Whether non-public servant can be prosecuted U/S 13 of prevention of corruption Act ?

 It would be useful, in the context of the present case, to recollect the decision of this Court, in P. Nallammal v. State (1999) 6 SCC 559 which observed, as follows:

“Thus, the two postulates must combine together for crystallization into the offence, namely, possession of property or resources disproportionate to the known sources of income of public servant and the inability of the public servant to account for it. Burden of proof regarding the first limb is on the prosecution whereas the onus is on the public servant to prove the second limb. So it is contended that a non-public servant has no role in the trial of the said offence and hence he cannot conceivably be tagged with the public servant for the offence under Section 13(1)(e) of the PC Act.”{ Para 30}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1590 OF 2021

THE STATE BY S.P. THROUGH THE SPE CBI  Vs UTTAMCHAND BOHRA

Author: S. RAVINDRA BHAT, J.

Dated: December 9, 2021.

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Can the court charge the accused for an offence under POCSO Act if she fails to report to the police about a crime against a child?

 It is submitted by the counsel for the applicant that the

applicant is working as a Counsellor and during her routine

inspection of Ashram Shanti Niketan Balika Grih, Birla Nagar,

Hazira, Gwalior, the prosecutrix, who is mentally retarded minor

and is staying in the Ashram informed that Jain Baba posted in the said Ashram was continuously violating her sexually.

3. During the course of investigation, it was found that the

applicant was aware of the physical violation of the minor

prosecutrix, who was mentally retarded, and in spite of that, she

did not take any action against Jain Baba. When the applicant saw misdeeds of Jain Baba, then instead of taking any action against the co-accused Jain Baba, she simply requested him not to do the said act.

9. The allegations are that the applicant was a Counsellor and it

was her duty to ensure the security of the girls as well as to counsel them. The allegations are that in spite of getting the knowledge about the misdeeds of co-accused Jain Baba, she did not take any action whereas as per Section 19(1) of the POCSO Act, according to which, her duty was to inform the Special Juvenile Police Unit or the local police. Non-communication of information as required under Section 19(1) of the POCSO Act is a punishable offence, which may extend to six months. Further, Section 16 of the POCSO Act defines abetment which provides that either prior to or at the time of commission of act, if somebody does anything to facilitate the commission of that act and thereby facilitates the commission thereof, then it can be said to aid the doing of that act.

10. When the applicant had already seen the co-accused with the

prosecutrix and the prosecutrix has specifically alleged that she

was being ravished by the co-accused and instead of informing the local police, it is alleged that the applicant had simply requested the co-accused not to indulge himself in such an act, then it would certainly come within the definition of abetment as the act of the applicant amounts to aiding the co-accused for doing the act of rape on the prosecutrix. Further, it is well established principle of law that a roving and detailed enquiry or meticulous appreciation of evidence is not required at the stage of framing of charge. Even the grave suspicion is sufficient to frame charge for trial.

 THE HIGH COURT OF MADHYA PRADESH

CRR No. 2020/2021

Smt. Mamta Tiwari Vs. State of MP and anr.

Gwalior, Dated: 02.09.2021

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Whether Intention to aid commission of offence is essential for conviction of accused U/S.12 of Prevention of corruption Act?

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

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Guidelines for releasing accused on bail who has allegedly abetted offence under corruption Act?

 In the present case Mr. Kantak has rightly criticised the action of arrest on the ground that no offence of abetment could be proceeded against the applicant unless the principal offender was booked. The learned Addl. P.P. submits that necessary action will be taken against the principal offender after investigation is complete. The only justification for such a stand seems to be because of the fact that the principal offender is a sitting M.L.A. If this be so, there was hardly any reason for the Investigating Officer to hasten the arrest of the applicant, who is undoubtedly charged only for the offence of abetment. Now that the Investigating Officer has already recorded statements of relevant witnesses and no other recovery is to be made as rightly observed by the J.M.F.C., while ordering judicial custody; and in any case the applicant is in judicial custody since 29-4-2001, therefore, no fruitful purpose would be served by keeping him in jail. The applicant has reasonably good defence and as urged by Mr. Kantak, the present action against the applicant seems to be wholly unwarranted and inappropriate.

Bombay High Court

Khemlo Sakharam Sawant vs State on 8 May, 2001

Equivalent citations: 2001 BomCR Cri, (2001) 2 BOMLR 875 ,2002 (1) BOM C R 689 panji bench

Bench: A Khanwilkar

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How to appreciate evidence in case of abetment of offences under prevention of corruption Act

         

    As regards accused No.2, it can be seen from the evidence 
available on record, the position is quite different.  Accused No.2 has 
been roped in this case with the aid of Section 12 of the Act.  Section 

