention. Facts necessary to demonstrate that the appellant was
dwelling under such intention are not brought on record. Prosecution
has only established the payment of Rs.1500/by
complainant to
appellant. However, its nature as bribe could not be established.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 408 OF 2005
Abdul Mannan Mohd.Yusuf Vs The State of Maharashtra,
CORAM
: B.P. DHARMADHIKARI , J.
DATED : 16.05.2019