12   of   the   Act   seeks   to   punish   for   abetment   of   offences   punishable 
under   Section   7   or   11   of   the   Act.     What   amounts   to   abetment   of 
offence   has   not   been   independently   defined   in   the   Prevention   of 
Corruption   Act   and   therefore,   for   understanding   what   is   meant   by 
abetment   in   this   Act,   one   has   to   take   recourse   to   the   provision   of 
Section 107 of the Indian Penal Code.  Under this Section, abetment of 

a   thing   can   be   done   in   three   different   ways;   firstly,   it   can   be   by 
instigation,   secondly,   it   can   be   by   engaging   oneself   in   a   criminal 
conspiracy and thirdly by intentionally aiding a person in doing an act 
which is an offence.  In the instant case, we are not concerned with the 
first   two   ways   through   which   abetment   is   possible   as   it   is   not   the 
prosecution   case   that   accused   No.2   had   instigated   or   impelled   or 
compelled or goaded accused No.1 in any manner in taking bribe nor 
is it the  case that there was criminal conspiracy between accused   No.
1 and 2 or some other person for obtaining of the valuable thing or 
money from the complainant.  It is the case of the prosecution that the 
complainant was directed by accused No.1 to pay the amount of Rs.
250/­ to accused No.2 and thereafter, even the accused No.2 was told 
by him to accept that amount.   So, this case would be falling in the 
third category of the abetment as defined under Section 107 of the 
Indian Penal Code. 

Now,   if   we   take   a   look   at   the   prosecution   evidence,   we 
would find that nowhere it has appeared either in the evidence of the 
complainant   P.W.­4   Rajesh   or   evidence   of   P.W.­1   Mahendra   that 
accused No.2 was told by accused No.1 that the amount that he was 
directed   to   accept   from   the   complainant     was   towards   the   bribe 
demanded by accused No.1.  There is also no other evidence brought 

on record by the prosecution from which an inference of sharing of 
same intention by accused No.2 as accused No.1 or same knowledge 
by accused No.2 as accused No.1 as regards the amount of Rs.250/­, 
being the bribe amount can be drawn.  When a person is charged with 
an offence of abetting commission of offence by means of intentionally 
aiding the main accused, the burden is upon the prosecution to prove 
that same intention was nurtured by the abettor as the main culprit 
himself.   That evidence is absolutely lacking in this case.   It is quite 
possible that a person who is accused of abetment of commission of 
offence may accept something for and on behalf of the main accused 
innocently and in good faith without doubting that the money that he 
is   accepting   is   really   a   bribe.     In   other   words,   the   intention   of   the 
abettor   may   be   different   from   the   intention   of   the   main   culprit. 
Therefore,   it   is   necessary   for   the   prosecution   to   establish   that   the 
abettor too had shared the same intention as the main accused.  That 
is not the case here and, therefore, I am of the view, accused No.2 
15.
deserves to be acquitted. 
Apart   from   the   lack   of   evidence   of   sharing   of   the   same 
intention of accused No.1, there is also evidence brought on record by 
accused No.2 in support of his defence that the amount of Rs.250/­ 
accepted by him was towards liquidation of the debit balance standing 
in the account of accused No.1, which was opened by accused No.1 
with   accused   No.2,   a  pan   stall  owner   towards   purchase   of  pan  on 
credit   by   accused   No.1   from   accused   No.2.     P.W.­1   Mahendra   has 
given a clearcut admission in this regard.  He states that accused No.1 
was   directed   by   accused   No.1   to   accept   the   amount   from   the 
complainant and credit the same to his account maintained with him. 
It has also appeared through the evidence of P.W.­2 Ashok Kshirsagar, 
Clerk working in the office of accused No.1, from whom receipt book 
had   been   seized   by   police,   that   accused   No.2   was   in   the   habit   of 
supplying  pan  to various persons working in tahsil office.   Of course, 
he has pleaded ignorance about supplying of pan on credit to accused 
No.1.     But   the   fact   remains   that   accused   No.2   was   following   the 
practice   of   supplying   of  pan  to   various   employees   of   tahsil   office, 
where accused No.1 was working as Naib Tahsildar, on credit and was 
also in the habit of maintaining accounts of the employees to whom he 

used to supply  pan  on credit.   Therefore, it can be said that accused 
No.2 has succeeded in establishing on record through the principle of 
preponderance of probabilities that the amount that was accepted by 
him from the complainant was believed by him bona­fide to be the 
payment by accused No.1 through the complainant towards liquidation 
of   debit   balance   outstanding   against   him.   Therefore,   I   find   that 

accused No.2 has successfully probablised his defence in this case and 
the   prosecution   has   not   shown   that   the   probability   so   reasonably 
brought on record by accused No.2 has been ruled out by any other 
evidence   available   on   record.   Thus,   I   find   that   the   prosecution   has 
failed to establish beyond reasonable doubt it's charge that accused No.
2 abetted the commission of offence of acceptance of bribe by accused 
No.1, which is punishable under Section 12 of the Act. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 343 OF 1998
WITH
CRIMINAL APPEAL NO. 353 OF 1998
CRI. APPEAL NO. 343/1998 :

Ulhas s/o Upasrao Salame

.. Versus ..

  
The State of Maharashtra


  

         CORAM :  S. B. SHUKRE, J.
         DATED  :  JANUARY 30, 2015
Citation;2015 ALLMR (cri) 2259

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Whether offences U/S 13(1)(e) of prevention of corruption Act can be abetted by another person?

Corruption - Public Servants--Kith & Kin--Co-accused--Proceedings initiated against kith and kin of public servants accused of corruption, and such kith and kin arraigned as co-accused--Whether it is permissible for kith and kin to be prosecuted--The contention that the offence under S. 13(1)(e) of the P.C. Act is unabettable, since the nub of the offence is the failure of the public servant to account for the excess wealth which none else can possibly do, cannot be accepted. As shown by several examples given by the learned counsel for the State, it is wholly possible for persons who may be non-public servants to abet the offence of possessing unaccounted wealth disproportionate to the known sources of income of a public servant, therefore such persons, being "abettors", can also be prosecuted along with the public servant. Indian Penal Code: S. 109; Prevention of Corruption Act, 1988: S. 13(1)(e). "..........the two postulates must combine together for crystallization into the offence, namely, possession of property or resources disproportionate to the known sources of income of public servant and the inability of the public servant to account for it. Burden of proof regarding the first limb is on the prosecution whereas the onus is on the public servant to prove the second limb. So it is contended that a non-public servant has no role in the trial of the said offence and hence he cannot conceivably be tagged with the public servant for the offence under Section 13(1)(e) of the P.C. Act. ...........the legislative intent is manifest that abettors of all the different offences under Section 13(1)(e) of the P.C. Act should also be dealt with along with the public servant in the same trial held by the Special Judge. ...........There is no force in the contention that the offences under Section 13(1)(e) cannot be abetted by another person. ...........Shri Shanti Bhushan cited certain illustrations which, according to us, would amplify the cases of abetments fitting with each of the three clauses in Section 107 of the Penal Code vis-a-vis Section 13(1)(e) of the P.C. Act. ........The first illustration cited is this:

If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly. If it is a proved position there cannot be any doubt that A has abetted the offence by instigation.

........Next illustration is this:

Four persons including the public servant decide to raise a bulk amount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position then all the said persons are guilty of abetment through conspiracy.

........The last illustration is this:

If a public servant tells A, a close friend of him, that he has acquired considerable wealth through bribery but he cannot keep them as he has no known source of income to account, he requests A to keep the said wealth in A's name, and A obliges the public servant in doing so. If it is a proved position A is guilty of abetment filling under the "Thirdly" clause of Section 107 of the Penal Code.

........Such illustrations are apt examples of how the offence under Section 13(1)(e) of the P.C. Act can be abetted by non-public servants. The only mode of prosecuting such offender is through the trial envisaged in the P.C. Act. .........we are unable to appreciate the contentions of the appellants that they are not liable to be proceeded against under the P.C. Act."

IN THE SUPREME COURT OF INDIA

Crl.A. Nos. 758-770 of 1999

Decided On: 09.08.1999

 P. Nallammal Etc. 
Vs.
 State Rep. by Inspector of Police

Hon'ble Judges/Coram:
K.T. Thomas and M.B. Shah, JJ.

Citation:  AIR1999SC2556,  1999CriLJ3967,(1999)6SCC559,

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When offence of abetment for commission of offence under prevention of corruption Act is not made out?

During the pendency of the present application, original
accused no.1, who was applicant no.1, passed away and, therefore, his

name came to be deleted from the cause title of the application. Now,
the application is being prosecuted only by his wife, accused no. 2.
The present applicant no.2, who is accused no.2, is a non-
public servant and is facing a prosecution for commission of offence of
collecting assets by a public servant disproportionate to his known source
of income. The public servant, the original accused no.1 and husband of
present applicant, is no more alive and, therefore, learned counsel for
applicant no. 2 submits that the offence alleged against the applicant
cannot be proved. Though, learned APP disagrees, he could not show to
me as to how the offence of abetment as alleged against the applicant
no. 2 could be proved in the absence of the public servant, deceased
applicant no. 1 or accused no. 1. If it is the case that the main offence of
amassing illegal wealth disproportionate to the known source of income
cannot be proved by the prosecution against the public servant, i.e.
accused no. 1, having regard to the nature of allegations made against
applicant no. 2, offence of abetment of the offence can obviously be not
proved against the person who is not a public servant, i.e. accused no.2.
Allegations against applicant no. 2 or accused no. 2 are that she abetted
the commission of offence by her husband, the accused no. 1,
intentionally aiding him to amass the wealth.
by
The intentional aiding was
in the nature of holding in her name the assets purchased by her
husband
using ill-gotten money.
The fact that funds used for
purchasing assets were supplied by the husband, the deceased public

servant, has to be proved first in this case. It cannot be proved in the
absence of deceased public servant and, therefore, offence of abetment
of the nature alleged against his wife, the non-public servant,

also be proved.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL  APPLICATION (apl) No. 1577 OF 2007
1. Prakash Ramaji Ambagade
... DELETED
(As per Court's order dtd. 13.11.2014)
2. Smt. Nalini Prakash Ambagade
VERSUS
The State of Maharashtra,
through Anti Corruption Bureau,
Nagpur.
CORAM  :   
 S.B. SHUKRE, J.
DATED  :  29.01. 2015.
Citation;2015ALLMR(Cri)1564

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